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DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO
Case Nos. 97 CV 724 and 97 CV 729 Division I
ORDER
MICHAEL L. KELSEY, WARREN MITCHELL, MICHAEL RAMSTACK, and
JOHN ROESSIG,
Petitioners/Plaintiffs,
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CITY OF GREELEY, COLORADO, a municipal corporation, THE CITY'
COUNCIL OF THE CITY OF GREELEY, a political body, THE WELD
COUNTY CLERK AND RECORDER'S OFFICE, and J.A. SUKI TSUKAMOTO,
the Weld County Clerk and Recorder and designated Election Official,
Respondents/Defendants.
Introduction
THIS MATTER comes before the Court on the following motions:
1) Plaintiffs' Motion for Summary Judgment, which asks the Court to set
aside the results of the City of Greeley's November 4, 1997, election on Ballot
Issue 2A, order an election as soon as practicable, and to award the Plaintiffs
attorney's fees and costs.
2) Defendant City of Greeley's Motion for Summary Judgment, which asks
the Court to grant Plaintiffs' Motion for Summary Judgment and order the County
of Weld and J.A. "Suki" Tsukamoto to pay both Plaintiffs' and Greeley's
attorneys' fees and costs.
3) Defendant City of Greeley's Motion for Declaratory Judgment, which
asks the Court to declare that the procedural requirements of the Tabor
Amendment have been met regarding Ballot Issue 2A and that a special election
would therefore be valid under the Tabor Amendment.
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4) Defendant J.A. "Suki" Tsukamoto's Motion for Summary Judgment,
which asks the Court to dismiss Greeley's cross-claim against Tsukamoto (as
the Weld County Clerk and Recorder) and Weld County and to declare that the
City's sole remedy against Tsukamoto is in accordance with the City and
County's agreement that the County will refund all election payments and
conduct the next coordinated election at no cost to the City.
The Court has reviewed the parties' pleadings, affidavits, and admissions.
Summary Judgment is an appropriate remedy when there are no genuine
issues as to any material fact and the moving party is entitled to a judgment as a
matter of law. C.R.C.P. Rule 56(c).
This is an appropriate case for summary judgment because all of the
parties agree that no genuine issues of material fact exist and that Plaintiffs are
entitled to a judgment that illegal votes were cast in such a number that they may
have changed the election results. There are only two issues in this case, and
both are a matter of law: 1) which remedy is proper when illegal votes are cast in
a ballot election? and 2) which entity is responsible for the Plaintiffs' and/or the
City's attorneys' fees?
II
Facts
On November 4, 1997, pursuant to an Intergovernmental Agreement, the
County Clerk and Recorder conducted a coordinated election for both Weld
County and the City of Greeley. A number of voters living in different
jurisdictional areas voted in the same precincts, and as many as seven different
ballot forms were available to be given to voters depending upon the
jurisdictional boundaries associated with the voter's residence. Some voters
were eligible to vote in the County election, special district elections, and school
district elections, but were not eligible to vote in the City election. The election
judges were responsible for giving each voter the appropriate ballot.
In this election, Greeley residents expected to vote on Ballot Issue 2A,
which concerned an increase in the City's sales tax. This issue was only for
Greeley residents and was not included on the ballots for those electors living
outside the Greeley limits.
Ballot Issue 2A initially failed by two votes; however, a mandatory recount
was conducted, which determined that the Ballot Issue had actually passed by a
margin of two votes.
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Subsequently, information came to light suggesting that several non-
Greeley residents had received and voted ballots that included Issue 2A. These
people were not qualified electors in the City election, and thus any votes cast
by the non-resident voters on Ballot Issue 2A would have been illegal and
invalid.
The Plaintiffs have alleged, and Defendants have admitted, that at least
37 and as many as 53 non-Greeley electors received and cast ballots on Issue
. 2A. C.R.S. §1-11-201(3)(a) allows the challenge of an election if illegal votes
were received in sufficient numbers to change the results of the election. Since
Issue 2A only passed by two votes, it is obvious that the votes of the non-
Greeley electors may have materially changed the outcome of the election.
The invalid election results from the actions of the election officials in the
affected precincts. Their conduct is attributable to the Weld County Clerk and
Recorder. For purposes of the Intergovernmental Agreement, the nullification of
the election was caused by the sole negligence of the County Clerk and
Recorder.
III
Remedy
The Colorado Revised Statutes do not clearly provide for a remedy when
illegal votes are cast in an election. See C.R.S. § 1-11-216. Colorado cases
have identified three possible courses of action under these circumstances: 1)
discard the illegal ballots and order a recount, 2) throw out the votes of only the
precincts where illegal votes were cast, and 3) set aside the election.
The first solution, to throw out only the illegal ballots, is the most
palatable; however, it cannot be done in this case. The ballots are now
anonymous. It may be possible to identify all of the non-Greeley residents who
received city ballots; however, at this point, their ballots can no longer be
identified. Thus, the Court cannot just throw out the illegal votes and order a
recount. Also, the Court could not ask those non-Greeley residents who
received city ballots if and how they voted on the Ballot Issue 2A because a
court may not compel voters to do so. Mahaffey v. Barnhill, 855 P.2d 847 (Colo.
1993). Because the tainted ballots cannot be identified the first solution is not
possible.
The second solution is to throw out the votes in those precincts where
illegal votes were cast. Past Colorado cases have held that in some
circumstances it is appropriate to throw out the votes of the entire precinct in
which the illegal ballots were cast. However, those cases involved only a single
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precinct. In the Ballot Issue 2A election, at least six precincts gave city ballots to
non-Greeley residents. Setting aside the votes of all six precincts would have a
substantial impact on the overall election and would disenfranchise a substantial
number of voters.
Thus, the third solution, to set aside the election, is the only practical and
acceptable solution.
The Plaintiff and the City of Greeley have asked that this Court both set
aside the election and order that the County of Weld set a new special election
as soon as possible. It is not the function of the Court to call or set elections.
Under C.R.S. §1-11-201 et seq. the Court's function is to determine the validity
of the election. The Greeley City Council is free to set another election in their
discretion.
The City of Greeley also requests the Court to declare that a special
election, scheduled for this spring would not violate the Tabor Amendment.
Article X, Section 20 of the Colorado Constitution. That issue is not properly
before the Court. If the City calls an election and it is challenged, that would be
the proper time to determine that issue. A ruling at this time would be a nullity.
Those persons who might have an interest have no notice of these proceedings.
To make such a decision in a non-adversarial proceeding would be invalid.
IV
Intergovernmental Agreement
The Intergovernmental Agreement contains specific provisions relating to
the County's obligations in the event of an invalid election. The liquidated
damages provision provides: 1) that the County must return to the City all
compensation received by it for conducting the election, and 2) that if requested
the County must conduct the next coordinated election (which may include the
Sales Tax Issue) at no charge. The Agreement is clear and unambiguous. It
does not provide that the County will conduct a special election.
V
Costs and Attorney's Fees
When a contestor succeeds in his suit to disallow election results, he may
recover costs and reasonable attorney's fees from the governing body. C.R.S.
Sec. 1-11-118 (1997). Thus, it is clear that the Plaintiffs should receive
attorney's fees from the governing body. A "governing body" is the body
responsible for the calling and conducting of an election. 1-1-104(18).
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Initially, the Greeley City Council called the election and is ultimately
responsible for the election. Under agency/partnership theories, the City
Council can delegate the function of conducting the election to the County;
however, delegation of responsibility does not relieve the principal of the
ultimate responsibility. Thus, the City of Greeley is the governing body that is
liable for the Plaintiffs' costs and attorney's fees under 1-11-118.
The City seeks to require the County to pay both the Plaintiffs' and its own
attorneys' fees and costs. The City is not entitled to recover the attorney's fees
it owes to Plaintiffs because the governmental agreement has a liquidated
damages clause that is the exclusive remedy in the event an election is set
aside. That clause does not provide for the City to receive any damages other
than as set forth above. It does not provide that the County will pay the attorney
fee obligation incurred by the City to the Plaintiffs. The City's request that the
County pay Plaintiffs' attorney fees is a request for damages it sustained as a
result of the invalid election. The Intergovernmental Agreement liquidated
damages clause precludes such recovery.
The City may not recover its own attorneys' fees under the statute
because the City is not a contestor under the statute. The statute does not
authorize attorney fees for the City in this case and the Intergovernmental
Agreement does not provide that the County pay the City's attorney fees. The
American Rule, with exceptions not relevant here, is that one is not entitled to
attorney fees in the absence of agreement or statute. Therefore, the City is not
entitled to recover its attorney fees.
IT IS ORDERED:
1. The Plaintiffs' Motion for Summary Judgment is granted.
2. The City of Greeley's Motion for Summary Judgment is granted.
3. The City of Greeley's Motion for Declaratory Judgment is denied.
4. Weld County's Motion for Summary Judgment on the City's
counterclaim is granted.
5. The election approving the Sales Tax, Ballot Issue 2 A is declared
invalid and the election set aside.
6. The request that the Court schedule a new election is denied.
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7. Judgment is entered against the County and in favor of the City in the
amount of$9,257.75.
8. The County shall, if requested by the City, provide the next
coordinated election at no charge to the City, whether or not the Sales
Tax issue is on the ballot.
9. The City shall pay Plaintiffs' attorney's fees and costs.
10. The City's request for its own attorney's fees is denied.
DATED: FEB e 2 rJgd
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District Court Judge
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