Tag Archives: local politics

Increased Fines for Truckers on Indy Pass

Aspen truck drivers of extended tractor-trailers will likely be facing major fines for driving up Indy Pass after the Colorado State Senate votes on a proposed bill in a few days. If a vehicle is over 35 feet long, the fine would be $1,000. The amount increases to $1,500 if the vehicle blocks traffic.

As Pitkin County Sheriff Joe DiSalvo is reported to have said before the Senate Transportation Committee yesterday, truck drivers often disregard restrictions over mountain passes because the fines are less than the savings in gas and time. When I worked in the Eagle County DA’s Office, we frequently saw truckers from companies like Fed-Ex unsuccessfully running the gauntlet up Vail Pass. There were so many closures of Vail Pass from jackknifed semis during the winter that they raised the fines and employed other restrictions to make sure truckers could safely make it over. While I-70 and Vail Pass are not without their problems, the issue of stalled semi-trucks has been reduced significantly.

More information about the proposed Indy Pass bill can be found here.

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Letter to Town of Basalt

The Aspen Daily News has a story today on the revised demands of the Workers for Justice and Diversity in Basalt. Yesterday I posted WJDB’s official statement.

The letter I wrote yesterday to the attorney for the Town of Basalt, Tom Smith, is below in its entirety. One thing to note is that I am ethically prohibited from contacting Town Manager Mike Scanlon or others at Town Hall directly because they are represented parties.

Tom,

It is disheartening to read in the Aspen Daily News today that the Town has decided to punish our clients for hiring an attorney. There is no ethical, moral or legal principle to support the Town’s refusal to speak with our clients. The glaring problem with that strategy is that Section 16-418 requires relocation assistance regardless of whether a resident is represented by legal counsel. If the Town refuses to pay our clients, then 45% of their homes will need to be replaced.

As I’ve repeatedly said and wrote, we’re not a law firm that shoots first and aims later. We do not want to file a lawsuit against the Town or the Roaring Fork CDC. However, there are a number of legal issues that arise because of the Town and the CDC’s own actions. For example, there is a potential claim of promissory estoppel for our clients. And there is also a possible ex post facto issue with Section 16-418 that we have yet to fully examine. That said, we have held off on drafting a complaint with the hopes that the Town would work with us. The below assumes that the Town will realize its mistake in cutting off communication with our clients and work with us to find a solution for this unfortunate situation.

First, Fidel Castillo and Maribal Canas have mobile homes that can be moved. The rest of the residents are in trailers that, for various reasons, cannot be relocated. We look forward to working with the Town to find vacant land for Fidel and Maribal, and proper alternative housing for the rest. As you know, Section 16-418 has a presumptive formula. To date, the Town has taken the position that there can be no deviation from that formula. However, that position is not supported by the language of Section 16-418.

The value of the home, whether it can be moved and who pays for the relocation or demolition of a home are certainly relevant factors. They aren’t the end of the analysis. The Town Council can consider “unusual circumstances” that justifies additional compensation. See, e.g., Section 16-418(b)(1)(B). We are in the process of putting together our reasons why each resident deserves additional compensation, but as a general matter, we can say that these reasons will include being elderly and having a more difficult time moving, having children of school-age, having long-term ties to the Pan & Fork, having larger families that make moving to suitable other housing difficult, and other similar circumstances. Those reasons are separate from the issue of whether they were promised alternative/replacement housing that has yet to come to fruition. The very fact that these persons have made the determination to seek legal representation and to let the Town know that they do not believe the formula to be sufficient may constitute “unusual circumstances” in and of itself.

You have previously stated in the paper that the Town has a moral, ethical and legal obligation to treat our clients the same as previous residents who have already relocated. Your statement is contradicted by the Town’s statements that they recognize that each individual has their own particular circumstances. It is also contradicted by the Town’s position as stated in today’s Aspen Daily News. As a practical matter, it makes no sense to treat each person the same, not least of all because the persons that previously accepted relocation assistance may have done so without full knowledge of their other options. From our view, getting this matter resolved in a cooperative fashion will require an acknowledgement by the Town that they need to view each resident as a person and not just part of an arbitrary equation.

Second, all of our remaining clients have children that are currently in school. One of our chief concerns for these children is that the threatened eviction on April 1 comes at a time when school will not yet be out of session. Switching to another school that late in the year will unnecessarily inflict a severe hardship or even potential impossibility on these children’s ability to maintain their all-important education. Certainly, when the Town signed the construction contracts for April 1, it knew or should have known that it would have severely adverse impacts on these children. For this reason, we request that, at the very least, the Town agree in writing to extend the leases or to refrain from attempting eviction procedures until Friday, June 13, 2014, which is 9 days after the end of the school year. This will give these children and their families sufficient time to first concentrate on their education and then prepare for moving, if they must move at that point. We also believe that this school-year issue raises issues of “unusual circumstances” that could be addressed through the dictates of the ordinance.

As repeatedly stated, both in this missive and elsewhere, we do not want to engage in needless litigation and truly hope to work with the Town. However, in the event that our clients are forced to fight their evictions, one key component of that battle will be the school issue. Regardless of whether litigation is necessary, the court of public opinion will likely not look too kindly on the Town’s decision to evict children during the school year.

As you are aware, in any action under the Mobile Home Park Act (including attempted eviction), the prevailing party is entitled to attorneys’ fees and costs.  Given that our clients will have compelling defenses to an eviction action, including an equitable or promissory estoppel theory and based on the issues raised by interruption of the school year, the Town will have to consider its potential exposure to fees and costs. It is our understanding that the Town paid a significant amount of attorneys’ fees for its battle with the Aspen Times; we hope the Town does not make the same mistake twice and waste funds that would otherwise be used for affordable housing or relocation assistance. Of course, none of that will be necessary if we can find common ground and help these people move in a fair and timely manner.

Third, I have a number of concerns with the attached “Weekend Update” from Mike Scanlon. The suggestion that any of my clients or I are unwilling to work with the Town is inaccurate. If anything, your lack of response to my overture to settle last week and combative correspondence indicate that it is the Town that refuses to work with my clients for no other reason than they question the Town’s methodology. Moreover, Scanlon says that the residents will be offered less because they have hired us. That statement is puzzling because, as noted above, there is nothing in Section 16-418 or the leases you provided or elsewhere that supports offset. If you have support for the concept of offset, please let us know.

Contrary to the representations that Mr. Scanlon made to the Aspen Daily News and you appear to have made to the Town Council, litigation is the last resort for our clients and would only be necessary if the Town remains as inflexible as it appears to us. Cooperation and compromise are two-way streets and right now we feel that we are walking the wrong way down your one-way street. As appearances may be deceiving, please let us know if we are reading the situation incorrectly.

Most concerning is the disconnect between Mike Scanlon’s statement that he would stake his professional reputation on getting our clients into affordable housing and the Town’s commensurate refusal to reduce that promise to writing. As you know, a promise need not be in writing and we believe that Mr. Scanlon’s statement to that effect (and others like it, either in the press, in Town Council meetings, or directly to our clients) constitutes a promise, the breach of which is actionable.

Again, since we want there to be no confusion, it is not our first or even second intention to engage in litigation. On Friday, I asked you to provide me the contracts for Jose Ramos. We are trying to advise him of what he’s signing so he can do what the Town wants: voluntarily leave the Pan & Fork. It is completely illogical for the Town to now refuse to work with us to help Mr. Ramos move. We hope the Town will reconsider it’s position so that at least Mr. Ramos and his family can start a new chapter in their lives.

In sum, our representation of WJDB is centered on one principle: to make sure that our clients are being treated fairly and are given the best help possible under the circumstances, whether monetary or otherwise. You and the Town appear to view our involvement as a threat, but our presence should not be concerning to the Town unless the Town is attempting to act in an untoward manner. By failing to consider alternatives, the Town is creating an issue where one need not exist.

We understand that the position of the Town is that no promises were made to our clients regarding affordable housing. Our clients certainly do not agree with this position, but perhaps that is beside the point for the moment. The Town is acting in a way that is consistent with a promise to provide affordable housing or relocation assistance. If we can capitalize on that momentum  and work together to determine solutions that meet the disparate needs of our clients, we will be able to avoid conflict and move forward in a way that is beneficial to everyone.

Best, Ryan

Workers for Justice and Diversity in Basalt Remain United

As I posted at RKV Law, the below is a press release from the WJDB:

Workers for Justice and Diversity in Basalt Remains United in Demanding Relocation for Residents of the Pan & Fork Mobile Home Park: Town’s Current Plan Expels Students Right Before the End of the School Year.

Workers for Justice and Diversity in Basalt remains united as we continue to work towards the goal that first brought us together: a fair replacement housing arrangement in Basalt that meets the needs of our families. Our biggest priority is the health and safety of our children. To be forced out of our homes at the end of the school year places a serious hardship on our children, who are already struggling with the stress of not knowing where we will live in the months to come. It is critical that our children be able to finish the school year in Basalt without undue hardship, so that their education is not unnecessarily disrupted by being forced to change schools so late in the academic year. We hope that the Town of Basalt realizes the serious consequences for students of being evicted in April, and instead allows us to remain in our homes at least until the end of the school year.

As a group we respect the decision of Ralph Vazquez, one of our founding members, to take a different path. For the rest of the group, the best decision for our families is to continue with legal representation from RKV Law, to advise us of our rights as we seek replacement housing. We hope to work with the Town of Basalt to agree upon a relocation plan so that no family is forced out of our community and home of many years, and so that our children’s health and education are not forcibly disrupted.

Our trust in the Town of Basalt was deeply shaken when the promise to relocate us into housing within Basalt was broken. The Town rushed the removal of Pan and Fork residents to start construction on the river. The Town needs to instead prioritize the wellbeing of our families and children by ensuring we have secure homes in our community, and allowing us to remain in our current homes at least until the end of the school year. As we seek a fair solution, we hope we can learn to trust the Town of Basalt again.

– Workers for Justice and Diversity in Basalt

Sheriffs Who Refuse to Enforce the Law

The NYT has an article on Colorado sheriffs who are refusing to enforce Colorado’s recent gun-control laws. Garfield County Sheriff Lou Vallario is part of that group.

Vallario has posted his position online at the Garfield County Sheriff’s website in something he calls “Just the Facts.” He writes that he took an oath to defend the Constitutions of the U.S. and Colorado, “not to be a part of destroying them.” And he concludes that he is “fairly certain” that the Constitution is all about personal safety and reducing gun crimes.

Vallario overlooks the fact that the Constitution is based on a concept of checks and balances. Law enforcement officials cannot decide whether a law is constitutional — that authority is reserved for the judicial branch.  Arapahoe County Sheriff Grayson Robinson understands the separation of powers espoused by Montesquieu and the Founding Fathers. On the topic of enforcing gun-control laws, he wrote:

“Public safety professionals serving in the executive branch, do not have the constitutional authority, responsibility, and in most cases, the credentials to determine the constitutionality of any issue.”

Vallario’s refusal to enforce laws he personally disagrees with is simply wrong. There is a reason for the title “law enforcement.” Boulder County Sheriff Joe Pelle sums up the argument against Vallario and his cohorts nicely:

“A lot of sheriffs are claiming the Constitution, saying that they’re not going to enforce this because they personally believe it violates the Second Amendment. But that stance in and of itself violates the Constitution.”

People can disagree about the efficacy or difficulty of enforcing a particular law. That debate  must be encouraged and be part of the public discourse. It is a key part to our political process. But the issue of whether a law is unconstitutional cannot be unilaterally decided by a member of the executive branch, e.g. the Garfield County Sheriff. Vallario’s stance calls into question the idea of checks and balances and the Constitution.

Is it OK to Kill Cyclists?

We don’t have as much of a conflict between cyclists and vehicles in urban areas like NYC or San Francisco, but this article is worthy of a read on a Sunday for those in Colorado. It highlights the friction between the intersection of law, people’s perceptions and stereotypes and increase in people cycling. That friction is much more prevalent in Boulder than, say, Aspen, but the theme of the article is nevertheless interesting for all those that drive a car and occasionally get on a bike.

Marijuana Tourism

Interesting article in the Huffington Post about how Colorado ski towns are handling the legalization of recreational marijuana. There will be retail pot shops in Aspen, Crested Butte, Breckenridge, and Telluride, but not in Vail.

The article cites a number of facts on marijuana that are of interest:

  1. Colorado received $5 million in tax revenue from medical marijuana in 2011.
  2. Inmates in prisons for marijuana-related crimes cost $1 billion annually to US taxpayers.
  3. Enforcing the prohibition on marijuana, including lost tax revenue, costs the U.S. $41.8 billion.
  4. The market for illegal marijuana in the U.S. is estimated at $36 billion per year.
  5. In July of 2011, there were more medical marijuana dispensaries than Starbucks coffee shops in Denver.

I’ve previously written here about Amendment 64 and the THC DUI Bill.

Guns, ROs and DV – Oh My!

The NY Times has a comprehensive article on the confluence of the laws on domestic violence, restraining orders and gun restrictions. It is a worthy read.

In Colorado, there is a proposed bill that would prohibit a defendant from possessing or controlling a firearm when they are charged with a crime where the underlying factual basis contemplates domestic violence. “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. C.R.S. 18-6-800.3(1). DV also includes “any other crime against a person or against property, or any municipal ordinance violation against a person or against property when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” Id. What’s this term “intimate relationship” mean? By legal definition it is “a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.” Id. DV is not an independent criminal offense; rather it is a sentence-enhancer. A defendant is most often charged with harassment, assault, trespass or criminal mischief with DV. As part of the sentence, a DV offender will be required to do numerous anger-management classes among other things.

The proposed bill would also apply to those subject to a civil protection order, even when there is no criminal charge.  The new bill would require a defendant to either sell or transfer all firearms in their possession while the restraining order is in effect. These restrictions could last as long as several years if a DV offender is sentenced to probation as part of a plea or conviction. For a permanent civil restraining order, it would mean that a person would be unable to possess a gun indefinitely. This would have wide-ranging implications in Colorado because of the likelihood of enforcement by local law enforcement officers.

There has always been a question on the legality of possessing a gun during the pendency of a case where a restraining order is involved. In Colorado, a restraining order is automatically entered against a defendant in a criminal case where DV is involved. Alternatively, people can apply for a civil restraining order from the Court in accordance with C.R.S. 13-14-102. My advice has always been for a defendant charged with DV to have a friend or family member take possession of a firearm because of the Brady Handgun Violence Protection Act. While prosecutions for a violation of the Brady Act are rare, I’d rather not have one of my clients staring down the barrel of a separate case brought by the US Attorney’s office that could easily be prevented. The proposed Colorado bill would go one step further and require documentation of that transfer or sale.

Stay tuned while the politics play out.

UPDATE: This bill was signed by Gov. Hickenlooper yesterday, March 20.

Additional Judge for both the 5th and 9th JDs

Yesterday, Chief Judge for the Ninth Judicial District, James Boyd, sent out an email to a number of attorneys announcing that Governor Hickenlooper signed the legislative bill adding a judge to the 9th J.D. last Friday, March 8. The same bill adds a judge for the 5th J.D. as well. I wrote about the proposal earlier in January here.

The Colorado House of Representatives voted 60-2 in favor of the bill, and it passed unanimously in the Colorado Senate. The current caseload for judges in these two judicial districts is simply overwhelming. Relief cannot come soon enough. Judge Boyd indicated that the new position would start around July of this summer. A public notice inviting applications will go out this week.

It will be interesting to see who throws their hat in the ring. Martin Beeson is expected to be a candidate in the 9th J.D. In the 5th J.D., it’ll depend on whether Dana Christiansen will apply. He’s in charge of the Public Defender’s Office for the 5th and was a finalist when Karen Romeo was appointed by former-prosecutor and then-Governor Bill Ritter.