Morse, Giron recall petitions ruled valid

Secretary of state’s office won’t recuse itself in matter
The Colorado Statesman

The Secretary of State’s Office on Wednesday denied a protest challenging the validity of signatures gathered by proponents of an effort to recall Democratic Senate President John Morse of Colorado Springs, setting up a battle in district court.

Deputy Secretary of State Suzanne Staiert also ruled on a surprise motion brought by Democratic attorney Mark Grueskin calling for the secretary’s office to recuse itself from a separate hearing challenging signatures gathered by proponents of an effort to recall Democratic Sen. Angela Giron of Pueblo.

Neither decision came as a surprise to Democrats in El Paso and Pueblo counties, who are supporting the two lawmakers. They immediately alleged a bias by Republican Secretary of State Scott Gessler’s office.

Both Giron and Morse are facing recalls after they supported a package of gun control measures in the legislature this year, which banned high-capacity ammunition magazines of more than 15 rounds and required universal background checks and fees.

Proponents seeking to recall Morse — El Paso Freedom Defense Committee — submitted 16,198 petition signatures. The secretary’s office accepted 10,137 of the signatures. The campaign needed only 7,178.

Proponents of ousting Giron — Pueblo Freedom and Rights — submitted 13,466 signatures. Only 818 were rejected; they needed 11,285.

But Grueskin, representing supporters of both Morse and Giron in separate hearings, filed challenges with the secretary of state’s office suggesting that the state constitution requires petitions drafted to expressly include a demand for the election of a successor to the recalled official.

The recall election must be two-part. First it would include a “yes” or “no” question on whether to recall the legislator. Then it would contain a list of replacement candidates.

The protests in both cases point out that the petitions did not state a requirement of a successor. Much of the challenge in both instances relies on a 2002 Colorado Court of Appeals case, Combs v. Nowak, in which the appellate court invalidated signatures seeking to recall two Central City aldermen and the mayor.

In the case, a citizen filed a similar protest that the recall committee failed to include a demand for “an election of the successor…” It was argued that the demand was required per Article 21, Section 1 of the Colorado Constitution, and the court agreed.

But despite the precedent, Staiert issued a written order late Wednesday ruling that the “Morse recall petition format meets all constitutional and statutory requirements.”

“The petition format laws must be liberally construed in favor of allowing the recall exercise,” she wrote. “And representatives substantially complied with the law even if the constitution and election code are interpreted to require the statement demanding the election of a successor.”

Recall proponents in Morse’s district celebrated the decision, suggesting that it was a significant win.

“Today is a victory, not only for more than 10,000 constituents of John Morse’s district who signed up to hold him accountable, but for more than 50,000 Coloradans who signed recall petitions across the state of Colorado,” Jennifer Kerns, spokeswoman for the Morse recall campaign, said in a statement.

If the recalls of either Morse or Giron actually make a ballot, it would be the first time in Colorado history that a sitting state lawmaker faces an actual recall election.

“Against all odds, regular citizens came forward and did something that no other group had done in 137 years of Colorado state history, and they delivered above and beyond the number of signatures needed to commence the recall process,” continued Kerns. “The people of Colorado knew darn well what they were signing; they want to recall the elected officials who are drastically out of touch with their constituents.”

Grueskin — regarded as one of Colorado’s brightest attorneys — acknowledged that he was not surprised by the decision. But he certainly expressed disappointment. He said he will absolutely file a challenge in Denver District Court where he expects the decision to be different, as the court would likely rely on the precedent set at the appellate level.

“The only difference between the two petitions was the name of the recall official and the particular reason those officials were being subject to recall. But other than that, they were exactly the same document,” remarked Grueskin. “And so I am still struggling to understand why an appellate court opinion can be so easily brushed off. A district court is going to look more carefully at that kind of precedent.”

Christy Le Lait, executive director of the El Paso County Democratic Party who is also leading efforts for A Whole Lot of People for John Morse — attacked Gessler’s office for the decision, suggesting that his partisan, conservative politics played a role.

“We didn’t expect that Scott Gessler can separate the partisanship from his job,” lamented Le Lait.

“We have to get it away from the secretary of state who is obviously looking out for his party and not looking at the legal aspect of it, and hopefully a district court will,” she continued.

Motion for recusal

Gessler’s involvement came up directly Wednesday when Grueskin filed a motion asking for Gessler’s office to recuse itself from the hearing involving Giron after the secretary of state had traveled to Pueblo in March to speak with GOP officials on the recall process there.

The Pueblo Chieftain reported the story. Gessler was quoted as saying, “A recall election is brutal so you need to get all your ducks in a row. You don’t want to wait until the clock’s started to get organized.”

According to the report, Gessler spoke to about 100 local Republicans and offered a briefing on how to recall Giron.

Grueskin said it “looks bad” for the secretary to have offered advice on a recall election that his office ultimately has to offer an unbiased opinion on.

“He in essence coached the proponents and the Republican Party…” Grueskin argued during the very short Giron hearing. “It’s better to find someone who is totally independent of his office.”

But Staiert disagreed, stating in her written decision, “There is no appearance of impropriety here because the Deputy Secretary of State, not the Secretary of State, is the hearing officer in this matter.

“As the hearing officer in this matter, I have not had any conversations with the Secretary of State regarding this protest or this hearing,” she wrote. “Further, I did not attend, nor does the Protestor allege that I attended, the event at the heart of Protestor’s motion. As such, I find that there is no appearance of impropriety with regard to me or my ability to adjudicate this matter without bias.”

Grueskin said he takes Staiert at her word that she did not discuss the protest with Gessler. But he said a court might not find that to be so significant.

“Given everything else that obviously ties them together, any other reasonable third person would look at that and go, ‘How am I supposed to trust that those conversations haven’t happened?’” remarked Grueskin. “It’s just a different standard. I’m not alleging that she’s biased. I’m alleging that the way people might look at this would lead them to doubt the distance between the secretary and her.”

The protest in the Giron recall is virtually identical to the Morse challenge, and so it is expected that the decision in that case will be similar to the ruling in the Morse matter. The secretary’s office was not immediately clear on Wednesday when that decision might be delivered.

Barring additional challenges, Gov. John Hickenlooper must set an election date between 45-75 days from the end of the protest period. But with the cases expected to land in district court, that election date would be delayed.
Recall proponents allege that Democrats are simply stalling to push the recall to the November general election when there would be greater turnout.

Proponents believe it is time to let the election proceed.

“Now that this frivolous legal challenge has been deemed meritless, we call upon Sen. Morse to drop all further challenges to this recall, which is a fundamental right of Coloradans,” said Kerns. “Any further legal challenge will be yet another attempt to delay and deny justice to his own constituents. The people have spoken. It’s time for Sen. Morse to face his fate at the ballot box.”

Allegations of fraud

Meanwhile, Morse’s supporters continue to allege fraud. Last week the campaign to save Morse accused proponents of forging at least 50 petition signatures. They said this week that the number grew to about 2,100. But it wasn’t enough to invalidate the election.

One example was of a man who has not lived in Colorado for over a year; another involved an elderly woman who says she did not sign the petition; and a third example included a woman who died two years ago.

Morse’s supporters would not provide details on most of the forged signatures, including last names.

Le Lait said the campaign will turn the evidence over to the El Paso County District Attorney’s Office, run by Republican District Attorney Dan May.
“I hope that they pursue it,” she said. “The forgeries that we saw were so blatant that people should be outraged by that.”

Le Lait’s group also tried to convince voters to remove their signatures from the petition, but they only received about 200 voters willing to do so.

‘A grammy who writes erotic romance’

In yet another bizarre twist to the epic recall saga of 2013, one of the Republican candidates vying to replace Morse was revealed as an author of erotic novels.

Jaxine Bubis, a small business owner who is backed by Rocky Mountain Gun Owners and other conservatives with ties to the religious right, wrote under the pen name “Jaxine Daniels.” She describes herself in her book “Beantown Heat” as “a grammy who writes erotic romance.”

The odd revelation was leaked by Paul Paradis, a well-known El Paso County Republican leader whose name was on the recall of Morse as part of the committee that recalled him. Paradis is also the owner of Paradise Gun Sales in Colorado Springs.

“Many people worked on this recall, it is a historical event, I am worried about the effort being derailed not because of what many have done, but how we may be viewed in the future,” wrote Paradis in an e-mail.

“While describing yourself as a ‘grammy who writes erotic romance’ is weird; once you start reading Jaxine’s book, you realize she’s actually a pornographic writer.

The Colorado Statesman obtained a copy of the book. Her Amazon.com author page clearly includes a photo that matches that of Jaxine Bubis, the candidate vying to replace Morse.

The book — published by eXtasy Books — contains extremely explicit and graphic scenes depicting raunchy sex and other romantic encounters that The Statesman has decided not to publish.

Paradis is concerned that her presence as a candidate could result in a black eye for the Republican Party in El Paso County and all of Colorado.

“One of the candidates — who if chosen — would make our recall effort the butt of jokes nationally and fodder for late-night comedians,” wrote Paradis.

Bubis told The Statesman: “Ten years ago, as a stay-at-home mother who was helping to contribute to support our family, I took creative writing classes. One project that resulted from those creative writing classes was a fiction romance novel. The novel had very limited publication (less than 50 copies) and I took it off the market as soon as I contractually could, which was around eight years ago.”

Her opponent is retired Navy and Air Force officer and former Colorado Springs City Councilman Bernie Herpin. He is also past president of the Pikes Peak Firearms Coalition.

Both candidates agreed to allow a vacancy committee of the El Paso County Republican Party choose one candidate to represent Senate District 11 in a recall election. Local party officials in the district would vote on a candidate. The candidate receiving the most votes would receive the endorsement.

Herpin said he hasn’t given too much thought to Bubis the romance author, stating that he is simply focused on his campaign and ousting Morse. But he did acknowledge that if Bubis earns the nomination, it could be problematic to recalling Morse.

“I think it hurts the party for that to come out,” he said. “If she becomes the candidate, then Democrats are certainly going to use that against us.”

Bubis’ supporters include some high-profile conservatives, including Sens. Ted Harvey of Highlands Ranch, Kent Lambert of Colorado Springs, Owen Hill of Colorado Springs, Vicki Marble of Fort Collins, and Kevin Lundberg of Berthoud, and Reps. Janak Joshi of Colorado Springs, Chris Holbert of Parker, Justin Everett of Littleton, and Steve Humphrey of Severance. Former Sen. Dave Schultheis of Colorado Springs also endorsed her.

Lambert said he was not immediately pulling back his endorsement, but he said he was going to look into the controversy a bit more.

“I’m most interested in how she’s going to vote; how she’s going to conduct her life from here on…” said Lambert. “Do you want to make a political issue out of everybody’s conduct? And I would say nobody has a corner on the market for scandalous behavior.”

The senator joked, “What do I know about romance novels other than the pattern that there’s probably a lot of boring dialogue punctuated by a few titillating elements of it.”

He believes Bubis is being dragged through the mud for political gain: “Obviously somebody is going out of their way to do what seems to be the pattern, and that’s to find something in somebody’s past and then… make a scandal out of it.”

Peter@coloradostatesman.com