Notice of Opposition

DISTRICT COURT, COUNTY OF DENVER
STATE OF COLORADO
1437 Bannock Street, Room 256
Denver, CO 80202
Plaintiffs: COLORADO OVER PARTY and

FREDRICK SANDOVAL, an individual,
v.
Defendant: JENA GRISWOLD, COLORADO

SECRETARY OF STATE, in her official capacity.
COURT USE ONLY
PHILIP J. WEISER, Attorney General
MICHAEL KOTLARCZYK, Senior Assistant
Attorney General, Reg. No. 43250* Case No.: 2022CV32620
Colorado Attorney General’s Office
1300 Broadway, 6th Floor Division: 409
Denver, CO 80203
Telephone: 720.508.6187
E-Mail: [email protected]
*Counsel of Record
Attorney for Defendant Jena Griswold, Colorado
Secretary of State
NOTICE OF OPPOSITION TO REQUEST FOR TEMPORARY

RESTRAINING ORDER
Defendant Jena Griswold, in her official capacity as Colorado Secretary of
State, gives notice to the Court of the following.
1. Yesterday, Plaintiffs filed their complaint along with a motion for
temporary restraining order and preliminary injunction.
2. The Secretary opposes both requests in the motion and anticipates
raising both jurisdictional and merits defenses to the arguments raised in the
motion. The Secretary intends to respond fulsomely to those arguments. But
because the motion contains a request for a temporary restraining order, the
Secretary provides notice now that she opposes the granting of such “extraordinary
relief” before the issues presented in Plaintiffs’ motion can be fully litigated. Soskin
v. Reinertson, 260 F. Supp. 2d 1055, 1057 (D. Colo. 2003).
3. Plaintiffs’ motion identifies no injury that they will suffer if recall
petitions are able to circulate while the request for a preliminary injunction is
briefed and decided. Plaintiffs argue that irreparable harm is presumed when the
injury is to a constitutional right, citing the “participation and voting rights of S.D.
25 electors.” Mot. 12. The Secretary of course disputes that anyone is suffering any
constitutional injury at all and will brief that issue in due course. But even if a
constitutional harm exists, neither Plaintiff (one of whom is an issue committee
that has no right to vote) will incur any harm as long as their request for injunctive
relief is litigated prior to any recall election occurring. And it will be.
4. The statutory timeline for the circulation of recall petitions removes
any doubt that Plaintiffs’ preliminary injunction motion will be fully litigated well
in advance of any possible recall election.
• The recall proponents have 60 days from September 9 (until November 8) to
gather signatures. § 1-12-108(1.5), C.R.S. (2022).
• The Department of State then has 28 days to review the sufficiency of the
petition. § 1-12-108(8)(c)(I).
• There is then a mandatory fifteen-day protest period. § 1-12-108(9).
• If sufficient signatures were gathered and protests were unsuccessful, the
Secretary must wait five days before issuing a statement of sufficiency. § 1-
12-111(1).
• Following that five-day period, the Secretary would issue a statement of
sufficiency and an election would be set between 30 and 60 days later. § 1-12-
111(2); Colo. Const. art. XXI, § 2.
5. A preliminary injunction will thus be fully briefed and decided well
before any voter is able to cast a vote in a recall election, if one is ever held.
Plaintiffs are therefore not at risk of having their constitutional right to vote
impeded if their motion is treated as a motion for preliminary injunction to which
the Secretary may provide a complete response. If anything, entering a temporary
restraining order would impede the “fundamental right” of Coloradans to exercise
their recall power, which right “must be liberally construed in favor of the ability to
exercise it.” Shroyer v. Sokol, 191 Colo. 32, 34 (1976).
6. The Secretary therefore respectfully requests that the Court consider
Plaintiffs’ request for injunctive relief in due course, with the response of the
Secretary (as well as the proposed intervenors, if their motion to intervene is
granted) due 21 days after the motion was filed, or October 3. See C.R.C.P. 121, § 1-
15. Plaintiffs would then have 7 days to file a reply, to October 10. If an evidentiary
hearing or oral argument is needed, it can be set for a date following the close of
briefing.
Dated: September 13, 2022
PHILIP J. WEISER
Attorney General
s/ Michael Kotlarczyk
MICHAEL KOTLARCZYK, 43250*

Senior Assistant Attorney General
State Services Section
Public Officials Unit
Attorney for Defendant Jena Griswold
* Counsel of Record
CERTIFICATE OF SERVICE
This is to certify that on September 13, 2022, I duly served the foregoing
NOTICE OF OPPOSITION TO REQUEST FOR TEMPORARY RESTRAINING
ORDER upon all counsel of record who have entered their appearance on behalf of the
parties in Case No. 2022CV32620 via the Colorado Courts e-Filing System.
s/ Xan Serocki
Xan Serocki

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DISTRICT COURT, COUNTY OF DENVER

Plaintiffs: COLORADO OVER PARTY and

Defendant: JENA GRISWOLD, COLORADO

NOTICE OF OPPOSITION TO REQUEST FOR TEMPORARY

Defendant Jena Griswold, in her official capacity as Colorado Secretary of

State, gives notice to the Court of the following.

1. Yesterday, Plaintiffs filed their complaint along with a motion for

temporary restraining order and preliminary injunction.

2. The Secretary opposes both requests in the motion and anticipates

v. Reinertson, 260 F. Supp. 2d 1055, 1057 (D. Colo. 2003).

3. Plaintiffs’ motion identifies no injury that they will suffer if recall

constitutional harm exists, neither Plaintiff (one of whom is an issue committee

4. The statutory timeline for the circulation of recall petitions removes

in advance of any possible recall election.

• The recall proponents have 60 days from September 9 (until November 8) to

gather signatures. § 1-12-108(1.5), C.R.S. (2022).

• If sufficient signatures were gathered and protests were unsuccessful, the

Secretary must wait five days before issuing a statement of sufficiency. § 1-

• Following that five-day period, the Secretary would issue a statement of

111(2); Colo. Const. art. XXI, § 2.

5. A preliminary injunction will thus be fully briefed and decided well

impeded if their motion is treated as a motion for preliminary injunction to which

the Secretary may provide a complete response. If anything, entering a temporary

restraining order would impede the “fundamental right” of Coloradans to exercise

exercise it.” Shroyer v. Sokol, 191 Colo. 32, 34 (1976).

6. The Secretary therefore respectfully requests that the Court consider

Secretary (as well as the proposed intervenors, if their motion to intervene is

Dated: September 13, 2022

MICHAEL KOTLARCZYK, 43250*

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