Opinions of the Colorado Supreme Court are available to the 1 public and can be accessed through the Judicial Branch’s homepage at 2 http://www.courts.state.co.us

. Opinions are also posted on the 3 Colorado Bar Association ’s homepage at http://www.cobar.org

. 4 5 ADVANCE SHEET HEADNOTE 6 September 11, 2017 7 8 20 17 CO 86 9 10 No. 16SC145, Williams v. Libertarian P arty — Election Proceedings Under Section 11 1
- 1
- 113
— 42 U.S.C. § 1983
— Supremacy Clause
. 12 13 As held today in Frazier v. Willaims , 2017 CO 85, ___ P.3d ___, a 42 U.S.C. § 1983 14 (2012) claim may not be brought in a proceeding under § 1

- 1

- 113, C.R.S. (2017). 15
161 The Supreme Court of the State of Colorado 2 2 East 14 th Avenue • Denver, Colorado 8020 3 3
2017 CO 86 4 Supreme Court Case No. 16SC145 5 Certiorari to the Colorado Court of Appeals 6 Court of Appeals Case No. 14CA2063 7 Petitioner : 8 Wayne Williams, in his official capacity as Colorado Secretary of State , 9

v. 10 Respondents : 11 Libertarian Party of Colorado and Gordon Roy Butt

. 12 Judgment Reversed 13 en banc 14 September 11, 2017 15 16 Attorneys for Petitioner : 17 Cynthia H. Coffman, Attorney General 18 Frederick R. Yarger, Solicitor General 19 Amy Colony, Senior Assistant Attorney General 20 Matthew D. Grove, Assistant Attorney General 21 Grant T. Sullivan, Assistant Solicitor General 22 Denver, Colorado 23 24 25 Attorneys for Respondent s : 26 The M atthew C. Ferguson Law Firm, P.C. 27 Matthew C. Ferguson 28 Michelle K. Schindler 29 Aspen, Colorado 30 31 32 33 34 JUSTICE EID delivered the Opinion of the Court. 35 JUSTICE GABRIEL dissents, and JUSTICE HOOD joins the dissent. 362

¶1 Gordon Roy Butt sought to run for state senate for the Libertarian Party in a 2013
recall election. The Secretary of State denied his request to circulate a petition because his request came after the deadline as then set by section 1

- 12

- 117(1 ). See Ch. 170,

sec. 8, § 1

- 12

- 117(1), 2014 Colo. Sess. Laws 621

. Butt and the Libertarian Party (collectively , “the Party”) sued the Secretary under § 1

- 1

- 113, C.R.S. (201 7 ), alleging that
the statutory deadline conflicted with the Co lorado Constitution. With in the section
1

- 1

- 113 proceeding, the Party also raised a claim for relief under 42 U.S.C. § 1983 (2012) , and an accompanying request for an award of attorney ’s fees under 42 U.S.C. § 1988 (2012) , alleging , inter alia, a First Amendment violation

. The district court found for the Party on the state constitutional claim , and did not address the section 1983 claim . After
this court denied appellate review on a split vote , further proceedings occurred before the district court. The case was appealed once again, and this court again denied
review.
¶2 Nine months later, the Party returned to district court seeking summary judgment on its section 1983 claim and, in the alternative, an attorney ’s fee award under section 1988 on the ground that the Party had been successful on its state constitutional claim. The district court denied the Party’s request for attorney ’s fees, finding that it had not pursued fees in a timely ma nn er. It also dismissed the section 1983 claim as
moot due to the General Assembly ’s 2014 amendment of section 1

- 12

- 117(1)

. ¶3 On appeal, the court of appe als reversed the district court

. Libertarian Party of
Colorado v. Williams , No. 14CA2063 (Colo. App. Jan. 14, 2016). Citing Brown v.
Davidson , 192 P.3d 415 (Colo. App. 2006) , i t noted that section 1983 claims may be3

brought in a section 1

- 1

- 113 proceeding

. Williams , ¶ 11. The court then held that , although the Party’s section 1983 claim was moot, the request for attorney’s fees under
section 1988 was appropriate so long as the section 1983 claim was substantial,
stemmed from the same nucleus of operative facts as the state constitutional claim, and was reasonably related to the plaintiff’s ultimate success. Id. at ¶ 29. The court remanded the case to the district court to apply this test to determine whether the Party
was entitled to fees. Id. at ¶¶ 31

– 32.
¶4 We granted t he Secretary ’s request for certiorari review and now reverse the court of appeals

. 1 For reasons discus sed at length in our companion case, Frazier v.
Williams , 2017 CO 85 , _

_ _ P.3d_

_ _, also announced today, we hold that a section 1983 claim may not be brought in a section 1

- 1

- 113 proceeding

. The language of that section repeatedly refers to “this code,” meaning the Colorado Election Code . Therefore, a
section 1

- 1

- 113 proceeding is limited to allegations of a “ breach or neglect of duty or other wrongful act ” under the election code itself. § 1

- 1

- 113(1). We emphasize that Colorado courts remain entirely open for adjudication of section 1983 claims, including on an expedited basis if a preliminary injunction is sought, and that therefore section

1 We granted review of the following issues: 1. Whether Brown v. Davidson , 192 P.3d 415 (Colo. App. 2006), which held that a claim asserted under 42 U.S.C. § 1983 may be joined with a petition filed under section 1

- 1

- 113, C.R.S. (2016), should be overturned

. 2. Whether, when the supreme court denies review under section 1

- 1

- 113(3), that denial marks the conclusion of the proceedings, thereby triggering the deadline for attorney fees applications under C.R.C.P. 121, section 1

- 22. 3. Whether a plaintiff who prevails on a state claim is entitled to attorney fees under 42 U.S.C. § 1988 for an un ad judicated 42 U.S.C § 1983 claim

.4

1

- 1

- 113 does not run afoul of the Supremacy Clause. To the extent that Brown v.
Davidson , 192 P.3d 415 (Colo. A pp. 2006) , holds to the contrary, it is overruled. Accordingly, we reverse and remand the case for further proceedings.


### I. ¶5 This case arose out of legislative recall elections in 2013. Butt requested approval from the Secretary to circulate a petition t o qualify as a successo r candidate on the
Libertarian P arty ticket. The Secretary denied the request because it was submitted after the statutory deadline that was then set forth in section 1

- 12

- 117(1) ( “N omination petitions . . . shall be filed no later than ten calendar days prior to the date for holding the [recall] election

. . . . ”).
¶6 T he Party filed a petition for relief under section 1

- 1

- 113, arguing that the statutory deadline then set by section 1

- 12

- 117(1) and enforced by the Secretary conflicted with Article XXI, section 3 of the Colorado Constitution , which would have allowed Butt more time to file his petition

. 2 See Colo. Const. art. XXI, § 3 ( “[P]etitions for nomination to office are required by law to be filed not les s than 15 days before such
recall election

. . . . ”). Within the section 1

- 1

- 113 proceeding , the Party also brought a
section 1983 claim alleging , inter alia, a First Amendment violation, and requested attorney ’s fees pursuant to 42 U.S.C. section 1988

. ¶7 After bifurcating the case pursuant to C.R.C.P. 42(b), the district court concluded that the statute conflicted with the Colorado Constitution. It did not address the Party’s

2 No one has challenge d Butt’s joinder of a state constitutional claim under section 1

- 1

- 113, so we do not ad dress that issue in this cas e
.5

section 1983 claim. We declined review on an evenly divided vote. F urther
proc eedings occurred before the district court and t he case was appealed once again,
and this court denied review.
¶8 T he Party returned to the district court nine months later seeking summary judgment on the section 1983 claim and, in the alternative, an attorne y ’s fee award under section 1988 on the ground that the Party had been successful on its state constitutional claim. The district court denied the Party’s request for attorney ’s fees, finding that it had not pursued fees in a timely ma nn er. It also dismi ssed the section 1983 claim as moot due to the General Assembly’s amendment of section 1

- 12

- 117(1) that remedied any conflict between the statute and the Colorado Constitution

. ¶9 On appeal, the court of appeals determined that under Brown v. Davidson , the
P arty was permitted to bring its section 1983 claim under section 1

- 1

- 113

. Williams , ¶ 11

. While it agreed that the section 1983 claim was moot, it found that attorney ’s fees were nonetheless appropriate so long as the section 1983 claim was substantial, stemmed from the same nucleus of operative facts a s the state claim, and was reasonably related to the plaintiff’s ultimate success. Id. at ¶ 29. The court remanded the case to the district court to apply this test to determine whether the Party was
enti tled to fees. Id. at ¶¶ 31

– 32

. 3
¶10 We granted the Secretary ’s petition for certiorari review. We now reverse the court of appeals and remand the case for further proceedings.

3 The court of appeals also determined that the district court’s decision as to fees was a reviewable final judgment, i d. at ¶ 13 , a conclusion that the Secretary does not challenge before this court.6 II.
¶11 Here, the Secretary contends that section 1983 claims cannot be b rought in a section 1

- 1

- 113 proceeding

. F or the reasons set forth in more detail in our lead companion case Frazier v. Williams , 2017 CO 85 , _

_ _ P.3d _

_ _ , we agree
. The language
of section 1

- 1

- 113 limits claims that may be brought to those alleging a breach or neglect of duty or other wrongful act under “this code,” meaning the Colorado Election Code. Colorado courts remain entirely open for adjudication of section 1983 claims, including on an expedited basis if a preliminary injunction is sought, and that therefore section
1

- 1

- 113 does not run afoul of the Supremacy Clause. To the extent that Brown v.
Davidson holds to the contrary, it is overruled.
¶12 Because we find that section 1983 claims may not be brought in a section 1

- 1

- 113 proceedi ng, we need not consider the remaining two issues upon which we granted certiorari, as both assume that, if a section 1983 claim may be brought in section 1

- 1

- 113 proceeding, the court of appeals erred in permitting fees under section 1988. Accordingly, w e reverse and remand the case for further proceedings consistent with this opinion

. JUSTICE GABRIEL dissents, and JUSTICE HOOD joins the dissent.1

JUSTICE GABRIEL, dissenting.
¶13 Relying on its opinion in Frazier v. Williams , 2017 CO 85,

___ P. 3 d ___, which we also decide today, the majority concludes that ( 1 ) claims brought pursuant to section
1

- 1

- 113 are limited to those alleging a breach or neglect of duty or other wrongful act under the Colorado Election Code and therefore, (2) sectio n 1983 claims may not be joined in a section 1

- 1

- 113 proceeding. See maj. op. ¶¶ 10, 18. For the reasons set forth in my dissent in Frazier , ¶¶ 29

- 60 , I respectfully disagree. Instead, I would conclude that the plain language of section 1

- 1

- 113, the app licable civil procedure rules, and sound public policy support allowing parties like petitioners here to join section 1983
claims with claims under section 1

- 1

- 113.
¶14 Accordingly, I respectfully dissent. I am authorized to state that JUSTICE HOOD joins in this dissent.