May 24, 2019

Tenth Circuit: Sanctions Award Inappropriate When Trigger was Date Expert Report Exchanged

The Tenth Circuit Court of Appeals issued its opinion in Baca v. Berry on Tuesday, December 1, 2015.

Several citizens brought suit in state court against Albuquerque Mayor Richard Berry in January 2013 over the city’s redistricting plan enacted after the 2010 caucus. The citizens alleged that the newly adopted redistricting map denied Latinos opportunities to participate in the political process and elect candidates of their choice. The mayor removed the case to federal court.

In March 2013, a city charter amendment changed the percentage of the vote needed for a candidate to win from 40% to 50%. On June 25, 2013, the mayor produced an expert report that tended to disprove the plaintiffs’ arguments about redistricting. Later, the plaintiffs filed a motion to dismiss without prejudice, which the mayor opposed, requesting dismissal with prejudice instead. The district court decided to wait to rule on the motions until after the November elections.

The court held a phone conference with the parties after the November elections and set a status conference in December 2013. However, the court cancelled the December conference due to scheduling conflicts and did not reschedule. In January 2014, the court dismissed the plaintiffs’ claims with prejudice. The mayor moved for sanctions under 28 U.S.C. § 1927, arguing the plaintiffs vexatiously multiplied the proceedings. The district court granted the mayor’s motion and entered an attorney fee award against plaintiffs beginning on June 25, 2013, the date the mayor’s expert submitted his report. Plaintiffs appealed.

The Tenth Circuit evaluated the district court’s sanction award for abuse of discretion. The voters argued that the court’s order staying the case identified no legal prejudice to the mayor and was based solely on its convenience, which constitutes an abuse of discretion. The Tenth Circuit disagreed. The Tenth Circuit first noted that there is a difference between a court staying proceedings and dismissing a case, and there was no abuse of discretion in the court’s stay order. The voters did not appeal the dismissal. The Tenth Circuit also noted that, contrary to the voters’ assertions, the court did not issue the stay merely out of convenience, but because it found the record incomplete and believed that the upcoming mayoral elections would provide direction whether to dismiss the case with or without prejudice.

The Tenth Circuit similarly rejected the voters’ Voting Rights Act and one-person-one-vote claims. The Tenth Circuit found that the plaintiffs’ expert failed to satisfy the second and third prongs of the Gingles test. Because the mayor’s expert exposed the flaws in plaintiffs’ arguments by showing that the preferred candidates actually won all elections in which the plaintiffs’ were arguing Voting Rights Act violations, the Tenth Circuit found no error in the district court’s decision. The Tenth Circuit also found no one-person-one-vote violation, finding the population variance well within acceptable limits.

The Tenth Circuit next evaluated the sanctions award and determined that although the district court had discretion to issue sanctions under § 1927, it was an abuse of discretion for the court to base the sanction award on the day plaintiffs received the report from the mayor’s expert. The Tenth Circuit found that it would be unreasonable to expect the plaintiffs to withdraw their complaint on the day that the report was exchanged, since they would likely need time to review it and determine whether it had merit. Because of this, the Tenth Circuit reversed the sanction award. The Tenth Circuit noted that, on remand, the district court was free to revisit fees on remand.

The Tenth Circuit reversed the district court. Judge Phillips wrote a thoughtful dissent; he would not have allowed a sanction award at all because of the potentially chilling effect on legitimate voter discrimination claims.

Tenth Circuit: No Constitutional Violation for Potentially Traceable Ballots in 2012 Election

The Tenth Circuit Court of Appeals issued its opinion in Citizen Center v. Gessler on Tuesday, October 21, 2014.

After the 2012 election, election officials in six Colorado counties — Larimer, Jefferson, Boulder, Chaffee, Eagle, and Mesa — theoretically had the ability to trace votes to individual voters because each ballot had a unique barcode or number, some ballots may have been unique among ballots cast on an electronic voting machine, and some ballots may have been unique within a batch of ballots. Citizen Center, a Colorado nonprofit, sued the secretary of state and the county clerks for the six counties (collectively, “clerks”), asserting that the use of traceable ballots violated its members’ constitutional rights, including the rights to (1) vote, (2) free speech and association, (3) substantive due process, (4) equal protection, and (5) procedural due process. One of the clerks settled with Citizen Center. All clerks moved to dismiss for lack of standing, and the clerks included an alternative argument for dismissal under F.R.C.P. 12(b)(6). The district court dismissed the claims on standing without reaching the 12(b)(6) argument. Citizen Center appealed.

The Tenth Circuit first addressed the clerks’ argument that Citizen Centers’ appeal was moot because the election had already passed, and also because the secretary of state had adopted new regulations banning the challenged practices. The Tenth Circuit found that although the 2012 election had passed, and although the secretary of state had promulgated rules to prevent future traceable ballots, not every harm had been redressed. Next, the Tenth Circuit found that Citizen Center had standing on the parts of the claim related to denial of equal protection and procedural due process, but its alleged injury was too speculative to provide standing. Finally, the Tenth Circuit held that the first amendment complaint failed to state a valid claim against the clerks. These findings resulted in termination of all claims except those against the secretary of state for denial of equal protection and procedural due process.

Addressing the procedural due process claim first, the Tenth Circuit determined that Citizen Center’s claim was facially deficient. Citizen Center lacked a liberty interest in an untraceable ballot. Citizen Center claimed that the use of potentially unique ballots and the use of potentially unique ballots within a batch violated the Colorado Constitution. However, the Constitution only prohibits the use of unique numbers on ballots, and the use of batch numbers is not prohibited, so the secretary of state’s rules requiring numbers to be used on at least 10 ballots within a batch did not violate the Constitution. Because Citizen Center lacked a protected liberty interest, its claims for due process failed as a matter of law.

Next, the Tenth Circuit turned to the Equal Protection claims, which were based on different voting practices in different counties. The Tenth Circuit quickly disposed of this claim as well, finding that clerks within counties were allowed to develop different voting practices, and as long as there was no discrimination between voters in the same county, there was no Equal Protection violation.

The Tenth Circuit affirmed dismissal of the claims involving denial of substantive due process, the right to vote, and the right to free speech. For the claims involving procedural due process and equal protection, the Tenth Circuit affirmed on the clerks’ alternate ground under F.R.C.P. 12(b)(6). However, the secretary of state did not move for dismissal under 12(b)(6), so for the claims against the secretary of state, the Tenth Circuit reversed and remanded for further proceedings.

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.