Frazier v. Williams

JUSTICE EID delivered the Opinion of the Court.

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org. ADVANCE SHEET HEADNOTE Election Proceedings Under Section 1-1-113 —42 U.S.C. § 1983—Supremacy Clause.

The supreme court holds that claims brought under § 1-1-113, C.R.S. (2017), are limited to those alleging a breach or neglect of duty or other wrongful act under the Colorado Election Code. The language of section 1-1-113 limits claims that may be brought to those alleging a breach or neglect of duty or other wrongful act under "this code," meaning the Colorado Election Code. The court emphasizes that Colorado courts remain entirely open for adjudication of 42 U.S.C. § 1983 (2012) claims, including on an expedited basis if a preliminary injunction is sought, and that therefore section 1-1-113 does not run afoul of the Supremacy Clause. To the extent that Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), holds to the contrary, it is overruled. Original Proceeding Pursuant to C.A.R. 21
Denver County District Court Case No. 16CV31574
Honorable Elizabeth A. Starrs, Judge Rule Made Absolute
en banc
Attorneys for Plaintiff:
Klenda Gessler & Blue, LLC
Scott E. Gessler
Geoffrey N. Blue

Denver
, Colorado Attorneys for Defendant:
Cynthia H. Coffman, Attorney General
Frederick R. Yarger, Solicitor General
Leeann Morrill, First Assistant Attorney General
Matthew D. Grove, Assistant Solicitor General

Denver
, Colorado Attorneys for Amici Curiae Libertarian Party of Colorado and Gordon Roy Butt:
The Matthew C. Ferguson Law Firm, P.C.
Matthew C. Ferguson
Michelle K. Schindler

Aspen
, Colorado JUSTICE EID delivered the Opinion of the Court.
JUSTICE GABRIEL
dissents, and JUSTICE HOOD joins the dissent. Colorado v. Williams, No. 14CA2063 (Colo. App. Jan. 14, 2016), the companion case we review today, the court ruled that Colorado law permitted 1983 claims to be joined in section 1-1-113 proceedings. The court accordingly determined that Frazier was entitled to an award of attorney's fees. The Secretary filed a petition for a rule to show cause, which we issued. ¶3 The language of section 1-1-113 repeatedly refers to "this code," which is defined as the Colorado Election Code. § 1-1-101 et seq., C.R.S. (2017). We hold that where the language of section 1-1-113 allows a claim to be brought against an election official who has allegedly committed a "breach or neglect of duty or other wrongful act" under "this code," it is referring to a breach of duty or other wrongful action under the Colorado Election Code, not a section 1983 claim. § 1-1-113. We emphasize that Colorado courts remain entirely open for the adjudication of section 1983 claims, including on an expedited basis if a preliminary injunction is sought, and that therefore section 1-1-113 does not run afoul of the Supremacy Clause. To the extent that Brown v. Davidson holds to the contrary, it is overruled. Accordingly, we make our rule absolute and remand the case for further proceedings.

I.

¶4 Frazier sought the Republican Party's nomination for United States Senate in the 2016 election. In order to have his name appear on the primary election ballot, Frazier was required by Colorado law to file a petition containing a certain number of valid signatures of registered Republican electors. section 1-1-113 proceeding and, if so, whether special circumstances exist making an attorney's fee award unjust in this instance. We treated the petition as one brought under Rule 21, and issued a rule to show cause. ¶10 We now make the rule absolute. We hold that claims brought pursuant to section 1-1-113 are limited to those alleging a breach or neglect of duty or other wrongful act under the Colorado Election Code. We emphasize that Colorado courts remain entirely open for adjudication of section 1983 claims, including on an expedited basis if a preliminary injunction is sought, and that therefore section 1-1-113 does not run afoul of the Supremacy Clause. To the extent that Brown v. Davidson holds to the contrary, it is overruled. Accordingly, we make our rule absolute and remand the case for further proceedings.

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

Because we conclude that section 1-1-113 proceedings are limited to "breach or neglect of duty or other wrongful acts" under the Colorado Election Code, we need not consider the Secretary's alternative argument regarding whether the attorney's fee award should be set aside. § 1-1-113.

II.

¶11 Given the tight deadlines for conducting elections, section 1-1-113 is a summary proceeding designed to quickly resolve challenges brought by electors, candidates, and other designated plaintiffs against state election officials prior to election day. Both parties agree that such proceedings generally move at a breakneck pace. Here, for example, Frazier filed his petition challenging the Secretary's decision that his signatures were insufficient on May 2, 2016, within five days of notice of decision as required by section 1-4-909(1.5). The district court held a hearing the next morning and issued an order the day after the hearing, agreeing with the Secretary that certain signatures collected in congressional district three were invalid. As a result, Frazier lacked sufficient signatures to be a candidate in the Republican primary. Frazier then sought review with this court within three days, as required by section 1-1-113(3), and we accepted jurisdiction. We remanded the case on May 24, ordering the district court to accept certain signatures and to reconsider others under the appropriate standard. The district court ordered that Frazier be placed on the ballot on May 25. Frazier's section 1983 claim was never addressed. ¶12 The Secretary argues that the language of section 1-1-113 limits the claims that can be brought to those alleging a breach or neglect of duty or other wrongful act under the Colorado Election Code. We agree. ¶13 Section 1-1-113 provides that:

When any controversy arises between any official charged with any duty or function under this code and any candidate, or any officers or representatives of a political party, or any persons who have made nominations or when any eligible elector files a verified petition in a district court of competent jurisdiction alleging that a person charged with a duty under this code has committed or is about to commit a breach or neglect of duty or other wrongful act . . . upon a finding of good cause, the district court shall issue an order requiring substantial compliance with the provisions of this code.

§ 1-1-113(1) (emphasis added). We conclude that when section 1-1-113 repeatedly refers to "this code," it is plainly referring to the Colorado Election Code. See § 1-1-101 (defining "this code" as the "Uniform Election Code of 1992"). Indeed, Frazier does not propose an alternate meaning for the phrase "this code." Therefore, when section 1-1-113 refers to a verified petition brought against "any official charged with any duty the question we examine today—namely, whether such joinder is appropriate under section 1-1-113. Squarely addressing the issue for the first time, we conclude, for the reasons stated above, that section 1983 claims cannot be brought in section 1-1-113 proceedings. To the extent that Brown v. Davidson holds to the contrary, we overrule it. Because a section 1983 claim cannot be brought in a section 1-1-113 proceeding, Frazier could not seek fees under section 1988 in the context of a section 1-1-113 claim. Therefore, the attorney's fee award associated with Frazier's section 1983 claim cannot stand.

We note that the Secretary and Frazier disagree as to whether, as a practical matter, section 1983 claims can possibly be adjudicated under the accelerated timelines applicable to section 1-1-113 proceedings. The Secretary says no, arguing that it is impossible to fully litigate a complex constitutional issue within days or weeks, as is typical of a section 1-1-113 proceeding. Frazier argues that it can be done, and points to other cases in which it allegedly has been done. We need not resolve this question, however, because we conclude that section 1983 claims cannot be brought in a section 1-1-113 proceeding under the language of the provision.

Because the courts of Colorado remain entirely open to section 1983 claims under our interpretation of section 1-1-113, we need not consider whether section 1-1-113 is a "neutral rule of judicial administration" that would justify divesting Colorado courts of jurisdiction over section 1983 claims.

In addition to Brown, the district court in this case relied on Williams v. Libertarian Party, the companion case we review, and reverse, today. --------

III.

¶28 For these reasons, we make our rule to show cause absolute and remand the case for further proceedings consistent with this opinion. JUSTICE GABRIEL dissents, and JUSTICE HOOD joins the dissent. ¶31 Unlike the majority, I perceive nothing in the text of section 1-1-113 that precludes joinder of a section 1983 claim. To the contrary, in my view, the statutory text directly supports the joinder of such claims. Moreover, precluding joinder would mandate the filing of multiple lawsuits in direct contravention of both the applicable rules of civil procedure and Congress's intent to facilitate the filing of viable section 1983 claims. ¶32 Nor am I persuaded by the fact that section 1-1-113 provides for certain expedited procedures. We have never relied on the existence of such procedures to preclude joinder, and our courts have had no difficulty managing appeals in cases like this one. ¶33 Accordingly, I respectfully dissent.

I. Analysis

¶34 I begin by addressing the applicable standard of review and rules of statutory construction. I then discuss the text of section 1-1-113 and explain why, in my view, the text of that statute, settled rules of civil procedure, and sound public policy support allowing the joinder of section 1983 claims with section 1-1-113 claims. Thereafter, I address section 1-1-113's expedited procedures for appeal and show why those procedures should not preclude joinder of section 1983 claims. I conclude with a comment on attorney fees, which appear to have been a significant factor motivating the Secretary's effort to preclude joinder of section 1983 claims in section 1-1-113 proceedings.

A. Standard of Review and Rules of Statutory Construction

¶35 We review questions of statutory interpretation de novo. Vallagio at Inverness Residential Condo. Ass'n v. Metro. Homes, Inc., 2017 CO 69, ¶ 16, 395 P.3d 788, 792. In doing so, we look to the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings. Id. When the statutory language is clear, we apply it as written and need not resort to other rules of statutory construction. See id. In addition, when construing a statute, we must respect the legislature's choice of language. Turbyne v. People, 151 P.3d 563, 568 (Colo. 2007). Accordingly, "[w]e do not add words to the statute or subtract words from it." Id. at 567.

B. Section 1-1-113

¶36 Section 1-1-113 provides, in pertinent part:

(1) When any controversy arises between any official charged with any duty or function under this code and any candidate, . . . or when any eligible elector files a verified petition in a district court of competent jurisdiction alleging that a person charged with a duty under this code has committed or is about to commit a breach or neglect of duty or other wrongful act, after notice to the official which includes an opportunity to be heard, upon a finding of good cause, the district court shall issue an order requiring substantial compliance with the provisions of this code. The order shall require the person charged to forthwith perform the duty or to desist from the wrongful act or to forthwith show cause why the order should not be obeyed. The burden of proof is on the petitioner.
. . . .
(4) Except as otherwise provided in this part 1, the procedure specified in this section shall be the exclusive method for the adjudication of controversies arising from a breach or neglect of duty or other wrongful act that occurs prior to the day of an election.

(1986). Requiring a civil rights litigant like Frazier to file a second lawsuit to protect his constitutional rights would serve no purpose other than to increase the time and expense of Frazier's claims. This, in turn, would tend to discourage the pursuit of such a claim, contrary to Congress's expressed intent. ¶48 In interpreting section 1-1-113 as I do, I acknowledge and appreciate the Secretary's concerns regarding the possible breadth of a section 1983 claim and the potential need for substantial discovery on such a claim. Because Frazier's section 1983 claim presented strictly a legal question and was closely interrelated to Frazier's state law claims, however, no such discovery was necessary or at issue in this case. Moreover, thus far, cases in which section 1983 claims have been joined in section 1-1-113 proceedings do not appear to have presented any difficult discovery problems. And were such problems to arise, in my view, they would present a case management issue for the district court, not a reason to bar joinder of a possibly viable constitutional claim. ¶49 For all of these reasons, I believe that a party in Frazier's position may appropriately join a section 1983 claim with a section 1-1-113 claim.

B. Appellate Considerations

¶50 To justify further its conclusion that section 1-1-113 precludes the joinder of section 1983 claims, the majority points to section 1-1-113's limits on appellate review. See maj. op. ¶ 18. I, however, do not believe that such limits warrant a rule precluding joinder of section 1983 claims. ¶51 Section 1-1-113(3) allows for expedited review in this court:

The proceedings may be reviewed and finally adjudicated by the supreme court of this state, if either party makes application to the supreme court within three days after the district court proceedings are terminated, unless the supreme court, in its discretion, declines jurisdiction of the case. If the supreme court declines to review the proceedings, the decision of the district court shall be final and not subject to further appellate review.

¶52 I perceive nothing in this section that precludes the joinder of a section 1983 claim. In fact, and as Frazier correctly observes, joined section 1983 claims can—and have—been properly adjudicated (and appealed) within the context of section 1-1-113 proceedings. Indeed, Williams v. Libertarian Party, 2017 CO 86, ___ P.3d ___, which we are also deciding today, is an example of such a case. I am not aware of any intractable problems or confusion regarding the trial and appellate procedures to be employed in cases like this, and thus, I see no reason to overrule Brown v. Davidson, 192 P.3d 415 (Colo. App. 2006), which has been on the books for over a decade without apparent controversy or difficulty. ¶53 I am not persuaded otherwise by the majority's reliance on cases like Felder v. Casey, 487 U.S. 131, 144-45 (1988), Haywood v. Drown, 556 U.S. 729, 736-40 (2009), and their progeny. See maj. op. at ¶¶ 21-26. To the contrary, I believe that these cases support the joinder of section 1983 claims in a section 1-1-113 proceeding. ¶54 In Felder, 487 U.S. at 144-45, the Supreme Court concluded that section 1983 plaintiffs were not required to comply with a state notice-of-claim statute because the state law's protection applied solely to governmental defendants and thus "condition[ed] the right to bring suit against the very persons and entities Congress intended to subject to liability." In so concluding, the Court observed that a state law courthouse door to viable section 1983 claims, which we cannot properly do. See Haywood, 556 U.S. at 740.

C. Attorney Fees

¶57 Finally, I feel compelled to say a word about attorney fees, which appear to have been a significant factor motivating the Secretary's effort to preclude joinder of section 1983 cases in this context. See maj. op. ¶ 2 (noting that after Frazier sought attorney fees under section 1988, the Secretary opposed that request and argued that section 1983 claims may not be brought in a section 1-1-113 proceeding). ¶58 I have no doubt that some parties may well be motivated to assert section 1983 claims because those claims provide a potential avenue for the recovery of fees. Indeed, such an outcome is fully consistent with Congress's intent to promote viable section 1983 claims by awarding fees to prevailing parties. See City of Riverside, 477 U.S. at 576-78. Given this intent, I do not believe that it is appropriate to use the risk of fees as a basis for adopting novel procedures that will likely discourage litigants from asserting potentially viable section 1983 claims. Yet, that appears to be what we have done today.

II. Conclusion

¶59 For these reasons, I believe that the plain language of section 1-1-113, the applicable civil procedure rules, and sound public policy support allowing a petitioner like Frazier to join section 1983 claims with claims under section 1-1-113. ¶60 Accordingly, I respectfully dissent. I am authorized to state that JUSTICE HOOD joins in this dissent.