SUPREME COURT, STATE OF COLORADO
CASE NO. 00 SA 147
ORIGINAL PROCEEDING PURSUANT TO § 140107(2), C.R.S. (1999)
Appeal from the Ballot Title Setting Board

WILLIAM BERNARD HERPIN, JR.,

Petitioner,

v.

WILLIAM HOBBS, ALAN GILBERT, and CHARLES W. PIKE,

Title Board,

and

JOHN F. HEAD and ARNOLD GROSSMAN,

Respondents.

     COMES NOW Petitioner, William Bernard Herpin, Jr., and opposes Respondents' Motion for Enlargement of Time in Which to File Answer Brief and as grounds therefore, states as follows:

1.     Respondents' Motion requests that they be permitted to answer not only Petitioner's Brief (a relief already granted by the Court, at the request of Respondents) but also to reply to Petitioner's Answer Brief. Respondents are seeking an unfair advantage, and one they do not deserve. Their motion lacks credibility and should be denied, for the reasons set out below.

2.     On or about May 5, 2000, Respondents filed a Motion for a More Definite Statement of Issues Presented with this Court, requesting that the Court order Petitioner file a more specific Petition for Review. In their motion, Respondents complained that Petitioner's Petition did not meet their high standards for initiating proceedings of this type. Respondents said they did not know what Petitioner would argue to this Court, and given that the Court had ordered simultaneous briefing, they would not have a chance to rebut any contentions made by Petitioner.

3.     On or about the same date, Respondents filed substantially identical motions for a more definite statement in two other cases also pending before this Court, requesting review of Respondents' initiative, Case Nos. 00 SA 151 and 00 SA 152.

4.     In response to Respondents' Motion, on or about May 8, 2000, Petitioner herein, who was then acting pro se, filed a Motion for Enlargement of Time in Which to Respond to Respondents' Motion for Definite Statement of Issues Presented, requesting that the Court delay any requirement for a response to Respondents' motion until May 10, 2000, in order for him to complete obtaining counsel.

5.     Respondents filed an objection with this Court to Petitioner's request for a two day window in which to act on obtaining counsel.

6.     Petitioner did not object or otherwise respond to Respondent's request for a more definite statement. Petitioner did obtain counsel, who entered his appearance on May 9, 2000.

7.     By Order on May 9, 2000 this Court ordered that "Upon consideration of the Motion for More Definite Statement of Issues Presented . . . IT IS ORDERED that any party may file an Answer Brief of no more than ten (10) pages within five (5) days of service of the Opening Brief." Substantially identical orders were entered in Case Nos. 00 SA 151 and 00 SA 152 on the same date.

8.     By Order, also dated May 9, 2000, the Court also denied Petitioner's Motion for Enlargement of Time as moot.

9.     Both May 9 Orders entered in this case recite that they were served by the Court on counsel for Respondents.

10.     Mysteriously, counsel for Respondents claim they did not get the Court's May 9 Order in this case, authorizing an Answer brief This claim is not supported by affidavit. For this reason alone, their Motion should be denied.

11.     However, Respondents acknowledged receiving the Courts' substantially identical May 9 Orders regarding an Answer Brief in Case Nos. 00 SA 151 and 00 SA 152. This makes their contention that they were ignorant of their right to file an answer brief even more suspect.

12.     In Respondents John F. Head and Arnold Grossman's Brief in Support of Final Action of State Title Setting Board filed in Case No. 00 SA 151, at page 4, last paragraph, Respondents stated, "The Court set this matter for simultaneous briefing on April 26, 2000. Because Wagoner failed to allege how the single subject requirement was violated, what language in the titles and summary failed to reflect the meaning of the initiative or was misleading or confusing, and what specific deficiencies were contained in the summary's fiscal information, the Proponents petitioned this Court for a more definite statement of issues presented. The Court granted the parties the right to file Answer briefs." Emphasis added.

13.     In Respondents John F. Head and Arnold Grossman 's Brief in Support of Final Action of State Title Setting Board filed in Case No. 00 SA 152, at page 4, last paragraph, Respondents also indicated an awareness that this Court had entered an Order permitting answer briefs.

14.     Respondents' claim that they did not know they could file an Answer brief in this case until they received an answer brief from Petitioner is simply incredible. They requested identical relief in all three cases - a more definite statement from the various Petitioners. They admit in their own opening briefs that in two of the three cases this Court's response was to permit Answer briefs. They provide no explanation about why they did not think that same relief was provided in this case, or why they did not investigate why the Court granted it in those two cases, but not this case.

15.     Counsel for Respondents personally hand delivered Petitioner's Answer Brief to the office of Respondents' counsel at approximately 8:50 A.M. on May 22, 2000, by leaving a copy with their receptionist. An affidavit is attached. Respondents' did not file their motion for enlargement of time until May 24, 2000, two days later. They provide no explanation for this two day delay in acting.

16.     In fact, Petitioner believes that Respondents just want a chance to have the last word - to be able to Answer not only Petitioner's Brief, but Petitioner's Answer brief as well. Indeed, Respondents' Motion says just that. At ¶ 5 of the Motion, Respondents' state: "Fairness also dictates allowing Respondents to file an answer brief on or before May 30 because Petitioner raised therein [sic, apparently referring to Petitioner's Answer Brief] an issue not raised in his original Petition for Review or even his Opening Brief."

17. Respondents took an apparently calculated risk that by feigning ignorance of the right to file an answer brief they would be able to answer all of Petitioner's contentions. They should not be permitted to do so.

     WHEREFORE, Petitioner would request that this Court deny Respondents' Motion for Enlargement of Time in Which to File Answer Brief, that this Court strike any Answer Brief filed by Respondents as out of time, and for such other relief as the Court finds proper.

Respectfully submitted this 26 day of May, 2000:

JAMES 0. BARDWELL

//signed//
James . Bardwell #24466
6000 E. Evans Ave., #1-221
Denver, CO 80222
(303) 758-2200
(303) 759-1642 FAX

Attorney for
     William Bernard Herpin, Jr.

CERTIFICATE OF SERVICE

     I HEREBY CERTIFY that, on this 26 day of May, 2000, I mailed a true and correct copy of the foregoing Petitioner's Objection to Respondents' Motion for Enlargement of Time in Which to File Answer Brief, postage prepaid, addressed to:

Mr. Maurice G. Knaizer, Esq.
Deputy Attorney General
1525 Sherman St., 5th Floor
Denver, CO 80203-1760

Mr. Mark G. Grueskin, Esq.
Edward T. Ramey, Esq.
Blain D. Myhre, Esq.
Isaacson, Rosenbaum, Woods, and Levy
633 17th St., Ste 2200
Denver, CO 80202-3 600

//signed//
James 0. Bardwell

STATE OF COLORADO	)
		)ss.
CITY & COUNTY OF DENVER	)

     I, James 0. Bardwell, being duly sworn, state that I personally hand delivered a copy of Petitioner's Answer Brief to Respondents John H. Head and Arnold Grossman's Brief in case no. 00 SA 147 before the Colorado Supreme Court on May 22, 2000 at 8:50 A.M. (give or take ten minutes) to counsel for Respondents herein by leaving same with the receptionist their offices located at 633 E. 17th Ave., 22nd Floor, Denver, CO.

Subscribed and sworn this 26 day of May, 2000.

//signed//
James 0. Bardwell

     The foregoing was subscribed and sworn to before me this 26 day of May, 2000 by James 0. Bardwell.

     WITNESS MY HAND AND OFFICIAL SEAL.

My Commission Expires: 6-17-02

//signed// Carol E. Harris
Notary Public

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