Marks v. Gessler

Decision Date01 August 2013
Docket NumberCourt of Appeals No. 12CA0549
Citation2013 COA 115,350 P.3d 883
PartiesMarilyn MARKS, Plaintiff–Appellee and Cross–Appellant, v. Scott GESSLER, in his official capacity as Colorado Secretary of State; Colorado Department of State ; and Judd Choate, in his official capacity as a person representing or acting on behalf of the Colorado Department of State, Defendants–Appellants and Cross–Appellees.
CourtColorado Court of Appeals

McGuire Baines, LLC, Robert A. McGuire, Jeffrey D. Baines, Denver, Colorado, for PlaintiffAppellee and Cross–Appellant

John W. Suthers, Attorney General, Leeann Morrill, Assistant Attorney General, Denver, Colorado, for DefendantsAppellants and Cross–Appellees



¶ 1 In this case involving the filing of a citizen complaint under the Colorado Help America Vote Act, sections 1–1.5–101 to –106, C.R.S.2012 (state HAVA), and its federal counterpart, the Help America Vote Act, 42 U.S.C. §§ 15301 –15545 (2006) (federal HAVA), defendants, Scott Gessler, in his official capacity as the Colorado Secretary of State (the secretary), the Colorado Department of State (CDOS), and Judd Choate, in his official capacity as a person representing or acting on behalf of the CDOS, appeal the district court's judgment in favor of plaintiff, Marilyn Marks. In that judgment the court held that defendants had erred in determining that Marks lacked standing to file an administrative complaint. In so concluding, the court held that a portion of the state HAVA dealing with standing, section 1–1.5–105(2)(b), C.R.S.2012, conflicted with the federal HAVA standing provision contained in 42 U.S.C. § 15512 (2006), and that the latter provision must control. The court also concluded that defendants had erred in failing to hold a hearing on Marks's complaint.

¶ 2 Marks cross-appeals, contending that the court erred in dismissing her 42 U.S.C. § 1983 (2006) claim against the secretary and Choate under C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be granted. We affirm.

I. Background

¶ 3 Congress passed the federal HAVA in 2002 to improve the administration of federal elections. Title III of the federal HAVA establishes certain minimum requirements and authorizes financial assistance to states to use for numerous election-related reasons, including improvement of election administration and election systems, education of voters, training of election officials, and promoting accessibility to elections systems. See 42 U.S.C. § 15301 (2006).

¶ 4 Colorado adopted the state HAVA in 2003 to implement the changes required by the federal HAVA, to obtain federal funds, and to provide the CDOS with sufficient authority to ensure Colorado's compliance with the federal HAVA. § 1–1.5–101(2), C.R.S.2012. In doing so, the General Assembly declared that [i]n Colorado, the secretary of state is the chief state election official and, in that capacity, is charged by HAVA and existing state statutory provisions with responsibility for supervising the conduct of elections and for enforcing and implementing the provisions of HAVA and of this code.” § 1–1.5–101(1)(h), C.R.S.2012.

¶ 5 Marks filed an administrative complaint with the secretary, alleging her belief that violations of Title III of the federal HAVA had occurred or were occurring in the 2010 general election conducted in Saguache County, Colorado. Without holding a hearing, defendants dismissed Marks's complaint for lack of standing. Defendants explained the decision in a letter to Marks, stating that Marks had not been personally aggrieved by or personally witnessed a violation of Title III of the federal HAVA, as required under section 1–1.5–105(2)(b), to file a state HAVA administrative complaint.

¶ 6 Marks then brought this action in the Denver District Court to obtain judicial review of the dismissal of her state HAVA administrative complaint. Her district court complaint set forth three claims for relief. The first claim sought judicial review, pursuant to sections 1–1.5–105(4), C.R.S.2012, and 24–4–106, C.R.S.2012, of the dismissal of her complaint. She contended that defendants' dismissal of her state HAVA administrative complaint based on standing grounds was erroneous. The second claim, brought under 42 U.S.C. § 1983, alleged that defendants, in their official capacities, had deprived Marks of a federal right to file a HAVA complaint, see 42 U.S.C. § 15512(a)(2)(B) (2006), and a federal right to receive a hearing on the record in connection with her HAVA complaint, see 42 U.S.C. § 15512(a)(2)(E) (2006). Marks's third claim requested the district court to determine, pursuant to section 1–1.5–103, C.R.S.2012, that a conflict existed between section 1–1.5–105(2)(b) and 42 U.S.C. § 15512(a)(2)(B) relative to standing requirements, and that the federal standard was controlling.

¶ 7 As relief, Marks sought an order reversing the secretary's dismissal of her administrative complaint and remanding the matter to the CDOS with instructions to provide her with a hearing on the record in accordance with section 1–1.5–105(2)(g), C.R.S.2012, or before a mutually agreed upon arbitrator in accordance with section 1–1.5–105(2)(j), C.R.S.2012. Marks also sought an order determining that a conflict exists between section 1–1.5–105(2)(b) and 42 U.S.C. § 15512(a)(2)(B). In addition, she sought an order directing the secretary to comply with the requirements of section 1–1.5–103 by submitting a report to the General Assembly explaining the conflict between the two statutes and suggesting language to resolve the conflict. Finally, Marks sought an award of her costs and expenses for bringing the district court action, including her reasonable attorney fees as authorized by 42 U.S.C. §§ 1983 & 1988 (2006).

¶ 8 Defendants moved to dismiss all three claims under C.R.C.P. 12(b)(1) and (5). Specifically, defendants asserted that Marks lacked standing and had failed to state a claim for relief, and that the court lacked subject matter jurisdiction to declare the existence of a conflict between the state HAVA and the federal HAVA.

¶ 9 After Marks filed a response in opposition and defendants replied, the court issued an order on October 24, 2011, entitled “Order Denying Defendants' Motion to Dismiss (original order). The original order dismissed Marks's 42 U.S.C. § 1983 claim for failure to state a claim and denied defendants' motion to dismiss the first and third claims. However, it also stated that defendants had erred in dismissing Marks's complaint on standing grounds and that she was entitled to a hearing.

¶ 10 Following the issuance of the original order, defendants filed an answer to Marks's complaint. Thereafter, the parties exchanged C.R.C.P. 26(a)(1) initial disclosures and requested a trial setting conference.

¶ 11 On February 2, 2012, the district court, acting sua sponte, issued an order entitled “Addendum to Court's Order of October 24, 2011 (addendum). The addendum stated that the court was clarifying its original order and determining that Marks “is entitled to a hearing on the issues she alleged in the [administrative] complaint.” The court cited City & County of Denver v. Board of Assessment Appeals, 947 P.2d 1373, 1380 (Colo.1997) (a court reviewing under the Administrative Procedure Act has plenary authority to review and remand a case for further proceedings if it concludes that the agency has acted contrary to law), for its authority to act. The addendum concluded by stating that the “matter is remanded to the appropriate agency under the State Department and/or the Elections Division of the Colorado Department of State to conduct a hearing regarding Plaintiff's allegations in her [state HAVA administrative] complaint....”

¶ 12 Defendants then filed a motion for reconsideration, but, before the court could rule on that motion, they filed a notice of appeal with this court, and this appeal followed.

II. Final Appealable Order

¶ 13 We first address Marks's contention that we lack jurisdiction to hear defendants' appeal. Specifically, she argues that the district court's original order, not the addendum, was a final appealable order because it disposed of all three claims for relief raised in her complaint. According to Marks, the addendum merely clarified rather than modified the original order and, thus, had no legal effect on the parties' rights. Consequently, because defendants did not file a timely appeal from the original order, Marks argues that we must dismiss the appeal for lack of jurisdiction. We disagree.

A. Law

¶ 14 “The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review.” In re Marriage of Buck, 60 P.3d 788, 789 (Colo.App.2002). At the time this appeal was filed, C.A.R. 4(a) required that a notice of appeal in a civil case be filed “within forty-five days of the date of the entry of the judgment, decree, or order from which the party appeals.” The period begins to run when a “final judgment” is entered. Goodwin v. Homeland Cent. Ins. Co., 172 P.3d 938, 943 (Colo.App.2007).

¶ 15 Our jurisdiction is limited to the review of final orders and judgments. § 13–4–102(1), C.R.S.2012; C.A.R. 1(a) ; Arevalo v. Colo. Dep't of Human Servs., 72 P.3d 436, 437 (Colo.App.2003). An order is final if it ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceeding. In addition, a final order is one that prevents further proceedings. Luster v. Brinkman, 250 P.3d 664, 666 (Colo.App.2010) (citing Scott v. Scott, 136 P.3d 892, 895 (Colo.2006) ); see Cyr v. Dist. Court, 685 P.2d 769, 771 (Colo.1984). “In determining whether an order is final, we look to the legal effect of the order rather than its form.”

Luster, 250 P.3d at 666 (citing Levine v. Empire Sav. & Loan Ass'n, 192 Colo. 188, 189, 557 P.2d 386, 387 (1976) ).

¶ 16 “Generally, the denial of a motion to dismiss...

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