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McGihon v. Cave

Court of Appeals of Colorado, First Division

May 19, 2016

Anne L. McGihon, Plaintiff-Appellant,
v.
Thomas E. Cave and Jessica K. Peck, Defendants-Appellees.

         City and County of Denver District Court No. 14CV32935 Honorable Morris B. Hoffman, Judge

          Announced May 19, 2016 The Contigulia Law Firm, P.C., Andrew J. Contigulia, Denver, Colorado, for Plaintiff-Appellant

          Law Firm of Hampton & Pigott, LLP, Audris G. Hampton, David J. Pigott, Broomfield, Colorado, for Defendant-Appellee Thomas E. Cave

          Timmins, LLC, Edward P. Timmins, Jo Deziel Timmins, Denver, Colorado, for Defendant-Appellee Jessica K. Peck

          OPINION

          MILLER JUDGE

         ¶ 1 Plaintiff, Anne L. McGihon, appeals the district court's order dismissing her petition for entry of judgment based on an administrative law judge (ALJ) order awarding her attorney fees under section 1-45-111.5(2), C.R.S. 2015, of the Fair Campaign Practices Act (FCPA). We affirm.

         I. Background

         ¶ 2 Defendant Thomas E. Cave filed a complaint with the Colorado Secretary of State alleging that McGihon, a lobbyist, violated the FCPA by allowing her name to be placed on an event invitation on behalf of a candidate for the Colorado House of Representatives. Cave v. McGihon, slip op. at 1 (Colo.App. No. 13CA0137, Nov. 27, 2013) (not published pursuant to C.A.R. 35(f)). Following a hearing, the ALJ dismissed Cave's claims and awarded McGihon attorney fees in the amount of $17, 712.38, finding that Cave's claims were substantially groundless, frivolous, and vexatious. Id. at 4. The ALJ awarded the fees jointly and severally against Cave and Cave's counsel, Jessica K. Peck. Id. at 4-5. Cave appealed the dismissal and the attorney fees award, and a division of this court affirmed the ALJ's order. Id. at 1.

         ¶ 3 McGihon filed a petition for entry of judgment in the district court against Cave and Peck. Cave and Peck filed separate motions to dismiss the petition under C.R.C.P. 12(b). The district court granted the motions and dismissed the case for lack of subject matter jurisdiction. The court concluded that while section 1-45-111.5(2) allows an ALJ in campaign finance cases to award fees and costs against either party or its lawyers, no statutory authority exists for the district court to convert such an award into a district court judgment. The district court further held that the plain language of the Colorado Constitution, article XXVIII, section 9(2)(a), permits only the secretary of state or the person filing an action to enforce the campaign finance laws to enforce the ALJ's order awarding fees.

         II. Analysis

         ¶ 4 McGihon contends the district court erred when it dismissed her petition for entry of judgment due to lack of jurisdiction. As a question of first impression, we consider whether section 1-45-111.5(2) and article XXVIII, section 9(2)(a) permit a respondent who has been awarded attorney fees in an FCPA action to enforce the award in the district court. We conclude they do not.

         A. Standard of Review

         ¶ 5 We review the interpretation of statutes and constitutional provisions, which are questions of law, de novo. Roup v. Commercial Research, LLC, 2015 CO 38, ¶ 8 (statutes); Bruce v. City of ...


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