HomeMy WebLinkAbout2017CV219 - ERIC SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 023 - CONTESTOR'S REPLY IN SUPPORT OF MOTION FOR POST-TRIAL RELIEF8 DISTRICT COURT
LARIMER COUNTY JUSTICE CENTER
Court Address: 201 Laporte Avenue
Fort Collins, CO 80521
RECEIVED
Phone (970) 494-3500
OCT 16 2017
Plaintiff/Contestor: Eric Sutherland, as an individual, pro se.
V.
Defendant/Contestee: City of Fort Collins
CITY ATTORNEY
Indispensable Party: Angela Myer, Larimer County Clerk and
Recorder.
♦ COURT USE ONLY
Party without attorney:
Case Number:
Eric Sutherland, pro se
2017CV219
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Division:
Phone Number: (970) 224 4509 E-mail:
Sc
sutherix@yahoo.com
CONTESTOR'S REPLY IN SUPPORT OF MOTION FOR POST -TRIAL RELIEF
For simplicity, personal pronouns I, me, myself, refer to the Contestor, Eric Sutherland.
INTRODUCTION
Regrettably, this court must now consider providing the relief originally
requested in this matter and Order a change to the language of the submission
clause of the ballot question contested here.
I say regrettably because this will have the effect of nullifying the results of
the consideration of a ballot question by the electors of Fort Collins. They
certainly deserve better from their city government than they were subjected to on
this occasion. To understand why, this court must view the overarching situation:
rather than compromise on changes to the language of a ballot question and the
underlying Charter provisions to be adopted on affirmative vote,The City of Fort
Collins arrogantly dug in its heals and obstinately resisted common sense changes
to the language that was proposed. Such changes in language were completely
harmonious with the legislative intent of the changes to be adopted by a `yes' vote.
Such changes in language would not have skewed the results of the election in any
meaningful way.
In other words, myopic stubbornness without any reasonable justification in
defense of black letters on a white page sank this attempt to amend the Fort Collins
City Charter. This scenario would seem implausible, save for the fact that it is not
unlike many other things that happen at City Hall these days.
This unbelievable stubbornness, which is not beneficial in any regard to the
public interest, was accompanied by erroneous and absurd statements by the City
of Fort Collins in its Responsive pleading to my Rule 59 Motion. The quality of
the legal work found here moves one to fear for the future of our community.
I. ERRONEOUS DENIALS OF NEW INFORMATION AND ARGUMENT
MADE BY CONTESTEE
The Contestee would have this court believe that my Rule 59 Motion does
nothing more than revisit the same arguments raised in the Petition and pre-trial
brief. ( See pp. 2 12. and pp. 7 of City's Response.) To the contrary, the
substance of argument presented in the Motion derived from the fact that this
court, itself, had been misled about the effect of a `yes' or `no' vote on the ballot
question. The crux here is that: It is axiomatic that if the judge presiding over a
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contest to determine if a ballot question is misled by the language of the ballot
question, then the ballot question is "clearly misleading. " The Contestee City
provided absolutely no refutation of the claim that this Court had been misled and
that the natural conclusion that the ballot question was misleading. (See Section
III. beginning on page 7 of the Motion for Post -Trial relief.) I offered proof that
ballot question was misleading in accordance with each of my three Grounds for
the Contest 1-3 that was presented in this Court's order. That proof was not
questioned.
In particular, the proof that this court was misled in regard to my Grounds:
Part 3 is especially noteworthy because I believe that this is the issue most likely to
be decided against the City upon appeal to the Supreme Court if necessary. For
reveiw, I had held that the absence of any language notifying a voter than debt
service payments could be made without Council appropriation if the Charter
amendment was adopted was clearly misleading. In response, the City argued, in
effect, that the `conflict' between this proposed language and other provisions of
our Charter did not represent a possibility for misunderstanding because such
`conflicts' are the sole province of actions to be brought after the election when the
attention of a court of may be focused on a dispute arising therefrom. In reality, I
had never argued that there would be a `conflict'. The proposed change to the
Charter was unambiguous and absolute.
This is a significant issue with overtones that lead us straight to one of the
most fundamental aspects of our system of representative government in these
United States. We allow for the exclusive control of the strings of the public purse
to be held by our elected representatives. We do this by requiring all public
moneys be expended only upon appropriation made in accordance with due
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{
process by representatives of the people. Such requirement is universally found in
our Constitutions and Charters. Yet, the proposed Charter amendment considered
by the voters in this election would create an exception to the universal rule ... and
it would do so without a single word in the submission clause itself that might
indicate to the voters that this is, indeed, the effect of a `yes' vote. To hold, as the
City has since the beginning, that such a change is to unimportant to merit mention
in the submission clause is nothing less than chiseling away at the foundations of
our government.
Now, the fact that this Court was misled by the ballot question speaks for
itself. However, this single issue also presents the case for why I argued that this
Court had completely missed the criteria by which a ballot question should be
judged. This argument was not simply a restatement of the Grounds that I
originally presented as the City would have this Court believe. Rather, this was a
new and important basis for requesting review pursuant to C.R.C.P. Rule 59.
The plain and simple meaning of the legal authority that I had petitioned this
court to consider, C.R.S. §31-11-111, was completely ignored in favor of an
imposter that had no place in the contest. C.R.S. §31-11-111(3) states that a
governing body shall consider and shall, whenever practicable, avoid. My
petition alleged that City Council had failed to consider and failed to avoid. My
Petition requested that my Grounds 1-3 be subjected to review in accordance with
the single authority that is most directly applicable to §31-11-111, the clear title
requirement:
In sum, the clear title requirement seeks to accomplish two overarching
goals: prevent voterconfusion and ensure that the title adequately expresses
the initiative's intended purpose. If a title accomplishes these goals, the end
result is that voters, "whether or not they are familiar with the subject matter
of a particular proposal, "should be able to "determine intelligently whether to
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support or oppose the proposal. " (In the matter OF BALLOT TITLE AND
SUBMISSION CLAUSE for 2015-2016 #156, 375 P.3d 123 Colorado
Supreme Court, Citing In re 2015-2016 #73, 369 P. 3d at 568.)
Contrary to what the City has stated, this standard is completely different
from that presented by the imposter, Article X section 6(b), that was interjected by
the City. The plain and simple language is the first and most important element of
interpreting a statute and it was ignored in the findings of this Court. Turning also
to authority to assist in the interpretation of the plain and simple meaning of the
state law, the clear title requirement sensibly harmonizes the legitimacy and need
to respond affirmatively to my Grounds 1-3. If the plain and simple meaning of
the state law and the proper interpreting authority are both applied in conjunction
with the proof that this Court was, itself, clearly misled, then no other conclusion
may be made except to hold that the language of the ballot question must be
reformed by Order of this Court.
JURISDICTION OF THIS COURT OVER MATTERS ARISING FROM
THE CITY CHARTER IS NOT RELEVANT TO THIS PROCEEDING
The majority of the Response offered by the City to my Rule 59 motion deals
with the jurisdiction of the court to decide a contest in accordance with the City's
desire that a provision of our Charter, not the state law I had cited and relied upon
in the Grounds I had brought. The City's argument here is completely erroneous
and is another of those things that simply makes one wonder how in the world
things could have come to this.
I did not petition this court for review of a submission clause according to the
legal standard found in our City Charter. I petitioned this court for review
according to state law. It boggles my mind that the City would have implored this
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court to substitute the exclusive standard of my claims found in my petition with a
different standard. This is analogous to a defendant that has been indicted for
grand theft suggesting to the judge hearing his trial that everyone simply agree to
hold a trial for obstructing a peace officer instead. It is absurd.
It should be noted here that the City was not arguing that this court lacked
subject matter jurisdiction ( or maybe a failure to state a claim upon which relief
could be granted) as a consequence of my reliance upon and petitioning for relief
under C.R.S. § 31-11-111. That is what one would have expected the city to do if,
indeed, I had requested that the wrong standard be applied, but that is not what
happened and it would not have been appropriate to make such an argument.
Rather, the City simply stated, in effect, `don't use his standard, use ours.' I
could not make this up.
C.R.S. § 1-11-203.5(2) clearly states: Every such contest shall be commenced
by verified petition filed by the contestor to the proper court, setting forth the
grounds for the contest. The statute does allow for the grounds for the contest that
have been set forth by the Contestor to be replaced with alternate grounds that are
more to the liking of the Contestee. Indeed, if I had wished to petition a court of
law for judicial review in accordance with Article X section 6 of the City Charter, I
would have so petitioned and it would have been the municipal court not the
district court.
I wish to state honestly here that, this whole change-up/substitution was so
unexpected and befuddling that I do not think I responded in the manner I now
wished I had. I certainly should have said something in the hearing to object to
this argument and litigation tactic. I did not. I regret this omission. I should have
known better, but was honestly perplexed but also comforted by the rational that
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no Court could possibly contemplate the radical re -definition of a contest that had
been properly brought before it.
I also wish to state here that I do not believe that this change-up/substitution
was brought in bad faith as a tactic to influence the outcome of this court. Sadly, I
have to conclude that the Office of the City Attorney of the City of Fort Collins is
simply inept and prone to this type of mistake. Many other examples influence this
conclusion. At the same time, this sort of tactic, if purposefully mounted in
litigation, could be viewed as subterfuge.
DEFENDANT CITY IS COMPLETELY INCORRECT ABOUT
JURISDICTIONS OF THE MUNICIPAL AND STATE COURTS
The observation of the most salient details of the Town of Frisco v. Baum
case is all that is necessary to deem the City's belief in concurrent jurisdiction to be
in error. The dispute between Baum and Frisco had three acts. The trial court
held for Baum. The Court of Appeals reversed the trial court. The Supreme Court
reversed the Court of Appeals and established our law in this area.
Most notably, the Court of Appeals held for a system of concurrent
jurisdiction that is similar in nature to what the City errantly believes exists today
whereby both a state and municipal court might have jurisdiction of a matter
arising from the code or charter of a home rule city. The Supreme Court then
reversed the Court of Appeals in a manner that can only be construed to have
eliminated the entire premise of concurrent jurisdiction such as the City believes to
exist. See Baum v. Town of Frisco, 74 P.3d 427 Colo: Court of Appeals 2003.
Town of Frisco v. Baum, 90 P. 3d 845 — Colo: Supreme Court 2004.
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The Supreme Court ruled thus for good cause. It is a horrible idea to afford
plaintiffs the ability to `shop' for a court of law. The general rule in our law is
that there be a one -for -one correspondency between a cause of action and a court
that will hear the dispute. Dissatisfaction with concurrent jurisdiction and its
myriad problems may be read in the dicta of the Town of Frisco v. Baum decision,
even though the Office of the City Attorney may have reasons not to find it there.
Another way of stating the obvious here; although the voters in the 1989
election may have removed the word "exclusive" from "exclusive original
jurisdiction ", the Supreme court effectively put the word back in 2004.
The case law that the City presents to support its theory of concurrent
jurisdiction is absolutely misleading and probably intentionally so. Both R.E.N. v.
City of Colorado Springs, 823 P. 2d 1359 (Colo 1992) and the Wigent case
referenced therein presented the courts with situations where the Ordinance
scheme of a municipality must be reviewed to determine if it was in conflict with
state law. The situation tried in R.E.N. is, of course, completely different from the
instant situation. It goes without saying that a municipal ordinance is not used to
convict someone in state court or the other way around. In this sense, the words
`concurrent jurisdiction' has a completely different meaning.
The propensity of the duo of Deputy City Attorney John Duval and Kim
Schutt of Wick & Trautwein, LLC to cite authority that has no bearing on the case
being litigated has been seen before. They have been called on this foul, but
continue to commit it. In this situation, I am not at all reserved in stating that the
citations of the R.E.N. and Wigent cases were made in bad faith with the hope of
continuing the happy history of misleading this court noted above. There is
absolutely no way that anyone with a cursory understanding of law could construe
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the acceptance of `concurrent jurisdiction' found in those cases to have bearing on
the instant matter. The state courts do not have jurisdiction to try a person on the
allegation of violation of a Colorado Springs or Fort Collins ordinance. Similarly,
the municipal courts of either city have no jurisdiction to try someone on an
allegation of violating a Title 18 criminal statute. Yet, both state and local courts
have `concurrent jurisdiction' to try a person for a crime that is proscribed by both
state and local laws. Good grief.
TABOR ARGUMENTS
For review, it should be remembered that my petition to this court did assert
two Grounds that dealt specifically with TABOR form and content issues. At this
time, the TABOR notice for the coordinated election has been mailed to voters and
this publication does not contain a notice from the City of Fort Collins pertaining
to this ballot issue. To a large extent, the absence of a TABOR notice makes the
concerns raised in the original petition moot in many, but not all, respects. If the
City of Fort Collins does, in the future, issue debt repayable with tax, it does so in
violation of the requirements of TABOR. Such a situation is most likely to be
encountered if the City pledges to support the broadband enterprise with tax
revenue up to but not exceeding the 10% of annual revenue maximum established
by TABOR. However, at the time the contest was filed with this court, the City
still had the option of issuing a TABOR notice to comply with the requirements of
TABOR and the contest brought was well advised and appropriate. It should also
be noted here that the City could have easily eliminated any and all possibility of
conflict with the TABOR amendment by eliminating the reference to repayment of
debt with sales tax that is still found in the underlying Charter amendment.
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That said, an appeal that would allow the Supreme Court to better clarify
when the form and content requirements of the TABOR amendment must be
followed when setting the language of a ballot issue would not be moot and the
instant case would handily place that question before the higher court.
CONCLUSION
When viewed as a whole, this court must accept that the Petition for judicial
review of this ballot question held merit and should have been met with an Order
reforming the language of the submission clause. The stubbornness of the City to
compromise despite the modest and reasoned requests for reformation made of this
Court is the only reason why the dramatic relief that must now be provided was
ever necessary. It cannot be disputed that local government agencies have come
to rely upon the 8t' district court for favorable decisions. I do not doubt that the
public interest does prescribe for some deference to be shown to governmental
agencies, but it has gone to far.
Finally, there must be some recognition here that the statutory procedure for
judicial review of local ballot questions has a serious temporal flaw in its
procedures. If the City of Fort Collins had not waited until the 11" hour to fix the
language of the ballot question, the opportunity provided by Rule 59 would not
have left this court in the unenviable position of reforming a ballot question that
has already been printed on ballots and will soon be voted. As noted in the
hearing, I am working with a local legislator to see what might be done in the
General Assembly to improve this procedure. Review of ballot question to ensure
compliance with law is an incredibly important safeguard on our democratic
process and it would be prudent to make some changes as soon as possible.
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WHEREFOR, in accordance with C.R.C.P. Rule 59 (a) I have stated the grounds
for post -trial relief and request that this Court provide relief in the form of
amended findings and judgment commensurate with the grounds stated here to
include, at the minimum, a finding that the ballot title does not conform to the
requirements of the statutes and the constitution and the text of the ballot question
must be reformed as proposed or as this Court finds appropriate.
Respectfully submitted on this 16th day of October, 2017
Eric Sutherland
I hereby certify that a true and correct copy of this Reply in Motion for
Post -trial Relief and attachements was served by delivering a paper copy to the
office of the city attorney at Fort Collins City Hall on October 16, 2017.
Eric Sutherland
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8 DISTRICT COURT
LARIMER COUNTY JUSTICE CENTER
Court Address: 201 Laporte Avenue
Fort Collins, CO 80521
Phone (970) 494-3500
Plaintiff/Contestor: Eric Sutherland, as an individual, pro se.
V.
Defendant/Contestee: City of Fort Collins
Indispensable Party: Angela Myer, Larimer County Clerk and
Recorder.
COURT USE ONLY A
Party without attorney:
Case Number:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Division:
Phone Number: (970) 224 4509 E-mail: sutherix@yahoo.com
Proposed Order:
I hereby Order that, pursuant to C.R.S. §1-11-203.5, the ballot title shall be reformed to
read as follows.
CITY -INITIATED PROPOSED CHARTER AMENDMENT NO. I ADDING A NEW
SECTION 7 TO CHARTER ARTICLE XII TO AUTHORIZE, BUT NOT REQUIRE, THE
CITY'S PROVISION OF TELECOMMUNICATION FACILITIES AND SERVICES AS A
PUBLIC UTILITY, INCLUDING BROADBAND INTERNET SERVICES
Shall Article XII of the City of Fort Collins Charter be amended allow, but not require,
City Council to authorize, by ordinance and without a vote of the electors, the City's electric
utility or a separate telecommunications utility to provide telecommunication facilities and
services, including the transmission of voice, data, graphics and video using broadband Internet
facilities, to customers within and outside Fort Collins, whether directly or in whole or part
through one or more third -party providers, and, in exercising this authority, shall allow City
Council to: (1) issue securities and other debt, but in a total amount not to exceed $150,000,000
repayable with revenue from any source including sales and use tax but not with property tax
without appropriation by City Council; (2) set the customer charges for these facilities and
services subject to the limitations in the Charter required for setting the customer charges of
other City utilities; (3) go into executive session to consider matters pertaining to issues of
competition in providing these facilities and services; (4) establish and delegate to a Council -
appointed board or commission some or all of the Council's governing authority and powers
granted in this Charter amendment, but not the power to issue securities and other debt; and (5)
delegate to the City Manager some or all of Council's authority to set customer charges for
telecommunication facilities and services?
Yes/For
No/Against
District Court Judge
Contest of Broadband Ballot Question Page 2 of 2