Avon votes 3-2 to withdraw appeal of judge’s order on recall election | VailDaily.com

Avon votes 3-2 to withdraw appeal of judge’s order on recall election

This vote comes three weeks after the Town Council originally voted to appeal the decision handed down by District Court Judge Russell H. Granger

The Avon Town Council discusses the recall Tuesday in Avon.
Chris Dillmann/cdillmann@vaildaily.com

Three weeks after the town of Avon voted to appeal the decision handed down by District Court Judge Russell H. Granger, the town council voted to withdraw its appeal.

During Tuesday night’s Town Council meeting, the council hosted a public discussion regarding the council’s original appeal of the judge’s order, which ruled in favor of the Avon Recall Committee and ordered the town to host a recall election for Mayor Sarah Smith Hymes and council member Tamra Underwood.

The discussion item was added to the agenda after council member Chico Thuon expressed regret over his initial vote in favor of the appeal.

“It’s chaos and craziness — and I don’t think either one of them is going to get recalled — we just need to get it done,” Thuon said. “I’m making the right decision, and I’m making the right decision for the town of Avon. It’s my decision, I just think this thing should be taken care of here and now.”

Bigger than Avon

Those in favor of going forth with the appeal — which included Mayor Pro Tem Amy Phillips, council member Lindsay Hardy, Town Attorney Paul Wisor and several members of the public who spoke at Tuesday’s meeting — hold that this matter is larger than the town of Avon.

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“This is a gigantic issue with far-reaching effects for our state. This must be appealed so that there is a final decision, a definitive court decision,” said Rich Carroll, Avon resident and former town mayor. “This is exactly the town’s role to appeal this decision. The recall process is a strategy we see countrywide to try to get into office those people who cannot get elected on their own. This will not be the last recall in the town of Avon.”

The disagreement between the town and the Avon Recall Committee comes down to a difference in interpretation of the Colorado Constitution. The portion of the Colorado Constitution in question details the number of signatures required to trigger a recall.

According to Granger’s interpretation of the Colorado Constitution, the calculation that determines the number of signatures required to trigger a recall does not include undervotes, or votes not cast.

However, both in the town’s initial court filings and in its discussion tonight, Wisor held that this interpretation violates voters’ First and 14th amendment rights. Wisor, as well as those in favor of the appeal on council and in the public, held that the judge’s order failed to address these violations and in doing so, is suppressing voters and infringing on voters’ rights.

“The town is now currently pursuing an appeal and it was my legal advice, among others, that the town do it because it is my thought that given the fact that the court’s ruling failed to address some of the largest issues that we raised, the most important issues, that the next time a council member receives a certificate of sufficiency, they’re going to turn around a sue the town based on First Amendment grounds, 14th Amendment grounds and the math. And the town is then forced to be in the position of defending that lawsuit,” Wisor said.

According to Wisor, in deciding not to appeal this court’s decision, the town will be ”subject to a court order” that he called “fundamentally at odds” with the basic tenants of democracy.

Members of the public speaking at Tuesday’s meeting echoed this.

“Recall mania is taking over Colorado,” said Kristi Ferraro, Avon resident and former council member. “If the town of Avon fails to appeal the flawed and incomplete decision of the District Court, you will be responsible for setting bad law in stone in Colorado; and confining Avon and other municipalities to drama and upheaval for years to come.”

In fact, both Hymes and Underwood argued prior to the start of the discussion that they should not be recused from the discussion about the appeal because its implications extend far beyond the town of Avon.

“I don’t believe I have a conflict of interest,” Hymes said. “This particular recall attempt is distinct and separate from the much more profound and consequential decision regarding voter suppression as it relates to recall signature thresholds. I consider the town’s decision to appeal the signature threshold ruling by Judge Granger to be a voting rights issue and the single most important issue before this council since I was seated in December of 2014. It will have far-reaching ramifications for voters around the state.”

Underwood echoed this sentiment in her own remarks, calling it a “free speech and equal protection matter under the United States Constitution.”

“We are at the defining moment of our council service,” Underwood said. “The matter in item one of our agenda is a matter of national, state and municipal concern. It is not a matter pertaining to my own personal interest.”

However, Council ultimately voted to recuse both Underwood and Hymes from the recall discussion, with Hardy and Phillips voted against their recusal as well as Council Members Scott Prince, RJ Andrade and Thuon.

Get it over with

While both sides of the argument seemed to want the recall drama to end, there was debate as to what is the most efficient way — in terms of both cost and time — to make that happen.

While Thuon, Prince and Andrade all articulated that they felt the current statute was poorly written, they felt that allowing the recall election to go forward was the best course of action.

“I stand by the fact that I don’t think Sarah and Tamra should be recalled,” Andrade said. “However, I also don’t feel that the citizens’ voices should be silenced. And if they met the requirements of a poorly-written statute then so be it, we have to respect what they gave to us.”

Prince argued that a better course of action was to pursue legislative action to change the way the law is written. “This law is settled law and it’s not our job to go in and tweak the law, that’s where we go down a legislative path,” Prince said. “I’ve already spoken with Dylan Roberts, he’s willing to support us and work with us… and I think we’ve got a really good case.”

In the end, per a motion made by Thuon, the council voted 3-2 — with Thuon, Prince and Andrade voting in favor and Hardy and Phillips dissenting — to withdraw the town’s appeal of Granger’s order. A vote, which was immediately met with a round of “boo’s” and “shame on you’s” from the residents in attendance.

Now, after the appeal is withdrawn, the town will go forward with the Judge’s initial order, starting with issuing a certificate of sufficiency and planning the recall election, which the town tentatively expects to occur this November.

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