RACING TO THE BALLOT: Aurora lays out case in latest racetrack lawsuit; judge to rule by Monday

Arapahoe County District Court Judge John Wheeler said he expects to issue his ruling in the case by Monday morning.

AURORA | A judge in Arapahoe County District Court Wednesday morning heard arguments as to whether the City of Aurora’s newest municipal ballot question, which seeks to strike old verbiage from the city’s charter and permit the development of a large entertainment district, meets legal requirements under state law.

District Court Judge John Wheeler listened to nearly three hours of arguments from the plaintiffs, a pair of local Aurora residents represented by Denver-based lawyer Scott Cadiz, and the legal team representing the city. Instead of using lawyers from the city attorney’s office, the city elected to retain outside counsel led by Thomas Snyder, who is a partner at the Denver office of the national law firm Kutak Rock.

Snyder successfully litigated the city’s case defending the massive Gaylord Rockies hotel project in 2014.

The two residents who brought the case forward last month, Kristin Mallory and Jason Legg, claim that the city’s ballot language is misleading and references interrelated subjects — a practice illegal under state law that seeks ballot question clarity.

Lawyers on both sides laid out copious case law related to the single subject issue. A major portion of the arguments centered on a pair of cases: One based in Denver and another in Colorado Springs. Cadiz, in part, bolted his argument to decisions rendered in the Colorado Springs case — which centered on infamous El Paso County politico Douglas Bruce — saying that Aurora is indeed prohibited from covering multiple issues in a single charter amendment.

Both Legg, who is a lawyer himself, and Cadiz are affiliated with Strengthening Democracy Colorado, a nonprofit organization that has lobbied for multiple liberal issues, including mandatory tax return disclosure, redistricting and so-called voters’ rights laws.

Arguing on behalf of the city, Snyder claimed the aforementioned Denver case proved that cities with certain charter language are not limited to single subject amendments, including Aurora.

“I think that the language differential between Denver and Colorado Springs on single-subject as applying to matters that would, or mechanisms that would amend the city charter is — there’s a large contrast between the two,” Snyder said. “And so I think this central issue on single subject, whether it applies here, boils down to: Is the Aurora city charter and ordinance scheme more similar to Denver or is it more similar to the Springs? And I think that that answer is fairly obvious.”

Both Mayor Steve Hogan and City Councilwoman Sally Mounier attended at least a portion of the proceedings Wednesday morning.

Mounier, who has long championed the racetrack charter amendment in Aurora, said she remained confident the city would successfully litigate the suit.

“I just want to congratulate (the judge) because I think he separated out fact from fiction, truth from wishes, and I wouldn’t want to be in his shoes,” she said. “But I think we’re going to prevail. I just don’t see how we can lose on this — but that’s just me talking.”

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 and barred from operating within half-a-mile of residential properties, according to the proposed language.

Judge Wheeler made clear it had never dealt with a case involving a single-subject charter amendment issue before. He said he expects to issue his ruling in the case by Monday morning.

The legal process in the case has been expedited to meet election deadlines. Municipal ballots must be certified in each of the three counties that comprise Aurora by Sept. 8, according to Snyder.

Mallory, who is a non-practicing lawyer, said she believes the length of the hearing spoke to the ballot measure’s ambiguity.

“It took three hours and we could have gone longer to discuss everything that’s in the proposed language, and if it’s confusing to a group of lawyers, who write this stuff for a living, especially form the city, who did this, then how are we to expect voters to fully understand what they’re getting when they vote?” Mallory said after the hearing. “I mean, if its confusing to lawyers, it’s going to be confusing to the layperson … And I think that that came out.”