Lawsuit Against Loveland City Clerk Dismissed

Plaintiffs did not exhaust administrative remedies, judge ruled

A Larimer County district judge on Aug. 24 dismissed a lawsuit against Loveland’s city clerk. After a hearing lasting more than three hours, Judge Daniel McDonald agreed with the city that the court did not have jurisdiction over the case because the plaintiffs had not exhausted their administrative remedies.

The plaintiffs claimed clerk Patti Garcia violated the city charter and state Constitution when she stopped accepting signatures for a ballot petition for retail marijuana sales in Loveland before the 90-day petition period had passed and also argued Garcia deliberately hindered their petition process by telling them they had 180 days, rather than 90 days, to collect signatures.

The City of Loveland said in a news release the clerk will review all signatures collected in the petition’s original 90-day period. Greenspoon Marder attorney Michael Dailey, who is representing the plaintiffs, said they will decide next steps in the case once they know the clerk’s decision accounting for the rest of the signatures.

“I just think, though, the problem still remains that the window of 90 days was really tainted because of how Ms. Garcia ran the process,” Dailey said. “And it’s truly unfortunate that at the end of the day, the administrative issues prevented the court from finding it had jurisdiction.” But he added given the city’s decision to review the additional signatures submitted, he understands the court’s position.

The plaintiffs originally included Tom Wilczynski, Autumn Todd, Todd Campbell and Jeremy Lewchuk. At the beginning of the hearing, McDonald dismissed Campbell as a plaintiff, saying his status as someone who might open a retail marijuana business did not give him standing. McDonald ruled the other three plaintiffs did have standing.

Todd and Wilczynski are the petition’s representatives. They notified Garcia they planned to submit signatures in batches of 50 to avoid overwhelming the clerk’s office, which Garcia approved, according to the complaint. The petition’s 90-day circulation period would have gone through mid-July.

According to the complaint, Garcia issued a decision on June 24 that the proponents had not submitted enough valid signatures to qualify the question for the ballot. When the proponents attempted to submit more signatures after that date, she did not accept them, states the complaint. According to exhibits included with the complaint, Garcia certified 2,142 signatures of the 3,589 submitted by May 28. During Monday’s hearing, she testified she believed the submission of signatures on May 28 comprised the final batch.

The two sides spent most of the hearing on the dispute of subject matter jurisdiction. The city has claimed the court doesn’t have jurisdiction over the case because the plaintiffs haven’t exhausted their avenue to challenge the petition decision administratively. They did not file a protest to Garcia’s decision.

Under Colorado law, parties have 40 days to challenge a signature certification decision from the date proponents submit signatures. Given the 30-day period for the clerk to issue their decision, Garcia said her office looks at the law as allowing a 10-day window for protests.

The attorneys for the plaintiffs said Garcia did not notify the petition proponents they had not submitted enough valid signatures before she issued her June 24 decision, arguing they would not have known to protest it.

During testimony from Garcia, the two sides disputed whether the court should have allowed Dailey to question Garcia about an article in the Loveland Reporter-Herald she gave statements for saying the petitioners would need to start their effort over should they want to put the retail marijuana question on the ballot. Dailey said her statements in the article had a chilling effect on the petition proponents and argued it was relevant to establish whether the reporter misquoted Garcia saying the petitioners hadn’t submitted enough valid signatures to qualify the petition. McDonald ultimately allowed the questioning but said he couldn’t conclude whether the petitioners read the article and were chilled by it based on Garcia’s statements.

The plaintiffs included in their complaint a transcript of the May 28 meeting between Todd and Garcia in which Todd is recorded as saying he planned to submit more signatures the following week. During her testimony, Garcia said she did not remember telling the petitioners they could submit more signatures. She also said she had not previously seen the Reporter-Herald article and did not know whether it had misquoted her statements.

In announcing his ruling on jurisdiction, McDonald said the plaintiffs have to prove beyond a reasonable doubt a protest would be futile and said they had not done that. Instead, he said, they relied on arguments that Garcia was dishonest with the petition representatives during the petition process.

But McDonald said when making his ruling he believed Garcia was truthful during her testimony.

“Her demeanor was truthful. She was clearly nervous. Court is not maybe her most comfortable place to be, and I don’t blame her. But I did not find her to be dishonest in any way.” 

—Julia Cardi

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