1-1-113. Neglect of duty and wrongful acts – procedures for adjudication of controversies – review by supreme court
(1) 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.
(3) 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.
(4) 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.
(5) 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.
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2003: (5) added, p. 2065, § 6, effective May 22.L. 2007: (3) amended, p. 1968, § 3, effective August 3.L. 2010: (2) repealed, (HB 10-1291), ch. 325, p. 1506, § 2, effective July 1.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: (1) For violation of duty and penalty therefor, see § 1-13-107.
(2) For the “Help America Vote Act of 2002”, see Pub.L. 107-252, codified at 42 U.S.C. sec. 15301 et seq.
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).
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).
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).
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).
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).
- Election Day
- Election Offenses & Judicial Proceedings
- Regulation & Duties of Election Officials
- Regulation of Polling Places
Section 1-1-103 (3), C.R.S., provides that “Substantial compliance with the provisions or intent of this code shall be all that is required for the proper conduct of an election to which this code applies. “
This section provides an expedited procedure for resolving controversies involving the duties of election officials that arise leading up to an election.
1. Definition for United States
Used in the territorial sense, means the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.
2. Definition for Political party
Any group of registered electors who, by petition or assembly, nominate candidates for the official general election ballot. “Political party” includes affiliated party organizations at the state, county, and election district levels, and all such affiliates are considered to be a single entity for the purposes of this article, except as otherwise provided in section 7. Section 2(13) of article XXVIII of the state constitution.
3. Definition for State
A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.
4. Definition for Person
Any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons. Section 2(11) of article XXVIII of the state constitution.
5. Definition for Election
Any election under the “Uniform Election Code of 1992” or the “Colorado Municipal Election Code of 1965”, article 10 of title 31, C.R.S. C.R.S. § 1-7.5-103.
6. Definition for Secretary
The Colorado secretary of state. C.R.S. § 1-1.5-102.
7. Definition for Committee
The committee of signers described in section 1-12-108(2). C.R.S. § 1-12-100.5.
8. Definition for Candidate
Any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article. Section 2(2) of article XXVIII of the state constitution.
Case Name: Meyer v. Lamm
Citation: 846 P.2d 862 (Colo. 1993)
Case Summary: Holding that substantial compliance with statutes governing write-in votes was the appropriate standard for a recount; ballots with candidate's surname but no first name, initial, or nickname could be counted; ballot with candidate's surname and incorrect first name or initial could not be counted; and write-in votes for candidate on lines other than those for state representative could not be counted.
Case Name: Brown v. Davidson
Citation: 192 P.3d 415 (Colo. App. 2006)
Case Summary: Holding that § 1983 claim could be asserted in a state-law summary proceeding to obtain a pre-election judicial directive for compliance with the Election Code; Court of Appeals had jurisdiction to review the trial court's refusal to award attorney fees; and candidates' constitutional claims were substantial for purposes of awarding attorney fees.
Case Name: People ex rel. McGaffey v. Dist. Court
Citation: 46 P. 681 (Colo. 1896)
Case PDF: People ex rel. McGaffey v. Dist. Court
Case Summary: Holding that district court had jurisdiction to decide which party was the "genuine" People's Party and to direct the secretary of state to certify only that party's ticket upon official ballots, giving to that ticket the emblem and name of the People's Party.
Case Name: People ex rel. Vick Roy v. Republican State Cent. Comm.
Citation: 226 P. 656 (Colo. 1924)
Case Summary: Holding that district court has jurisdiction to order relator's recognition as a member of the state central committee.
Case Name: Leighton v. Bates
Citation: 50 P. 856 (Colo. 1897)
Case PDF: Leighton v. Bates
Case Summary: Setting aside judgment of dismissal of petitioners' protest against the filing of another certificate of nominations for their party, because the district court refused to hear evidence.
Case Name: In re Weber
Citation: 525 P.2d 465 (Colo. 1974)
Case Summary: Holding that statute prohibiting transfer of party affiliations from without the state does not violate the constitutional rights of free association and right to travel but is a proper exercise of a compelling state interest: reasonable regulation of political party primaries.