ALLIANCE FOR A SAFE AND INDEPENDENT WOODMEN HILLS and Sarah Brittain Jack, Petitioners,
CAMPAIGN INTEGRITY WATCHDOG, LLC, Respondent.
Rehearing Denied October 28, 2019
Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 16CA267.
for Petitioners: Law Office of Robert S. Gardner, Robert S.
Gardner, Laura A. Gardner, Colorado Springs, Colorado.
Representative of Respondent: Matthew Arnold, Denver,
In this case, we are asked to decide two questions regarding
the meaning of article XXVIII, section 9(2)(a) of the
Colorado Constitution. First, we must construe the term
"violation" as that term is used in section 9(2)(a)
and decide whether the "violation" that triggers
section 9(2)(a)s one-year statute of limitations for private
campaign finance enforcement actions can extend beyond the
dates adjudicated and penalized in the decision being
enforced. Second, we must decide whether the attorney fees
provision in section 9(2)(a) is self-executing or whether it
must be read together with section 13-17-102(6), C.R.S.
(2019), to limit attorney fee awards against a pro se
With regard to the first question, we conclude that the term
"violation," as used in section 9(2)(a), refers to
the violation as adjudicated and penalized in the decision
being enforced. Accordingly, we further conclude that the
division erred in perceiving a possible continuing violation
under section 9(2)(a). Therefore, the enforcement action in
this case was barred by the one-year statute of limitations.
With regard to the second question, we conclude that section
9(2)(a)s language stating that "[t]he prevailing party
in a private enforcement action shall be entitled to
reasonable attorneys fees and costs" is self-executing
and that section 13-17-102(6) cannot be construed to limit or
nullify section 9(2)(a)s unconditional award of attorney
fees to the prevailing party. Accordingly, we reverse the
divisions contrary determination and conclude that
petitioners, Alliance for a Safe and Independent Woodmen
Hills ("Alliance") and Sarah Brittain Jack, as the
prevailing parties in this case, are entitled to an award of
the reasonable attorney fees that they incurred in the
district and appellate courts in this case.
I. Facts and Procedural History
In May 2014, Woodmen Hills Metropolitan District
("Woodmen Hills") held an election to fill vacant
positions on its board of directors, and Ron Pace was one of
the candidates for such a position. Several months before the
election, a group of Woodmen Hills residents formed Alliance,
organization headed by Jack, to educate Woodmen Hills
residents about issues affecting their community.
Alliance subsequently undertook efforts advocating Paces
defeat in the upcoming election. Among other things, in the
months leading to the election, Alliance mailed four
different postcards to over 2,400 Woodmen Hills residents,
each making negative comments about Pace. Alliance also
established a Facebook page that featured posts sharply
critical of Pace and that expressly called for his defeat in
the upcoming election.
Pursuant to article XXVIII, section 9(2)(a) of the Colorado
Constitution, respondent Campaign Integrity Watchdog
("Watchdog"), Pace, and another Woodmen Hills
resident subsequently filed campaign finance complaints with
the Colorado Secretary of State ("Secretary"). As
pertinent here, Watchdog alleged that Alliance violated the
Colorado Fair Campaign Practices Act ("FCPA"),
sections 1-45-101 to -118, C.R.S. (2019), and article XXVIII
of the Colorado Constitution when it failed (1) to register
as a political organization and political committee and (2)
to report accurately all contributions received and all
campaign spending or expenditures. The Secretary referred the
complaints to the Office of Administrative Courts where they
Thereafter, an administrative law judge ("ALJ")
held two days of hearings, and on August 8, 2014, he issued a
Final Agency Decision. In this decision, the ALJ found that
Alliance was a political committee because it (1) expended
over $200 to oppose Paces election by expressly advocating
his defeat on its Facebook page and (2) received
contributions in excess of $200 that were intended for and
used to oppose Paces election. The ALJ further found that as
a political committee, Alliance was required to register with
the Secretary and to make periodic reports of its
contributions and expenditures but that it had not done so.
Specifically, as to the failure to register, the ALJ ruled
that "[b]ecause Alliances first contribution in excess
of $200 was received on March 16, 2014, it was obligated to
register as of that date. Because March 16 was a Sunday,
Alliances registration was due the following workday, March
17th." And as to the reporting violations, the ALJ
concluded that "[t]he reporting periods for special
district elections are defined by Secretary of State Rule
17.4 as the 21st day before, the Friday before, and the 30th
day after the date of a regular election," and
"[b]ecause the election was held May 6, 2014, Alliances
reports were due April 15, May 2, and June 5, 2014."
The ALJ then proceeded to address the applicable sanctions to
which Alliance was subject under article XXVIII, sections
9(2) and 10(2) and section 1-45-111.5(1.5), of the FCPA. In
this regard, the ALJ imposed the following sanctions:
a) Failure to register : Registration was due March
17, 2014, but not filed as of the first day of hearing, June
26, 2014; a period of 101 days, for a total of $5,050.
b) Failure to report : Alliance received two
contributions ($10,000 on March 16, 2014; $7,500 on March 17,
2014) by April 10, 2014, and therefore was required to report
those contributions by April 15, 2014. No report was filed as
of June 26th, a period of 71 days, for a total of $3,550.
Alliance received no more contributions and made no
expenditures prior to the closing date for the report due May
Alliance received one final contribution of $500 on May 12,
2014; and made the expenditure associated with its Facebook
based express advocacy on May 29, 2014. These were reportable
on the report due June 5, 2014. This report was not filed as
of June 26, 2014, a period of 21 days, for a total of $1,050.
The total penalties therefore include $5,050 for failure to
register as a political committee, and $4,600 for failure to
file contributions and expenditures reports, for a total
penalty of $9,650.
Alliance subsequently filed a motion to stay the ALJs
decision pending appeal, but the ALJ denied that motion.
later, Alliance filed a notice of appeal and a motion to stay
with the Colorado Court of Appeals. A division of that court
denied this motion to stay, and on October 8, 2014, Alliance
registered with the Secretary as a political committee and