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Campaign Integrity Watchdog, LLC v. Colorado Citizens Protecting Our Constitution

Court of Appeals of Colorado, Seventh Division

February 8, 2018

Campaign Integrity Watchdog, LLC, Petitioner-Appellant,
v.
Colorado Citizens Protecting our Constitution, Respondent-Appellee, and Colorado Secretary of State, Intervenor-Appellee.

         Colorado 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, for Respondent-Appellee

          Cynthia H. Coffman, Attorney General, Matthew D. Grove, Assistant Solicitor General, Denver, Colorado, for Intervenor-Appellee

          ORDER

          BERNARD JUDGE.

         ¶ 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 candidates.

         ¶ 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.

         I. Background

         ¶ 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 follows:

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 Constitution.

         ¶ 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 the complaint."

         ¶ 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.

         II. 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).

         III. "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 ...


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