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Alliance for a Safe and Independent Woodmen Hills v. Campaign Integrity Watchdog, LLC

Supreme Court of Colorado, En Banc

September 9, 2019


          Rehearing Denied October 28, 2019

Page 283

          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 16CA267.

         Attorneys for Petitioners: Law Office of Robert S. Gardner, Robert S. Gardner, Laura A. Gardner, Colorado Springs, Colorado.

         Authorized Representative of Respondent: Matthew Arnold, Denver, Colorado.



         [¶1] 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 party.[1]

         [¶2] 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.

         [¶3] 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 division’s 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

         [¶4] 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, a non-profit

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organization headed by Jack, to educate Woodmen Hills residents about issues affecting their community.

         [¶5] Alliance subsequently undertook efforts advocating Pace’s 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.

         [¶6] 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 were consolidated.

         [¶7] Thereafter, an administrative law judge ("ALJ") held two days of hearings,[2] 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 Pace’s 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 Pace’s 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 Alliance’s 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, Alliance’s 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, Alliance’s reports were due April 15, May 2, and June 5, 2014."

         [¶8] 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 2, 2014.
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.

(Footnotes omitted.)

         [¶9] Alliance subsequently filed a motion to stay the ALJ’s decision pending appeal, but the ALJ denied that motion. Several days

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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 reported ...

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