brief filed by citizens supporting speers

8/13/2019 Brief filed by Citizens Supporting Speers

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SUPREME COURT, STATE OF COLORADO

2 East 14th

Avenue

Denver, Colorado 80203

Appeal from the District Court, City and County of

Denver, Colorado

The Honorable Robert S. Hyatt

Case No. 2013CV34991

Plaintiffs-Appellees:

Nicole S. Hanlen, Lynn D. Ussery, James H. Joy, JuneMarie NcNees, Kelly L. McNees, Karen Marquez, Meagan

Gabaldon, and David J. Rodenbaugh,

v.

Defendant-Appellant:

Scott Gessler, in his official capacity as Colorado Secretary

of State,

and

Defendants-Appellees:

Karen Long, as Clerk and Recorder for the County of

Adams, State of Colorado; Jim F. Candelarie, as Clerk andRecorder for the City and County of Broomfield, State ofColorado; and Frances E. Mullins, as Designated Election

Official for the Adams 12 Five Star School District.

COURT USE ONLY

Attorneys for Plaintiffs-Appellees

Edward T. Ramey, No. 6748Martha M. Tierney, No. 27521

Heizer Paul LLP

2401 15th

Street, Suite 300

Denver, CO 80202

Phone: (303) 595-4747Fax: (303) 595-4750

E-mail: [email protected]


Case No.: 2013SA306

BRIEF OF PLAINTIFFS-APPELLEES


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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that the brief complies with C.A.R. 28(g). It

contains 5,312 words.

Further, the undersigned certifies that the brief complies with C.A.R. 28(k).

For the party raising the issue:

It contains under a separate heading (1) a concise statement of the

applicable standard of appellate review with citation to authority; and (2) a citation

to the precise location in the record (R.__, p.__), not to an entire document, where

the issue was raised and ruled on.

For the party responding to the issue:

It contains, under a separate heading, a statement of whether such party

agrees with the opponents statements concerning the standard of review and

preservation for appeal, and if not, why not.

I acknowledge that my brief may be stricken if it fails to comply with any of

the requirements of C.A.R. 28 and C.AR. 32.

By: s/Edward T. Ramey


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TABLE OF CONTENTS

Page(s)

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1STATEMENT OF THE CASE .................................................................................. 1

I. Nature of the Case, Course of Proceedings, and DispositionBelow ..................................................................................................... 1

II. Statement of the Facts ........................................................................... 4ARGUMENT ............................................................................................................. 7

I. Summary of Argument .......................................................................... 7II. Argument ............................................................................................... 7

A. Standard of Review on all Issues ................................................ 7B. The Secretary of States Temporary Election Rule 10.7.5 is

Directly Contrary to Controlling Statutory Law ......................... 81. The Secretary is not empowered to adopt rules which

conflict with, and are not authorized by, applicablestatutory lawand such rules are void ............................ 8

2. Principles of statutory interpretation applicable to thiscase.................................................................................... 8

3. The plain language of the statutory scheme at issue ...... 104. Further considerations in the statutory interpretation..... 14

5.

The policy behind the statutory language ....................... 17

6. Conclusion ...................................................................... 20C. Proceedings under 1-1-113, C.R.S. (2013), are not restricted

to actions brought and adjudicated prior to the day of anelection ...................................................................................... 20


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TABLE OF AUTHORITIES

Page(s)

CasesA.M. v. A.C.,

296 P.3d 1026 (Colo. 2013) .................................................................. 8, 9, 16

A.S. v. People,

312 P.3d 168 (Colo. 2013) ............................................................................... 8

Amco Ins. Co. v. Sills,166 P.3d 274 (Colo. App. 2007) ....................................................................21

Bd. of County Commissioners v. Colo. Pub. Utilities Comm.,

157 P.3d 1083 (Colo. 2007) ...........................................................................10

Climax Molybdenum Co. v. Walter,

812 P.2d 1168 (Colo. 1991) ............................................................................. 9

Coffman v. Colorado Common Cause,102 P.3d 999 (Colo. 2004) ............................................................................... 9

Colorado Ethics Watch v. Clear the Bench Colorado,277 P.3d 931 (Colo. App. 2012) ....................................................................10

Colorado Permanente Medical Group, P.C. v. Evans,926 P.2d 1218 (Colo. 1996) ...........................................................................21

Highton v. Musto,

452 A.2d 487 (N.J.Super. 1982) ....................................................................18

Huber v. Colorado Mining Assoc.,264 P.3d 884 (Colo. 2011) ............................................................................... 8

Independence Institute v. Gessler,

869 F.Supp. 2d 1289 (D. Colo. 2012) ...........................................................10

Klinger v. Adams County School Dist. No. 50,130 P.3d 1027 (Colo. 2006) ............................................................................. 8


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Meyer v. Lamm,

846 P.2d 862 (Colo. 1993) .............................................................................22

Miller International, Inc. v. Dept. of Revenue,646 P.2d 341 (Colo. 1982) ............................................................................... 8

People ex rel. Rosenberg v. Keating,

144 P.2d 992 (Colo. 1944) .............................................................................18

People in the Interest of O.C.,308 P.3d 1218 (Colo. 2013) ...........................................................................21

Qwest Corp. v. Colo. Div. of Property Taxation,

304 P.3d 217 (Colo. 2013) ............................................................................... 9

Rauschenberger v. Radetsky,745 P.2d 640 (Colo. 1987) .............................................................................23

Sphinx International, Inc. v. Nat. Union Fire Ins. Co.,412 F.3d 1124 (11thCir. 2005) ......................................................................15

State ex rel. Jackson v. County Court,

166 S.E.2d 554 (W.Va. App. 1969) ..............................................................18

Tellez v. Superior Court,

450 P.2d 106 (Ariz. 1969) .............................................................................18

Welby Gardens v. Adams County Bd. of Equalization,

71 P.3d 992 (Colo. 2003) ................................................................................. 9

Yale v. AC Excavating, Inc.,295 P.3d 470 (Colo. 2013) ...........................................................................8, 9

Statutes1-10-202, C.R.S. (2013) ........................................................................................... 2

1-1-101, C.R.S. (2013) .................................................................................... 10, 23

1-11-103(1), C.R.S. (2013) ....................................................................................21


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1-1-113(1), C.R.S. (2013) ......................................................................................23

1-1-113(3), C.R.S. (2013) ........................................................................................ 3

1-1-113(4), C.R.S. (2013) ......................................................................................22

1-1-113, C.R.S. (2013) ................................................................................... passim

1-11-201, et seq., C.R.S. (2013) .............................................................................. 4

1-4-1001(1), C.R.S. (2013) ............................................................................. 11, 14

1-4-1002(2.5), C.R.S. (2013) .......................................................................... 13, 16

1-4-1002, C.R.S. (2013) ............................................................................ 11, 13, 15

1-4-803, C.R.S. (2013) ...........................................................................................11

1-5-412(3), C.R.S. (2013) ............................................................................... 11, 14

1-5-412, C.R.S. (2013) ............................................................................................. 5

1-7-114(2), C.R.S. (2013) ......................................................................................11

1-7-114(3), C.R.S. (2013) ......................................................................................11

22-31-103(1), C.R.S. (2013) ..................................................................................10

22-31-105(2), C.R.S. (2013) .................................................................................... 4

22-31-107(1), C.R.S. (2013) .................................................................................... 4

22-31-125, C.R.S. (2013) .......................................................................................16

22-31-129(1)(b), C.R.S. (2013) .............................................................................16

22-31-129(1)(d), C.R.S. (2013) ................................................................ 12, 14, 16

22-31-129(1)(f), C.R.S. (2013) ................................................................. 13, 14, 16

22-31-129(1), C.R.S. (2013) ..................................................................................16

22-31-129(2), C.R.S. (2013) ..................................................................................21


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22-31-129, C.R.S. (2013) ............................................................................... passim

24-4-103(8)(a), C.R.S. (2013) .................................................................................. 8

24-4-106(4), C.R.S. (2013) ................................................................................2, 20

Other Authorities133 A.L.R. 319 (1941) .............................................................................................17

26 AM.JUR.2DElections358 (2013) ......................................................................17

Adams County Election Summary Report (Official Final Results), Adams County

Clerk & Recorder, athttp://www.co.adams.co.us/DocumentCenter/View/4327 .............................. 6

Broomfield County Amended Official Abstract of Votes Cast (p. 9 of 23),

Broomfield County Clerk & Recorder, at

http://www.ci.broomfield.co.us/DocumentCenter/View/6565 ....................... 6

RulesC.R.C.P. 65 ..............................................................................................................24

C.R.E. 201 .................................................................................................................. 6

Temporary Election Rule 10.7.5 ...................................................................... passim


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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Did the District Court correctly conclude that the Secretary of States

Temporary Election Rule 10.7.5 was in excess of his statutory authority and

jurisdiction, contrary to controlling statutory law, arbitrary, and capricious?

2. Did the District Court properly exercise jurisdiction over those claims

asserted by the Plaintiffs-Appellees against the present Defendants-Appellees

(County Clerks and Recorders and Designated Election Official) under 1-1-113,

C.R.S. (2013)? [Plaintiffs-Appellees respectfully submit that this issue has not

been appropriately presented to this Court by the Secretary of State.]

STATEMENT OF THE CASE

I. Nature of the Case, Course of Proceedings, and Disposition Below .

This case involves a challenge to the validity of a Temporary Election Rule

promulgated by the Secretary of State on Election Day, November 5, 2013.

The Plaintiffs-Appellees are all qualified electors in a nonpartisan coordinated

mail ballot election culminating on November 5, 2013, for director seats on the

Adams 12 Five Star School District (Adams 12) Board of Education. The Adams

12 district spans parts of both Adams and Broomfield Counties.

At 5:19 p.m. on Election Dayin the wake of a controversy regarding the

eligibility of one of the candidates for the Adams 12 Director District 4 seatthe


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Secretary of State promulgated a temporary and immediately effective Election

Rule 10.7.5, mandating as follows:

IF THE DESIGNATED ELECTION OFFICIAL DETERMINES,AFTER BALLOTS AREPRINTED,THAT AN INDIVIDUAL WHOSE NAME APPEARS ON THE BALLOT IS NOT

QUALIFIED FOR OFFICE,THE VOTES CAST FOR THAT INDIVIDUAL ARE INVALIDAND MUST NOT BE COUNTED.

On November 14, 2013prior to the completion of the vote canvass

pursuant to 1-10-202, C.R.S. (2013)Plaintiffs-Appellees filed a Verified

Complaint for Judicial Review of the Secretary of States Temporary Election Rule

10.7.5 pursuant to 24-4-106(4), C.R.S. (2013). The complaint also requested an

order under 1-1-113, C.R.S. (2013), requiring the Clerks and Recorders for

Adams and Broomfield Counties and the Designated Election Official for the

Adams 12 election to substantially comply with all statutory mandates to count the

votes and provide the requisite notifications for allcandidates in the Adams 12

election per articles 10 and 11, title 1, C.R.S. (2013)notwithstanding the contrary

directive of Temporary Rule 10.7.5. The action was brought in the District Court

for the City and County of Denver pursuant to 24-4-106(4), C.R.S. (2013), as the

determinative issue was the validity of the Secretary of States rule and the

residence of the Secretary of State is deemed to be the city and county of

Denver.[Supp. Doc. 1, Gessler App. for Review].


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II. Statement of the Facts.

The circumstances giving rise to this dispute emanate from an electoral race

between two candidatesAmy Speers and Enrico Figueroafor the Director

District 4 seat on the Adams 12 Board of Education.1Pursuant to 22-31-107(1),

C.R.S. (2013), a candidate for a director district seat is required to be a resident of

the director district that will be represented. Approximately seven days prior to the

November 5, 2013 Election Dayafter ballots had been printed and mail ballot

voting was underwaythe Designated Election Official for the Adams 12 Board

determined that Ms. Speers was, in fact, not a resident of Director District 4 due to

a recent change in director district boundaries. While there has been no judicial

affirmation of this determination to date, Plaintiffs-Appellees do not contest it.2

On November 1, 2013while the voting continuedthe Designated

Election Official sent letters to the Clerks and Recorders of both Adams and

Broomfield Counties, advising them of her determination of Ms. Speers

1Though Adams 12 has a director district plan of representation, all director seats

are elected at large per 22-31-105(2), C.R.S. (2013).

2The Court is advised that Mr. Figueroa, together with four other individuals, filedan election contest complaint against Ms. Speers in the District Court for the City

and County of Broomfield on December 4, 2013, Case No. 2013CV30306,pursuant to 1-11-201, et seq., C.R.S. (2013). Assuming that this action confirms

Ms. Speers ineligibility to hold office, any determination therein regarding Mr.

Figueroa will be wholly dependent upon the conclusions reached by this Court inthe within appeal (as discussed in the Argument below).


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ineligibility, advising that Ms. Speers would not submit a notice of withdrawal

pursuant to C.R.S. 1-5-412, and requesting the Clerks and Recorders to

withdraw Ms. Speers name as a candidate. [Supp. Doc. 3, Gessler App. for

Review, Exhibits A, B]. The Clerks and Recorders declined, and informed the

Secretary of State that they intended to count all of the votes. [Supp. Doc. 5,

Gessler App. for Review, p. 34]. Shortly before 5:00 on Election Night, the

Secretary of State convened a conference call with the Adams and Broomfield

County Attorneys and Clerks and Recorders to discuss the issuein the midst of

which call the Secretary of State announced and issued Temporary Election Rule

10.7.5. [Supp. Doc. 5, Gessler App. for Review, p. 34-35].

The immediate effect of Temporary Rule 10.7.5 was that a preliminary vote

count for Ms. Speers was not released, and Mr. Figueroa was deemed (by default)

to have won the election with 100% of the votes cast.

This was followed by the initiation of the within action by the Plaintiffs-

Appellees and the ruling of the District Court on November 18, 2013. In the wake

of the District Courts ruling, a complete vote count was released and certified,


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revealing that Ms. Speers received over 63% of the votes cast between the two

counties (compared with Mr. Figueroas less than 37%).

3

There were no factual disputes among the parties to the action below, nor do

there appear to be any here. The parties are not disputing Ms. Speers ineligibility

for office. The issue before the District Court, and before this Court on appeal, is

what process is to be followed if a school district director candidate is determined

to be ineligible after ballots have been printed and distributed (and in this case

voting is underway). The effect of the Secretarys Temporary Rule 10.7.5is that

the votescast for the ineligible candidate are deemed invalid and must not be

counted and the election automatically defaults to the candidate with the next

highest number of votes (however large or small). Plaintiffs-Appellees submit that

all of the votesremain valid and must be countedas the Clerks and Recorders

were intending to proceedand, if an ineligible candidate receives the highest

number of votes, a statutorily mandated vacancy appointment process must be

initiated.

3The Court is respectfully requested to take judicial notice of the vote counts

pursuant to C.R.E. 201, by reference to the Adams County Election SummaryReport (Official Final Results) at

http://www.co.adams.co.us/DocumentCenter/View/4327,and the Broomfield

County Amended Official Abstract of Votes Cast (p. 9 of 23) athttp://www.ci.broomfield.co.us/DocumentCenter/View/6565.
http://www.co.adams.co.us/DocumentCenter/View/4327http://www.co.adams.co.us/DocumentCenter/View/4327http://www.ci.broomfield.co.us/DocumentCenter/View/6565http://www.ci.broomfield.co.us/DocumentCenter/View/6565http://www.ci.broomfield.co.us/DocumentCenter/View/6565http://www.co.adams.co.us/DocumentCenter/View/4327


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ARGUMENT

I. Summary of Argument.

1. When a candidate in a school board director electionwhose name

appears on the ballot, and who neither dies nor submits an acknowledged letter of

withdrawal from candidacyreceives the most votes and yet is determined to be

ineligible to hold office due to nonresidency in the district or director district, the

director office is statutorily deemed to be vacant and subject to a specified vacancy

appointment process entrusted to the local Board of Education. The Secretary of

State has no authority to circumvent this statutory process by ordering that the

votes for the ineligible candidate are invalid and must not be counted, thus

defaulting the election to another candidate receiving fewer votes.

2. Proceedings under 1-1-113, C.R.S. (2013), are not restricted to

actions brought and adjudicated prior to the day of an election. [Plaintiffs-

Appellees submit that this question is not properly before this Court on appeal.]

II. Argument.

A. Standard of Review on all Issues.

All issues in this case involve exclusively questions of statutory

interpretation. Statutory interpretation is a question of law which this court

reviews de novo. Klinger v. Adams County School Dist. No. 50, 130 P.3d 1027,


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1031 (Colo. 2006); accord, A.S. v. People, 312 P.3d 168, 2013 CO 63 at *P10

(Colo. 2013).

B. The Secretary of States Temporary Election Rule 10.7.5 is

Directly Contrary to Controlling Statutory Law.

1. The Secretary is not empowered to adopt rules which conflict with,and are not authorized by, applicable statutory lawand such rules

are void.

Per 24-4-103(8)(a), C.R.S. (2013), No rule shall be issued except within

the power delegated to the agency and as authorized by law. Further, [a]ny rule

or amendment to an existing rule issued by any agency . . . which conflicts with a

statute shall be void. Id. [A] regulation must further the will of the legislature

and may not modify or contravene an existing statute. Thus, any regulation which

is inconsistent with or contrary to a statute is void and of no effect. Huber v.

Colorado Mining Assoc., 264 P.3d 884, 890 (Colo. 2011), quoting Miller

International, Inc. v. Dept. of Revenue, 646 P.2d 341, 344 (Colo. 1982) (internal

citations omitted).

2. Principles of statutory interpretation applicable to this case.

Our primary task in construing statutes is to ascertain and give effect to the

intent of the General Assembly. A.M. v. A.C., 296 P.3d 1026, 1030 (Colo. 2013);

accord, Yale v. AC Excavating, Inc., 295 P.3d 470, 475 (Colo. 2013). We look

first to the language of the statute, giving effect to the plain and ordinary meaning


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of the words and phrases selected by the General Assembly. A.M.,supra, 296

P.3d at 1030; accordYale,supra, 295 P.3d at 475. If the statutory language is

unambiguous, we apply it as written without resorting to other rules of statutory

construction. A.M.,supra, 296 P.3d at 1030.

In addition to looking to a statutes plain language, we strive to interpret

statutes in a manner that avoids rendering any provision superfluous. Qwest Corp.

v. Colo. Div. of Property Taxation, 304 P.3d 217, 221 (Colo. 2013); accord, Welby

Gardens v. Adams County Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003).

Further, we are obliged to construe an entire statutory scheme in a manner that

gives consistent, harmonious, and sensible effect to all of its parts. Climax

Molybdenum Co. v. Walter, 812 P.2d 1168, 1174 (Colo. 1991); accord, Qwest

Corp.,supra, 304 P.3d at 221.

The present case can be resolved easily with reference to this Courts

precepts for statutory interpretation noted aboveand the District Court did so.

The Secretary countered below with a plea for interpretive deference, and an

assertion that Plaintiffs-Appellees and ultimately the District Courts statutory

interpretation was absurd (a term invoked repeatedly).With regard to deference,

[an agencys] interpretation isnot binding on the this court Coffman v.

Colorado Common Cause, 102 P.3d 999, 1005 (Colo. 2004)and deference


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would not be appropriate if [an agencys] statutory interpretation would defeat the

General Assemblys intent in enacting the statute or is contrary to the plain

meaning of the statute. Bd. of County Commissioners v. Colo. Pub. Utilities

Comm., 157 P.3d 1083, 1089 (Colo. 2007). Accord, Colorado Ethics Watch v.

Clear the Bench Colorado, 277 P.3d 931, 937 (Colo. App. 2012) (Courts will not

defer to an interpretation that misconstrues or misapplies the law); Independence

Institute v. Gessler, 869 F.Supp. 2d 1289, 1301 (D. Colo. 2012). With regard to

the Secretarys characterization of the Plaintiffs-Appellees and District Courts

interpretation as absurd, please see the discussion in subsection 5, below.

3. The plain language of the statutory scheme at issue.

School district director elections are governed by article 31 of title 22,

C.R.S. (2013). Pursuant to 22-31-103(1), C.R.S. (2013), [a]ll elections

authorized in this article shall be conducted pursuant to the provisions of articles 1

to 13 of title 1, C.R.S. Articles 1 to 13 of title 1 comprise Colorados Uniform

Election Code of 1992. 1-1-101, C.R.S. (2013). Additionally, article 31 of title

22, C.R.S. (2013), supplements the Uniform Election Code with various provisions

applicable specifically to school director elections.

There are only three provisions in articles 1 to 13, title 1, or in article 31,

title 22, C.R.S. (2013), that authorize votesproperly cast by an eligible elector for a


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candidate to be deemed invalid and direct that they not be counted. First, 1-4-

1001(1), C.R.S. (2013), provides that a nominated

4

or designated candidate may

withdraw by filing a signed and acknowledged letter with the designated election

officialand in the event the withdrawal of candidacy is not made in time for the

candidates name to be taken off the ballot, any votes cast for the candidate shall

be deemed invalid and will not be counted. Second, 1-5-412(3), C.R.S. (2013),

states that if the ballots [for any election] are already printed, the votes cast for [a]

withdrawn or deceased candidate are invalid and shall not be counted.Both

sections contain specific exceptions for situations in which a vacancy is to be filled

in accordance with provisions of 1-4-1002, C.R.S. (2013). Andmost

importantly for the present caseneither section is applicable here as Ms. Speers

has neither withdrawn her candidacy nor died.

Third, 1-7-114(2) and (3), C.R.S. (2013), provides that votes for an

unqualified write-in candidateor double votes for a write-in candidate (even if

qualified) and a candidate appearing on the ballotshall not be counted. Again,

this section is not applicable here.

4A petitioning school district director candidate would be deemed nominated per

1-4-803, C.R.S. (2013).


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would be [i]f a court of competent jurisdiction voids the officers election or

appointment or removes the person duly elected or appointed for any cause

whatsoever. 22-31-129(1)(f), C.R.S. (2013); any cause whatsoever would

presumably include any basis for disqualification or ineligibility to hold the office.

Accepting the Designated Election Officials determination that Ms. Speers

is not a resident of the director district she sought to represent, 22-31-129, C.R.S.

(2013) is directly applicable, one way or another, to her circumstance. Rather than

invalidating and not counting the votes cast for herand thus defaulting the

election to a soundly tromped competing candidate manifestly rejected by the

votersthis section entrusts a vacancy appointment process to the wisdom and

discretion of the local elected board of education.

It should be noted that 22-31-129, C.R.S. (2013), does not stand alone or

aberrantly in Colorados statutory election scheme. Within the general Uniform

Election Code, 1-4-1002, C.R.S. (2013), enumerates a variety of similar

circumstances under which a vacancy subject to partisan or petitioner

designation of a replacement candidate or office holder at various stages of the

election or post-election processis deemed created. Most relevantly, 1-4-

1002(2.5), C.R.S. (2013), provides for post-election partisan vacancy appointments

in the event of, among other things, disqualification of a successful candidate


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less than eighteen days before an electionnoting specifically that the votes for

the disqualified candidate are to be counted and recorded.And this provision is a

specifically cited exception even to the limited otherwise applicable invalidation-

and-no-count provisions of 1-4-1001(1) and 1-5-412(3), C.R.S. (2013).

4. Further considerations in the statutory interpretation.

Much of the debate below, and presumably here, has focused on parsing the

language of 22-31-129, C.R.S. (2013).

First, and primarily, the Secretary argues that the vacancy events of 22-31-

129(1)(d) and (f), C.R.S. (2013), require the nonresident, voided, or removed

candidate to have been duly elected (or duly nominated) and that duly

presumes he or she held the substantive qualifications for office. If this were the

meaning intended by the General Assembly, there would have been no need to

include a vacancy event for a duly elected person who is a nonresident

paragraph (1)(d)as a nonresident could never have been dulyelected. And it

would make no sense to have included a vacancy event arising from the voiding of

an election or removal of a duly elected candidate for any cause whatsoever

(including presumably ineligibility or disqualification)paragraph (1)(f)as that

candidate could never have been duly electedin the first place. As the District

Court reasonably noted, duly elected simply means in the proper form and in


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Secretary in a manner inconsistent with its broader statutory scheme. We favor

interpretations that produce harmonious reading of the statutory scheme and

eschew constructions that create inconsistency. A.M.,supra, 296 P.3d at 1030.

Additionally, the Secretary appears to argue that the vacancy events of 22-

31-129, C.R.S. (2013), must arise duringrather than beforea persons term of

office. He thus translates the phrase prior to the expiration of the term of office

in subsection (1) into after the commencement of andprior to the expiration of the

term of office; and limits the word is in paragraph (1)(d) to nonresidency

arising only after a term of office commences (whichjuxtaposed with the phrase

or becomes during the term of office effectively reads is out of the

paragraph). Again, the reading is strained and inconsistent with the statutory

scheme. It is inconsistent with the treatment of partisan candidates under 1-4-

1002(2.5), C.R.S. (2013) (see discussion above). It is even inconsistent with the

internal works of its own statutory section, as the vacancy events of 22-31-

129(1)(b)failing to take an oath of office without which a term of office cannot

commence per 22-31-125, C.R.S. (2013)and 22-31-129(1)(f)voiding an

electionfor any cause whatsoever clearly incorporate triggering circumstances

arising before a term of office commences. And it creates another wholly

inexplicable statutory gap.


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treated as void or thrown away, but are to be counted in determining the result of

the election as regards the other candidates.

As far as undersigned counsel has been able to determine, this Court has

addressed this circumstance on only one occasion, in dicta, though expressing

concurrence with the American Rule. In People ex rel. Rosenberg v. Keating,

144 P.2d 992, 995 (Colo. 1944), the Court addressed the prospect of a candidate,

ultimately determined to be eligible, but having hypothetically been determined to

be ineligible, and noted as follows: On the assumption of such holding . . . hence

he was not eligible to become a candidate; but in fact he was a candidate, and

although there were other candidates, he received the highest number of votes cast

therefor. In such situation, as said in Paine on Elections, page 474, section 559,

the election is a nullity, although votes may have been cast for eligible candidates.

The person receiving the highest number of votes . . . fails of an election because

of his ineligibility. The others fail because the majority of the electors express their

opinion against their election.This is preciselywith a vengeancethe

circumstance here. And though the statutes have evolved, the same principle is

clearly embodied in the current codes.5

5See also, e.g., Highton v. Musto, 452 A.2d 487, 490-92 (N.J.Super. 1982); Tellez

v. Superior Court, 450 P.2d 106, 108-09 (Ariz. 1969); State ex rel. Jackson v.County Court, 166 S.E.2d 554, 558-59 (W.Va. App. 1969).


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The point is, while there may be ample room for policy-making

disagreement, there is nothing absurd about Colorados statutory scheme. At its

heart, it accords respect to the voterswhose right and eligibility to participate in

the electoral process is not at issueby counting their votes and not deeming their

votesto be invalid. Itrecognizes that votes are often cast as much againstone

candidate as in favorof another. It does not allow ineligible or disqualified

candidates to take office even if they receive the highest number of votesthough

it concurrently declines to anoint by default a candidate whom the voters have

rejected.

If a prevailing candidate is disqualified, Colorados well-crafted statutory

scheme (consistent with the American Rule)entrusts the process of choosing a

replacement to a body hopefully reflective of the will of the voterspartisan

vacancy committees aligned with the candidate receiving the most votes in partisan

elections, and a sitting elected local board of education in nonpartisan school

director elections. The General Assembly has clearly given specific consideration

to the structure of its own statutory scheme (e.g., treating a candidates death or

withdrawal differently from a determination of ineligibility), defining precisely

those very limited circumstances in which it has determined that properly cast

votes by eligible electors will be deemed invalid and will not be counted.


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1218, 1224 (Colo. 1996); accord, Amco Ins. Co. v. Sills, 166 P.3d 274, 275-76

(Colo. App. 2007).

Further, the actions to which Plaintiffs-Appellees claims under 1-1-113,

C.R.S. (2013), against the Defendants-Appellees were directedcompletion and

certification of the official vote count for all of the candidates in the Adams 12

Director District 4 election and notification to the candidates of the resultshave

been fully performed by the Defendants-Appellees in the wake of the District

Courts order. At this stage, no actual controversy exists between the Plaintiffs-

Appellees and Defendants-Appellees, rendering any issues in this case surrounding

1-1-113 moot. People in the Interest of O.C., 308 P.3d 1218, 1220 (Colo. 2013).6

2. Section 1-1-113, C.R.S. (2013), is not limited in its application to

controversies brought and adjudicated prior to the day of an election.

Should the Court determine to exercise jurisdiction over this issue as an

issue of public importance,7Plaintiffs-Appellees submit the following argument.

6Any further actions by the Defendant-Appellee Designated Election Official to

make and deliver a formal certificate of election pursuant to 1-11-103(1), C.R.S.

(2013)should this Court reverse the ruling of the District Courtor by the non-party Board of Education for the Adams 12 Five Star School District to declare a

vacancy pursuant to 22-31-129(2), C.R.S. (2013)should this Court affirm theruling of the District Courtare not before the Court and would be premature at

this stage.

7People in the Interest of O.C.,supra, 308 P.3d at 1220.


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There is nothing in the plain language of 1-1-113, C.R.S. (2013), that limits

the application of this section to actions or duties arising or adjudicated prior to the

day of an election. Section 1-1-113(4) states specifically that, except as otherwise

provided in part 1 of article 1 of title 1, the procedure specified in this section

shall be the exclusive method for the adjudicationof controversies arising from a

breach or neglect of duty or other wrongful act that occurs prior to the day of an

election. It specifically does notsay that this procedure is applicable exclusively

to controversies arisinglet alone adjudicatedprior to the day of an election.

The Secretary cites the 1994 amendment adding subsection (4) in the wake

of this Courts decision in Meyer v. Lamm, 846 P.2d 862 (Colo. 1993). In Meyer,

this Court held that there is nothing within the text of section 1-1-112 [as this

provision was then codified] which would limit the statutes application to pre-

election controversies only, as the secretary of state urges. 846 P.2d at 871.

During the following legislative session, the General Assembly added what is now

1-1-113(4). In the immediate wake of Meyer, had it intended to restrict the

statutes temporal applicability, it may be presumed the General Assembly would

have chosen words that would have clearly and effectively accomplished that

purposenot words that restrict the availability of othermethods of adjudication

during the pre-election time frame.


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election (article 11, part 1). Many of these areas (particularly the ones involving

activities on the day of an election itself) can be extremely time sensitive. While

controversies regarding any of these matters could be deferred to other procedural

vehicles such as C.R.C.P. 65, there is no discernable logic to the Secretarys

attempted preclusion of the 1-1-113process the moment the day of an election

itself arrives.

3. Conclusion.

While 1-1-113, C.R.S. (2013), is the exclusive method for the adjudication

of controversies arising from a breach or neglect of duty or other wrongful act that

occurs prior to the day of an election, it is not itself applicable exclusively to

controversies arising (or adjudicated) within that time frame.

CONCLUSION

The Plaintiffs-Appellees respectfully request this Court to affirm the

judgment of the District Court in all respects.


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Respectfully submitted this 16thday of December, 2013.

HEIZER PAUL LLP

By: s/Edward T. RameyEdward T. Ramey, No. 6748

Martha M. Tierney, No. 27521

2401 15th Street, Suite 300

Denver, Colorado 80202

Phone Number: (303) 595-4747FAX Number: (303) 595-4750E-mail: [email protected]


Attorneys for Plaintiffs-Appellees


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CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of December, 2013 a true and correctcopy of the foregoing BRIEF OF PLAINTIFFS-APPELLEESwas filed and

served via the Integrated Colorado Courts E-Filing System to the following:

John W. Suthers, Attorney GeneralLeeann Morrill, First Asst. Attorney

General

Matthew D. Grove, Asst. Attorney

GeneralSueanna P. Johnson, Assistant Attorney

GeneralRalph L. Carr Colorado Judicial Center

1300 Broadway, 6th FloorDenver, CO 80203

Email: [email protected];[email protected];

[email protected] for Petitioner-Defendant

Secretary of State Scott Gessler

Heidi M. Miller, County AttorneyJennifer D. Stanley, Assistant County

Attorney

Adams County Attorneys Office

4430 South Adams County Parkway5th Floor, C5000B

Brighton, CO 80601Email: [email protected];

[email protected] for Karen Long, Clerk and

Recorder for Adams County

William A. Tuthill, III

City and County Attorney ofBroomfield

One Descombes DriveBroomfield, CO 80020

Email:[email protected]

Attorney for Defendant-Appellee JimCandelarie, Clerk and Recorder for the

City and County of Broomfield

Gillian Dale

Thomas J. LyonsHall & Evans, L.L.C.

1001 17th Street, Suite 300Denver, CO 80202

Email: [email protected];[email protected]

Attorneys for Defendant-AppelleeFrances E. Mullins as Designated

Election Official for Adams 12 Five StarSchool District

s/Amy Knight


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In accordance with C.A.R. 30(f), a printed copy of this document with original signatures is

being maintained by the filing party and will be made available for inspection by other parties or

the Court upon request.

brief filed by citizens supporting speers

Documents