Tim Morgen thought he would be gearing up for battle at the ballot box this fall, after turning in the required number of signatures to get two initiatives on the November ballot in Wellington, a Larimer County town of about 10,000 people. Instead, he and his group are preparing for a fight in court with the local government.
According to Morgen, Prosperous Wellington, a pot industry-funded organization pushing local measures to legalize retail marijuana sales and taxes in Wellington, had collected the required signatures — under 400 per initiative — by the August deadline for two proposals. One called for opening Wellington for medical and recreational marijuana, while the other asked voters to approve a retail pot sales tax in order to comply with the Taxpayer Bill of Rights, or TABOR, which requires voters to approve any new tax imposed by a local or state government.
However, neither proposed ordinance is on the ballot this year. The retail measure is now the focus of a lawsuit in Larimer County District Court, and the sales-tax question was pushed back to November 2021 because of a TABOR loophole.
Prosperous Wellington began collecting signatures for the ballot measures in July, Morgen says, but he felt uneasy about the town's approach from the start. For starters, Wellington issued too few collection packets when he began collecting signatures, and was unresponsive throughout the filing process. The town also failed to educate voters about the proposal, he adds.
"The [ballot proponents] did what they needed to do, and the clerk of the Town of Wellington has to issue a statement of sufficiency declaring that both questions were eligible for the ballot," explains Prosperous Wellington's attorney, Mario Nicolais. But that statement never came, and "since then, Wellington has taken no steps to make sure that the election takes place," he adds.
In fact, in August the Wellington Board of Trustees voted not to include the marijuana questions on the town's mail-in ballots for the national election, and instead decided to put them on a separate, local mail-in ballot. And then on September 8, petitions were filed against the initiatives on the last eligible day to oppose them. One of those petitions was filed by Wellington Town Board Trustee John Jerome, and the other was filed by Melissa Whitehouse, wife of Wellington Trustee Tim Whitehouse.
A hearing officer hired by the Town of Wellington ultimately agreed that the proposed question over retail sales was insufficient because of technical conflicts with statutory language, but said the sales-tax measure could proceed — only town officials now argue that it's too late to include the tax question in this year's election. State law requires any vote connected with TABOR to take place in November, and that would put the pot sales-tax question on the ballot over a year from now.
"A tax measure like this can only be voted on in November, whether that's a general election or an odd-year election," Nicolais says. "As of right now, the sales-tax initiative should've been on the ballot this year. They're trying to shove it off as a mistake, and that's too bad, because we can't hold an election."
Wellington Town Clerk Krystal Eucker didn't respond to requests for comment, but City Attorney Brad March argues that saying the town forgot to alert its residents of the marijuana ballot measure is "a misstatement."
"Part of what the town is concerned about is voter confusion," he adds. "So now you have a protest, and we have a hearing coming up, and that won't be resolved, so there was just no way this was going to make it on this year's ballot."
According to March, a hearing officer validated the protests on two grounds.
"The first one was that a report was due when it was filed, and the report was found to be insufficient," he says. "It's a statutory-required report that it should be filed at the time of the initiative. The second issue was that there were a series of administrative, as opposed to legislative, provisions in the ballot measure. In this case, there were just general concerns with the form of the ordinance. It cited some incorrect statutes and other things."
Prosperous Wellington is suing the Town of Wellington over its decisions to not put the retail marijuana question on the ballot and to hold the pot sales-tax question until 2021. The group now hopes to see both measures voted on during a local election in January, but if the lawsuit over allowing dispensaries in Wellington doesn't go in the group's favor, residents could be voting on a marijuana sales tax in a town that still doesn't allow marijuana businesses.
Other groups pushing similar retail marijuana sales measures in Buena Vista, Broomfield, Lakewood and Littleton were all successful in getting their questions on their ballots. And Nicolais doesn't ignore the importance of including marijuana questions in presidential elections, which see a far higher turnout than local elections, especially among young people.
"Turnout is very different during these elections, so we certainly have this situation now," Nicolais says. "The Board of Trustees understands that, as well."
Opening briefs for the lawsuit are due in Larimer County Court in twenty days, with a resolution coming as soon as December, according to Nicolais.
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