SECRETARY OF STATE S PETITION FOR WRIT OF CERTIORARI

Transcription

1 SUPREME COURT, STATE OF COLORADO 2 East 14th Avenue Denver, Colorado On Certiorari to the Colorado Court of Appeals Case No. 15CA2017 Opinion by Booras, J., Román and Fox, JJ., concur. Petitioners/Cross-Respondents: WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State; COLORADO DEPARTMENT OF STATE; and THE STATE OF COLORADO v. Respondent/Cross-Petitioner: NATIONAL FEDERATION OF INDEPENDENT BUSINESS. CYNTHIA H. COFFMAN, Attorney General FREDERICK R. YARGER, Solicitor General LEEANN MORRILL, First Ass t Attorney General* GRANT T. SULLIVAN, Ass t Solicitor General* 1300 Broadway, 6th Floor Denver, Colorado Phone: (720) /6349 FAX : (720) Registration Nos.: / leeann.morrill@coag.gov; grant.sullivan@coag.gov *Counsel of Record COURT USE ONLY Case No.: 2017SC368 SECRETARY OF STATE S PETITION FOR WRIT OF CERTIORARI

2 CERTIFICATE OF COMPLIANCE I hereby certify that this Petition for Writ of Certiorari complies with all requirements of C.A.R. 32 and C.A.R. 53, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The Petition complies with the word limits set forth in C.A.R. 53. It contains 3,800 words (does not exceed 3,800 words). I acknowledge that my Petition may be stricken if it fails to comply with any of the requirements of C.A.R. 32 and C.A.R. 53. s/ Grant T. Sullivan GRANT T. SULLIVAN, 40151* Assistant Solicitor General

3 Table of Contents INTRODUCTION... 1 ISSUES PRESENTED... 2 DECISION BELOW... 3 JURISDICTION... 3 STATEMENT OF THE CASE... 3 ARGUMENT... 8 I. TABOR is prospective only, reaching only new tax measures adopted after its enactment A. This Court has already upheld funding mechanisms akin to the Secretary s fees that predate TABOR B. This Court s settled precedent establishes that the Secretary s periodic fee adjustments do not violate TABOR II. The Court of Appeals decision improperly gives NFIB a second bite at satisfying its burden of proof III. The Secretary s business filing charges are fees, not taxes subject to TABOR s vote requirement IV. This case presents an issue of statewide importance meriting this Court s review CONCLUSION APPENDICES i

4 Table of Authorities CASES Bainbridge, Inc. v. Bd. of Cnty. Comm rs, 964 P.2d 575 (Colo. App. 1998)... 20, 21 Barber v. Ritter, 196 P.3d 238 (Colo. 2008)... 19, 20 Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1989)... 19, 20 Bolt v. Arapahoe Cnty. Sch. Dist., 898 P.2d 525 (Colo. 1995)... 11, 12, 18 Continental Air Lines v. Keenan, 731 P.2d 708 (Colo. 1987) Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) Gumersell v. Dir., Fed. Emergency Mgmt. Agency, 950 F.2d 550 (8th Cir. 1991) Huber v. Colo. Mining Assoc., 264 P.3d 884 (Colo. 2011)... passim Mesa Cnty. Bd. of Cnty. Commr s v. State, 203 P.3d 519 (Colo. 2009) Nat l Fed n of Indep. Bus. v. Williams, No. 15CA2017, slip op. (Colo. App. May 4, 2017)... passim Sullivan v. Davis, 474 P.2d 218 (Colo. 1970) TABOR Found. v. Colo. Bridge Enter., 353 P.3d 896 (Colo. App. 2014) ii

5 TABOR Found. v. Reg l Transp. Dist., 2016COA102, cert. granted, No. 16SC639 (Colo. Jan. 23, 2017) CONSTITUTIONS Colo. Const. art. VI, 2(1)... 3 Colo. Const. art. X, 20(4)... 2 Colo. Const. art. X, 20(4)(a)... 5, 15 Colo. Const. art. X, 7(a)... 6 Colo. Const. art. X, 7(d)... 6 STATUTES (2)(b), C.R.S. (2016) , C.R.S. (2016) (1)(a), C.R.S. (2016)... 2, (3)(b), C.R.S. (2016) , C.R.S. (2016) COLO. GEN. LAWS 1161, p COLO. SESS. LAWS, pp COLO. SESS. LAWS, pp , COLO. SESS. LAWS, p RULES C.A.R C.A.R. 49(a)(2)... 8 C.A.R. 49(a)(3)... 15, 21 C.A.R. 49(a)(4)... 9, 21 C.A.R C.A.R. 52(b)... 3 iii

6 INTRODUCTION Colorado law has long required the Secretary of State to impose adjustable service fees on certain filings to fund the overall costs of his office, including overseeing Colorado elections. The National Federation of Independent Business ( NFIB ) complains that this decades-old framework violates the Taxpayers Bill of Rights ( TABOR ) because the fees are in fact taxes that must be approved by the voters before they can be increased, even though the adjustable framework predates TABOR. The district court agreed with the Secretary that this pre-tabor framework does not require voter approval, and thus granted the Secretary summary judgment. The Court of Appeals, however, reversed, concluding that factual disputes precluded summary judgment. That conclusion is inconsistent with this Court s holdings that pre-tabor funding mechanisms that contemplate post-tabor administrative adjustments do not, as a matter of law, require voter approval. No dispute of fact alters that legal principle here. What s more, the division below declined to reach the Secretary s alternative argument that his

7 business filing charges are fees, not taxes subject to TABOR. This Court should grant certiorari to confirm its prior precedent and remove the veil of uncertainty that the decision below has created for the funding of future Colorado elections. ISSUES PRESENTED 1. Whether, as a matter of law, an agency funding mechanism that predates TABOR and requires the agency to make administrative adjustments to its charges to pay for operating expenses is subject to TABOR s voter-approval requirement, COLO. CONST. art. X, 20(4). 2. Whether judgement for the State is required when a plaintiff fails at summary judgment to put forward any facts demonstrating that the challenged funding mechanism violates TABOR. 3. Whether the Secretary of State s business filing charges in (1)(a), C.R.S. (2016), are taxes subject to TABOR s voterapproval requirement or are instead fees exempt from voter approval. 2

8 DECISION BELOW The opinion for which review is sought is Nat l Fed n of Indep. Bus. v. Williams, No. 15CA2017 (Colo. App. May 4, 2017) ( Slip Op. ). JURISDICTION This Court s jurisdiction is invoked under COLO. CONST. art. VI, 2(1), and C.A.R. 49, 51, and 52(b). The Court of Appeals issued its modified opinion and denied the parties Joint Petition for Rehearing on May 4, In response to timely filed motions, this Court extended the deadline to petition for certiorari to July 17, STATEMENT OF THE CASE The Secretary s fee structure. The Secretary s authority to charge business filing fees originated long before TABOR. Since statehood, the General Assembly has required the Secretary to charge fees for papers officially executed, and other official work which may be done in his office COLO. GEN. LAWS 1161, p.427. He was directed to charge fees for, among others, each military commission, notary public commission, foreign commission, official certificate, certificate of 3

9 incorporation, and transcript or copy of papers and records. Id. While this list occasionally has been expanded pre-tabor, today s version remains largely consistent with the original enactment (1)(a). The General Assembly s approach to using the fees, however, changed in Fee receipts were previously transmitted to the Treasurer, who was responsible for paying the costs of the Secretary s office. In 1983, the legislature changed course by requiring the Secretary to set and adjust his fees so that they approximate the direct and indirect costs of his official work COLO. SESS. LAWS, p.862. At the same time, the legislature created the Department of State Cash Fund. Id. All revenue collected by the Secretary was directed to that fund and could not be deposited in or transferred to the general fund or any other fund. Id. Thus, the General Assembly could appropriate money in the cash fund only to the Secretary s office. Id. This adjustable self-funding fee structure remains in place today (3)(b) ( funding statute ). 4

10 Like the Secretary s funding statute, the official work performed by his office has remained constant for decades. CF, p.225 (listing services Secretary provides). Among others, the Secretary s responsibility for administering the Uniform Commercial Code has existed since COLO. SESS. LAWS, pp He has supervised statewide elections since COLO. SESS. LAWS, pp TABOR s vote requirement. In 1992, nine years after the Secretary s funding statute was enacted, Coloradans adopted TABOR. TABOR contains two primary mechanisms to control the growth of government. First, TABOR requires advance voter approval for any new tax, tax rate increase, or tax policy change directly causing a net tax revenue gain to any district. COLO. CONST. art. X, 20(4)(a). This provision is prospective only. Huber v. Colo. Mining Assoc., 264 P.3d 884, 891 (Colo. 2011). Second, TABOR imposes government spending limits, restricting annual spending increases to inflation plus the percentage change in state population in the prior calendar year, adjusted for revenue 5

11 changes approved by the voters after COLO. CONST. art. X, 7(a). Revenue that exceeds this limit must be refunded to the voters. Id. at 7(d). This provision was included because TABOR did not repeal preexisting tax statutes. Huber, 264 P.3d at 890. Instead, because TABOR anticipated that preexisting tax statutes might bring in increasing amounts of revenue, it imposed a spending limit to require refunds unless voters approved retaining the excess revenue. Id. NFIB s lawsuit. After years of its members paying the business filing charges, NFIB filed this case in The complaint alleges that the Secretary s statutory ability to adjust his fees to approximate his overall costs constitutes a TABOR violation. CF, p.10. NFIB asserts that the business filing charges constitute impermissible taxes, not fees, because they are used to fund what it characterizes as general government functions (like elections). By agreement of the parties, no formal discovery occurred. Instead, the parties requested and obtained information from one another, jointly stipulated to all of the material facts, and filed cross motions for summary judgment. CF, pp , The parties 6

12 agreed that, although the Secretary s fee revenue has increased slightly more than fourfold between fiscal year and fiscal year , that increase is generally attributable to the significant increase in the number of business filings. CF, pp The stipulations show that, consistent with the fee revenue, the fee-generating documents filed with the Secretary increased slightly more than fourfold over the same period. Id. at 229. Thus, while the Secretary agreed that there have been occasional fee adjustments over the years (such as resuming charges after fee holidays), CF, p.228, none of the parties stipulated facts established that the increase in fee revenue is attributable to any upward adjustment to the individual fee amounts. The district court granted the Secretary summary judgment, concluding that the funding statute predates TABOR, rendering TABOR inapplicable as a matter of law. CF, pp The court determined the Secretary s funding statute is analogous to a preset formula that does not amount to a post-tabor tax rate increase because his fee revenue must approximate his overall costs. Id. at 354. The court also ruled that the Secretary has been responsible for the 7

13 same public services for the past half century, including administering elections. Id. As such, there has been no high level overall tax policy change that implicates TABOR. Id. The division below reversed. In its view, a disputed issue of material fact precluded summary judgment whether any adjustments to the business filing fees amounted to a tax rate increase or tax policy change. Slip Op., pp ARGUMENT This Court should grant certiorari for four primary reasons. First, the Court of Appeals analysis is not in accord with this Court s precedent. C.A.R. 49(a)(2). This Court s precedent establishes that administrative adjustments to funding mechanisms that predate TABOR render its prospective voter-approval requirement inapplicable. No amount of additional factual development will alter this legal principle. Second, the division s decision remanding the case improperly gives NFIB a second bite at satisfying its heavy burden of proving that the funding statute is unconstitutional beyond a reasonable doubt. 8

14 Third, the division declined to reach the Secretary s alternative argument that would have allowed it to uphold summary judgment, namely that the business filing charges are fees, not taxes subject to TABOR. This inquiry, too, is driven by the law, not facts requiring further development. Fourth, this case presents an issue of utmost importance the funding of statewide and federal elections that calls for this Court s power of supervision. C.A.R. 49(a)(4). The decision below places the State s decades-old election funding scheme in jeopardy. It should be corrected now, removing the cloud of uncertainty that will otherwise hang over the funding statute during the years of additional litigation that a remand will entail. I. TABOR is prospective only, reaching only new tax measures adopted after its enactment. TABOR s voter approval requirement applies only to new taxes, tax rate increases, and tax policy changes directly causing a net tax revenue gain that are adopted on or after November 4, Huber, 264 P.3d at TABOR leaves in place previously enacted legislative 9

15 measures. Id. The decision below conflicts with this Court s settled precedent on the applicability of TABOR to pre-tabor funding mechanisms. A. This Court has already upheld funding mechanisms akin to the Secretary s fees that predate TABOR. This Court has upheld tax statutes enacted pre-tabor, even though they contemplate periodic administrative adjustments after TABOR s passage. Id. at In Huber, a pre-tabor statute required quarterly adjustments to a severance tax charged on extracted minerals. Id. at 887. The adjustments were tethered to the producer price index ( PPI ) compiled by the U.S. Department of Labor. Id. This Court upheld the tax against a TABOR challenge, explaining that the Department of Revenue had a ministerial, non-discretionary duty to implement the statute and its floating tax rate. Id. at 891. The Department did not have the power to impose a new tax or set a new tax policy. Id. at 892. While the adjustment mechanism in Huber was based on a statutory formula, that fact was not dispositive. Rather, the Court 10

16 determined that the statute (1) predated TABOR, and (2) imposed a non-discretionary duty on the Department, which (3) was imposed by the legislature. Id. at 892. The Department s pre-existing administrative duty to enforce and implement the tax statute was based on pre-set objective components for calculating the tax due. Id. And because the General Assembly had not altered the statute since its passage, the Court found that the statute did not violate TABOR. Id. Huber is also consistent with Bolt v. Arapahoe Cnty. Sch. Dist., 898 P.2d 525 (Colo. 1995). There, the Court held that the Arapahoe County Commissioners post-tabor approval of the school district s budget and mill levy was a purely ministerial act. Id. at 538. The school district s budget had been approved by the district s board of education before TABOR s passage and was no longer subject to adjustment. Id. at Under Colorado law, the commissioners had no authority to modify the school district s mill levy or to refuse to impose it. Id. at 539. As such, the commissioners non-discretionary act of imposing the mill levy did not amount to a TABOR violation, despite occurring after TABOR s passage. 11

17 The same reasoning applies here, yet the division below declined to heed this Court s settled precedent. The pre-tabor funding statute cabins the Secretary s fee-setting discretion by instructing him to set his fees so that they approximate his direct and indirect costs. The legislature has not altered that administrative duty since TABOR s passage. The statute does not grant the Secretary the authority to raise revenue above his costs, to impose a new tax, or to set a new tax policy. Instead, the Secretary s power is limited to the ministerial function of covering his office s overall costs. As with the commissioners in Bolt, the fact that the Secretary executes this non-discretionary fee-setting function after TABOR s enactment does not amount to a TABOR violation. While the Secretary s fee-setting function is not expressed as a statutory formula, it nonetheless fits comfortably within Huber s rubric. The statute affords the Secretary no discretion to raise revenue exceeding his costs. That the Secretary accomplishes this break even objective in part by granting discrete fee holidays and then resuming the charges, CF, p.228, does not transform the fee structure into a 12

18 TABOR violation. To the contrary, this Court in Huber noted that the Department of Revenue suspended the floating severance tax for fifteen years. 264 P.3d at 888. Resuming enforcement, the Court explained, did not amount to a TABOR violation. Id. at 892. So too here. B. This Court s settled precedent establishes that the Secretary s periodic fee adjustments do not violate TABOR. NFIB argued below that the Secretary s post-tabor fee adjustments constitute either an impermissible tax rate increase or tax policy change. Neither is true as a matter of law or fact. The division s decision below conflicts with this Court s precedent and other decisions from the Court of Appeals. 1. No tax rate increase. This Court has explained that a tax rate is a mathematical figure for calculating a tax, usu[ally] expressed as a percentage. Huber, 264 P.3d at 892 (quotations omitted). The definition is flexible it can be a fixed numerical amount, a fixed percentage, or a mathematical formula with pre-set objective components for calculating the amount of tax due. Id. In Huber, for example, the tax rate included a pre-tabor 13

19 adjustment formula that increased or decreased the tax rate based on changes in PPI. Id. at n.6. Here, as in Huber, the Secretary s funding statute similarly includes a pre-tabor adjustment mechanism. As the Secretary s costs increase or decrease, or as the number of fee-generating filings increase or decrease, the Secretary is required to adjust his fees so that they continue to approximate his overall costs. Although the adjustment mechanism may cause a filer to pay a higher (or lower) fee from one year to the next, that possibility does not trigger a TABOR violation. It is simply a consequence of the pre-tabor adjustment mechanism at work. Indeed, the taxpayers in Huber argued without success that the variable floating tax rate amounted to an impermissible tax rate increase. 2. No tax policy change. NFIB also argued below that the legislature s addition of new programs to the Secretary s office post-tabor necessarily increases his costs that must be covered by his fees, violating TABOR. It cites as an example the statutes that instruct the Secretary to reimburse local 14

20 county clerks for costs incurred in conducting statewide elections , , C.R.S. This argument implicates TABOR s prohibition on tax policy changes that result in a direct net revenue gain. COLO. CONST. art. X, 20(4)(a). The division below agreed with NFIB s argument in part, stating that the Secretary s services are diverse and change[ ] over time. Slip Op., p.10. The division s conclusion conflicts with existing Court of Appeals precedent. See C.A.R. 49(a)(3); TABOR Found. v. Reg l Transp. Dist., 2016COA102, 63, cert. granted, No. 16SC639 (Colo. Jan. 23, 2017). Under existing precedent, a tax policy change is a change in the high level overall plan embracing the general goals and acceptable procedures of a governmental body. Id. This is the definition that the district court properly applied in this case, CF, p.364, but which the division below failed to consider. The district court correctly determined that merely adding programs to the Secretary s office that are directly related to his office s historical functions does not constitute a tax policy change causing a net tax revenue gain. CF, pp The county reimbursement statutes, 15

21 for instance, are directly related to the Secretary s responsibility for administering elections and assisting local election officials in the administration of statewide elections duties that predate TABOR COLO. SESS. LAWS, pp The district court so found. CF, p.365. It does not constitute a change to the high level overall plan that governs the Secretary s official work. II. The Court of Appeals decision improperly gives NFIB a second bite at satisfying its burden of proof. Even if the Secretary s pre-tabor funding statute could be viewed as giving rise to a potential tax rate increase, NFIB failed to satisfy its heavy burden as plaintiff of introducing facts demonstrating its unconstitutionality. This Court has long held that, after a summary judgment movant satisfies his initial burden of production, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. Continental Air Lines v. Keenan, 731 P.2d 708, 719 (Colo. 1987). If the nonmoving party cannot muster sufficient evidence to make out a 16

22 triable issue of fact on his claim, the moving party is entitled to summary judgment as a matter of law. Id. Here, the stipulated facts show that the Secretary was entitled to summary judgment because the effective tax rate has remained constant. Specifically, the parties stipulations reveal that the filings submitted to the Secretary increased slightly more than fourfold between fiscal year and fiscal year CF, p.229. At the same time, the Secretary s revenue also increased by slightly more than fourfold. Id. The parties thus stipulated that the increase in fee revenue is generally attributable to the growth in business filings in Colorado, not some other factor. Id. at 230. The record is devoid of evidence linking the increase in fee revenue to any upward adjustment in the individual fee amounts. Against this backdrop where NFIB chose to not seek discovery and did not submit a C.R.C.P. 56(f) affidavit NFIB failed to satisfy its burden of demonstrating beyond a reasonable doubt the unconstitutionality of the funding statute. Mesa Cnty. Bd. of Cnty. Commr s v. State, 203 P.3d 519, 523 (Colo. 2009); see also Sullivan v. 17

23 Davis, 474 P.2d 218, 221 (Colo. 1970) (it is perilous for party opposing summary judgment to not proffer any evidentiary explanatory material nor file a 56(f) affidavit ). The proper question is not, as the Court of Appeals believed, whether a dispute of fact exists. The parties agreed on all facts. Rather, the proper question is whether NFIB put forward any facts demonstrating the unconstitutionality of the funding statute or raising doubt over the Secretary s entitlement to judgment as a matter of law. It did not. Despite this, the Court of Appeals remand wrongly gives NFIB a second bite at satisfying its evidentiary burden. E.g., Gumersell v. Dir., Fed. Emergency Mgmt. Agency, 950 F.2d 550, n.4 (8th Cir. 1991). III. The Secretary s business filing charges are fees, not taxes subject to TABOR s vote requirement. The undisputed fact that Secretary s funding statute predates TABOR should fully resolve this case, permitting this Court to clarify the scope and meaning of its precedents in Huber and Bolt. Should this Court determine otherwise, however, it should nonetheless consider another important question of law: whether the Secretary s business 18

24 filing fees are just that fees or if they are instead taxes subject to TABOR. By declining to reach that issue, the division below disregarded a series of cases demonstrating that the Secretary s charges are fees, not taxes. The purpose of a tax is to provide revenues in order to defray the general expenses of government as distinguished from the expense of a specific function or service. Bloom v. City of Fort Collins, 784 P.2d 304, 307 (Colo. 1989). To determine whether a government mandated financial imposition is a fee or a tax, the dispositive criteria is the primary or dominant purpose of such imposition at the time the enactment calling for its collection is passed. Barber v. Ritter, 196 P.3d 238, 248 (Colo. 2008) (emphasis added). The Court of Appeals, however, has eschewed Barber s dispositive criterion in favor of its own three-factor test. TABOR Found. v. Colo. Bridge Enter., 353 P.3d 896, 901 (Colo. App. 2014). This unsanctioned three-factor test has created confusion because, as the district court noted, the case law is unclear on how the three factors are to be weighed if they do not all support classification as a fee versus a tax. 19

25 CF, p.363. The confusion created by the Court of Appeals three-part test thus counsels in favor of granting certiorari to confirm Barber s dispositive criterion. This Court s guidance is also needed because the Court of Appeals has reached conflicting results on whether an agency may properly charge fees to cover its overall costs. Compare Slip Op., p.12, with Bainbridge, Inc. v. Bd. of Cnty. Comm rs, 964 P.2d 575, 577 (Colo. App. 1998). In Bainbridge, a different Court of Appeals division considered whether a building permit fee may generate revenue in an amount four times that of the building department s direct operating costs. Id. at The fee included a portion of the building department s indirect costs for services furnished to it by the county manager, the county attorney s office, the assessor s office, and other government divisions. Id. at 577. Drawing on Bloom, the division held that the permit fee revenue may cover the department s direct and indirect costs, provided that the revenue generally approximate[s] the overall costs of operating the building department. Id. (emphasis added). 20

26 If the division below had applied Bainbridge, it would have necessarily found that the Secretary s filing fees do not violate TABOR. They instead fund the overall costs of the Secretary s office, not the general government expenses. But the division below failed to even cite Bainbridge, demonstrating a lack of clarity on the applicable test. This Court s review is therefore warranted. C.A.R. 49(a)(3). IV. This case presents an issue of statewide importance meriting this Court s review. The Secretary acknowledges that the Court of Appeals decision to not publish its opinion in this case normally militates against granting certiorari. Even so, the Secretary believes that the extraordinary nature of NFIB s challenge, coupled with the risk to the funding statute created by the division s decision, places this unique dispute in the category of cases meriting this Court s power of supervision. C.A.R. 49(a)(4). NFIB s sweeping challenge has the potential to invalidate the funding source that has financed Colorado s elections for more than three decades. It also has the potential to endanger comparable funding 21

27 mechanisms for other agencies. E.g., (2)(b) (funding for Liquor Enforcement Division). The decision below heightened that risk by erasing the Secretary s trial court victory. It created uncertainty in an area elections where confidence in the State s systems is paramount. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008) ( orderly administration of elections is an important state interest). But there is no need for this Court to compound this uncertainty. The current record is more than adequate to permit this Court to conclude, as a matter of law, that the Secretary s funding statute predates TABOR and is thus not subject to its voter-approval requirement. The district court did just that. Similarly, there is no impediment to this Court ruling, as a matter of law, that the Secretary s charges are fees, not taxes. Doing so now, rather than awaiting lengthy remand proceedings, will remove the cloud of uncertainty that currently hangs over Colorado s election funding source. CONCLUSION This Petition for Writ of Certiorari should be granted. 22

28 Dated: July 17, CYNTHIA H. COFFMAN Attorney General s/ Grant T. Sullivan LEEANN MORRILL* First Assistant Attorney General GRANT T. SULLIVAN* Assistant Solicitor General Public Officials Unit / State Services Section *Counsel of Record ATTORNEYS FOR PETITIONERS 23

29 APPENDICES Appendix A: Court of Appeals May 4, 2017 Opinion Appendix B: Denver District Court s November 3, 2015 Decision CERTIFICATE OF SERVICE I hereby certify that on this 17th day of July, 2017, a true and correct copy of the foregoing SECRETARY OF STATE S PETITION FOR WRIT OF CERTIORARI was filed and served via Colorado Courts E-Filing upon the following: Jason R. Dunn, #33011 Emily R. Garnett, #45047 Brownstein Hyatt Farber Schreck, LLP th Street, Suite 2200 Denver, CO Attorneys for Respondent/Cross-Petitioner s/ Xan Serocki Xan Serocki 24