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Jones v. Samora

Court of Appeals of Colorado, Sixth Division

December 29, 2016

Maurice C. Jones and Citizen Center, a Colorado nonprofit corporation, Plaintiffs-Appellants,
v.
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.

         Saguache County District Court No. 13CV30009 Honorable Martin A. Gonzales, Judge

         JUDGMENT AFFIRMED

          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

          Fox and Vogt [*] , JJ., concur

          OPINION

          BERNARD JUDGE

          ¶ 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 ballots.

         ¶ 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 Town."

         ¶ 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.

         I. Background

         A. The Election

         ¶ 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.

         ¶12 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.

         B. Bench Trial

         ¶ 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 the ballots."
• "[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 secrecy."
• "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.

         C. 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 ¶¶ 38-39.

         ¶ 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.

         D. § 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.

         II. Standing

         ¶ 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.

         A. Law

         ¶ 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 ...


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