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Kuhn v. Williams

Supreme Court of Colorado, En Banc

May 14, 2018

Michael Kuhn, Ashlee Springer, Lydia K. Honken, Jeremy Isaac, and Sharon M. Schafer, Petitioners-Appellants
v.
Wayne W. Williams, in his official capacity as the Colorado Secretary of State, Respondent-Appellee and Lamborn for Congress. Intervenor-Appellee

          Order Reversed en banc April 23, 2018

          Appeal Pursuant to § 1-1-113(3), C.R.S. (2017) District Court, City and County of Denver, Case No. 18CV31151 Honorable Brian R. Whitney, Judge

          Attorneys for Petitioners-Appellants: Statecraft PLLC Michael Francisco Colorado Springs, Colorado

          Attorneys for Respondent-Appellee: Cynthia H. Coffman, Attorney General LeeAnn Morrill, First Assistant Attorney General Matthew D. Grove, Assistant Solicitor General Emily Buckley, Assistant Attorney General Denver, Colorado

          Attorneys for Intervenor-Appellee: Hale Westfall LLP Ryan R. Call Richard A. Westfall Denver, Colorado

          Attorneys for Amici Curiae Colorado Legislators: Lewis Roca Rothgerber Christie LLP Thomas M. Rogers III Dietrich C. Hoefner Hermine Kallman Denver, Colorado

          Attorneys for Amici Curiae Ted Harvey, Senator Jerry Sonenberg, Senator John Cook, and Greg Brophy: Klenda Gessler & Blue Geoffrey N. Blue Scott E. Gessler Denver, Colorado

          PER CURIAM.

         ¶1 In this expedited appeal under section 1-1-113(3), C.R.S. (2017), we address whether the Colorado Secretary of State ("the Secretary") may certify incumbent Representative Doug Lamborn to the 2018 Republican primary ballot for Colorado's Fifth Congressional District. Relying solely on the Colorado Election Code, we conclude he may not.[1]

         ¶2 A major-party candidate in a partisan election may seek access to the primary ballot either through the party assembly process or by petition. Lamborn for Congress (hereinafter the "Lamborn Campaign"), the authorized federal campaign committee of Representative Doug Lamborn, chose the latter. Under section 1-4-801(2)(b), C.R.S. (2017), of the Colorado Election Code, he needed 1000 verified signatures from registered Republicans in the Fifth Congressional District to qualify for the ballot. His campaign hired an organization to circulate petitions and obtain the requisite signatures. The campaign then submitted the petition and signatures to the Secretary for review and verification.

         ¶3 After completing his review, the Secretary determined that the Lamborn Campaign had submitted 1269 valid signatures, so he issued a statement of sufficiency pursuant to section 1-4-908(3), C.R.S. (2017). Shortly thereafter, Petitioners filed a petition in the district court under sections 1-1-113(1) and 1-4-909(1), C.R.S. (2017), protesting the Secretary's finding of sufficiency on grounds that several of the Lamborn Campaign's petition circulators were not bona fide residents of Colorado, as required by section 1-4-905(1) of the Election Code.

         ¶4 On April 10, 2018, the district court held a hearing on the Petitioners' claims. Petitioners asserted, in part, that it would be a breach or neglect of duty under section 1-4-908(3) for the Secretary to certify Representative Lamborn's name to the primary election ballot if the necessary signatures were not collected by Colorado residents. Petitioners' arguments to the district court focused principally on two circulators: Jeffrey Carter and Ryan Tipple. Following a hearing, the district court concluded that Carter was not a resident, and therefore invalidated the 58 signatures he collected. No party challenges that ruling.

         ¶5 This appeal focuses on the 269 signatures gathered by Tipple. Without those signatures, Representative Lamborn does not have enough signatures to qualify for the ballot. The district court concluded that Tipple's stated long-term intent to become a resident of Colorado satisfied the circulator residency requirement. Because the signatures Tipple collected meant that the Lamborn Campaign had satisfied the statutory threshold, the court denied Petitioners' request for relief and upheld the Secretary's finding of sufficiency. Petitioners appealed to us under section 1-1-113(3), and we exercised our discretion to review the district court's ruling.

         ¶6 We reverse. Although the Secretary properly relied on the circulator affidavits and information in the statewide voter registration system in reviewing the sufficiency of the petition, section 1-4-909(1) of the Election Code nevertheless affords a narrow opportunity to challenge the validity of a candidate's petition before the Secretary certifies the candidate to the ballot. Petitioners properly availed themselves of that opportunity and challenged the residency of some of the petition circulators for the Lamborn Campaign, including Tipple. We reverse the district court's ruling that Tipple is a resident of Colorado. The district court improperly focused on Tipple's stated future intent to move to Colorado, rather than considering whether Tipple presently has a primary or principal place of abode in Colorado to which he intends to return, as confirmed by objective indicia of such residency.

         I. Facts and Procedural History

         ¶7 We start by identifying the parties. Intervenor Lamborn for Congress (hereinafter the "Lamborn Campaign") is the authorized federal campaign committee of Doug Lamborn, the incumbent representative for Colorado's Fifth Congressional District ("CD5"). Representative Lamborn is a Republican, seeking reelection for a seventh term. Petitioners Michael Kuhn, Ashlee Springer, Lydia K. Honken, Jeremy Isaac, and Sharon M. Schafer are registered voters from CD5 (collectively referred to as "the protesters"). Respondent Wayne Williams is the Colorado Secretary of State.

         ¶8 In Colorado, major-party candidates can qualify for the primary ballot through the traditional party caucus and assembly process, § 1-4-601, C.R.S. (2017), or by gathering signatures of electors on a petition. § 1-4-801, C.R.S. (2017). The Lamborn Campaign, on behalf of Representative Lamborn, used the petition process to seek access to the primary ballot.

         ¶9 Colorado law requires that a major-party candidate in a partisan election seeking to petition onto the primary ballot must present to the Secretary at least 1000 signatures (or 30% of the votes cast at the preceding primary election, if fewer than 1000), from electors registered in their district, § 1-4-801(2)(b), who are affiliated with the candidate's party, § 1-4-904(2)(a), C.R.S. (2017).

         ¶10 Section 1-4-905(1) outlines several requirements of the people collecting the signatures, known as circulators:

No person shall circulate a petition to nominate a candidate unless the person is a resident of the state, a citizen of the United States, at least eighteen years of age, and, for partisan candidates, registered to vote and affiliated with the political party mentioned in the petition at the time the petition is circulated, as shown in the statewide voter registration system.

         (Emphasis added.) Additionally, for each petition section, a circulator must attach a signed, notarized, and dated affidavit that includes, among other information, "a statement that the affiant was a resident of the state, a citizen of the United States, and at least eighteen years of age at the time the section of the petition was circulated and signed by the listed electors." § 1-4-905(2), C.R.S. (2017) (emphasis added). Finally, the designated election official "shall not accept for filing any section of a petition which does not have attached to it the notarized affidavit required by this section." § 1-4-905(3), C.R.S. (2017).

         ¶11 On March 6, 2018, the Lamborn Campaign submitted 1783 signatures to the Secretary.

         ¶12 On March 29, 2018, the Secretary issued a statement of sufficiency, finding 1269 of the signatures were from eligible and registered CD5 Republican voters. Under section 1-4-909(1), if a petition that appears to be sufficient is not challenged within five days of the statement of sufficiency being issued, it is deemed valid.

         ¶13 After noticing that six of the circulators with different last names all listed the same address in Thornton as their permanent residence, the protesters investigated the veracity of the circulators' representations regarding their ties to Colorado.

         ¶14 On April 3, 2018, the protesters filed a verified petition in Denver District Court under sections 1-1-113(1) and 1-4-909(1), alleging seven of the Lamborn Campaign's circulators did not meet the statutory residency requirements under section 1-4-905.[2]As a result, the protesters claim, it would be a breach or neglect of duty under section 1-4-908(3) for the Secretary to certify Representative Lamborn's name to the primary election ballot.

         ¶15 On April 10, 2018, the district court held a hearing on the protesters' claims. The day before the hearing, the Lamborn Campaign filed a motion to intervene, which the district court granted. At the hearing, the protesters presented evidence regarding the residency of seven of the circulators at the time they circulated petitions for the Lamborn Campaign.

         ¶16 Tipple testified by phone (because he was closing on a house that day in California). Under oath, he shared the following facts:

• In 2008, he and his wife and their daughter moved to Colorado, where his wife had grown up, and they "realized that's where [they] would like to stay." Tipple's in-laws live in Colorado Springs. While living in Colorado, Tipple and his wife had a boy they named "Breck, " after the town of Breckenridge, Colorado.
• In 2008 and 2009, the economic slowdown caused Tipple's employer to reassign him to a project in Texas. His company subsequently moved him around the country for various projects, during which time Tipple made occasional trips to Colorado, at least once for work.
• Around 2016, Tipple was laid off.
• Since at least 2016, Tipple has lived in Ventura, California with his wife and four children. Most of Tipple's personal property is located in the Ventura home.
• Since 2016, Tipple has worked as a house flipper in California. He also drives for Lyft and Uber in California.
• In 2017, Tipple paid taxes as a resident in California. Tipple acknowledged that last year he spent the "overwhelming majority" of his time ...

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