1-11-214. Trial and appeals in contests for county and nonpartisan elections
Overview of Statute
The court must set a trial date between ten to twenty days after the issue is joined. A party must give four days notice in order to take depositions with an authorized officer that will later be used in trial. Testimony at trial can either be oral or by these depositions. The district court’s rules and practice will thereafter be used in any trial involving an election contest. The appeals process to the Colorado Supreme Court will also function as they would in all other cases tried before a district court. When appealing a judgment, the appealing party must submit all relevant records and bonds within twenty days of the date after the judgment is entered. The Colorado Supreme Court must move any election contest to the front of the calendar and render a decision as quickly as possible.
(1) Immediately after the issue is joined, the district judge shall set the date for trial, which shall be not more than twenty days nor less than ten days after the issue was joined. The trial shall take precedence over all other business of the court. Any depositions to be used in the trial may be taken upon four days’ notice before any officer authorized to take depositions. The testimony at trial may be made orally or by depositions. The district judge shall cause the testimony to be taken in full and filed in the cause. The trial shall be conducted according to district court rules and practice.
(2) An appeal from the judgment may be taken to the supreme court, in the same manner as other cases tried in the district court. The appeal shall be filed, the bill of exceptions settled, the bond for costs executed and filed, and the record transmitted to the clerk of the supreme court within twenty days from the date the judgment is entered. The supreme court shall advance the case to the head of the calendar and shall hear and determine the matter with all reasonable dispatch.
Source: L. 92: Entire article R&RE, p. 792, § 14, effective January 1, 1993.
Cross references: For depositions, see C.R.C.P. 26 to 37; for trial of contested elections, see C.R.C.P. 100.
I. General Consideration.
I. GENERAL CONSIDERATION.
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
Purpose of fixing day for trial. This section requiring a judge, in an election contest case, to fix a day for trial not more than twenty days after the issue is joined is for the purpose of enabling a speedy trial and is for the benefit of both parties. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
But this requirement may be waived by both parties consenting to fixing the date of trial at a later date. Nicholls v. Barrick, 27 Colo. 432, 62 P. 202 (1900).
However, there is no specific provision for a change of the place of trial. Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).
Nor is there a provision for an application for calling in another judge to try the case upon the ground of prejudice or partiality of the presiding judge. Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).
And so, in the absence of any such authority, the rules of civil procedure should be followed. Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).
Under the rules, a party has not the absolute right to have his cause tried by a judge other than the regularly elected and presiding judge of the court on the alleged ground of the latter’s prejudice. The matter lies in the sound discretion of the judge to whom the application is made, and his decision is not reviewable unless an abuse of discretion is shown. Doll v. Stewart, 30 Colo. 320, 70 P. 326 (1902); People ex rel. Lindsley v. District Court, 30 Colo. 488, 71 P. 388 (1903); Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).
Furthermore, an election contest may be tried notwithstanding a change of judges after its commencement, though the successor must conduct the trial de novo. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890); Nordloh v. Packard, 45 Colo. 515, 101 P. 787 (1909).
And by the words “other cases” must be understood ordinary civil actions. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).
But it is not “according to the rules and practice” in the trial of ordinary civil actions for one judge to hear the evidence, or a part thereof, orally, and then for another judge to render a finding and judgment upon such evidence, however perfectly the same may have been preserved. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).
The object of requiring testimony to be preserved is for convenient reference afterwards, or for use on appeal, or as a deposition in case a second trial should be had when witnesses should have died or removed from the county. Clanton v. Ryan, 14 Colo. 419, 24 P. 258 (1890).
Where an election contest is dismissed by contestant, over the objection of the contestee, after answer and replication are filed, such dismissal is not a bar to another contest depending on the same facts. Freas v. Engelbrecht, 3 Colo. 377 (1877); Hallack v. Loft, 19 Colo. 74, 34 P. 568 (1893); Martin v. McCarthy, 3 Colo. App. 37, 32 P. 551 (1893); Denver R. G. R. R. v. Iles, 25 Colo. 19, 53 P. 222 (1898); Bd. of Comm’rs v. Schradsky, 31 Colo. 178, 71 P. 1104 (1903); Vigil v. Garcia, 36 Colo. 430, 87 P. 543 (1906).
Limitation upon appeals not repealed by provision for review. Provision that writs of error (now writs on appeal) to any inferior tribunal shall be the only method for review by the supreme court of any action or proceeding, and repealing all statutes providing any other method or procedure for review, did not repeal the 20-day limitation upon appeals of election contest decisions. Sitler v. Brians, 126 Colo. 370, 251 P.2d 319 (1952).
Hence, the attempted review of an action to contest election not docketed in the supreme court within 20 days from the date of judgment is not sought in apt time and a motion to dismiss should be granted. Sitler v. Brians, 126 Colo. 370, 251 P.2d 319 (1952).
Moreover, an application to advance a cause to the head of the calendar in the supreme court will not be considered until the abstract and all the briefs have been filed in accordance with the rule of court and the case is ready for submission. Dickinson v. Freed, 24 Colo. 483, 52 P. 209 (1898).
And objections of contestor not presented by the verified statement of contest cannot be considered on review. Israel v. Wood, 98 Colo. 495, 56 P.2d 1324 (1936).
When dismissal judgment must be affirmed. If the dismissal of an election contest is proper upon any ground, whether or not the trial court relied thereon, the judgment must be affirmed. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).
And the reason assigned by the trial court may in itself be insufficient to warrant the judgment, but if upon other grounds the judgment is correct, it will not be reversed because of faulty reasoning. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (1951).
Thus if a statement of contest is insufficient to justify further proceedings, then the judgment of the court dismissing the action should be affirmed, notwithstanding the fact that no motion was presented in the trial court challenging the sufficiency of said statement and no specification of points with relation thereto appears in the record. Graham v. Swift, 123 Colo. 309, 228 P.2d 969 (195l).
1. 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.
2. 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.
Case Name: Nordloh v. Packard
Citation: 101 P. 787 (Colo. 1909)
Case PDF: Nordloh v. Packard
Case Summary: Holding that once judge recused himself for bias and told the parties that he was finding a replacement, it was error for him to try the case.
Case Name: Clanton v. Ryan
Citation: 24 P. 258 (Colo. 1890)
Case PDF: Clanton v. Ryan
Case Summary: Holding that contesting candidate failed to offer any legitimate proof of fraud and corruption; in addition, trial court was correct to exclude evidence of ballots cast in certain precincts presented to contradict and dispute the returns, because there was no proof such evidence would have caused the trial court to open the ballot boxes.
Case Name: Freas v. Engelbrecht
Citation: 3 Colo. 377 (1877)
Case PDF: Freas v. Engelbrecht
Case Summary: Holding that dismissal of appeal did not constitute affirmance of the judgment, so creditor could only recover nominal damages.
Case Name: Hallack v. Loft
Citation: 34 P. 568 (Colo. 1893)
Case PDF: Hallack v. Loft
Case Summary: Holding that there was no showing that administrate consented in-person to dismissal, so judgment of dismissal was not a judgment on the merits; therefore, administrator could initiate another action for the same cause.
Case Name: Martin v. McCarthy
Citation: 32 P. 551 (Colo. App. 1892)
Case PDF: Martin v. McCarthy
Case Summary: Holding that voluntary dismissal was not a final disposition of the dispute between the parties, so another action on the same facts was not barred.
Case Name: Denver R. G. R. R. v. Iles
Citation: 53 P. 222 (Colo. 1898)
Case PDF: Denver R. G. R. R. v. Iles
Case Summary: Holding that a judgment of nonsuit was not a bar to a contract action and that lower court erred in instructing the jury as to negligence.
Case Name: Bd. of Comm’rs v. Schradsky
Citation: 71 P. 1104 (Colo. 1903)
Case PDF: Bd. of Comm'rs v. Schradsky
Case Summary: Holding that pendency of a prior action in another jurisdiction did not bar subsequent action in present jurisdiction; the two suits could be based on the same cause of action and between the same parties.
Case Name: Vigil v. Garcia
Citation: 87 P. 543 (Colo. 1906)
Case PDF: Vigil v. Garcia
Case Summary: Affirming decision of trial court entering judgment for the contestant after lower court found that the contestant received 23 illegal votes and contestee gained one after a recount.
Case Name: Sitler v. Brians
Citation: 251 P.2d 319 (Colo. 1952)
Case Summary: Granting motion to dismiss when appeal was not filed within the proper time; action to contest election was not docketed in the court within 20 days within 20 days of the date of judgment, which was required by statute.
Case Name: Dickinson v. Freed
Citation: 55 P. 812 (Colo. 1898)
Case Summary: Denying application to advance cause, because neither the abstract of the record nor any briefs had been filed; therefore, application was premature.
Case Name: Israel v. Wood
Citation: 56 P.2d 1324 (Colo. 1936)
Case URL: https://perma.cc/AY3J-SNPK
Case Summary: Affirming a judgment related to improper voting, despite potential mootness problems caused by the completion of the term of office and holding that certain votes were properly cast in the contested election.
Case Name: Graham v. Swift
Citation: 123 Colo. 309, 228 P.2d 969 (1951)
Case Summary: Upholding a decision that a contestee was properly elected to serve in the office of sheriff, as initially indicated by the official canvass of votes. Contestor failed to provide sufficient evidence to support its claim that unqualified electors participated in the election.
Case Name: Doll v. Stewart
Citation: 70 P. 326 (Colo. 1902)
Case PDF: Doll v. Stewart
Case Summary: Holding that trial judge could conduct a second trial even though he ruled against the plaintiff in the first trial.
Case Name: People ex rel. Lindsley v. District Court
Citation: 71 P. 388 (Colo. 1903)
Case Summary: Holding that district court has jurisdiction to decide whether transfer of a case was proper and to rule on that motion.