City faces suit for question it put on ballot
Former Aspen mayoral candidate Michael O’Sullivan is suing the city over what he says is a deliberate effort to confuse the voters in the upcoming municipal election.
The lawsuit was due to be filed Friday in U.S. District Court in Denver, according to attorney Dennis Green, although as of Sunday afternoon he had not received formal confirmation that it had been filed.
O’Sullivan, reached at work on Friday, said the suit is based on his and others’ belief that the city is deliberately trying to interfere with their right to use the citizen initiative process.
O’Sullivan has been allied with local government critic Jeffrey Evans, who has opposed efforts to get a valleywide rail system built between Glenwood Springs and Aspen.
Evans, in cooperation with anti-rail activists O’Sullivan and City Council members Tony Hershey and Tom McCabe, earlier this fall mounted a petition drive to get a question on the Nov. 2 ballot (titled Question 200) asking voters if they want to authorize up to $20 million in local funds to build a light-rail system between Brush Creek and the center of Aspen.
The petition’s sponsors, while they are rail opponents themselves, said their intent was to satisfy voters’ desires to have an election on the rail question this year.
In response, a majority of City Council members – including Mayor Rachel Richards and council members Terry Paulson and Jim Markalunas – put a question on the ballot (titled Question 2-C) asking voters if they would authorize the same amount of money for what has been termed a “dedicated busway” along the same right of way as the proposed rail system.
Mayor Richards, the main proponent of the bus question, said it was needed to give voters a “mass transit alternative” if the light-rail system is voted down. The city, along with Pitkin County, the Colorado Department of Transportation and various municipal and county governments in the Roaring Fork Valley, have been working toward creation of a commuter rail line between Glenwood Springs and Aspen for several years.
Rail supporters have maintained that it is too soon to have a general rail question put before the voters, because not all the needed information about costs and operations has been gathered yet.
O’Sullivan said last week the city’s ballot question on funding a new bus system is filled with “flaws” and is “redundant” because “we already have a bus system.”
Referring to the city’s question, O’Sullivan continued, “I think it’s an obvious attempt to thwart a simple, up or down vote on the rail.”
The 17-page lawsuit, according to a copy provided to The Aspen Times by Green, lays out an abbreviated history of the issues and conflicts surrounding plans to realign Highway 82 and build either a light-rail system or a “dedicated busway” alongside two traffic lanes across the Marolt Park property. The new highway, along with the transit system, would be linked directly to Main Street on a new bridge across Castle Creek, eliminating the existing “S-curves” that have caused ever-worsening traffic jams in the morning and evenings for years.
According to the suit, when the petition drive forced Question 200 onto the ballot against the wishes of the majority of the council members, Question 2-C was created to confuse voters and interfere with citizens’ legal right to petition government.
“The actual and stated intent and purpose of said council members,” the lawsuit claims, “were, and are, to frustrate and impede the voters’ consideration of Initiative 200.”
The suit claims the council’s action is in violation of several amendments to the U.S. Constitution, including the First Amendment (free speech and petitioning the government); as well as the reservation of rights guaranteed under the Ninth and 10th Amendments, and the guarantee of equal protection under the law in the 14th Amendment.
Aspen City Attorney John Worcester confirmed that O’Sullivan had contacted the city about one of the city-sponsored questions on the Nov. 2 ballot. Worcester said he could not comment any further about something that is at this point “potential litigation,” because the city has not been served with the legal documentation verifying that a lawsuit has been filed against it.
Worcester said the City Council discussed O’Sullivan’s lawsuit behind closed doors on Oct. 4, after O’Sullivan and Green sent a letter to City Hall threatening to file the suit unless the city withdrew Question 2-C from the ballot.
The suit asks the court to order the city to invalidate Question 2-C, and to pay O’Sullivan back for the cost of filing the suit as well as “such other and further relief as the court deems appropriate under the circumstances.”
Green said on Sunday that he expects to be able to arrange a hearing before a federal judge before the municipal election on Nov. 2.
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The city of Aspen is contributing $1 million to a CDOT project that will see concrete instead of asphalt at the roundabout into town.