Vous êtes sur la page 1sur 35

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, June Marie 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 and Recorder for the City and County of Broomfield, State of Colorado; 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. 6748 Martha M. Tierney, No. 27521 Heizer Paul LLP 2401 15th Street, Suite 300 Denver, CO 80202 Phone: (303) 595-4747 Fax: (303) 595-4750 E-mail: eramey@hpfirm.com E-mail: mtierney@hpfirm.com Case No.: 2013SA306

BRIEF OF PLAINTIFFS-APPELLEES

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

ii

TABLE OF CONTENTS Page(s) STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1 STATEMENT OF THE CASE .................................................................................. 1 I. II. Nature of the Case, Course of Proceedings, and Disposition Below..................................................................................................... 1 Statement of the Facts ........................................................................... 4

ARGUMENT ............................................................................................................. 7 I. II. Summary of Argument .......................................................................... 7 Argument ............................................................................................... 7 A. B. Standard of Review on all Issues ................................................ 7 The Secretary of States Temporary Election Rule 10.7.5 is Directly Contrary to Controlling Statutory Law ......................... 8 1. The Secretary is not empowered to adopt rules which conflict with, and are not authorized by, applicable statutory law and such rules are void ............................ 8 Principles of statutory interpretation applicable to this case.................................................................................... 8 The plain language of the statutory scheme at issue ...... 10 Further considerations in the statutory interpretation..... 14 The policy behind the statutory language....................... 17 Conclusion ...................................................................... 20

2. 3. 4. 5. 6. C.

Proceedings under 1-1-113, C.R.S. (2013), are not restricted to actions brought and adjudicated prior to the day of an election ...................................................................................... 20

iii

1. 2.

This issue is not properly before this Court on appeal ... 20 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 ......................................... 21 Conclusion ...................................................................... 24

3.

CONCLUSION ........................................................................................................ 24

iv

TABLE OF AUTHORITIES Page(s) Cases A.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

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 (11th Cir. 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 Statutes 1-10-202, C.R.S. (2013) ...........................................................................................2 1-1-101, C.R.S. (2013) .................................................................................... 10, 23 1-11-103(1), C.R.S. (2013) ....................................................................................21

vi

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 vii

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 Authorities 133 A.L.R. 319 (1941) .............................................................................................17 26 AM.JUR.2D Elections 358 (2013) ......................................................................17 Adams County Election Summary Report (Official Final Results), Adams County Clerk & Recorder, at http://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 Rules C.R.C.P. 65 ..............................................................................................................24 C.R.E. 201 ..................................................................................................................6 Temporary Election Rule 10.7.5 ...................................................................... passim

viii

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 Day in the wake of a controversy regarding the eligibility of one of the candidates for the Adams 12 Director District 4 seat the

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 ARE PRINTED, THAT AN INDIVIDUAL WHOSE NAME APPEARS ON THE BALLOT IS NOT QUALIFIED FOR OFFICE, THE VOTES CAST FOR THAT INDIVIDUAL ARE INVALID AND MUST NOT BE COUNTED. On November 14, 2013 prior 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 all candidates 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].

The District Court conducted a forthwith hearing, at which all parties appeared in person and/or through counsel, on November 18, 2013. At the conclusion of the hearing, the Court entered its ruling from the bench. [Supp. Doc. 5, Gessler App. for Review, pp. 45-54]. The Court held Temporary Rule 10.7.5 to be invalid and in excess of the Secretary of States statutory authority, and directed the other Defendants to comply with their statutory duties to complete and certify a vote count for all candidates in the Adams 12 election as required by articles 10 and 11 of title 1, C.R.S. (2013). The Secretary of State filed an Application for Review Pursuant to 1-1113(3) with this Court on November 21, 2013. This Court accepted jurisdiction by Order of November 25, 2013. In the interim, the Defendants-Appellees Clerks and Recorders complied with the District Court order and completed and reported the vote counts for all candidates in the Adams 12 school director races. The Defendant-Appellee Designated Election Official requested and obtained an uncontested stay, pending a ruling from this Court, of the statutory requirement that the Adams 12 Board declare a vacancy for the Director District 4 seat as a consequence of the election results.

II.

Statement of the Facts. The circumstances giving rise to this dispute emanate from an electoral race

between two candidates Amy Speers and Enrico Figueroa for the Director District 4 seat on the Adams 12 Board of Education.1 Pursuant 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 Day after ballots had been printed and mail ballot voting was underway the 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, 2013 while the voting continued the Designated Election Official sent letters to the Clerks and Recorders of both Adams and Broomfield Counties, advising them of her determination of Ms. Speers
1

Though 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).
2

The Court is advised that Mr. Figueroa, together with four other individuals, filed an 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 in the within appeal (as discussed in the Argument below). 4

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 issue in 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 PlaintiffsAppellees 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,

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 10.7.5 is that the votes cast 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 votes remain valid and must be counted as the Clerks and Recorders were intending to proceed and, if an ineligible candidate receives the highest number of votes, a statutorily mandated vacancy appointment process must be initiated.

The 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 Summary Report (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) at http://www.ci.broomfield.co.us/DocumentCenter/View/6565. 6

ARGUMENT I. Summary of Argument. 1. When a candidate in a school board director election whose name

appears on the ballot, and who neither dies nor submits an acknowledged letter of withdrawal from candidacy receives 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. [PlaintiffsAppellees 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,

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

1.

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 8

of the words and phrases selected by the General Assembly. A.M., supra, 296 P.3d at 1030; accord Yale, 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 above and 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 is not binding on the this court Coffman v. Colorado Common Cause, 102 P.3d 999, 1005 (Colo. 2004) and deference

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 votes properly cast by an eligible elector for a

10

candidate to be deemed invalid and direct that they not be counted. First, 1-41001(1), C.R.S. (2013), provides that a nominated4 or designated candidate may withdraw by filing a signed and acknowledged letter with the designated election official and 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). And most importantly for the present case neither 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 candidate or double votes for a write-in candidate (even if qualified) and a candidate appearing on the ballot shall not be counted. Again, this section is not applicable here.

A petitioning school district director candidate would be deemed nominated per 1-4-803, C.R.S. (2013).

11

Viewing these sections together, it is apparent that the General Assembly knows quite well how to provide that votes not be counted, and to specify precisely the circumstances in which this should occur. Notably absent from these enumerated circumstances are situations in which votes are cast for a candidate whose name is printed on the ballot, who has neither died nor withdrawn his or her candidacy, yet is determined for any reason to be ineligible or unqualified to hold office. Outside of the contexts specifically enumerated above, the General Assembly has adopted another procedure. As directly applicable to school director elections, 22-31-129, C.R.S. (2013), specifies a variety of circumstances under which [a] school director office shall be deemed to be vacant following which a specific procedure is provided by which the local board of education is to fill the vacancy. Among the events triggering a vacancy are [i]f the person who was duly elected or appointed is or becomes during the term of office a nonresident of the school district in which the person was elected or, in the event the district has a director district plan of representation or a combined director district and at-large plan of representation, if the director is or becomes during the term of office a nonresident of the director district which the director represents . . . . 22-31129(1)(d), C.R.S. (2013) (emphasis added). Another vacancy-triggering event

12

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 her and thus defaulting the election to a soundly tromped competing candidate manifestly rejected by the voters this 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 process is deemed created. Most relevantly, 1-41002(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

13

less than eighteen days before an election noting 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 invalidationand-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 22-31129(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 duly elected. 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 elected in the first place. As the District Court reasonably noted, duly elected simply means in the proper form and in

14

the proper manner a procedural emphasis. [Supp. Doc. 5, Gessler App. for Review, p. 53]. Accord, Sphinx International, Inc. v. Nat. Union Fire Ins. Co., 412 F.3d 1124, 1128 (11th Cir. 2005) (emphasis added) We, however, will not strain to find ambiguity [in the term duly elected as it appeared in an insurance policy]. Instead, like the district court, we adopt the ordinary, dictionary definition of duly that focuses on proper procedures by which Taylor was elected [rather than circumstances involving his fitness for office]. Such an approach takes the policy as it is written, rather than trying to confuse an otherwise clear provision. As importantly, the Secretarys reading would create a statutory hole where none need exist as only votes for withdrawn, deceased, or write-in candidates are explicitly subject to the vote-invalidation-and-no-count provisions of the Uniform Election Code. By excluding ineligible (including nonresident) candidates from the vacancy provisions of 22-31-129, C.R.S. (2013) as well, the Secretary would manufacture a statutory gap for them (that he apparently wishes to fill by rule). And by filling the gap as he proposes, the Secretary would create an inconsistency with the general vacancy provisions of 1-4-1002, C.R.S. (2013) (which are specifically applicable in the context of disqualified candidacies). It is respectfully submitted that it is far more appropriate to presume that the General Assembly did not intend to create a statutory gap, and that it did not intend it to be filled by the

15

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 2231-129, C.R.S. (2013), must arise during rather than before a 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 and prior 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 (which juxtaposed 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 1-41002(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 22-31129(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 election for any cause whatsoever clearly incorporate triggering circumstances arising before a term of office commences. And it creates another wholly inexplicable statutory gap.

16

5.

The policy behind the statutory language.

Perhaps the most biting element of the Secretarys arguments is his repeated characterization of the criticisms of his Temporary Rule by the Plaintiffs-Appellees and the District Court as absurd. In fact, the Plaintiffs-Appellees and the District Court and indeed the Colorado General Assembly are far more aligned with what is colloquially known as the American Rule than is the Secretary. And Colorados statutory scheme as understood by the District Court and the Plaintiffs-Appellees, and without the interpretive gaps and inconsistencies posed by the Secretary is grounded in a longstanding tradition. Though there is some conflict among jurisdictions, [a]ccording to the American Rule, votes cast for a deceased or disqualified person are not to be treated as void or thrown away, but are to be counted, although the voters knew of the death or disqualification. 26 AM.JUR.2D Elections 358 (2013). In such a case, in the absence of a statute to the contrary, the result is to render the election nugatory, and to prevent the election of the person receiving the next highest number of votes. If a deceased or disqualified person receives the highest number of votes, the election may be void or the office vacant. Id. Accord, 133 A.L.R. 319 (1941) The general rule is that votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such person to office, are not to be

17

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 precisely with a vengeance the circumstance here. And though the statutes have evolved, the same principle is clearly embodied in the current codes.5
5

See 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). 18

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 voters whose right and eligibility to participate in the electoral process is not at issue by counting their votes and not deeming their votes to be invalid. It recognizes that votes are often cast as much against one candidate as in favor of another. It does not allow ineligible or disqualified candidates to take office even if they receive the highest number of votes though 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 voters partisan 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.

19

6.

Conclusion.

As determined by the District Court, the Secretary of States Temporary Election Rule 10.7.5 is contrary to controlling statutory law, in excess of the Secretarys jurisdiction, and should be declared void and of no effect. C. Proceedings under 1-1-113, C.R.S. (2013), are not restricted to actions brought and adjudicated prior to the day of an election. This issue is not properly before this Court on appeal.

1.

Plaintiffs-Appellees claims against the Secretary of State the issues on appeal here were and are asserted exclusively under 24-4-106(4), C.R.S. (2013). Only the claims against the other Defendants below (Defendants-Appellees here) were asserted under 1-1-113, C.R.S. (2013). [Supp. Doc. 1, Gessler App. for Review, 2, 33, 35]. Similarly, the District Courts ruling against the Secretary of State was entered pursuant to 24-4-106(4), and only against the present Defendant-Appellees under 1-1-113. [Supp. Doc. 5, Gessler App. for Review, pp. 46-47]. As the only party appellant in these proceedings, the Secretary has not been aggrieved, and therefore lacks standing to challenge the District Courts assumption of jurisdiction exclusively over the other Defendants under 1-1-113, C.R.S. (2013). Colorado Permanente Medical Group, P.C. v. Evans, 926 P.2d

20

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 directed completion 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 results have 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,7 Plaintiffs-Appellees submit the following argument.

Any 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 Court or by the nonparty 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 the ruling of the District Court are not before the Court and would be premature at this stage.
7

People in the Interest of O.C., supra, 308 P.3d at 1220. 21

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 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 specifically does not say that this procedure is applicable exclusively to controversies arising let alone adjudicated prior 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 preelection 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 purpose not words that restrict the availability of other methods of adjudication during the pre-election time frame.

22

When a statute is amended, the judicial construction previously placed upon the statute is deemed approved by the General Assembly to the extent that the provision remains unchanged. Rauschenberger v. Radetsky, 745 P.2d 640, 643 (Colo. 1987) (noting that where the General Assembly addresses one issue in an amendment but does not specifically address a second one, the conclusion is compelling that the General Assembly did not intend to address the second issue). Nor, as the District Court noted [Supp. Doc. 5, Gessler App. for Review, pp. 47-48] is there logic to the Secretarys argument. Section 1-1-113(1) provides that the statute applies to controversies involving any official charged with any duty or function under this code. This code refers to the Uniform Election Code, articles 1-13 of title 1, C.R.S. (2013). 1- 1- 101, C.R.S. (2013). These articles cover a myriad of official activities occurring on and after the day of an election from the operation of polling places (article 7, part 1), the counting of paper ballots (article 7, part 3), the operation of voting machines (article 7, part 4) and electronic voting equipment (article 7, part 5), the certification, posting, and delivery of election returns (article 7, parts 6 and 7), the preservation of ballots (article 7, part 8), the treatment of provisional ballots (article 8.5), the handling of challenges to voting (article 9, part 2), the survey of returns (article 10), recounts (article 10.5), and the issuance of certificates of

23

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 1-1-113 process 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.

24

Respectfully submitted this 16th day of December, 2013.

HEIZER PAUL LLP

By: s/Edward T. Ramey Edward T. Ramey, No. 6748 Martha M. Tierney, No. 27521 2401 15th Street, Suite 300 Denver, Colorado 80202 Phone Number: (303) 595-4747 FAX Number: (303) 595-4750 E-mail: eramey@hpfirm.com E-mail: mtierney@hpfirm.com Attorneys for Plaintiffs-Appellees

25

CERTIFICATE OF SERVICE I hereby certify that on this 16th day of December, 2013 a true and correct copy of the foregoing BRIEF OF PLAINTIFFS-APPELLEES was filed and served via the Integrated Colorado Courts E-Filing System to the following: John W. Suthers, Attorney General Leeann Morrill, First Asst. Attorney General Matthew D. Grove, Asst. Attorney General Sueanna P. Johnson, Assistant Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6th Floor Denver, CO 80203 Email: Leeann.Morril@state.co.us; Matt.Grove@state.co.us; Sueanna.Johnson@state.co.us Attorneys for Petitioner-Defendant Secretary of State Scott Gessler William A. Tuthill, III City and County Attorney of Broomfield One Descombes Drive Broomfield, CO 80020 Email: citycountyattorney@broomfield.org Attorney for Defendant-Appellee Jim Candelarie, Clerk and Recorder for the City and County of Broomfield Heidi M. Miller, County Attorney Jennifer D. Stanley, Assistant County Attorney Adams County Attorneys Office 4430 South Adams County Parkway 5th Floor, C5000B Brighton, CO 80601 Email: hmiller@adcogov.org; jstanley@adcogov.org Attorneys for Karen Long, Clerk and Recorder for Adams County

Gillian Dale Thomas J. Lyons Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, CO 80202 Email: daleg@hallevans.com; lyonst@hallevans.com Attorneys for Defendant-Appellee Frances E. Mullins as Designated Election Official for Adams 12 Five Star School District

s/Amy Knight

26

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.

27