Newest filing in lawsuit against county asks court to deny motion to dismiss
Timeline of dispute
Aug. 21, 2018 – The Board of County Commissioners approves ballot measures 1A and 1B. Measure 1A increases sales tax on retail marijuana by 5 percent and measure 1B increases excise tax on retail marijuana by 5 percent.
Oct. 23 – Igadi general counsel David Michel approaches the county commissioners with his concerns regarding the financial impact statements. Measure 1A claims to increase tax revenue by $310,000 and measure 1B claims to increase tax revenue by $155,000.
Nov. 6 – Election Day. Measure 1A passes by 693 votes and 1B passes by 537 votes.
Nov. 21 – Election results are certified by the county clerk.
Dec. 1 – Michel files contest of measures 1A and 1B in the Grand County District Court on the basis that the financial impact statements were misleading to voters and therefore the ballot measures should be overturned.
Dec. 11 – Michel serves the county commissioners with his contest of measures 1A and 1B.
Dec. 18 – County files motion to dismiss the lawsuit on the grounds of lack of jurisdiction and failure to state a claim upon which relief can be granted.
Dec. 19 – Dill Dill Carr Stonbracker & Hutchings, P.C. files entry of appearance on behalf of Michel.
Jan. 8, 2019 - Dill Dill Carr Stonbraker & Hutchings, P.C. files response to motion to dismiss on behalf of Michel.
Representatives for David Michel, who filed a lawsuit with the Grand County Board of Commissioners after the passage of two ballot measures regarding retail marijuana taxes, asked the Grand County District Court Wednesday to deny the county’s motion to dismiss.
The initial complaint, filed Dec. 1 by Michel, Tabernash dispensary IgadI’s general counsel, claims the financial impact statements accompanying the 2018 general election 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.
The response, filed Jan. 8 by Dill Dill Carr Stonbraker & Hutchings of Denver on Michel’s behalf, argues that dismissing the lawsuit on any of the grounds the county argued would be putting “form above substance” in a case that deals with both voters and taxpayers’ rights.
The county argued the lawsuit should be dismissed because of lack of personal jurisdiction, lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
“The alleged procedural deficiencies raised by the board should not trump the substantive rights and issues raised in the complaint,” the response stated.
In response to the county’s argument that it lacks jurisdiction or a claim upon which relief can be granted, the filing states that the county misunderstands Michel’s compliant. The response argues that Michel is not challenging the form or content of a ballot title, as the county claimed, but instead is challenging the means by which the election result was obtained.
One claim made by the county is that it lacks personal jurisdiction because Michel failed to properly name the county and to give proper notice of the initial lawsuit. According to arguments in the response, Michel followed the process outlined by the Colorado Rules of Civil Procedure, which governs election contests.
This process allows for notice of the initial complaint to be delivered to the county clerk, chief deputy or county commissioner. Michel served his complaint personally to all three county commissioners.
As for the error in naming the county properly on his lawsuit, the response argues the court should allow a correction, since the ordering of words doesn’t impact the substance of the claim nor the adequacy of the notice given to the board.
Regarding the county’s argument that it lacks subject matter jurisdiction, it stated that because of Michel’s failure to follow statutory procedure, the court had no subject matter jurisdiction.
The response states that a contested election of a ballot issue should be tried and decided by the court for the county and any procedural issues do not change the fact that the court has subject matter jurisdiction.
Finally, the county argued Michel did not make a claim upon which relief could be granted. However, the response states that Michel’s claim alleges a violation of state statute that requires the board to provide accurate fiscal information with ballot measures.
Michel has consistently argued that the fiscal information included with the ballot measures was misleading because it had an inadequate basis in fact and therefore the ballot measures should be invalidated.
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