DISTRICT COURT, PUEBLO COUNTY, STATE OF COLORADO, 501 North Elizabeth Street Pueblo, Colorado 81003 PLAINTIFF: Terry A. Hart, v. DEFENDANT: Gilbert Ortiz, Pueblo County Clerk and Recorder, COURT USE ONLY Case Number: 16CV30345 Division 405 DATE FILED: May 23, 2016 8:31 PM CASE NUMBER: 2016CV30345 and concerning INTERVENOR: Chris Nicoll. ORDER REGARDING AMENDED PETITION FOR REVIEW OF THE STATEMENT OF SUFFICIENCY PURSUANT TO THE PROVISIONS OF C.R.S. 1-4-909 AND 1-1-113 CONCERNING THE PETITION FILED BY CHRIS NICOLL FOR THE OFFICE OF COUNTY COMMISSIONER, DISTRICT 1, PUEBLO COUNTY, COLORADO Petitioner Terry A. Hart, represented by Nicholas A. Gradisar, Esq., filed a Petition for Review of the Statement of Sufficiency Pursuant to the Provisions of C.R.S. 1-4-909 and 1-1-113 Concerning the Petition Filed by Chris Nicoll for the Office of County Commissioner, District 1, Pueblo County, Colorado, on April 18, 2016, and an Amended Petition on April 20, 2016. Chris Nicoll, the candidate whose Statement of Sufficiency is being called into question by Petitioner, filed a Motion to Intervene on April 20, 2016, which was granted by the Court the same day. Intervenor Chris Nicoll, represented by Linda McMillan, Esq., filed a Response to the Amended Petition for Review on April 27, 2016. Defendant Gilbert Ortiz, represented by Stephen L. Cornetta, Esq. and Tim O Shea, Esq., filed an Answer to the Petition and Brief in Support of Defendant s Answer on April 27, 2016. Petitioner filed a Brief on May 6, 2016. Intervenor filed a Brief on May 9, 2016. The parties filed Stipulations of Fact on May 9, 2016. The Court conducted an evidentiary hearing on May 10, 2016. After reviewing the pleadings filed by the parties, and considering the exhibits and witness testimony offered and admitted into evidence at the May 10, 2016 hearing, the Court enters the following Findings of Fact and Conclusions of Law.
ISSUES PRESENTED Petitioner presents five issues to the Court in support of his position that the Petition and the Petition signatures submitted by Chris Nicoll are insufficient: (1) Mr. Nicoll failed to file a Candidate s Acceptance of Nomination form at the time he turned in his Petition and his Petition is therefore incomplete and insufficient; (2) the Petition sections notarized by Theodore F. Lopez are not valid and should not be considered due to the use of a notary seal embosser and not the currently required rectangular notary seal with an identification number; (3) the sections of the Petition notarized by Maria Nieto are invalid and should not be counted due to the change in her signature; (4) the Petition sections circulated by Dwight Robert Murdough should be disallowed due to the subsequent cancellation of his voter registration; and (5) the Petition sections circulated by Lorissa Martine should be disallowed due to a discrepancy in her listed address. Petitioner did not pursue an issue presented regarding the variance in middle initial used by Theodore F. Lopez. FINDINGS OF FACT The parties submitted the following stipulated facts, which are adopted by the Court: 1. On March 19, 2016, Terry Hart was nominated to run for the office of Pueblo County Commissioner District 1 at the local Democratic County Assembly. Mr. Hart is currently the incumbent County Commissioner for District 1. 2. On March 3, 2016, Chris Nicoll filed a candidate petition format with the Pueblo County Clerk and Recorder declaring his intent to seek the Democratic Party nomination for the office of Pueblo County Commissioner District 1. 3. On March 4, 2016, the Clerk and Recorder sent correspondence to Mr. Nicoll accepting his petition format and indicating he needed to collect 3,238 signatures. Pursuant to C.R.S. 1-4- 801(5), the deadline for Mr. Nicoll to file his petition was April 4, 2016. 4. On April 4, 2016, Chris Nicoll submitted to the Pueblo County Clerk and Recorder a Nominating Petition seeking nomination as a candidate for the office of Pueblo County Commissioner District 1. Said petition contained 6,022 signatures. 5. On April 13, 2016, the Clerk and Recorder concluded Mr. Nicoll obtained 3,539 valid signatures and issued a Statement of Sufficiency letter to Mr. Nicoll the same day.
6. On April 18, 2016, and pursuant to C.R.S. 1-4-909 & 1-1-113, Terry Hart filed a Petition for Review of the Statement of Sufficiency issued by the Clerk and Recorder. 7. On April 18, 2016, the Clerk and Recorder sent Mr. Nicoll correspondence reversing his initial decision of sufficiency and also indicating the Nominating Petition submitted on April 4, 2016 was missing a Candidate Acceptance of Nomination described by C.R.S. 1-4-906. 8. On April 18, 2016, Mr. Nicoll filed a Candidate Acceptance of Petition Nomination form. 9. On April 18, 2016, the Clerk and Recorder issued a subsequent Statement of Sufficiency letter to Mr. Nicoll. 10. On April 20, 2016, Mr. Hart filed an Amended Petition for Review of the Statement of Sufficiency. The Court makes the following additional findings of fact: 1. At the May 10, 2016 hearing, the Court heard testimony from Chris Nicoll, Gilbert Ortiz, Theresa Urenda, Maria Nieto, Theodore Lopez, and Dwight Murdough. 2. The Court first heard testimony from Intervenor and candidate for Pueblo County Commissioner, Chris Nicoll. Mr. Nicoll testified that he spoke to the Pueblo County Clerk and Recorder, Gilbert Ortiz, and reviewed the Colorado Secretary of State s website, concerning the procedure he had to follow to be listed as a candidate on the Democratic primary ballot for Pueblo County Commissioner, District 1. Mr. Ortiz referred Mr. Nicoll to the Secretary of State s website for information regarding the process of submitting a petition. The Secretary of State s website provides instructions, checklists, and forms for various state offices, however it merely refers those wishing to submit a petition for a county commissioner race to their own County Clerk and Recorder. No Candidate s Acceptance of Petition Nomination is provided on the Secretary of State s website for a county commissioner petition and it is not mentioned in a checklist of steps to follow. The Pueblo County Clerk and Recorder did not provide Mr. Nicoll with a copy of the Candidate s Acceptance of Nomination form on or prior to the April 4, 2016 deadline to submit his Petition for Nomination. Mr. Nicoll testified he was not aware he was required to complete and submit a Candidate s Acceptance of Nomination with his Petition for Nomination. He testified that he completed the Candidate s Acceptance of Nomination form the same day he was provided a copy by the Pueblo County Clerk and Recorder, on April 18, 2016. Mr. Nicoll testified that he has probably read the Election Code, which is only nine pages long, but he relied upon and followed all the steps listed on the Colorado Secretary of State s website to be listed on the ballot. Mr. Nicoll testified that he personally submitted his Petition for Nomination to the Pueblo County Clerk and Recorder and expressly indicated that he intended to run for the position. He also personally signed a Candidate Affidavit and submitted it with the Petition. While the Candidate Affidavit is a different form than the Candidate s Acceptance of Nomination, it is an indication that he intends to run for the office. When Mr. Nicoll personally turned in his Petition for Nomination on April 4, 2016, he was not told there were any deficiencies. There was no evidence that Mr. Nicoll intended to deceive the electorate in failing to submit a
Candidate s Acceptance of Nomination form on April 4, 2016, contemporaneous with his Petition for Nomination. The Court finds Mr. Nicoll s testimony to be credible. 3. Defendant, Pueblo County Clerk and Recorder Gilbert Ortiz, testified next. Mr. Ortiz testified that although he was aware that a Candidate Acceptance of Nomination form was required for a candidate nominated by a political party, he was not aware that a Candidate Acceptance of Nomination form was required for a candidate nominated by Petition. Mr. Ortiz testified that he filled out and provided the Candidate s Acceptance of Nomination form to Mr. Terry Hart, Petitioner herein, at the Democratic Assembly. Mr. Ortiz admitted that he did not provide a Candidate s Acceptance of Nomination form to Mr. Nicoll until April 18, 2016, after he issued a Statement of Sufficiency for Mr. Nicoll s Petition for Nomination. Mr. Ortiz testified that he believed that Mr. Nicoll complied with all statutory requirements of the Election Code to be placed on the primary ballot for the Democratic nomination for Pueblo County Commissioner as of April 13, 2016, when he issued the Statement of Sufficiency. He testified that he learned for the first time that a Candidate s Acceptance of Nomination form was required for a candidate nominated by petition when counsel for Petitioner contacted him after the Statement of Sufficiency was issued. Mr. Ortiz testified that he then contacted the Secretary of State to seek guidance as to how to proceed, that the Secretary of State guided Mr. Ortiz as to where he could locate the Candidate s Acceptance of Nomination form via an internal Secretary of State website called Clerk s Corner which is not available to the public and requires a password. Mr. Ortiz was advised to issue a statement of insufficiency to Mr. Nicoll, and then permit Mr. Nicoll to file the Candidate s Acceptance of Nomination form. Mr. Ortiz testified that he believes that he has read the Election Code, but he relies upon the Secretary of State website and forms for the procedures to be followed. The Court finds Mr. Ortiz s testimony to be credible and there was no evidence that he intended to deceive or mislead the electorate. 4. Mr. Ortiz further testified that he personally reviewed the voter registration form completed by the petition circulator Lorissa Martine and that she correctly listed South Quebec on her voter registration application form. Mr. Ortiz testified that there was a typographical error in listing her address as North Quebec, and that he contacted Denver County to correct this error. The Court finds that Ms. Martine did not list a fraudulent address on her voter registration form and there was no intent to mislead the electorate. 5. Mr. Ortiz admitted that Mr. Nicoll s nominating petition was submitted in a timely fashion. Mr. Ortiz also admitted that Mr. Nicoll had no way to obtain a copy of the Candidate s Acceptance of Nomination form except directly from the Pueblo County Clerk and Recorder s office. Finally, Mr. Ortiz testified that he had watchers from the Secretary of State oversee the review of the Petition for Nomination from Mr. Nicoll since he is a longtime friend of Mr. Nicoll, however there was no evidence that Mr. Ortiz acted in a manner to favor Mr. Nicoll due to this friendship. 6. Theresa Urenda testified that she works for the Pueblo County Clerk and Recorder s Office as an elections supervisor, and that she verified the Petitions for Mr. Nicoll. Ms. Urenda testified that comparing signatures of notaries to the notary packet on the Colorado Secretary of State s website is not part of the reviewing process set forth in the Secretary
of State s handbook. She also noted that she cannot access a copy of the notary s signature on the Secretary of State s notary website. Ms. Urenda testified that even when a voter signature appears inconsistent, the procedure is to simply mail a letter to the voter asking for confirmation that the signature was indeed the voter s signature. The Court finds Ms. Urenda s testimony to be credible. 7. Maria Nieto testified that she is a licensed notary in Colorado and she notarized the affidavits for two of the circulators who circulated Petitions for Mr. Nicoll. She confirmed, under oath, that she met the circulators in person, confirmed that the information in the affidavit was true and correct, obtained identification from the circulator, and notarized the Affidavits of Circulator at Defendant s Exhibits 1 through 52. Ms. Nieto testified that her signature has changed between 2011 and 2016 as a result of developing multiple sclerosis, and she received a formal diagnosis in 2016. Ms. Neito testified that her signature has changed because she has to write her signature very carefully so she is no longer able to write the artistic signature she used in 2011. The Court finds Ms. Nieto s testimony to be credible and that she gave a reasonable explanation for the difference in her signature. 8. Theodore Lopez testified that he is a licensed notary in Colorado and notarized the affidavits of several circulators who circulated petitions for Mr. Nicoll. He testified that he has been a licensed notary since 1994, and that he did not convert his notary seal to a rectangular notary stamp in 2014 when he renewed his notary license. He testified that he was not aware that his seal was not in compliance with the current requirements until this case was initiated, but that he has since obtained a rectangular seal in compliance with the statute. During his testimony, Mr. Lopez reviewed all of the Affidavits of Circulators he notarized at Exhibits 53 through 126, confirmed that he obtained identification from each circulator in person, confirmed with the circulator that the information in the Affidavit was true, and notarized the Affidavits. The Court finds Mr. Lopez s testimony to be credible and that he personally notarized the Affidavits. 9. Dwight Murdough testified that he was hired to circulate Petitions for Mr. Nicoll. He testified that he lived at the Colorado address he listed on his voter registration form for approximately 70 days, and he returned to this address after he completed circulating the Petitions for Mr. Nicoll. He testified that he has lived in Colorado for about eight months. Mr. Murdough testified that he lacks a permanent address and that he listed his thencurrent address on the Affidavit for Circulator in reliance on the plain language of the form. He testified that he registered to vote at the Colorado Department of Motor Vehicles when he obtained a Colorado Identification card before he circulated the Petitions, and he also registered to vote on-line before he circulated the Petitions. He testified that Larissa Martine also lived at the same address on S. Quebec St. when the Petitions for Mr. Nicoll were circulated by her. His voter registration was revoked subsequent to his circulation of petitions for Mr. Nicoll because his mail was returned as undeliverable at the S. Quebec Street address; however he was properly registered to vote at the time he was circulating petitions. The Court finds Mr. Murdough s testimony to be credible.
LEGAL STANDARD AND SUBSTANTIAL COMPLIANCE TEST Pursuant to C.R.S. 1-4-909 and C.R.S. 1-1-113, a District Court has subject matter jurisdiction to review compliance with the election procedures set forth in the Election Code promulgated at C.R.S. 1-1-101 et. seq. The party filing a protest has the burden of sustaining the protest by a preponderance of the evidence. C.R.S. 1-4-911. The right to hold public office is one of the most valuable and fundamental rights of citizenship. Cowan v. City of Aspen, 509 P2d 1269, 1272 (Colo. 1973). Substantial compliance with the statutory requirements of the Election Code is the legal standard firmly and consistently applied by the Colorado Supreme Court and codified by the legislature at C.R.S. 1-1-103, which states: 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. Meyer v. Lamm, 846 P.2d 862, 876 (Colo. 1993). The substantial compliance test rejects strict application of the procedures set forth in the Election Code. As long as the procedure used substantially complies with the procedure set forth in the Election Code, the purpose and intent of the procedure is upheld, and failure to strictly comply is not attended by circumstances of fraud, undue influence, or ill intent, the procedure used will be upheld. From the inception of the Election Code, the Colorado Supreme Court has held that the procedure set forth in the Election Code provides guidance and should not be strictly applied by the election board or the Courts. For example, in the Young case, published in 1895, the Colorado Supreme Court stated that [t]he principal object of the rules of procedure prescribed by statute for conducting an election is to protect the voter in his constitutional right to vote in secret; to prevent fraud in balloting and secure a fair count. Such rules are usually held to be directory, as distinguished from mandatory; and unless the statute declares that a strict compliance is essential, in order to have the ballot counted, the courts will not undertake to disenfranchise any voter by rejecting his ballot, where his choice can be gathered from the ballot when viewed in the light of the circumstances surrounding the election. Young v. Simpson, 42 P. 666 (1895). This principle is similarly applied to provisions of the Election Code that impact a person s fundamental constitutional right to hold office. More recently, in Meyer v. Lamm, 846 P.2d 862, 876 (Colo. 1993), the Colorado Supreme Court expressly re-affirmed the test of substantial compliance to review compliance with procedures set forth in the Election Code. The Court reasoned that the right to vote is fundamental, and a rule of strict compliance might cause statutes to unreasonably burden voters' rights. Strict compliance was not necessary to serve the state's important regulatory interest or to effectuate the purpose of the statute. In finding that the procedure used substantially complied with the Election Code, the Court found that the spirit and intention of the law is not violated, although a literal construction would vitiate it, citing Kellogg v. Hickman, 21 P. 325 (1889). Id. In Erickson v. Blair, 670 P.2d 749, 753 (Colo. 1983) the Colorado Supreme Court held that where there is neither claim nor proof of fraud, undue influence, or intentional wrongdoing in an election, the appropriate standard in determining the validity of absent
voter ballots is whether the absent voter affidavits substantially complied with statutory requirements for absentee voting. The substantial compliance test involves a three-part analysis: (1) the extent of the noncompliance, that is, a court should distinguish between isolated examples of oversight and what is more properly viewed as a systematic disregard for the procedures; (2) the purpose of the provision violated and whether that purpose is substantially achieved despite non-compliance; and (3) whether it can reasonably be inferred that a good faith effort was made to comply or whether non-compliance is more properly viewed as the product of an intent to mislead the electorate. Bickel v. City of Boulder, 885 P.2d 215, 227 (Colo. 1994); Fabec v. Beck, 922 P.2d 330, 341 (Colo. 1996). The substantial compliance test has consistently and repeatedly been applied by the Colorado Supreme Court when reviewing pre- and post-election procedures, and it applies to this matter. Here, it is clear that C.R.S. 1-4-906 requires that Every nominating petition before it is filed shall have attached to it a notarized acceptance of the nomination of the candidate or notarized acceptances by both of the joint candidates. No particular form is required by the statute. Petitioner argues that ignorance is no excuse. Both Intervenor and Defendant acknowledge that the statute requires a Candidate s Acceptance of Nomination to be filed contemporaneously with the Petition, but neither noticed that the Secretary of State s own directions for submitting a nominating petition for a county commissioner race does not comply with the statute. Intervenor and Defendant also point out that C.R.S. 1-4-906 is a separate statute than C.R.S. 1-4-801(5), that C.R.S. 1-4-906 does not make the Candidate s Acceptance of Nomination a condition precedent to accepting a valid Nominating Petition, and that the proper remedy for the omission is a Petition to Review, as occurred here, rather than simply disallowing the entire Petition. The Court concludes that the omission was an isolated oversight on the part of both Intervenor and Defendant and that a good faith effort was made to comply with the procedures, given the lack of complete instructions by the Secretary of State. The Court also concludes that the purpose of the requirement for a Candidate s Acceptance of Nomination is to ensure that the party nominated actually intends to run for the office and is not nominated against their will or without their knowledge. The purpose in this case was substantially achieved by the fact that Intervenor personally delivered the Petition to Defendant and the fact that the Petition contained an affidavit signed by Intervenor that, while not technically a Candidate s Acceptance of Nomination, clearly indicates that he intended to run for the office. Petitioner argues that the requirement of the filing of a contemporaneous Candidate s Acceptance of Nomination is clear and unambiguous, and that the failure to do so is a fatal flaw in his petition submission that cannot be cured at a later date. It appears that Colorado law, however, has consistently rejected such a technical reading of the Election Code. As to the remainder of the issues raised by Petitioner, the Court has concluded that the evidence presented by Defendant and Intervenor sufficiently demonstrated that the Petition signatures were gathered and notarized in substantial compliance with the applicable procedures. While Mr. Lopez did use an outdated Notary seal to notarize the petition sections, the Court was satisfied with his sworn testimony that he personally notarized all of the documents he submitted. While he may be subject to penalties for use of an outdated seal, there was no evidence of any intent to mislead the electorate or
to flout the procedures of the Election Code. Ms. Nieto s testimony was sufficient to demonstrate that she personally notarized all of her petition sections, and that the apparent change in her signature was due to illness. Again, she may be subject to penalties for failure to comply with notary requirements, but there was no effort to mislead the electorate and there was a good faith attempt to comply with the procedures. Mr. Murdough and Lorissa Martine were hired to gather signatures by a company listed on the Secretary of State website. There was no evidence that the hiring of petition circulators, even from out of town, was in any way improper. Mr. Murdough was properly registered to vote and a resident of Colorado at the time he collected signatures, although his registration was later revoked. The Court concludes that Mr. Murdough was in compliance with the procedures for gathering signatures. Ms. Martine s address contained a typographical error, listing N. Quebec St. rather than S. Quebec St. This error was sufficiently explained by the testimony at the hearing, and the Court concludes that Ms. Martine s signatures should not be disallowed based on the typographical error. Having therefore found that: 1. The failure to file a contemporaneous Candidate s Acceptance of Nomination form with the Petition was an isolated oversight, that the purpose of the procedure was substantially achieved despite the non-compliance, that a good-faith effort was made to comply, and that invalidating the entire Petition based on the failure to comply with C.R.S. 1-4-906 is not required by the timelines in C.R.S. 1-4-801(5); and 2. The non-compliance in notarizations performed by Mr. Lopez and Ms. Nieto were sufficiently explained and the petition sections were properly notarized; and 3. Petition circulator Mr. Murdough complied with all requirements for serving as a circulator, and that the typographical error in Petition circulator Ms. Martine s voter registration was sufficiently explained and she complied with all requirements for serving as a circulator; The Court therefore finds that Intervenor substantially complied with the requirements of C.R.S. 1-4-801 and 1-4-901 et. seq. and the request to find that the Nominating Petition was fatally defective and could not be cured is denied, and the request that the questioned Nominating Petition sections be disallowed is denied. The Petition to Review is dismissed. DONE BY THE COURT ON MAY 23, 2016 Jill Mattoon District Court Judge