Montezuma voters file motion to dismiss election lawsuit
August 22, 2014
Gunnison attorney Luke Danielson, who represents three Montezuma residents in a legal dispute over the April municipal election, filed a motion this week seeking a dismissal of the lawsuit the town has brought against itself.
In the 12-page motion filed Monday in Summit County District Court, Danielson argues the lawsuit is improper for a number of reasons, the most glaring being that the statute cited by interim Montezuma town attorney, Kendra Carberry, in the original complaint was repealed in February. Additionally, Danielson says, the intent of the statute referenced in the petition is to resolve pre-election controversies, which is irrelevant because the election already took place.
"Even if the statute cited in the lawsuit applied, it was expressly designed to resolve controversies between 'a town clerk and a candidate or other person,'" the motion states. "An election may be contested by any registered elector. Registered electors are natural people. The town of Montezuma is not an eligible elector; it is a municipal corporation, not a natural person."
Danielson also takes issue with the town of Montezuma missing the deadline to contest the election, "not by a few days, but by months." According to Colorado Local Election Law, a statement of intent to challenge the results of an election in district court must be filed within 10 days of the election. A request for a recount must be made within 17 days of the election and conducted within 28 days.
“As uncomfortable as the responsibilities of office may be, democratic self-government requires officials to make decisions and assume responsibilities that pertain to their offices. They cannot, when the heat is on, simply step back and let the courts take responsibility for what are political decisions for which officials are accountable to the people who elected them.”
from a motion to dismiss Montezuma’s lawsuit
"Whether there was or wasn't a recount, the time to contest the election elapsed months ago," the motion states. "Statute provides that if a statement of intent to challenge the election is not filed within the prescribed time limit, 'No court shall have jurisdiction over the contest.'
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"The basic issue here is that someone seems to want to contest the election result, but has failed to follow the rules about how to do that. Petitioners are therefore trying to develop an unprecedented procedure, taking us into uncharted territory, at considerable peril."
Although Danielson provides several other reasons for a dismissal, his last substantial argument centers on a statute requiring petitioners to specifically state the nature of the election controversy and to provide a detailed explanation of the relief they are seeking. Danielson argues the town's complaint fails to meet both criteria.
"The petitioners do not ask for a recount, a recall, a new election or any other specific remedy," the motion states. "They clearly do not want to take a position (and are) simply asking for an advisory opinion from the courts.
"As uncomfortable as the responsibilities of office may be, democratic self-government requires officials to make decisions and assume responsibilities that pertain to their offices. They cannot, when the heat is on, simply step back and let the courts take responsibility for what are political decisions for which officials are accountable to the people who elected them."
Montezuma Mayor Lesley Davis — in her correspondence with Carberry — said the statute the town cited in its petition has not been repealed as Danielson claims. Additionally, Davis said, the counter statute Danielson cites in his motion to dismiss the case does not apply to municipal government. Carberry has asked Danielson to remove the motion so not to mislead the court.
Davis also addressed claims made last week that the source of the ongoing controversy surrounding the election stems from an agreement between the old Montezuma Board of Trustees and the Summit County Sheriff's Office to provide law enforcement services for $1 per year. The agreement was not approved by the previous board and Sheriff John Minor has since shelved it given the controversy surrounding the election.
Instead of the agreement, Davis said the source of the controversy stems from a district attorney's office probe into alleged voter fraud and the fact that the municipal election suffered from a series of flaws.
Following the investigation, District Attorney Bruce Brown found evidence of voter fraud among five second-home owners. Since those ballots have been deemed invalid, the town is looking at a potential shake-up of the board's composition, Davis said.
Notably, Davis said John Carney — who she contends is still a second-home owner despite the lack of evidence from the DA's investigation — would be replaced by DJ Keller.
Additionally, because this was the first election in Montezuma in 20 years and all of the trustees' seats were up for grabs, candidates were vying for two- and four-year terms to avoid a complete turnover every election cycle.
The top three vote getters won four-year terms, while the next three won two-year terms.
Removing those five contested ballots would mean Molly Hood would be reduced to a two-year term. Jake Still would be bumped up to a four-year term.
Instead of addressing the issues surrounding the election results, Davis argued that the three residents represented by Danielson are worried about seeing a power shift on the board.
A similar argument could be made that Davis is trying to stack the deck in her favor, but she says that's not the case.
Considering the election involved numerous errors and that it wasn't contested by the stipulated deadline, the board should never have been sworn into office. To leave the decision about how to proceed up to a fraudulently elected board would be inappropriate, Davis said.
"For the board to make this decision, especially since one board member could be removed, seemed inappropriate considering how flawed the election was," Davis said. "All we're asking is for a judge to give us an opinion and if she decides the errors aren't that significant and the results should stand, we would support that.
"I think their actions show how nervous and defensive they are about appearing in court. If I was a second-home owner, I wouldn't want to have my residency questioned by a judge either."