SUPREME COURT, STATE OF COLORADO 2 East 14th Avenue
Denver, Colorado 80203
Appeal from the District Court, County of Denver, Colorado
The Honorable Robert L. McGahey Case No. 13CV33491
Appellants:
GILBERT ORTIZ, in his official capacity as Pueblo County Clerk and Recorder, and ROBERT W. NEMANICH
v.
Appellees:
THE LIBERTARIAN PARTY OF
COLORADO; RICHARD N. ANGLUND, GORDON ROY BUTT, WAYNE WILLIAMS, in his official capacity as El Paso County Clerk and Recorder, and SCOTT GESSLER, in his official capacity as Secretary of State of the State of Colorado.
▲COURT USE ONLY▲
Attorneys for Appellant Robert W. Nemanich
Mark G. Grueskin, No. 14621 Edward T. Ramey, No. 6748 Martha M. Tierney, No. 27521 Heizer Paul Grueskin LLP 2401 15th Street, Suite 300 Denver, CO 80202 Phone: (303) 595-4747 Fax: (303) 595-4750 E-mail: mgrueskin@hpgfirm.com; eramey@hpgfirm.com; mtierney@hpgfirm.com Case No.:
Appellant Robert W. Nemanich submits this Notice of Appeal under C.A.R. 3, and C.R.S. § 1-1-113(3):
I. NATURE OF THE CASE A. Nature of the Controversy
In connection with recall elections that are scheduled for State Senator John Morse (District 11) and State Senator Angela Giron (District 3), Appellees
Libertarian Party of Colorado (“LPC”), Richard N. Anglund, and Gordon Roy Butt filed an action in Denver District Court to extend the time allowed for submission of candidate petitions in order that they might appear on the ballot as possible replacement candidates.
Anglund and Butt contend they are not required to comply with Colorado statutes that provide candidate petitions may be circulated: (1) as early the date when a protest to the recall petition may be submitted; but (2) “no later than ten days after the designated election official sets the election date.” C.R.S. § 1-12-117(1). Here, that period ran from June 18 (Morse) and June 25 (Giron) through July 29, providing persons interested in becoming candidates with 41 and 34 days respectively for the filing of such petitions. Two candidates, one in District 11 and one in District 3, were aware of and complied with this requirement, obtained a sufficient number of signatures, and will appear on the recall election ballot as
possible replacements to Morse and Giron, should a majority of voters in each district vote to recall them.
LPC was aware of this requirement and began recruiting candidates on June 10. LPC admitted at trial that it was unsuccessful in recruiting candidates, but it learned that Colo. Const., art. XXI, sec. 3 states “petitions for nominations are required by law to be filed not less than fifteen days before such recall election.” Butt, an LPC registered voter, filed a candidate petition for District 11 with the Secretary for his approval on July 30. Anglund, a voter registered as a Democrat, did so for District 3 on July 31. The Secretary refused to approve the petition forms and so notified both individuals by letters dated August 1 and 2 respectively.
This lawsuit, seeking an order that the Secretary comply with Appellees’ interpretation of Article XXI, was filed on August 6, approximately one week later. Relief was sought against the Secretary of State and the Clerk and Recorders of Pueblo and El Paso Counties. Nemanich, a registered voter of District 11 who was pursuing a write-in candidacy for the recall ballot, filed a motion to intervene in this action, which motion was granted at the outset of the trial.
At a one-day hearing, evidence established the relief requested by plaintiffs: (1) denies dozens of military and overseas voters without email addresses or fax numbers the fundamental right to vote; (2) conditions the ability of hundreds of
military and overseas electors to vote on an undisputed and mandatory waiver of their constitutional right to a secret ballot; and (3) undermines the due process rights of any person who protests candidate petitions submitted on this delayed schedule. Nonetheless, the trial court granted the relief sought by Appellees, preventing the Pueblo and El Paso County Clerks from holding these recall elections as mail ballot elections, as they are required to do under C.R.S. § 1-7.5-104 (adopted at 2013 legislative session, HB 13-1303).
Knowing this, the District Court ordered that: (1) Butt and Anglund are permitted to petition through August 26; (2) the mail ballot election process is suspended for these recall elections; and (3) the Secretary of State has unspecified authority to address inconsistencies and noncompliance with all state election laws, as brought about by this ruling.
B. Judgment and Order Being Appealed
Appellants appeal the order, delivered from the bench and currently being transcribed, of The Honorable Robert L. McGahey of the Denver District Court. C. Whether the Judgment or Order Resolved All Issues before the Trial
Court
The August 12, 2013 Order resolved the primary issues before the Trial Court. However, Judge McGahey acknowledged that he might need to retain jurisdiction over the implementation of his order by the Secretary of State,
Williams, and Ortiz, unless an appeal was taken to this Court pursuant to C.R.S. § 1-1-113(3) in which case he would lose such jurisdiction.
D. Whether the Judgment Was Made Final Under C.R.C.P. 54(b) The Judgment was made final under C.R.C.P. 54(b).
E. The Date of Judgment or Order and the Date of Mailing to Counsel The Order issued on August 12, 2013.
F. Whether There Were Any Extensions Granted to File any Motion(s) for Post-Trial Relief.
There were no extensions granted to file any post-trial motions. G. The Date Any Motion for Post-Trial Relief Was Filed.
The parties have not filed any post-trial motions, other than a Motion for Stay, filed this day with this Court.
H. The Date Any Motion for Post-Trial Relief Was Denied or Deemed Denied Under C.R.C.P. 59(j).
The parties have not had any post-trial motions denied.
I. Whether There Were Any Extensions Granted to File Any Notice(s) of Appeal.
There were no extensions granted to file any notice of appeal.
II. ADVISORY LISTING OF ISSUES TO BE RAISED ON APPEAL A. Did the trial court err in prioritizing a putative candidate’s
vote of identifiable registered electors who are serving in the military or living overseas?
B. Did the trial court err by invalidating a state statute, when it was possible for the Court to construe the statute in a manner consistent with the Constitution, and unconstitutionality was not proven beyond a reasonable doubt?
C. Given the undisputed deprivations of fundamental
constitutional rights stemming from its Order, did the trial court err because such deprivations are inconsistent with a “finding of good cause” and a ruling “requiring substantial compliance with the provisions of this code,” pursuant to C.R.S. § 1-1-113(1)?
D. Did the trial court err in applying the election-related laches doctrine, specified in McKnight v. Whipple, 55 P. 182 (Colo. 1898), to a lawsuit over petitioning timelines that was not initiated until after other candidates finished circulating their petitions and election officials validated such petitions, determined pertinent recall election procedures, prepared and ordered the printing of recall ballots, and mailed ballots to military and overseas voters in each district?
E. Did the trial court have authority to give the Secretary of State unspecified powers to revise any statutory mandates that are
associated with recall elections in Senate Districts 3 and 11 but inconsistent with the District Court’s ruling, when Colorado statutes provide specific requirements including timelines, election notices, and voting procedures?
III. TRANSCRIPT INFORMATION
Transcript of the District Court Hearing of August 12, 2013, decision is being transcribed at the current time and will be provided to the Court by noon on August 15.
IV. ATTORNEY INFORMATION Mark G. Grueskin
Edward T. Ramey Martha M. Tierney
Heizer Paul Grueskin LLP 2401 15th Street, Suite 300 Denver, CO 80202 Phone: (303) 595-4747 Fax: (303) 595-4750 E-mail: mgrueskin@hpgfirm.com; eramey@hpgfirm.com; mtierney@hpgfirm.com
Richard C. Kaufman
Ryley Carlock & Applewhite 1700 Lincoln Street, Suite 3500 Denver, CO 80203
Phone: (303) 863-7500
Email: rkaufman@rcalaw.com
Attorneys for Appellant Pueblo County Clerk and Recorder Gilbert Ortiz
Steven Klaffky Diana K. May Amy Folsom
Office of the County Attorney of El Paso County, Colorado 200 S. Cascade Avenue, Ste 150 Colorado Springs, CO 80903 Phone: (719) 520-6485 Fax: (719) 520-6487 Email: DianaMay@elpasoco.com Email: AmyFolsom@elpaso.com Email: StevenKlaffky@elpasoco.com
Attorneys for Appellee El Paso County Clerk and Recorder Wayne W. Williams
Matthew Grove LeeAnn Morrill Kathryn Starnella
Office of the Attorney General 1300 Broadway, 6th Floor Denver, CO 80203 Phone: (720) 508-6157 Email: Matthew.Grove@state.co.us Email: Leeann.Morrill@state.co.us Email: Kathryn.Starnella@state.co.us
William F. Robinson III Robinson & Robinson, PC. 4105 E Girard Ave
Denver, Colorado 80222 Phone: (303) 758-1125
Email: williamfrobinsoniii@gmail.com
Attorneys for Appellees The Libertarian Party of Colorado, Gordon Roy Butt, and Richard N. Anglund
Matthew Ferguson
119 South Spring Street, Suite 201 Aspen, Colorado 81611
Phone: (970) 925-6288 Fax: (970) 925-2273
Email: matt@matthewfergusonlaw.com
Attorneys for Appellees The Libertarian Party of Colorado and Gordon Roy Butt
V. APPENDICES TO THIS APPEAL No Appendices are attached to this Notice of Appeal.
Respectfully submitted this 14th day of August, 2013.
HEIZER PAUL GRUESKIN LLP
By: s/Mark G. Grueskin
Mark G. Grueskin, No. 14621 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: mgrueskin@hpgfirm.com, eramey@hpgfirm.com; mtierney@hpgfirm.com
ATTORNEYS FOR APPELLANT ROBERT W. NEMANICH
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of August, 2013 a true and correct copy of the foregoing EMERGENCY NOTICE OF APPEAL was filed and served via the Integrated Colorado Courts E-Filing System to the following:
Richard C. Kaufman
Ryley Carlock & Applewhite 1700 Lincoln Street, Suite 3500 Denver, CO 80203
Email: rkaufman@rcalaw.com
Attorneys for Appellant Pueblo County Clerk and Recorder Gilbert Ortiz
Steven Klaffky Diana K. May Amy Folsom
Office of the County Attorney of El Paso County, Colorado 200 S. Cascade Avenue, Ste 150 Colorado Springs, CO 80903 Email: DianaMay@elpasoco.com Email: AmyFolsom@elpaso.com Email: StevenKlaffky@elpasoco.com
Attorneys for Appellee El Paso County Clerk and Recorder Wayne W. Williams
Matthew Grove LeeAnn Morrill Kathryn Starnella
Office of the Attorney General 1300 Broadway, 6th Floor Denver, CO 80203
Email: Matthew.Grove@state.co.us Email: Leeann.Morrill@state.co.us Email: Kathryn.Starnella@state.co.us
Attorneys for Appellee Scott Gessler
William F. Robinson III Robinson & Robinson, PC. 4105 E Girard Ave
Denver, Colorado 80222
Email: williamfrobinsoniii@gmail.com
Attorneys for Appellees The Libertarian Party of Colorado, Gordon Roy Butt, and Richard N. Anglund
Matthew Ferguson
119 South Spring Street, Suite 201 Aspen, Colorado 81611
Email: matt@matthewfergusonlaw.com
Attorneys for Appellees The Libertarian Party of Colorado and Gordon Roy Butt
Courtesy copy to:
Clerk
Denver District Court 1437 Bannock Street Denver, CO 80202
s/Amy Knight
Amy Knight
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.
