Attorney Lindsay Fischer filed a 25 page response yesterday in his lawsuit against the City of Colorado Springs, which alleges that the city’s plan to mortgage the Police Operations Center and Fire Station 8 and use the proceeds to pay for the proposed retention package for the U.S. Olympic Committee is illegal.
Fischer filed the lawsuit last month and District Judge Scott Sells issued a “minute order” on Sept. 10 in which he gave the city until Sept. 15 to file a motion for judgment. The order also gave Fischer until Sept. 22 to respond to the city’s motion.
The judge wrote in the order that, “Over objection of Plaintiff, the Court adopts (city attorney White’s) written description of primary legal issue before the court. ‘May the city without voter approval enter into an annually renewable lease purchase agreement providing for the issuance of certificates of participation?’”
Sells also wrote that he will attempt to rule before Sept. 24, one day before the deadline for the city to either issue certificates of participation to finance the USOC deal or renegotiate the time frame.
Fischer contends in his original filing that the plan, which calls for the city, acting through its Public Facilities Authority, to issue debt in the form of certificates of participation secured by the two buildings, will create a de facto long-term debt, and therefore requires voter approval.
In its response, the city argued that the issuance of the COPs complies with applicable law in all respects and that the debt incurred is annually renewable by City Council. Therefore it does not constitute a long-term obligation of the city and does not require voter approval.
In his response, Fischer makes several arguments and cites multiple precedents that purport to show that these COPs are COPs in name only. Fischer also formally objects to the court’s definition of the central issue, calling it “simplistic,” and to the apparent deference shown by the court to the city’s deadlines, since “(such deadlines) are by private contract and subject to modification.”
Fischer’s principal contentions are:
In his response, Fischer frequently attacks the city’s assertions and claims.
Referring to the city’s apparently interchangeable use of the terms “annually renewable lease-purchase agreement” and “annually renewable rent,” Fischer says that “… the denial of realities in the defendant’s documents raise a question as to whether the defendant’s counsel have much familiarity with the documents, this particular deal and the area of secured financing in general.”
Later, noting “omissions” in the facts as presented to the court by the city, Fischer complains about “the skinniness and misdirection in the defendants’ facts.”
Fischer said he hasn’t decided whether to appeal an adverse ruling.
“If I did so, I’d appeal directly to the (state) Supreme Court under Rule 21 (which permits direct appeals in certain cases),” he said. “But whether I appeal may depend upon the content of the judge’s ruling. Appeals are very expensive – and (while I’ve been working on this matter) I haven’t been covering my overhead. It’ll cost $225 just to file the appeal.”