Heartland Park depositions to go forward, but under seal

Jayhawk Racing will participate in the case surrounding a petition to force a vote on the purchase of Heartland Park, and a last-minute motion from the city to stop depositions scheduled for Thursday morning fell short — though the depositions’ content will be sealed.

A hearing Wednesday afternoon to determine whether Jayhawk Racing should be allowed to participate in the city’s lawsuit related to a petition filed by Topekan Chris Imming expanded in scope unexpectedly. The hearing touched on that issue and also what, if anything, Imming’s attorney should be able to ask city and county employees in depositions scheduled for 10 a.m. Thursday.

Jayhawk Racing, which is owned by Ray Irwin, owns Heartland Park. The case centers around whether a petition Imming circulated to force a vote on the purchase of Heartland Park is invalid because of what the city alleges are flaws in its language.

Kevin Fowler, attorney for Jayhawk Racing, said the business had no choice but to intervene after Imming’s attorney, R.E. “Tuck” Duncan, filed a motion to challenge the city’s right to bring the suit. Fowler told Judge Larry Hendricks that Jayhawk’s rights were affected if the voters decided not to purchase Heartland Park.

“Because of the timing, (a vote) in and of itself may cause Jayhawk Racing to go out of business,” he said.

Duncan said Jayhawk’s argument was based on what the voters might decide to do, not whether Imming’s petition was valid.

“They’re whining about the fact that they could lose some money if the vote goes forward,” he said.

Hendricks ruled that Jayhawk should be a party to the suit, based on their concrete interest in its outcome, and the fact that no one would represent them if the city’s portion of the suit were to be dismissed.

Attorneys representing the city of Topeka filed objections to Duncan’s request to depose county counselor Rich Eckert, Mayor Larry Wolgast, city manager Jim Colson, city attorney Chad Sublet and city administrative and financial services director Doug Gerber beginning Thursday morning. Lawyer Curtis Tideman said Duncan had set out wide parameters for potential questions, which could reach into political issues or areas covered by attorney-client privilege.

Duncan said he needed to determine whether the city council reached a “consensus” in executive session without conducting a public vote.

“What (Duncan’s) telling you is he’d like to go fishing for an open meetings violation,” Tideman said.

“I’m not fishing,” Duncan responded.

Hendricks ruled the depositions could go forward, and that he would rule on whether any questions were out of order and whether any information gained should be used in the hearing on the petition’s merits. He also put a protective order on the depositions, preventing their public release.