Gessler Seeks to Question Witnesses in Frack Ban Case

February 14, 2014
Scott Gessler intervenes in disputed election lawsuit.

Scott Gessler intervenes in disputed election lawsuit.

Colorado Attorney General John Suthers has asked the Broomfield District Court to allow Secretary of State Scott Gessler to participate in a lawsuit challenging a contentious local election to ban fracking.

Suthers argues that Gessler should be allowed to question witnesses who will be called to testify at the trial beginning Feb. 20 in an “amicus plus” position.

In addition to that power, Suthers said the state’s election chief should also be permitted to engage in certain oral arguments, as well as taking on the traditional amicus role of filing briefs and motions before the court.

Thomas E. Cave and the Broomfield Balanced Energy Coalition (BBEC) filed the legal challenge in December against election manager Michael Susek and Broomfield County Clerk Jim F. Candelarie.

The lawsuit seeks to overturn the disputed outcome of Question 300, a ballot measure that sought to prohibit hydraulic fracturing within the city and county of Broomfield for five years.

The contest was fraught with numerous reported incidents of election irregularities and questionable handling of ballots during a recount by election and county clerk officials. A “mystery box” was also used in the election process that contained a number of ballots that were not counted.

A district court judge has been asked to determine the validity of the Nov. 5 election, which resulted in the ban’s passage by a 20-vote margin.

“The secretary’s interests are not aligned with either the plaintiffs or defendants in this action, and he does not advocate for a particular outcome with respect to the election results for Question 300,” Suthers said in the motion filed Wednesday.

The Secretary of State’s importance in the case is to ensure that a consistent application of legal principles are applied to the facts, and he should be allowed to provide guidance to the court as needed, Suthers argued.

Broomfield officials responded immediately to the petition and asked the court to reject the request.

“To assert that ‘the petitioner is not partial to a particular outcome’ is suspect,” City and County Attorney Bill Tuthill wrote in Broomfield’s objection.

In particular, Tuthill said that Gessler should not be allowed to question the witnesses, which would include local officials who conducted the election, or engage in oral arguments.

“The secretary’s neutrality is also subject to debate, inasmuch as he issued a report on the Broomfield election while it was underway, criticizing some of the actions of the Broomfield elections officials at the same time he was supposed to be providing assistance,” Tuthill wrote in the response.

“The Secretary of State’s request to participate as an ‘amicus plus’ would likely complicate and confuse the trial process and is unnecessary,” Tuthill said.

The attorney general argued that Gessler cares only about the legal principles in the case, and does not have a personal or legally protected interest in the lawsuit’s outcome.

“The secretary, as the chief election officer of the state, has a ‘special interest’ in this litigation – namely to provide guidance and assistance to this court so that the election code and secretary rules are consistently interpreted and applied in this election contest,” the attorney general said.

“Although the election results at issue concern a local ballot measure, the matters raised in this case affect the administration of elections statewide,” the attorney general said.

Tuthill has acknowledged in earlier press reports that mistakes and technical errors were made, but insists that the results of the election should not be overturned.

Broomfield officials blamed some of the problems on new voter registration laws and said it caused confusion as to which voters were allowed to cast ballots.

In their lawsuit, Cave and the BBEC claim that illegal votes were counted and legal votes were rejected in sufficient enough numbers as to change the results of the razor-close outcome.

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