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In re Colorado Ethics Watch

Supreme Court of Colorado, En Banc

April 25, 2016

In Re Colorado Ethics Watch, Plaintiff
Independent Ethics Commission. Defendant

Original Proceeding Pursuant to C.A.R. 21 District Court, City and County of Denver, Case No. 15CV31862 Honorable A. Bruce Jones, Judge

Attorneys for Plaintiff: Colorado Ethics Watch Luis Toro Margaret Perl Denver, Colorado

Attorneys for Defendant: Cynthia H. Coffman, Attorney General Frederick R. Yarger, Solicitor General Lisa Brenner Freimann, First Assistant Attorney General Kyle Dumler, Senior Assistant Attorney General Natalie M. Lucas, Assistant Attorney General Denver, Colorado

JUSTICE GABRIEL dissents, and JUSTICE MÁRQUEZ and JUSTICE HOOD join in the dissent.


¶1 In this original proceeding, we consider whether the Independent Ethics Commission's ("IEC") decision to dismiss a complaint against a public officer as frivolous is subject to judicial review. The plaintiff contends that the General Assembly authorized such review when it enacted section 24-18.5-101(9), C.R.S. (2015), which provides that "[a]ny final action of the commission concerning a complaint shall be subject to judicial review." The Colorado Constitution, however, forbids the General Assembly from "limit[ing] or restrict[ing]" IEC's powers. Colo. Const. art. XXIX, § 9. Moreover, although the constitution provides that "penalties may be provided by law, " id. § 6 (emphasis added), it further provides that IEC "may dismiss frivolous complaints without conducting a public hearing, " id. § 5(3)(b). We conclude that, while the General Assembly may authorize judicial review of IEC's enforcement decisions, it may not encroach upon IEC's decisions not to enforce. Therefore, we hold that the General Assembly's "judicial review" provision does not apply to frivolity dismissals. Accordingly, we make our rule to show cause absolute, and we remand this case to the trial court with instructions to dismiss the plaintiff's complaint.

I. Facts and Procedural History

¶2 In 2006, Colorado voters passed Amendment 41 and created IEC, an independent commission tasked with investigating allegations of government officials' misconduct. See id. § 5 ("Amend. 41"). The amendment authorizes any person to file a complaint "asking whether a public officer, member of the general assembly, local government official, or government employee has failed to comply" with certain standards of conduct. Id. § 5(3)(a). Although IEC must "conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint, " it may dismiss frivolous complaints without performing such actions. Id. § 5(3)(b)–(c). When IEC dismisses a complaint as frivolous, it must keep that complaint confidential. Id. § 5(3)(b).

¶3 In 2014, Plaintiff Colorado Ethics Watch ("Ethics Watch"), a self-styled watchdog organization, filed a complaint with IEC regarding a commissioner in Elbert County. After initially staying the matter, IEC began reviewing Ethics Watch's complaint in March 2015. IEC conducted a preliminary investigation, and in May 2015, after meeting in executive session to discuss the complaint, IEC dismissed it as frivolous. Subsequently, Ethics Watch filed a request with IEC under the Colorado Open Records Act, §§ 24-72-200.1 to -206, C.R.S. (2015), seeking "[a]ll documents collected, reviewed or generated in connection with" its complaint. IEC denied the request, citing Amendment 41's confidentiality provision and stating that it "shall maintain all the documents responsive to [the] request as confidential."

¶4 Ethics Watch then sued IEC, claiming relief under both the State Administrative Procedure Act ("APA"), § 24-4-106, C.R.S. (2015), and C.R.C.P. 106. In particular, Ethics Watch sought an order from the trial court declaring IEC's frivolity determination "unlawful" and compelling IEC to "proceed with an investigation, to be followed by a public hearing." After the trial court denied IEC's motion to dismiss for lack of subject matter jurisdiction, IEC asked us to exercise our original jurisdiction pursuant to C.A.R. 21. We issued a rule to show cause why the motion to dismiss should not be granted.[1]

II. Original Jurisdiction

¶5 "Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited both in purpose and availability." Dwyer v. State, 2015 CO 58, ¶ 4, 357 P.3d 185, 187. That said, we "generally elect to hear C.A.R. 21 cases that raise issues of first impression and that are of significant public importance." Id., 357 P.3d at 187–88. This case satisfies both criteria. We have never considered whether IEC's determinations of frivolousness are reviewable. Furthermore, this case presents an important question, as its resolution implicates IEC's operations going forward.

III. Standard of Review

¶6 Because the pertinent facts of this case are undisputed, we review the trial court's denial of IEC's motion to dismiss under C.R.C.P. 12(b)(1) de novo. See Medina v. State, 35 P.3d 443, 452 (Colo. 2001).

IV. Analysis

¶7 To determine whether IEC's frivolity determinations are subject to judicial review, we first examine the relevant text of Amendment 41, along with its statutory counterpart, section 24-18.5-101. We then consider whether Amendment 41 permits the General Assembly to authorize judicial review of IEC's frivolity determinations. We conclude that the amendment only allows the legislature to sanction review of IEC's enforcement decisions; thus, the General Assembly may not encroach upon IEC's decisions not to enforce. Therefore, we hold that section 24-18.5-101(9) does not apply to frivolity dismissals.

A. Amendment 41 and Section 24-18.5-101

¶8 Amendment 41 creates IEC and outlines its investigative function. It provides that IEC "may dismiss frivolous complaints without conducting a public hearing." Amend. 41, § 5(3)(b). When IEC does dismiss a complaint as frivolous, that complaint "shall be maintained confidential by [IEC]." Id. For non-frivolous complaints, however, IEC "shall conduct an investigation, hold a public hearing, and render findings." Id. § 5(3)(c). Additionally, the amendment includes a "Penalty" section that features two core components: (1) any public official "who breaches the public trust . . . shall be liable" for certain fines; and (2) "[t]he manner of recovery and additional penalties may be provided by law." Id. § 6 (emphasis added). Finally, the amendment provides that "[l]egislation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions of this article or the powers herein granted." Id. § 9 (emphasis added).

¶9 Similar to Amendment 41, section 24-18.5-101 outlines various IEC functions.Only subsection (9) is relevant here. It provides as follows: "Any final action of [IEC] concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver." § 24-18.5-101(9).[2]

¶10 Having articulated these provisions, we now turn to the substantive question presented here: whether IEC's frivolity determinations are subject to judicial review.

B. IEC's Frivolity Determinations Are Not Subject to Judicial Review

¶11 To begin with, we note that IEC is not an executive agency; it is instead an independent, constitutionally created commission that is "separate and distinct from both the executive and legislative branches." Dev. Pathways v. Ritter, 178 P.3d 524, 532 (Colo. 2008). Thus, Amendment 41 articulates what the General Assembly can and cannot do. Put differently, any authority that the General Assembly may exercise regarding IEC's operations derives exclusively from Amendment 41 itself, not from standard principles of administrative agency law.

¶12 Pursuant to Amendment 41, the General Assembly can provide for additional penalties when an official breaches the public trust. See Amend. 41, § 6. As such, Amendment 41 vests the General Assembly with authority to enact legislation involving situations where IEC has enforced a penalty against an official. But the General Assembly cannot enact legislation that "limit[s] or restrict[s]" IEC's powers. Id. § 9. Therefore, because Amendment 41 only permits the legislature to act with respect to IEC's enforcement actions, the General Assembly cannot constitutionally enact legislation pertaining to any IEC decisions that do not involve enforcing penalties.

¶13 Given this context, the scope of section 24-18.5-101(9)-which, again, provides that "[a]ny final action of [IEC] concerning a complaint shall be subject to judicial review"-is necessarily limited. It can only encompass enforcement actions. But IEC's dismissal of a complaint as frivolous does not involve the enforcement of penalties; rather, it represents IEC's decision not to enforce. As discussed, the General Assembly is constitutionally prohibited from enacting legislation that could upend such a decision. See Amend. 41, § 9. Therefore, section 24-18.5-101(9) simply cannot apply to IEC's dismissals of frivolous complaints.

¶14 We note that interpreting section 24-18.5-101(9) to exclude frivolity determinations preserves its constitutionality.[3] We presume statutes to be constitutional, and we will not strike one down "unless a 'clear and unmistakable' conflict exists between the statute and a provision of the Colorado Constitution." Coffman v. Williamson, 2015 CO 35, ¶ 13, 348 P.3d 929, 934 (quoting E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038, 1041 (Colo. 2004)). We discern no such conflict here. By its terms, subsection (9) authorizes judicial review of "final action[s]." It is entirely reasonable that, in choosing this language, the General Assembly differentiated between enforcement and non-enforcement decisions, as does our constitution. That is, the General Assembly recognized both what Amendment 41 permits (i.e., legislation involving penalties) and what it forbids (legislation restricting IEC's powers), and it acted accordingly. Thus, section 24-18.5-101(9) sanctions judicial review of IEC's enforcement decisions without unconstitutionally trespassing on IEC's power to dismiss frivolous complaints.

¶15 Ethics Watch nevertheless insists that IEC's dismissal of its complaint constituted a final action, as it signified the end of IEC's review. Cf. MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710, 721 (Colo. 2010) ("A final decision marks the consummation of theagency's decision-making process and is one from which legal consequences flow." (emphasis added)). This argument misses the mark. Ethics Watch characterizes IEC's dismissal as "a Final Agency Action." Response to Rule to Show Cause, at 10. But IEC is not an agency-it is an independent, constitutionally created commission. See Dev. Pathways, 178 P.3d at 530 (noting that Amendment 41 "makes clear that [IEC] is . . . an entity separate and distinct from the executive and legislative branches"). Thus, generalized case law regarding an agency's "final ...

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