April 23, 2017

Colorado Court of Appeals: Trustee’s Loss in Recall Election Did Not Arise from Town’s Misconduct

The Colorado Court of Appeals issued its opinion in Jones v. Samora on Thursday, December 30, 2016.

Summary Judgment—Identity of Persons Casting Votes—Colo. Const. Art. VII, § 8—Standing—§ 1983 Claim—Law of the Case—Issue Preclusion.

Residents of the Town of Center (Town) organized a recall election to oust the trustees, including Jones, from their positions. Voters either turned in mail ballots or voted in person. All of the ballots had numbered stubs and, based on these stubs, the town clerk, Samora, had a list that showed which voter had received which ballot. He used the list to ensure that each voter had voted only once. To ensure voter secrecy, the stubs were removed before they were tallied. These procedures were used for all in-person ballots that were cast. But the procedures were not followed at all times for the mail-in ballots. At some point, the election judges realized that they had not removed the stubs from some ballots, but decided to continue tallying the ballots before removing the stubs. Because they could see the identifying numbers on the stubs when tallying the votes, the judges could have determined the identity of the voters by consulting the voter list.

Jones and Citizen Center, a nonprofit, filed this lawsuit including five state law claims and a § 1983 claim. The state law claims were severed from the § 1983 claim. A bench trial was held on the state law claims. The court found that the procedural errors were unintentional, that no voter identity had been disclosed when tallying the ballots, and that the election was fundamentally untainted by any substantive intentional error of procedure. However, the court concluded that tallying the mail-in ballots had violated Article VII, § 8 of the Colorado Constitution. Even though no voter identities had been revealed, the opportunity to discover them had been available and this violated Colorado’s constitutional and statutory guarantee of a secret ballot. The court voided the results of the recall election and ordered the Town to hold a new recall election within 30 to 90 days.

The Town appealed. The Colorado Supreme Court reversed the trial court’s decision and reinstated the recall election results, concluding that the stubs were on the ballots because a statute required them to be there; there was no violation of the Colorado Constitution; and the trial court erred in concluding that the election had been void.

The § 1983 claim was still at issue. Following the Supreme Court’s decision, both sides moved for summary judgment. The court granted the Town’s motion and denied plaintiffs’ motion.

On appeal, the Town asserted that plaintiffs did not have standing to file the case. As to the trustee, the Colorado Court of Appeals held that because the loss of the trustee’s position did not arise from the Town’s conduct, the trustee could not satisfy the injury requirement. In addition, because the trustee suffered no injury, he did not have third-party standing, and because he failed to allege his tax dollars were used in an unconstitutional manner, he did not have taxpayer standing.

Although the trustee lacked standing, the court found that Citizen Center had organizational standing because one or more of its members had voted in the recall election by mail-in ballot, and therefore their right to cast a secret ballot had allegedly been violated; the interests Citizen Center sought to protect were germane to its purpose; and the claim asserted and relief requested did not require that individual members of the organization participate in the case.

Regarding its summary judgment motion, the Town asserted that the law of the case barred Citizen Center’s claim. Here, the state law claims proceeding and the § 1983 proceeding were severed and were not the same case. In addition, the law of the case doctrine applies only to a court’s decisions of law, not to its resolution of factual questions. Whether the Town actually violated voter secrecy rights is a question of fact. Thus the law of the case doctrine does not apply.

The Town also asserted that issue preclusion barred Citizen Center’s claim. Issue preclusion bars relitigating factual matters that a court has previously litigated and decided. Here, the factual issue in the state proceeding was identical to the § 1983 factual issue: whether the mail-in voters’ secrecy rights were actually violated. Citizen Center was involved in the state claims case and that case ended in a final judgment. Citizen Center also had a full and fair opportunity to litigate the factual issue of whether the mail-in voters’ secrecy rights were violated. Therefore, issue preclusion barred Citizen Center from relitigating whether the mail-in voters’ secrecy rights were violated.

On the § 1983 claim, the court concluded that there was no genuine issue as to any material fact and the trial court properly granted the Town’s motion for summary judgment. Further, applying the issue preclusion doctrine, the election judges did not infringe on Citizen Center’s members rights, and the Town did not deprive those members of their constitutional rights.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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