Recall Petition legal challenge to oust Colorado state senator John Morse receives hearing before CO Secretary of State
The legal challenge to the Recall petition seeking to oust Colorado state senator and Senate President John Morse (primarily, but not only, for legislation Morse rammed through this (last) year’s legislative session restricting the rights of Colorado citizens to purchase and “keep and bear arms” of their choice in self-defense) received a public hearing earlier today at the office of Colorado Secretary of State. The Secretary of State’s office had earlier certified the number of petitions as sufficient (over 150% of the amount needed) to trigger a recall election to remove Morse from office and replace him with another candidate.
The means of replacing Morse in office (the second part of the recall process) was the basis for the legal challenge (“Protest of Sufficiency Decision“) raised by attorney Mark Grueskin (on behalf of a “plaintiff” he didn’t even recognize as she was present at – but took no part in – the hearing).
Grueskin’s challenge rests on both constitutional and statutory ground relating to specifying the “election of a successor” as part of the Recall process. From the complaint:
- Article XXI, Section 1 of the Colorado Constitution requires that the petition demand the election of a successor to the recalled official and states specifically that a recall petition, “demanding an election of the successor to the officer named in said petition” is to be filed in office where nomination petitions were filed.
- Section 1-12-103 of the Colorado Revised Statutes requires that the petition demand the election of a successor to the recalled official and states specifically, “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 the officer named in the petition.”
Respondents Basic Freedom Defense Fund (represented by attorney Erik Groves) and El Paso Freedom Defense Committee (represented by attorney Richard Westfall) counter by arguing that the petitions were based on a form/template in use (and provided) by the Office of Secretary of State for Recall petitions, across several administrations, for years without challenge (including at least one successful Recall effort, in 2005) and by citing other statutory language (C.R.S. 1-12-108, Petition requirements – approval as to form) lacking any requirement for specific language calling for election of successor.
Respondents also noted that the right of Recall has been characterized as a fundamental right by the Colorado Supreme Court (pre-Mullarkey) and characterized the complaint as “an attempt to overthrow a petition supported overwhelmingly” by voters of the district who signed the petitions.
During the hearing, only the plaintiffs (having the burden of proof) called witnesses to testify and provide or confirm evidence.
Plaintiff’s attorney (Mark Grueskin) pursued 4 basic lines of questioning and argument:
1. Noting the absence of specific language calling for election on the recall petitions
Grueskin is attempting with this line of argument to highlight the fact that vacancies can be filled by other means, such as appointment by vacancy committee (in which case party affiliation would not change). Grueskin is insinuating that some petition-signers may have supported the recall effort only because they thought the incumbent’s replacement would be effected through one of these means, and not by way of election.
2. Highlighting the fact that communications from the SOS routinely include the disclaimer that SOS guidance is NOT to be taken as legal advice, and advises campaign organizers to “consult an attorney.”
Grueskin is attempting to undermine the legal defense that the petitioners relied upon the forms and guidance provided by the SOS, which could equate to “Equitable Estoppel” (reliance on advice).
3. Advancing a claim of coordination between the various Recall petition efforts
Grueskin argues that similarity in petition language, including intimations that the various Recall effort organizers may have had similar access to legal counsel, shows that petitioners all had the same opportunity to insert language referring to electing a replacement but neglected to do so.
4. Finally, Grueskin called as a witness Tom Jensen, director of Chapel Hill, North Carolina-based Public Policy Polling, an organization described as “a “Democratic-leaning” polling company because in its private client work, it conducts polls only for Democratic campaigns and progressive organizations.”
Grueskin attempted to use Jensen’s testimony regarding a PPP poll (commissioned by Grueskin) purporting to show widespread ignorance of the Recall process among voters in Morse’s Senate District 11. PPP’s poll, surveying a random sample of 381 voters in the district, returned results showing that over half of those surveyed (54%) did not understand the process for selecting a replacement in the event of a successful recall vote.
On cross-examination, Jensen admitted that the poll did not tabulate poll survey results with actual petition signers, and thus could not confirm that the survey was reflective of the knowledge of those who actually signed the petitions. As a result, the bearing of the survey as evidence is questionable.
As noted above, respondents called no witnesses and based their legal defense upon numerous examples of the use of the SOS-provided recall forms/templates by prior recall efforts (Exhibits B through J), without any challenge being mounted against the petition language, over the last decade – as well as strict compliance with the constitutional and statutory language setting out the requirements for recall petitions (Colorado Constitution Article XXI Section 2 and C.R.S. 1-12-108, respectively).
Key Points of Respective Closing Remarks
Plaintiffs argued that “the nub of the argument for not reversing this petition is simple:”
Government makes a mistake, it’s better for the mistake to be perpetuated than to be fixed.
We have 10 years of government making a mistake on Recall petitions – violating Constitutional language.
Most of Recall petitions over last decade have never met the signature threshold, and thus were never challenged.
Grueskin noted that “Proponents are right: it is a fundamental right. But – to go to the extraordinary level of ending a term of office, there are rules to follow. It’s a misnomer to call demand for election a technicality – it is half of the process.”
Grueskin further argued that “proponents did NOT rely entirely on finished templates; proponents had multiple warnings of need for legal advice; and proponents had access to legal counsel” (thereby invalidating claims to equitable estoppel based on SOS guidance).
Respondents argued that, contrary to Plaintiff’s assertions, “no mistake had been made” – and that the petitions were in strict compliance with both Constitution and statute.
Attorney Richard Westfall argued that the relevant section to determine required constitutional language is Section 2 (Form of Petition), not Section 1 (general overview); he further argued that the statutory language on what “the petition shall contain…” does NOT specify any requirement to mention the “election of successor” language.
In summary, Westfall asserted that “we have met the requirements; strict compliance w/statute and constitution standards met; petitioners have the right to rely upon format and past practice; and that the protest is about overturning a recall petition signed by over 10,000 and would overturn the clearly expressed will of the petitioners.”
On rebuttal (Plaintiff gets both the opening and concluding word), Grueskin asserted that
Westfall’s analysis concludes that if you have enough people, the rules don’t matter; the courts take a different view. Cases HAVE set aside petitions for lack of a single phrase before; the system of law is NOT about which side of the line has more people. IF they don’t follow the rules, the number of people promoting a cause does NOT matter.
In conclusion, Article XXI Section 1 is NOT irrelevant – it imposes other requirements (25% threshold of petition signatures, general statement of recall).
Why should petition be able to ignore ONE cause (demand for election) and not others?
Both sides presented strong arguments; both sides referenced constitutional and statutory language to bolster their positions. Ultimately, it may come down to interpreting the letter of the law vs. the clearly expressed intent of the voters (specifically, petition signers).
Deputy Secretary of State Suzanne Staiert, presiding over the hearing, committed to providing a ruling on the merits of THIS protest (plaintiff’s attorneys hinted at the possibility of additional protests being filed before the deadline) on Wednesday, 3 July.
In any event, it is clear that, regardless of the outcome, the protest will be moved to district court (now, the question of which district court – Denver or El Paso – could prove interesting) and the case will most likely be ultimately resolved by the Colorado Supreme Court on appeal.
An Interesting Aside?
Finally, as an interesting side note: state senator John Morse has personally weighed in previously on the subject of consulting attorneys as “the price to pay” for participation in the political process, expressing his contempt for the average citizen’s involvement in politics or policy debates. In testimony offered in opposition to campaign finance regulatory reform in December 2011 (ironically, in the very same conference room), Senator Morse said:
“Turns out that complying with all this is complicated and really does take a lawyer –
but that’s the price of the transparency…”
(Video courtesy of Ari Armstrong of Free Colorado)
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
Ultimately, though – it’s worth the effort.