December 29, 2016
Maurice C. Jones and Citizen Center, a Colorado nonprofit corporation, Plaintiffs-Appellants,
Christian R. Samora, in his official capacity as Clerk and Treasurer of the Town of Center, Colorado; and Town of Center, Colorado, a Colorado statutory town, Defendants-Appellees.
County District Court No. 13CV30009 Honorable Martin A.
Announced December 29, 2016 Robert A. McGuire, Lone Tree,
Colorado, for Plaintiffs-Appellants
Lasater & Martin, P.C., Peter H. Doherty, Highlands
Ranch, Colorado, for Defendant-Appellee Christian Samora
Nathan, Dumm & Mayer, P.C., Marni Nathan Kloster, Ashley
Hernandez-Schlagel, Denver, Colorado, for Defendant-Appellee
Town of Center
and Vogt [*] ,
1 Americans cherish their right to cast secret ballots in
elections of public officers. So what should a court do if it
learns that there was a flaw in handling ballots that created
the opportunity for election judges to learn the identities
of some voters who had mailed in their ballots? In this case,
although the flaw created such an opportunity, the trial
court found that the opportunity did not flower into a
reality. In other words, the election judges did not take
advantage of the opportunity to learn who had mailed in these
2 And the flaw did not change the final tally in the
election. It occurred after the ballots had been cast, and
there is no indication in the record that the flaw affected
the tallying of the votes. So the flaw did not change the
number of votes that any candidate received.
3 Maurice C. Jones, one of the plaintiffs in this case, lost
his seat as a trustee for the Town of Center, Colorado, after
a recall election. (Two other trustees also lost their seats,
but they are not parties to this appeal.) He then joined with
the other plaintiff in this case, Citizen Center, a nonprofit
group that focuses on "protect[ing] the rights of its
members, including the fundamental right to vote."
4 When we refer to the former trustee - Mr. Jones - and
Citizen Center together, we will call them "the
plaintiffs." But there are certain issues in this
appeal, such as standing, that require us to analyze their
positions separately. We will therefore refer to them
individually when we consider those issues.
5 As is pertinent to our analysis, the plaintiffs filed a
claim in state court against two defendants, the Town of
Center and its clerk, Christian R. Samora, relying in part on
42 U.S.C. § 1983 (2012). (The plaintiffs sued other
defendants, too, but those defendants are not part of this
appeal.) We will refer to the defendants jointly as "the
6 Both sides filed motions for summary judgment. The trial
court granted the Town's motion, but it denied the
plaintiffs' motion. The plaintiffs appeal. We affirm.
7 Concerned that the Town of Center's trustees, including
Mr. Jones, were planning to increase utility fees
unilaterally, the Town of Center's residents organized a
recall election to oust the trustees from their positions.
8 Voters in the recall election voted one of two ways. Some
of them received their ballots in the mail and returned them
by mail. Others voted in person at the polling place.
9 All of the ballots had two numbered stubs attached to them.
Based on those stubs, Mr. Samora had a list that showed which
voter had received which ballot. He used this list to ensure
that each voter had voted only once. He knew which voters had
returned their mail ballots, so he could compare that list
with the list of the voters who had voted in person.
10 The voting procedures were also designed to protect the
right each voter had to cast a secret ballot. They required
that election judges remove all the stubs from all the
ballots before they began to tally them.
11 These procedures were followed with regard to all the
in-person ballots that were cast in the recall election. The
judges removed all the stubs before these votes were tallied.
See § 31-10-607, C.R.S. 2016 (setting out
voting procedures for in-person voters with paper ballots).
So the election judges did not have any way to know which
voter had cast which in-person ballot.
But the procedures were not followed at all times with regard
to the mail-in ballots. See § 31-10-1007(1),
C.R.S. 2016 (noting that ballots for absentee voters - the
mail-in ballots in this case - "must . . . be cast and
counted in the same manner as if such absentee voter had been
present in person"). At some point during the process of
tallying the ballots, the election judges realized that they
had not removed the stubs from at least some of them. The
judges decided to continue tallying the ballots before they
removed the stubs. So the election judges could see the
identifying numbers on the stubs when they tallied the votes,
but they could not determine the identity of the voters
without consulting the voter list.
13 The plaintiffs included five state law claims and a §
1983 claim in their complaint. The trial court severed the
state law claims from the § 1983 claim. It then held a
bench trial on the state law claims. As is relevant to this
appeal, the court found the following:
• "The preponderance of the evidence at trial
establishes that no election judges or watchers accessed
voter lists during the counting of the ballots, none knew
which ballot numbers were assigned to which voter during the
counting process and no photographs or videos were taken of
• "[T]his was an election which was fundamentally
untainted by any substantive intentional error of procedure,
free of any fraud or intentional violation of voting
• "There is no credible evidence to find that any
improper use of the [voter] lists occurred. The preponderance
of the evidence fails to establish that any comparison of the
lists to the [mail-in] ballots[, ] with the stubs still
affixed, occurred at any time in the counting process."
• "The Court is satisfied that counting of
[mail-in] ballots occurred with stubs affixe[d] but that
this was not intentional nor is there any evidence that
anyone, including the election judges, took this opportunity
to in fact violate the secrecy of the ballot."
14 Despite these findings, the trial court concluded that the
tallying of the mail-in ballots had violated article VII,
section 8 of the Colorado Constitution, which states that
"no ballots shall be marked in any way whereby the
ballot can be identified as the ballot of the person casting
it." Although the court found that the election judges
had not compared the voter lists with the stubs, the court
decided that, because they had seen both the voter list and
the stub numbers of the mail-in ballots, they had had the
opportunity to compare the two. The court thought
that the existence of this opportunity meant that the Town
had violated "the state of Colorado's constitutional
and statutory guarantee of a secret ballot."
15 So the court concluded that the results of the recall
election were void, see Taylor v. Pile, 154 Colo.
516, 522-23, 391 P.2d 670, 673 (1964), and it ordered the
Town to hold a new recall election within thirty to ninety
days. In the meantime, the trustees who had been recalled
would remain in office.
Supreme Court Opinion
16 The Town appealed. Our supreme court reversed the trial
court's decision, and it reinstated the recall election
results. See Jones v. Samora, 2014 CO 4, ¶ 39.
Although the supreme court agreed that the Colorado Municipal
Election Code had been violated, see §§
31-10-607, -1007, it concluded that there had not been a
constitutional error because the ballots had not been
"marked" for the purposes of article VII, section
8. See Jones, ¶ 31. The election judges had not
marked the ballots so that the ballots could be linked to
particular voters. Instead, the stubs were on the ballots
because a statute required them to be there. See id.
And, because the election judges had not violated article
VII, section 8, the trial court erred when it concluded that
the election had been void. Id. at ¶¶
17 The supreme court then observed that
it is undisputed that the ballot was secret at the time both
the in-person and [mail-in] Town of Center voters voted.
There was no credible evidence presented that voters were not
free to vote as they wished or were intimidated in any way. .
. . In sum, there was no evidence that the secrecy or
integrity of this entire election was put in jeopardy by the
election judges' error in partially counting the
[mail-in] ballots with the numbered stubs still attached.
Id. at ¶ 35. ¶ 18 In reaching this result,
the supreme court relied on the trial court's factual
findings, including the trial court's finding that no
one, including the election judges, had "violate[d] the
secrecy of the ballot." Id. at ¶ 11.
§ 1983 Claim
19 The plaintiffs' § 1983 claim remained at issue
because the trial court had severed it from the state law
claims. So, after the supreme court's decision, the trial
court had to resolve it. Both sides of the case moved for
summary judgment. The trial court granted the Town's
motion, and it denied the plaintiffs' motion.
20 To begin, the Town asserts that the plaintiffs did not
have standing to file this case. We conclude that Citizen
Center has standing, but that the trustee does not.
21 We analyze the question whether a party has standing de
novo. Ainscough v. Owens, 90 P.3d 851, 856 (Colo.
2004). When deciding whether a party has standing, "all
averments of material fact in a complaint must be accepted as
true." State Bd. for Cmty. Colls. & Occupational
Educ. v. Olson, 687 P.2d 429, 434 (Colo. 1984). "A
party's standing is assessed at the time a lawsuit is
filed." Indep. Inst. v. Coffman, 209 P.3d 1130,
1140 (Colo.App. 2008).
22 Our supreme court has relied on Colorado's standing
test to evaluate standing in § 1983 cases. See
Olson, 687 P.2d at 434-35; see also Cunningham v.
Ray, 648 F.2d 1185, 1186 (8th Cir. 1981)(per
curiam)("Because 42 U.S.C. § 1983 . . . is silent
on the question of standing, state law governs the resolution
of this issue.").
23 Our supreme court articulated Colorado's test for
standing in Wimberly v. Ettenberg, 194 Colo. 163,
168, 570 P.2d 535, 539 (1977). The test has two prongs.
See id. First, the court must decide "whether
the plaintiff has suffered actual injury from the challenged
governmental action." Olson, 687 P.2d at 434.
Second, the court must determine "whether the injury is
to a legally protected or cognizable interest."
Id.; see also Hickenlooper v. Freedom from
Religion Found., Inc., 2014 CO 77, ¶ 8 (setting out
Wimberly's "routine" test for
24 The first prong of the standing test is not satisfied if
the alleged injury is "overly 'indirect and
incidental' to the defendant's action."
Ainscough, 90 P.3d at 856 (citation omitted).
Rather, this prong requires "that an actual controversy
exists so that the matter is a proper one for judicial
resolution." Hickenlooper, ¶ 9.
25 Whether the second prong is met turns on the question of
"whether the plaintiff has a claim for relief under the
constitution, the common law, a statute, or a rule or
regulation." Ainscough, 90 P.3d at 856.
26 Colorado's third-party standing rule "prevents a
party from asserting the claims of third parties who are not
involved in the lawsuit." City of Greenwood Village
v. Petitioners for Proposed City of Centennial,
3 P.3d 427, 439 (Colo. 2000). However, "a party who has
shown sufficient personal injury-in-fact to confer standing
on himself" may assert the rights of third parties in
"exceptional circumstances." Denver Ctr. for
the Performing Arts v. Briggs, 696 P.2d 299, 304-05
(Colo. 1985). The presence of at least one of the following
constitutes an exceptional circumstance:
a substantial relationship between the litigant and the third
party; the difficulty or improbability that the third parties
will ever assert their own constitutional rights; or the need
to grant standing in order to avoid dilution of the third
Id. at 305.
27 Colorado law also gives taxpayers standing in certain
situations. See Hickenlooper, ¶ 12
("Unlike the United States Supreme Court's narrow
view of taxpayer standing, this Court has consistently
permitted broad taxpayer standing."). Taxpayers satisfy
the injury-in-fact requirement if they allege that an
"injury flow[ed] from governmental violations of
constitutional provisions that specifically protect the legal
interests involved." Conrad v. City & Cty. of
Denver, 656 P.2d 662, 668 (Colo. 1982). Put differently,
they must allege an "injury based on an unlawful
expenditure of their taxpayer money. . . [or] that their tax
dollars are being used in an unconstitutional manner."
Hickenlooper, ¶ 14.
28 But plaintiffs must also show a nexus between their
. . .
taxpayer[s] and the challenged government action."
Id. at ¶ 12. If they show that the government
action violated a constitutional provision, "such an
averment satisfies the two-step standing analysis."
Barber v. Ritter, 196 P.3d 238, 247 (Colo. 2008).
29 An organization may also have standing to raise
constitutional claims on behalf of its members. To satisfy
this standing test, the organization must show that (1)
"its members would otherwise have standing to sue in
their own right"; (2) "the interests it seeks to
protect are germane to the organization's purpose";
and (3) "neither the claim asserted, nor the relief
requested, requires the participation of individual members
in the lawsuit." Conestoga Pines Homeowners'
Ass'n v. Black, 689 P.2d 1176, 1177 (Colo.App.
1984)(quoting Hunt v. Wash. State Apple Advert.
Comm'n, 432 U.S. 333, 343 (1977)).
30 We will separately analyze whether the trustee and Citizen
Center have standing.
Trustee Did Not Have Individual Standing
31 The trustee alleged in the complaint that (1) the mail-in
ballots were "illegal votes" because their stubs
were not removed, yet they were tallied anyway; and (2)
"if only in-person votes were counted, " that is,
if the Town had only counted the legal votes,
"none of the candidates subject to recall would have
32 Skipping to the causation component of individual
standing, recall that the putative injury in fact must arise
from the Town's conduct in order to satisfy the first
prong of the standing test. See Wimberly, 194 Colo.
at 168, 570 P.2d at 539. At oral argument, the
plaintiffs' counsel conceded, and the record supports the
fact, that the loss of the trustee's position did not
arise from the Town's conduct. The trustee therefore
cannot satisfy the injury requirement, so he does not have
Trustee Did Not Have Third-Party Standing
33 The trustee also appears to assert, although not entirely
clearly, that he suffered a different injury because voters
who voted for him via mail-in ballot suffered an injury. Once
the secrecy of these voters' ballots was compromised, his
contention continues, those voters faced intimidation because
members of the community confronted them about their votes.
So, he concludes, this injury can be imputed to him. We
construe this argument as alleging that the trustee may
invoke third-party standing on behalf of the mail-in voters.
See generally id. (describing the requirements to
invoke third-party standing).
34 But the third-party standing argument falls flat. A
plaintiff attempting to invoke third-party standing must
still show "injury in fact to himself."
Augustin v. Barnes, 626 P.2d 625, 628 (Colo.
1981)(emphasis added). So voter intimidation is not the
appropriate injury to consider for purposes of third-party
standing. Instead, we must consider the injury to the
trustee. See People v. Rosburg, 805 P.2d 432, 435
(Colo. 1991)("To have standing to assert the rights of
third parties not before the court, the parties before the
court must demonstrate injury to themselves sufficient to
guarantee concrete adverseness.").
35 As we discussed above, the Town's conduct did not
cause the trustee to lose his seat. So he does not have an
injury that would confer standing to him, Ainscough,
90 P.3d at 856, and he cannot avail himself of the
third-party standing doctrine. We therefore do not need to
examine whether any of the exceptional circumstances
discussed in Denver Center for the Performing Arts
are present in this case.
Trustee Did Not Have Taxpayer Standing
36 The trustee also did not show that he had taxpayer
standing, although he relied on an injury that was different
from the ones he relied on for individual standing and
third-party standing. He alleged that he was a taxpayer in
the Town of Center and that the ballot-counting procedures
violated the Constitution.
37 But the complaint did not allege that his "tax
dollars [were] being used in an unconstitutional
manner." Hickenlooper, ¶ 14. Specifically,
although the trustee alleged that the election judges had
violated the Constitution when they did not remove the stubs
before tallying the mail-in ballots, he did not establish
"a clear nexus between his status as a taxpayer"
and their failure to remove the ballot stubs. Id. at
¶ 12. So, in this way, this case is like
Hickenlooper because the trustee did not
"assert any injury based on an unlawful expenditure of
[his] taxpayer money." Id. at ¶ 14.
38 In short, the trustee lacked standing to raise the §
1983 claim. But our standing analysis is not yet complete.
Citizen Center Had Organizational Standing
39 We conclude, for the following reasons, that Citizen
Center had organizational standing.
40 First, the complaint noted that "[o]ne or more
members of Citizen Center were . . . registered elector[s] of
the Town who voted by [mail-in] ballot." The complaint
referred to a member of Citizen Center who had voted in the
recall election by mail-in ballot, and, accepting the
complaint's allegations as true, her right to cast a
secret ballot had allegedly been violated. Conestoga
Pines Homeowners' Ass'n, 689 P.2d at 1177
(noting that the first requirement of organizational standing
is met where the members "would otherwise have standing
to sue in their own right")(citation omitted).
41 Next, the interests Citizen Center sought to protect were
germane to the organization's purpose: protecting the
right to vote and other civil rights. And the claim asserted
and relief requested did not require that individual members
of the organization participate in the case. See id.
Summary Judgment Principles
42 We examine a trial court's decision to grant or to
deny a motion for summary judgment de novo. Geiger v. Am.
Standard Ins. Co. of Wis., 192 P.3d 480, 482 (Colo.App.
43 A trial court should grant a motion for summary judgment
only if there "is no genuine issue as to any material
fact." Town of Berthoud v. Town of Johnstown,
983 P.2d 174, 175 (Colo.App. 1999). The moving party bears
the burden to show that there is no genuine issue of material
fact. See id. "The nonmoving party is entitled
to the benefit of all favorable inferences that reasonably
may be drawn from the evidence, and all doubts as to the
existence of a genuine issue of material fact must be
resolved in that party's favor." Edwards v. Bank
of Am., N.A., 2016 COA 121, ¶ 12. If the moving
party satisfies its burden, the burden shifts to the
nonmoving party to show that there is a triable issue of
fact. AviComm, Inc. v. Colo. Pub. Utils. Comm'n,
955 P.2d 1023, 1029 (Colo. 1998).
44 When both parties move for summary judgment, the trial
court must "consider each motion separately."
AF Prop. P'ship v. State, Dep't of Revenue,
852 P.2d 1267, 1270 (Colo.App. 1992). One party's
assertion of undisputed facts cannot "be applied in
connection with" the other party's cross-motion for
summary judgment. Churchey v. Adolph Coors Co., 759
P.2d 1336, 1340 (Colo. 1988)(citation omitted).
Preclusive Effect of State Claims Proceeding
45 As mentioned above, the supreme court addressed the state
claims arising from the recall election, concluding that
"there was no evidence that the secrecy or integrity of
this entire election was put in jeopardy by the election
judges' error in partially counting the [mail-in] ballots
with the numbered stubs still attached." Jones,
¶ 35. The Town asserts that the doctrines of law of the
case and issue preclusion apply to scuttle Citizen
Center's § 1983 claim. We conclude that the law of
the case doctrine is inapplicable, but that the issue
preclusion doctrine applies.
Standard of Review
46 Whether the law of the case or issue preclusion applies to
bar the litigation of an issue is a question that we review
de novo. See Stanton v. Schultz, 222 P.3d 303, 307
(Colo. 2010)(issue preclusion); People v.
Misenhelter, 214 P.3d 497, 500 (Colo.App. 2009)(law of
the case), aff'd, 234 P.3d 657 (Colo. 2010).
of the Case
47 Under the law of the case doctrine, "[c]onclusions of
an appellate court on issues presented to it as well as
rulings logically necessary to sustain such conclusions"
are binding in the same case. Hardesty v. Pino, 222
P.3d 336, 340 (Colo.App. 2009)(alteration in
original)(quoting Super Valu Stores, Inc. v. Dist.
Court, 906 P.2d 72, 78-79 (Colo. 1995)). Stated
differently, "prior relevant rulings made in the same
case are to be followed unless such application would result
in error." People v. Dunlap, 975 P.2d 723, 758
(Colo. 1999). The doctrine "applies only to a
court's decisions of law and not to its resolution of
factual questions." In re Marriage of Dunkle,
194 P.3d 462, 467 (Colo.App. 2008).
48 Colorado courts have not precisely defined "same
case" or "same proceeding" for purposes of the
law of the case doctrine. A different jurisdiction has
explained, "the law of the case doctrine applies to a
second review by an appellate court on another phase of the
same case, i.e., a phase that occurs before the case has
ended." Merkel v. W.C.A.B. (Hofmann Indus.),
918 A.2d 190, 194 (Pa. Commw. Ct. 2007)(emphasis omitted).
49 Colorado courts have, however, recognized that
"[s]everance . . . makes a separate and independent
action of the severed claim." King v. W. R. Hall
Transp. & Storage Co., 641 P.2d 916, 918 n.6 (Colo.
1982)(citation omitted); Maxwell v. United Servs. Auto.
Ass'n, 2014 COA 2, ¶ 4 ("The trial court
severed the case into separate proceedings against
specific insurers.")(emphasis added); see
C.R.C.P. 21 ("Any claim against a party may be severed
and proceeded with separately."); see also Hofmann
v. De Marchena Kaluche & Asociados, 642 F.3d 995,
998 (11th Cir. 2011)("A severed claim under Rule 21
proceeds as a discrete suit and results in its own final
judgment from which an appeal may be taken.");
Valdez v. Cox Commc'ns Las Vegas, 336 P.3d 969,
971 (Nev. 2014); In re Reynolds, 369 S.W.3d 638, 650
(Tex. App. 2012)("A severance divides a lawsuit into two
or more separate and independent causes. When a trial court
grants a severance, the separated causes of action typically
proceed to individual judgments that are themselves
separately final and appealable.")(citation omitted);
cf. C.R.C.P. 54(b) ("[T]he court may direct the
entry of a final judgment as to one or more but fewer than
all of the claims. . . ."); 10 James Wm. Moore et al.,
Moore's Federal Practice § 54.21 (3d ed.
1997) (noting that a judgment under Fed.R.Civ.P. 54(b) is in
effect, though not in form, a severance of the adjudicated
claims from the remainder of the action).
50 We conclude, for two reasons, that the law of the case
doctrine does not apply to this appeal.
51 First, the state law claims proceeding and this proceeding
concerning the § 1983 claim were not the same case by
the time the trial court resolved the § 1983 claim.
See Soc'y of Separationists, Inc. v. Herman, 939
F.2d 1207, 1214 (5th Cir. 1991)(noting that law of the case
doctrine only applies "during the pendency of . . . a
single proceeding")(citation omitted). When the
trial court severed the state claims from the § 1983
claim, the two groups of claims became "separate and
independent." King, 641 P.2d at 918 n.6
(citation omitted). And, once our supreme court rejected
Citizen Center's state law claims, that proceeding ended;
that is, there were no more "successive stages of the
same litigation[.]" People v. Gurule, 699 P.2d
9, 10 (Colo.App. 1984); see People v. Janke, 852
P.2d 1271, 1274 (Colo.App. 1992)("[B]ecause we are
concerned here with a final order, reconsideration
of the original ruling under the law of the case doctrine is
52 Our research has uncovered one appellate opinion that
applied the law of the case doctrine in the context of
severed causes of action. Sledge v. Mullin, 927
S.W.2d 89, 93 (Tex. App. 1996). However, Sledge did
not provide any authority or in-depth analysis about why
severed claims, resolved in separate proceedings, would
trigger the law of the case doctrine. We therefore do not
think that opinion is persuasive.
53 Second, the law of the case doctrine "applies only to
a court's decisions of law and not to its resolution of
factual questions." Dunkle, 194 P.3d at 467.
Whether the Town actually violated voter secrecy rights is a
question of fact.
54 We therefore conclude that the law of the case doctrine
does not apply to this case.
55 Issue preclusion bars relitigating factual matters that a
court has previously litigated and decided. Calvert v.
Mayberry, 2016 COA 60, ¶ 15 (citing Carpenter
v. Young, 773 P.2d 561, 565 n.5 (Colo. 1989)). Under the
issue preclusion doctrine, factual matters may be preclusive
for purposes of summary judgment. See, e.g.,
Wall v. City of Aurora, 172 P.3d 934, 937-38
56 Issue preclusion applies when (1) the issue is identical
to the issue "actually and necessarily adjudicated"
in the previous case; (2) the party against whom the doctrine
is sought was a party or in privity with a party in the prior
case; (3) the prior case ended with a final judgment on the
merits; and (4) the party against whom issue preclusion is
asserted "had a full and fair opportunity to litigate
the issue" in the prior case. Calvert, ¶
12 (citation omitted).
57 We have not found any cases in Colorado that have analyzed
whether issue preclusion applies when multiple claims are
brought together, then severed, and the court reaches a final
judgment on the first set of claims to be litigated.
58 Other jurisdictions vary on whether issue preclusion
applies in these circumstances. Compare Gragg v.
State, 429 So.2d 1204, 1208 (Fla. 1983)("[W]e hold
that a defendant who successfully severs one charge from
other charges is not estopped from asserting collateral
estoppel [issue preclusion] as a bar to further prosecution
under the severed charge."), Parker v. Blauvelt
Volunteer Fire Co., 712 N.E.2d 647, 651 (N.Y.
1999)(noting that even though the federal claims were severed
from a statutory proceeding, all the constitutional
violations alleged were analyzed; thus, "all of the
factual issues dispositive of the constitutional claims being
raised in the instant action were necessarily decided in the
prior. . . proceeding"), and Commonwealth v.
States, 891 A.2d 737, 744-45 (Pa. Super. Ct.
2005)(noting that acquittal in defendant's previous trial
was binding in subsequent proceeding where the charges
against defendant had been severed), aff'd, 938
A.2d 1016 (Pa. 2007), with Blades v. Woods, 659 A.2d
872, 874 (Md. 1995)("Nor did the circuit court's
severance order . . . have the effect of converting the
single action filed by Blades into two separate actions for
purposes of . . . issue preclusion so that a ruling in the
phase firstly to be decided could be conclusive in the phase
secondly to be decided."); see generally
Restatement (Second) of Judgments § 13 (Am. Law Inst.
1982)("[F]or purposes of issue preclusion . . .,
'final judgment' includes any prior adjudication of
an issue in another action that is determined to be
sufficiently firm to be accorded conclusive effect.").
59 We conclude, for the following reasons, that the issue
preclusion doctrine applies to this case.
60 First, when discussing the doctrine of law of the case, we
cited authority, including two Colorado cases and a Colorado
rule of civil procedure, which indicates that the act of
severing claims makes them "separate and independent
action[s]." King, 641 P.2d at 918 n.6 (citation
omitted); see Hofmann, 642 F.3d at 998;
Maxwell, ¶ 4; Valdez, 336 P.3d at 971;
In re Reynolds, 369 S.W.3d at 650; see also
61 Second, we are persuaded by the reasoning in the authority
from other jurisdictions that holds that the doctrine of
issue preclusion would apply in a case such as this one.
See Gragg, 429 So.2d at 1208; Parker, 712
N.E.2d at 651; States, 891 A.2d at 744-45. We are
not persuaded by Blades, 659 A.2d at 874, because
the analysis in the case was comparatively cursory.
62 Third, the decision in Jones was a final judgment
as far as the state law claims were concerned.
63 We now turn to applying the components of the issue
64 First, we conclude that the factual issue in the state
proceeding was identical to the factual issue pertinent to
this § 1983 claim: whether the mail-in voters'
secrecy rights were actually violated because the Town's
election judges did not remove the ballot stubs before they
tallied some of the mail-in ballots. Indeed, the court's
conclusion that the secrecy of the voters' ballots was
not violated was necessary to the supreme court's
conclusion that the results of the recall election should not
be vacated. See Jones, ¶ 38 (noting that
"the fundamental integrity of the Town . . . recall
election was not called into question, " and concluding
that the election results were valid).
65 The second and third components are met: Citizen Center
was involved in the state claims case, and that case ended in
a final judgment.
66 The fourth component of the doctrine is also satisfied.
Citizen Center had a full and fair opportunity to litigate
the factual issue of whether the mail-in voters' secrecy
rights were violated. Indeed, this question was central to
the state claims case.
67 Because we have concluded that each component of the issue
preclusion doctrine was met, we further conclude that the
doctrine bars Citizen Center from relitigating whether the
mail-in voters' secrecy rights were violated. See,
e.g., Calvert, ¶¶ 11-19 (concluding
that factual issue, which was litigated in a disciplinary
proceeding, was preclusive in party's separate appeal
from a denial of summary judgment).
Trial Court Properly Granted the Town's Summary Judgment
Motion, and It Properly Denied Citizen Center's Summary
68 Having concluded that Citizen Center had standing to bring
its § 1983 claim, but that the issue preclusion doctrine
applies, we turn to resolving the merits of Citizen
69 The Town concedes that Citizen Center preserved its
procedural arguments concerning the trial court's
decision to deny its motion for summary judgment. But the
Town asserts that Citizen Center did not preserve its
"substantive" appellate arguments about that
decision because Citizen Center "submitted [its]
substantive legal analysis in [its] Reply in Support of [its]
Motion and asserted only procedural deficiencies in [its]
Response to the Cross Motion."
70 We disagree with the Town because Citizen Center asserted
the same "substantive claims" that it now raises on
appeal in its response to the Town's motion for summary
judgment. We therefore conclude that all its claims were
71 "In order to prevail under § 1983, a plaintiff
must show that the defendant, under color of state law,
deprived the plaintiff of a right secured by the Constitution
and laws of the United States." Jaffe v. City &
Cty. of Denver, 15 P.3d 806, 811 (Colo.App. 2000).
Citizen Center asserted that the Town violated the
substantive due process, procedural due process, and equal
protection rights of its members.
72 The Due Process Clause guarantees that "[n]o State
shall . . . deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV,
§ 1. The government violates the constitutional
guarantee of substantive due process when it infringes on
fundamental liberty interests unless the infringement is
narrowly tailored to serve a compelling state interest.
People v. Dash, 104 P.3d 286, 290 (Colo.App. 2004).
A person acting under color of state law violates the
constitutional guarantee of procedural due process when he or
she deprives the plaintiff of rights, privileges, or
immunities secured by the Constitution. Eason v. Bd. of
Cty. Comm'rs, 70 P.3d 600, 604 (Colo.App. 2003).
73 The Equal Protection Clause requires the government to
treat similarly situated persons in a like manner. U.S.
Const. amend. XIV; Buckley Powder Co. v. State, 70
P.3d 547, 561 (Colo.App. 2002). Several circuits have noted
that, in the equal protection context, individual or
"isolated" events that negatively affect one group
of people "are not presumed to be a violation of the
equal protection clause, " and a plaintiff must make
some showing of intentional or purposeful discrimination to
succeed on its equal protection claim. Gamza v.
Aguirre, 619 F.2d 449, 453 (5th Cir. 1980); see also
Gelb v. Bd. of Elections, 224 F.3d 149, 154 (2d Cir.
74 We conclude, for the reasons that we explain below, that
the record and the supreme court's holdings in
Jones supported the trial court's decision to
grant the Town's motion for summary judgment and to deny
Citizen Center's motion for summary judgment. In other
words, we conclude that the trial court properly found that,
despite giving Citizen Center all the favorable inferences
that could reasonably be drawn from the evidence and
resolving all doubts in its favor, see Edwards,
¶ 12, the Town had satisfied its burden to show that
there was no genuine issue as to any material fact, see
Town of Berthoud, 983 P.2d at 175. And, once that burden
shifted, Citizen Center did not show that there was a triable
issue of fact. See AviComm, Inc., 955 P.2d at 1029.
75 The record also satisfies us that the trial court
considered Citizen Center's summary judgment motion
separately from the Town's, see AF Prop.
P'ship, 852 P.2d at 1270, and that the court did not
apply the Town's assertion of undisputed facts in its
summary judgment motion "in connection with"
Citizen Center's summary judgment motion,
Churchey, 759 P.2d at 1340 (citation omitted). And
we likewise conclude that the record supports the trial
court's decision that Citizen Center had not satisfied
its burden to show that there was no genuine issue as to any
material fact. See Town of Berthoud, 983 P.2d at
76 Turning first to the substantive due process claim, we
have explained above that such a claim exists if the
government infringes upon fundamental liberty
interests unless the infringement narrowly addresses a
compelling state interest. See Dash, 104 P.3d at 290
(defining a substantive due process claim). But, in this
case, the trial court concluded, and the supreme court
reiterated, that no actual secrecy violation occurred.
Applying the issue preclusion doctrine, this means that the
supreme court's conclusion that there was no secrecy
violation bars Citizen Center's substantive due process
claim alleging that there was. In other words, the conduct of
the election judges did not infringe on Citizen Center
77 We similarly conclude, by again applying the issue
preclusion doctrine, that the Town did not deprive those
members of their procedural due process right to cast a
secret ballot. See Eason, 70 P.3d at 604 (defining a
procedural due process claim).
78 Turning to the equal protection claim, the trial court
found that, although the "counting of [mail-in] ballots
occurred with stubs affixe[d], " that conduct "was
not intentional, " and there was no evidence "that
anyone, including the election judges, took this opportunity
to in fact violate the secrecy of the ballot." This
finding makes clear that Citizen Center did not show the sort
of intentional or purposeful discrimination necessary to
succeed on its equal protection claim. See Gelb, 224
F.3d at 154; Gamza, 619 F.2d at 453.
79 The facts that the supreme court relied on in
Jones show that the mail-in voters and the in-person
voters were not treated differently because their right to a
secret vote was not burdened. But we recognize that the
tallying process for each set of ballots was technically
different: election judges counted the former with stubs
attached but the latter with stubs removed. Citizen Center
seems to contend that this technically disparate counting
process violated the equal protection rights of its members.
See Bush v. Gore, 531 U.S. 98, 104-05 (2000)(noting
that equal protection of the right to vote requires voters to
be treated equally not just in the act of casting votes, but
also in the counting process).
80 We do not read Bush as supporting this claim. In
Bush, the inconsistent counting processes "led
to unequal evaluation of ballots in various
respects." Id. at 106 (emphasis added). That
is, some votes were tallied, while others were not. See
id. But in this case, Citizen Center's § 1983
claim, as alleged in the complaint, did not assert that the
ballots were tallied differently.
81 We also think that, in light of the supreme court's
conclusion that the mail-in voters' secrecy rights were
not abridged, the contention that a difference in tallying
the ballots would be enough to violate the Equal Protection
Clause could lead to absurd results. Say, for example, that
the in-person ballots were placed in a green bucket before
and after counting, but that the mail-in ballots were placed
in a yellow bucket before and after counting. In this
hypothetical, the counting process would be technically
different for each group of ballots because they were placed
in different-colored buckets. But this difference would not
impact a voter's right to secrecy. Cf. Williams v.
Rhodes, 393 U.S. 23, 30 (1968)("[T]he Equal
Protection Clause does not make every minor difference in the
application of laws to different groups a violation of our
82 Citizen Center urges us to apply the equal protection test
set out in Crawford v. Marion County Election Board,
553 U.S. 181, 190 (2008). This test requires that the court,
when weighing a constitutional challenge to an election
regulation, must "weigh the asserted injury to the right
to vote against the 'precise interests put forward by the
State as justifications for the burden imposed by its
rule.'" Id. (citations omitted). According
to Citizen Center, it has satisfied this test because the
Town counted the ballots illegally, and "conduct that
violates the law is accorded no legitimacy."
83 We do not think that this test applies to this case
because it concerns an election regulation, while
the facts in this case pertain to a procedural electoral
flaw. And, even if the test applied, Citizen Center did not
satisfy it because it did not establish an "asserted
injury to the right to vote" in the recall election.
84 In summary, although the counting method that the Town
used risked a deprivation of constitutional rights,
that risk never flowered into an actual deprivation of
constitutional rights. Because the undisputed facts foreclose
Citizen Center's argument that its members suffered a
deprivation of their rights, we need not address whether the
Town acted under color of state law when the election judges
did not remove the ballot stubs before they tallied the
85 Citizen Center asks us to award its appellate attorney
fees. See 42 U.S.C. § 1988(b) (2012)(noting
that a court may award the prevailing party attorney fees in
a claim under § 1983). We deny this request because
Citizen Center did not prevail in this appeal.
86 The judgment of the trial court is affirmed.
[*]Sitting by assignment of the
Chief Justice under provisions of Colo. Const. art. VI,
§ 5(3), and § 24-51-1105, C.R.S. 2016.