Read Part One
As the testimony unfolded — or perhaps "unraveled" is a better term — at the September 27 Town Council meeting, it became clear that Vivian and Steve Rader had been unhappy participants in attorney Bob Cole's effort to generate a "stipulated procedural order" for the planned Walmart appeal hearing.
Right in the midst of the negotiations, Vivian Rader had left town to attend a previously scheduled White House-sponsored citizens panel discussion; she'd been unable to communicate with attorney Cole in a normal manner — via home phone and email — and it was clear from her testimony that she had been generally displeased with the way the negotiations had unfolded. Ms. Rader referred to one instance where she and her husband were instructed (presumably by attorney Cole?) to make themselves available at 2pm on Monday for a planned phone call.
"There was no dialogue, there was nothing to ask us if we were available at that time. Steve could not change his schedule; I stated that I would appear under protest. I have a recording of that call, and for [Mr. Cole] to say that this [negotiation] was all 'amicable' can be proven otherwise... because I was furious about what they were trying to impose upon me, and I was constantly having to defend... I could not even hear the Walmart representative when he talked, the call was so broken..."
"And it's not our fault that the rules and procedures [for a Planning Commission appeal] weren't already in place. That, I think, is the crux of the matter. How can we be bound by procedures that weren't in place at the time we needed to file the appeal?"
It also became clear that the Raders were proceeding without the assistance of an attorney of their own in their attempts to appeal the Town Planning Commission's August 31 approval of the Walmart development in Aspen Village. The Raders were, in other words, acting "pro se", a legal term for a person who is acting as his or her own attorney. One translation of the Latin term pro se is, "for oneself."
Lawyers don't come cheap, as the Town government could tell you. Between 2005 and 2011, the Town of Pagosa Springs spent approximately $531,000 on attorney fees, according to the Town's budget documents. The 2012 budget has a line item worth $80,000 for this year's attorney fees. I'm not sure if that is going to be enough money for the 2012 budget year, however. Bob Cole has been making regular trips to Pagosa Springs from his Denver office, in support of Town manager David Mitchem's ongoing effort to get a Walmart store installed within the Town limits.
And now, this pesky pro se appeal by Vivian and Steve Rader.
Here in America, our state and federal courts are experiencing an increasing proportion of pro se litigants over the past decade or so. According to the National Center for State Courts 2006 report, estimates of the pro se rate of family law overall averaged 67% in California and 73% in Florida's large counties. In San Diego, for example, the number of divorce filings involving at least one pro se litigant rose from 46% in 1992 to 77% in 2000.
From what I can tell, the numbers are somewhat lower for Colorado — but still increasing.
In the U.S. Federal Court system for the year 2010 approximately 26% of actions filed, 93% of prisoner petitions and 10.5% of non-prisoner petitions were filed by pro se litigants. Defendants in political trials tend to participate in the proceedings more than defendants in non-political cases, as they may have greater ability to depart from courtroom norms to speak to political and moral issues.
I wonder if the Walmart appeal could be classified as a political trial? Certainly, the case brought by the Raders is — at its heart — about the way political power is distributed within the community of Pagosa Springs, where a Town Planning Commission has allowed the largest retail development in Pagosa history to be placed directly across the street from a middle-class residential area. A careful reading of the Town's Land Use and Development Code would suggest that such a design decision is illegal under the Town's own laws.
But the Town Council and Town Planning Commission have access to an $80,000 attorney's budget line item, to help "clarify" the laws that don't fit a particular situation.
On top of that, the Town invited the Walmart Corporation to get its legal team involved in the Raders' appeal. Walmart, it appears, has considerable experience defending itself in court. According to Forbes magazine, Walmart sees about 5,000 lawsuits filed against it every year. That's 17 lawsuits every day.
Meanwhile, we have to wonder about the wisdom of Don Volger and his fellow Town Council members, at the September 27 Council meeting. Attorney Cole had spent at least a few billable hours negotiating "Stipulated Resolution 2012-15" — the procedural order that would have governed the upcoming appeal hearing — while getting both Walmart and the Raders to sign off on the procedures. In other words, the whole point of Mr. Cole's billable hours was to end up with an 'agreeable' appeal process.
When it became apparent that Vivian and Steve Rader were incensed by the use of their signatures on a version of a document they had never signed and the presentation of those signatures to the Town Council, and were also unhappy with the rushed process of developing the stipulated resolution, Council member David Schanzenbaker made an obvious suggestion: take a step back, slow down, and take the time needed to get an 'agreeable' agreement.
"So, all of this discussion is brand new to us," Mr. Schanzenbaker noted. "The information that we received for this meeting was that both parties had agreed to this process.
"I would prefer to see to it, that all parties agree to the [appeal] process, since we don't have one. So I would suggest that we continue this discussion until our next meeting to allow the parties to come to some sort of an agreement? If they can't, within the next two weeks, then maybe we could go forward with the resolution without their agreement?"
Mayor Ross Aragon responded in his typically mayoral fashion.
"It may be new to you, but it's not new to us. I mean, we been hearing about it for a long time, in daily correspondence with Mr. Mitchem and Bob Cole. All you have to do is look at the packet. I would not want to continue it."
A few minutes later, on a motion by Council member Don Volger, six members of the Town Council voted to remove the Raders' (fraudulent?) signature page from Resolution 2102-15, and then proceeded to approve the "Stipulated Resolution" without the word "Stipulated" in its title.
Perhaps, in a time of falling sales taxes — July receipts had fallen about 2 percent compared with 2011 — our Town government is in a rush to get a Walmart store up and running.
Whether the rush to get things done without too much thought, so typical of the Pagosa Springs Town Council, will actually end up delaying things for several months — or years — we will have to wait and see.