Montezuma sues itself over controversial municipal election
Ryan Summerlin August 15, 2014
This week, the town of Montezuma filed a lawsuit in Summit County District Court … against itself.
Newly elected Mayor Lesley Davis said the lawsuit was filed Tuesday in hopes of bringing a resolution to its controversial municipal election last April. The suit was filed by interim town attorney Kendra Carberry, of Denver, on behalf of town clerk Helen Moorman and the town of Montezuma.
The respondents listed in the suit include all of the town’s 61 registered voters.
“The town is definitely not suing its residents,” Davis said. “We’re just seeking the court’s assistance to help us with a controversial election and to let us know what we should be doing.”
“You have to understand the culture of Montezuma, and I’m not a ‘Zuman,’ so I don’t.”
Sheriff John Minor
According to the complaint, the town alleges that ballots from April’s election contained inaccurate verbiage and did not feature numbered stubs and duplicate stubs to be recorded in the poll books and that the final tally for at least one board of trustees candidate was inaccurate, among other claims. As town clerk and the election official, Moorman was responsible for overseeing all facets of the election.
The complaint also references a 5th Judicial District Attorney’s Office investigation into alleged voter fraud. After the April election, several Montezuma residents filed petitions challenging the residency of 14 registered voters. Thirteen of those voters participated in the election. The DA found enough evidence that five of those 13 voters were not Montezuma or Summit County residents at the time of the election.
Striking those five ballots was enough to alter the results of at least one board seat, Davis said. However, the town has no recourse under Colorado election law to legally change the makeup of the board this far removed from the election.
Due to the DA’s investigation, town officials failed to contest the election within 10 days, as required under Colorado Revised Statutes, and conducted a recount, but not within the guidelines of Colorado law, the complaint states.
Although Davis and six trustees were sworn into office after April 1, the mistakes that have since come to light also are calling into question whether the election was properly certified.
Filing a lawsuit is the only available option to the town in its last-ditch effort to verify its election results, Davis said. The board of trustees voted in favor of filing the lawsuit last month. The town is paying for the legal expenses, Davis said.
“With five invalid ballots, we felt it was a pretty significant amount and that the best thing to do would be to have a judge review it (the election results),” Davis said. “We need to have a judge review these errors and tell us what the next steps should be.”
Summit County District Judge Karen Romeo is presiding over the case. As Davis understands it, Romeo will have three options at her disposal.
The first is to throw out the election and order the town to hold a new election in November.
Romeo could also determine that the errors had no significant effect on the election results and order it to stand as is. She also has the option of subpoenaing every elector into court to testify and then make a determination.
Luke Danielson, a Gunnison attorney who so far is representing three of Montezuma’s registered voters, called the lawsuit improper, saying the town is trying to get the courts to bail them out because officials failed to meet the deadline to contest the election.
“There is a law that sets rules about how to challenge an election and it outlines really tight deadlines for really good reasons,” Danielson said. “You can’t force residents to stand by for months to determine who is in charge of the town. If they wanted to contest the election, they should have done it appropriately in April.”
Danielson, a Colorado native who was accepted by the state’s Bar Association in 1975, said he has never seen a case like this in his almost 40 years in practice. When reached for comment Wednesday, Colorado Secretary of State Scott Gessler also said he’d never heard of such a case, which would make this an unprecedented event in Colorado politics.
The strangest thing, Danielson said, is that Moorman, Davis and the rest of the board of trustees participated in the election, which makes them respondents in the lawsuit.
“They really are suing themselves,” Danielson said. “They’re trying a new procedure that no one else has ever invented before all because they missed all of the deadlines.”
Protecting the integrity of an election
The controversy surrounding Montezuma’s election dates to March during the final weeks before April 1 when several town residents announced they would be contesting the ballots of multiple voters they believed were second-home owners and therefore barred from legally participating in the election.
Throughout the process, Davis and others have said their actions were motivated to protect the integrity of the election.
There were, however, undertones of a power struggle between Montezuma’s younger residents and the old guard; the two groups, respectively, also make up the town’s pro- and anti-marijuana factions.
Montezuma is home to a state-licensed medicinal marijuana grow operation and several residents are thought to have personal grow operations in their homes, Davis said.
Regardless of the motivation, there’s no denying the division among Montezuma’s residents considering the election drew the participation of 12 candidates vying for all seven seats on the board of trustees. The election has been called the largest in at least 25 years.
Although class warfare and generational perceptions about marijuana might have played a role in Montezuma’s strange saga, town resident Jeni Hinkley said Montezuma’s entire electoral debacle could be traced back to a pending intergovernmental agreement between the previous town board and the Summit County Sheriff’s Office to provide law enforcement services to the town.
The IGA, which was in the works for more than two years, was nearing its final phase of approval before the April 1 election. Of Montezuma’s seven elected board members, six backed the agreement. Davis, who was a trustee at the time, opposed it and rallied 29 other residents to sign a petition against it.
Hinkley’s husband, Paul, who is known as “the welder in town” and has been a Montezuma resident for more than 30 years, was instrumental in drafting the terms of the agreement with the sheriff’s office. Hinkley couldn’t understand why anyone wouldn’t want law enforcement services in the community.
“I just opposed it because I didn’t think it was necessary,” Davis said. “We don’t have any crime and I thought it would take away from some of the historic character of this old mining town. It’s been this way for more than 100 years.”
The future of the IGA is unclear. After Davis and others voiced opposition to the agreement, Summit County Sheriff John Minor decided to table the IGA, citing the closeness of the April election and the possibility of there being a totally new town board. He has not yet presented the proposal to the new board, given the ongoing controversy shrouding the election.
Although there is not an IGA in place, Montezuma has and continues to receive law enforcement services from the sheriff’s office.
The two parties have had a longstanding “handshake” agreement that requires the sheriff’s office to respond to in-progress emergencies. Although Davis cited fears of the sheriff’s office enforcing parking restrictions or responding to dog-at-large calls if the IGA was approved, Minor said the agreement doesn’t include anything beyond the scope of services the sheriff’s office has been providing for decades.
“You have to understand the culture of Montezuma, and I’m not a ‘Zuman,’ so I don’t,” Minor said. “My sense is that they like to be left alone and that there is a lot of skepticism towards government.
“I attended a lot of board meetings when we were trying to put this together and I received one of the best comments I’ve ever heard when one of the old board members told me, ‘We like you, sheriff, but we don’t like cops.’”
Minor said he can understand the skepticism and even the community’s desire to protect the historic integrity of Montezuma, but he also said there is a need to bring the town into the modern era.
Because Montezuma does not have its own police force, the sheriff’s office has an obligation to respond to emergencies.
Should one of Minor’s deputies respond to an emergency and something goes wrong, it’s possible that Davis, the town, the sheriff’s office and Summit County found themselves engaged in a lawsuit. If that scenario plays out and an attorney questions the authority of the sheriff’s office to police the town, “a handshake agreement isn’t going to hold up in a court of law,” Minor said.
Besides wanting to formalize the agreement, Minor said he and county officials were prepared to continue offering the same level of services at a cost to the town of $1 per year.
“We don’t care if they don’t want parking enforcement and we don’t care if they have dogs running around all over the place, but we feel like we need this agreement,” Minor said. “We’ve had a decades-long relationship with the town of Montezuma and we’ve never done anything to violate their independence, but it’s the new millennium and the county is willing to accept all of the liability, all of the responsibility and all of the risk for a buck a year.
“You won’t find a deal like that anywhere. That’s cheaper than the dollar menu at McDonald’s, after taxes, of course.”