Morse recall petition appeal

7/28/2019 Morse recall petition appeal

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DISTRICT COURT, DENVER COUNTY, STATE OF

COLORADO

Denver District Court1437 Bannock St., Room 256Denver, CO 80202

COURT USE ONLY

Plaintiff: CATHERINE E. KLEINSMITH

v.

Defendants: SCOTT GESSLERin his official capacity

as the Secretary of State for the State of Colorado; JOHN

HICKENLOOPERin his official capacity as the

Governor for the State of Colorado; ROBERT HARRIS,individually; PAUL PARADIS, individually; and

DANIEL MACH, individually

Attorneys for Plaintiff:

Mark G. Grueskin, No. 14621Martha M. Tierney, No. 27521

Heizer Paul Grueskin LLP

2401 15th

Street, Suite 300

Denver, Colorado 80202Phone Number: (303) 595-4747

FAX Number: (303) 595-4750

E-mail: [email protected]: [email protected]

Case Number:

Division/Courtroom:

MOTION FOR PRELIMINARY INJUNCTION

Plaintiff, Catherine E. Kleinsmith, by and through her counsel, Heizer Paul GrueskinLLP, and pursuant to Colo.R.Civ.P. 65, respectfully requests that this Court enter a preliminary

injunction enjoining the setting of any recall election for Senator John P. Morse of Colorado

Senate District 11, until judicial review of the Secretary of States recall petition sufficiency

decision is complete. As grounds for this Motion, Plaintiff states as follows:

CERTIFICATION PURSUANT TO C.R.C.P. 121 1-15, 8

Plaintiffs counsel hereby certify that they have spoken with counsel for the Governor,

Jack Finlaw, regarding this motion and he advises that the Governor does not object to the relief

requested herein.


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Plaintiffs counsel also certify that they have spoken with counsel for the Secretary of

State, LeeAnn Morrill of the Colorado Attorney Generals Office, and counsel for the recall

petition Proponents, Richard Westfall and Erik Groves, who each advise that their clients opposethe relief requested in this Motion.

FACTUAL AND LEGAL BACKGROUND

This is an action challenging the Secretary of States determination of sufficiency for the

petition to recall Senator John Morse of Colorado Senate District 11. In violation of the

Colorado Constitution and Colorado Revised Statutes, the petition to recall Senator John Morse

fails to contain any language demanding an election of a successor.1

On April 2, 2013, petition proponents Robert Harris, Paul Paradis, and Daniel Mach

(Proponents) delivered a final petition format to the Ballot Access Unit within the Secretarysoffice. The Ballot Access Unit is involved in petition form review for initiative, referendum, and

recall petitions, all of which are overseen by the Secretary. Proponents delivered the petition

format to obtain the approval of form by the Secretary, acting through the Ballot Access Unit.

On April 2, in multiple communications between the Proponents and the Secretary,

Proponents were informed that the Secretarys communications with Proponents provided

limited guidance regarding the interpretation of Colorados election laws and regulations.Exhs. 6,7,8. Further, nothing in the communications with Proponents shall be considered legal

advice. Finally, the Secretary instructed the Proponents, if you require legal counsel, the

Proponents should consult an attorney.Id.

Prior to April 2, and in formatting their petition, Proponents used the legal advice that

was provided through another recall committees legal counsel, the committee seeking to recall

the elected State Representative from House District 59. Exh. 8.

The petition form, as proposed by Proponents, was legally deficient in that it did not alert

potential signers that they were, in addition to seeking to recall Sen. Morse, putting in place theprocess for an election to fill that vacant seat. Exh. 11.

The Colorado Constitution specifically requires that a recall petition contain a demand foran election to fill the seat to be vacated by the recall. Colo. Const., art. XXI, 1 (a recall petition

may be filed with the designated election official if it is signed by the requisite number ofregistered electors, contains a general statement about the proponents basis for the recall, and

demand[s] an election of the successor to the officer named in said petition).

1 Citations herein are to the administrative record except where designated as PI Exhibits which are attached hereto.

The administrative record includes exhibits presented at the June 27, 2013, Kleinsmith Protest Hearing (Exhibits 1-

3, 5-9, 11 and Exhibits A-J), the transcript of the Kleinsmith Protest Hearing, pleadings and legal briefs filed in the

Kleinsmith Protest proceeding, and the Secretarys Decision on the Kleinsmith Protest.


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The Colorado Revised Statutes specifically require that a recall petition contain a demandfor an election to fill the seat to be vacated by the recall. C.R.S. 1-12-103 (eligible electors

may initiate the recall of an elected official by signing a petition which demands the election of

a successor to the officer named in the petition).

The Colorado Court of Appeals has specifically required that recall petitions make that

same demand, based on constitutional or statutory authority for doing so. Combs v. Nowak, 43

P.3d 743, 744-45 (Colo. Ct. App. 2002).

At no time during the petition format approval process did Proponents propose to the

Secretary that their petition form contain the demand language. At no time during the petition

format approval process did the Secretary instruct Proponents that they were prohibited fromusing the demand language in their petition.

On April 2, staff working as part of the Secretarys Ballot Access Unit informedProponents that their petition form had been approved.

Recall petition proponents have sixty days to collect signatures on recall petition sectionsand submit those petition sections to the Secretary. C.R.S. 1-12-108(7.5). These recall

petitions were circulated between April 2 and June 1 because the sixtieth day for petition

circulation fell on a Saturday. Additional signatures were affixed to the petition on June 2 but

those signatures were not counted as valid by the Secretary.

On June 3, 2013, Proponents delivered to the Secretary a petition seeking to recall Sen.

Morse. (Petition). The Secretary later announced that the total number of completed signature

lines on 997 petition sections was 16,198. Exh. 11.

The Petition that was circulated refers to a recall of Sen. Morse by its reference in the

warning to Petition to recall John Morse from the office of Colorado State SenateDistrict 11and sets forth Proponents basis for the recall petition in two paragraphs under the heading,

General statement of grounds of recall.

The approved petition form did not alert potential signers that, in addition to recalling

Sen. Morse, signers would be demanding an election to fill that vacant seat. Among this

universe of potential petition signers, there was significant confusion about what would happenin terms of determining the districts representative in the State Senate if the recall was

successful. Exhs. 9, 11.

The objective of that petition circulation process is to obtain twenty-five percent (25%) ofthe number of registered voters who voted in the last election for that office. In the case of

Senate District 11, then, a recall petition must have been signed by 7,178 registered electors who

reside within that senate district.


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Signatures on a recall petition are deemed sufficient unless a protest is filed. ArticleXXI, 2. Such signatures are also subject to a determination of sufficiency by the Secretary of

State. C.R.S. 1-12-108(9)(a). After his review of the Petition, the Secretary found that 6,061

petition entries were invalid, leaving 10,137 entries that were deemed accepted. In light of thenumber of signatures found to be valid, the Secretary announced on June 18, 2013 that the recall

Petition was sufficient.

After the Secretarys announcement of sufficient but also on June 18, 2013, Catherine E.Kleinsmith filed a written protest to the Secretarys sufficiency decision relating to Proponents

recall petition. (Protest). The Protest was filed under oath and within fifteen days after the

recall petition, as required by law. Colo. Const., art. XXI, 2.

Grounds fora protest to a sufficiency decision for a recall petition include the failure of

any portion of a petition to meet the requirements of this article. C.R.S. 1-12-108(9)(a)(II)

(emphasis added). Article 12 of Title 1 expressly requires that voters initiate a recall by signinga petition which demands the election of a successor to the recalled official. C.R.S. 1-12-103.

The Protest alleged that a material deficiency in the petition form specifically, that thepetition form did not inform voters that, by signing the petition, they were demanding an

election of the successor to the officer named in said petition for purposes of filling that

vacancyrendered invalid the Secretary's sufficiency decision. Colo. Const., art. XXI, 1.

There is no factual dispute that none of these petition sections and none of their signature pagescontained the requisite demand language.

On June 27, 2013, the Deputy Secretary of State presided over a hearing on the protest, at

which Kleinsmith and the Proponents were represented by counsel. At hearing, Kleinsmithpresented evidence of a scientifically conducted public opinion survey among 381 registered

voters in Senate District 11 over the period of June 14-16. Thomas Jensen, Director of Public

Policy Polling of North Carolina, conducts automated polls across the country. Those pollsfocus primarily on local and district races, like Senate District 11. Based on his research, Jensen

concluded that, with over half of the registered voters in the district unsure or incorrect about the

manner of filling the vacant Senate seat after a recall of Sen. Morse, there was significant publicconfusioneven after the entire petitioning process had taken placeabout the second part of

the election that would be triggered by a sufficient recall petition. See PI Exh. 2, attachedresults of PPP Poll, also marked as Hearing Exhibit 9).

Fifty-four percent (54%) of State Senate District 11 did not know that the way in which arecalled officials seat is filled is through an electioneven at the end of the recall petitioning

process. Of the more than one-half () of the electorate that did not know the correct way inwhich this seat would be filled, twenty-two percent (22%) believed that the governor appoints a

recalled senators replacement; five percent (5%) believed a vacancy committee appoints a

replacement; five percent (5%) believed the seat remains vacant until the next scheduledelection; and four percent (4%) believed a political party chair appoints a replacement. See PI

Exh. 2.


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Additionally, eighteen percent (18%) of the electorate was not sure enough about what

the process is to even venture a guess about the manner in which the seat would be filled. Even

after Proponents had collected more than 16,000 signatures and obtained notable press attentionabout this undertaking, only forty-six percent (46%) of the district's registered voters

(representing the universe of potential petition signers) knew that an election would be held. The

universe of polled individuals reflected persons eligible to sign the petition (i.e., registered

electors) rather than just those persons who actually signed. Poll respondents reflect the samegroup of personsregistered electors entitled to vote for a successor of the incumbent sought to

be recalled who were authorized to exercise the right of recall by, if they so chose, signing a

petition. Colo. Const., art. XXI, 1.

At hearing, even the Secretarys director of the Ballot Access Unit, who is practiced in

dealing with ballot access issues of all types, acknowledged that he was uncertain or unaware of

the different methods required by law for filling certain vacancies in office that occur under Title12. See C.R.S. 1-12-201, et seq. Tr. 30:20-32:10.

At hearing, Proponents limited their evidentiary presentation to the submission of certainpetition forms approved by the Secretary for local and state public officials. None of these

petitions has triggered a recall election for a state official, at least until the Proponents petition

relating to Sen. Morse was approved. Since that time, the Secretary has approved a comparable

form for the recall of State Senator Angela Giron from Senate District 3, and the signaturesaffixed to that petition are subject only to the same protest issue as is raised in this action.

The record before the Secretary does not reflect any evidence that Proponents, during the

petition formatting process, were unaware of the constitutional and statutory requirements thatrecall petitions must contain the demand language.

The record before the Secretary does not explain why Proponents did not include thedemand language, other than the fact that the Secretary did not include it on its generic template

of a recall petition.

All sections of the Petition complied with the requirement that a recall petition contain a

general statement about the reason for the recall, not to exceed two hundred (200) words. Exh.

11.

The requirements for a demand for an election for a successor and the 200-word generalstatement about the basis for the recall are both found in the same section of the Constitution.

Colo. Const., art. XXI, 1.

The requirements for a demand for an election for a successor and the 200-word general

statement about the basis for the recall are both found in the same section of the ColoradoRevised Statutes. C.R.S. 1-12-103.


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The Deputy Secretary issued her decision on July 3, 2013, denying Kleinsmiths Protest.The Deputy Secretary decided, among other things, that the demand language was not mandated

petition language, Combs v. Nowakdid not address the issue she was to decide, the recall statutes

must be liberally construed, and the Proponents substantially complied with the demandlanguage requirement even though they omitted it on all sections and pages of the Petition. See

PI Exhibit 1, attached, Decision in re Catherine E. Kleinsmiths Protest.

On or about July 5, 2013, the Secretary presented the Governor with a certificate of theresults of his sufficiency decision. The Governor will soon set the date and procedures for a

recall election in Senate District 11, barring direction from this Court not to do so.

Kleinsmith seeks a preliminary injunction to enjoin the scheduling and holding of anyrecall election arising from the Petition until after judicial review of all timely filed protests to

the Secretarys sufficiency determination is complete.

LEGAL ARGUMENT

In order to grant a party a preliminary injunction, the Court must consider the six-part testfromRathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). The six elements a court must

consider in issuing a preliminary injunction are:

(1) a reasonable probability of success on the merits;(2) a danger of real, immediate, and irreparable injury which may be prevented by

injunctive relief;

(3) that there is no plain, speedy, and adequate remedy at law;

(4) that the granting of a preliminary injunction will not disserve the publicinterest;

(5) that the balance of equities favors the injunction; and

(6) that the injunction will preserve the status quo pending a trial on the merits.

Id., 648 P.2d at 653-54.

A. Plaintiff has a reasonable probability of success on the merits.

1. The petition is insufficient because it omitted required language, under the

Colorado Constitution and Colorado Revised Statutes, demanding an election of a

successor to the recalled official.

The Colorado Constitution specifically requires that a recall petition demand an election

of the successor to the officer named in the recall petition. Colo. Const., art. XXI, 1. Because

the Petition does not contain this required language, it is insufficient. See Exhs. 5, 11. The plain

language of the Constitution states:


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The procedure hereunder to effect the recall of an elective public officer shall beas follows:

A petition signed by registered electors entitled to vote for a successor of theincumbent sought to be recalled, equal in number to twenty-five percent of the

entire vote cast at the last preceding election for all candidates for the position

which the incumbent sought to be recalled occupies, demanding an election of

the successor to the officer named in said petition, shall be filed in the office in

which petitions for nominations to office held by the incumbent sought to be

recalled are required to be filed.

Colo. Const., art. XXI, 1 (emphasis supplied).

Colorado statute imposes precisely the same requirement, mandating that a recall petition

demand the election of a successor to the officer named in the recall petition. 1-12-103,C.R.S. (2012). The plain language of the statute, titled Petition for recall - statement ofgrounds, states:

Eligible electors of a political subdivision may initiate the recall of an elected

official by signing a petition which demands the election of a successor to theofficer named in the petition. The petition shall contain a general statement,consisting of two hundred words or less, stating the ground or grounds on which

the recall is sought. The general statement may not include any profane or false

statements. The statement is for the information of the electors who are the sole

and exclusive judges of the legality, reasonableness, and sufficiency of the ground

or grounds assigned for the recall. The ground or grounds are not open to review.

1-12-103, C.R.S. (emphasis supplied).

The plain language of both the Constitution and the state impose the demand for an

election requirement on the petition contents. In any matter of this sort, the first objective isalways to use the plain language of the enactment. Where the statutory language is clear and

unambiguous, the court will not resort to any further rules of statutory construction. Spahmer v.

Gullette, 113 P.3d 158, 162 (Colo. 2005).

This "demand language" in the Constitution and in statute can have no meaning other

than to require a statement in the recall petition whereby potential signers are clearly notified that

their action, in seeking to recall an elected official, also means that there will be an election toprovide for the recalled official's successor. In fact, the recall process is a two-part election. The

first part is a vote on whether a named official should be recalled, and voters cast ballots by

marking either "yes" or "no" on that proposition. Then, if a majority of votes cast are for therecall, the ballot also includes a list of candidates who have petitioned onto the ballot. The

person garnering the most ballots on this second part of the ballot is named the successor. This

process is quite different than filling a vacancy for the same office, as that process (for statelegislators at least) is done by means of a partisan vacancy committee. See 1-12-203(1), C.R.S.


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The import of the demand requirement can best be summarized by a contrast between theballots that potential petition signers thought they would see and the ballots they will actually

see. In addition to the statements for and against the recall by the Proponents and the incumbent,

1-12-112, C.R.S., the ballots that district voters could have expected based on the petitionformat used would have read:

Shall John Morse be recalled from the office of State Senate for District

11?

Yes _____

No _____

See Colo. Const., art. XXI, 3. However, the ballots that will actually be used will, based onrecent history with Colorado recall elections, look something like this:

Shall John Morse be recalled from the office of State Senate for District

11?

Yes _____

No _____

Candidates nominated to succeed John Morse, should he be recalled

from the office of State Senator for District 11:

(No vote cast shall be counted for any candidate for such office unless

the voter has also voted for or against such person.)

(Vote for no more than one candidate.)

Candidate A _____

Candidate B _____

Candidate C _____

Candidate D _____

(See PI Exhibit 3, attached, illustrating sample Colorado recall election ballots.) Thus, the

extraordinary remedy of holding a special candidate election is a critical part of what petition

signers endorse when they sign a recall petition. The framers of Article XXI of the Constitutionfelt that signers should know about this second question that is presented to voters on a recall

ballot. The General Assembly came to the same conclusion and reiterated this requirement. For


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this reason, the demand for an election to name the recalled official's successor must be reflectedon the face of the recall petition.

2. The Court of Appeals has invalidated recall petitions that lack languagedemanding an election for a successor to the recalled official.

Colorado caselaw on this issue is clear. The demand language is required in order for a

recall petition to be sufficient.

In Combs v. Nowak, 43 P.3d 743 (Colo. Ct. App. 2002), the Court considered a municipal

recall petition that omitted any reference to a demand for an election for a successor to the

recalled official. The municipal charter did not specifically require such language, but thecharter did incorporate both Article XXI of the Constitution and relevant provisions of the

Colorado Revised Statutes pertaining to municipal recalls. The trial court had determined that

Section 1 of Article XXI only applied to state officials and thus ruled the petition was not at oddswith applicable legal requirements. The Court of Appeals reversed, noting that the demandlanguage was specifically included in the state statute governing recall elections for municipal

officials. Accordingly, that language was a required element of municipal recall petitions. 43

P.3d at 744-45.

Here, there is no question that Senator Morse is a state official, and thus, Section 1 ofArticle XXI applies. Even if it did not, state statutes relating to state officials also impose this

requirement. 1-12-103, C.R.S.;see 1-12-101, C.R.S. (The recall of any state officer shall be

governed by the recall of state officers procedure set forth in this article.) Either way, the

demand for an election for a successor is a material element of a recall petition that cannot

simply be avoided by a petition's proponents.

Discussed at greater length below, the demand language provides essential notice tovoters of the second half of the recall election processa coterminous election for a successor.

As was established at hearing, the voters of Senate District 11 who were eligible to sign this

petition truly needed this information; over half of them were mistaken about the process forfilling the vacancy left by the recall or had no idea at all what that process was.

A petition form must inform unsophisticated as well as sophisticated voters who are

considering whether or not to sign the petition. When it comes to clarity of matters presented on

petitions, the courts are justifiably concerned that members of the electorate, whether familiar

or unfamiliar with the subject matter presented by a petition, are informed enough by the

petition to know whether or not to support the matter presented. In re Title, Ballot Title, andSubmission Clause for 2011-2012 #45, 2012 CO 26, P30 (Colo. 2012). The various aspects of a

recall election and its ramifications are substantive in nature and must be disclosed on the face

of an initiative petition in the ballot title. In re Proposed Election Reform Amendment, 852 P.2d28, 33 (Colo. 1993) (changes to recall laws concerning the right of successful candidates to be

reimbursed for campaign costs and the limitation on the number of times an office holder may be

recalled were so important that they needed to be disclosed to voters in a ballot title). Certainly,


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if these aspects of a recall election are deemed substantive, the demand for an election of thesuccessor must be as well.

The drafters of the recall provisions in the Constitution evidently thought this informationwas important in the petition signing process. The General Assembly came to the same

conclusion. The Proponents and the Secretary of State were not at liberty to determine that these

determinations were meaningless and therefore could be avoided.

3. The Colorado legislature reaffirmed the demand language in 2012.

Notably, in 2012, the General Assembly reenacted the recall statutes in Article 12 of Title

1. In doing so, the legislature was deemed to be aware of pertinent case law construing similarrecall statutes.

InAdams v. Hill, 780 P.2d 55, 56 (Colo. Ct. App. 1989), the Court of Appeals observedthat one of the first Colorado Supreme Court decisions on the right of recall of public officials

addressed the timing for filing of such petitions. The General Assembly's subsequent legislative

acts addressing the recall process could have, but did not, change or reverse this legalinterpretation. Accordingly, we must presume that the General Assembly was aware of the rule

announced in (the earlier Supreme Court opinion) at the time it adopted these statutes, and

chose not to modify it. Id. at 56. A court must necessarily conclude that the rule fromprevious case law is to be used in implementing subsequent statutory enactments. Id.

Had the legislature sought to depart from theNowakstandard, it would have done so in2012 when it adopted House Bill 12-1293 which was a comprehensive set of revisions to the

recall statutes. The General Assembly specifically amended 1-12-103, C.R.S. that year, but it

did not touch the demand language in the first sentence of that section, language that was

virtually the same as the demand language considered inNowak. See 2012 Sess. Laws, ch. 236at 1038-39. This Court must therefore presume that the legislature was aware of the rule

announced inNowakand intended that it be given full effect by reenacting that statute without

amendment to the requirement that recall petitions demand an election to identify a successor tothe recalled official. Hill, supra, 780 P.2d at 56.

4. The legal analysis in the Decision is clearly erroneous.

a. Placement of demand requirement is not relevant to this inquiry.

As her very first argument in support of the contention that the petition format wasadequate, the Deputy Secretary highlights the titles of the affected constitutional and statutory

provisions as key indicators that the demand language is superfluous. See PI Exh. 1, Decision

at 2-3. Of course, this argument is a major step away from looking to the plain language of the

constitutional and statutory provisions.

In stating that Section 1 of Article XXI and 1-12-103, C.R.S. do not dictate petition formatting,

the Deputy Secretary ignores the actual language of these provisions of law. Section 1 of Article


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XXI expressly: (1) establishes the twenty-five percent (25%) of the vote signature requirement;(2) imposes the requirement for a demand for an election; and (3) specifies that a petition contain

a general statement of the grounds on which the recall is based. No suggestion is made that the

25% of voters who must sign a petition is discretionary. Certainly the Secretary would not haveissued a sufficiency decision if the Proponents had collected 15% or 20% of the required names.

Likewise, the general statement of the grounds for a petition cannot be omitted from the face of

the petition. Lockett v. Garrett, 1 P.3d 206, 211 (Colo. Ct. App. 1999) (to recall elected officials,

proponents had to comply with municipal recall statute which included general statement ofgrounds for recall). That these petition requirements were not adopted as part of Colo. Const.,

art. XXI, 2, entitled Form of Recall Petition, makes them no less mandatory. The plain

language of Section 1, when construed as a whole, is clear.

Similarly, 1-12-103, C.R.S. requires both a demand for an election of a successor and a

general statement of the grounds on which the recall is sought. Those requirements can and do

coexist with 1-12-108, C.R.S., entitled Petition requirements approval as to form, asrequirements for the recall petition form.

Regardless, a court will not simply ignore inconvenient language in a constitutionalprovision or a statute. We construe a statute so as to give effect to every word, and we do not

adopt a construction that renders any term superfluous. Spahmer v. Gullette, 113 P.3d

158, 162 (Colo. 2005) (emphasis added). Yet, that is precisely that result of the Deputy

Secretarys ruling. Rather than give effect to the demand mandate, she states that it does not fitwithin the titles of the Constitution or the statutes and nullifies it. If it is not a requirement, what

effect can this language be given under the Deputy Secretarys decision? The Deputy Secretary's

answer is effectively none, which is not an option given to an administrative official

interpreting provisions such as this one. Tangeman v. Board of Aldermen of Denver, 117 P.145,148 (Colo. 1911) ("it is not to be presumed that language placed in [the recall provisions of] the

charter should have no meaning or effect).

The placement of the demand requirement matters so much to the Deputy Secretary that

she ruled Kleinsmiths protest was barred because there is no provision for a protest in Section 1

of Article XXI. See PI Exh. 1, Decision at 2. She does not explain why the language in Section2, which states only that the protest must specifically list the grounds for the protest, does not

apply to the petition form requirements listed in Section 1. Certainly, it cannot be true that the

fact that the 25% signature requirement, found in Section 1 rather than Section 2, may be evadedbecause there is no protest provision in Section 1. Because the signature requirement is stated

in the Colorado Constitution and is therefore more than technical, it cannot be ignored. Griffv. City of Grand Junction, 262 P.3d 906, 912 (Colo. Ct. App. 2010) (citations omitted). And

state statute provides that a protest may address the failure of any portion of a petition tomeet the requirements of this article. 1-12-108(9)(a)(II), C.R.S. Notably, the statute does not

limit a protest to the proponents failure to meet the requirements of thissection. And there is

no question that the demand requirementis found in this article Article 12and thus is aproper topic for this protest. 1-12-103, C.R.S.;see also 1-12-101, C.R.S. (recall of any state

officer shall be governed by recall procedure set forth in this article.)


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The Deputy Secretarys interpretation is far too narrow. Her job, and that of a court, is to

construe the statute as a whole to give consistent, harmonious, and sensible effect to all of its

parts. Buckley v. Chilcutt, 968 P.2d 112, 117 (Colo. 1998). The construction of pertinent lawsin the Decision does not achieve that end. It presumes the demand language is inconsistent with

the balance of the petition format requirements in law (rather than consistent with them) and is of

no effect at all in implementing that law (rather than possessing some sensible effect). As such,

it cannot be that Kleinsmiths protest is barred or that Kleinsmiths right of protest is limited tothose substantive provisions of Section 2, as the Deputy Secretary suggests.

Although courts give due deference to the Secretary of State's interpretation of statutes

relevant to its own operations, that interpretation is not binding on appellate courts. Griff v. Cityof Grand Junction, 262 P.3d at 911. Where, as here, the Secretary of States analysis is clearly

erroneous, no deference is due.

b. Recall provisions must be read together as an integrated whole.

The Deputy Secretary argues that, unless shall is found before a petition element inSection 1 of Article XXI, it cannot be required. See PI Exh. 1, Decision at 3. The context of

these provisions does not suggest that this is so, but even if it were, the Deputy Secretary actually

makes a strong case for why the demand requirement is an essential element of a recall petition.

The pertinent language in Section 1 reads:

The procedure hereunder to effect the recall of an elective public officershallbe

as follows:

A petition signed by registered electors entitled to vote for a successor of the

incumbent sought to be recalled, equal in number to twenty-five percent of the

entire vote cast at the last preceding election for all candidates for the positionwhich the incumbent sought to be recalled occupies, demanding an election ofthe successor to the officer named in said petition, shall be filed in the office in

which petitions for nominations to office held by the incumbent sought to berecalled are required to be filed.

The word shall appears twice in Section 1 of Article XXI, before and after the recitation of theelection demand requirement. The Deputy Secretary did not acknowledge the existence of the

former or the relevance of the latter. See PI Exh. 1, Decision at 2-3. Thus, even assuming sheis correct that shall is a precondition to adhering to the legal requirements for a recall petition,

that precondition is met in the Colorado Constitution.

The Deputy Secretary also argues that the only mandatory text for a petition is printed in

bold in the statute. See PI Exh. 1, Decision at 3. But this is not the case. The statute does notdictate that the statement of the petitioners' committee be in bold letters or even state where in

the petition it should be placed. See 12-1-108(2)(b), C.R.S. Nor does the statute do much more


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than state the basic elements of the circulator's affidavit, which these Proponents modified to aidin readability. Compare 12-1-108(6)(b), C.R.S. and Hearing Exhibit 5. The demand language

in 12-1-103, C.R.S. is treated in a like fashion, stating the narrative of what must be

communicated without burdensome detail. And it is every bit as much a requirement for a validrecall petition.

Finally, the Decision states, it is inherent in the word recall, and in the act of filing a

recall petition, that the eligible electors demand the election of a successor. See PI Exh. 1,

Decision at 3. Given the fact that no state officer has ever been recalled in Colorado's history,

and thus voters lack direct experience with this process, there is no basis to reach that

conclusion. While someone as practiced in elections as the Deputy Secretary may associate the

word recall with an election for a successor, for most voters including those in whoseneighborhoods these recall petitions were circulatedthe nexus between a recall of a public

official and an election is far from clear. As adduced at hearing, more than half of Senate

District 11 (54%) is either wrong about the way in which this vacancy is filled or lacks adequateinformation to allow for even a guessed answer. Nine percent (9%) of the district actually chose

post-recall options that do not exist for vacancieseither leaving the seat unfilled or having the

political party chairperson make the appointment. See Exh. 9; Tr., 74:22-76:8. Thus, the DeputySecretarys presumption is factually incorrect and unsupported by any evidence in the record.

c. The Deputy Secretary misconstruedCombs v. Nowak.

The Decision acknowledges the existence of the Combs v. Nowakdecision but holds that

it is irrelevant. It is first suggested that the Court of Appeals never addressed the central issue

of this hearing regarding the demand language. See PI Exh. 1, Decision at 4. According to

the Deputy Secretary, the only issue ruled upon was the applicability of the constitutional recallprovisions to a municipality. See PI Exh. 1, Decision at 3-4.

In fact, the Court of Appeals ruled quite differently. It held that because the state statute

relating to municipal recalls expressly imposed the demand requirement, and because that statute

was explicitly incorporated by reference into the Central City Charter, the Court did not need todetermine whether Section 1 of Article XXI imposed a like requirement on municipalities. It

was enough that a state statute, the applicability of which was undisputed, did so. 43 P.3d at

744-45. Thus, the Deputy Secretary erred when she concluded that case did not ultimatelydecide whether such language is crucial to a recall petition. See PI Exh. 1, Decision at 3.

Here, the Constitution obviously imposes the demand requirement for state recallpetitions, including the Morse recall petition. But along the lines ofCombs v. Nowak, there is

also a state statute that requires that a petition do exactly the same thing. 1-12-103, C.R.S.

Whether it is a constitutional requirement or a statutory requirement, or both,Nowakstands for

the proposition that a recall petition is materially deficient if it ignores this requirement asexpressly provided by applicable law.


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Additionally, the Decision questions what standardstrict or substantial compliancethe Court of Appeals used. Specifically, that case was decided under municipal election statutes

that don't require the substantial compliance standard. See PI Exh. 1, Decision at 3. The

Deputy Secretary is incorrect.

The substantial compliance standard is and has been the norm in municipal election

matters for decades and continues to be the pertinent standard. Compare Birkenmayer v. Carter,439 P.2d 991, 992 (Colo. 1968) (the objective in resolving disputes involving municipal

candidates is to obtain a substantial compliance with election statutes) with Griff, supra, 262

P.3d at 911 (municipal petitions are given effect if they substantially comply with pertinentstatutes). In 1975, the Municipal Election Code was adopted, and the general substantial

compliance standard was specifically reenacted. 31-10-1401(1), C.R.S. The Decision is simply

wrong in contending that substantial compliance was foreign to municipal elections at the time

Nowakwas decided or that it is today.

In any event, the substantial compliance standard does not need to be specified in statute.

It is required whenever fundamental rights are at issue because it serves to facilitate and secure,rather than subvert or impede the exercise of those rights. Loonan v. Woodley, 884 P.2d 1280,

1384 (Colo. 1994) (citations omitted). This is true even for legislatively imposed mandates that

reflect very particular requirements as to form, procedure, and disclosures that must be followedby the proponents of a petition. Loonan, 884 P.2d at 1384. Thus, substantial compliance is not

undermined simply because it must co-exist with the elements of a recall petition that reflect

"very particular requirements as to form."

The substantial compliance standardembraced by the Supreme Court in 1994 in

connection with fundamental rights of this calibercertainly applied to the right of recall whenthe Court of Appeals considered theNowakcase in 2002. Valdez v. Denver Election Comm'n,521 P.2d 165, 166 (Colo. 1974) (constitutional principles applicable to initiatives also apply to

recall); seealsoShroyer v. Sokol, 550 P.2d 309, 311 (Colo. 1976) (constitutional standards for

recall incorporated by implication into state statute);Bernzenv. City of Boulder, 525 P.2d 416,420 (Colo. 1974) (constitutional requirements for recall are incorporat[ed] by implication in

provisions of municipal charter).

5. Liberal construction of the right of recall is not inconsistent with adherence

to specific requirements about its exercise.

Recall is a fundamental right, and it must be liberally construed. About this, the DeputySecretary was correct. See PI Exh. 1, Decision at 4.

That is not the end of the analysis, though. Liberal construction of the law is not the

functional equivalent of denying the existence or the particulars of that law. To liberally

construe the statutes governing the exercise of the power to recall is not to ignore entirely therequirements of those statutes. Hazelwood v. Saul, 619 P.2d 499, 501 (Colo. 1980);


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R.E.C.A.L.L. v. Sauer, 721 P.2d 154, 155 (Colo. Ct. App. 1986). The Deputy Secretarysdecision does ignore entirely the demand requirement in the Constitution and in statute.

While a fundamental right must be facilitated and liberally construed, This right doesnot, however, exist without bounds. [L]egislation enacted to facilitate the carrying out of the

provisions of the Constitution . . . may not avoid or restrict the minimum requirements set out in

the Constitution. Chilcutt, supra, 968 P.2d at 118-119 (internal quotation marks omitted), citingYenter v. Baker, 248 P.2d 311, 315 (Colo. 1952). Thus, recall petitions must still observe the

basic rules clearly set forth in the Constitution and statutes.

Despite the admitted confusion by the supervisor of the Secretary's Ballot Access Unit

(Ben Schler) about how certain vacancies in public office are filled, the Decision questions that

there could have been any public confusion about the second half of the recall processanelection for a successor. But the process of filling vacancies in public office is not an issue that

most citizens commonly consider. Schler himself was uncertain about how certain vacancies inpublic office were required by law to be filled. Tr., 30:20-32:10. The various alternate methods

gubernatorial appointment, vacancy committee appointment, appointment by other members ofthe public body, as well as an open electiongive rise to the need for the explicit demand for an

election on the face of a recall petition. See 1-12-201-207, C.R.S.

The Decision dismisses the reality of this confusion, stating nowhere in the constitution

or election code does it say that a recall creates a vacancy. See PI Exh. 1, Decision at 4.Actually, that is not the case.

The recall statute specifically provides, The officer who was sought to be recalled is not

eligible as a candidate in the election to fill any vacancy resulting from the recall election.1-12-117(4), C.R.S. (emphasis added). The Constitution also states that, when voters recall the

officer at an election held for that purpose, the incumbent's seat is thereby vacated. Colo.Const., art. XXI, 3 (emphasis added). The Deputy Secretary thus was in error in suggesting that

vacancies cannot occur because of recall elections. As such, the confusion among voters about

filling this type of vacancy was real, as was the need for the petition to specifically state that an

election would be held to name a successor.

Regardless, the Deputy Secretary here focuses on jargon. It is unreasonable to suggestthat the average voter thinks of a seat that becomes empty as anything other than a vacancy. Or

that one form of vacating an office has a legal consequence that is different than any other.

There is certainly no record evidence of popular perceptions of this sort.

The provisions imposing the demand for an election of a successor to a recalled official

must be liberally construed, but Proponents were still obligated to comply with the fundamental

requirements for such petitions. Because these petitions did not comply with the requirements ofArticles XXI or the recall statute, they are invalid.

6. The Petition did not substantially comply with the constitutional and

statutory requirements for recall petitions.


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a. The applicable standard is substantial compliance.InLoonan, the Colorado Supreme Court articulated three factors to evaluate whether

substantial compliance has been achieved. First, a court must evaluate: (1) the extent of non-compliancethat is, whether there are isolated examples of noncompliance or what is more

properly viewed as systematic disregard for the requirements imposed by law; (2) the purpose

of the provision violated and whether that purpose is substantially achieved despite thenoncompliance; and (3) whether it can reasonably be inferred that there was a good faith effort to

comply rather than an intent to mislead the electorate. Loonan v. Woodley, 882 P.2d at 1384.

This substantial compliance standard, however it is framed, is factually driven when it is

applied. For instance, inLoonan, the proponents omitted a statement on the face from the

petition form (a single phrase in the circulator affidavit requiring that circulators certify they

have read and understand the laws relating to petitioning). The Supreme Court focused on the

second factorwhether the purpose of the statute was substantially achieved despite thenoncomplianceto find that the omission did not reflect substantial compliance. The Court

assessed the type of information that would circulators would garner if they complied with thisrequirement and what it would add to the petitioning process. Basically, compliance with that

requirement affected the amount and nature of information that would be available to signers

(such as wording on circulators badges that were being paid rather than volunteering and a

prohibition on unauthorized use on petitions of organizational emblems to suggest those groupsendorsement), as well as to avoid mistakes in the petitioning process. Id.

In contrast, inFabec v. Beck, 922 P.2d 330 (Colo. 1996), the Supreme Court consideredinitiative petitions where two notaries, who had notarized multiple petitions correctly, forgot to

affix their notary seals to two petition sections with 92 names. The District Court expresslynoted that it could identify the notaries as qualified to act in that capacity, notwithstanding the

missing seals. Still, the trial court invalidated the two affected petition sections, using a strictcompliance test from a hearing that pre-dated the Supreme Courts opinion inLoonan. Id. at

344-45.

When it received the case, the Supreme Court reversed, holding that theLoonan

substantial compliance test had been satisfied. There was no evidence of bad faith by the

proponents, but on a more substantive level, the amount of non-compliance was obviouslylimited to two petition sections and 92 signatures out of almost 90,000 signatures collected. It

was, as the Court noted, not extensive.Id. at 344. Finally, the purpose of the statute was

substantially achieved. Based on the seals for these two notaries that appeared on the otherpetition forms, there was no question that the two petition sections had been presented to andnotarized by persons with the appropriate legal capacity. Id. at 345. The Court held that those

two petition sections, as notarized, substantially complied with the law. See alsoMirandette v.

Pugh, 934 P.2d 883, 885 (Colo. Ct. App. 1997) (petition forms acceptable even though they did

not contain statutory warning on each page as provided by law; it was reasonable to requirewarning only on those pages that contained signature lines and thus would be seen by potential

petition signers).


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b. This recall petition did not substantially comply with the law.As to the firstLoonan factor regarding the extent of non-compliance, the non-compliance

here was pervasive. Every single petition that was turned into the Secretary by the Proponents

was deficient. Every single signature that was deemed valid by the Secretary was placed on a

deficient form. This was not an instance in which there was a mistake at the printer and a fewpetitions omitted the demand for an election of a successor to the recalled official; none of the

petitions complied with this legal requirement. Proponents cannot satisfy the first prong of the

Loonan substantial compliance test.

As to the secondLoonan factor, the purpose of the statute was not substantially achieved

here. There was no notice to signers that there would also be an immediate election for a

successor, if Sen. Morse was recalled. The need for that information was apparent. More than

half of the registered voters in that district were mistaken or uninformed about this fact. Andclearly the simultaneous election for a successor is material; it is expressly provided for in the

Constitution and in statute. It is part of the recall election ballot itself. Proponents cannot satisfythe second element of theLoonan test.

As to the thirdLoonan factorwhether this was a good faith error or the product of anintent to deceive voters, the record is curiously silent. Not one of the three members of the

proponents' committee testified about their frame of mind for not including this language on the

petition form they presented to the Secretary for approval. One would certainly think that, if thiswas an innocent error, they would have said so at hearing. There is also no evidence that there

was an intent to deceive on their part. But as the record is silent on this issue, the third factor

falls away in terms of importance in this Court's consideration of the substantial compliance test.

c. The Decision incorrectly applied the substantial compliance test.

In finding that the petition substantially complied with the law, the Deputy Secretary

came to the following unwarranted conclusions.

First, she found that there was a minimal amount of noncompliance. See PI Exh. 1,Decision at 5-6. In coming to this conclusion, the Deputy Secretary did not even mention the

fact that every petition failed to provide this notice. Instead, she focused on the fact that theelection for a successor would happen anyway. ButLoonan's first factor does not ask whether

the sought after election will occur, because that test would negate any consideration of whathappened as a matter of the constitutional pretext to the election. Substantial compliance tests

whether the petitioning noncompliance is isolated or systematic. Loonan, supra, 884 P.2d at1384. The evidence at hearing established that it was the latter. UnlikeFabec where

approximately 1/10 of 1% of signatures were affected by the notaries' failure to affix their seals,

this deficiency affected 100% of the petition's signatures.


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Next, the Deputy Secretary found the second factorwhether the statutory objective wassubstantially achieveddifficult to analyze because the provision's purpose is somewhat

unclear. See PI Exh. 1, Decision at 6. She concluded that the demand language seems to be

more of a formality than having any specific purpose.Id. However, that conclusion means thatvoters adopted this language in the first instance and the legislature enacted and later reenacted it

all for no reason. Constitutional and statutory language is not intended to be meaningless and

devoid of any substantive effect. Just the opposite is true. Each clause and sentence of either a

constitution or statute must be presumed to have purpose and use, which neither the courts northe legislature may ignore. Colorado State Civil Service Employees Assn v. Love, 448 P.2d

624, 630 (Colo. 1968) (emphasis added);see 2-4-201(1)(b), C.R.S. (In enacting a statute, it is

presumed that [t]he entire statute is intended to be effective.)

The secondLoonan factor strongly militates against a finding of substantial compliance.

As the Court held in that case, the second factor was dispositive because the law was clear,

direct and specific, and because (petitioners) made no attempt to comply with it. Loonan,supra, 884 P.2d at 1384. The same can be said here. The requirement is stated twice, in the

Constitution and in the recall statutes. These proponents, notwithstanding that clear language,did not insist or even suggest to the Secretary that their petition form include it. Exhs., 6, 7, 8,Tr., 42:22-43:21. They, too, made no attempt to comply with this requirement.

If the demand language is to be given a substantive meaning, the Deputy Secretary states

that the polling evidence is inadequate, as it should have surveyed only petition signers to test

whether they were confused about the step to be taken after the recall election. But that misses

the point entirely. The objective of the poll was to determine whether the universe of petitionsignersthose who would be approached by circulatorscould make informed decisions based

on the forms they were given. Compare Loonan, supra, 884 P.2d at 1384-85 (substantialcompliance based on protections for potential petition signers, not on whether specific signershad actually been deceived without them). In any event, there was no evidence presented at

hearing that a scientifically accurate survey of the entire Senate district would produce results

that were different than the poll of all registered voters. In fact, the pollster who testified

suggested there was likely a significant cross-over between the two population sets. Tr., 77:21-78:5. Thus, the Deputy Secretary's concern is not supported by a factual basis in the record.

The Decision states that the finalLoonan factorthe good faith of the proponentswas

never in doubt. See PI Exh. 1, Decision at 5. In fact, there was never any evidence of either the

good faith or the bad faith of the Proponents. It is a non-issue for purposes of this inquiry. And

even if it had any relevance as applied here, it certainly does not outweigh the thorough extent ofnoncompliance and the fact that the purpose of the statute was not achieved here.

7. The Petition Proponents Cannot Rely on Equitable Estoppel Just Because

They Had Their Petition Form Approved by the Secretary of State.


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To the extent the Proponents here may contend that they relied to their detriment on theSecretary of State to provide them with a recall petition form that complied with the law in all

respects, such reliance would not justify equitable estoppel as against the Secretary.

InMontero v. Meyer, 795 P.2d 242 (Colo. 1990), revd on other grounds 861 F.2d 603

(10th

Cir. 1988), the Colorado Supreme Court rejected an estoppel argument where the Secretary

of State erroneously told a protestor that she could obtain an extension of time to file an amended

protest. A party cannot state a claim for relief under a theory of estoppel against a state or localgovernment entity on the basis of an unauthorized action or promise.Montero v. Meyer, 795

P.2d at 249, citing Seeley v. Board of County Commissioners, 791 P.2d 696, 701 (Colo. 1990).

Like inMontero, to the extent the Secretary of States office erred in formatting its recall petition

template, the Proponents cannot rely on a theory of estoppel simply because the Secretary ofState made an unauthorized action or promise. Id. When the government makes a mistake, and

even when it repeats the mistake, there is no right of equitable estoppel. Id.

Moreover, a committee cannot rely on the Secretary's representations where the staff of

that office advises petitioners to seek their own legal counsel. Committee For Better Health

Care for All Colorado Citizens v. Meyer, 830 P.2d 884, 892 (Colo. 1992). The Secretary's staffdid exactly that here. In three separate email sent on April 2, 2013 to the member of the

Proponents committee who was dealing with the petition approval process, the staff of the

Ballot Access Unit provided this specific statement:

The information contained in this email and any attachments hereto is meant

to provide only limited guidance regarding the interpretation of Colorado

election laws and regulations. Nothing in this message shall be considered

legal advice. The Colorado Secretary of States office cannot provide legaladvice. If you require legal counsel, please consult an attorney.

Exhs. 6,7,8 (bold in originals). None of the three main proponents testified at hearing that theydid not understand this admonition. Thus, Proponents were not entitled to rely on the petition

format that was previously used by former secretaries of state.

B. There exists a danger of real, immediate, and irreparable injury which may be

prevented by injunctive relief;

There is a danger of real immediate and irreparable injury here, if the recall election

overtakes the prescribed process for judicial review of the petition sufficiency determination, andthe recall election occurs before judicial review is complete. See Colo. Const., art. XXI, 2; 1-

12-108(9)(b), C.R.S. An injury is irreparable only if it cannot be undone through monetaryremedies. Montero v. Meyer, 696 F.Supp. 540, 550 (D. Colo. 1988), revd on other grounds, 861

F.2d 603 (10th

Cir. 1988).

Kleinsmith, a registered elector of the State of Colorado and State Senate District 11, will

suffer irreparable injury if Senator Morse is recalled from office based on an insufficient recall


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petition. If a recall election proceeds before the judicial review process is complete, and a courtlater determines that the Secretarys sufficiency determination was incorrect, then real,

immediate, and irreparable injury will occur that monetary remedies cannot undo. Id.

Specifically, the prospect of an election that recalls Morse, only to have the election

result nullified because the Proponents failed to meet the bare minimum in the petitioning

process, would undermine Kleinsmiths representation in the State Senate. A resulting dispute

over the duly elected representative of Senate District 11 could be nighmarish, see Arnold v.Hilts, 121 P. 753, 757 (Colo. 1912), but would certainly be needless given that this election is not

warranted as a matter of law. Idaho Springs v. Blackwell, 731 P.2d 1250, 1252-1253 (Colo.

1987) (trial court enjoined election where initiative petitions were facially defective, as a

matter of law, and thus did not merit an election; trial court had the jurisdiction to make thisdetermination);see also Val d'Gore, Inc. v. Town Council of Vail, 566 P.2d 343, 345 (Colo.

1977) (no election required where annexation petitions were facially defective). Conversely,

Kleinsmith is not required to have her elected representatives dedicate any portion of theremainder of their terms of office to successfully fending off recall elections that do not meet the

requirements of state law.

This Court should issue an injunction as to the scheduling decision by the Governor until

such time that judicial review of the Secretarys petition sufficiency determination is complete.

If the final determination after judicial review is that the recall petition is sufficient, then the

recall election can proceed. Conversely, if, as Kleinsmith asserts, this Court or the ColoradoSupreme Court confirms that Colorado law requires recall petitions to contain a demand for an

election of a successor, then the recall petitions are insufficient and no recall election should

proceed. There are no monetary remedies that can undo the recall of Senator Morse if judicial

review later determines that the recall petition was improperly deemed sufficient. Rather, thebetter course is to enjoin the recall election until judicial review has concluded and there is a

final decision on the sufficiency of the recall petition. See Bernzenv. City of Boulder, 525 P.2d

at 418.

C. There is no plain, speedy, and adequate remedy at law.

There is no plain, speedy, or adequate remedy at law which can provide redress here if a

scheduled recall election overtakes the prescribed process for judicial review of a petition

sufficiency determination. See Colo. Const., art. XXI, 2; 1-12-108(9)(b), C.R.S. Both theconstitutional and statutory recall provisions provide for a remedy at law in the form of judicial

review of a finding as to the sufficiency of any petition. Id. Any judicial review is to bedetermined forthwith, Colo. Const., art. XXI, 2, and to be summary in nature, including any

subsequent review by the Colorado Supreme Court. 1-12-108(b)(b), C.R.S. Such a legalremedy, however, is inadequate if a recall election occurs before judicial review is complete.

If judicial review results in a finding that the Morse Petition is insufficient, but in themeantime the recall election occurs, then there is no adequate remedy at law for Kleinsmith. The

prescribed remedy of judicial review will be too little too late, and no amount of damages or


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other award will offset the impact of an unlawful recall election. Prompt injunctive relief is theonly practical and effective remedy. Failure to substantially comply with statutory requirements

by those responsible for calling, scheduling, and conducting an election is a basis for enjoining

the election. See Crowe v. Wheeler, 439 P.2d 50, 52 (Colo. 1968);Bernzen, 525 P.2d at 418;seealso Davidson v. Sandstrom, 83 P.3d 648, 659 (Colo. 2004).

The Supreme Court has addressed this factual scenario several times, and it uniformly

comes down on the side of the mutuality of the protest process and the right to obtain injunctiverelief. A statutory procedure for challenging initiative petitions is not a partys sole remedy and

thus does not deprive a court of jurisdiction in a suit to enjoin placing measure on ballot. City of

Glendale v. Buchanan, 578 P.2d 221, 225 (Colo. 1978) (citations omitted).

Moreover, if the recall election occurs while judicial review of the sufficiency of the

petition is pending, the issues under judicial review may be mooted by the election. See Wise v.

Lipscomb, 434 U.S. 1329, 1334 (1977). Because there is no plain, speedy, and adequate remedyat law, a preliminary injunction is appropriate here.

D. A preliminary injunction will serve the public interest.

Here, the public interest is served if a recall election proceeds only when it is based on a

sufficient recall petition that complies with all constitutional and statutory requirements. Colo.

Const., art., XXI; 1-12-100.5 et seq, C.R.S. While the sufficiency of the recall petition remainsin doubt and is under judicial review, a preliminary injunction will serve the public interest.

A recall election is only warranted where the election is clearly authorized by law.

Where the fundamental legal authority for that election is lacking, an injunction is warranted.Elkins v. Milliken, 249 P. 655, 657 (Colo. 1926). The public interest is not advanced by the

scheduling and, potentially, holding of unauthorized elections. If, as Kleinsmith argues here,

those calling for the recall did not substantially comply with constitutional and statutoryrequirements, then the scheduling of that election should be enjoined. See Crowe v. Wheeler,

439 P.2d at 52;Bernzen, 525 P.2d at 418; Sandstrom, 83 P.3d at 659.

E. The balance of equities favors the injunction.

The balance of equities tips in favor of enjoining any recall election until judicial reviewof the Secretarys petition sufficiency decision is complete. When weighing the irreparable harm

that may be prevented by enjoining the recall election, against the harm to the recall petitionproponents if the election is enjoined, the balance of the equities favors the injunction. Because

the Colorado Legislature does not convene again until January 2014, there will be ample time tohold a recall election after the judicial review process is complete and before the next legislative

session starts.

Notably, Kleinsmith only seeks to enjoin the scheduling of the election. The scheduling

of an election is a lesser imposition on defendants. The issue is only whether the election should


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be scheduled while its legality is still in question. Even the defendants could not possibly wantto hold an election that has no effect or meaning.

The short delay that might result from an injunction as requested herein is harmless whenviewed in context. The Colorado Legislature is not in session and, thus, no legislator may vote

on proposed legislation. Moreover, any harm flowing from a short delay in the fixing of a date

for a recall election is far outweighed by the irreparable injury that will befall Kleinsmith if

Senator Morse is recalled on the basis of an insufficient recall petition. The balance of theequities favors an injunction here. See Elkins, 249 P. at 657; Crowe, 439 P.2d at 52.

F. An injunction will preserve the status quo pending a trial on the merits.

An injunction will preserve the status quo until the prescribed remedy at lawjudicial

review ofKleinsmiths Protest ofthe Secretarys recall petition sufficiency decisionis

complete. The status quo is that the Colorado Legislature is not in session, and does not conveneagain until January 2014. Under the status quo, no legislator, including Senator Morse, can cast

votes on proposed legislation.

Because the judicial review process for a decision on the sufficiency of a recall petition

must be determined forthwith and summary, there will be ample time to conduct a recall

election after judicial review is completed, and before the beginning of the next legislative

session in January. Colo. Const., art. XXI, 2; 1-12-108(b)(b), C.R.S. The Governor isrequired to set a date for the recall election not less than forty-five nor more than seventy-five

days after the petition has been deemed sufficient and the time for protest has passed. C.R.S.

1-12-111. But right now, the time for the Protest has not yet passed, as it remains ongoing by

means of this review. See C.R.S. 1-12-108(9)(b) (district court is authorized to review mattersof substance stemming from an election officials consideration of protest). While the Protest

remains ongoing, an injunction will preserve the status quo until judicial review of the

Secretaryspetition sufficiency determination is complete, and any minimal delay in schedulingan election is not an unreasonable price to pay under our Constitution. See In re Fire & Excise

Comm'rs, 36 P. 234, 242 (Colo. 1894).

If judicial review confirms that Colorado law requires recall petitions to contain a

demand for an election of a successor, then the recall petitions are insufficient and no recallelection should proceed. To the contrary, if no injunction enters, then a recall election will likely

proceed before judicial review is complete, and the status quo may be forever altered. See

Elkins, 249 P. at 657; Crowe, 439 P.2d at 52;Bernzen, 525 P.2d at 418; Sandstrom, 83 P.3d at659. Therefore, the only way to preserve the status quo, and to ensure the integrity of any recallelection, is to grant Kleinsmiths' request for injunctive relief.

G. No Bond Is Necessary Because There Is No Risk of Economic Injury.

No Security is necessary in this matter because any delay caused by an injunction will not

result in economic injury to any party. C.R.C.P. 65(c) requires a party seeking injunctive relief


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to give security in such sum as the as the court deems proper "for the payment of such costs anddamages as may be incurred or suffered by any party who is found to have been wrongfully

enjoined or restrained." Apache Village, Inc. v. Coleman Co., 776 P.2d 1154, 1155 (Colo. Ct.

App. 1989).

The amount of security is discretionary with the court so long as it bears a reasonable

relationship to the potential costs and losses occasioned by a preliminary injunction which is

later determined to have been improperly granted. Zoning Board of Adjustment v. DeVilbiss, 729P.2d 353, 357-58 (Colo. 1986) (Because the granting of a preliminary injunction is appealable

under C.A.R. 1(a)(3), the security requirement of C.R.C.P. 65(c) can be limited to the probable

costs and damages attributable to the cessation of activity during this preliminary phase of the

case). No bond should issue here, because there will be no cessation of activity that will giverise to probable costs and damages.

WHEREFORE, based on the foregoing, Plaintiff moves this Court for a preliminaryinjunction enjoining the scheduling and conducting of any election on the petition to recall

Senator John Morse until the judicial review process is complete.

Respectfully submitted this 9th

day of July, 2013.

HEIZER PAUL GRUESKIN LLP

By: s/Mark G. GrueskinMark G. Grueskin

Martha M. TierneyHeizer Paul Grueskin LLP

2401 15th Street, Suite 300Denver, Colorado 80202

Phone Number: (303) 595-4747

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

E-mail: [email protected]

ATTORNEYS FOR PLAINTIFF

In accordance with C.R.C.P. 121 1-26(9), 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.

Morse recall petition appeal

Documents

Transcript of Morse recall petition appeal