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Keim v. Douglas County School District

Supreme Court of Colorado, En Banc

July 3, 2017

Julie Keim, Petitioner,
Douglas County School District, Respondent,

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA268

          Attorneys for Petitioner: Fairfield and Woods, P.C., Craig D. Joyce, Lee Katherine Goldstein Denver, Colorado

          Attorneys for Respondent: Brownstein Hyatt Farber Schreck, LLP, Jason R. Dunn, Joshua A. Weiss Denver, Colorado

          Attorneys for Amicus Curiae Colorado Common Cause: Ireland Stapleton Pryor & Pascoe, PC, Benjamin J. Larson Denver, Colorado

          Attorney for Amicus Curiae Colorado Ethics Watch: Luis Toro Denver, Colorado

          Attorneys for Amicus Curiae Colorado Secretary of State: Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Matthew D. Grove, Assistant Solicitor General Denver, Colorado



         ¶1 In 2013, Douglas County School District (the "District") used public funds to commission a white paper (the "Hess Report") supportive of the District's reform agenda. The Hess Report referenced an upcoming school board election and briefly profiled existing school board members, all of whom supported the reform agenda. The District included a link to the Hess Report in an email distributed to 85, 000 Douglas County residents several weeks before the November 2013 school board election.

         ¶2 We are asked to decide whether the Hess Report was a prohibited campaign "contribution" under section 1-45-117(1)(a)(I) of Colorado's Fair Campaign Practices Act ("FCPA" or the "Act"), sections 1-45-101 to -118, C.R.S. (2016), and article XXVIII, section 2(5)(a)(IV) of the Colorado Constitution. The FCPA prohibits state government entities and political subdivisions of the state from making any "contribution" in "campaigns involving the nomination, retention, or election of any person to any public office." § 1-45-117(1)(a)(I), C.R.S. (2016). Under the state constitution, a "contribution" includes, among other things, "[a]nything of value given, directly or indirectly, to a candidate for the purpose of promoting the candidate's nomination, retention, recall, or election." Colo. Const. art. XXVIII, § 2(5)(a)(IV). Because the District did not give the Hess Report, directly or indirectly, to any school board candidate when it disseminated the email containing a link to the report to Douglas County residents, we conclude the District did not make a prohibited "contribution" in a campaign under these Colorado campaign finance provisions. Accordingly, we affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶3 Petitioner Julie Keim was a candidate for one of four open seats in the 2013 Douglas County school board election. Douglas County School District is a political subdivision of the State subject to the FCPA. See Bagby v. Sch. Dist. No. 1, 528 P.2d 1299, 1302 (Colo. 1974). According to Keim, after the 2009 school board election, the District began implementing a conservative "reform agenda, " which she characterized as "[school] choice-focused" and supportive of charter schools. The 2011 election brought in three additional reform agenda board members; thereafter, the entire board and the District's superintendent unanimously supported the reform agenda.

         ¶4 In 2013, four school board seats were up for election. In February of that year, the District contracted with the American Enterprise Institute ("AEI") to prepare a white paper about Douglas County's school system. This white paper, authored by Dr. Frederick M. Hess and Max Eden of AEI, ultimately became known as the Hess Report.

         ¶5 The agreement between the District and AEI stated that AEI would "research, create, publish[, ] and publicize" a twenty-five- to thirty-page white paper that would:

a. Describe Douglas County, the school system, and [the superintendent's] background and experience.
b. Describe some of the problems that Douglas County's efforts are meant to address.
c. Describe what Douglas County is doing in terms of curriculum, instruction, programs, systems in place, etc.
d. Explain how this is new and different; describe some of the advantages of the model.
e. Delineate some of the challenges Douglas County faces based on this model.
f. Explain lessons learned from the model.

         The District agreed to pay AEI $30, 000 for the report, $15, 000 of which was ultimately paid by the District, and $15, 000 of which was paid by the Douglas County School District Foundation, a non-profit organization.

         ¶6 AEI's research assistant wrote to the District's community relations officer in advance of a research visit to Colorado, seeking guidance from the District regarding the focus and direction of the report:

Ideally we would love for you all to help us help you. We can touch base on this as the date draws closer, but we would prefer not to go out there with a blank slate. Rather, we would prefer it if you would tell us what you want us to focus on, what is most worthy of attention, what you'd like to see written about and what your general angle on it (and the paper) is. This is just something to flag to [the superintendent] so she can mull it over a bit. Perhaps all of the interviews are already lined up with a certain focus in mind, but if not we encourage you to tailor our time out there to directed interviews with folks that you want to make a particular point of in us meeting and writing about them.

         ¶7 The District thus worked with AEI as it conducted research, and made changes to the draft report.

         ¶8 AEI finalized and published the twenty-two-page Hess Report in September 2013. Relevant here, the Report described the reform agenda as "perhaps the nation's boldest attempt at suburban school reform"; "unusually ambitious"; "remarkable in the annals of contemporary school reform"; and "remarkable and illuminating." The report contained brief profiles of each of the existing board members. An approximately three-page section called "Electing a Reform Board" described the history of the existing board and noted that Douglas County provided a "compelling illustration of how a unified board majority can fuel rapid, ambitious reform." At the end of that section, the report noted rumored efforts to defeat the four incumbent board members up for re-election:

Four board members will stand for reelection in November 2013. As they prepare, there are murmurs that the [American Federation of Teachers] might spend substantial sums to defeat them. Several Colorado Democrats have made similar noises. The November results promise to say a great deal about where matters stand in [Douglas County], and may shed ...

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