DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street
Denver, CO 80202

DONNA L. WINDHOLZ, an individual,

JARED POLIS, in his capacity as Governor of Colorado,

Plaintiff is Pro Se: Case Number:

VERIFIED COMPLAINT FOR EXPEDITED DECLARATORY RELIEF

Plaintiff Donna L. Windholz files this Verified Complaint for Declaratory Relief, and alleges:

JURISDICTION & VENUE

1. This Court has jurisdiction over the subject matter of this action pursuant to Colo. Const.

art. V, § 1 and C.R.S. §§ 13-51-101, -106.

2. Venue is proper in this Court pursuant to Colo. R. Civ. P. 98(b)(2).

PARTIES

3. Plaintiff Donna L. Windholz is an individual and a registered elector residing in

Larimer County.

4. Defendant Jared Polis is the Governor of Colorado (Governor). Pertinent here, the

Governor issued Executive Order D 2020 065, entitled “Ordering the Temporary Suspension of

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Certain Regulatory Statutes Concerning Signature Collection for Ballot Issues and Authorizing

the Secretary of State to Create Temporary Rules for Registered Electors to Receive and Return

Issue Petitions Over Mail and Email Due to the Presence of COVID-19” (Executive Order) late

in the evening of Friday, May 15, 2020.

5. Defendant Jena Griswold is the Colorado Secretary of State (Secretary). Pertinent

here, the Executive Order charges the Secretary with “promulgat[ing] and issu[ing] temporary

emergency rules that allow campaigns for ballot issues that have titles set or pending before the

Colorado Supreme Court . . . to continue collecting signatures in a way that protects public

health consistent with the Constitutional requirement that some registered elector must attest to

the validity of signatures on the petition.” The Office of the Secretary of State issued a Notice of

Temporary Adoption, Election Rules, 8 CCR 1505-1 on May 30, 2020.

FACTUAL ALLEGATIONS

The Executive Order

6. Late in the evening on Friday, May 15, 2020, the Governor signed the Executive

Order. A true and correct copy of the Executive Order is attached as Exhibit 1 to this Verified

Complaint.

7. The Executive Order purports to temporarily suspend the requirements in C.R.S.

§§ 1-40-102(6), 1-40-110, 1-40-105.5(4), and 1-40-113 that govern the form of a ballot issue, how a

ballot issue petition must be compiled, and the specific information that must be printed on the ballot

issue petition.

8. The Executive Order purports to temporarily suspend the requirements in C.R.S.

§ 1-40-111 that a petition circulator be in the physical presence of the registered electors signing the

petition, that the petition circulator be in the physical presence of a notary, and that the

Secretary reject any section of a petition that does not have a notarized circulator affidavit attached.

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 9. The Executive Order purports to temporarily suspend the requirements in C.R.S.

§ 1-40-116 that a circulator’s affidavit be attached to each section of the ballot issue petition and that the

Secretary assure that the information required by C.R.S. § 1-40-111(2) is complete.

10. The Executive Order purports to temporarily suspend C.R.S. § 1-40-130(1)(k), which

makes it unlawful for a petition to be signed outside the presence of a circulator, § 1-40-

130(1)(e), to the extent that it requires an affidavit to a ballot petition be signed in the physical presence

of the person certifying the affidavit, and § 1-40-130(1)(l), which makes it unlawful for any person to

circulate in whole or in part a petition section, unless such person is the circulator who signs the

affidavit attached to the petition section.

11. The Executive Order purports to authorize the Secretary to promulgate and issue

temporary emergency rules to fill the void left by the Governor’s temporary suspension of these core

provisions of Article 40.

12. The Secretary of State issued a Notice of Temporary Adoption, Election Rules, 8 CCR

1505-1 on May 30, 2020, to fill the void left by the Governor’s temporary suspension of these core

provisions of Article 40. A true and correct copy of the Notice of Temporary Adoption is attached as

Exhibit 2 to this Verified Complaint.

The Governor’s State of Emergency

13. On March 10, 2020, the Governor declared a disaster emergency in Colorado due to the

community spread of a novel coronavirus causing a disease called COVID-19. See

Executive Order No. D 2020 003.

14. On March 25, 2020, the Governor ordered all Coloradans to stay home due to the

continued presence and spread of the novel coronavirus. See Executive Order No. D 2020 017.

15. On April 26, 2020, the Governor issued a Safer at Home Executive Order No. D 2020

044. Per the description of the executive order on the Colorado.gov website, “Together, Coloradans have

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been effective in leveling and flattening the curve, but life will remain much more dangerous than usual

these next few months and we should all wear masks when in public. Safer at Home is by no means a

free-for-all. My administration has acted boldly in the face of this pandemic and is focused on ensuring

our state can endure on the trail ahead. We all have a personal responsibility to slow the spread of the

virus and must find a way of living that is psychologically and economically sustainable for

Coloradans,” said Governor Jared Polis. (https://www.colorado.gov/governor/news/gov-polis-issues-

executive-order-safer-home) See Executive Order No. D 2020 044.

16. On May 7, 2020, Polis extended his declaration of emergency in Colorado until

June 6, 2020, or until further notice.

17. Under the Colorado Disaster Emergency Act, C.R.S. §§ 24-33.5-701 to -716, “the

governor may: (a) [s]uspend the provisions of any regulatory statute prescribing the procedures for

conduct of state business or the orders, rules, or regulations of any state agency, if strict compliance with

the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay

necessary action in coping with the emergency.” C.R.S. § 24-33.5-704(7)(a).

18. On May 15, 2020, Governor Jared Polis issued EO 065 which orders the temporary

suspension of certain regulatory statutes concerning the signature collection for ballot issues. This EO

authorized the Secretary of State to create temporary rules for registered electors to receive and return

issue petitions over mail and email due to the presence of COVID-19 in Colorado.

19. EO 065 claims to “preserve our constitutional principle of ballot access” and

“protects Coloradans’ constitutional right to shape their government through the initiative…process” all

“without risking their health or the health of others”.

20. Colorado remains under a declaration of disaster emergency due to the presence

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of the coronavirus disease in Colorado, as declared by Polis on May 7, 2020, in Executive Order D

2020-058. This Executive Order extends until June 6, unless amended further by Polis. See Executive

Order D 2020-058.

21. On June 1, 2020, Polis issued Executive Order D 2020 091, Safer at Home, and in the

Vast, Great Outdoors. “Coloradans should Stay at Home or in the great outdoors away from others as

much as possible and continue to limit social interactions, remain at least six (6) feet from others not in

their household, and wear non-medical facial coverings in public.” This Executive Order extends until

July 1, unless amended further by Polis. See Executive Order D 2020 091.

22. When issuing EO 065, Polis stated he “authorizes the Secretary of State to issue

rules that allow for signature collection in a manner that protects public health while the COVID-19

disaster emergency declaration is in place,” therefore tying the protection of public health to his order

and the Secretary’s rule-making.

23. Polis further stated in EO 065 that “[t]his Executive Order protects Coloradans’

constitutional right to shape their government through the initiative and referendum processes without

risking their health or the health of others,” therefore laying out his recognition of ballot measure

circulation as a constitutional right in Colorado and his belief that Coloradans ought not to be forced by

the government to choose between participation in democracy and the protection of their own health and

well-being in the midst of a pandemic.

24. Despite making his claims, beliefs, and intentions clear, Defendant Polis failed

to extend the protection of constitutional rights and health to Plaintiff Windholz and the volunteers,

circulators, and signers of an Title 1 - Article 12 recall petition of Governor Jared Polis which she

represents.

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 COMPLAINT

Plaintiff, Donna L. Windholz (“Windholz”), a registered elector residing in Larimer County hereby

brings this action against Defendants Colorado Governor Jared Polis (“Polis”), in his official capacity

and Colorado Secretary of State Jena Griswold (“Griswold”), in her official capacity, and make the

following allegations.

1. Polis excluded the Initiative 120 - Due Date Too Late cure period which began on May

15, 2020, from EO 065. This political maneuver deprived the volunteers of this initiative of the COVID-

19 protections afforded by EO 065. The intent was to politically discriminate against this initiative since

Polis does not support it thereby placing the petition circulators in danger of contracting COVID-19 and

putting their lives at risk. This is a wanton disregard by Polis for the physical safety and well-being of

the Colorado citizens working to place the Initiative 120 - Due Date Too Late on the ballot. A lawsuit

has been filed against Polis and Griswold in the United States District Court for the District of Colorado

by Giuliana Day, a proponent and designated representative of Initiative 120, by and through her

attorneys, Kristine L. Brown and Suzanne Staiert.

2. It is clear Polis intentionally ignored new requests for Title 1- Article 12 petitions to

recall elected officials from the COVID-19 protections in EO 065. This was done as another political

maneuver and political discrimination to prevent equal, fair, and safe access to the ballot for new Title 1

- Article 12 recall petitions by way of EO 065 for the citizens of Colorado to exercise their constitutional

right to petition.

REQUEST FOR RELIEF

WHEREFORE, Plaintiff requests this Honorable Court order relief as follows:

1. Set an expedited determination according to Colo. R. Civ. P. 57(m);

2. Declare the EO 065 apply to new Title 1 - Article 12 recall petitions to provide equal,

fair, and safe access to signature gathering by way of EO 065 due to the presence of COVID-19.

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 3. Declare the Office of the Secretary of State, Notice of Temporary Adoption, Election

Rules, 8 CCR 1505-1, also apply to new Title 1 - Article 12 recall petitions.

4. Declare the petition format in Exhibit 3 is approved per CRS 1-12-103. The word count

for the statement is 199 fulfilling the Secretary of State requirements. The people who will be serving on

the Recall Governor Jared Polis 2020 committee are Donna Windholz and Grant Windholz. A true and

correct copy of the petition format is attached as Exhibit 3 to this Verified Complaint.

5. Declare the sixty-day period for signature gathering and filing begin on the date of the

decision of the Honorable Court in this matter. “The petition may be filed at any time during the sixty-

day period after the designated election official's approval as to form of the petition as specified in this

section.” CRS 1-12-108 (7.5)

6. Enter such other and further relief as may be appropriate.

Dated June 2, 2020

_________________________________________
Clerk of Court/Clerk

__________________________________________
Signature of Plaintiff

3801 E. Florida Avenue, Suite 400

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