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Carson v. Reiner

Supreme Court of Colorado, En Banc

May 23, 2016

Kent Carson, James

         Appeal Pursuant to § 1-1-113(3), C.R.S. (2015) Mesa County District Court Case No. 15CV30710 Honorable David A. Bottger, Judge

          Attorneys for Petitioners-Appellants: KBN Law, LLC Mario D. Nicolais, II Lakewood, Colorado

          Attorneys for Respondent-Appellee Sheila Reiner: J. Patrick Coleman, Mesa County Attorney Andrea Nina Atencio, Chief Deputy County Attorney-Civil Division Grand Junction, Colorado

          Attorney for Intervenor-Appellee: Dufford, Waldeck, Milburn & Krohn, L.L.P. William S. DeFord Barbara R. Butler Grand Junction, Colorado

          Attorneys for Amici Curiae of Shannon Antonucci, Noelle Westcott, and Wayne Westcott: Tierney Paul Lawrence LLP Edward T. Ramey Denver, Colorado

          Attorneys for Amicus Curiae Colorado Secretary of State: Cynthia H. Coffman, Attorney General Frederick R. Yarger, Solicitor General LeeAnn Morrill, First Assistant Attorney General Matthew D. Grove, Assistant Solicitor General W. Eric Kuhn, Assistant Attorney General Denver, Colorado


          COATS JUSTICE.

         ¶1 Carson and two other electors of Mesa County Valley School District 51 made application to this court, pursuant to section 1-1-113(3), C.R.S. (2015), for review of the district court's order denying their requested relief concerning a school board election. A week before the scheduled election, Carson filed a verified petition, pursuant to section 1-1-113(1), naming as respondents the county clerk and recorder and the school board's designated election official, and seeking a declaration that one of the candidates for the school board was unqualified and had been wrongfully certified to the ballot. In addition, the petition sought an order forbidding the clerk and recorder from counting votes for that candidate. The district court denied the requested relief on the grounds that section 1-1-113(1) did not authorize it to adjudicate the eligibility of a candidate at that stage of the election process.

         ¶2 Because section 1-1-113(1) does not permit a challenge to an election official's certification of a candidate to the ballot, solely on the basis of the certified candidate's qualification, once the period permitted by section 1-4-501(3), C.R.S. (2015), for challenging the qualification of the candidate directly has expired, the ruling of the district court is affirmed.


         ¶3 On October 27, 2015, one week before the November 3 regular biennial school board election for Mesa County Valley School District 51, three registered electors of the school district, Kent Carson, James "Gil" Tisue, and Dale Pass, filed a verified petition with the district court, challenging as wrongful the certification of one of the candidates. The petition indicated that it was filed pursuant to section 1-1-113(1), C.R.S. (2015), and it sought a judicial determination and declaration: (1) that Paul Pitton, a certified candidate for school board director of District B, was unqualified to be a candidate for that office; (2) that the designated election official committed a wrongful act in failing to verify Pitton's residence before certifying him to the ballot; and (3) that the clerk and recorder must not record or tabulate ballots marked for Pitton. The petition named as respondents the Clerk and Recorder for Mesa County, Sheila Reiner, and the district board of education's designated election official, its secretary Terri N. Wells.

         ¶4 The district court heard the petition on November 2, 2015, the day before election day. The underlying facts were stipulated by the parties. The Mesa County Valley School District, which operates under a director district plan of representation requiring school board director candidates to reside in the district the candidate in question seeks to represent, see § 22-31-107(1), C.R.S. (2015), is split into five separate, non-overlapping geographic areas within the school district, comprising the director districts known as Districts A–E. In August, intervenor Paul Pitton appeared before Wells, the designated election official, and after signing them, filed various documents, including an Affidavit of School Director Candidate on Qualifications for Office, affirming that he met all qualifications to run for the school director seat for District B. Wells then provided Pitton with nomination petitions.[1] Within the time period permitted by statute, Pitton submitted the completed petitions to Wells, as the designated election official, who determined them to be sufficient, subject to verification of petition signatures. Wells, in turn, submitted the petitions to the Mesa County Elections Division for signature verification, pursuant to an Intergovernmental Agreement with the Mesa County Clerk and Recorder. After receiving notice from the Elections Division that the signatures on all completed nomination petitions for District B candidates had been verified, Wells provided the Division with a list of the candidates, including Pitton, who should appear on the ballot. None of those filing the verified petition in the district court formally challenged Pitton's eligibility to be a candidate before filing their section 1-1-113(1) petition.

         ¶5 Ruling from the bench, the district court denied the relief requested in the petition, finding that section 1-1-113(1) did not authorize adjudication of Pitton's eligibility as a candidate at that stage in the election cycle. Instead, it ordered that the election be allowed to proceed. Petitioners ...

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