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Watchdog v. Coloradans for a Better Future

Court of Appeals of Colorado, First Division

April 7, 2016

Campaign Integrity Watchdog, Petitioner-Appellant,
v.
Coloradans for a Better Future, Respondent-Appellee, and Office of Administrative Courts, Appellee.

         Office of Administrative Courts Case No. OS 2014-0004

          Matthew Arnold, Denver, Colorado, Authorized Representative of Campaign Integrity Watchdog

          Bayer & Carey, P.C., Andrew C. Nickel, Denver, Colorado, for Respondent-Appellee

          No Appearance for Appellee

          Miller and Fox, JJ., concur

          TAUBMAN JUDGE

         ¶ 1 This is the third in a series of complaints brought by claimant, Campaign Integrity Watchdog (CIW), or its principal officer, Matthew Arnold, against Coloradans for a Better Future (CBF), a political organization under section 1-45-103(14.5), C.R.S. 2015, to challenge CBF's alleged failure to report contributions and spending. In 2012, Arnold lost the Republican primary election for University of Colorado Regent to Brian Davidson. During the run-up to the primary election, CBF purchased a radio advertisement supporting Davidson and other radio advertisements containing messages unfavorable to Arnold. After the election, Arnold, and later CIW with Arnold as its principal officer, filed a series of complaints with the Colorado Secretary of State (Secretary) alleging violations of Colorado's Fair Campaign Practices Act (FCPA).

         ¶ 2 CIW appears without counsel and appeals the decision of the administrative law judge (ALJ) from the Office of Administrative Courts (OAC) dismissing its complaint following a motion for summary judgment and concluding that no reporting violations related to the payment of Arnold's court costs had been established on the part of CBF.[1] Specifically, CIW challenges CBF's failure to report funds donated to CBF to pay Arnold's court costs from an earlier case. CIW argues that those funds constituted a contribution and spending and were incorrectly reported in CBF's initial January 2014 contributions and expenditures report. We affirm the ALJ's decision and award CBF costs on appeal.

         I. Background

         ¶ 3 The history between Arnold, CIW, and CBF is more fully described in Campaign Integrity Watchdog v. Coloradans for a Better Future, 2016 COA 51, ___ P.3d___ (CIW I).

         ¶ 4 In Arnold v. Coloradans for a Better Future, No. OS 2012-0024 and No. 2012-0025 (O.A.C. Jan. 11, 2013), the ALJ imposed a penalty of $4525 for CBF's failure to report certain electioneering communications. When CBF failed to pay the penalty, Arnold filed a complaint against CBF in the Denver District Court to enforce the penalty. Arnold prevailed, and the district court ordered CBF to pay its penalty, as well as Arnold's court costs of $200.20 incurred in bringing the action.

         ¶ 5 The Colorado Justice Alliance (CJA) donated $200.20 to enable CBF to satisfy its obligation to pay Arnold's court costs.

         In the complaint at issue here, Campaign Integrity Watchdog v. Coloradans for a Better Future, No. OS 2014-004 (O.A.C.) Feb. 25, 2015, CIW alleged CBF failed to report accurately (1) contributions it had received from CJA and (2) using those funds to pay Arnold's court costs.[2] The case before the ALJ was continued pending CBF's response to a subpoena duces tecum in the Denver District Court. The district court compelled the production of documents requested by CIW. When CBF did not comply with the order, the district court issued a contempt citation. Ultimately, CBF produced the documents sought by CIW's subpoena. Following production of the documents, CIW moved to reset the administrative case for hearing. CBF moved for summary judgment, which the ALJ granted.

         ¶ 6 The ALJ found the following facts were not in genuine dispute. On January 22, 2014, CBF filed a contribution and expenditures report with the Secretary. Although CBF's next report was not due until May 5, 2014, CBF filed the report early because it intended to terminate its activities as a political organization.[3]

         ¶ 7 Also on January 22, 2014, CBF's legal counsel sent an e-mail to the Secretary seeking to amend the report to show that CJA contributed $200.20 to pay Arnold's court costs.[4] At the time, the Secretary's electronic reporting system (TRACER) did not allow changes to be made to termination reports. Because CBF was unable to make the amendment itself, it requested the Secretary's staff to do so. The Secretary's staff attempted to update the report to reflect CBF's amendment, but discovered they were also unable to do so because of TRACER's limitations. CIW filed its complaint in this case on March 3, 2014. CBF's report was publicly amended on March 6, 2014, as requested by CBF's legal counsel.

         ¶ 8 Before the ALJ, CIW raised two arguments - one concerning contributions and one concerning spending. First, CIW alleged that the $200.20 donation to pay Arnold's court costs was a contribution to CBF that should have been reported on the initial report. The ALJ concluded that CBF had already reported the contribution to the Secretary when CIW filed its complaint in March 2014 and that the complaint was premature because the report, which was filed in January 2014, was not due until May 2014. Second, CIW alleged that CBF failed to report the payment of Arnold's costs as spending in violation of section 1-45-108.5(1)(b), C.R.S. 2015. The ALJ found that the money paid to Arnold for the court costs did not meet the definition of spending under the FCPA.

         ¶ 9 CIW raises two contentions on appeal: (1) the $200.20 CJA donated to help CBF satisfy its obligation to pay Arnold's court costs was a contribution that was incorrectly reported on the initial report and (2) the $200.20 CBF paid to Arnold constituted spending that should have been reported. We disagree.

         II. Motion for Summary Judgment Standard

         ¶ 10 To the extent practicable, the Colorado Rules of Civil Procedure apply to matters before the OAC. Dep't of Pers. & Admin. Reg. 104-1, 1 Code Colo. Regs. 104-1:15. Because this case was litigated as a motion for summary judgment, we assume the law applicable to C.R.C.P. 56 motions is appropriate.[5]

         ¶ 11 CBF contends that we review under the clearly erroneous standard. CBF is mistaken. We review the entry of summary judgment de novo. McIntyre v. Bd. of ...


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