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SUPREME COURT, STATE OF COLORADO

2 East 14th Avenue


Denver, CO 80203
On Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA0670
SCOTT GESSLER, individually and in his official
capacity as Colorado Secretary of State,
Petitioner,
v.
DAN GROSSMAN, SALLY H. HOPPER, BILL
COURT USE ONLY
PINKHAM, MATT SMITH, and ROSEMARY
MARSHALL, in their official capacities as
Case No.: 2015SC462
members of the Independent Ethics Commission,
and the INDEPENDENT ETHICS COMMISSION,
Respondents.
MICHAEL FRANCISCO, Special Asst. Atty Gen.
MICHAEL R. DAVIS, Special Asst. Atty Gen.
3301 West Clyde Place
Denver, CO 80211
Telephone: 303-325-7843
Email: MLF@MRDLaw.co, MRD@MRDLaw.co
Registration Numbers: 39111, 39788
PETITION FOR WRIT OF CERTIORARI
TO THE COLORADO COURT OF APPEALS

ISSUES PRESENTED
Colorado voters created the Independent Ethics Commission (IEC) to
protect against the potential for interest groups or individuals to buy
access or influence government actors by giving them gifts or other
things of value. In the years following Amendment 41s passage,
however, the IEC has expanded its mandate by decreeing itself the
authority to oversee almost all aspects of public officials or employees
compliance with any law or regulation, including in this case the use of
discretionary public funds. Also in this case, the IEC provided the
defendant with insufficient pre-hearing notice of the charges against
him and threatened to add additional charges after the hearing.
The questions presented are:
(1)

Does the IEC have jurisdiction under the phrase any


other standards of conduct in Colo. Const. art.
XXIX(5)(1) to penalize any public employee for
violating any Colorado law?

(2)

Is the phrase other standards of conduct in Colo.


Const. art. XXIX(5)(1) unconstitutionally vague?

(3)

Does procedural due process require pre-hearing notice


to explain how laws are violated, or may notice simply
list laws and reserve the right to add charges after the
hearing?

OPINIONS BELOW
The court of appeals opinion is attached as Appendix A and can be
found at Gessler v. Grossman, __ P.3d __, No. 2015 COA 62 (Colo. App.,
May 7, 2015). The district court order and IEC order are attached as
Appendix B and C, respectively.
JURISDICTION
The court of appeals issued its opinion on May 7, 2015. No petition
for rehearing was filed. This Court has granted extensions of time to
seek certiorari through August 10, 2015.
STATEMENT OF THE CASE
Amendment 41 proposed a new article (XXIX) to the Colorado
Constitution entitled Ethics in Government. The ballot title described
the Amendment as prohibiting persons who are professionally involved
with government activities from soliciting or accepting certain
monetary or in-kind gifts, prohibiting lobbyists from giving anything
of value, prohibiting revolving-door representations for two years,
establishing penalties, and setting up a commission. The Amendment
applies broadly to all state government employees, all county and
municipal government officials, and lobbyists, government contractors,
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public officers and members of the General Assembly. See Article


XXIX(2).
Colorados four statewide elected officers have long received a modest
appropriation from the Elected state officials discretionary funds
statute to use as they see fit for the pursuit of official business.
C.R.S. 24-9-105. The funds are subject to annual appropriation,
legislative review and audit, as well as review from the State
Controller. Colorado Secretaries of State have used the funds for a wide
variety of activities, including cocktail receptions for county clerks,
personal clothing, overseas travel, and taking the amount as W-2
income, all without incident. [AR p.1070].
This case arises out of the IECs imposition of a penalty on the
Secretary of State for how he chose to use portions of the discretionary
fund. In 2012, the Secretary gave a presentation on election law at a
national election law CLE conference hosted by the Republican
National Lawyers Association (and accredited by this Courts CLE
Board). The Secretary also drove his personal vehicle around the state
for official business. He received reimbursement of $1278.90 for the
CLE conference and $117.99 for mileage from the statutory
discretionary fund.
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From these mundane facts, Colorado Ethics Watch filed both a


criminal complaint and a complaint with the IEC. The Denver District
Attorney declined to file charges, but the IEC engaged in a vigorous
investigation, which culminated in an 11-hour hearing. The Secretary
testified extensively at the hearing about the election law conference,
his presentation, and how the legal issues related to his duty as the
Chief Election Officer for Colorado, all without rebuttal. The IEC
ultimately found the Secretary violated the discretionary fund statute
and imposed a penalty of $1,514.88. The Secretary appealed to the
District Court in Denver and then the Colorado Court of Appeals.
In a published opinion, the Court of Appeals ratified the IECs
unbounded view of its own jurisdiction, holding that the Commission is
empowered to investigate and enforce private complaints regarding any
law[] already in existence, 2015 COA 62, 16, and upheld the penalty.
This petition followed.

REASONS TO GRANT THE WRIT

I.

THE EXPANSION OF THE IECS JURISDICTION TO ENCOMPASS


EVERY STATE LAW OR RULE PRESENTS A NOVEL QUESTION OF
SUBSTANCE THIS COURT SHOULD REVIEW.

In a case of first impression, the Court of Appeals endorsed an


expansive theory of commission jurisdiction that must be reviewed to
protect the tens of thousands of government employees whose every
action may now be subject to scrutiny by the IEC. This substantial
jurisdictional question has not yet been decided by this Court.
A.

The fears of IEC overreach that this Court did not reach in
Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008),
are now ripe for review.
Shortly after the voters of Colorado passed Amendment 41 this Court

took up a case concerned with ways the IEC, once constituted, might act
to chill the free speech of government employees. Developmental
Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). The petition there raised
several constitutional objections to the IECs potential jurisdiction over
the gift ban provisions in Article XXIX. The Court did not reach these
critical issues, however, because the case was not ripe:
[I]n actuality, no enforcement or threat of enforcement of the
gift bans has occurred. It is the Commission that will
implement the Amendment and develop rules to guide the
enforcement of the gift bans. Perhaps, in the future, there
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may be truth to the concerns expressed by Plaintiffs, but


that is for the Commission to consider as it enforces the
Amendment, not for this court at this time.
Id. at 534-35. The time has now come. The IEC continues to exercise
jurisdiction in a growing number of non-gift ban cases. This represents
profound mission creep. Relying on a little-noticed phrase in Article
XXIX, other standards of conduct and reporting requirements as
provided by law, the IEC claims it can penalize any government
employee for any conduct that is referenced in any Colorado statute.
This jurisdictional expansion has reached its apex in this case.
The fears in Developmental Pathways have proven justified. The
IECs assertion of unlimited jurisdiction and the Court of Appeals
ratification of that view amplifies the concerns that this Court was
jurisdictionally prevented from addressing in Developmental Pathways.
Presented with a well-developed record in a fully justiciable case, this
Court now has a sound vehicle to review novel questions of importance
that have so far evaded review.

B.

The voters intended the IEC to focus on Article XXIXs gift


ban and influence peddling provisions; not to broadly
police all laws as other standards of conduct.
The IECs practice of asserting jurisdiction over every conceivable

law under other standards of conduct goes well beyond the intent of
the Colorado voters who created the IEC. The commission was always
understood to have jurisdiction over the carefully meted gift limitations
in Article XXIX(3). See generally 2006 Bluebook, p.9-11 (Amendment
41 expands the current prohibitions to cover other gifts and things.);
Davidson v. Sandstrom, 83 P.3d 648, 655 (Colo. 2004) (looking to
Bluebook for voter intent in case of ambiguity). Importantly, the
General Assembly endorsed this view in the session immediately
following the adoption of Article XXIX. See Zaner v. City of Brighton,
899 P.2d 263, 267 (Colo. App. 1994), citing Denver v. Board of Commrs,
77 P. 858, 861 (Colo. 1904) (While it is not conclusive with the courts,
nevertheless a contemporaneous legislative construction of a statute or
constitutional provision is persuasive.).
The IECs enabling statute requires the commission [to] dismiss as
frivolous any complaint that fails to allege that [a covered individual]
has accepted or received any gift or other thing of value for private gain
or personal financial gain. C.R.S. 24-18.5-101(5)(a). The definitions of
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private gain and personal financial gain make clear the General
Assemblys view that Article XXIX was focused on influence peddling:
Private gain or personal financial gain means any money,
forbearance, forgiveness of indebtedness, gift, or other thing of value
given or offered by a person seeking to influence an official act C.R.S.
24-18.5-101(5)(b)(II) (emphasis added). Thus, a covered gift must come
from someone outside government, seeking to influence government
with that gift. By way of contrast, moneys appropriated through the
legislative process, coming from government, and directed for a
particular government use, are not a thing of value coming from
someone outside government.
As the Secretary argued below, the IECs asserted basis for
jurisdiction in this case, other standards of conduct and reporting
requirements as provided by law, is best interpreted as providing the
General Assembly with the ability to carefully and prospectively expand
the mission of the IEC by providing by law for specific provisions to be
enforced by the IEC. The IEC has consistently refused to offer any
limiting interpretation; claiming instead that any law or regulation falls
within its purview. This troubling jurisdictional claim has never been
tested or verified in court until now. This Court should grant
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certiorari to consider whether the IECs jurisdiction extends beyond the


gift ban contained in Article XXIX.
C.

Without review, the IEC will continue to act under the


theory that other standards of conduct provides
unbounded jurisdiction.
In the wake of the rulings below, the IEC has no functional

jurisdictional limits. The District Court and Court of Appeals both


affirmed the IECs broad theory of jurisdiction, whereby the IEC
exercises review over such minutiae as whether receipts returned for
mileage reimbursement by a government employee were timely (an
actual basis for imposing a penalty against the Secretary in this case).
The District Court, for example, admitted that the other standards of
conduct wording appears vague, but it went on to dismiss the
Secretarys concerns because the term other standards is qualified by
the words provided by law, and thus the IEC can only prosecute
public officers who have violated applicable legal standards. App. B, 3.
This limiting phrase provides no limit any law can easily qualify.
Unable to defend the District Courts tautological theory, the IEC
relies on ipse dixit. Laws proclaimed by the IEC to fall within
standards of conduct thereby fall within the IECs jurisdiction. A

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partial list of other standards of conduct that the IEC has ruled upon
demonstrates the extraordinary breadth of its claim:
Subject

Law / Rule

IEC Action

Personnel Board Rules

4 CCR 801, Rule 1-11

(Compl. 08-01);

First Degree Official


Misconduct

C.R.S. 18-8-404

(Compl. 08-01)

Second Degree Official


Misconduct

C.R.S. 18-8-405

(Compl. 08-01)

Election Offenses; Violation


of Duty

C.R.S. 1-13-107

(Compl. 08-01)

Public Official Disclosure


Law; Disclosure--Contents

C.R.S. 24-6-202

(AO 09-06)

Public Official Disclosure


C.R.S. 24-6-203
Law; Reporting by
incumbents and elected
candidates--gifts, honoraria,
and other benefits

(AO 10-18);

Governor-Elect--Transition
to New Administration

C.R.S. 24-8-101

(AO 10-18);

Code of Ethics

C.R.S. 24-18-101 to
113

(AO 09-06)

Public Trust; Breach of


Fiduciary Duty

C.R.S. 24-18-103

(AO 11-11); This


case

Rules of conduct for all


public officers, members of
the general assembly, local
government officials, and

C.R.S. 24-18-104

(AO 09-06)

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employees
Ethical principles for public
officers, local government
officials, and employees

C.R.S. 24-18-105(2),
(3)

E.g. (Compl. 106)

Rules of conduct for public


C.R.S. 24-18-108(2)(d) (AO 11-11)
officers and state employees
Rules of conduct for local
government officials and
employees

C.R.S. 24-18-109

E.g. (Compl. 1103)

Proscribed Acts Related to


Contracts; Interests in
Contracts

C.R.S. 24-18-201

E.g. (LR 10-06)

State Personnel System


Act; Prohibited Activities of
Employees

C.R.S. 24-50-117

(Compl. 08-01)

Discretionary Fund

C.R.S. 24-9-105

This case

State Fiscal Rules

1 CCR 101 et seq.

This case

Embezzlement of Public
Property

C.R.S. 18-8-407

Abuse of Public Records

C.R.S. 18-8-114

This case

Control System to Be
Maintained

C.R.S. 24-17-102(1),
(26)

This case

This case

See [AR p.624-25]. The only apparent limit on what constitutes other
standards of conduct is the creativity of those who file complaints with
the IEC.

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The Court of Appeals opinion did nothing to cabin the IECs theory of
jurisdiction. Similar to the District Court, the opinion interprets as
provided by law to mean simply laws already in existence. 2015 COA
62, 16. If not addressed by this Court, the IEC will have free rein to
hear any and all complaints brought before it as a standard of
conduct. Attempts by the accused employees or officials to have
complaints dismissed will, no doubt, be met with appeals to the Gessler
v. Grossman opinion as proof that the IEC has unlimited jurisdiction.
D.

The IECs claim of jurisdiction over the discretionary fund


statute proves the dangers of unchecked IEC jurisdiction.
The IECs claim to have jurisdiction in this case demonstrates the

problems with allowing the IEC to operate under the no-limits theory of
jurisdiction.
1.

The IEC should not be given jurisdiction over


compensation from the discretionary fund.

Under Article XXIX, the IEC cannot police the compensation of


public officials or any other state employee. Article XXIX(1)(d) (other
than compensation provided by law). The discretionary fund is
compensation. All of Title 24 Article 9 concerns compensation. Yet,
despite the fact that compensation is beyond the purview of the IEC, it

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deemed compliance with the discretionary fund statute to fall within


the other standards of conduct language of Article XXIX.
Interpreting Article XXIX as encompassing the discretionary fund
statute not only exceeds the gift-ban mandate already discussed; it also
runs counter to Amendment 41s express goal of ensuring that specific
standards will be available to guide [public officials] conduct. Article
XXIX(1)(e). The IEC wrongly substituted its own judgment for that of
the Secretary, who is given legally conclusive judgment in the
discretionary fund statute. In addition, there are multiple, longstanding
levels of oversight for the use of public funds, including annual
appropriation, legislative audit, and ultimately grand jury actions.
C.R.S. 16-5-205.5(5)(a)-(d) (grand jury authority oversight for public
funds). The Secretarys use of public funds was thoroughly overseen
(including by a grand jury that cleared his use of the funds). The IEC
thus, without legal warrant, substituted its own judgment and
oversight for these processes.
If the IEC can quibble with the details of how a $5,000 appropriation
of public funds are expended, there is nothing to stop it from sitting in
judgment over every expenditure of the more than $25,000,000,000

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annually appropriated in Colorado. The authority to judge the drop


entails the authority to judge the entire bucket.
2.

The IECs own decisions based on other


standards of conduct jurisdiction are
irreconcilable.

The facts of this case mirror those the IEC considered in Advisory
Opinions 14-10 and 14-13, in which the IEC advised the Secretary and
Deputy Secretary of State that attending the 2014 RNLA was entirely
ethical. In those later actions the IEC officially affirmed the value of the
RNLA national election law conference specifically for the Secretary of
State:
Among other things, the Secretary of State is charged by statute
with the duty to enforce the provisions of Colorados elections
code, supervise the conduct of congressional vacancies and state
wide ballot issues in Colorado, to serve as the chief state election
official under the federal law Help America Vote Act of 2002, to
coordinate Colorados responsibilities under the federal National
Voter Registration Act of 2002, to promulgate rules for the proper
administration and enforcement of Colorados election laws and to
review practices and procedures of county clerk and recorders and
election officials in the conduct of congressional vacancies and the
registration of electors in Colorado. 1-1-107, C.R.S.
AO 14-13.

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There is no justification for finding the Secretarys attendance at


the 2012 RNLA unethical, while almost simultaneously declaring his
attendance at the 2014 RNLA ethical. The inconsistent conclusions
stand as proof that the IEC cannot reliably and consistently enforce
other standards beyond the intended areas of the gift ban.
3.

The IECs mishandling of the Secretarys mileage


reimbursement highlights the risk of broad IEC
jurisdiction.

The Secretarys use of discretionary fund dollars to be reimbursed for


official state travel cannot, as a matter of law, be unethical. The
Secretary saw fit to use $117.99 of the $5,000 discretionary fund for this
undeniably legitimate purpose. The IEC had no legal basis to substitute
its own judgment on this matter.
According to the IEC, the mileage request was originally made
without any documentation or detail of expenses and was thus not in
pursuance of official business but was personal in nature. [CF p.880].
But the IEC conceded the Secretary traveled hundreds of miles on
official business, without previous reimbursement. It also conceded
the Secretary subsequently submitted a memorandum reflecting the
miles driven in support of his request for the $117.99 (the memorandum

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reflected $616 of unreimbursed miles driven). The Colorado State


Controller even testified that receipts were not strictly required. The
IEC refused to consider the documentation as relevant, a refusal upheld
below. 2015 COA 62, 47-50. A mere failure to provide receipts at the
time of request was simply declared unethical, without any reference to
law.
II.

THE IEC HAS ACTED IN VIOLATION OF THE CONSTITUTION.


There are two serious constitutional infirmities with the IECs

jurisdictional claim and conduct below that provide substantial


questions not yet decided by this Court and that call out for supervisory
review. In addition, the IECs inability to act within constitutional
constraints calls into question its capability to exercise jurisdiction over
a broad reading of other standards of conduct.
A.

The IECs broad interpretation of other standards of


conduct is unconstitutionally vague.
The IEC has successfully claimed jurisdiction over any law, under

the guise of other standards of conduct in Article XXIX(5)(1). This


interpretation makes the provision facially, unconstitutionally vague.
The Supreme Court has long warned that [v]ague laws will trap the
innocent by not offering fair warning. Grayned v. City of Rockford, 408
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U.S. 104 (1972). Critically, to prevent arbitrary and discriminatory


enforcement, laws must provide explicit standards for those who apply
them. Id. But under the IECs unbounded interpretation of other
standards of conduct, it is impossible for anyone to know what the
standards are that must be followed at the cost of an individualized
double penalty. This constitutional infirmity can and should be avoided
by adopting a judicially imposed limiting interpretation to the IECs
jurisdiction.
B.

The IEC violated the Secretarys Procedural Due Process


Rights.
In this case, the IEC operated on a trial-first, law-later system. First,

despite multiple requests from the Secretary, the IEC simply refused to
explain the legal theory or charges being faced prior to the hearing. The
Secretary received only a skeletal notice, aptly described by the District
Court as notice of only facts. App. B, 6. Procedural due process
requires more from pre-hearing notice than a bare listing of laws, like
the skeletal listing provided by the IEC in this case.
Second, the IEC reserve[d] the right to consider additional
standards of conduct and/or reporting requirements, depending upon
the evidence presented, and the arguments made, at the hearing in this
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matter. [AR p.000937] This is plainly unconstitutional. See, e.g., In re


Ruffalo, 390 U.S. 544, 551 (1968) (rejecting after-the-fact charges as due
process violation). Nobody can properly defend against the unknown; for
each statement or fact could be used against the accused in
unpredictable ways. The Secretarys defense was prejudiced by this
constitutional violation.
These procedural due process violations so far deviated from bedrock
due process right that this Court should exercise its power of
supervisory review.
III. EXPANDING THE IECS JURISDICTION TO COVER ANY LAW OR
REGULATION UNDER OTHER STANDARDS OF CONDUCT
THREATENS THE RIGHTS OF ALL GOVERNMENT SERVANTS, NOT
JUST THE SECRETARY.
Without review, the IEC will continue to operate as though it has
jurisdiction over any conceivable transgression of a statute or
regulation. This has harmed the Secretary in this case, and it raises the
specter of an unaccountable commission capable of similarly
overreaching for complaints lodged against any of the more than 32,000
state employees and thousands of local government officials.
Simply put, if the IEC can second-guess discretionary expenditures
under the discretionary fund, then there is no statute beyond its reach.
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The IECs core theory is that the Secretarys conduct violated the
discretionary fund because his choice of how to appropriate state
money, as he sees fit, did not satisfy the IECs judgment of the
appropriation statutes purpose. That logic applies to all appropriations,
especially the many appropriations that are not by their terms
discretionary.
The potential for abuse and discriminatory enforcement due to
vague, ill-defined jurisdiction that the Court foresaw in Developmental
Pathways has come to fruition. The IECs action under other standards
of conduct has been self-contradictory. There is no reasonable way to
square the IECs imposition of a double penalty against the Secretary
for attending the 2012 RNLA, because it was not in pursuance of
official business, with the IECs advisory opinion declaring the use of
state funds to attend the 2014 RNLA to be ethical. 1 It looks arbitrary
because it is.

Similarly, and just as conflicted, the IEC found the presence of


partisan activity at the 2014 Democratic Governors Association to be
compatible with official business at the very same gathering. See IEC
Compl. 13-11.

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Review is particularly needed because the IEC has no prosecutorial


discretion to decline non-frivolous complaints, increasing the burdens
on citizens if the IEC acts beyond its proper jurisdiction. Article
XXIX(3)(c) (The commission shall conduct an investigation ...)
(emphasis added).
Without this Courts careful consideration of these substantial legal
issues, the IEC may continue to extend its reach beyond the voters
intent to guard against quid pro quo corruption by limiting gifts to
government officials. The sound interpretive limits on other standards
of conduct suggested by the Secretary in this case, and rejected by the
Court of Appeals, will allow the IEC to avoid the constitutional
problems raised herein while restoring the important, limited mission of
the IEC granted by Amendment 41.
Critically, the IECs exercise of authority over other standards will
most often not be subject to judicial review. First, most covered
individuals lack the resources to challenge an IEC imprimatur of ethical
misconduct. Second, the damage to many individuals will be done even
in cases where the IEC fails to reach an adverse decision. Absent a
formal finding, there is no possible judicial review regardless of the
damage inflicted.
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Instead of policing the specific gift-ban provisions at the core of


Article XXIX, the IEC now sits in judgment over any law or regulation
that has arguably been transgressed by a public official or employee, be
they a public university professor, a civil servant working for a state
agency, a municipal council member, a state senator, or the Governor.
Such a jurisdictional expansion warrants this Courts careful review.
CONCLUSION
This Court should grant the writ of certiorari.

Respectfully submitted this 10th day of August, 2015.


MICHAEL FRANCISCO
______/s______________
Michael Francisco, #39111
Special Asst Atty Gen
MRDLaw

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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R.
32, including all formatting requirements set forth in that rule.
Specifically, the undersigned certifies that:
The brief complies with C.A.R. 28(g). Choose one:
It contains 3,794 words.
It does not exceed 30 pages.
The brief does not comply with CAR 28(g) because it exceeds the
word and/or page limit. A motion to accept the over length brief
has been filed contemporaneously with the brief.

MICHAEL FRANCISCO

/s/ Michael Francisco

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CERTIFICATE OF SERVICE

This is to certify that I have duly served the within PETITION FOR WRIT OF
CERTIORARI TO THE COLORADO COURT OF APPEALS upon Respondents,
DAN GROSSMAN, SALLY H. HOPPER, BILL PINKHAM, MATT SMITH, and
ROSEMARY MARSHALL and the INDEPENDENT ETHICS COMMISSION via
email on August 10, 2015.

Michael Francisco _________________

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