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Myers, clerks association present briefs in Gessler case

Posted: Thursday, Apr 28th, 2011

SAGUACHE — In her trial brief released last week opposing the injunction filed by Sec. of State Scott Gessler, County Clerk Melinda Myers focuses on the merits of the case, insisting that the injunction cannot be granted until the merits are examined.

“The Clerk contends that issuance of a preliminary injunction which grants the Secretary’s request to take control of the ballots and the ability to review the same is not appropriate as that it would change the status quo on a permanent basis. The Clerk contends that any injunctive relief should not be granted until a final determination on the merits of the case is rendered.”

Saguache County Attorney Benjamin Gibbons is the defense counsel in the case.

Myers bases her objection to the injunction on the fact that “Colorado Courts have held that the power to issue an injunction should be exercised with great discretion. See McLean v. Farmers’ Highland Canal & Reservoir Co., 98 P. 16 (1908). Myers notes that the Secretary claims he does not have to show irreparable harm because an actual statute has been violated,” (since it is generally assumed that statutes are passed to protect the public good).

She states that, “the Secretary has failed to allege or state what specific violation of the election code has occurred such as to justify the Court permitting the Secretary to avoid proving irreparable harm prior to the issuance of an injunction. The Secretary, cit[es] Lloyd, supra, for the proposition that in general he does not have to prove the element of irreparable injury or other criteria other than a violation of the statute.

Gessler is seeking the injunction under CRS §1-1-107(2)(d), “’which states that among other powers, the Secretary has the authority ‘to enforce the provisions of this code by injunctive action brought by the attorney general in the district court for the judicial district in which any violation occurs.’” Some have observed that this statute refers not to an actual violation itself, but Sec. Gessler’s authority to determine that actual violations did occur, as already enumerated in the Dec. 10 Secretary of State’s report.

Myers still denies that Gessler’s right to inspect her procedures and practices does not include the right to inspect the actual ballots cast. The brief defines procedures and practices outside any reference to the object of the clerk’s actual activities. Because the law itself does not define procedures and practices, legal practice is to take such definitions from Webster’s dictionary,

Critics of Myers’ role as clerk in the election have consistently pointed out that these procedures and practices were found wanting in the in the Dec. 10, 2010 SOS report and have noted that Gessler, at his March 15 town hall meeting in Saguache, announced that the State Attorney General’s investigation, not his office, will decide if fraud existed.

The brief concludes with the objection that, “The Clerk contends that Colorado has provided a specific statutory procedure to address concerns related to alleged election fraud. The “public interest” in this case could be enforced by an eligible elector of Saguache County filing an election contest as provided for under the Colorado Elections Code §1-11-201, C.R.S., et. seq. The Secretary alleges that the “public interest” to be served relates to concerns over the vote count.

Clerk’s association amicus brief

The Colorado County Clerk’s Association (CCCA) supported Myers’ brief with an amicus brief, written by Denver attorney Mark Grueskin. The brief says that CCCA holds that it “…has significant concerns with the Secretary’s assertion of authority to issue the order in question or move to compel obedience with it by means of this litigation. The General Assembly simply has not granted him this authority.”

The first hearing of the arguments in the case is set for May 31. Gessler has not to date introduced the fraud issue. But should the grand jury return an indictment against Myers prior to that date, it is possible that the dynamics of his injunction request could change.

For the complete article see the 04-28-2011 issue.

Click here to purchase an electronic version of the 04-28-2011 paper.

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