County files to dismiss lawsuit that claims voters were misled over marijuana ballot measures

In response to a lawsuit filed against the Grand County Board of Commissioners following the passage of two marijuana-related ballot measures, the county attorney filed a motion to dismiss this week.

The lawsuit, filed by Tabernash dispensary Igadi’s general counsel David Michel on Dec. 1, claims that the financial impact statements accompanying ballot measures 1A and 1B were misleading to voters. Ballot measure 1A increased the sales tax on recreational marijuana by 5 percent and 1B increased the excise tax on recreational marijuana by 5 percent.

In the county’s motion to dismiss, which was filed in the Grand County District Court on Dec. 18, Interim County Attorney Maxine LaBarre-Krostue argues the lawsuit should be dismissed because of a lack of jurisdiction and a failure to state a claim upon which relief can be granted.  

According to the motion, Michel’s claim is not valid because it does not contest the election process and does not allege facts showing irregularities changed the results of the election.

Because the lawsuit doesn’t contest the election process or results, but instead the financial impact statements, LaBarre-Krostue argues in the motion that Michel’s claim should have been filed within five days of the ballot being set and therefore the lawsuit is untimely and barred by state statute.

Beyond the content of the claim, the motion also argues the county doesn’t have personal or subject matter jurisdiction on the claim.

The county lacks personal jurisdiction because Michel failed to properly name the county, the motion states.

According to state statute, any lawsuit by or against a county must refer to the county as “the board of county commissioners of the county of (county name here).” Michel’s lawsuit was filed against the “Grand County Board of County Commissioners.”

Another reason the county has no personal jurisdiction is because Michel failed to give his notice of the initial legal action to the clerk of the board of county commissioners, the motion claims. Instead, Michel gave notice of the initial legal action to the individual commissioners before their Dec. 11 meeting.

The motion also claims the county has no subject matter jurisdiction because Michel failed to follow the statutory procedure for conducting an election contest in district court, which requires the clerk of the district court to issue the summons.

The summons also does not include a brief statement of the grounds of the contest, as is required by statute.

As of Saturday afternoon, Michel had not returned a request for comment and the only other filing for the case was an entry of appearance for the law firm of Dill Dill Carr Stonbracker & Hutchings, P.C. on behalf of Michel on Dec. 19.