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80202 ______________________________________ CAMPAIGN TO REGULATE MARIJUANA LIKE ALCOHOL, a registered issue committee; and BRIAN VICENTE, a registered Colorado elector; Plaintiffs, v. STATE OF COLORADO; COLORADO GENERAL ASSEMBLY; MIKE MAUER, in his capacity as Director, Colorado Legislative Council, Colorado General Assembly; AMY ZOOK, in her capacity as Deputy Director, Legislative Council Staff, Colorado General Assembly; Defendants. ______________________________________ Attorneys for Plaintiffs: Robert J. Corry, Jr. #32705 Travis B. Simpson #43858 600 Seventeenth Street Suite 2800 South Tower Denver, Colorado 80202 303-634-2244 telephone 720-420-9084 facsimile Robert.Corry@comcast.net www.RobCorry.com
▲ COURT USE ONLY ▲ ________________________ Case No: 12CV______
EXPEDITED RELIEF RESPECTFULLY REQUESTED
VERIFIED COMPLAINT AND APPLICATION FOR INJUNCTIVE AND DECLARATORY RELIEF
Summary of this Complaint 1. This Complaint and Application arises out of Defendants’ violations
of the Colorado Constitution, Article V, § 1(7.5), requiring the non-partisan research staff of the General Assembly’s Legislative Council to provide a “Blue Book” containing a fair and impartial analysis of each initiative; C.R.S. § 1-40124.5(1.7)(a) requiring a two-thirds majority of Legislative Council to remove language from the “Blue Book;” C.R.S. § 1-1-113, providing a remedy for official neglect of duty and wrongful acts in conjunction with elections; C.R.C.P. 57(m), providing for speedy hearings of actions for declaratory judgments and that the court may advance such on the calendar; and C.R.C.P. 65, providing for temporary restraining orders and injunctive relief. 2. Specifically, as members of the Legislative Council have themselves
acknowledged through their words and actions, the elected members of the Legislative Council erroneously and without intent significantly altered the “Blue Book” language prepared by Legislative Council staff. Plaintiffs respectfully request a Temporary Restraining Order and Preliminary Injunction requiring the official “Blue Book” analysis on Amendment 64 to be “fair and impartial” as required by the Colorado Constitution, specifically that Legislative Council hold a re-vote regarding the three sentences wrongly stricken, or in the alternative for an Order that the three sentences in the arguments in favor of the Amendment prepared by Legislative Council staff but omitted by the Legislative Council without knowing two-thirds approval be included in the Blue Book sent to voters.
Parties 3. Plaintiff “Campaign to Regulate Marijuana Like Alcohol”
(hereinafter “Campaign”) is a duly registered issue committee located in and doing business in the City and County of Denver, and is the designated official supporter of Amendment 64. 4. Plaintiff Brian Vicente is a registered elector who resides in the City
and County of Denver, and is an official proponent of Amendment 64. 5. Defendant State of Colorado is a state government with its capitol in
the City and County of Denver. 6. Defendant Colorado General Assembly is the legislative branch of
the state government located in the City and County of Denver. 7. Defendant Mike Mauer, sued in his capacity as Director, Colorado
Legislative Council, is an employee of the Colorado General Assembly charged with the official responsibilities pursuant to Colorado Constitution Article V § 1(7.5) and § 1-40-124.5 to distribute a fair and impartial analysis of initiatives to voters statewide. His business address is located in the City and County of Denver. 8. Defendant Amy Zook, sued in her capacity as Deputy Director,
Colorado Legislative Council Staff, is an employee of the Colorado General Assembly charged with the official responsibilities pursuant to Colorado Constitution Article V § 1(7.5) and § 1-40-124.5 to distribute a fair and impartial
analysis of initiatives to voters statewide. Her business address is located in the City and County of Denver. Jurisdiction and Venue 9. Pursuant to the Colorado Constitution, Art. VI, § 9, this Court has
jurisdiction over this case. C.R.S. § 1-1-113 provides that a challenge to wrongful acts of government election officials may be brought in district court. 10. Pursuant to C.R.C.P. 98, venue is proper in this Court because all
parties reside in the City and County of Denver. Injunctive Relief Standard 11. Notice of Plaintiffs’ intent to seek Injunctive Relief related to these
issues was provided to Legislative Council on the afternoon of September 7, 2012 by Plaintiffs’ Counsel Robert J. Corry, Jr. via telephone message, and by Brian Vicente, Attorney and Official Proponent via electronic mail sent at 4:55 pm on September 7, 2012. 12. Preliminary injunctions preserve and protect legal rights pending the
final determination of a cause. A preliminary injunction serves to prevent irreparable harm prior to a decision on the merits of a case. Combined Communications Corp. v. City and County of Denver, 528 P.2d 249, 251 (1974). 13. At the hearing on the preliminary injunction, the moving party must
satisfy six factors to obtain a preliminary injunction: (1) a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; (3) lack of a plain, speedy, and
adequate remedy at law; (4) no disservice to the public interest; (5) balance of equities in favor of the injunction; and (6) the injunction will preserve and protect legal rights pending the final trial on the merits. Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982). General Allegations 14. On June 13, 2012 the Legislative Council mailed the first draft of the
Blue Book to the Amendment 64 proponents and opponents. The proponents provided Legislative Council comments on that draft of the Blue Book. (See Plaintiffs’ Exhibit 1, Amendment 64, Argument 1 Original vs. Modified, attached hereto and incorporated herein by reference.) The Legislative Council modified the draft after receiving the comments and mailed out another draft. This process was repeated, and the Legislative Council Staff published the final draft of the Blue Book online. 15. Pursuant to C.R.S. § 1-40-124.5(1.7)(a), the Legislative Council met
on September 5, 2012 to finalize the Blue Book for the November 2012 Election, based on the final draft prepared by the Legislative Council Staff after three rounds of public comments, including sections of the Blue Book relating to Amendment 64. The Legislative Council may modify the Legislative Council Staff’s draft of the Blue Book upon the two-thirds affirmative vote of the members of the Legislative Council. Id. 16. At the September 5, 2012 public meeting, after a discussion about
modifying the first paragraph of the Amendment 64 Arguments For section,
Senator Mark Scheffel proposed simplifying the discussion by addressing parts of the paragraph separately. His exact words were, “I’m just trying to divide this so we can tackle this paragraph into two parts.” There was then discussion about the first two sentences in the paragraph. A motion was then made by Senator Scheffel which he began by saying, “So let me clarify Mr. Speaker, I would move that we limit our discussion ending with “state” on page 29, and that it read…” He then proposed striking the words “more logical” and the word “growth” from the first two sentences in the paragraph. The motion passed unanimously. (See Plaintiffs’ Exhibit 2, transcript of portion of Legislative Council meeting, attached hereto and incorporated herein by reference; and Plaintiffs’ Exhibit 3, audio recorded portion, attached hereto and incorporated herein by reference.) 17. Unbeknownst to a significant number of the Members of the
Legislative Council, Scheffel’s motion was interpreted to entirely remove the last three sentences of Argument 1 in addition to modifying the first two sentence of that Argument. After the Legislative Council returned from recess and all the Members learned of the interpretation of Senator Mark Scheffel motion, Representative Mark Ferrandino inquired with the Chair as to how to add the three sentence back in to the Blue Book because he never meant to remove them. Representative Mark Ferrandino then moved to add the three sentences back in to Argument 1. The Chair of the Legislative Council declared that Representative Mark Ferrandino’s motion failed 8 to 5 because it did not receive the necessary twelve votes required to modify the staff’s draft of the Blue Book. The removal of
the three sentences does not reflect the formal actions and true intent of the Legislative Council because it was not properly and knowingly approved by twothirds of the Legislative Council Committee. (See Plaintiff’s Exhibit 4, Email from the Honorable Mark Ferrandino, Colorado State Representative, attached hereto and incorporated herein by reference.) 18. The Campaign has not yet received a proposed final draft of the
Blue Book with the last three sentences of Argument 1 omitted. 19. As soon as the Campaign became aware of this inadvertent but non-
remedied modification of the “Blue Book” language by the Legislative Council, on September 6, 2012 at 4:26 p.m., Brian Vicente, Attorney and Campaign agent, sent an electronic mail to Defendant Amy Zook outlining the Campaign’s concerns. (See Plaintiffs’ Exhibit 5, Emails between Brian Vicente and Amy Zook, attached hereto and incorporated herein by reference.) 20. The next day, on September 7, 2012 at 1:03 p.m., Defendant Zook
responded that the Blue Book would be printed without page 5, lines 29-35, and that the Blue Book needed to be sent to the printer on September 10, 2012 in order to comply with the requirement that it be sent to voters 30 days before the election, which is not until November 6, 2012. (See Plaintiffs’ Exhibit 5, attached hereto and incorporated herein by reference.) On information and belief, it takes less time than that to timely print a Blue Book in advance of an election and the September 10, 2012 deadline is a false pretext designed to infringe on Plaintiffs’ rights.
If the Blue Book is printed erroneously as modified by the
Legislative Council Committee, this supposedly unbiased governmental source will provide Colorado voters with incomplete arguments in favor of Amendment 64, unfairly and with bias skewing the arguments against the Amendment. This could have a significant and material effect on this election, and could sway the election unfairly against Amendment 64 when voters would have otherwise approved of the measure. 22. Plaintiffs will suffer irreparable harm if the incomplete and
inaccurate Blue Book is permitted to go to voters. Voters will suffer irreparable harm because they will receive incomplete and inaccurate information from a putative unbiased source that will materially affect their decision on Amendment 64. 23. The public interest and the Colorado Constitution Article V §1(7.5)
favor initiative election campaigns conducted in a truthful manner, rather than with lies, falsehoods and incomplete information propagated by the very governmental entity charged with providing a fair and impartial analysis to voters.
Claim for Relief (Colorado Constitution Article V § 1(7.5); C.R.S. § 1-1-113; C.R.S. § 1-40124.5(1.7)(a)) 24. herein. 25. The Colorado Constitution Article V § 1(7.5) requires Defendants to Plaintiffs incorporate the foregoing allegations as if fully set forth
provide a “fair and impartial analysis” of Amendment 64, “which may include other information that would assist understanding the purpose and effect of the measure.” 26. The final draft of the Legislative Council analysis improperly omits
key arguments of the proponents of Amendment 64 and thus violates the duty to provide a “fair and impartial analysis” of Amendment 64. This is not “fair” in any sense of the word because it is not balanced, and does not “assist understanding the purpose and effect of the measure” but instead does the opposite; it obscures understanding by providing incomplete information to voters. 27. Colorado Revised Statutes § 1-1-113 requires government officials
charged with a duty or function not to commit breach of duty or other wrongful act. Defendants’ plan to provide voters with incomplete statements regarding arguments in favor of Amendment 64 is a breach of Defendants’ duty and a wrongful act. 28. Colorado Revised Statutes § 1-40-124.5(1.7)(a) requires a two-thirds
votes of Legislative Council to remove language from the Blue Book. There was
no intent on the part of two-thirds of the Legislative Council to remove the last three sentences of the first paragraph of the Amendment 64 Arguments For section. 29. This incomplete statement will cause irreparable harm and damages
in that once voters receive the Legislative Council analyses, they will be deceived and the results of the election will be materially tainted. 30. If voters are advised of the true arguments in favor of Amendment
64, the voters are more likely to approve the measure than if they wrongly are deprived of the true arguments in favor. 31. Applying the required six factors in Rathke v. MacFarlane, 648 P.2d
648, 653-54 (Colo.1982), necessary to obtain a preliminary injunction: (1) a reasonable probability of success on the merits; Plaintiffs have constitutional and statutory authority requiring accurate Blue Books be provided to voters, and directly applicable statutory authority requiring a two-thirds majority for the removal of language from the staff draft, as well as the affidavit of a member of the Legislative Council Committee stating that it was not the Committee’s intention to remove the language in question. 32. Regarding Rathke factor (2) (a danger of real, immediate, and
irreparable injury which may be prevented by injunctive relief); Plaintiffs have and will demonstrate this factor, because an election will occur imminently, voters will be deprived of true and complete official arguments for Amendment 64, the electoral result will be affected and cannot be repaired, and holding a new election
is not possible. 33. Regarding Rathke factor (3) (lack of a plain, speedy, and adequate
remedy at law); Plaintiffs satisfy this factor in that once the incomplete Blue Books are mailed to voters, there will be nothing that anyone, nor even any Court, can do to remedy that situation, and voters will be deprived of the true arguments in favor of the measure. 34. Regarding Rathke factor (4) (no disservice to the public interest);
Plaintiffs demonstrate that the interest of the public is in the integrity of the democratic and elections process, that elections be fair contests, that the content of the Blue Book should be as accurate as possible, and it is in the public interest that initiatives be decided on their merits, with the voting public in possession of true and accurate summaries of arguments for and against particular measures. 35. Regarding Rathke factor (5) (balance of equities in favor of the
injunction); here the balance of equities strongly favors the Plaintiffs, who participated in good faith throughout this process, working with Legislative Council to craft appropriate language reflecting the arguments for Amendment 64, and brought this issue to the attention of Defendants as soon as it was discovered. Defendants, by contrast, can claim no equitable succor, in that they unilaterally excised significant portions of the Argument while misstating and violating the statutory requirement of a two-thirds majority of Legislative Council, and have subverted the democratic process. 36. Regarding Rathke factor (6) (the injunction will preserve and protect
legal rights pending the final trial on the merits), Plaintiffs show this as well in that without the injunction, the damage will be done, and the incomplete Blue Books will be mailed to voters and cannot be recalled. If the injunction is entered, then the legal requirement of two-thirds majority will be preserved. Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982). Prayer for Relief WHEREFORE, plaintiffs pray for the following relief: a) b) Enter judgment in their favor against Defendants; Enter a declaration that the omission of the final three sentences of
Argument 1 in the Blue Book violates the Colorado Constitution Article V § 1(7.5) requiring the ballot analysis to be “fair and impartial,” and violates C.R.S. § 1-40-124.5(1.7)(a), requiring a two-thirds majority of Legislative Council to remove language from the Blue Book. c) Enter a Temporary Restraining Order, and/or Preliminary and
Permanent Injunction, ordering the Defendants, and all those acting in concert with them, to hold a fresh vote of the Legislative Council on the issue of removing the three sentences in question; or in the alternative, to order Defendants to include the final three sentences of the Argument in its entirety in the Blue Book, and prohibiting the Defendants from printing or providing the incomplete statements to voters in the official analyses or through any other means until such re-vote is held; d) Grant them any and all other relief the Court deems proper.
September 9, 2012
Respectfully submitted, /s/Robert J. Corry, Jr. (original signature on file) ___________________________ Robert J. Corry, Jr. Travis B. Simpson
VERIFICATION I, Brian Vicente, hereby declare under oath, subject to penalty of perjury, that the facts set forth in the foregoing Verified Complaint are true to the best of my knowledge. Dated: September 9, 2012 /s/Brian Vicente (original signature on file) _________________________ Brian Vicente
CERTIFICATE OF SERVICE Undersigned certifies that on September 9, 2012, a copy of the foregoing VERIFIED COMPLAINT AND APPLICATION FOR INJUNCTIVE AND DECLARATORY RELIEF and Exhibits thereto, along with an advisement that Plaintiffs intended to seek expedited and injunctive relief from the Denver District Court on the morning of September 10, 2012, were served on the following via electronic mail and LexisNexis File & Serve: John Suthers Attorney General’s Office 1525 Sherman Street, 5th Floor Denver, CO 80203 303-866-5240 telephone 303-866-5691 facsimile Attorney.General@state.co.us Mike Mauer, Director Amy Zook, Deputy Director Colorado Legislative Council Colorado State Capitol Denver, CO 80203 303-866-3521 telephone 303-866-3855 facsimile Mike.Mauer@state.co.us Amy.Zook@state.co.us /s/Robert J. Corry, Jr. (original signature on file) _________________________ Robert J. Corry, Jr.
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