A Denver hearing officer ruled there is insufficient evidence to prove that Republican Ryan Call broke the law by voting in Denver after moving to Arapahoe County.
The complaint was filed by Florence Sebern, a fellow Republican, who worked for the Denver Election Division. She said she was surprised to see Call pick up mail ballots for himself and his wife for the primary and the general election because it was common knowledge the Calls had moved from Denver.
A hearing on the complaint was held Monday. The ruling was made Thursday and released today.
“My opinion: a fair ruling — given the lack of subpoena power — which limited my evidence to public record,” Sebern said today in an e-mail.
Call said he was glad to see the issue was resolved so quickly by the Denver clerk’s office.
“Obviously, we are happy with the outcome,” he said. “We knew from the outset that the politically-motivated allegations that my wife and I voted or were registered to vote illegally were groundless and without merit.”
Sebern said she wasn’t motivated by politics, but by fairness.
She pointed out that the hearing officer noted he “rejected any finding that there exists ‘no evidence’ to support the allegations; although, he is equally compelled in this case to find that there is not sufficient evidence to support the allegations of the challenge. ”
Thus, the Calls’ voter status in Denver now is considered inactive.
Public records show the Calls bought their home in Arapahoe County in March, although Call said the family didn’t move until early summer. Records show the home in Denver is owned by a limited-liability corporation and the registered agent is Call’s father. It is occupied by a renter.
Hearing officer John P. DiFalco noted in his decision that the terms of the lease state “Ryan R. Call and Brittany A. Call may identify the Premises as their mailing address and residence for certain legal purposes … .”
Call served as chairman of the Denver County Republican Party until earlier this month when his term ended. He said plenty of Republicans knew he had moved, but district captains and others urged him to stay a legal resident of Denver through the general election and party-chairmanship election.
The following is a copy of the decision:
BEFORE THE CLERK AND RECORDER, ELECTIONS DIVISION, CITY AND COUNTY OF DENVER, STATE OF COLORADO
Case No. E.D. 2011-01
DECISION OF THE HEARING OFFICER
IN THE MATTER OF: CHALLENGE TO VOTER REGISTRATION OF RYAN R. CALL AND BRITTANY A. CALLPetitioner: Florence Sebern
Respondents: Ryan R. Call and Brittany A. CallINTRODUCTION
On January 7, 2010, the Petitioner, Florence Sebern, filed a challenge to Voter Registration by Respondents, Ryan R. Call and Brittany A. Call, pursuant to Colorado Revised Statutes Section 1-9-101. That provision in pertinent part provides that any registered elector may challenge the registration of any person whose name appears in a County Registration record. When a challenge is made by a registered elector of the registration of other electors as in the instant case, the County Clerk and Recorder is authorized to conduct a hearing, receive testimony and evidence, and render a decision on the challenge. In accord with CRS § 1-9-101, the County Clerk and Recorder’s decision shall be one of three options provided by the statute, to find that sufficient evidence exists to support the allegations in the challenge, wherein the registered elector’s name shall be cancelled from the registration book, or upon a finding that some evidence, but not sufficient evidence, supports the allegations and the challenge, the County Clerk and Recorder may mark the elector with the word “Inactive,” and the procedures of CRS § 1-2-605, in regard to registered electors who fail to vote in the general election, shall apply, or if the County Clerk and Recorder finds no evidence to support the allegations of the challenge, the challenge to cancel the registered elector’s name from the registration book shall be denied.
In an order dated February 1, 2011, the Denver Clerk and Recorder pursuant to Article VIII § 8.2.25 of the Denver Charter designated John P. DiFalco as Hearing Officer in the matter. A hearing was scheduled for February 7, 2011, at which time the Petitioner, acting pro se, and the Respondents, who were represented by attorney Gabriel N. Schwartz, presented evidence and argument relative to their respective positions in the Voter Registration challenge. The Hearing Officer, acting in the place of the Clerk and Recorder, is compelled to follow the statutory rules for determining residence (CRS § 1-2-102) and applicable case law in making a determination regarding this challenge.
DISCUSSION AND CONCLUSIONS
The Petitioner’s challenge to Voter Registration of Ryan R. Call and Brittany A. Call of 2691 South Gaylord Street, Denver, CO 80210, Precinct 325, is based on an allegation that Ryan and Brittany Call purchased a home as their new family residence in Arapahoe County on March 25, 2010, and no longer reside in Denver County at the 2691 South Gaylord Street address. Specifically, the Petitioner alleges that this change of residence constitutes an abandonment of residency to vote pursuant to CRS § 1-2-102 (1) (F) which provides in pertinent part that “if a person moves from one county or precinct… with the intention of making the new county or precinct a permanent residence, after thirty days the person shall be considered to have lost residence in the county or precinct from which the person moved.” At hearing, the Petitioner submitted documentation evidencing the Respondents’ purchase of a residence in Arapahoe County, and the Respondent, Ryan R. Call, the only witness to testify in the hearing, did not deny the purchase of the residence nor his intent to reside at that location, and possibly change his voter registration, at some later date, to Arapahoe County. Mr. Call also testified that his intent at all times relevant herein was to remain a resident registered elector in Denver.
The argument was presented by the Respondents’ attorney that resident registration and residency for purposes of voter registration must be based upon the voter’s intent, and further, that it was the Respondents’ intent, at all times relevant, to keep their legal residence at 2691 South Gaylord Street, Denver, CO 80210, Precinct 325, and their intent should be discerned pursuant to CRS § 1-2-102, Rules for Determining Residence, and applicable Colorado judicial decisions, specifically the case of Gordon V. Blackburn 618P.2nd668(Colo.1980).
The Petitioner’s evidence can be summed up as establishing that the Respondents purchased the residence in Arapahoe County, Colorado in 2010, joined a homeowner’s association there, and enrolled two of their children in the local school district. None of this was denied by the Respondents.
The Respondents, to demonstrate residence in Denver, produced evidence as follows: a Registration Ownership Tax receipt for their passenger vehicle listing the Gaylord Street address, a driver’s license for Ryan Call listing the Gaylord Street address, and Denver Water and Sewer statements for 2691 South Gaylord Street addressed to Ryan Call. The Respondents also produced a Resident’s Lease for the Gaylord Street address that contained language therein which provided that, “Notwithstanding any other provision of [the] lease, tenant understands that Ryan R. Call and Brittany A. Call have the present intention of returning to possession of premises after their departure or absence during the term of the lease, and Tenant and Landlord each acknowledge and agree during the Term of the Lease, Ryan R. Call and Brittany A. Call may identify the Premises as their mailing address and residence for certain legal purposes including how the term ‘residence’ is defined in 1-1-104(43) and 1-2-102, C.R.S.” The Petitioner also produced paychecks for the period 2010 addressed to the Gaylord Street address, as well as W-2 Wage and Tax Statements for 2010 reflecting that address. The Petitioner produced photographs and testified that the Respondents personal property and children’s play equipment remained at the Gaylord Street address, evidencing residency under applicable Rules for Determining Residence for purposes of voter registration.
It is clear to the Hearing Officer that the Respondents, specifically Ryan R. Call, who is an attorney and apparently quite familiar with election law, took several affirmative actions to maintain registration in the city and county of Denver. It appears that he made every effort to comply with the residency standards of CRS § 1-2-102(1)(b) by evidencing business pursuits, employment, income sources, residence for income or other tax purposes, and motor vehicle registration. Conversely, the Petitioner was able to establish, and indeed it was not denied by the Respondent, that although Denver remained the residence of the Respondent’s parent, that the spouse, children, and the Respondent were residing primarily in Arapahoe County subsequent to March 2010.
There can be no doubt that the Respondents intended to maintain a legal voting residence in Denver, Colorado. They owned the subject property on Gaylord Street, expressed a written intent in the lease, a legal document offered as evidence, to return to that location, and produced considerable evidence of a nexus to that location in Denver, obviously attempting to comply with the rules for determining residence found in the statute.
The Hearing Officer, in order to resolve obviously conflicting acts such as purchasing property in Arapahoe County, enrolling children in school, and essentially settling into that location as permanent residents with considerable contrary evidence demonstrating an apparent intent to continue an existing residence for purposes of legal registration to vote in Denver, must refer to applicable case law, which provides considerable guidance regarding these matters.
Initially it must be noted that under the express language of CRS § 1-9-101(1)(a), it is not the Respondent who must demonstrate residency, rather it is the burden of the Petitioner to demonstrate illegal or fraudulent registration by the Respondent for the challenge to prevail.
The case law makes it clear that once an elector’s legal residence has been established, his intention to keep it becomes an essential factor in determining whether it continues. Further, if an elector maintains the present intention of returning, he may leave his voting residence, for even a lengthy period, without losing it. Obviously, in the majority of cases, an elector’s physical dwelling and his intention to live there coincide, but all circumstances must be considered before reaching a decision regarding the elector’s intention to establish a new principle or primary home. In the final analysis, the intention of the individual is of prime importance in resolving issues of legal residency for voting purposes in Colorado. See Gordon V. Blackburn 618P.2dn668(Colo.1980). In the Gordon case, the electors had established their principal or primary home and had lived in the municipality for over eight and a half years. They considered themselves residents and were treated as such; their business operation and self-employment was located within the limits of the municipality, their marital status was continuous and localized in that municipality, and they owned and continued to own real property within the municipality. Further, they did not evidence an intent or plan to establish an official place of residence elsewhere, albeit that they did not own, rent, or occupy any dwelling house within the city limits at the time of the election. In the instant case, the only difference from Gordon is that the Respondents own, and have occupied or do occupy, residences in both the Denver and Arapahoe Counties, but in all other respects, the Gordon case and cases cited therein, provide a reasonable path to follow in the analysis of this disputed voter registration.
In view of all the evidence presented at hearing, in accord with the applicable statutes regarding a determination of residency, and pursuant to the guidance of the precedential case law in Colorado, the Hearing Officer finds and determines that there is not “sufficient evidence” proffered by the Petitioner to support the basic allegations of non-residency in the Challenge. Accordingly, the Respondents’ names may not be cancelled from the city and county of Denver registration book. However, I do find there is, “some evidence,” albeit not sufficient evidence under a preponderance of evidence standard, to support the allegations in the challenge, therefore, pursuant to CRS § 1-9-101(b)(II), the registration record of the elector may be marked with the word “Inactive,” and the procedures of CRS § 1-2-605 in regard to registered electors who fail to vote in a general election shall apply.
In making this finding and determination, the Hearing Officer notes that even under the intent standard established in the Gordon case supra, that the ultimate test for legal residence of an elector is to be the objective, principal, or primary home test. Thus, the Petitioner’s evidence, and indeed the Respondent’s acknowledgement, that he had purchased and resided with his family in a home in Arapahoe County, and his e-mail, directed to the Petitioner, dated January 5, 2011, indicating that although it had been his intent to maintain his legal residence at the South Gaylord address in Denver to be in compliance with specific legal requirements and case law regarding residency for voter registration, that he had purchased a home in unincorporated Arapahoe County and, at least as of January 5, 2011, had decided that he and his wife would be changing their permanent residency and voter registration to their new home in Arapahoe County. This evidence, together with the documentation submitted by the Petitioner and the admission by the Respondent, Ryan Call, that he had purchased the residence in Arapahoe County and he and his family were living at that location, provided some evidence of a change of legal residence; however, insufficient evidence, in view of the Respondents’ conflicting evidence of their intent to remain residential registered electors in Denver, to demonstrate that the Respondents had an intent to establish a legal residence other than the residence they had occupied for considerable time as registered voters at the Gaylord Street address in Denver, Colorado. Therefore, the Hearing Officer is compelled, in conformity with the applicable statute, to reject any finding that there exists “no evidence” to support the allegations; although, he is equally compelled in this case to find that there is not sufficient evidence to support the allegations of the challenge.
Therefore, following the guidance of the statute, the Hearing Officer, on behalf of the Denver Clerk and Recorder, adopts the finding determination provided for in CRS § 1-9-101(1)(b)(II) which shall constitute final administrative determination in this matter.
February 10, 2011
Hearing Officer_____________________
John P. DiFalco