Avon Recall Committee and town dig heels in over election, appeal
Both parties filed responses to the District Court after the town filed its appeal and a request to suspend the court’s order
The Avon Recall Committee this week filed a response requesting that district judge deny the town of Avon’s request to suspend the court’s order to hold recall election.
On Monday, June 28, the town of Avon filed its notice of appeal of District Judge Russell H. Granger’s decision, which ruled that the town had to host a recall election for Mayor Sarah Smith Hymes and Underwood. This appeal was filed after the Town Council voted 3-2 to appeal Granger’s decision.
The same day the appeal was filed, the town also filed a motion to stay, requesting that the court suspend any enforcement of the judge’s order to host a recall election. This would suspend any activity of enforcement of the order while the appeal is pending.
“Staying the Judgment serves the interests of judicial economy and is permitted under Colorado law,” reads the motion to stay, submitted by the town’s attorneys on the case.
This is consistent with the town’s defense of the appeal and its side of the recall argument.
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“We were deeply disappointed in the order, because it did not address many of the important legal arguments that we raised, including but not limited to certain constitutional issues that implicate the First and 14th Amendment rights of Avon voters,” said Paul Wisor, the town’s attorney, when the vote to appeal was first made. “We think it is important, not only for Avon, but Colorado communities as a whole, that we get the correct answer.”
According to the committee’s response to the town’s motion to stay, which was filed Tuesday, July 6, the town’s motion gave inadequate justification as to why the stay should be granted. The response calls the town’s motion “facially insufficient.”
Further, the recall committee’s response argues that while granting the stay would not harm the town in any way, it would harm the committee and the townspeople of Avon.
“At its core, a stay will nullify the judgment and subvert the will of the people,” reads the response. “Given the briefing schedule, time frame for scheduling oral argument, and receiving a decision on appeal, it is highly likely that Avon will simply be able to ‘run-out-the-clock,’ that is, avoid any recall election entirely, if the Motion for Stay is granted.”
In an email, Wisor countered the recall committee’s claim that it is attempting to “subvert the will of the people,” noting that the committee doesn’t represent all of Avon.
“The signatures submitted represent 13% of registered voters, and an even smaller percentage of the overall Avon population,” Wisor wrote. “Of these signatures, many have contacted the Town and inquired as to whether their names could be removed. This can hardly be taken as the will of the people.”
Wisor also wrote that the town “adamantly denies” the accusation that the town is attempting to run out the clock.
“The Town wants a final judicial answer sooner, not later,” he wrote.
The town responds
Following the recall committee’s response, the town was given three days to file its own response, which it did file Friday. In it, the town addressed many of the arguments brought forth by the recall committee.
“Forcing the town to conduct a recall election while the legal issues are on appeal could sow chaos for this municipality and create a situation where different Councilors claim to have the right to be seated,” read the response.
In an email, Wisor called this scenario a “very real possibility and it is not in the best interest of the community,” in the case that the stay is not granted and the town must go forward with the recall election while the appeal is being heard.
The response also notes that the town would “incur unnecessary expenses to run a recall election (using taxpayer money).”
However, the town will pay either way. The cost of a recall election, according to Wisor, would be $15,000, with additional costs should Underwood and Hymes prevail in the election. On the other hand, Wisor estimated that the appeal would cost the town an additional $15,000 to $20,000 on top of the $6,300 in litigation fees it has incurred to date on the issue.
The recall committee’s response also noted that the town “made no attempt to show that it is likely to prevail on the merits of its appeal,” highlighting two prior court cases in which this was ruled a requirement of a request to stay a judgment.
To this, the town’s response holds that the appeal is likely to be successful as the original order handed down by Granger failed to address the constitutional arguments brought forth by the town.
The town’s response says it is likely the appeals court will “either reverse the Judgment for failure to consider those key issues, or, at the very least, remand the case back to this Court to evaluate the ignored constitutional arguments and other issues in the Town’s Notice of Appeal.”
The appeal must go on — or not
While the judge is expected to make a decision on whether to grant the stay, thus suspending the need for a recall election to be held, there is still some question as to whether Avon will continue forward with its appeal. The town is set to discuss the appeal at its Tuesday, July 13 Town Council meeting.
This discussion was added to the agenda after Council member Chico Thuon — who initially voted in favor of an appeal — had a change of heart and expressed a desire to change his vote.
Thuon told the Vail Daily at that time that pursuing the appeal was “not fair to the voters” and was “too much to drag the town through.”
Recently, the Eagle County Democrats have circulated a petition to support the town’s decision to appeal. In an email, articulating the group’s argument of support, it calls Granger’s decision wrong and states that it “fails to treat all Avon voters equally.”
The public discussion on the town’s recall election and subsequent appeal will take place Tuesday, July 13 at 5:15 p.m. You can attend the meeting either virtually via Zoom or in person at the Avon Town Hall.