Recall elections are on!

Hickenlooper sets Sept. 10 for Morse, Giron recall elections
The Colorado Statesman

Denver District Court Chief Judge Robert S. Hyatt ruled Thursday afternoon that recall elections to oust Democratic Senate President John Morse of Colorado Springs and Sen. Angela Giron of Pueblo must proceed. In doing so, Hyatt rejected lawsuits that would have invalidated petition signatures, and paved the way for Sept. 10 recall elections — the first in Colorado history that are sure to capture national attention.

Attorneys representing Morse and Giron supporters originally said they would likely appeal to the Supreme Court. But on Thursday, the Morse and Giron camps both decided not to appeal the decision.

“I am ready and eager for the Sept. 10 election,” Giron said in a statement. “This last legislative session was my best yet and this is a great opportunity to continue talking to folks in Pueblo about all our success. In the meantime, I continue to work hard and represent Pueblo.”

“I started working for this community as an EMT, a paramedic or police officer in 1977,” added Morse. “I have dedicated my life to public service. I look forward to this election. I have already been elected twice, I am excited by the prospect of being elected a third time.”

Hyatt — who ruled from the bench to speed along the process — called the recall elections a “fundamental right” of the people, opining that the law must be “liberally construed” in order to provide the electorate with a chance to decide the popular vote.

“The court specifically finds that the recall process involves fundamental rights of a republican form of government which the people have reserved onto themselves… And any such law ‘must be liberally construed in favor of the right of the people to exercise that…’” Hyatt stated, citing Colorado case law.

Morse and Giron supporters brought respective lawsuits before the Denver District Court after the Secretary of State’s Office validated signatures gathered by recall proponents in Senate Districts 11 and 3.

Proponents in Morse’s SD 11 submitted 16,198 signatures, of which the secretary’s office accepted 10,137; they needed 7,178. Proponents in Giron’s SD 3 submitted 13,466, of which the secretary’s office validated 12,648; they needed 11,285.

The two Democrats are facing recalls after supporting a package of gun control measures that banned high-capacity ammunition magazines of more than 15 rounds and require universal background checks and fees.

The signatures were protested before the secretary’s office, arguing that the petition format language violated the state constitution by not including language that stated a demand for the election of a successor to the recalled official. The protest pointed to 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 because the petition failed to include a demand for “an election of the successor…”

But Deputy Secretary of State Suzanne Staier opined that the “petition format laws must be liberally construed in favor of allowing the recall exercise.” Clearly Judge Hyatt agreed.

Beyond calling the election process a fundamental right, Hyatt also pointed out that proponents were simply following directions provided by the Secretary of State’s office, using a petition format that had been used and approved by a legion of secretary’s before the current office.

He also pointed out that no law requires that the successor language be included.

“Nothing in either the constitution or in the election code explicitly states that the demand language… is an essential inclusion on the face of any petition,” he stated.

Hyatt also disagreed that Combs v. Nowak set any sort of precedent, pointing out that the appellate case was not based on a requirement in the state constitution.

“This court agrees with the proponents and the secretary of state that the Combs [case]… was not… presented with the question that is essential to this case, whether or not the demand language is required by the constitution…” explained Hyatt.

“Proponents… made a good faith effort to comply with all aspects of Colorado law regarding recalls,” Hyatt added. “They contacted the office of the secretary of state, they obtained the template… they tried to comply with the requirements of the secretary of state in terms of the template.”

Hyatt concluded his remarks on the lawsuits by saying it would be pointless for the court to issue the preliminary injunctions halting the recall process because the cases have little chance of success.

“The court finds that there is no likelihood of success on the merits…” he opined.

High-profile Democratic Denver attorney Mark Grueskin represented the camps for both Morse and Giron. On Wednesday he led more than eight hours of testimony inside a packed, sweltering courtroom at the City and County Building. Proponents and opponents sat side-by-side on uncomfortable, firm wooden benches as observers watched a gaggle of attorneys from all sides call witnesses and argue their cases.

“These petitions frankly don’t comply with the constitution…” argued Grueskin, pointing to the demand language, which he said exists in Article 21, Section 1 of the Colorado Constitution. “The constitution is the constitution.”

But attorneys for both Republican Secretary of State Scott Gessler and proponents fired back. Gessler hired attorney Steven Klenda, a former attorney at Hackstaff Law Group, Gessler’s old law firm. Klenda argued that it is a “fundamental right of the people to exercise a recall.”

Richard Westfall, a high-profile Republican attorney who represented proponents, added, “Isn’t it telling that the plaintiffs can’t provide one recall petition that contains the [demand] language?

“Let this recall election go forward,” he pleaded.

Witnesses included Victor Head, who is leading efforts to recall Giron; Pueblo Clerk and Recorder Gilbert Ortiz; Secretary of State Ballot Access Manager Ben Schler; and Tom Jensen, director of Public Policy Polling.

Gessler files separate lawsuit

Klenda filed a separate lawsuit on behalf of Gessler, asking the court to order a writ of mandamus that would have required Democratic Gov. John Hickenlooper to set an election date.

The move was controversial, as Democrats pointed out that Gessler hired Klenda, a former colleague. They questioned whether taxpayer dollars should be spent on a private attorney for a case that would already be decided by the court as it examined the jurisprudence.

Republican Attorney General John Suthers backed Gessler’s decision to hire a private attorney because Suthers’ office would normally represent Hickenlooper, which would have raised a significant conflict of interest.

But whether there was a need for the lawsuit itself was questionable. Judge Hyatt felt there was no need for the writ of mandamus, at times scolding Klenda for bringing the suit.

“Would you advise your client to ignore the court and just do it anyway?” Hyatt asked Klenda, pointing out that the court was asked to rule on the legal merits of the recall elections.

“We’re done; the governor has to set a recall election,” responded Klenda, pointing out that the secretary’s office had already validated the signatures.

“The governor’s duty is ministerial; mandatory,” he continued.

In his ruling on Thursday, Hyatt again offered a scathing opinion in denying the writ of mandamus.

“The governor and the state of Colorado correctly determined that they would respect the judicial process and await this court’s ruling. Now the court has ruled,” stated Hyatt.

“Moreover, proceeding with the recall election… would unnecessarily waste public funds in the event the court had invalidated the recall petition,” he continued. “Preparing for a recall petition prior to judicial review would risk voter confusion and a loss of voter confidence in the entire election process.”

Democrats suggested that Gessler, a partisan conservative who is exploring a run for governor, perhaps had political motivations for spending taxpayer dollars to file the lawsuit.

They pointed out that Gessler models himself a fiscal conservative, but already was found by an independent ethics panel to have improperly used public discretionary funds on private excursions. They said the recent lawsuit only adds to questions.

“The ink is barely dry from his last ethics challenge, and now Gessler is forcing Colorado taxpayers to foot the bill to hire his former law partner,” said Rick Palacio, chairman of the Colorado Democratic Party. “He’s shown that he’s not above blurring ethical lines in order to score a few partisan points.”

Palacio then pointed to Gessler’s nickname, “Honey Badger,” adopted by liberals because of Gessler’s fearless approach to partisan politics.

“Instead of the Honey Badger, Gessler is starting to look like Yosemite Sam,” quipped Palacio. “Willing to go to any length to score points and always eager to pull the trigger before he even takes aim.”

Hickenlooper indicated on Tuesday that he felt Gessler was acting prematurely by filing the lawsuit.

“I’m not sure why he would file a lawsuit for something that’s going to get decided in two days, but I’m not a lawyer,” the governor told The Denver Post. “It seems sometimes elected officials have an itchy trigger finger.”

Just hours following the court ruling on Thursday, Hickenlooper signed an executive order designating Sept. 10 as the special recall election date in both Morse and Giron’s districts. The clerk and recorder in each district agreed upon that date.

“We appreciate that the court acknowledged we did the right thing in waiting until after its ruling to set the date,” Hickenlooper said in a statement. “This means the El Paso and Pueblo county clerks can begin their preparations for the elections knowing that their efforts will not be for naught.”

Stakeholders react

Proponents were ecstatic following the ruling. Jennifer Kerns, spokeswoman for El Paso Basic Freedom Defense Fund, which is leading the effort against Morse, highlighted that Judge Hyatt clearly ruled in favor of the right to elections.

She also pointed out that Hyatt is a judge who has been known to rule against Republicans, signaling the significance of the opinion. Hyatt ruled in favor of Democratic redistricting maps in 2011, siding with Grueskin, who represented Democrats at the time.

“We said from the beginning… that it is a fundamental right as given in the Colorado Constitution, and it really comes down to we say, ‘Three strikes and you’re out,’” explained Kerns.

“No. 1, more than 10,000 of John Morse’s constituents turned in those signatures, same with Angela Giron; No. 2, the secretary of state, the highest election official in the land, upheld those petitions as completely constitutional… And No. 3, the court has spoken and they spoke loudly and clearly… that the recall proponents went above and beyond their call of duty.”

Head, who is leading efforts against Giron, said he was a bit surprised by the judge’s ruling, only because as a 28-year-old plumber, he is new to the judicial process and wasn’t confident following hours of testimony on Wednesday. But he believes Hyatt made the right decision.

“At the end of the day, when we thought about it, it had to be the ruling that I think anyone should have given,” said Head. “When you look at the grand picture of recalls and what they’re for, how they’re initiated by the people, and you start holding them to tax code-like compliance standards, it basically renders the process ineffective.”

The Colorado Statesman was the first to inform Head that neither Morse nor Giron would appeal the decision. He responded, “They must see the writing on the wall at this point.”

Kjersten Forseth, a campaign consultant for Morse, acknowledged that the battle ahead is going to be long and hard.

Already outside interests are pouring money into both Morse and Giron’s campaigns. Morse has raised a total of $153,013 in monetary contributions; Giron has raised $87,418. Much of the money is coming from liberal groups as far away as Washington, D.C.

Meanwhile, Pueblo Freedom and Rights, the issue committee leading the effort against Giron, has raised only $23,773 in both itemized and non-itemized contributions; El Paso Freedom Defense Committee, which is working to oust Morse, has raised $84,118 in total contributions.

Much of El Paso Freedom Defense Committee’s money comes from the conservative Colorado Springs group I Am Created Equal, run by Republican campaign operative Laura Carno. Pueblo Freedom and Rights has mostly individual donations and is running a largely grassroots campaign.

“This is not a normal election,” laughed Forseth.

The recalls are likely to garner national interest, as the elections are also a referendum on gun control. Organizations like Mayors Against Illegal Guns and the National Rifle Association may become involved.

Forseth pointed out that a recall election is two-part. First it will include a “yes” or “no” question on whether to recall the legislator. Then it will contain a list of replacement candidates.

“It’s going to require a lot of work on the part of the campaign and a lot less focus on how we can move Colorado forward in 2014, so I guess that’s unfortunate,” added Forseth.

“He needs to be judged on the entirety of his record, not just a few votes,” she continued.

“There’s votes on oil and gas drilling, on clean air and clean water — these are huge industries that he’s having to go up against… And if every time we had a disagreement on policy we had a recall, truthfully, Colorado would not move forward.”

GOP candidates

Both Morse and Giron have 10 days from the judge’s ruling to resign office. In that case, a vacancy committee would be established and Democrats would preserve the seat. But neither campaign says they will employ that strategy.

Meanwhile, Republican candidates must submit 1,000 petition signatures by the end of July 29 in order to run as a successor candidate. In both Morse and Giron’s districts, the GOP has rallied behind one candidate.

The El Paso County Republican Party has chosen Bernie Herpin, a retired Navy and Air Force officer and former Colorado Springs councilman. He is also past president of the Pikes Peak Firearms Coalition.

A central committee nominated Herpin after his opponent, Jaxine Bubis, a small business owner who was backed by Rocky Mountain Gun Owners, was revealed as a romantic novelist. She described herself as “a grammy who writes erotic romance.” Much of her writing contained extremely pornographic scenes.

“Republicans took an important step to build a unified front to recall John Morse and stand up for our constitutional rights,” Herpin said after winning the nomination on July 9. “Whether it’s our freedom of religion, freedom of association, freedom of the press, right to keep and bear arms, or our states’ rights, every day we see liberal politicians like John Morse chipping away at our constitutional rights.”

Of the two Democrats, Morse is considered to be the most vulnerable. He hails from Colorado Springs, a very Republican city, though his district leans more to the middle. That said, he only won the 2010 vote against Owen Hill by 340 votes.

In Pueblo — which leans Democratic, though there is strong support for gun rights — Republicans have rallied around George Rivera, a retired Pueblo Police Department deputy chief and a blues musician. Rivera believes he can unseat Giron.

“I think this election is rather unique,” he said. “The Democrats have kind of overstepped their bounds.”

Peter@coloradostatesman.com