This Matter Is Before the Court on a Motion to Set Emergency Hearing, Filed on the Evening of April 30, 2020
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DISTRICT COURT CITY AND COUNTY OF DENVER, COLORADO 1437 BANNOCK STREET, DATE FILED: May 5, 2020 11:11 AM DENVER, CO 80202 CASE NUMBER: 2020CV31482 Petitioner: ERIK UNDERWOOD, Case Number: 2020CV31482 v. Ctrm: 209 Respondents: JENA GRISWOLD in her official capacity as the Secretary of State for the State of Colorado; and MORGAN CARROLL in her official capacity as the Chairwoman of the Colorado Democratic Party. ORDER RE: PETITION FOR RELIEF UNDER C.R.S. § 1-1-113 This matter is before the Court on a Motion to Set Emergency Hearing, filed on the evening of April 30, 2020. This matter was heard by the Court on May 4, 2020, in an expedited fashion due to the Colorado Secretary of State’s obligation to deliver the June 30, 2020 primary election ballot order and content to county clerks by May 7, 2020, pursuant to C.R.S. § 1-5-203(1). I. BACKGROUND By way of procedural background, on April 28, 2020, Petitioner Erik Monroe Underwood (“Mr. Underwood”) filed a Petition for Declaratory Relief against Colorado Secretary of State, Jena Griswold (“Secretary Griswold”). An Amended Petition was filed on April 30, 2020, which now also includes Ms. Morgan Carroll (“Ms. Carroll” sued in her representative capacity only), as the Chairperson of the Colorado Democratic Party. Mr. Underwood brings 5 claims for relief: (1) declaratory judgment, (2) violation of the United States and Colorado Constitutions – propriety of elections, (3) violation of the United States and Colorado Constitutions – free speech, (4) violation of the United States and Colorado Constitutions – due process, and (5) violation of C.R.S. § 1-4- 601(2)(a).1 Specifically in this case, Mr. Underwood asks the Court to order that Mr. Underwood’s 1 The Court advised the parties at the conclusion of the May 4, 2020 hearing that under law, claims one – four are properly dismissed without prejudice. Frazier v. Williams, 401 P.3d 541, 544 (Colo. 2017). name be listed on the certificate of designation filed with the Colorado Secretary of State, due to irregularities in the 2020 Colorado Assembly Process. Given the tight deadlines for conducting elections, C.R.S. § 1-1-113 is a summary proceeding designed to quickly resolve challenges brought by electors, candidates, and other designated plaintiffs against state election officials prior to election day. All parties agree that such proceedings generally move at a breakneck pace. Frazier v. Williams, 401 P.3d 541, 544 (Colo. 2017). On May 4, 2020, the Court received the following evidence: testimony from Mr. Underwood, Ms. Carroll, and Ms. Stephany Spaulding. The Court also specifically received Exhibits 10, 11, A, B, C, and D. The parties further stipulated to the admission of all but Exhibits 6 and C. The factual findings set forth in this Order are based upon a review of the exhibits and evaluations of the credibility of witness testimony, which in turn are based upon observations of the witnesses’ means of knowledge, strength of memory, and opportunities for observation; the reasonableness or unreasonableness of their testimony; the consistency or lack of consistency in their testimony, their motives, whether their testimony was contradicted or supported by other evidence; their biases, prejudices or interests, if any; and all other facts and circumstances shown by the evidence which affected their credibility. II. LEGAL AUTHORITY AND ANALYSIS A. Jurisdiction This action is brought under C.R.S. § 1-1-113. Both Respondents argue that this Court does not have jurisdiction, so the Court addresses this issue at the outset. 1. Colorado Secretary of State Secretary Griswold argues that this Court does not have jurisdiction because there is “no allegation that she has or is about to commit a breach or neglect of any duty or other wrongful act—the sole grounds available for naming an election official in this type of suit.” SOS Hr’g. Br., p. 2. C.R.S. § 1-1-102, known as the Uniform Election Code of 1992 (the Code”) applies to primary elections. The title goes on further to state that “substantial compliance with the provisions or intent of this code shall be all that is required for the proper conduct of an election to which this code applies.” C.R.S. § 1-1-103(3). The Colorado Revised Statutes state that the Colorado Secretary of State is charged with the duty “to supervise the conduct of primary, general, congressional vacancy, and statewide ballot issue elections” and to “enforce the provisions of the code.” C.R.S. § 1-1-107. When, as here, a dispute arises, a verified petition under § 1-1-113 is the vehicle for resolution. A verified petition shall 2 allege how the official has committed or is about to commit a breach or neglect of duty or other wrongful act. The official is entitled to notice, and the parties are afforded an opportunity to be heard. The Court, upon a finding of good cause, shall issue an order requiring substantial compliance with the provisions of the code. The order shall require the person charged to: (1) forthwith perform the duty or (2) desist from the wrongful act or (3) forthwith show cause why the order should not be obeyed. The Court does not agree with Secretary Griswold’s position. The statute is clear and unambiguous that the Colorado Secretary of State is charged with the duty to supervise the conduct of primary ballot issue elections and to enforce the provisions of the Code. Although it is true that she has not yet breached or neglected a duty, Secretary Griswold is also required to enforce the provisions of the Code. As discussed below, it is the provisions of the Code that give this Court jurisdiction as to the Colorado Secretary of State.2 2. Chair of the Colorado Democratic Party Ms. Carroll argues that this Court does not have jurisdiction. Rather, she argues that the jurisdiction over Mr. Underwood’s controversy is held by the Colorado Democratic Party (“CDP”). Carroll Hr’g. Br. p. 2. Specifically, Ms. Carroll asserts that C.R.S. § 1-3-106 is the remedy to Mr. Underwood—the state central committee “shall have full power to decide all controversies …. This shall include controversies concerning the membership and personnel of any committee, or the officers thereof, and any nominations bearing or claiming the name or use of the word ‘Democratic’ in any jurisdiction.” Carroll Hr’g. Br. p. 3 (emphasis supplied). In People ex rel. Lowry v. Dist. Court, 74 P. 896 (Colo 1903), the case dealt with two different groups within the Republican party arguing about who could use the word “Republican.” The Colorado Supreme Court held that the district court was without jurisdiction, rather, the matter was left to the party to resolve internally. The Court finds that while that is an accurate statement of the law, the facts here are not similar enough to Lowry to allow for the CDP to handle this matter under the exclusive jurisdiction afforded under C.R.S. § 1-3-106.3 Accordingly, the Court finds that it has jurisdiction to hear this matter as to Ms. Carroll in her capacity as the Chairwoman of the CDP. 2 The Secretary’s counsel has advised that the “Secretary of State will comply with her statutory obligation …” SOS Hr’g. Br. p. 5. 3 Although argument is made that in Kuhn v. Williams, 418 P.3d 478 (Colo. 2018), the Colorado Secretary of State took part in the C.R.S. § 1-1-113 proceeding and no one argued, nor did the Colorado Supreme Court address, the applicability of C.R.S. § 1-3-106, the Court finds it unnecessary to address this argument. 3 B. Claim Five4 In Claim Five, Mr. Underwood seeks to have his name listed as a candidate on the Certificate of Designation by Assembly for the Office of United States Senate for the CDP. C.R.S. § 1-4-103 provides that “all candidates for nominations to be made at any primary election shall be placed on the primary election ballot either by certificate of designation by assembly or by petition.” This is true for the nomination for United States Senate. C.R.S. § 1-4-702. As issue here are the events leading up to various county assemblies and the CDP State Assembly, held on April 18, 2020.5 To set the stage, the Court briefly discusses that on March 10, 2020, Colorado Governor Jared Polis verbally declared a state of emergency for the State of Colorado due to the novel Coronavirus, commonly referred to as COVID-19. On March 16, 2020, emergency rules were then enacted through House Bill 20-1359 and Executive Order D 2020 005, which addressed how the 2020 primary election scheduled for June 30, 2020 would be conducted. Executive Order D 2020 005 specifically directed “Major political parties to make any amendments necessary to their bylaws to comply with any [other] emergency order …” p. 2 of 3. In response, the CDP implemented rules for county and state assembly gatherings. In relevant part, on or about March 18, 2020, the CDP limited United States Senate candidates to a 5 minute video to be published at county assemblies and a 5 minute video to be published at the April 18, 2020 state assembly. On or about March 22, 2020, the length of the video was cut to 2.5 minutes. By April 15, 2020, United States Senate Candidate Spaulding had filed a formal complaint with CDP. The Colorado Chair for the State Credential Committee advised that the complaint contained insufficient information for a violation of Federal Election Law.