HomeMy WebLinkAbout20081350.tiff COURT OF APPEALS, STATE OF COLORADO
Court Address: Colorado State Judicial Bldg.
2 E. 14th Avenue, 3rd Floor
Denver, CO 80203
From the Weld County District Court
The Honorable Jonathan W. Hays
Case No. 2005CV513 (Consolidated with Case No.
2005CV1488).
Appellant: TOWN OF MEAD, a statutory municipality and
political subdivision of the State of Colorado
Appellees: BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY; KEN WILLIAMSON; CONNIE
WILLIAMSON; RAY SCHOOL; ALMA SCHOOL; NICK
SEKICH; TOM REYNOLDS; MERLE MAASS; BILL
WOODS; GARY WOODS; DON OWENS; SCOTT
OWENS; and ED KANEMOTO. A COURT USE ONLY •
Attorney for Defendants:
Edward M. Bendelow, No. 1883 Case Number: 07CA2454
Scott S. Watson, No 34946
Bendelow Law Firm, P.C.
1120 Lincoln Street, Suite 1000
Denver, Colorado 80203
Phone: (303) 837-9600
Fax: (303) 860-0311
Email: tedbendelow@bende1ow.net
Email: scottwatson@bendelow.net
NOTICE OF WITHDRAWAL OF MOTION TO STRIKE BRIEFS OF AMICUS
CURIAE OF THE SPECIAL DISTRICT ASSOCIATION OF COLORADO
COMES NOW the Appellant, the Town of Mead ("Mead"), by and through
its counsel, the Bendelow Law Firm, P.C., respectfully notifies the Court and the
Opposing parties that it withdraws its Motion to Strike the Briefs of Amicus Curiae
r�is?nun e—"fitiriu'S (1P ' 04
1 of
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submitted by The Special District Association of Colorado. As grounds therefor,
Mead states as follows:
On April 30, 2008 the Special District Association of Colorado ("SDA")
filed its Amended Brief of Amicus Curiae ("Amended Brief'). Due to an internal
mailing error, counsel for Mead believed that they did not receive the initial Brief
of Amicus Curiae ("Initial Brief') and corresponding motion for leave that was
filed with the Court of Appeals on April 25, 2008. Once the error was discovered,
it was determined that the filing of Mead's Motion to Strike the Briefs of Amicus
Curiae submitted by The Special District Association of Colorado was in error. As
such, Mead withdraws the motion.
Respectfully submitted this 8`" day of May 2008,
BENDELOW LAW FIRM, P.C.
Edward M. Bendelow, Esq.
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CERTIFICATE OF SERVICE
I hereby certify that on this Sh day of May 2008, a true and correct copy of the
foregoing NOTICE OF WITHDRAWAL OF MOTION TO STRIKE BRIEFS
OF AMICUS CURIAE OF THE SPECIAL DISTRICT ASSOCIATION OF
COLORADO was mailed by United States Mail, postage prepaid, addressed to the
following:
• VVruce T. Barker, Reg. No. 13690 Roger P. Thomasch, Reg. No. 5426
Lee D. Morrison, Reg. No. 8067 Jon Bernhardt, Reg. No. 20227
Cyndy Giaque, Reg. No. 13241 Ballard Spahr Andrews & Ingersoll, LLP
915 Tenth Street 1225 17th St., Ste. 2300
P.O. Box 758 Denver, CO 80202
Greeley, CO 80632 Attorneys for Proponents
Attorneys for the Board of County
Commissioners for Weld County
James D. Collins, Reg. No. 7958 Diane D. Miller, Reg. No. 26180
David A. Greher, Reg. No. 27311 Bradley T. Neiman, Reg. No. 35707
Collins Cockrel & Cole, P.C. Miller Rosenbluth, LLC
390 Union Blvd., Ste. 400 700 17th St., Ste. 2200
Denver, CO 80228 Denver, CO 80202
Attorneys for Proponents Attorneys for Avex International, LLC
Mary G. Zuchengo
Special District Association of Colorado
225 E. 16th Avenue, Suite 1000
Denver, CO 80203
Attorney for Amicus Curiae
J cL __C
Claudine Howard
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Certification of Word Count: 5,660
COURT OF APPEALS, STATE OF COLORADO
Court Address: Colorado State Judicial Bldg.
2 E. 14th Avenue, 3rd Floor
Denver, CO 80203
From the Weld County District Court
The Honorable Jonathan W. Hays
Case No. 2005CV513 (Consolidated with Case No.
2005CV1488).
Appellant: TOWN OF MEAD, a statutory municipality and
political subdivision of the State of Colorado
Appellees: BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY; KEN WILLIAMSON; CONNIE
WILLIAMSON; RAY SCHOOL; ALMA SCHOOL; NICK
SEKICH; TOM REYNOLDS; MERLE MAASS; BILL
WOODS; GARY WOODS; DON OWENS; SCOTT
OWENS; and ED KANEMOTO. A COURT USE ONLY
Attorney for Defendants:
Edward M. Bendelow, No. 1883 Case Number: 07CA2454
Scott S. Watson, No. 34946
Bendelow Law Firm, P.C.
1120 Lincoln Street, Suite 1000
Denver, Colorado 80203
Phone: (303) 837-9600
Fax: (303) 860-0311
Email: tedbendelow@bendelow.net
Email: scottwatson@bendelow.net
APPELLANT'S REPLY BRIEF
TABLE OF CONTENTS
TABLE OF CONTENTS 2
TABLE OF AUTHORITIES 4
STATEMENT OF ISSUES PRESENTED FOR REVIEW 5
SUMMARY OF ARGUMENT 5
ARGUMENT 7
I. THE DISTRICT COURT DID NOT PERFORM ITS STATUTORILY
REQUIRED DUTIES 7
II. THE DISTRICT COURT'S ORDER OF JUNE 22, 2007 IS APPEALABLE
10
III. C.R.C.P. 106(A)(4) AND C.R.S. §32-1-206(2) ARE APPROPRIATE FOR
REVIEWING THE ACTIONS OF THE BOARD 16
A. When Mead Filed its Claim Pursuant to C.R.C.P. 106(a)(4) no Petition
had been Filed 16
B. Either C.R.C.P. 106(a)(4) or C.R.S. §32-1-206(2) may be Utilized to
Review the actions of the Board 18
IV.THE DISTRICT COURT ERRED WHEN IT DENIED MEAD'S
REQUESTS FOR FINAL JUDGMENT 19
V. C.R.S. §32-1-305 1S UNCONSTITUTIONALLY VAGUE AND
CONSTITUTES A DENIAL OF DUE PROCESS 22
VI.THE DISTRICT COURT'S RULINGS WERE NOT CORRECT 24
A. No Competent Evidence Presented 24
i. Findings required by C.R.S. §32-1-203(2) 24
ii. Violation of the WCCP 25
B. Mead was Denied Due Process 25
C. Notice was Required for the August 3, 2005 Meeting 26
D. Findings Required by C.R.S. §32-1-305 27
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E. Failure to Include Required Language in the Decree 27
F. Rejecting Mead's Proffered Evidence 28
G. Election was not Conducted in Accordance with Applicable Law 29
VII. CONCLUSION 30
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TABLE OF AUTHORITIES
Cases
Baldwin v. Bright Mortg. Co., 757 P.2d 1072 (Colo. 1988) 20
Bd. of County Comm'rs v. O'Dell, 920 P.2d 48 (Colo. 1996) 24
Canyon Area Residents for the Env't v. Bd. of County Commr's of Jefferson
County, 172 P.3d 905 (Colo. App. 2006) 26
In re Organization of Upper Bear Creek Sanitation Dist., 682 P.2d 61 (Colo. App.
1983) aff'd 715 P.2d 799 (Colo. 1986) 1 1 , 1 5
Levine v. Empire Savings & Loan Ass'n, 557 P.2d 386 (Colo. 1976) 19
Lytle v. Kite, 728 P.2d 305 (Colo.1986) 21
Musick v. kVoznicki, 136 P.3d 244 (Colo. 2006) 19, 21
People v. Beruman, 638 P.2d 789 (Colo. 1982) 23
People v. Moyer, 670 P.2d 785 (Colo. 1983) 24
State Farm Mut. Auto. Ins. Co. v. City of Lakewood, 788 P.2d 808 (Colo. 1990) .. 7,
9, 12, 13, 18, 22, 29
Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990) 24
Statutes
C.R.S. §32-1-203 7, 8
C.R.S. §32-1-204 7
C.R.S. §32-1-204(1) 15
C.R.S. §32-1-205(2) 11
C.R.S. §32-1-206(2) 5, 7, 8, 9, 12, 15, 16, 18, 19, 20, 25
C.R.S. §32-1-207 14, 15
C.R.S. §32-1-301 7, 8, 12
C.R.S. §32-1-305 6, 7, 8, 9, 10, 11, 12, 13, 15, 20, 22, 23, 27
C.R.S. §32-1-305(7) 10, 11, 12, 15, 21, 22
Rules
C.R.C.P. 106(a)(4) 5, 13, 16, 17, 18, 19, 21, 25, 30
C.R.C.P. 106(b) 17
C.R.C.P. 54(a) 6, 19, 21
C.R.C.P. 81(a) 14, 18
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STATEMENT OF ISSUES PRESENTED FOR REVIEW
I. WHETHER THE DISTRICT COURT PERFORM ITS STATUTORILY
REQUIRED DUTIES.
II. WHETHER THE DISTRICT COURT'S ORDER OF JUNE 22, 2007 IS
APPEALABLE .
III. WHETHER C.R.C.P. 106(A)(4) AND C.R.S. §32-1-206(2) ARE
APPROPRIATE FOR REVIEWING THE ACTIONS OF THE BOARD.
IV. WHETHER THE DISTRICT COURT ERRED WHEN IT DENIED
MEAD'S REQUESTS FOR FINAL JUDGMENT.
V. WHETHER C.R.S. §32-1-305 IS UNCONSTITUTIONALLY VAGUE
AND CONSTITUTES A DENIAL OF DUE PROCESS.
VI. WHETHER THE DISTRICT COURT'S RULINGS WERE CORRECT.
SUMMARY OF ARGUMENT
The District Court did not perform its statutorily required duties. It failed to
determine whether the allegations of the Petition were true and was in error when it
abdicated this role. The June 22, 2007 Order is appealable, because there is no
prohibition to appealing an order made pursuant to C.R.S. §32-1-305(4), and
findings such as these are required as conditions precedent to the organization of a
special district. Mead has standing to bring such an appeal.
When Mead filed its C.R.C.P. 106(a)(4) claim no petition had been filed;
thus, there was no other plain, speedy and adequate remedy for review. Both
C.R.C.P. 106(a)(4) and C.R.S. §32-1-206(2) review the Board's actions approving
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the Service Plan under an arbitrary and capricious standard. Since the standard is
the same, there is no conflict or inconsistency; review may be sought under either
provision.
The District Court erred when it failed to certify its June 22, 2007 Order as
final judgment. The denial of such creates an extraordinary circumstance that
grants appellate jurisdiction without C.R.C.P. 54(a) certification.
C.R.S. §32-1-305 is unconstitutionally vague and constitutes a denial of due
process of law, because it is unclear whether the General Assembly intended to bar
appellate review of the requirements of subsections 1-6 or rather only bar review of
the order declaring the special district organized pursuant to subsection 7.
The District Court's rulings were not correct, as: no competent evidence was
presented; the required findings were not made; required language was not
included in its order declaring the special district organized; it erroneously rejected
Mead's proffered evidence; and the election was not held in accordance with
applicable law.
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ARGUMENT
I. THE DISTRICT COURT DID NOT PERFORM ITS STATUTORILY
REQUIRED DUTIES.
The District Court has four functions incident to the formation of a special
district. First, it is to review the decision of the Board of County Commissioners
of Weld County (the "Board") to determine if the Board's decision approving the
East 1-25 Sanitation District Service Plan ("Service Plan") was arbitrary, capricious
or unreasonable. C.R.S. §32-1-206(2).
Second, the Individuals named in the Caption (collectively "Proponents"),
have to file a Petition for Organization of the East I-25 Sanitation District
("Petition") in the District Court pursuant to C.R.S. §32-1-301 . The Petition
requires information, which is different from and in addition to the information
provided to the Board. Compare Id. with C.R.S. §§32-1-203 & 204. The court is
required to conduct a hearing and determine whether "the allegations of the
petition are true." C.R.S. §32-1-305(4).
Third, the court is to determine whether the Petition has been signed by the
appropriate eligible voters. Id. If the court determines the allegations of the
Petition are true and that it has been appropriately signed, then it is to refer the
matter of the organization of the East 1-25 Sanitation District ("District") to an
election.
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Fourth, the court is to determine if the election was held in accordance with
the applicable law. Id.; State Farm Mut. Auto. Ins. Co. v. City of Lakewood, 788
P.2d 808, 812-13 (Colo. 1990).
Here, the District Court simply never determined whether the allegations of
the Petition were true. Further, it incorrectly found that the issue was addressed by
the Board. In its Order of June 22, 2007, in a section entitled "The District's §32-
1-305(4) petition contained factual misstatements" the District Court stated:
Finally, Mead argues that the District's stated costs are false;
however, the court finds Mead's arguments rests upon the assumption
that the testimony of its witnesses were true, while the testimony of
the District's witnesses was not. The Board resolved this disputed
testimony in favor of the District, and its resolution is supported by
the evidence.
[Vol. I; 2005CV513, 10144419, p. 9]. In fact,
1) The Petition did not exist at the time the Board ruled;
2) The Resolution of the Board is based on different criteria and a
different standard than the Petition. Compare C.R.S. §32-1-203
with C.R.S. §32-1-301;
C.R.S. §32-1-206(2) requires the District Court apply the standard of
arbitrary, capricious or unreasonable in a hearing to review the decision of the
Board. However, C.R.S. §32-1-305(4) is an entirely different standard (the
allegations are true), which has never been addressed by a Colorado appellate
court. The District Court apparently confused its role in reviewing the actions of
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the Board pursuant to C.R.S. §32-1-206(2) and in making its own independent
determination of whether the allegations in the Petition were true.
For the purpose of determining whether the allegations in the Petition are
true, the District Court's determination is premised solely on the evidence
presented in a hearing to the court, not the Board's interpretation of evidence
before it. For a hearing pursuant to C.R.S. §32-1-305(4) the District Court is not a
reviewing court; it is a trial de novo court. Therefore, the resolution of disputed
testimony by the Board and a determination that the Board's Resolution is
supported by the evidence are immaterial to the District Court's independent
determination of whether the allegations in the Petition are true. The District Court
never independently made the determination that the allegations of the Petition are
true. Our Supreme Court has ruled that the District Court must determine if the
allegations of the Petition are true as required by C.R.S. §32-1-305(4), before the
matter is referred to an election. State Farm Mut. Auto. Ins. Co., supra. Failure to
do so was plain error.
Further indicative of the District Court's confusion regarding C.R.S. §§32-1-
206(2) & 305(4) are its comments regarding the testimony of Mead's witness,
Steven B. Clark, and his testimony allegedly before the Board regarding the
District's ability to discharge the proposed indebtedness. [Vol. I; 2005CV513,
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10144419, p. 8]. Mr. Clark is an economist who was called by Mead as an expert
witness in the Petition hearing. [Vol. I; Transcript-20060522, 139:1]. He never
testified before the Board. [See Vol. 4]. More than a year had passed between the
Petition hearing of May 22-23, 2006 and the District Court's Order of June 22,
2007, and it is clear that during that time, the District Court confused the Board
proceedings with the Petition proceedings.
In summary, the District Court failed to make an independent finding as to
whether the allegations in the Petition were true. Rather, it abdicated its
responsibility to make the appropriate findings regarding the Petition to the Board
when the Board never had the Petition before it to consider and never ruled on it.
Such action constitutes plain error, and the Order of June 22, 2007 must be
vacated.
II. THE DISTRICT COURT'S ORDER OF JUNE 22, 2007 IS
APPEALABLE.
The prohibition on appeal contained in C.R.S. §32-1-305(7) specifically
provides that "if an order is entered declaring the special district organized, such
order shall be deemed final and no appeal or remedy shall lie therefrom."
(emphasis supplied). The order declaring the District organized, namely the
Findings, Order and Decree Creating the East I-25 Sanitation District ("Decree"),
was not entered until October 31, 2007 [S.R.; 2005CV513, 11964754], and is not
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the subject of this appeal. This appeal concerns the actions of the Board and the
District Court prior to the Decree.
It is the Proponents' position Mead has no ability to appeal whatsoever. In
effect, they are trying to create a "Catch-22" situation, claiming that Mead cannot
appeal either before or after an order declaring the District organized, which leaves
Mead with no remedy. The problem with this logic is that the bar of appeals
identified in C.R.S. §32-1-305(7) presumes that the District Court appropriately
construed and applied the applicable law under C.R.S. §32-1-305(4), which it did
not do when it entered its June 22, 2007 Order. To hold otherwise allows the
District Court to make errors without any opportunity for review. Surely, that was
not the legislature's intent.
Here, there are several steps for review, which have been the subject of
appellate decisions. If the Board's approval of the Service was based on arbitrary,
capricious or unreasonable actions, then Proponents could not have submitted the
Petition, as they would have not had a valid Resolution upon which to act. C.R.S.
§32-1-205(2); In re Organization of Upper Bear Creek Sanitation Dist., 682 P.2d
61 (Colo. App. 1983) aff'd 715 P.2d 799 (Colo. 1986) (resolution approval of
service plan is a condition precedent to granting a petition). Review of the Service
Plan provides a check with which the General Assembly imposed to avoid
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proliferation of districts and the incident burden upon taxpayers. 682 P.2d at 64. If
after submitting the Petition, the actions of the Board were found arbitrary,
capricious or unreasonable, then the Petition would have been dismissed, and the
District could not have been formed. C.R.S. §32-1-206(2). And the Petition would
likewise he dismissed if it has not been presented in conformity with C.R.S. §32-1-
301, not signed by the appropriate number of eligible voters or the allegations of
the Petition are not true. C.R.S. §32-1-305. Each of these steps is appealable as
they are conditions precedent to granting formation of a special district.
Section 32-1-305(4) states if the allegations of the petition are true, then the
court shall direct the question of organization to an election. However, as
previously discussed, the District Court failed to make an independent
determination that the allegations in the Petition were true. There is no prohibition
on appealing a District Court's determination as to whether or not the allegations
of the Petition are true. As such, appellate review of these findings should be
permitted prior to an election being held. Failure to do so leads to a slippery slope
where improper actions of the District Court go unchecked. If the legislature had
intended there be no review of the findings required by C.R.S. §32-1-305(4), then
it would have indicated such, as it did in relation to the decree of C.R.S. §32-1-
305(7).
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In State Farm Mitt. Auto. Ins. Co., supra, the opponents raised a
constitutional challenge to the election process regarding a proposed special
district on the grounds that corporations could not vote on whether or not the
special district should be organized. Id. at 816. The Court ruled that such a
challenge was premature, because the district court had not determined whether the
petition was sufficient to necessitate such an election, i.e., a finding the petition
was signed by the requisite number or eligible voters and the allegations of the
petition were true. Id. at 817. The implication in State Farm Mut. Auto. Ins. Co. is
that opponents can challenge the constitutionality of the election after the district
court determines whether the petition was sufficient to necessitate the election. Id.
Likewise, the rational extension is that if an election is not held in accordance with
articles 1 to 13 of title 1, an appeal of a court finding as required by C.R.S. §32-1-
305(6) to the contrary should also be permitted prior to the entering of an order
declaring the special district organized.
Here, the District Court determined the matter necessitated an election and
made that part of its June 22, 2007 Order. Mead attempted to appeal the Order and
stay the election as was an inferred remedy in State Farm Mut. Auto. Ins. Co. [See
S.R.; 2005CV513, 10670486]. Thus, Mead perfected the issue pre-election.
Moreover, on September 4, 2007 and before the election, Mead submitted its
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original Motion for Entry of Final Judgment, requesting that the District Court's
June 22, 2007 Order dismissing Mead's C.R.C.P. 106(a)(4) Complaint and
ordering that an election be conducted on the formation of the District be entered
as a final judgment under C.R.C.P. 54(b). [S.R.; 2005CV513, 11129682]. On
September 11, 2007, the District Court refused to issue C.R.C.P. 54(b)
certification. [S.R.; 2005CV513, 11222439]. The Order consists of just two
sentences: "This matter having come before the Court on the Town of Mead's
Motion for Entry of Final Judgment, and the Court having been fully advised on
the premises, the Court hereby DENIES said Motion. This Court's Order of June
22, 2007, is not appealable." [Id (emphasis supplied).
The Order is ambiguous. It is unclear whether the District Court denied
entry of final judgment based on its interpretation and application of C.R.S. X32-1-
305(6) and (7) within the context the Special District Act or whether the court
actually performed the proper analysis under C.R.C.P. 54(b) regarding finality. On
September 21, 2007, Mead filed a Motion to Reconsider requesting reconsideration
of the District Court's denial of C.R.C.P. 54(b) certification or, in the alternative,
clarification of the basis of the court's denial. On September 25, 2007, the District
Court denied this motion as well and declined to elaborate on why it refused to
enter final judgment on Mead's claims. [S.R.; 2005CV513, 11433908].
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If the District Court denied entry of Mead's final judgment based on C.R.S.
§§32-1-305(6) & (7), which only bars appeals after a declaration of organization of
a special district, the denial was a clear abuse of discretion as the Decree was not
filed until October 31, 2007. [S.R.; 2005CV513, 11 964754]. Since there is no such
prohibition of appeal in C.R.S. §32-1-305(4), then the District Court's findings, or
lack thereof; in its June 22, 2007 Order are appealable. In addition, Mead may
appeal the Decree even after the Decree is entered.
In the case, In re Organization of Upper Bear Creek Sanitation Dist. at 62,
the appeal was brought after the order declaring the district organized was entered.
The Board of County Commissioners of Bear Creek ("Bear Creek") was permitted
to bring the appeal, despite the limitation in C.R.S. §32-1-305(7) that an appeal
may only be brought by the Attorney General through a quo warranto action. The
Court found that as an interested and aggrieved party, pursuant to C.R.S. §§32-1-
203, 206 & 207, Bear Creek had standing to appeal the decision. Likewise, Mead
is an interested and aggrieved party pursuant to §32-1-204(1) (municipality within
radius of three miles) and §32-1-206(2) (appeared and presented objections before
the Board). Mead, therefore, has standing to appeal.
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III. C.R.C.P. 106(A)(4) AND C.R.S. §32-1-206(2) ARE APPROPRIATE
FOR REVIEWING THE ACTIONS OF THE BOARD.
A. When Mead Filed its Claim Pursuant to C.R.C.P. 106(a)(4) no
Petition had been Filed.
On March 16, 2005, Mead filed its complaint against the Board pursuant to
C.R.C.P. 106(a)(4) alleging the Board abused its discretion in approving the
Service Plan. [Vol. I; 2005CV513, 3260756]. Mead's C.R.C.P. 106(a)(4) claim
was dismissed by the District Court's June 22, 2007 Order. [Vol. I; 2005CV513,
10144419, p. 10]. Proponents claim that Mead may not appeal its C.R.C.P.
106(a)(4) claim. As grounds therefor, the Proponents contend C.R.S. §32-1-206(2)
provides an avenue for judicial review of the decisions of the Board in approving
the Service Plan, and as such, there is an alternate "plain speedy and adequate
remedy otherwise provided by law" prohibiting Mead from pursuing its C.R.C.P.
106(a)(4) claim. However, Proponents fail to acknowledge that a review pursuant
to C.R.S. §32-1-206(2) may only occur after a petition is filed with the District
Court. What is more, the District Court made no finding that it was dismissing
Mead's C.R.C.P. 106(a)(4) claim because an alternate remedy was otherwise
provided by law. [See Vol. 1 ; 2005CV513, 10144419].
The Proponents' argument begins with a false premise: participation in a
special statutory hearing process. By the express wording of C.R.S. §32-1-206(2),
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a party that appeared and presented its objections before the Board, shall have the
right to appear at a hearing on the court "petition for organization." The reality is
that when Mead filed its complaint pursuant to C.R.C.P. 106(a)(4) there was no
petition for organization filed with the District Court. In fact, the Petition was filed
by Proponents more than thirty days after the Board's February resolution. As
such, no other avenue was available for reviewing the Board's decision other than
a C.R.C.P. 106(a)(4) claim at that time.
The Special District Act does not provide any timeframe within which a
petition must be submitted. It could, conceivably, have been several years before
the petition was submitted to the District Court; whereas, a claim under C.R.C.P.
106(a)(4) must be brought within thirty days of the Board's decision. C.R.C.P.
106(b). Due to the complex nature of the Board's approval of the Service Plan that
included the imposition of a condition on approval (the 208 Boundary amendment
discussed in Appellant's Opening Brief), immediate review was sought. The only
activity that had occurred was the decision of the Board, which Mead challenged
under C.R.C.P. 106(a)(4) within thirty days because there was no other "speedy
and adequate remedy provided by law." Such review was appropriate and Mead
may appeal the decision dismissing its C.R.C.P. 106(a)(4) claim.
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B. Either C.R.C.P. 106(a)(4) or C.R.S. §32-1-206(2) may be Utilized
to Review the actions of the Board.
Once the Petition was filed on August 15, 2008 [Vol. I; 2005CV1488,
4052064], Mead filed its objections thereto and sought judicial review pursuant to
C.R.S. §32-1-206(2), which seeks review of the Board's actions and a
determination of whether they were arbitrary, capricious and unreasonable. [Vol. I;
2005CV1488, 4193880]. Proponents contend that since there is a statutory review
process under C.R.S. §32-1-206(2), the Mead may not proceed with its C.R.C.P.
106(a)(4) claim under the terms of the rule or under the terms of C.R.C.P. 81(a).
In State Farm Mut. Auto Ins., supra, the Court decided the issues presented
before it using an analysis under both C.R.C.P. 106(a)(4) and C.R.S. §32-1-206(2).
The Court ultimately ruled against the opponents on their C.R.C.P. 106(a)(4),
because it found the City of Lakewood's actions were quasi-legislative and not
quasi-judicial. Id. at 813. However, the Court did not find that because there was
review under the Special District Act a claim under C.R.C.P. 106(a)(4) would be
barred. Rather, the Court considered the merits of both claims; thus, the Court
impliedly found that review under C.R.C.P. 106(a)(4) and C.R.S. §32-1-206(2) are
not mutually exclusive and are appropriate.
This is further bolstered by the language of C.R.C.P. 81(a), which states that
the rules of civil procedure do not apply in any statutory proceeding "insofar as
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they are inconsistent or in conflict with the...applicable statute." Both C.R.C.P.
106(a)(4) and C.R.S. §32-1-206(2) enable review of the Board's actions approving
the Service Plan under an arbitrary and capricious standard. Since the standard is
the same, there is no conflict or inconsistency and review may be sought under
either provision.
IV. THE DISTRICT COURT ERRED WHEN IT DENIED MEAD'S
REQUESTS FOR FINAL JUDGMENT.
A judgment includes a decree and order to or from which an appeal lies.
C.R.C.P. 54(a). When determining if an order is final for purposes of appeal, the
legal effect of the order, and not merely the form, should be considered. Levine v.
Empire Savings & Loan. Ass 'n, 557 P.2d 386, 386 (Colo. 1976). When more than
one claim for relief is presented in an action, the court may direct entry of a final
judgment as to one or more claims upon the express determination that there is no
just reason for delay. C.R.C.P. 54(b). In extraordinary circumstances, a judgment
for less than all claims for relief need not be certified under C.R.C.P. 54(b) in order
to be considered final and sufficient to transfer jurisdiction to the court of appeals.
Musick v. Woznicki, 136 P.3d 244, 250 (Colo. 2006).
Here, Mead brought three claims before the District Court: l) a C.R.C.P.
106(a)(4) claim the Board acted arbitrarily and capriciously when it approved the
Service Plan; 2) a claim the Board acted arbitrarily, capriciously and unreasonably
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pursuant to C.R.S. §32-1-206(2) when it approved the Service Plan; and 3) a claim
the Petition for formation of the District did not meet the statutory requirements of
C.R.S. §32-1-305. On June 22, 2007, the District Court issued an Order allegedly
resolving all of the above-referenced claims and challenges [See Vol. I; 05CV513,
10144419]. Such an order was required, because the District Court has to decide
all of these claims before it could order the election under C.R.S. §32-1-305(4).
This case is analogous to the situation where a trial court has issued a final
ruling on the merits but has not decided the issue of attorney fees. In such cases,
the trial court decision is final for the purposes of appeal despite the remaining
issue on attorney fees. Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1073 (Colo.
1988). In arriving at this conclusion, the Baldwin Court stated: "[a] question
remaining to be decided after an order ending litigation on the merits does not
prevent finality if its resolution will not alter the order or moot or revise decisions
embodied in the order." Id. Here, the District Court's only remaining tasks such as
certifying the election' and declaring the formation of the District were
administrative in nature and would not have altered its prior rulings. Since the
subsequent proceedings before the District Court were administrative in nature,
there was no just reason to delay entry of final judgment. Thus, final judgment
' As discussed in Appellant's Opening Brief, the Proponents controlled all the
votes, so an election result in favor of the formation of the District was assured.
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should have been entered on June 22, 2007, which would have permitted Mead to
appeal the order.
The equities also weighed in favor of finding final judgment pursuant to
C.R.C.P. 54(b) as of June 22, 2007, because without it, Mead could potentially be
denied the ability to appeal. See Lytle v. Kite, 728 P.2d 305, 309 (Colo.1986) ("In
deciding whether there are just reasons to delay an appeal of an individual final
judgment, a district court must take into account the interests of judicial
administration, as well as the equities involved"). C.R.S. §32-I-305(7) bars an
appeal after the Decree is entered. Consequently, certifying final judgment prior
the entry of the Decree is paramount to protect appellate review of the District
Court's findings and conclusions. The District Court's failure to do so was an
abuse of discretion leaving Mead in the "Catch-22" situation that it could not
appeal at that point and allegedly could not appeal after the election.
In the alternative, the Court may accept jurisdiction to review the June 22,
2007 Order on its own accord, as the potential denial of Mead's ability to appeal
would constitute an extraordinary circumstance that would grant appellate
jurisdiction without C.R.C.P. 54(a) certification. See Musick v. Woznicki, supra.
Even if Mead's claims under the Special District Act were still at issue after
the June 22, 2007 Order, the District Court's ruling on Mead's C.R.C.P. 106(a)(4)
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claim is final, because the District Court expressly dismissed this claim. There is
no prohibition on the appeal of a C.R.C.P. 106(a)(4) claim; the District Court
should have entered final judgment as to this claim. As the District Court noted at
the hearing of May 22, 2006:
[W]hat I'm trying to say is that if the only matter before me were a
106 proceeding and I—my final order, whether is was for of against
the Board would be an appealable issue
[Vol. I; Transcript-20060522, 119:11-15]. Yet the District Court later denied
entering final judgment on the "106 proceeding." Such denial was an abuse of
discretion.
V. C.R.S. §32-1-305 IS UNCONSTITUTIONALLY VAGUE AND
CONSTITUTES A DENIAL OF DUE PROCESS.
Proponents contend that C.R.S. §32-1-305(7) is "unequivocal" and bars
Mead from appealing. In support thereof, Proponents have previously argued that
subsection 305(7) makes clear that the actions of the Board are to be reviewed by
the District Court and that there is no right to appeal that review, because the
"judicial review, holding an election, and declaration of a special district are a
single, integrated process." [S.R.; 2005CV513, 11099933, pp. 7-8]. Mead disputes
C.R.S. §32-1-305 delineates a single, integrated process, and Mead contends each
step in the formation of a special district may be appealed. Mead's interpretation is
supported by the comments of the Court in State Farm Mw. Auto Ins. Co. at 817.
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Although Mead disagrees with the Proponents interpretation of C.R.S. §32-1-305,
the vastly differing interpretations of the statute mean that it is unconstitutionally
vague.
A statute which is unconstitutionally vague constitutes a denial of due
process of law under the United States and Colorado Constitutions. See People v.
Beruman, 638 P.2d 789, 792 (Colo. 1982). A statute is unconstitutionally vague if
persons of common intelligence must guess at its meaning. Id. However, when
reviewing a statute in the context of a vagueness challenge, courts must construe
the statute so as to uphold its constitutionality whenever a reasonable and practical
construction may be applied to it. Id.
Although several reasonable and practical constructions may be applied to
the statutory language in question, such constructions do not provide a readily
ascertainable standard when or if appellate review may be obtained. With respect
to subsections 1-5 and part of 6, it is unclear whether the General Assembly
intended to bar appellate review of the requirements of these subsections (a finding
that the petition has been signed and presented in conformity by the appropriate
number of eligible electors, a finding the allegations of the petition are true, and a
finding the election was held in accord with the applicable laws) or rather only bar
review of the order declaring the special district organized. The fact that
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reasonable persons may construe the statute differently is clearly established by the
arguments presented to the District Court and here on appeal. Thus, this statute is
unconstitutionally vague and violates the due process rights of Mead. See People v.
Moyer, 670 P.2d 785, 789 (Colo. 1983).
VI. THE DISTRICT COURT'S RULINGS WERE NOT CORRECT.
A. No Competent Evidence Presented.
An abuse of discretion occurs when a governmental body issues a decision
that is not reasonably supported by any competent evidence in the record. Van
Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990). "No competent evidence" means that
the governmental body's decision is "so devoid of evidentiary support that it can
only be explained as an arbitrary and capricious exercise of authority." Bd. of
County Comm 'rs v. O 'Dell, 920 P.2d 48, 50 (Colo. 1996).
i. Findings required be C.R.S. §32-1-203(2).
There was no competent evidence demonstrating existing and projected
need, the adequacy of existing services and whether the District had the financial
ability to discharge indebtedness. These issues were addressed in Appellant's
Opening Brief at pp. 14-23, and no further comment is required here.
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ii. Violation of the WCCP.
Mead has also contended the Service Plan violates the Weld County
Comprehensive Plan ("WCCP"). The Proponents have responded by alleging that
the Board found that the Service Plan was in substantial compliance with the
WCCP. The Proponents have not countered Mead's allegation that the Board did
not address the growth boundaries of Mead as is required by the WCCP.
Accordingly, it abused its discretion by misinterpreting or misapplying the
applicable law pursuant to C.R.C.P. 106(a)(4) when it approved the Service Plan.
B. Mead was Denied Due Process.
Contrary to the Proponents' claim, Mead submitted hundreds of pages of
evidence regarding contacts with and documents submitted to the Board prior to
the hearing. These are detailed in Appellant's Opening Brief at pp. 25-26 and are
fully outlined in Mead's Opening Brief for C.R.C.P. 106(a)(4) and C.R.S. §32-1-
206(2) Review. [Vol. I; 2005CV513, 5313848, pp. 52-65].2 In addition, a review
of the hearing transcript demonstrates that the Resolution approved by the Board
was drafted prior to the hearing and in conformity with the numerous contacts
between the Proponents' attorney and the County Attorney. [See generally Vol. 4].
Proponents' contention that several documents were not admitted is incorrect.
The documents identified were specifically admitted by the District Court. [Vol. I;
Transcript-20060522, 56:10-12].
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Further, the Board asked no questions of Mead regarding its submitted materials.
Id. The conclusion is the Board neither reviewed these materials nor considered
them in forming their opinions and their decision was based on the
materials/discussions that occurred pre-hearing.
Mead was also not provided a reasonable summary of Debt Capacity
Analysis at the hearing. Proponents concede this document was seven pages plus
attachments, and yet Proponents summed up Mr. Caldwell's testimony in two
sentences. The report has since been provided and is substantially more detailed
than Proponents have indicated. Mead was prejudiced when it was denied the
opportunity to rebut the report; the District Court's finding to the contrary is error.
C. Notice was Required for the August 3, 2005 Meeting.
The Proponents categorize the placing of the 208 Boundary Amendment
requirement in the Service Plan as not substantive. Examples of a "substantial
change" have been identified as: changing the number of antennas; overall
dimensions of a tower; painting the tower, etc. Canyon Area Residents for the
Env't v. Bd. of County Commr's of Jefferson County, 172 P.3d 905, 908 (Colo.
App. 2006). Here, a new public hearing; with argument presented; held six months
later; placing a requirement regarding the 208 Boundary Amendment in the
Service Plan as the result of the objections raised by Mead, is a substantial change
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which warrants public review. Id. at 909. A board abuses its discretion when it
permits an applicant to change its Service Plan without giving the public the
opportunity to be heard. Id. at 907.
D. Findings Required by C.R.S. §32-1-305.
Mead concedes that a review of the Transcript cited by Proponents indicates
the District Court did make a determination that the Petition was signed by the
required number of taxpaying electors. However, Mead maintains its contentions
that the Petition was not signed by the appropriate number of electors and that the
District Court did not make any finding that the allegations listed in the Petition
were true.
E. Failure to include Required Language in the Decree.
Proponents contend that placing the required language regarding the 208
Boundary Amendment in the Court's order of June 22, 2007 was sufficient to meet
the requirement of the Board's Resolution. The argument is contrary to the
Resolution; moreover, the June 22, 2007 Order does not include the requirement.
To begin, the Resolution states that the "Order declaring the district organized shall
provide..." [Vol. 9; 87, 000835]. It is undisputed that the Decree is the "Order
declaring the District organized," and that the Decree does not contain the required
language. [See S.R.; 2005CV513, 119675791. The Resolution does not provide
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any leeway that the requirement be placed in another order. [Vol. 9; 87, 000835].
The District Court's failure to follow the express wording of the Resolution was an
abuse of discretion.
There is absolutely no language in the June 22, 2007 Order that the District
be dissolved if the 208 Boundary Amendment is not approved within one year of
the Court's order declaring the District organized, as is required by the Resolution.
[S.R.; 2005CV513, 11967579]. Although there is some discussion about what the
Service Plan and the Resolution require, the discussion fails to state that these
requirements be in the District Court's Order or that they are included in the Order.
Failure to include the required language in any order was plain error.
F. Rejecting Mead's Proffered Evidence.
Proponents contend the requested discovery was for the financial records of
the District. That is incorrect. As discussed in Appellant's Opening Brief at pp.
39-40, Mead requested the financial information of the Proponents, which was
critical, given that the Service Plan financing was based on personal assets and
guarantees. The District Court denied that discovery. [Vol. 1; 2005CV513,
4945143, p. 5, ¶5]. Proponents also contend that new evidence was irrelevant to
the Board's decision. As put forth in Appellant's Opening Brief at p. 40, and
uncontested by Proponents, such information is relevant to the District Court
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findings required by C.R.S. §32-1-305(4) as to the truthfulness of the allegations in
the Petition an issue before the District Court and not the Board. It was an abuse
of discretion for the District Court to not permit and consider such evidence.
G. Election was not Conducted in Accordance with Applicable Law.
Proponents first contend that Mead lacks standing to contest the election.
As grounds therefore, Proponents state that Mead is not an "eligible elector." As
discussed earlier, in State Farm Mut. Auto. Ins. Co., supra, the opponents
challenged the election process on the grounds that corporations could not vote. Id.
at 816. Even though the opponent was a corporation, the holding infers that the
opponent could challenge the election even though it was not an eligible elector.
Id. at 817. Mead, like the referenced corporation, is an interested party to the
election, as the District properties are within Mead's 208 Boundary, and under
those sections discussed in §II, infra. Thus, it has standing to contest the election.
Proponent's claim that Mead had not previously alleged the District was
gerrymandered is incorrect. See Town of Mead's Closing Argument ("Closing
Argument"), which states: "The District Proponents have gerrymandered the
District for the sole purpose of ensuring a successful election..." [Vol. I;
2005CV513, 6186264, p. 4]. Moreover, Section IV of the Closing Argument is
entitled "The Non-Contiguous Parcels to be Included in the Proposed District
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Appear to be Gerrymandering" and discussed the gerrymandering of the District.
[Id. at p. 16-17]. The argument was before the District Court and may be
considered on appeal.
VII. CONCLUSION
The Board abused its discretion when it approved the Service Plan for the
District. The District Court erred in dismissing Mead's C.R.C.P. 106(a)(4) claim.
The District Court further erred when it failed to make the specific findings
required by C.R.S. §32-1-305(4) before ordering the matter of formation be
submitted to an election. Both errors were compounded when the District Court
failed to certify final judgment after its June 22, 2007 Order. The District Court
abused its discretion when it denied discovery regarding the financial position of
the Proponents. Finally, the District Court erred when it found the election
approving the District complied with the applicable election laws.
For these reasons: the Resolution of the Board must be vacated; the District
Court's June 22, 2007 Order dismissing Mead's claims and ordering the formation
of the District be submitted to an election must be vacated; the election results
must be vacated; and the subsequent Decree approving the formation of the
District must be vacated.
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Respectfully submitted this 8`11 day of May 2008,
BENDELOW LAW FIRM, P.C.
a.00.,„04.‘$%AL&In-c
Edward M. Bendelow, Reg. No. 1883
Scott S. Watson, Reg. No. 34946
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CERTIFICATE OF SERVICE
I hereby certify that on this 8`" day of May 2008, a true and correct copy of the
foregoing APPELLANT'S REPLY BRIEF was mailed by United States Mail,
postage prepaid, addressed to the following:
\1Bruce T. Barker, Reg. No. 13690 Roger P. Thomasch, Reg. No. 5426
Lee D. Morrison, Reg. No. 8067 Jon Bernhardt, Reg. No. 20227
Cyndy Giaque, Reg. No. 13241 Ballard Spahr Andrews & Ingersoll, LLP
915 Tenth Street 1225 17th St., Ste. 2300
P.O. Box 758 Denver, CO 80202
Greeley, CO 80632 Attorneys for Proponents
Attorneys for the Board of County
Commissioners for Weld County
James D. Collins, Reg. No. 7958 Diane D. Miller, Reg. No. 26180
David A. Greher, Reg. No. 27311 Bradley T. Neiman, Reg. No. 35707
Collins Cockrel & Cole, P.C. Miller Rosenbluth, LLC
390 Union Blvd., Ste. 400 700 17th St., Ste. 2200
Denver, CO 80228 Denver, CO 80202
Attorneys for Proponents Attorneys for Avex International, LLC
Mary G. Zuchengo John William Suthers
Special District Association of Attorney General, State of Colorado
Colorado 1525 Sherman Street, 5th Floor
225 E. 16`'' Avenue, Suite 1000 Denver, Colorado 80203
Denver, CO 80203
Attorney for Amicus Curiae
Claudine Howard
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