2015-01-28 16-54-38 reply brief to mtd_final

8/9/2019 2015-01-28 16-54-38 Reply Brief to MTD_Final

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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]

[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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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


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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.


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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


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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.


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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


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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


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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


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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


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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


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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.


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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.


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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


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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.


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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

2015-01-28 16-54-38 reply brief to mtd_final

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