June 18, 2019

Colorado Court of Appeals: Attorney Fee Request Under 42 U.S.C. § 1988 Not Moot

The Colorado Court of Appeals issued its opinion in Libertarian Party of Colorado v. Colorado Secretary of State on Thursday, January 14, 2016.

Two recall election candidates, Gordon Roy Butt and Richard Anglund, requested the Secretary of State’s approval to circulate petitions as successor candidates in a General Assembly recall election. The Secretary denied their petitions as untimely because they were submitted after a deadline in C.R.S. § 1-12-117. The candidates and the Libertarian Party (collectively, “Libertarian Party”) appealed, arguing the Secretary violated their constitutional right to access to the ballot because the statutory deadline conflicted with a later deadline in the Colorado Constitution.

The Libertarian Party asked the court to order the Secretary to accept candidate petitions until the constitutional deadline, requested injunctive and declaratory relief under § 1983, and requested attorney fees under § 1988. In an expedited proceeding, the district court held that the statute conflicted with the constitution and therefore was void and ordered the Secretary to enforce only the constitutional deadline, but did not address the §§ 1983 and 1988 claims. The Colorado Supreme Court denied certiorari.

The Libertarian Party then moved for summary judgment on its §§ 1983 and 1988 claims, but the district court ruled that the federal claims were effectively dismissed when the Libertarian Party failed to file a Rule 59 motion for amended judgment. On appeal, the court of appeals found the § 1983 claim was moot, because the Libertarian Party’s claim for injunctive relief was satisfied by the district court’s original order and the claim for declaratory relief became moot when the General Assembly amended the statute. However, the court of appeals found that the § 1988 claim may have survived. Because the Libertarian Party prevailed on its state law claim, it still may be entitled to attorney fees under § 1988 because its federal claims were joined with its state law claims.

The court of appeals remanded for determination of the Libertarian Party’s § 1988 claim.

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