CO Code § 1-1-113 (2021)
2021 Colorado Code|Title 1 - Elections|Article 1 - Elections Generally|Part 1 - Definitions and General Provisions|§ 1-1-113. Neglect of Duty and Wrongful Acts - Procedures for Adjudication of Controversies - Review by Supreme Court

  When any controversy arises between any official charged with any duty or function under this code and any candidate, or any officers or representatives of a political party, or any persons who have made nominations or when any eligible elector files a verified petition in a district court of competent jurisdiction alleging that a person charged with a duty under this code has committed or is about to commit a breach or neglect of duty or other wrongful act, after notice to the official which includes an opportunity to be heard, upon a finding of good cause, the district court shall issue an order requiring substantial compliance with the provisions of this code. The order shall require the person charged to forthwith perform the duty or to desist from the wrongful act or to forthwith show cause why the order should not be obeyed. The burden of proof is on the petitioner.    Repealed.    The proceedings may be reviewed and finally adjudicated by the supreme court of this state, if either party makes application to the supreme court within three days after the district court proceedings are terminated, unless the supreme court, in its discretion, declines jurisdiction of the case. If the supreme court declines to review the proceedings, the decision of the district court shall be final and not subject to further appellate review.    Except as otherwise provided in this part 1, the procedure specified in this section shall be the exclusive method for the adjudication of controversies arising from a breach or neglect of duty or other wrongful act that occurs prior to the day of an election.    Notwithstanding any other provision of law, the procedures specified in section 1-1.5-105 shall constitute the exclusive administrative remedy for a complaint arising under Title III of the federal “Help America Vote Act of 2002”, Pub.L. 107-252.     History. Source: L. 92: Entire article R&RE, p. 635, § 1, effective January 1, 1993. L. 93: (1) amended, p. 1396, § 8, effective July 1. L. 94: (2) amended and (4) added, p. 1151, § 4, effective July 1. L. 2003: (5) added, p. 2065, § 6, effective May 22. L. 2007: (3) amended, p. 1968, § 3, effective August 3. L. 2010: (2) repealed, (HB 10-1291), ch. 325, p. 1506, § 2, effective July 1.    Editor's note:   This section is similar to former § 1-1-111 as it existed prior to 1992.   Cross references:    For violation of duty and penalty therefor, see § 1-13-107.    For the “Help America Vote Act of 2002”, see Pub.L. 107-252, codified at 42 U.S.C. sec. 15301 et seq.     ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. DISTRICT COURT TO DECIDE.    III. REVIEW BY SUPREME COURT ANDCOURT OF APPEALS.     I. GENERAL CONSIDERATION.   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Authority of courts to determine election controversies when no candidate declared duly elected. State constitutional provisions and statutes permitting general assembly to judge election of members does not limit subject matter jurisdiction of district court to hear controversies related to elections where no candidate is yet declared duly elected by secretary of state. Meyer v. Lamm, 846 P.2d 862 (Colo. 1993) (decided under former § 1-1-112 ).   This section does not purport to impose any duty or function upon any election official, but rather provides a procedural vehicle for the adjudication of controversies arising from a breach or neglect of duty or other wrongful act that occurs prior to the day of an election. More particularly, it requires the district court, upon a finding of good cause, to issue an order requiring substantial compliance with the provisions of the election code whenever any eligible elector files a verified petition alleging that a person charged with a duty under the code has committed a breach or neglect of that duty or other wrongful act. Carson v. Reiner, 2016 CO 38, 370 P.3d 1137.   Conflict with § 1-4-501 (3) . Because this section permits the adjudication of controversies arising from any wrongful act that occurs prior to the day of an election, without further limitation, while § 1-4-501 (3) provides a specific challenge to the qualification of a candidate if made by filing a verified petition with the district court within five days of his or her certification to the ballot, the two provisions very much appear to be in conflict. Because effect can reasonably be given to both provisions and because this section is not the later adopted of the two, the legislative prescription for this conflict is to give effect to § 1-4-501 (3) as the special, or more specific, provision. Carson v. Reiner, 2016 CO 38, 370 P.3d 1137.   This section stands in relation to § 1-4-501 (3) as a general to a special, or specific, provision. Carson v. Reiner, 2016 CO 38, 370 P.3d 1137.   This section does not permit a challenge to an election official's certification of a candidate to the ballot, solely on the basis of the certified candidate's qualification, once the § 1-4-501 (3) period for challenging the qualification of the candidate directly has expired. Carson v. Reiner, 2016 CO 38, 370 P.3d 1137.   Claims brought pursuant to this section are limited to those alleging a breach or neglect of duty or other wrongful act under the Uniform Election Code of 1992 (Code). Thus, claims brought under 42 U.S.C. § 1983 cannot be brought in proceedings under this section. Where subsection (1) allows a claim to be brought against an election official who has allegedly committed a “breach or neglect of duty or other wrongful act” under “this code”, it is referring to a breach of duty or other wrongful action under the Code, not a § 1983 claim. Colorado courts remain entirely open for the adjudication of § 1983 claims, including on an expedited basis if a preliminary injunction is sought, and therefore § 1-1-113 does not run afoul of the supremacy clause. Frazier v. Williams, 2017 CO 85, 401 P.3d 541 (overruling Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006)); Williams v. Libertarian Party of Colo., 2017 CO 86, 401 P.3d 558 (overruling Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006)).   When a § 1983 claim is brought in a proceeding under this section, the district court should dismiss the claim without prejudice with leave to refile it in a separate action, which should then be assigned, where possible, to the same judge. Frazier v. Williams, 2017 CO 85, 401 P.3d 541 (overruling Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006)).   A 42 U.S.C. § 1983 claim of deprivation of rights, privileges, or immunities secured by the federal constitution or federal law may be litigated under this section if the claim arises out of a common nucleus of operative facts as the state law claims. Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), overruled in Frazier v. Williams, 2017 CO 85, 401 P.3d 541.   Colorado law permits the joinder of a 42 U.S.C. § 1983 claim with a claim under this section. Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), overruled in Frazier v. Williams, 2017 CO 85, 401 P.3d 541.   Attorney fees should be awarded to a plaintiff pursuant to 42 U.S.C. § 1988 if the plaintiff's victory on a nonconstitutional claim prevents the court from reaching a substantial constitutional claim that arises out of a common nucleus of operative facts. Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), overruled on other grounds in Frazier v. Williams, 2017 CO 85, 401 P.3d 541.   Plaintiffs made a substantial constitutional claim, which is a claim that is not wholly frivolous and does not conflict with any U.S. supreme court decisions, when they alleged that a state statute that requires unaffiliated candidates for the office of president and vice president of the United States to file candidate statements of intent nearly two months before statutory filing deadlines for affiliated candidates placed unequal burdens on unaffiliated candidates in violation of the first and fourteenth amendments to the U.S. constitution.Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), overruled on other grounds in Frazier v. Williams, 2017 CO 85, 401 P.3d 541.   II. DISTRICT COURT TO DECIDE.   The court is given jurisdiction for the purpose of enforcing a substantial compliance with the provisions of election act by the parties to such controversy. People ex rel. McGaffey v. Dist. Court, 23 Colo. 150 , 46 P. 681 (1896).   And provision for adjudication of controversies, being remedial in character, must be liberally construed in order that its purpose may be given effect. People v. Dist. Court, 23 Colo. 150 , 46 P. 681 (1896).   The district court has jurisdiction to order the recognition by a state central committee of one who is admittedly a member of that body. People ex rel. Vick Roy v. Republican State Cent. Comm., 75 Colo. 312 , 226 P. 656 (1924).   And it has jurisdiction to determine authority of the secretary of state. Where the secretary of state assumes jurisdiction, deciding a dispute, and the defeated party applies to the district court for relief, challenging the authority of the secretary to determine the controversy as well as the correctness of his decision upon the merits, the district court has jurisdiction to entertain the cause and determine the matter. People ex rel. McGaffey v. Dist. Court, 23 Colo. 150 , 46 P. 681 (1896).   The provision for adjudication of controversies contemplates the taking of evidence where the issues require it. Leighton v. Bates, 24 Colo. 303 , 50 P. 856, 50 P. 858 (1897).   III. REVIEW BY SUPREME COURT AND COURT OF APPEALS.    The provision for adjudication of controversies does not confer original jurisdiction on the supreme court. Leighton v. Bates, 24 Colo. 303 , 50 P. 856, 50 P. 858 (1897).   Supreme court may in its discretion accept or reject an appeal with respect to nominations of candidates, and if it elects to accept the appeal, it may proceed in a summary way to dispose of it. In re Weber, 186 Colo. 61 , 525 P.2d 465 (1974).   Court of appeals has jurisdiction to hear an appeal of a district court's denial of attorney fees under 42 U.S.C. § 1988. A judgment on the substantive merits of an action is separate from a judgment resolving a request for attorney fees. In addition, the § 1988 claim was not part of the summary proceedings pursuant to this section. The exceptions to the court of appeal's jurisdiction contained in this section and § 13-4-102 (1)(g) therefore are not applicable to the appeal. Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), overruled on other grounds in Frazier v. Williams, 2017 CO 85, 401 P.3d 541.   In expedited appeal under subsection (3), the supreme court concluded that the secretary of state may not certify incumbent U.S. representative to the 2018 Republican primary ballot. Kuhn v. Williams, 2018 CO 30M, 418 P.3d 478.   Section allows a protestor to challenge the underlying validity of the information on which the secretary of state legitimately relied in verifying a major-party candidate petition. In a proceeding brought under this section, a protestor may present additional evidence as to a circulator's compliance with the strictures of § 1-4-905 . In other words, the protestors had a narrow opportunity to probe whether a particular circulator really was a Colorado resident when he acted as a circulator for the campaign of an incumbent U.S. representative. Kuhn v. Williams, 2018 CO 30M, 418 P.3d 478 .