8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
1/28
DISTRICT COURT, ADAMS COUNTY,
COLORADO
1100 Judicial Center Drive
Brighton, Colorado 80601
G. KAREN JAYNE SCHINDLER, JAMES
SCHINDLER, GARY MIKES, JOHN SAMPSON,
PHILLIP ELLSWORTH, and BEVERLY BERG,
individual residents of Colorado,
Plaintiffs,
v.
STAN MARTIN, in his official capacity as Adams
County Clerk and Recorder, and WAYNE
WILLIAMS, in his official capacity as Colorado
Secretary of State,
Defendants. COURT USE ONLY
CYNTHIA H. COFFMAN, Attorney General
LEEANN MORRILL, First Assistant Attorney
General, 38742*
MATTHEW D. GROVE, Assistant Solicitor
General, 34269*
SUEANNA P. JOHNSON, Assistant Attorney
General, 34840*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6thFloor
Denver, CO 80203
Telephone: (720) 508-6159 / 6157 / 6155
FAX: (720) 508-6041
E-Mail: [email protected]
[email protected]*Counsel of Record
Case No. 2014 CV 32288
Div.: W
THE SECRETARYS REPLY TO MOTION TO DISMISS
PLAINTIFFS FIRST AND SECOND CLAIMS FOR RELIEF
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
2/28
2
WAYNE WILLIAMS, in his official capacity as Colorado Secretary of State
(the Secretary), hereby files a reply to his Motion to Dismiss Plaintiffs First and
Second Claims for Relief, and as grounds therefore, states the following:
INTRODUCTION
The claims raised by Plaintiffs in this lawsuit and the extraordinary remedy
they seek in voiding the Adams County 2014 general election results transparently
attempt to establish a strict liabilitystandard for purported violations of Colo.
Const., art. VII, 8. Such a standard is untenable given that the relevant
constitutional provision is intended to protect voters choices from public disclosure,
and not from sworn election officials when those officials are acting in the normal
course of their constitutional and statutory duties. More importantly, however,
imposing a strict liability standard would run counter to the reasoning of Jones v.
Samora, 2014 CO 4, a case in which the Colorado Supreme Court was urged to
invalidate an election based on the mere possibility that the secrecy of some ballots
could have been compromised, but nonetheless declined to do so.
Given the serious jurisdictional defects to Plaintiffs lawsuit specifically,
their lack of standing, their failure to comply with the procedural requirements for
bringing an election contest, their untimely filing as an election contest, and this
Courts lack of jurisdiction to adjudicate contests for certain races this Court
should dismiss Plaintiffs first and second claims for relief. Alternatively, Plaintiffs
First Amended Complaint (FAC) failed to plead anynon-conclusory facts that call
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
3/28
3
into question the fundamental integrity of the election so as to warrant the
extraordinary relief of voiding the 2014 general election in Adams County. As such,
this Court should dismiss the FAC for failure to state a claim upon which relief may
be granted.
I. The FAC must be dismissed for lack of jurisdiction.
A.
Plaintiffs do not have taxpayer standing.
In their Response to the Secretarys Motion to Dismiss, Plaintiffs improperly
conflate the first prong of the individual standing test with the second. Indeed, they
contend that the alleged violation of Colo. Const. art. VII, 8 constitutes both the
injury-in-fact and the legally protected interest necessary to establish standing
under the general test for individual standing set forth in Wimberly v. Ettenberg,
570 P.2d 535, 539 (Colo. 1977). See Resp., at 17-19 (All the Plaintiffs need to do to
show an injury-in-fact is to allege that the Clerk violated a provision of the Colorado
Constitution. A legally protected interestmay protectan interest in having
a government that acts within the boundaries of our state constitution. quoting
Barber v. Ritter, 196 P.3d 238, 246 (Colo. 2008)).
In doing so, Plaintiffs concede that the FAC failed to allege that they suffered
any direct and individualized injury as a result of the alleged violation of the state
constitution. This concession demonstrates that they do not have individual
standing to sue. Hickenlooper v. Freedom from Religion Fund, Inc., 2014 CO 77,
11, n. 10 (Colo. 2014) (FFRF) (We use the term individual standing to denote
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
4/28
4
standing that flows from a direct and individualized injury to the plaintiff.
Importantly, individual standing is distinct from taxpayer standing, which flows
from an economic interest in having [the taxpayers] tax dollars spent in a
constitutional manner. (citations omitted)). Put another way, the Plaintiffs here
have fail[ed] to identify any personal injury suffered by them as a consequence of
the alleged constitutional error, other than the psychological consequence
presumably produced by observation of conduct with which one disagrees. Id.,
18, quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, 454 U.S. 464, 485 (1982).
Instead, Plaintiffs now attempt to fall back on taxpayer standing by invoking
the Supreme Courts analysis inBarber. See Resp., at 18-19. But this fallback
position is unavailing because taxpayer standing still requires the plaintiff to allege
an injury-in-fact separate and apart from the alleged constitutional violation, which
Plaintiffs FAC also failed to do. In FFRF, the Supreme Court analyzed whether the
plaintiffs a group of individuals who self-identified as nonbelievers had
taxpayer standing to sue the Governor for allegedly violating the Preference Clause
in Article II, 4 of the Colorado Constitution through the issuance of honorary
proclamations acknowledging days of prayer in Colorado. 2014 CO 77, 3. In
doing so, the court noted that, [a]lthough we have permitted a broad class of
plaintiffs to have taxpayer standing, we have also utilized the injury-in-fact
requirement to provide conceptual limits to the doctrine when plaintiffs challenge
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
5/28
5
an allegedly unlawful government action. Id., at 12. To satisfy the injury-in-
fact requirement, the court explained that the plaintiff must demonstrate a clear
nexus between his status as a taxpayer and the challenged government action. Id.,
citing Barber, 196 P.3d at 246.
The Supreme Court held that the FFRFplaintiffs failed to establish the
requisite clear nexus for taxpayer standing because their complaint alleged only
that they [were] Colorado taxpayers, but did not assert any injury based on an
unlawful expenditure of their taxpayer money, or that their tax dollars [were]
being used in an unconstitutional manner. Id., 14. In this case, Plaintiffs have
failed to even allege that they are taxpayers, much less that their taxpayer dollars
were utilized in connection with the Adams County 2014 general election in an
unconstitutional manner. See FAC, at 9-14. Furthermore, under current
Colorado law, the General Assembly appropriates money to pay for state and county
election-related expenses from the Secretarys cash fund, and not the States general
fund. See 24-21-104 and 104.5, C.R.S. (2014). Like the plaintiffs in FFRF, the
Plaintiffs here have failed to allege facts sufficient to establish their taxpayer
standing and, therefore, the Court should not reach the merits of this case. See
Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004) (the question of standing must be
determined prior to a decision on the merits); accord FFRF, 2014 CO 77, 7.
Additionally, with respect to the legally protected interest prong which also
applies to both the individual and taxpayer standing tests Plaintiffs are correct
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
6/28
6
that the alleged violation of a constitutional provision generally satisfies this
pleading element. However, Plaintiffs fail to respond to the Secretarys contention
that the prohibition on marked ballots in Colo. Const. art. VII, 8, when read in the
context of the entire constitutional provision, has never been interpreted by a
Colorado court as creating a strict liability standard. To the contrary, both the
Colorado Court of Appeals and the Supreme Court have expressly and impliedly
interpreted the provision otherwise. See Marks v. Koch, 284 P.3d 118, 122 (Colo.
App. 2011),cert. denied as improvidently granted (June 21, 2012) (discussed at p.
21-22 of the Secretarys Motion to Dismiss); see accord Jones v. Samora, 318 P.3d
462 (Colo. 2014) (discussed at p. 33-36 of the Secretarys Motion to Dismiss).
Finally, in Taylor v. Pile, 391 P.2d 670(Colo. 1964) the opinion containing
the dictaunderpinning Plaintiffs claims the complaint alleged that sworn election
officials knowingly and willfully: (1) marked the ballots cast in a municipal
incorporation election with identifying numbers; (2) created a corresponding list of
voters names that included the identifying number marked on each ballot; and (3)
refused to permit voters to remove the identifying numbers from their ballots before
casting them in the election. Id., at 672. For this reason, the Samora court noted
that Taylor did not expressly consider whether the ballots were permanently
marked with a number in a way that would run afoul of Section 8s prohibition on
marked ballots, and instead interpreted the dictain Taylors as consistent with its
own holding that voiding an election may be appropriate where the fundamental
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
7/28
7
integrity of the election is compromised by the lack of a secret ballot. Samora, 318
P.3d at 471.
In applying its core holding in Samora, our Supreme Court stated: There
was no credible evidence presented that voters were not free to vote as they wished
or were intimidated in any way. The district court rejected the numerous statutory
election challenges based on Jones allegations of illegal votes, fraud, and
malconduct, and those rulings have not been challenged in this proceeding. In sum,
there was no evidence that the secrecy or integrity of this entire election was put in
jeopardy by the election judges error in partially counting the absentee ballots with
the numbered stubs still attached. The trial court therefore erred in voiding the
recall election based upon Taylor. 318 P.3d at 471. In doing so, the Samora court
articulated the types of allegations that would need to first be pled and later proved
by plaintiffs to state a claim for violation of Colo. Const. art. VII, 8. In this case,
Plaintiffs FAC set forth no factual allegations of the type made and accepted in
Taylor,or made and rejected in Samora.
To the contrary, Plaintiffs FAC repeatedly characterized the event that gave
rise to the printing of identifying numbers on certain Adams County mail ballots as
a printing error. An error, by definition, is an unintentional or accidental act,
which simply does not rise to the level of a violation of Colo. Const. art. VII, 8
under controlling Supreme Court precedent. Plaintiffs attempts to characterize the
Clerks actions after she first learned of the printing error as concealment do not
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
8/28
8
change the unintentional nature of the error, and improperly suggest that the Clerk
had some duty under state law to disclose the error to the publicduring the course
of the election. She did not. Cf., Election Rule 4.8.5 (the Clerk had a duty under
state law to disclose the error to the Secretaryduring the course of the election).
For these reasons, Plaintiffs have failed to adequately allege a violation of
Colo. Const. art. VII, 8 that is sufficient to establish the second prong of both
standing tests.
B. The Plaintiffs arguments that their Complaint is not
jurisdictionally barred are unavailing.
i. This action is an election contest, or should be
construed as such by this Court.
In an attempt to argue this action is not an election contest, Plaintiffs invite
the Court to recognize an implied private right of action to enforce alleged violations
of Colo. Const., art. VII, 8. They argue that a two-year statute of limitations for
general personal injury claims in 13-80-102(1)(a), C.R.S., applies to such implied
private rights of action. Resp.at 9-10. Plaintiffs invitation should be rejected.
Colorado courts will not recognize an implied private right of action for a
constitutional violation if other adequate remedies at law exist. Board of County
Commrs v. Sundheim, 926 P.2d 545, 553 (Colo. 1996) (rejecting an implied private
right of action when other statutory remedies are available); Young v. Larimer
County Sheriffs Office, 2014 COA 119 at 25 (September 11, 2014) (rejecting an
implied cause of action for alleged violations of the Medical Marijuana Amendment
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
9/28
9
in Colo. Const. XVIII, 14). Indeed, Youngstated that Colorado appellate courts
have not recognized an implied cause of action to enforce provisions of the Colorado
constitution. 2014 COA 119, 25. And this Court should reject the invitation to do
so here, especially when there was an adequate remedy at law afforded to Plaintiffs.
As Plaintiffs counsel well knows, because he pled the same constitutional
violation in Samora, 2014 CO 4, an election contest may and in fact, did in that
case address whether a municipal election should be voided because of alleged
violations of Colo. Const., art. VII, 8. An election contest would be an adequate
remedy to address Plaintiffs request to void the 2014 general election for Adams
County, if they had timely filed an action in district court for the relevant races, or
initiated the challenges in the appropriate forums, such as the Colorado General
Assembly, the U.S. Congress, or, as Plaintiffs own Exhibit 1 reveals, with the
Colorado Supreme Court in order to challenge the election of a supreme court
justice, court of appeals judge, state court judge, or county court judge. See C.R.C.P.
100(a). Accordingly, because Plaintiffs hadan adequate remedy at law, but failed to
initiate the proper actions timely, or at all, this Court should not imply a private
right of action to challenge alleged violations of Colo. Const., art. VII, 8.
Similarly, Plaintiffs reliance on cases to support their argument that the
election contest deadlines do not affect a lawsuit alleging a constitutional violation
is misplaced. See Resp.at 4-6. There is a difference between challenging on
constitutional grounds the substance of a voter-approved law, tax, or constitutional
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
10/28
10
amendment, and what Plaintiffs are attempting to do here, which is to utilize a
state constitutional provision to challenge election procedures. In fact, Cacioppo v.
Eagle Cnty. Sch. Dist. Re 50J, 92 P.3d 453, 463 (Colo. 2004) is actually supportive of
the Secretarys position that lawsuits challenging an election due to alleged
improper election procedures must comply with the various statutory deadlines for
election contests.
Cacioppo dealt with whether the statutory election contest action to
challenge the form and content of a local ballot measure in 1-11-203.5, C.R.S. was
unconstitutional in light of certain requirements that specific language be included
in referred tax measures under Colo. Const., art. X, 20, known as the Taxpayer
Bill of Rights. 92 P.3d at 463. The Supreme Court held that while a substantive
challenge to a voter-approved measure is not time-barred under the deadlines set
forth in 1-11-203.5, C.R.S., the form and content i.e. the wording of the ballot
title would be. Id. A challenge to the substance of a local ballot measure is one
in which, regardless of any contest filed before the election, the ballot issue as
approved cannot be upheld under the laws or constitution of the state. Id.at 465.
The CacioppoCourt determined that plaintiffs claims were not based on substance
of the ballot measure, but rather the form and content of the ballot title, and
therefore the challenge was barred by the applicable statutory deadline. Id. at 466.
Here, Plaintiffs do not seek to overturn as unconstitutional a voter-approved
law, tax, or constitutional amendment. Similar to Cacioppowho relied on the
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
11/28
11
Taxpayer Bill of Rights to seek to invalidate an election result of a local ballot
measure, Plaintiffs here argue that because they are challenging the constitutional
protection to secrecy in voting, the election contest statutes are not applicable, and
consequently the election contest deadlines do not apply. But Plaintiffs claims are
essentially contesting the conduct of the election i.e. that election procedures
allegedly resulted in a constitutional violation of secrecy in voting with a
permanently marked ballot that may be traceable to individual voters rather than
challenging on constitutional grounds the substance of any voter-approved measure
or result. Because bothBruce v. City of Colorado Springs, 129 P.3d 988 (Colo. 2006)
and Evans v. Romer, 882 P.2d 1335 (Colo. 1994) dealt with substantive challenges
to voter-approved measures, they are inapposite authority to Plaintiffs challenge of
the election procedures employed by the Adams County Clerk during the 2014
general election. The challenges to election procedures are subject to the statutory
deadlines of an election contest in 1-11-213, C.R.S. (2014).
Plaintiffs reliance on Meyer v. Lamm, 846 P.2d 846 (Colo. 1993) to argue that
this is not an election contest because the 2014 election in Adams County is not
final is likewise unpersuasive. Resp.at 6. The portion of Meyerrelied on by
Plaintiffs in their Response demonstrates that the case is inapplicable to this
matter. The Supreme Court took jurisdiction over the Meyercase despite it
involving the election of a member of the General Assembly because it was
adjudicating the standards to be employed during a recount, meaning the election
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
12/28
12
was not final for purposes of an election contest until the recount was completed
and a winner declared. 846 P.2d at 870. Here, no recount is pending, and by
Plaintiffs own admission the Secretary tabulated and published the official
statewide abstract of votes cast, rendering the 2014 general election final.
Adopting Plaintiffs contention that an alleged constitutional violation of
secrecy in voting does not make the election final because it could be voided ab
initio at any time, see Resp. at 6, n.4, would mean that no election results are final
until the two-year statute of limitations has expired. Accepting this position would
mean that voters and candidates would never enjoy the finality and certainty of an
election result, and that challenges could be brought well into an officials term of
office, or even after that person is no longer serving.
Accordingly, Plaintiffs arguments that this action is not an election contest,
or should not be construed as such, are unavailing. If for no other reason than to
expeditiously resolve this matter in furtherance of finality and certainty for all
voters of Colorado and those who were on the ballot and declared to be legally
elected, this action isor must beconstrued as an election contest.
ii. Plaintiffs incorrectly calculate the deadline to
contest those limited races over which this Court
has jurisdiction.
Plaintiffs first contend that there is not onepotentially applicable contest
deadline, but many[,] and attach Exhibit 1 to their Response to the Secretarys
Motion to Dismiss to illustrate those races that appeared on the Adams County
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
13/28
13
2014 general election ballot that must be contested by dates after the December 15,
2014 deadline for contests in district court. Resp., at 11-12. This contention
blithely ignores that the statutory provisions that establish those later contest
deadlines expressly vest exclusive jurisdiction over contests for such races in other
government bodies. See 1-11-205(1), C.R.S. (2014) (contest for statewide elected
officials must be filed with the secretary of the senate, between the sixth and tenth
legislative days of the first session of the general assembly after the day of the
election); 1-11-208, C.R.S. (2104) (a contest of the election of any state senator or
state house representative must be presided over by the respective house of the
general assembly). For this reason, Exhibit 1s reference to post-December 15, 2014
statutory contest deadlines should be rejected as irrelevant to this Courts
determination of whether Plaintiffs missed the deadline to contest the limited races
over which this Court has jurisdiction.
Plaintiffs second contention is that the date on which the Secretary actually
certified the statewide abstract of votes cast is unknown to Plaintiffs[,] and
therefore it is possible that the deadline for contests in this Court fell after
December 15, 2014. Plaintiffs FAC belies this contention where it alleges: On
information and belief, on or about December 4, 2014, Secretary Gessler certified an
official statewide abstract of votes cast for all candidates, ballot issues, and ballot
questions that relies upon the certified final abstract of votes cast that Secretary
Gessler, received from Clerk Long, pursuant to C.R.S. 1-10-105(1). FAC, 63.
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
14/28
14
And, in his Answer to the FAC that is filed contemporaneously with this Reply, the
Secretary admits the allegations in Paragraph 60 of the FAC. Secretarys Answer,
63. As such, there is no dispute in the record before this Court that the Secretary
certified the statewide abstract of votes cast on December 4, 2014, consistent with
the requirements of 1-10-103(2) and 105(1), C.R.S. (2014).
More importantly, however, Plaintiffs emphasis on when the Secretary
certified the statewideabstract of votes cast, as opposed to when the canvass board
filed the official survey of returns for any and all Adams County races with the
Clerk as required by 1-10-101.5(c) and 1-10-102(1), C.R.S. (2014), is misplaced
because it is the latter action that controls the deadline for contests in district court
under 1-11-213(4), C.R.S. (2014). Plaintiffs FAC alleges that the latter action
occurred on November 19, 2014, see FAC, 51, 57, which as explained in the
Secretarys Motion to Dismiss, resulted in a December 1, 2014 deadline to file a
contest of any race over which this court has jurisdiction namely, district
attorneys, county officers, nonpartisan officers, ballot issues, and ballot question.
And, assuming arguendothat this Court is inclined to exercise jurisdiction
over contests for those offices that are exclusively vested in other government bodies
by statute, the latest possible deadline to file a contest based on the Secretarys
certification of the statewide abstract of votes cast was December 15, 2014, per the
requirements of 1-11-213(4). Either way, Plaintiffs untimely filed their election
contest on December 16, 2014, and therefore it must be dismissed under controlling
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
15/28
15
Supreme Court precedent. See Vailes v. Brown, 27 P. 945, 945-46 (Colo. 1891)
(holding that the ten-day election contest deadline was a statute of limitations that
must be strictly enforced and may not be enlarged1).
For these reasons, Plaintiffs attempts to contest the results of the Adams
County 2014 general election are jurisdictionally barred.
iii. The equitable tolling doctrine does not apply to
election contest proceedings.
Plaintiffs argue that, [t]o the extent any contest deadlines apply but have
not been met, the doctrine of equitable tolling applies. Resp., at 13. But in their
Response, Plaintiffs failed to cite to any legal authority from Colorado courts, much
less other state courts, where the doctrine of equitable tolling has been applied to an
election contest, specifically, or even to some other type of special statutory
proceeding, generally.
1In Vailes, the Supreme Court stated: when the statutory period for filing the
statement of an election contest for county officers under the act of 1885 has fully
elapsed, excluding the day when the votes are canvassed, the time cannot be
extended merely on the ground that the last day happens to fall on Sunday. This is
the reasonable as well as the natural and literal interpretation of the statute. Any
other construction of such an act would be unwarranted. Thus, application of the
precise holding in Vailes requires this Court to conclude that the deadline to filecontests in district court fell on Friday, November 28, 2014, because 10-days from
November 19 was Saturday, November 29, 2014. Similarly, this Court would be
bound to conclude that the deadline for filing contests before other government
bodies fell on Friday, December 12, 2014, because 10-days from December 4 was
Sunday, December 14, 2014. As a result, Plaintiffs election contests are even more
untimely.
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
16/28
16
Undersigned counsel searched for the former authority and found none in
Colorado, but did find that the weight of authority from other states counsels
against this Court applying the doctrine in an election contest such as the instant
one. See Wadley v. Hall, 410 S.E.2d 105, 106 (Ga. 1991) (The contestors argument
that the contestees fraud tolled the five-day limit of O.C.G.A. 21-3-420 is not
sustained by the record. The record in this case, when applied to the controlling
statutory and case law authority, demands the conclusion that the untimeliness of
the challenge prevented the trial court from ever obtaining jurisdiction over the
challenge.);Kellum v. Johnson, 115 So.2d 147, 150-51 (Miss. 1959) (In rejecting the
argument that a statutory provision governing the time in which an election contest
must be brought was a statute of limitations capable of being waived, the
Mississippi Supreme Court stated: A statute which in itself creates a new liability
gives an action to enforce it unknown to the common law, and fixes the time within
which that action may be commenced, is not a statute of limitations. It is a statute
of creation, and the commencement of the action within the time it fixes is an
indispensable condition of the liability and of the action which it permits. The time
element is an inherent element of the right so created, and the limitation of the
remedy is a limitation of the right. Such a provision will control, no matter in what
form the action is brought.); Lilly v. OBrien, 6 S.W.2d 715, 717-18 (Ky. 1928) (But
it is argued that the 10 days fixed by statute is merely a law of limitation operating
on the remedy and does not affect the jurisdiction or power of the court to hear and
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
17/28
17
determine an election contest. Limitations prescribed by statute to bar remedies
must be pleaded and may be waived by a party entitled to invoke them, but the
limitation on election contests is not of that character. It cannot be waived and
need not be pleaded. The right granted to contest an election exists only by virtue
of the statute and its scope and effect must be determined therefrom. (internal
citation omitted)).
Notably, our Supreme Court characterized election contests under Colorado
law in the same manner as the Supreme Courts of Georgia, Mississippi, and
Kentucky did in the cases discussed above. Indeed, in Vailes v. Brown, the court
quoted with approval one of its earlier decisions where it concluded: The
proceedings upon an election contest before the county judge, under the statute, are
special and summary in their nature; and it is a general rule that a strict
observance of the statute, so far as regards the steps necessary to give jurisdiction,
must be required in such cases. The act is not only special in character, but it
furnishes a complete system of procedure within itself. 27 P. at 945, quoting
Schwarz v. Co. Court Garfield Co., 23 P. 84, 85 (Colo. 1890) (internal citations
omitted). The election contest provisions of our modern Election Code likewise
provide a complete system of procedure within itself that must be followed by the
parties and this Court.
Finally, as discussed above, Plaintiffs FAC repeatedly characterized the
event that gave rise to the printing of identifying numbers on Adams County ballots
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
18/28
18
as a printing error. An error, by definition, is distinct from a fraudulent or
malfeasant act. And Plaintiffs attempts to manufacture a wrongful act in this case
by characterizing the Clerks actions after she first learned of the printing error as
concealment do not change the unintentional nature of the error. Their attempts
improperly suggest to this Court that the Clerk had some duty under state law to
disclose the error to the publicduring the course of the election. She did not. Cf.,
Election Rule 4.8.5 (the Clerk had a duty under state law to disclose the error to the
Secretaryduring the course of the election). As a result, the requirement that a
defendants wrongful act must have prevented the plaintiff from asserting a
timely claim is not satisfied here and, therefore, the equitable tolling doctrine does
not apply.
II. The FAC must be dismissed for failure to state a claim upon
which relief may be granted under the first and second claims
for relief.
If there is any question Plaintiffs seek to establish a strict liability standard
for alleged violations of Colo. Const., art. VII, 8, the Court need look no further
than Plaintiffs position in their FAC and Response. They argue that all they need
to allege for purposes of surviving a C.R.C.P. 12(b)(5) motion is that at least some
ballots were marked in a manner thatpermitsa ballots voter to be identified.
Resp.at 22. They further contend that they need not plead all facts that they may
ultimately prove at trial in order to prevail on the merits, but must only provide
notice of the alleged constitutional violation. Id.at 23. Any plaintiff, however, can
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
19/28
19
plead a conclusory allegation that the constitutional secrecy in voting provision was
violated. But Samorarequires more of a showing up-front before a plaintiffs
litigation causes uncertainty in the election results, especially where finality is
elusive if, as Plaintiffs claim, their action is not an election contest so expeditious
resolution and immediate appellate review before the Colorado Supreme Court is
unavailable. Because Plaintiffs allegations are nothing more than conclusory legal
assertions couched as factual allegations, this Court must dismiss the first and
second claims for relief for failure to state claims upon which relief may be granted.
Plaintiffs allege that because there was not a secret ballot at the time of
voting, that the fundamental integrity of the Election is irredeemably tainted.
FAC, at 78. Colorado courts, however, consistently reject claims that fail to
adequately allege facts that are independent of the plaintiffs legal conclusions. See,
e.g.,Denver Post Corp. v. Ritter, 255 P.3d 1083, 1085 (Colo. 2011) (The Posts
complaint is conclusory in nature. It asserts a legal theory but does not allege facts
which, if proved, would demonstrate that the Governor made the billing statements
or kept or maintained them in his official capacity.). The Court of Appeals has
followed the Supreme Courts lead. See, e.g., Fry v. Lee, 2013 COA 100, 57 (While
Fry made a conclusory allegation in her amended complaint that defendants acted
with actual malice, in our view she made no factual allegations to support this
conclusion of law, and accordingly, we disregard it.). Plaintiffs cannot simply plead
the legal conclusion that the fundamental integrity of the election is put into
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
20/28
20
question without pleading factual allegations supporting howor whyit is put into
question.
Even when Plaintiffs attempt to provide a factual basis for their
constitutional claim, the allegations do not support the legal relief they request.
For example, Plaintiffs assert that a majority of the county canvass board members
would not have certified the election results if they had known of the printing error
on the ballots. FAC, at 78-79. This allegation, however, provides Plaintiffs with
no factual basis upon which to support their claim to void the election, because even
assuming this is true, the canvass board has no statutory authority to refuse to
certify the election results based on an alleged violation of Colo. Const., art. VII, 8.
See 1-1-101.5(a) through (c), C.R.S.; see also FAC, at 23-28. As such, these
allegations do not call into question the fundamental integrity of the election.
Plaintiffs likewise allege that upon information and belief multiple Adams
County mail-ballot voters realized or suspected, on the basis of observing the
permanent markings on their own individual ballots and ballot stubs, that the mail
ballots were identifiably associated with their individual voters. Id.,at 80. What
is critically missing from these factual allegations, however, is that any of the
Plaintiffs in this caserealized or suspected their ballots were potentially traceable
or, more importantly, that thePlaintiffs in this case refused to vote because of the
printing error. Indeed, this vague factual assertion can hardly satisfy even the
most lenient of notice pleading standards, as the allegations fail to identify which
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
21/28
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
22/28
22
matter of law non-secret, then the Secretary wonders why under this simplistic
legal theory Plaintiffs need a trial on the merits at all.
If the Supreme Court intended to make the secrecy in voting a strict liability
standard, it could have done so in Samorabut did not. Indeed, the trial courts
ruling that was reversed by the Supreme Court in Samora was essentially a strict
liability analysis. Even though there was no evidence that the secrecy or integrity
of this entire election was put in jeopardy by the election judges' error in partially
counting the absentee ballots with the numbered stubs still attached, 2014 CO 4 at
34, the district court nonetheless voided the entire recall election results because
of Taylor. Because Samora has substantially similar facts to those alleged here
i.e. Adams County electors cast ballots and the ballots were processed and counted
with a number that was potentially traceable to individual voters it is implicit
that the Supreme Court requires more in a pleading than the general conclusory
assertion that because ballots were marked in a manner that might be traceable,
the secrecy in voting constitutional provision was violated. Even with a potentially
traceable number, Samoradetermined that it is undisputed that the ballot was
secret at the time both the in-person and absentee Town of Center voters voted.
318 P.3d at 471.2
2Indeed, a strict liability read of the secrecy in voting constitutional provision puts
into question the permissibility of mail-in ballots generally, as electors use a return
envelope that includes their name and signature, and in some instances, a photo
identification.
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
23/28
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
24/28
24
place. In either event, because Plaintiffs fail to state a claim for relief for their first
claim, they likewise fail to state a claim for relief on their second.
III. Plaintiffs conditional request to again amend their FAC
should be denied as futile.
Plaintiffs seek conditional leave to amend their complaint, yet again, if there
are deficiencies in anticipation of the courts ruling on the motion to dismiss. Resp.
at 41. This request should be denied, as any amendment is futile or further
amendment would cause undue delay.
An amendment is futile if "it merely restates the same facts as the original
complaint in different terms, reasserts a claim on which the court previously ruled,
fails to state a legal theory, or could not withstand a motion to dismiss." Benton v.
Adams, 56 P.3d 81, 86-87 (Colo. 2002). Plaintiffs have failed to demonstrate to this
Court how their secondamendment would be different from the FAC. If Plaintiffs
know of allegations beyond their conclusory legal assertions, those should have been
included in the original but certainly the FAC complaint. If Plaintiffs have
additional named plaintiffs, those persons should already be named. Because
Plaintiffs provide not any basis upon how their second amended complaint would
different from the FAC, any amendment would be futile.
More importantly, however, further amendment would cause prejudicial
delay to these proceedings. Leave to amend a complaint should be freely given
unless there would be undue delay. Southern Ute Indian Tribe v. King Consol.
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
25/28
25
Ditch Co., 250 P.3d 1226, 1238 (Colo. 2011). Here, the Secretary has made patently
clear that any delay in seeking the most expeditious resolution of this matter is
detrimental to the voters of Colorado, as well as to the candidates who are acting
under color of law in their assumed positions as county officials, state officials,
members of the General Assembly, members of Congress, and judicial officers.
Allowing Plaintiffs an additional amendment will unduly prejudice the Secretary,
given this Courts express intention to expeditious resolve this matter, and its case
management rulings that have limited the scope of discovery and scheduled a
February 2015 trial date.
Moreover, because the Secretary has argued that this is an election contest
action, under the special statutory provisions for such proceedings, an amendment
of the contestors statement is not contemplated under 1-11-213, C.R.S. Indeed,
because election contest actions are expedited proceedings with their own specific
rules of procedure, the general liberal standard for amendments under C.R.C.P. 15
does not govern in this action. Accordingly, this Court should deny Plaintiffs
conditional request to amend their complaint.
IV.
Plaintiffs contentions in subsections IV(B) and (C) of their
Response to the Secretarys Motion to Dismiss are either
entirely or partially unsupported by legal authority and,therefore, should be rejected by this Court.
In Section IV(B) and (C) of their Response to the Secretarys Motion to
Dismiss, Plaintiffs argue that an order by this Court declaring the Adams County
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
26/28
26
2014 general election void ab initio would affect substantially fewer that all of the
races on the ballot, and that voiding the election will have no effect on interim
actions taken by officials whose election is later voided. The former is unsupported
by any legal authority and is based solely on Plaintiffs counsels personal opinions
as expressed in Exhibit 2 to the Response. The latter is supported by legal
authority applicable only to acts of state legislators who are later removed from
office through an election contest. See 2-2-303(2)(a) and (b), C.R.S. (2014).
Plaintiffs provide no legal authority regarding the validity of acts taken by other
officials in the event that they are later removed from office through an election
contest. As a result, these arguments should be rejected because they lack the
necessary legal support.
Furthermore, even if the cited statutory provisions applicable to state
legislators are mirrored elsewhere as to the acts of other officials, nothing prevents
an individual impacted by the acts of an official who is later removed from office
through a contest from challenging the validity of the act and requiring others to
defend the validity of the act. For this reason, the Secretary, the Clerk, and this
Court have rightfully expressed their collective concern that this case be resolved as
expeditiously as possible.
CONCLUSION
Based on the above reason and authorities, the Secretary respectfully
requests that this Court dismiss the first and second claims for lack of jurisdiction.
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
27/28
8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final
28/28
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of January, 2015, a true and accurate
copy of the foregoing THE SECRETARYS REPLY TO MOTION TO DISMISS
PLAINTIFFS FIRST AND SECOND CLAIMS FOR RELIEF was served
electronically via ICCES upon the following:
Robert A McGuire, Esq.
Robert McGuire Law Firm
9233 Park Meadows Drive
Lone Tree, Colorado 80124
Attorney for Plaintiffs
Mark Grueskin, Esq.
Heather Hanneman, Esq.
Recht Kornfeld, P.C.
1600 Stout Street, Suite 1000
Denver, Colorado 80202
Attorneys for Defendant Karen Long
/s/ Sueanna P. Johnson