Maurice C. Jones, an Individual & Citizen Ctr., Non-Profit Corp. v. Samora (In re Re), Supreme Court Case No. 13SA148

• Decision Date: 24 February 2014
• Docket Number: Supreme Court Case No. 13SA148
• Parties: In re: Maurice C. JONES, an individual and Citizen Center, a Colorado non-profit corporation, Plaintiffs, v. Christian R. SAMORA, in his official capacity as Clerk & Treasurer of the Town of Center, Colorado; Town of Center Colorado, a Colorado statutory town; Herman Dickey Sisneros, an individual; Edward W. Garcia, an individual; and Geraldine Martinez, an individual, Defendants.
• Court: Colorado Supreme Court

318 P.3d 462

In re: Maurice C. JONES, an individual and Citizen Center, a Colorado non-profit corporation, Plaintiffs,

v.Christian R. SAMORA, in his official capacity as Clerk & Treasurer of the Town of Center, Colorado; Town of Center Colorado, a Colorado statutory town; Herman Dickey Sisneros, an individual; Edward W. Garcia, an individual; and Geraldine Martinez, an individual, Defendants.

Supreme Court Case No. 13SA148

Supreme Court of Colorado.

January 27, 2014

As Modified on Denial of Rehearing February 24, 2014

Appeal Pursuant to Section 31–10–1305, C.R.S. (2013), Saguache County District Court Case No. 13CV30009, Honorable Martin A. Gonzales, Judge

Attorneys for Plaintiffs: McGuire Baines, LLC, Robert A. McGuire, Jeffrey D. Baines, Denver, Colorado

Attorneys for Defendants Herman Dickey Sisneros, Edward W. Garcia and Geraldine Martinez: Senter, Goldfarb & Rice, LLC, Eric M. Ziporin, Jennifer F. Kemp, Denver, Colorado

Attorneys for Defendant Christian R. Samora: Overturf McGrath Hull & Doherty, P.C., Peter H. Doherty, Meredith L. McDonald, Denver, Colorado

Attorneys for Defendant Town of Center, Colorado: Nathan, Bremer, Dumm & Myers, P.C., J. Andrew Nathan, Marni Nathan Kloster, Denver, Colorado, Garfield & Hecht, P.C., David H. McConaughy, Christopher D. Bryan, Glenwood Springs, Colorado

Attorneys for Amicus Curiae Colorado Secretary of State: John W. Suthers, Attorney General, Leeann Morrill, First Assistant Attorney General, Denver, Colorado

Attorneys for Amici Curiae Jennie Sanchez and Mary McClure: Lewis Roca Rothgerber LLP, Alex C. Meyers, Denver, Colorado, Shelley Wittevrongel, Attorney at Law, P.C., Shelley Wittevrongel, Boulder, Colorado

Attorneys for Amicus Curiae Colorado Lawyers Committee: Davis Graham & Stubbs, LLP, Geoffrey C. Klingsporn, Denver, Colorado

Attorney for Amicus Curiae Colorado Common Cause: David J. Janik, Denver, Colorado

Attorneys for Amicus Curiae Vet Voice Foundation: Azizpour Donnelly, LLC, Katayoun Azizpour Donnelly, Denver, Colorado

Attorneys for Amici Curiae Eagle County, CO, Boulder County, CO, Larimer County, CO, Jefferson County, CO, and Chaffee County, CO Clerks and Recorders: Hall & Evans, L.L.C., Thomas J. Lyons, Gillian Dale, Denver, Colorado

En Banc

JUSTICE HOBBS delivered the Opinion of the Court.

¶ 1 This case concerns a contested March 19, 2013, recall election in the Town of Center, Colorado. Herman D. Sisneros, Edward W. Garcia, and Geraldine Martinez were elected to replace three recalled municipal officers: Mayor Susan M. Banning, Trustee John Faron, and Trustee Maurice C. Jones, respectively. Following a recount, Maurice C. Jones and Citizen Center, a Colorado non-profit corporation (collectively, “Jones”), filed an election contest under section 31–10–1301, et seq., C.R.S. (2013) seeking to set aside the results of the recall election on several grounds, including that voters' right to ballot secrecy had been violated. The District Court for Saguache County entered judgment on June 7, 2013, setting aside the results of the recall election, ordering a new recall election, and continuing in office the three municipal officials who had been recalled.Town Clerk Christian R. Samora, Sisneros, Garcia, and Martinez (collectively, “Samora”) petitioned us for review under section 31–10–1305, C.R.S. (2013), and we accepted jurisdiction over this election matter.¹

¶ 2 We hold that the district court erred as a matter of law in setting aside the results of the recall election and ordering a new recall election. Accordingly, we reverse the district court's judgment and return this case to the district court with directions to enter a judgment under section 31–10–1307, C.R.S. (2013) that Herman D. Sisneros, Edward W. Garcia, and Geraldine Martinez were duly elected.

I.

¶ 3 The Town of Center is a statutory municipality of the State of Colorado located in Rio Grande and Saguache Counties. During the summer of 2012, the Town Board proposed an ordinance authorizing $2.8 million in revenue bonds to pay for improvements to the Town's water system. The bonds were to be repaid by Town residents through a series of utility fee increases. Concerned about the Town Board proceeding with this plan without submitting it to a public vote, a group of Town citizens formed a recall committee and circulated petitions seeking to recall the Town's Mayor and several Town Trustees. Leading up to the recall election, there were disputes regarding the referendum process and the content of the ballots to be used. Many of the potential voters and candidates also knew each other personally and, during the election, there were only several hundred voters in total, a majority of whom voted via absentee ballots.

¶ 4 The election was conducted on March 19, 2013, pursuant to the Colorado Municipal Election Code of 1965, sections 31–10–101, et seq., C.R.S. (2013) and other state statutes governing the recall of municipal officers. See§§ 31–4–501, et seq., C.R.S. (2013). Four election judges, including Adeline Sanchez, who had herself been instrumental in the recall effort, assisted Town Clerk and Designated Election Official Christian Samora in counting the votes and certifying the results of the election after the polls closed at 7:00 p.m. that evening. The election judges' actions while counting the ballots gave rise to the election contest, trial court judgment, and appeal in this case.

¶ 5 Before assisting with the election, Samora and the other election judges took the oath specified by section 31–10–407(1), C.R.S. (2013), which required them to affirm that they would not try to ascertain or disclose how any voter voted.² While the polls were open, the election judges required in-person voters to complete a form confirming that they were registered voters of the Town of Center. The judges then checked the Town's voter registration lists to confirm that each person's name properly appeared on the lists. See§ 31–10–606(1), C.R.S. (2013) (requiring election judges to follow this procedure); see also§ 31–10–607, C.R.S. (2013) (requiring that, once in-person voters complete their ballots, they return them to an election judge so the judge can remove the identifying numbered stubs from the ballots—in view of the voters—before the voters place the ballots in the ballot box).

¶ 6 Prior to the mailing of absentee ballots, the names and ballot stub numbers of voters requesting absentee ballots were recorded on the voter registration lists, as required by section 31–10–1002(3), C.R.S. (2013). Only persons whose names appeared on the voter registration lists who had not previously voted by absentee ballot were permitted to vote in person on March 19, 2013. Section 31–10–1007(1), C.R.S. (2013) requires absentee ballots to be cast and counted identically to the way in-person ballots are cast and counted, “except that one of the judges shall deposit the ballot in the ballot box without unfolding it.”

¶ 7 When the polls closed, Samora and the other election judges proceeded to count the ballots in four stages: first, the judges counted the “yes” and “no” absentee ballots on the question of whether the municipal officers should be recalled; second, the judges counted the “yes” and “no” in-person ballots on the recall question. After counting a sufficient number of votes to recall three of the four municipal officials eligible for recall, the judges then counted the votes for the candidates for the three vacant offices, once again counting the absentee ballots first, followed by the in-person ballots.

¶ 8 A list of the absentee ballot stub numbers had been placed in a box across the room from where the election judges performed the vote count. That list recited absentee voter names and addresses paired with the ballot stub number of each voter's absentee ballot. Sometime during the first stage of ballot counting, as the judges were counting the “yes” and “no” votes on the absentee ballots, they noticed they had inadvertently left the numbered stubs attached to the absentee ballots rather than detaching the stubs prior to counting. Instead of stopping the count to remove the numbered stubs, the election judges proceeded with counting the “yes” and “no” responses on both the absentee and in-person ballots, and then removed the numbered stubs from the absentee ballots before moving on to the final stages of counting the votes.

¶ 9 After counting all of the ballots, the election judges completed election returns showing that Banning, Faron, and Jones were each recalled from office, and Sisneros, Garcia, and Martinez had been elected, respectively, to replace them. The results showed that Julio Paez, also proposed to be recalled, was retained in office as a Trustee. Jones then requested a recount and the recount was completed on March 29, 2013. On that date, Samora certified the election results as follows:

• Banning was recalled as Mayor by a margin of 33 votes, and Sisneros was elected to replace her as Mayor with 275 votes;

• Faron was recalled as Trustee by a margin of 43 votes, and Garcia was elected to replace him as Trustee with 152 votes;

• Jones was recalled as Trustee by a margin of 34 votes, and Martinez was elected to replace him as Trustee with 150 votes; and

• Paez was retained as Trustee by a margin of 9 votes.

¶ 10 Jones and Citizen Center, a Colorado nonprofit corporation, filed an election contest and complaint pursuant to sections 31–10–1301, et seq., in the District Court for Saguache County. The election contest alleged numerous defects with the election, including that illegal votes were counted, that errors and mistakes were made by election judges, that there was misconduct by the Town Clerk, and that various municipal entities exercised undue influence over voters in the Town. Jones and Citizen Center's primary complaint was that the numbered stubs were left on the absentee ballots during the initial stages of counting and this violated voters' right to cast secret ballots,...