Thursday, September 04, 2008

Powder Mountain Town Issue Heading to Court

An overbearing and arrogant developer opts to roll the judicial dice

The Standard-Examiner reports this morning that the Powderville dispute has now landed in a venue in which everyone following this story knew it would eventually wind up: a court of law. We incorporate below the lead paragraphs of this morning's Di Lewis story:

OGDEN — Powder Mountain is determined to get a town council and mayor.
The Powder Mountain petition sponsors filed litigation Aug. 26 against Weber County in the 2nd District Court aimed at getting the county to approve a list of appointees for Powder Mountain government, according to a news release issued Wednesday.
Powder Mountain spokeswoman Maura Carabello said, “We’re asking the judge to order the county to follow the law.”
Those readers who haven't already seen this morning's Std-Ex hard-copy edition can read the full story here:

"Powder Mountain town issue heading to court"

From our point of view this development presents a golden opportunity for the County Commission and Powderville citizens (if any of them decide to file "amicus briefs" and/or "join" as parties to this lawsuit) to press for a statutory interpretation of the now grandfathered SB-466, which is really quite vague as to the prescribed process for appointing a mayor and town council. Moreover, it presents the first opportunity to test the constitutionality of this ill-designed statute itself-- something we've all been waiting for.

Our compliments to the Weber County Commission for sticking to their guns, and refusing to rubber stamp the developer's hand-picked list of developer sycophants and stooges. As this morning's article reports, the Commission knew full well this matter would wind up in court; and we'll go on to speculate that the 2d District Court ought to provide the defendant, Weber County, a fair and friendly judicial venue.

And what say our gentle readers about this latest development?


Curmudgeon said...

The problem here is the case is being brought by the Powder Mountain petitioners, and so will be heard primarily on the grounds they raise in their suit. If the Utah court rests its decision on the language and intent of the Developers Dream Bill, Weber County will I suspect lose.

The article hints that other residents of the now-created town of Powder Mountain [which creation the WC Commissioners ratified, thus recognizing the legitimacy of the law] may bring a suit against the developers/petitioners challenging the constitutionality of the law as violating the Utah constitution [and possibly the US Constitution as well]. These are not the grounds on which the petitioners' case will be heard, and the WC Commissioners already conceded much of this ground when they approved on the creation of the Town of Powder Mountain.

Judges however, as well all know well enough, are often unpredictable and so it would be foolish to predict with certainty the outcome of the pending suit. But if the case is to turn on grounds the petitioners raise in their suit, the outcome is not likely to be good for Weber County. Only if a challenge is made against the Developers Dream bill on constitutional grounds is there, I think, a significant chance of the County winning. But mounting such a challenge can be... absolutely will be... a very expensive proposition for individual citizens. It would have been far better had Weber County's Commissioners found their courage sooner, when they were asked to ratify the creation of Powder Mountain first came before them, and had they launched a suit on behalf of the County to challenge the constitutionality of the law on its face.

We shall see....

Larry Zini said...

While I agree with curmudgeon on the WC Commissioners stepping up earlier, I feel that as with any lawsuit comes discovery for both sides. If any connection or evidence of financial gain for the Cobabe family is found tied to the creation of the resort, it could cause the entire house of cards to collapse.

RudiZink said...

Nope, Curm. Now that litigation is comenced, Weber County is free to assert all available affirmative defenses, which would arguably include defenses based on the state or federal constitutions.

Furthermore, the rules of civil procedure provide that Weber County can file their own conterclaims, incorporating any causes of action which the commissions attorneys could assert against the developer.

Morever, the County could be barred in any future legal action (federal court, for instance) from raising any defenses or claims which could have been raised in the 2d District Court, under the principles of estoppel and/or waiver, so it's likely that Weber County will put all issues on the table in this 2d District Court action.

There's no way the developer's original complaint will narrowly define the issues in this case, so long as Weber County is serious about litigating this matter.

And Larry's right... other issues may arise during the discovery process, which could necessitite the filing of amended pleadings.

Monotreme said...

I know that some potential Powderville POWs (sorry, meant "residents" but misspelled it) don't much like her, but I've met Monette Hurtado, and I think she will be a formidable opponent in court. Rudi, do you know if she will be involved in this, or are they going with outside counsel?

danny said...

I think it's great the county commissioners are standing up on this issue. They seem to be trying to address a difficult issue left to them by the legislature as well as they can.

One supposes the judge can determine legislative intent from the fact that the legislature revoked the law in its very next session!

Perhaps the legal process will drag on for a year, at which time the Powderville residents can peacefully elect their own representatives (novel concept) and all will be well after all.

Gerry said...

What if this case ends up with the same Godfrey activist judge who slam dunked the woman who tried to sue over Godfrey breaking the election laws and got it shoved down her throat including having to pay Godfrey's legal fees?

All judges are not created equal and there are some,like the above mentioned, who apparently could not care less about justice and a fair and impartial hearing.

frankc said...

By all means leave the constitutional arguments out of this part of the dispute. Why?

A. They are clearly ancillary to this question, and probably wouldn't be heard, anyway.
B. This case is a dead-bang loser for the County. This part of the bad statute is crystal clear, not ambiguous in any way, and the County is in violation of it. Period. Do not attach the constitutional arguments, which are meritorious, to a loser case.
C. The constitutional arguments are much better asserted by the affected residents than by the County, and by experienced outside counsel than by the County's crack legal staff who, word has it, don't really see any constitutional problem with HB466, anyway.
D. The constitutional issues should be litigated in Federal court, not Utah State court, which has never seen a Utah statute it didn't like. A proper ruling on HB466 will likely only come out of the 10th Circuit in Denver.
E. For the residents to argue their case in the form of amicus briefs, if they are even allowed to do so, is exceedingly weak, not befitting the seriousness and merit of the constitutional issues.
F. If the constitutional issues are raised by the County and go down in flames with the rest of its case, the reidents will almost certainly be barred from raising them a second time, by res judicata or collateral estoppel.

Curmudgeon said...


Think you're right, with one possible caveat. Citizens affected by the Developers Dream Bill [by having their right of representation via voting for town officials eliminated by legislative fiat] would have better standing to bring a case on constitutional grounds, but I wouldn't dismiss out of hand their raising state constitutional grounds in state court as well as federal ones in federal court. There have been several cases decided in the past decade that turned on provisions of state constitutions, which often have stronger guarantees of some liberties than does the US Constitution. But whether that's true of Utah's constitution, I do not know.

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