Repeat recall recap: more legal challenges to come

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RBC I Five months since David Morlan filed a petition to recall sitting Rio Blanco County Commissioner Gary Moyer, the saga continues. That saga, now in its second iteration, doesn’t appear as if it will conclude any time soon.

In early April, the petition to recall Commissioner Moyer kicked off for round one, with proponents collecting/submitting more than 800 signatures in roughly 30 days, passing the required threshold of 737. RBC Clerk and Recorder Boots Campbell and staff verified the signatures, and then declared the petition to be sufficient.

Following Campbell’s sign off on the petition’s sufficiency, Moyer and son-in-law Matt Scott exercised their right to protest the validity of the petition on multiple grounds. Protestor’s challenges, including one accusing Campbell of bias, were mostly struck down by the appointed hearing officer, though a few key challenges were granted. The petition was ultimately declared invalid due to “technical errors” in the filing process including failure to provide printer’s proof, and failure to sequentially number petition sections as required by state statute. As a result the petition and all signatures it contained were nullified.

Just a few weeks later, the committee to recall Moyer officially announced they would repeat their efforts, this time hoping to avoid filing mistakes/errors. After nearly six weeks of signature gathering, petitioners again submitted over 800 signatures for review. One week later on July 30, 2021 the petition was declared sufficient.

In predictable fashion, patterns established during the first recall attempt have echoed into the second. Matt Scott again filed a protest, listing multiple grounds challenging the validity of the (now second) petition. Scott’s protest, filed on Aug. 13, 2021 claims that “petitions circulated for the recall of Gary Moyer once again did not comply with Colorado law.” 

It explains that in June of this year, while petitioners were already actively gathering signatures, Colorado legislators passed Senate Bill 21-250. The new law, which went into effect on June 21, changed language in state election codes, including some that relate specifically to recall petitions and signatures.

Before SB 21-250 was signed into law, signatures from electors would only be deemed valid if they did not appear on a “previously filed petition for the recall of the same person.” After the law went into effect, language about eligibility requirements for signatures changed, making it so signatures could only be invalidated if they appeared on a previous petition that had been “deemed sufficient,” as opposed to just “filed.”

The protest further argues that under the old law, many of the signatures on the second petition  would be disqualified, further asserting “the bill contains no retroactive provision and as such is presumed to apply prospectively.”  Because of this, the primary challenge to invalidate the sufficiency of the second recall petition would involve disqualifying approximately 325 signatures that were collected before new law went into effect on June 21, 2021.

Recall proponents’ directly countered protestor’s interpretation of election codes in their response. They first note that despite signature collection occurring prior to June 21, the petition itself was not submitted for review until June 23, after SB 21-250 went into effect, therefore, the new election code language should be applied, and 325 signatures contested by protestors should not be disqualified.

The response also argued that since the original recall was declared invalid, all signatures it contained, its filing, and its overall efficiency were nullified. This means, according to their legal argument, that even if SB 21-250 was never signed into law, the 325 signatures still would not have been disqualified. 

In a very short hearing (less than five minutes) last week, recall participants on all sides met at the RBC courthouse for the second protest hearing. Instead of using testimony, both sides submitted legal arguments to Boots Campbell, who acted as the hearing officer. Some of the primary aspects of these arguments are listed in the preceding paragraphs, but both sides had more to argue. For example, protestors also brought that the new language mandated by SB 21-250 add new requirements for recall processes, noting that Campbell did not follow all the requirements of the new bill.

Prior to the short hearing protestors filed a motion asking Campbell to recuse herself from hearing the case based on accusations of bias in the process. Campbell ruled against the motion, noting that she attempted to find a replacement but was unable to do so. She also refuted claims of bias, which protestors claimed amounted to a violation of Moyer’s due process under the constitution.

Following the hearing, Campbell rejected the petition protest filed by Matt Scott, stating in her final decision that “Since the previous petition for the recall of Commissioner Moyer after the protest hearing held on May 9, 2021 was declared invalid by the Order entered by hearing officer Tim Graves, any signature appearing on the second recall petition should not be disqualified.” Campbell’s decision also called the distinction between people who signed the petition before June 21, and after as being “without merit.”  

Despite Campbell’s ruling, the process is not quite over. As noted by protestors’ counsel during last week’s hearing, the legal challenge will continue, this time with an appeal of the ruling, likely  on the basis of Capmbell not being impartial in the matter.

For more details on the legal arguments of both sides, you can view original documents referenced in this story at https://bit.ly/3DPxY2i

Details of this story have been reported in many previous editions of the HT. You can read more context/history at theheraldtimes.com/?s=moyer+recall.


By LUCAS TURNER | lucas@ht1885.com

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