Office of Administrative Courts No. 0S2016-0005
Matthew Arnold, Authorized Representative, Denver, Colorado,
of Campaign Integrity Watchdog, LLC
Holland & Hart LLP, Douglas L. Abbott, Denver, Colorado,
Cynthia H. Coffman, Attorney General, Matthew D. Grove,
Assistant Solicitor General, Denver, Colorado, for
1 This appeal asks us to review the decision of an
administrative law judge who employed the "major purpose
test, " which the United States Supreme Court first set
forth in Buckley v. Valeo, 424 U.S. 1, 79 (1976), to
determine whether an organization was a political committee.
We conclude that the record supports the judge's holding
that the organization was not a political committee because
it did not have the major purpose of nominating or electing
2 The organization in question was Colorado Citizens
Protecting our Constitution, which we shall call
"Colorado Citizens." Campaign Integrity Watchdog,
LLC, which we shall call "Campaign Integrity, "
filed a complaint against Colorado Citizens, alleging that it
had not registered as a political committee when it should
have. The judge dismissed the complaint. Campaign Integrity
appeals. We affirm.
3 Between September and November 2015, Colorado Citizens paid
for a radio advertisement that supported the candidacy of Bob
Gardner for state senate. The advertisement stated as
He's a conservative leader who's served our community
and our country his entire life. Now he's running to
represent Colorado Springs in the state senate. Bob Gardner.
As a young cadet at the Air Force Academy, he learned the
true meaning of leadership. Then Bob Gardner fought for
school choice as a founder of Cheyenne Mountain Charter
Academy. And as a state legislator, Bob Gardner stood up
against trial lawyers, teachers' unions, and big spending
politicians, earning him multiple legislator of the year
awards. Now Bob Gardner is running for state senate. To make
sure our veterans get the care they deserve. To fight for our
rights on guns, school choice, and health care. And to take
on the big spenders in both parties. A fiscal hawk with the
unflinching guts to stand up for what's right. Bob
Gardner. Paid for by Colorado Citizens Protecting our
4 The advertisement ran on one or more radio stations in
Colorado Springs from September through November 2015.
5 Following the advertisement's airing, Campaign
Integrity filed a complaint with the Colorado Secretary of
State. It alleged that Colorado Citizens had not registered
as a political committee, as required by article XXVIII of
the Colorado Constitution and the Fair Campaign Practices
Act, sections 1-45-101 to -118, C.R.S. 2017. The
Secretary's office referred the case to the Office of
Administrative Courts, which assigned an administrative law
judge to preside over it.
6 The Secretary moved to intervene in the proceedings. The
judge granted the motion in part, noting that the Secretary
would be allowed to intervene only to "submit an
amicus-style brief addressing the legal issues relevant in
7 Both Colorado Citizens and the Secretary moved for summary
judgment. Relying on Colorado Right to Life Committee,
Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007), and
Alliance for Colorado's Families v. Gilbert, 172
P.3d 964 (Colo.App. 2007), Colorado Citizens contended that
it was not a political committee because it did not have the
"major purpose" of supporting or opposing
candidates. The Secretary supported that contention, but it
added that Colorado Citizens could not be a political
committee because it did not make or receive contributions.
Because of the Secretary's limited party status, the
judge construed the motion as a legal brief supporting
Colorado Citizens' position. The judge denied both
summary judgment motions.
8 The judge then held a hearing on the merits to determine
Colorado Citizens' major purpose. He found that, based on
the financial information admitted into evidence, Colorado
Citizens' spending on political candidates only accounted
for little more than one-third of its total spending, while
the majority of its spending involved political issues. So he
concluded that Colorado Citizens was not a political
committee because it did not have the major purpose of
nominating or electing political candidates.
Standard of Review and General Legal Principles
9 We will uphold the decision of an administrative law judge
unless his or her decision is arbitrary, capricious,
unsupported by the evidence, or contrary to law. See
Sherritt v. Rocky Mountain Fire Dist., 205 P.3d
544, 545 (Colo.App. 2009). "[W]e accept [a judge's]
factual findings unless they are clearly erroneous or
unsupported by evidence in the record." Colo. Educ.
Ass'n v. Rutt, 184 P.3d 65, 77 (Colo. 2008). But
whether the judge applied the correct legal standard is a
question of law that we review de novo. See Cerbo v.
Protect Colo. Jobs, Inc., 240 P.3d 495, 500-01
(Colo.App. 2010); see also Stamm v. City &
Cty. of Denver, 856 P.2d 54, 57 (Colo.App. 1993)(noting
that "[a] reviewing court is required to set aside the
final orders of an administrative agency if the agency
applied an erroneous legal standard").
10 In an administrative hearing, evidence is admissible if it
"possesses probative value commonly accepted by
reasonable and prudent persons in the conduct of their
affairs." Colo. Motor Vehicle Dealer
Licensing Bd. v. Northglenn Dodge, Inc., 972 P.2d 707,
713 (Colo.App. 1998). But a judge "has discretion to
determine the relevancy of evidence." Aviado v.
Indus. Claim Appeals Office, 228 P.3d 177, 179
(Colo.App. 2009). "Evidentiary decisions are firmly
within a [judge's] discretion . . . and will not be
disturbed absent a showing of abuse of that discretion."
Youngs v. Indus. Claim Appeals Office, 2013
COA 54, ¶ 40. "An abuse of discretion occurs when
the [judge's] order is beyond the bounds of reason, as
where it is unsupported by the evidence or contrary to
law." Heinicke v. Indus. Claim Appeals
Office, 197 P.3d 220, 222 (Colo.App. 2008).
"The Major Purpose" Test
11 Campaign Integrity contends that the judge erred when he
held that Colorado Citizens was not a political committee.
The error arose, this contention continues, from the