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EXHIBIT A

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SUPREME COURT STATE OF COLORADO 2 East 14th Avenue Denver, CO 80203 Application for review pursuant to § 1-1-113(3), C.R.S., Denver District Court Case No. 2013CV34991

▲ COURT USE ONLY ▲ Case Number: 2013SA306

SCOTT GESSLER, in his official capacity as Colorado Secretary of State, Petitioner, vs. NICOLE HANLEN, LYNN D. USSERY, JAMES H. JOY, JUNE MARIE MCNEES, KELLY L. MCNEES, KAREN MARQUEZ, MEAGAN GALBADON, and DAVID J. RODENBAUGH, Respondents. Thomas M. Rogers III (Atty. Reg. #28809) Eric V. Hall (Atty. Reg. #32028) Brent R. Owen (Atty. Reg. #45068) Lewis Roca Rothgerber LLP 1200 Seventeenth Street, Suite 3000 Denver, CO 80202 Telephone: 303.623.9000 Fax: 303.623.9222 TRogers@LRRLaw.com EHall@LRRLaw.com BOwen@LRRLaw.com BRIEF OF AMICUS DOUGLAS COUNTY EDUCATION ALLIANCE

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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with C.A.R. 28(g). Choose one:  It contains 2,613 words.  It does not exceed 30 pages. The brief complies with C.A.R. 28(k). For the party raising the issue: It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record, not to an entire document, where the issue was raised and ruled on. For the party responding to the issue: It contains, under a separate heading, a statement of whether such party agrees with the opponent’s statements concerning the standard of review and preservation for appeal, and if not, why not.  I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32. LEWIS ROCA ROTHGERBER LLP s/ Brent R. Owen Thomas M. Rogers III (Atty. Reg. #28809) Eric V. Hall (Atty. Reg. #32028) Brent R. Owen (Atty. Reg. #45068) Attorneys for Amicus

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TABLE OF CONTENTS I. II. III. ISSUE ADDRESSED BY AMICUS .............................................................. 1 STATEMENT OF THE CASE ....................................................................... 1 ARGUMENT ................................................................................................... 4 A. The District Court Failed to Afford the Secretary’s Interpretation Proper Deference ................................................................................... 6 1. 2. B. Colorado Law Requires Deference ............................................. 6 The Secretary Properly Exercised His Authority and His Rule Is Entitled to Deference ...................................................... 9

Ms. Speers’ Misuse of the Election Process Provides the Quintessential Example of Why the District Court Should Have Deferred to the Secretary’s Rule ......................................................... 11

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TABLE OF AUTHORITIES Page CASES Bd. of Cnty. Comm’rs v. Nineteenth Judicial Dist., 895 P.2d 545 (Colo. 1995)...............................................................................7 Coffman v. Colo. Common Cause, 102 P.3d 999 (Colo. 2004)...............................................................................6 Colo. Office of Consumer Counsel v. Pub. Utils. Comm’n, 42 P.3d 23 (Colo. 2002)...................................................................................9 Colo. Real Estate Comm’n v. Hanegan, 947 P.2d 933 (Colo. 1997)...............................................................................8 Colorado for Family Values v. Meyer, 936 P.2d 631 (Colo. App. 1997)......................................................................8 Erickson v. Blair, 670 P.2 749 (Colo. 1983).................................................................................7 Hawes v. Colo. Div. of Ins., 65 P.3d 1008 (Colo. 2003)...............................................................................6 In re Hickenlooper, 2013 CO 62, 612 P.3d 153 (Colo. 2013) .................................................. 7, 10 Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027 (Colo. 2006).............................................................................9 Mauff v. People, 52 Colo. 562, 123 P. 101 (1912) .....................................................................8 Patterson Recall Comm., Inc. v. Patterson, 209 P.3d 1210 (Colo. App. 2009)..................................................................10 Regents of the Univ. of Colo. v. Meyer, 899 P.2d 316 (Colo. App. 1997)......................................................................6 Wine & Spirits Wholesalers of Colo. v. Colo. Dep’t of Revenue, 919 P.2d 894 (Colo. App. 1996)......................................................................7

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STATUTES § 1-1-103(1), C.R.S. (2013) .......................................................................................9 § 1-1-107(1)(a), (e), C.R.S. (2013) ............................................................................5 § 1-1-107(2)(a), C.R.S. (2013)...................................................................................5 § 1-4-501(1), C.R.S. (2013) .......................................................................................2 § 1-5-412, C.R.S. (2013) ............................................................................................9 § 24-4-102(6), C.R.S. (2013) .....................................................................................8 § 24-4-106(7), C.R.S (2013) ......................................................................................5 OTHER AUTHORITIES COLO. CONST. ART. 6, § 3 .........................................................................................10 COLO. CONST. ART. 7, § 11 .....................................................................................4, 7

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I.

ISSUE ADDRESSED BY AMICUS

Though amicus agrees with the Secretary of State that the district court erred by assuming jurisdiction over this dispute, this brief only addresses the second issue certified in the Secretary’s Application: Whether the district court erred by failing to afford the Secretary—the official in charge of administering elections— proper deference when it struck down Election Rule 10.7.5. Amicus, the Douglas County Education Alliance (“DCEA”), helps address the obvious divide between citizens, parents, and their elected Boards of Education and other leadership organizations by bringing common sense solutions to the discussion of education reform. DCEA is a nonprofit corporation designed as a resource for school administrators and school boards to learn new and innovative ways to enhance the educational experience for students. Supporting the development of like-minded school boards and board members serves to promote reform and accountability. In this case, DCEA’s brief will help further DCEA’s mission by ensuring the fair administration of election laws to local school board races. II. STATEMENT OF THE CASE

Amicus agrees with the statement of the case contained in the Secretary’s Application. As pertinent to this brief, Amy Speers was certified to run on the
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ballot in the non-partisan race for school board director in District 4 of the Adams 12 Five Star School District. Days before the election, the school district learned that Ms. Speers was ineligible. [Secretary’s Br. In Opp’n, Ex. A, Ex. B.] It is undisputed that Ms. Speers was notified of her ineligibility prior to Election Day; yet she did not withdraw her candidacy. [Id.] Faced with a situation unforeseen by the legislature, and not addressed in the Election Code—the refusal of a candidate who knows she is ineligible to withdraw her candidacy—the Secretary exercised his statutory authority and promulgated a reasonable emergency rule, Election Rule 10.7.5. The Election Rule offered a commonsense solution to the problem necessitated by Ms. Speers’ decision: If the Designated Election Official [here, Frances E. Mullins] determines, after ballots are printed, that an individual whose name appears on the ballot is not qualified for office, the votes cast for that individual are invalid and must not be counted. Election Rule 10.7.5. The Secretary’s rule prevented Ms. Speers from manipulating the election by refusing to withdraw. Colorado law is clear: “No person is eligible to be a designee or candidate for office unless that person fully meets the qualifications of that office as stated in the constitution and statutes of this state on or before the date the term of that office begins.” § 1-4-501(1), C.R.S. (2013) (emphasis
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added). Upon learning that she was ineligible, Ms. Speers knew that she could not “swear or affirm under oath that . . . she will fully meet the qualifications of the office if elected.” Id. Therefore, she should have withdrawn to properly comply with Colorado law. The Secretary’s Election Rule would have reached that legally permissible result by filling in this gap in the election statutes. Instead, a district court sitting in Denver determined: [T]he action of the Secretary of State—in propounding that temporary rule—can be easily defined as arbitrary and capricious in [excess] of his statutory jurisdiction and authority and abuse of discretion contrary to law within the scope of [§ 24-4-106(7), C.R.S.] acknowledging that a rule may not modify or contravene an existing statute. The Secretary’s thesis is that the nonresident and therefore ineligible candidate could never have been duly elected. This [position] is directly contrary to the clear and controlling statutory language, which again requires no interpretation with regard to school board elections, [§ 22-31-129(1), C.R.S.] enumerates the circumstances creating a vacancy subject to the vacancy appointment processes established in [§ 22-31-129(2), C.R.S.] as including specifically situations in which a duly elected candidate is a nonresident of the director of district [§ 2231-129(1)(d), C.R.S.]. [Tr. 52, 1:17.] Without acknowledging the gap in the statute, and providing no deference to the Secretary, the court also determined that “[d]uly elected simply means . . . that the election was conducted in the proper form and the proper manner.” [Tr. 53, 1:3.] The district court, moreover, fundamentally misconceived
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the deference owed to the Secretary when it suggested that the statute “requires absolutely no interpretation.” [Tr. 51, 25.] Amicus respectfully submits that the Court should reverse the district court’s erroneous conclusions. The district court failed to defer to the Secretary’s reasonable emergency rule under the circumstances, as courts are required by law to do. III. ARGUMENT

The Secretary promulgated an emergency Election Rule to fill a gap in Colorado’s election statutes. The district court should have deferred to the Secretary’s Election Rule; it did not. While the district court quoted the correct legal standard in its determination that the Secretary acted “arbitrarily and capriciously,” its failure to defer at all to the Secretary’s interpretation—and its willingness to apply an inapplicable vacancy statute—reveals that the district court did not afford the Secretary any deference. The General Assembly, pursuant to its authority under the Colorado Constitution, has tasked the Secretary with securing “the purity of elections, and [guarding] against abuses of the elective franchise.” COLO. CONST. ART. 7, § 11. To that end, the Secretary—Colorado’s “chief state election official”—exercises primary, plenary authority to supervise Colorado’s elections. § 1-1-107(1)(a), (e),
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C.R.S. (2013). A linchpin of the Secretary’s authority is his ability to promulgate emergency rules to address the numerous circumstances not anticipated by the set of election statutes. See, e.g., § 1-1-107(2)(a), C.R.S. (2013). The district court’s decision in this instance contravenes that authority. Rather than properly deferring to the Secretary’s interpretation of the pertinent statutes, the district court held that the Secretary’s Election Rule—which directed the clerk to disregard the votes for a candidate who refused to withdraw despite knowing she was ineligible—was “arbitrary and capricious” under the Administrative Procedure Act, § 24-4-106(7), C.R.S (2013). The district court’s ruling vacating the Secretary’s Election Rule undermines the structure of the state electoral process. This case offers this Court an opportunity to reaffirm the Secretary’s primary role in administering elections, and to clarify the deference owed to the Secretary when he promulgates a reasonable rule to fill a gap in election statutes and to avoid an absurd result. The Secretary argues that he correctly interpreted Colorado’s election laws when he promulgated Election Rule 10.7.5. Because the Secretary advances a reasonable interpretation of Colorado’s election statutes, the district court erred by second-guessing the Secretary’s judgment. In other words, the district court improperly determined that the Secretary’s Election Rule was not the best reading
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of the relevant statutes and, based on that judgment, determined the Secretary acted arbitrarily and capriciously. The district court’s error springs from its failure to appreciate the judiciary’s role in the election process. A. The District Court Failed to Afford the Secretary’s Interpretation Proper Deference Both legal and practical considerations justify deferring to the Secretary’s rulemaking authority. 1. Colorado Law Requires Deference

In the election law context courts “must give particular deference to the reasonable interpretations of the [Secretary because the Secretary is] authorized to administer and enforce [Colorado’s election laws.]” Coffman v. Colo. Common Cause, 102 P.3d 999, 1005 (Colo. 2004). Accordingly, on review, the Secretary’s decision should be sustained unless it is arbitrary or capricious, unsupported by the evidence, or contrary to the law. Regents of the Univ. of Colo. v. Meyer, 899 P.2d 316, 317 (Colo. App. 1997). The deference afforded the Secretary is not some hollow legal rhetoric; the rule represents the Court’s oft-repeated prudential determination that: “[T]he General Assembly cannot delegate explicitly for every contingency.” Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1016 (Colo. 2003). Accordingly, “[a] reviewing court should display sensitivity to the range and nature of determinations that [the
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Secretary] must make.” Wine & Spirits Wholesalers of Colo. v. Colo. Dep’t of Revenue, 919 P.2d 894, 899 (Colo. App. 1996). The rationale justifying deference to the Secretary is particularly appropriate in the election law context because elections implicate the very core of the democratic process: “[I]ndeed, the right to vote is considered ‘fundamental’ because it is ultimately ‘preservative of all rights.’” In re Hickenlooper, 2013 CO 62, ¶ 13 (Colo. 2013) (citation omitted). And to the extent gaps in the election law threaten to disrupt this right, the Secretary should be tasked with resolving those gaps lest “unyielding adherence to statutory scripture . . . nullif[ies] that right.” Erickson v. Blair, 670 P.2d 749, 755 (Colo. 1983) (citation and internal quotation marks omitted); see Bd. of Cnty. Comm’rs v. Nineteenth Judicial Dist., 895 P.2d 545, 548 (Colo. 1995) (“While the separation of powers doctrine prevents another branch of government from encroaching upon the judiciary, the same principle bars a court from intruding into the affairs of the legislative or executive branches.”). The Colorado Constitution anticipates a less muscular role for the judiciary than the district court adopted in this instance. See COLO. CONST. ART. 7, § 11. This Court has previously recognized the primacy of the State (in this instance, the Secretary) in administering elections: “The state at large is interested in the purity
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of every election, municipal or otherwise, and it must be apparent that it is only through the power of the sovereign state itself that purity in elections can be obtained.” Mauff v. People, 123 P. 101, 103 (1912). Consistent with this analysis, the General Assembly expressly provided the Secretary with the authority to adopt an “emergency rule” without complying with the State Administrative Procedure Act when the Secretary “finds that immediate adoption of the rule is imperatively necessary to comply with a state or federal law or federal regulation . . . and compliance with [the State Administrative Procedure Act] would be contrary to the public interest.” § 24-4-103(6)(a), C.R.S. (2013). As further proof that the General Assembly intended deference to the Secretary’s rule, the emergency rules are expressly temporary and are therefore limited in their application. The rules are only in force for, at most, 120 days. Id. In short, the General Assembly plainly intended to vest the Secretary with the authority to promulgate emergency rules, and the district court ignored this legal principle in its decision striking down Election Rule 10.7.5. 1 See id.; accord [Tr. 51, 25.] (opining
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To be clear, these practical considerations are not sufficient to relegate the judiciary to the role of passive observer. Rather, as the law already provides, the judiciary should defer to the Secretary where, as here, the Secretary reasonably interprets the statutes it is tasked with effectuating. Thus, consistent with basic administrative law principles a district court should only overturn the Secretary’s decision where the Secretary’s legal analysis is “legally impermissible.” Colo. Real Estate Comm’n v. Hanegan, 947 P.2d 933, 935 (Colo. 1997). Not, as 2004541533_1 8

that the statutory gap at issue “is clear on its face and requires absolutely no interpretation”). 2. The Secretary Properly Exercised His Authority and His Rule Is Entitled to Deference

The district court ignored this authority and, faced with a gap in the statute, substituted its preferred gap-solving measure for the Secretary’s. Given Colorado’s rule of statutory construction, which considers the General Assembly’s intent paramount, Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006), the district court’s holding, [Tr. 51:9], that the Secretary’s Rule “circumvents” the statute completely ignores the Secretary’s role in promulgating emergency rules to fill in gaps. Colo. Office of Consumer Counsel v. Pub. Utils. Comm’n, 42 P.3d 23, 27 (Colo. 2002) (“[T]he court should avoid interpreting a statute in a way that defeats the obvious intent of the legislature.”). In short, Election Rule 10.7.5 filled in a gap with a commonsense understanding of the election code: it prohibited a candidate who knew she was ineligible from receiving votes for office. See § 1-5-412, C.R.S. (2013) (evidencing the happened in this case, where the district court might have adopted a different rule if faced with the same problem. See Colorado for Family Values v. Meyer, 936 P.2d 631, 632-33 (Colo. App. 1997) (“[A]lthough the appropriate construction of a statute is a question of law, and appellate courts engage in de novo review, the Secretary of State’s construction of the [Campaign Reform] Act is entitled to great deference because her office is charged with enforcement of the law.”).
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legislature’s intent that votes for an ineligible candidate “shall not be counted”); see also § 1-1-103(1), C.R.S. (2013) (confirming that the Secretary should “liberally construe[]” Colorado’s election laws to effectuate their purpose). Because the Secretary acted within his authority in promulgating this rule, he should have been afforded deference. Practical considerations also favor deferring to the Secretary. Disputes on election issues occur, and must be resolved, on a timeline that is very difficult for the judiciary to meet. Unlike other disputes, “there are no do-overs” for elections. In re Hickenlooper, ¶ 15. Thus, while there are limited instances where the judiciary should not defer to the Secretary’s legal interpretation in the election context, e.g., COLO. CONST. ART. 6, § 3, close calls in the practical administration of an election is not one of them. See, e.g., Patterson Recall Comm., Inc. v. Patterson, 209 P.3d 1210, 1219 (Colo. App. 2009) (upholding an administrative law judge’s decision under rules promulgated by the Secretary of State). The district court in this case brushed aside the importance of the Secretary’s role addressing the statutory gaps through his rulemaking authority: “Whether or not Ms. Speers is qualified to hold office and whether or not she was ever qualified to be a candidate for that office . . . the Secretary of State has no basis of authority for directing that votes for Ms. Speers . . . are simply invalid and not to counted.”
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[Tr. 51:1-6.] The district court’s decision ignores a critical point—Ms. Speers’ conduct suggests bad faith. Ms. Speers should have either never registered as a candidate, or, upon realizing her mistake, withdrawn. Instead, Ms. Speers did neither and precipitated a crisis that the district court—parsing certain provisions in election statutes which were not triggered in these circumstances—ignored in its ruling. As a result, Ms. Speers is attempting to change the results of an election in which she should have never participated. B. Ms. Speers’ Misuse of the Election Process Provides the Quintessential Example of Why the District Court Should Have Deferred to the Secretary’s Rule The practical and legal concerns discussed above—including the importance of allowing the Secretary to administer elections—played out in this instance. The limited record reveals that Ms. Speers was ineligible to run for office. [Secretary’s Br. In Opp’n, Ex. A]. Consistent with Colorado law, she was asked to withdraw. [Id.] Recognizing an ability to nonetheless influence an election in which she could no longer participate, Ms. Speers refused the request and remained on the ballot illegally. [Id.] Ms. Speers’ action necessitated a crisis because Colorado election law did not directly anticipate Ms. Speers’ illegal conduct. The Secretary stepped in to fill the gap in the election statutes, and offered a reasonable solution to a predicament brought about by Ms. Speers’ conduct. The
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Secretary’s statutorily-based solution effectively balanced the integrity of the electoral process with the need to thwart Ms. Speers’ gamesmanship. Thereafter, parties who presumably benefit from Ms. Speers’ illegal candidacy asked a district court judge in a different county to second-guess the Secretary’s decision. Instead of properly deferring, the district court supplanted its judgment concerning the election process for the Secretary’s and nullified the election. This situation embodies the need for deference. While the outcome will likely never be perfect, the Secretary is best situated and legally required to address election disputes utilizing his rulemaking authority. Respectfully submitted this 16th day of December, 2013. LEWIS ROCA ROTHGERBER LLP

s/ Brent R. Owen Thomas M. Rogers III, (Atty. Reg. #28809) Eric V. Hall, (Atty. Reg. #32028) Brent R. Owen, (Atty. Reg. #45068) Attorneys for Amicus Curiae

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