June 27, 2019

Colorado Court of Appeals: Administrative Procedure Act Applies to Judicial Review of Determination of Secretary of State

The Colorado Court of Appeals issued its opinion in Marks v. Gessler on Thursday, August 1, 2013.

Help America Vote Act—Administrative Complaint—State Administrative Procedure Act—Summary Judgment—Standing—42 USC § 1983.

In this case involving the filing of a citizen complaint under the Colorado Help America Vote Act, CRS §§ 1-1.5-101 to -106 (state HAVA), and its federal counterpart, the Help America Vote Act, 42 USC §§ 15301 to 15545 (federal HAVA), defendants Scott Gessler, in his official capacity as the Colorado Secretary of State (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, appealed the district court’s judgment in favor of plaintiff Marilyn Marks. The judgment was affirmed.

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. The district court held that defendants had erred in dismissing Marks’s complaint on standing grounds and that she was entitled to a hearing.

On appeal, defendants asserted that the district court erred in proceeding under the state Administrative Procedure Act (APA) to summarily reverse the Secretary’s dismissal of Marks’s administrative complaint and remand the case for further proceedings. Although the APA rules and procedures do not apply to the Secretary’s resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the Secretary’s determination. Thus, the district court did not err in considering Marks’s first and third claims under the APA’s principles of judicial review.

Defendants also contended that the district court was not empowered to grant judgment on the pleadings or summary judgment in favor of Marks on her first and third claims absent a motion requesting such relief. However, it was not reversible error for the district court to proceed essentially on summary judgment without a dispositive motion, given the relevant part of the agency record before the court and lack of disputed issues of fact before the court.

Defendants also argued that the district court erred in concluding that they should not have dismissed Marks’s state HAVA administrative complaint for lack of standing, and that she was entitled to a hearing on the issues she alleged in that complaint. The federal and state requirements for standing to file an administrative HAVA complaint conflicted, and therefore, the federal standing requirement controlled, which entitled Marks to a hearing. Furthermore, the district court had subject matter jurisdiction to determine whether a conflict existed between the state HAVA and the federal HAVA.

Defendants further contended that Marks lacked standing to maintain her first claim for relief, in which she sought judicial review of the administrative determination. Any person who believes a violation of Title III of the federal HAVA has occurred has a right to file a complaint. Here, Marks alleged a sufficient injury in fact. Thus, she satisfied the jurisdictional prerequisites for standing, as well as the standing requirements to obtain judicial review of an agency action under the APA and HAVA.

Marks contended that the district court erred in dismissing her 42 USC § 1983 claims against the Secretary and co-defendant Choate. Marks alleged in her district court complaint that by dismissing her administrative complaint on state-law standing grounds, defendants had deprived her of a federally secured right, under 42 USC § 15512(a)(2)(B), to file a HAVA complaint using Colorado’s administrative complaint procedure. She also asserted that by dismissing her complaint, defendants had deprived her of her federally secured right, under 42 USC § 15512(a)(2)(E), to receive a hearing on the record in connection with her state HAVA complaint. Marks claims were properly dismissed, however, because §§ 15512(a)(2)(B) and 15512(a)(2)(E) do not create federal rights of action enforceable under § 1983.

Summary and full case available here.

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