Brown v. Davidson, 04CA2455.

Docket NºNo. 04CA2455.
Citation192 P.3d 415
Case DateJune 29, 2006
CourtCourt of Appeals of Colorado
192 P.3d 415
Walter F. BROWN and Mary C. Hollis, Plaintiffs-Appellants,
Donetta DAVIDSON in her official capacity as Colorado Secretary of State, Defendant-Appellee.
No. 04CA2455.
Colorado Court of Appeals, Div. I.
June 29, 2006.

[192 P.3d 416]

Hackstaff Gessler, LLC, Scott E. Gessler, Denver, Colorado, for Plaintiffs-Appellants.

[192 P.3d 417]

John W. Suthers, Attorney General, Maurice Knaizer, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge CRISWELL*.

Plaintiffs, Walter F. Brown and Mary C. Hollis, appeal the trial court's order denying their request for attorney fees under 42 U.S.C. § 1988. We reverse and remand for further proceedings.

In August 2004, plaintiffs filed a complaint and sought a preliminary injunction against former Colorado Secretary of State Donetta Davidson, seeking to be placed on the ballot for the November election as Socialist Party candidates for United States President and Vice President. Plaintiffs' complaint sought relief under 42 U.S.C. § 1983, asserting that Colorado's statute requiring unaffiliated candidates to file a candidate statement 120 days before the general election (nearly two months before any other statutory deadline for presidential candidates) unconstitutionally hindered the ability of Colorado voters to vote for candidates of the Socialist Party and unconstitutionally placed greater burdens on unaffiliated candidates than on major party candidates, minor party candidates, and write-in candidates, in violation of the First and Fourteenth Amendments to the United States Constitution. Their complaint also set forth two state law claims, alleging that defendant improperly calculated filing deadlines under Colorado law and that, even if defendant calculated the deadlines properly, Colorado's substantial compliance test required their filings to be accepted. Plaintiffs requested attorney fees and costs pursuant to § 1988.

In September 2004, a hearing was held pursuant to § 1-1-113, C.R.S.2006, which provides an expedited procedure for controversies arising between an election official and a candidate if the official is alleged to have committed or is about to commit a breach or neglect of duty or other wrongful act. The trial court concluded that, although defendant had properly calculated the filing deadlines, the substantial compliance test of § 1-1-103, C.R.S.2006, mandated acceptance of plaintiffs' filing and their placement on the ballot. The court declined to rule on the constitutional claims brought under § 1983, and it refused to award attorney fees under § 1988.

Both parties filed timely petitions for review with the Colorado Supreme Court pursuant to § 1-1-113. That court denied those petitions without passing on the merits of any issue raised.

Plaintiffs thereafter filed a motion with the trial court to reconsider the denial of attorney fees. Upon reconsideration, the trial court issued a second order ruling that plaintiffs were not entitled to attorney fees under § 1988 because they had failed to raise a substantial constitutional claim. The court explained:

This court is persuaded by the federalism argument in [Gamza v. Aguirre, 619 F.2d 449 (5th Cir.1980), and Gold v. Feinberg, 101 F.3d 796 (2d Cir.1996)]. Specifically, this court finds that the issue raised by plaintiffs was a uniquely state law issue and is not a federal constitutional deprivation. The court does not believe that federal courts should adjudicate all state law election disputes. The court does not find any intentional or purposeful discrimination on the part of defendant Davidson in interpreting the election statutes. Further, the fact that plaintiffs prevailed and will now be on the November ballot highlights the existing state remedy which is both fair and adequate. The court therefore concludes that even though the factual basis for the constitutional claims arose from the same nexus of facts as did the state law claims, the constitutional claims were not substantial under the Gamza and Gold analysis and therefore reaffirms its denial of attorney fees.

Plaintiffs appeal from this order.


Before turning to the merits, we must first address defendant's contention that we do

192 P.3d 418

not have subject matter jurisdiction to hear this appeal. More specifically, defendant contends that, because this action was litigated pursuant to § 1-1-113, it was improper to join a § 1983 claim with it, and in any event, only the supreme court may hear an appeal of the dispute. We reject this contention.

Defendant's assertions are based upon two series of statutes.

First, § 1-1-113(1), C.R.S.2006, provides that, when a candidate alleges that an election official "has committed or is about to commit a breach or neglect of duty or other wrongful act, ... upon a finding of good cause, the district court shall issue an order requiring substantial compliance with the provisions of [the Election Code]."

Section 1-1-113(3), C.R.S.2006, provides that the proceedings in the district court "may be reviewed and finally adjudicated by the supreme court," if a petition for such review is filed "within three days after the district court proceedings are terminated, unless the supreme court, in its discretion, declines jurisdiction of the case" (emphasis added).

Section 1-1-113(4), C.R.S.2006, provides: "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" (emphasis added).

Defendant also relies upon the statute that establishes this court's jurisdiction, § 13-4-102(1)(g), C.R.S.2006, which provides that "[a]ny provision of law to the contrary notwithstanding," this court has "initial jurisdiction over appeals from final judgments of the district courts," except in "[s]ummary proceedings initiated under articles 1 to 13 of title 1" (emphasis added).


We first reject defendant's assertion that these statutes prohibit the joinder of a claim of a constitutional violation under § 1983 with a claim under § 1-1-113 to obtain a judicial directive to comply with the Election Code.

It is clear that constitutional claims may be litigated in an action initiated under § 1-1-113. See, e.g., Colo. Libertarian Party v. Sec'y of State, 817 P.2d 998 (Colo.1991).

It is also clear that § 1983 is a proper vehicle for obtaining relief against constitutional violations committed in the course of a state election procedure. See, e.g., Baer v. Meyer, 728 F.2d 471 (10th Cir.1984) (in action under § 1983, court declares certain practices of Colorado Secretary of State to be violative of federal constitution).

Further, a claim under § 1983 exists as a "uniquely federal remedy" that "is to be accorded `a sweep as broad as its language.'" Felder v. Casey, 487 U.S. 131, 139, 108 S.Ct. 2302, 2307, 101 L.Ed.2d 123 (1988)(quoting Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972), and United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966)).

State courts possess concurrent jurisdiction over claims asserted under § 1983. The United States Supreme Court has held that, when a state places procedural barriers that deny or limit the remedy available under § 1983, those barriers must give way or risk being preempted. Felder v. Casey, supra, 487 U.S. at 139, 108 S.Ct. at 2307.

We note here, and explain in greater detail below, that § 1983 and its companion statute, § 1988, provide for the award of attorney fees to a plaintiff where an action under § 1983 is joined with a state claim based on the same nucleus of facts, even though the plaintiff prevails only on the asserted state claim. Maher v. Gagne, 448 U.S. 122, 133 n. 5, 100 S.Ct. 2570, 2576, 65 L.Ed.2d 653 (1980). Hence, unless state law permits the joinder of a § 1983 claim with a claim under § 1-1-113, that state law will prohibit a plaintiff from obtaining the relief that these federal statutes provide. Such an interpretation of state law would render it inconsistent with these federal statutes and, to this extent, invalid. See Felder v. Casey, supra; cf. Bd. of County Comm'rs v. Sundheim, 926 P.2d 545 (Colo.1996)(time limits of C.R.C.P. 106(a)(4) cannot be applied to

192 P.3d 419

action under § 1983 to obtain relief from improper quasi-judicial act); Espinoza v. O'Dell, 633 P.2d 455 (Colo.1981)(Colorado's Wrongful Death Act cannot limit damages recoverable under § 1983 for death of father and husband).

In asserting that § 1983 cannot be asserted in a pre-election contest under § 1-1-113, defendant relies upon the opinion in Jones v. Hildebrant, 191 Colo. 1, 550 P.2d 339 (1976), in which the court held that, when a § 1983 claim is joined with a claim under...

To continue reading

Request your trial
5 cases
  • Beaver Creek Prop. Owners Ass'n, Inc. v. Bachelor Gulch Metro. Dist., 10CA1024.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 de dezembro de 2011
    ...merit.” H.R.Rep. No. 94–1558, at 4 n. 7; accord Plott, 938 F.2d at 167–68; accord Deighton, 3 P.3d at 490; see also Brown v. Davidson, 192 P.3d 415, 421–22 (Colo.App.2006) (opining that “[a] constitutional claim is substantial unless it is without merit, wholly frivolous, or barred by prior......
  • Libertarian Party of Colo. v. Williams, Court of Appeals No. 14CA2063
    • United States
    • Colorado Court of Appeals of Colorado
    • 14 de janeiro de 2016
    ...the § 1983 or § 1988 claims.¶ 11 Colorado law permits the joinder of a § 1983 claim with a claim under section 1–1–113. Brown v. Davidson, 192 P.3d 415, 418–19 (Colo.App.2006). However, the Secretary has not cited, nor have we found, any Colorado case holding that when those claims are join......
  • Us Fax Law Center, Inc. v. Henry Schein, No. 08CA0012.
    • United States
    • Colorado Court of Appeals of Colorado
    • 5 de fevereiro de 2009
    ...However, we review de novo any statutory interpretation or legal conclusion that provides a basis for such a fee award. Brown v. Davidson, 192 P.3d 415, 420 III. FLC's Arguments on Appeal FLC argues that the trial court erred in awarding attorney fees under section 13-17-201 because (1) app......
  • Frazier v. Williams, Supreme Court Case No. 16SA230.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 de setembro de 2017
    ...section 1983 may not be brought in summary proceedings under section 1-1-113. The district court disagreed. Relying on Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), and Libertarian Party of Colorado v. Williams, No. 14CA2063, ––– P.3d ––––, 2016 WL 241406 (Colo. App. Jan. 14, 2016), th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT