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Colorado > Colorado Electoral Code > Certificates of Election And Election Contests

1-11-209. Depositions in contests for state senator or representative

Overview of Statute

Depositions to be used at trial can be taken with reasonable diligence after the statement or answer served on the respective parties. Either party may exercise the right to take depositions before the joining of issue in relation to any matter in controversy, but failing to take the depositions before the joining of issue cannot be held as laches against either party in the contest. Adverse parties may also rebut a deposition by deposing any witness present at the prior deposition, which the officer will submit in the same manner as the original deposition. With respect to costs, the parties taking the depositions will be responsible for the cost to take and return the deposition.

Depositions typically must be taken at least three days prior to the meeting of the next general assembly, however either house of the general assembly may extend the time to take depositions, send for and examine any witness, take any testimony for use at trial, or order a recount of ballots for any county or precinct upon an adequate showing of good cause. Additionally, parties may take depositions at the same time, but neither party may take depositions at more than one place at the same time. Lastly, any county or district judge in the judicial district where a contested election case arises may issue subpoenas, compel the attendance of witnesses, take depositions, and certify depositions according to the court rules.

Statute

(1) Either party, at the time the statement or answer is served, may serve upon the adverse party reasonable notice of taking depositions to be used at trial of the contest for state senator or state representative. Immediately after joining issue of fact, both parties shall proceed with all reasonable diligence to take any depositions they may desire to use at trial. Nothing in this subsection (1) shall abridge the right of either party to take depositions upon reasonable notice prior to the joining of issue in relation to any of the matters in controversy; but a failure to take depositions before the joining of issue shall not be held as laches against either party to the contest.

(2) If, upon the completion of taking any depositions, the adverse party has any witnesses present before the officer taking the depositions whose testimony the adverse party may wish to use in rebuttal of the depositions, the adverse party may proceed immediately to take the deposition of the rebutting witness before the officer, upon giving written notice to the other party or the other party’s attorney. The officer shall attach to the depositions a copy of the notice with proof of service and shall return the rebuttal depositions in the same manner provided for returning depositions in chief. The party taking a deposition shall pay all costs of taking the deposition and its return.

(3) The time for taking depositions to be used at trial of the contest shall expire three days prior to the meeting of the next general assembly. Both parties may take depositions at the same time, but neither party shall take depositions at more than one place at the same time. Nothing in this subsection (3) shall be construed to abridge the right of either house of the general assembly, upon good cause shown, to extend the time to take depositions, or to send for and examine any witness, or to take any testimony it may desire to use on trial of the contest, or to order a recount of the ballots if there has been an error in surveying the returns in any county or precinct.

(4) Any county or district judge of or for a county in the judicial district where a contested election case arises may issue subpoenas, compel the attendance of witnesses, take depositions, and certify depositions according to the rules of the district court.

(5) The officer before whom the depositions are taken, upon the completion thereof, shall certify the depositions immediately, shall enclose the depositions, and the notices for taking the depositions, and the proofs of service of the notices in an envelope, and shall seal and transmit the envelope by mail or in person by a sworn officer, to the secretary of state, with an endorsement showing the nature of the papers, the names of the contesting parties, and the house of the general assembly before which the contest is to be tried.

 

Source: L. 92: Entire article R&RE, p. 789, § 14, effective January 1, 1993.

 

Editor’s note: This section is similar to former § 1-11-207 as it existed prior to 1992.

Cross references: For depositions, see C.R.C.P. 26 to 37; for causes of contest, see § 1-11-201; for venue, see C.R.C.P. 98 and Crim. P. 18; for contested elections, see C.R.C.P. 100.

Definition [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.

Definition [Ballot]

(a) A federal write-in absentee ballot;

(b) A ballot specifically prepared or distributed for use by a covered voter in accordance with this article; or

(c) A ballot cast by a covered voter in accordance with this article.

(2) “Covered voter” means:

(a) A uniformed-service voter defined in paragraph (a) of subsection (9) of this section who is a resident of this state but who is absent from this state by reason of active duty and who otherwise satisfies this state’s voter eligibility requirements;

(b) An overseas voter who, before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements;

(c) An overseas voter who, before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements; or

(d) An overseas voter who was born outside the United States, is not described in paragraph (b) or (c) of this subsection (2), and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements if the last place where a parent, legal guardian, spouse, or civil union partner of the voter was, or under this article would have been, eligible to vote before leaving the United States is within this state.

C.R.S. § 1-8.3-102.

Definition [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.

Definition [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.

Definition [Secretary]

The Colorado secretary of state. C.R.S. § 1-1.5-102.