Colorado Secretary of State rejects legal challenge to Morse recall petition; Morse to move challenge to district court

The Colorado office of Secretary of State (Deputy Secretary of State Suzanne Staiert, a former district court judge, presiding) issued a ruling late Wednesday afternoon, 3 July 2013 (the statutory deadline) rejecting a legal challenge mounted by Colorado Senate President John Morse contesting the validity of petition signatures calling for his recall from office.  The ruling, issued pursuant to a public hearing held last Thursday in which a Morse supporter (as plaintiff) and the Recall campaigns (as respondent) presented evidence, witness testimony, and legal argument, conclusively rejected the arguments advanced by Morse et. al. and officially certified the petition as “sufficient” to qualify, putting the recall effort on track for the ballot:

“The Morse recall petition format meets all constitutional and statutory requirements; the petition format laws must be liberally construed in favor of allowing the recall exercise; and Representatives substantially complied with the law even if the constitution and election code are interpreted to require the statement demanding the election of a successor.”

However, Morse (via attorneys) has already signaled his intent to continue his challenge of the petition (along with the Secretary of State’s ruling) in (Denver) district court.

Earlier Wednesday, the Secretary of State also rejected a request by Morse’s attorney Mark Grueskin (also representing embattled state senator Angie Giron, also targeted for a recall vote) for the recusal of the Secretary of State’s office from presiding over a hearing on an identical challenge in that case.

Legal maneuvering in the paired legal challenges to recall petition efforts is only likely to get more frenetic over the coming weeks, as the cases move to district court.  Any appeal from THAT court would bypass the Colorado Court of Appeals and go directly to the Colorado Supreme Court on an expedited schedule due to constitutionally-mandated tight timelines.

Deputy Secretary of State Suzanne Staiert’s ruling conclusively rejected each of Morse’s arguments, and although the district court will hear evidence de novo at trial, the judge will certainly have to take notice of the ruling as evidence.  Key points from the ruling:

1.  The Morse recall petition format meets all constitutional and statutory requirements:
   “The ‘demand’ language cited by Protestor is not part of the form of the recall petition.”
   a. The demand for the election of a successor is not contained in the sections of law that specify the petition format.
   [Synopsis of Argument]:
   Since the “demand language” is only included in the section (1) providing legal authority for recalling state officers, but NOT in the section (2) specifying what the petition must include (in either the state Constitution OR state statute), AND as there is no “right to protest” under Section 1, protest on those grounds is barred.
   b.  The constitution and election code specifically mandate petition language
   [Synopsis of Argument]:
   Since “portions of the constitution and the election code state, in very specific language, what words and phrases must be included on the form of the petition” and “[n]o such clear requirement or mandate exists for the procedural ‘demand’ language anywhere in the constitution or election code” the ‘demand’ language cannot be deemed as an affirmative requirement for a recall petition.  Further, since the constitutional and statutory process includes the election of a successor (irrespective of petition language) it is inherent in the definition of “recall” and does not require separate exposition.
   c. Combs v. Novak did not address the ‘demand’ language, rather it addressed the application of the constitution to municipalities
   [Synopsis of Argument]:
   A key case (Combs v. Novak) relied upon by plaintiffs is inapposite (i.e. not relevant)
2. Petition format laws must be liberally construed in favor of allowing the recall exercise
   a. Recall is a fundamental right
   [Synopsis of Argument]:
   Since recall is a ‘fundamental right’ and in legal precedent it is “well-established that statutes governing the recall power must be liberally construed in favor of the ability to exercise the power, and any limitations on that power must be strictly construed” the protest fails to meet standards of legal review necessary to overturn the petition.
   Additionally, the argument that the first part of the recall process creates a “vacancy” is decisively rejected, since “the term ‘vacancy’ is a specific term in Colorado election law; only certain events create a ‘vacancy’ and recall is not one of them.”
   b. A strict construction makes the recall process impossible
   [Synopsis of Argument]:
   The sections of both the constitution and election code are “so specific as to what may be on the petition that both necessarily exclude the ‘demand’ language that Protestor alleges must be present.”  As a result, “an interpretation that gives all three provisions their full literal effect would require petitioners to include a ‘demand’ statement that can’t be a part of the other two statements on the petition.  Under this scenario, no one could ever comply with the recall law.  The legislature never intended this impossibility.”
3. Even if the constitution and election code are interpreted to require the statement demanding the election of a successor, Representatives substantially complied with the law
   The Colorado Supreme Court has time and again applied a “substantial compliance” standard in voting rights cases.
   a. Representatives made a good-faith effort to comply with the law and did not consciously attempt to mislead the electorate
   [Synopsis of Argument]:
   Since “all evidence leads to the conclusion that Representatives made a good-faith effort to comply with the law” and “Protestor alleges no bad-faith on the part of the Representatives, and no evidence of bad-faith was brought forth at the hearing” even potential noncompliance is “minimal” at worst.
   b.  Any potential noncompliance is minimal
   [Synopsis of Argument]:
   Since the result of the petition is that “an election would happen whether the Representatives specifically demanded it or not” as part of the recall process, any potential noncompliance is minimal
   c. The purpose of demanding the election of a successor is achieved despite the alleged noncompliance
   [Synopsis of Argument]:
   The question of whether the purpose of the allegedly violated provision was achieved is central to judicial review; “because an election will be called even in the absence of the ‘demand’ language, the Secretary of State finds that the purpose of the provision is achieved despite any alleged noncompliance.”
   The Secretary of State also conclusively dismissed the relevance of poll results submitted as evidence by plaintiffs alleging that without the ‘demand’ language, petitioners could not know the impact of what they were signing.  Since the pollster could not document that ANY of those contacted were actual petition signers, “the poll results shed little light on what actual petition signers believed was the next step in the petition process” – thus, “there is no evidence in the record that petition signers did not know the next step in the recall process.”

• FINDING:  “For the reasons stated above, the Secretary of State finds that the petition recalling Senator John Morse is sufficient.”

Analysis:

Deputy Secretary of State Suzanne Staiert’s ruling is sufficiently clear and comprehensive that an appeal (even in the normally “Left-leaning” Denver District Court) will find tough going.

Quo Vadis?

Senate President John Morse (via attorneys) has already signaled intent to continue the legal challenge in Denver District Court (which is the standard court in which to bring legal challenges of this nature in Colorado).  Whoever loses in Denver District Court is almost certain to appeal, in which case it will be heard (and will most likely ultimately resolved) by the Colorado Supreme Court.

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.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.