Kelley & Company, Mario Nicolais, Jennifer Kerns, Jeff Hays, June 20, 2013

Station:     KNUS, 710 AM

Show:        Kelley & Company

Guests:     Nicolais, Kerns, Hays 


Date:         June 20, 2013      

Topics:      Senate President John Morse, Recall Election, Secretary of State Scott Gessler, Bernie Buscher, Jaxine Bubis, Bernie Herpin, Governor Hickenlooper, Petition Certification, Signature Verification, Grassroots, Basic Freedoms Defense Fund, Colorado Revised Statute, Title 1, Substantial compliance

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GUEST HOST JIMMY SENGENBERGER:  Jennifer, can you let us know […] what’s the genesis of the recall effort and how hard were the volunteers working at it, and why did they chose a recall instead of letting Morse fill out the term into 2014?

SPOKESWOMAN FOR THE RECALL MORSE CAMPAIGN, JENNIFER KERNS:  Well, good morning, Jimmy.  Thank you so much for having us on.  Well, first and foremost, make no mistake, this legal protest was simply an attempt at certification day election stunt and an attempt to steal the thunder of this Recall Morse campaign on the day it was certified by the Secretary of State’s office.  Now, as you mentioned, Jimmy, there has been a groundswell of support leading up to this certification.  This all started back in the Colorado State Legislature back in February when Senator Morse began pushing the most stringent gun control laws in the nation.  A group of folks got together – six or seven folks from the Basic Freedoms Defense Fund.  They decided that this was wrong and they wanted to make this right.  So, they began a recall effort against John Morse.  The genesis of this is that that group of seven people grew to a small army of about 300 volunteers who then hit the streets in Colorado Springs in an effort to gather the more than 7,200 signatures that were required for this recall election to hit the ballot.  Now, what surprised most people, both in Colorado Springs and around the state of Colorado, is that this small army of volunteers of concerned citizens actually raised more than twice as many signatures [that] were needed.  A few weeks ago, to the Secretary of State’s office, they turned in more than 16,000 signatures to recall the Senate President John Morse.  And then just this past Tuesday, the Secretary of State Scott Gessler certified about 10,100 of those signatures for this to go on the ballot.  And sure enough, Jimmy, within two or three or four minutes of the Secretary of State’s certification we received notice that Morse’s side, of course, is choosing to challenge this with frankly quite bogus and frivolous legal challenges. 

SENGENBERGER:  Right, and to get an eye into sort of some of the legal issues, let’s bring you in, Mario.  Welcome to Kelley & Company.  It’s good to have you here.  If you can please give us kind of your understanding of the legal issues that are involved, especially as an elections attorney, and where things are looking from your perspective. 

ELECTION LAW ATTORNEY, MARIO NICOLAIS:  Sure, Jimmy, and thank you for having me on.  So, I think what’s – what we really need to focus here on is, first, Mark Grueskin is the top gun for Democrats when they file lawsuits in this state.  So, they’re clearly pulling out all of the stops to stop this recall.  And what he’s – what the—the issue that he’s bringing up is whether there was enough in these petition recalls and on the petitions, — whether they were flawed to start with.  One of the things that people talk a lot about in election law is “substantial compliance”, and in this case the recall petitions are governed by both  the Constitution and also the Colorado Revised Statutes, Title 1.  And we need to be clear, the Title 1, when it’s discussed, it actually has provisions in it that say it should be broadly construed, or that it should be liberally construed.  And the reason for that is so that we don’t have any of these ‘gotcha’ politics.  And, “Oh, look!  Hey, look, we know the will of the people is to do one thing, but we’re going to stop that and subvert it because of a technicality.”  So, in order to do that, what we have is called substantial compliance, and you’ll hear a lot about that in this recall challenge.  On his rule that governed – this is kind of legal mumbo jumbo, so let me know if I need to clarify it a little bit, but by a case called [inaudible], the Supreme Court decided years ago.  And with that, the substantial compliance comes down to a three part test:  1) the extent of the non-compliance, 2) the purpose of the applicable provision and whether that purpose was substantially achieved despite the alleged compliance, and 3) whether there was a good faith effort to comply, or whether or not compliance was based on a conscious decision to mislead.  And when you look at Grueskin’s comments, you can see that he is already conceding that he has to actually go through this test, and that that this is going to be what he is arguing.  You know, his comments and his public comments talk about how, “Well, they’re trying to mislead people about an election.”  And I just think that is simply false.  The fact is that it was – it was – the extent of the non-compliance is debatable, I think.  I think if you look and say, “Well, we need to have a demand on there.”  Well, I think it was pretty clear that there was a demand that John Morse be removed and that someone else be placed in his seat.  And I think that’s absolutely clear, when you’re looking at these petitions.  The second factor, the purpose of the provision.  Well, Grueskin is out there saying, “Well, the purpose is to make sure that people know that we have to have an election, and elect someone new, and it’s going to have these consequences, that we have to pay for a new election.”  Well, I don’t think that any of the petition drive was ever at all not saying that they have to do that.  I think it was pretty clear that everyone understood that that’s exactly what the process was.  And in fact, they’re in papers talking about it.  And, you know – on your show, I think it’s, you know – I think it’s pretty clear.  And finally, whether there was a good faith effort to comply.  And I think that that’s clear, that there’s a good faith effort to comply, here.

SENGENBERGER:  And, it’s interesting, Colorado Peak Politics is reporting on the particular form that was used and how that seems to be legitimate.  And also, a form dating back to when Democrat Bernie Buscher was Secretary of State.  So, if that’s true, that certainly adds to the —  in my view, to that good faith effort.  But I want to bring in Jeff Hays.  He is the Chairman of the El Paso County GOP, and Senator Morse is in El Paso County.  That’s his area.  And so, Jeff, welcome to Kelley & Company. It’s good to have you here this morning.  Talk to us about the sort of the El Paso GOP Party’s position on this recall and where it’s headed, and where your support has been leading up to the signing of the petitions by these folks. 

EL PASO COUNTY GOP CHAIRMAN, JEFF HAYS:  Well, thank you, Jimmy.  I’m honored to be on, especially with the guest quality that you have today.  You know, we’ve been aware of this recall effort from the very beginning and we have always been detached from it, because it has been a bi-partis – or actually, a non-partisan, citizen driven initiative.  We did not want to corral that at all, that we overall were just paying attention to it.  And I just want to applaud the stalwart citizens of El Paso County of Senate District 11 for taking this initiative, because it has not been easy.  It has been a very difficult task.  And they’ve been well run, well-organized, and we had a lot of leaders show up from the community that have really gotten some great things done.  So, I just want to give as much honor, and respect, and applause to that group.  What we’re doing right now is marshalling our efforts to ensure that the recall does take place. And that recall effort turning in the signatures is step one of a multi-step process.  We have a couple of Republican candidates that have stepped forward and they are really good people:   Bernie Herpin and Jaxine Bubis.  And we as a party are developing a process, should both those candidates, you know, stay in the fight and run viable campaign, and get the required the thousand Republican signatures, which is not going to be an easy task, by the way.  We want to have a fair and transparent and collaborative process with the citizens and the elected Republican representatives, you know, through our Central Committee, to determine who our Republican candidate is going to be in the recall election, should that come about.  So, we’re doing trying to do what the Party is supposed to do in order to have a viable candidate, in order to push this thing through to what we feel like ought to be a logical conclusion, which is the recall of John Morse, and the placement of a good Republican in his place that will represent the people of that district.  You know, we were very supportive of the Sheriffs lawsuit.  We collaborated with the Independence Institute and Pikes Peak Firearms Coalition to do a Second Amendment rally last month.  And I was very adamant telling people, if you like Republicans they put in these positions, we don’t have to do this.  We don’t have to have these rallies if you have Republicans.  So, again, we’re just trying to get as much credit and as much applause to this initiative.  We, uh, you know, we’re not trying to co-opt anything.  We’re trying to do our part as best we can.  [I]hope that answers your question. 

SENGENBERGER:  Right.  No, Absolutely.  And it does also help send a message when you have grassroots people that have been involved.  And it’s not been led by the Party in El Paso County.  So, I think that’s something that lends credibility to the case.  I want to take a break, and then when we come back we’ll do a quick hits of our three guests […].  

[commercial break]

SENGENBERGER:  […] Remember, John Morse is the one of the key leaders of the gun control efforts backed by Mayor Bloomberg.  Unfortunately, we only have 45 seconds for each of our guests, so please keep your answers to these questions brief so that we can get through each of you.  And I want to start with Jennifer Kerns, the spokeswoman for Recall Morse, and ask you, why now?  Why do the recall now as opposed to wait until Morse’s term ends in 2014 to elect somebody else?

KERNS:  Well, you know, Jimmy, according to the Colorado Constitution, the right of the people to recall their public officials is a fundamental right.   This fundamental right recalls – er, requires that recalls are to be liberally construed in  favor of the citizens’ ability to exercise it.  And that will be our response to these legal challenges.  Now, if you’re looking at the Morse side of things, and his legal challenge, he’s claiming that somehow the language in the petition was insufficient.  But if you look, both the committee and Senator Morse were notified regarding the approval of [inaudible] petition that was certified on Tuesday – the petition form, over seventy days ago.  The time for Senator Morse to protest issues with the form of the petition was during that time period, not after the citizens and other groups exercised their constitutional rights for the recall.

SENGENBERGER:  [interrupting]  Sorry, Jennifer.  Got to cut in to let Mario give his chan—chime in.  Election lawyer Mario Nicolais, where do you think this is headed?  Do you think the opposition has a leg to stand on? 

NICOLAIS:  I think that what you’ll see is you’ll see arguments from both sides. But, what the Court, I think, really should do, is say, “Look, the legal system is not designed to subvert the will of the people, but to actually support the will of the people.  And here, you have at least 10,000 valid signatures, 10,000 people in that district who want to see John Morse recalled and someone else put  in that seat.  And so, I think that’s really what this case will come down to, and the court should go ahead and let that pass. 

SENGENBERGER:  [interrupting]  And Jeff Hays, El Paso County GOP Chair, where are the people of El Paso County on these gun issues and on the assault led by guys like John Morse, real quick

HAYS:  The people of El Paso County believe the government should defend their life, liberty, and property.  And that’s why we’re fighting for this, because they deserve a representative that believes in that, as well. 

SENGENBERGER:  I wish we had more time.  [Reintroduces the guests] thank you, all!  I wish we had more time, again. But, great panel.  We’ll be watching this very closely and following it and keep you guys in mind to talk about this further, I’m sure, down the road.