LEGAL LIMBO: Local lawyers sue Aurora to halt racetrack ballot question, citing single-subject issue

"I think there's a few things that the court needs to consider, but I think the main one is the misleading title — that’s probably the biggest one,” said attorney Scott Cadiz, who filed the brief on behalf of the Aurora residents. “The single subject issue, the way we see it, they’re just discussing too many issues within that long clause that they have, and when you have that going on, it’s just going to confuse the layperson."

AURORA | A pair of local lawyers filed a lawsuit in Arapahoe County District Court this week alleging a recently approved municipal ballot measure is misleading and references more than one issue — a practice prohibited under state law.

Aurora residents and lawyers Jason Legg and Kristin Mallory filed their suit against the city of Aurora June 26, claiming that a municipal ballot question — which seeks to strip language from the city’s charter that currently prohibits offering financial incentives to NASCAR-style speedways and calls for a massive entertainment district in Aurora’s northeastern corner — is deceiving and addresses two disparate issues: racetrack incentives and an entertainment district.

Incorporating multiple subjects into a ballot measure is illegal under a nearly 25-year-old state law. Colorado voters approved that requirement in the 1994 general election.

In their complaint, Legg and Mallory ask the court to force the city to make the ballot language more understandable. They also ask for their legal and attorneys’ fees to be compensated.

Attorney Scott Cadiz of Cadiz Law in Denver is representing Legg and Mallory in the case.

Legg said he first discussed filing a suit with Mallory when they were both giving public comment against the ballot measure at a recent Aurora city council meeting.

“We run in the same social circles and we ran into each other at the city council meeting and we were pretty frustrated,” said Legg, who serves as the director of the nonprofit organization Strengthening Democracy for Colorado. “And we brainstormed from there with what we could do.”

Legg’s group, Strengthening Democracy for Colorado, has lobbied for several other liberal issues statewide, including mandatory tax return disclosure, redistricting and so-called voters’ rights laws.

Cadiz, who is also involved with Strengthening Democracy for Colorado, said he believes the primary hitch with the city’s question is a string of wonky phrases.

“I think there’s a few things that the court needs to consider, but I think the main one is the misleading title — that’s probably the biggest one,” he said. “The single subject issue, the way we see it, they’re just discussing too many issues within that long clause that they have, and when you have that going on, it’s just going to confuse the layperson.”

Legg and Mallory on Monday also formally formed an issue committee, deemed Aurora Residents for Transparency, to campaign against the measure.

City Councilwoman Sally Mounier, who has championed the racetrack effort for several years, said she wasn’t taken aback by the recent lawsuit.

“I am not at all surprised,” Mounier said. “If you think about the opponents of Gaylord (Rockies Resort & Convention Center) they used litigation as a tactic to keep us from enjoying the same economic opportunities as Denver. So, it shouldn’t surprise anybody.”

Mounier, who is not a lawyer herself, added she’s confident that the language in the city’s ballot question meets legal standards.

“This language was crafted by our City Attorney, Mike Hyman, who happens to be probably one of the best attorneys to craft language like this — he knows his stuff,” she said. “I am very confident that we will prevail and soon … I’m confident that what Mike crafted is going to pass muster, so to speak.”

Mayor Steve Hogan, too, dissed the lawsuit and expressed his confidence in the city’s legal team.

“I think it is a complete waste of time and money for all parties, and I’m confident the city will prevail,” he wrote in an email.

Wendy Mitchell, president and CEO of the Aurora Economic Development Council, said the lawsuit has whiffs of the legal quagmires the city waded through during its negotiations of the forthcoming Gaylord hotel south of Denver International Airport.

“This has happened before, and if we … just rolled over we would never have Gaylord,” she said. “The citizens deserve the right to decide if this is something that they want or not.”

Passed on a city council vote of 7-3, the freshly approved ballot question marks the third time city politicos have asked voters to take the prohibitory language regarding racetracks out of the city’s charter. The verbiage was added to the charter after a citizen-led initiative successfully lobbied voters in 1999 to pass a measure calling for the racetrack ban.

The most recent attempt to remove the racetrack incentive language lost by slightly more that 1,000 votes in 2015.

On top of allowing for the possibility of constructing a racetrack facility — similar to the Kansas Speedway in Kansas City, Kansas — the city’s measure would permit a sweeping entertainment district. While details on a potential district have been scant, it would be quarantined to land north of Interstate 70 and east of Hudson Road, according to the proposed language.

Colorado is one of at least 15 states with a single subject rule on its books, according to the National Conference of State Legislatures.

City Councilman Charlie Richardson, who voted against the ordinance approving the ballot measure at a recent council meeting, said the lawsuit could have been avoided if the city had vetted the measure through a more rigorous approval process.

“All of this could have been avoided if this issue had been dealt with in a methodical, deliberative (way) and with the consensus of the city council,” he said. “This litigation is a direct byproduct of too few people reviewing it and having input and rushing it.”

The ballot measure was unveiled to the public June 1 and received final blessing June 19. The item did not go through the typical policy committee approval process, which irked Richardson and others.

“These decisions shouldn’t happen in the 12th hour with little notice for public comment and debate,” Mallory said in a statement. “Councilwoman Mounier began working on this language and proposition for the development behind closed doors immediately after the 2015 election. Bypassing the committee process and going straight to a city council vote was a mechanism to silence the opposition, push her own developer-focused agenda, and trick the voter into voting for something they have rejected multiple times.”

A hearing on the matter could be scheduled within the next few weeks, Cadiz said. The city technically has five days from when the original complaint was filed June 26 to respond, although the upcoming 4th of July holiday could ultimately extend that timeline due to court closures, Cadiz added.

Reporter Brandon Johansson contributed to this story.