Professional Documents
Culture Documents
DENVER, COLORADO
DATE FILED: July 21, 2015 8:55 AM
CASE NUMBER: 2015CV31862
Defendant.
ORDER
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Here, in contrast, it is the party which initiated the complaint and had its complaint
dismissed that seeks review.
IEC further argues that an appeal would interfere with its duty to maintain
confidentiality. This concern can be addressed through an appropriate suppression
order. It does not support deeming the dismissal as a non-final action.
IECs second argument is that Plaintiff lacks standing. In this regard, its reliance on
federal case law is misguided since Colorado case law views standing more
expansively than does federal law. See, e.g., Barber v. Ritter, 196 P.3d 238, 246
(Colo. 2008). Additionally, the federal cases involve statutory, not constitutional,
provisions.
To establish standing in Colorado, a party must show (1) injury in fact, and (2) the
injury was to a legally protected interest. Id. at 245. Here, Plaintiff submitted a
complaint, as contemplated by the state constitution. COLO. CONST. art. XXIX,
5(3)(a). Having had that complaint declared frivolous, Plaintiff was injured in fact
in that its complaint was dismissed. Further, Plaintiff was injured because it incurred
the expense of initiating the complaint, but not the benefit of a hearing on its merits.
Under article XXIX, section 5, any person may file a complaint with the IEC. The
purpose of the article is to promote respect and confidence of the people in its public
officers and employees. See id. 1. This purpose is broader than merely providing
ethical guidance to public officers and employees. The intended effect of article
XXIX would be diminished if a complainant could not challenge a dismissal,
whether deemed frivolous or otherwise. Public respect and confidence would be
lessened, not promoted. Thus, the Court finds that Plaintiffs alleged injury was to a
legally protected interest under the constitution.
Motion denied.
DATED July 21, 2015.
______________________
A. Bruce Jones
District Court Judge
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Div: 424
MOTION TO DISMISS
counsel the Office of the Colorado Attorney General and pursuant to C.R.C.P.
12(b)(1) and 12(b)(5), moves to dismiss the complaint in this matter. In support of
this motion, the Commission states the following.
CERTIFICATE OF COMPLIANCE WITH C.R.C.P. 121 1-15(8)
Counsel for the Commission conferred with counsel for Ethics Watch, who
informed the Commissions counsel that Ethics Watch opposes this motion.
I.
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five members, no more than two of which can be affiliated with the same political
party. Colo. Const. Art. XXIX, 5(2).
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findings, and assess penalties on ethics issues arising under Article XXIX and
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states:
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On March 24, 2014, Ethics Watch filed a complaint with the Commission,
which was designated Complaint 14-07. Complaint, paras. 11, 13. The
Commission thereafter stayed its review of Complaint 14-07, pursuant to IEC Rule
7.H.1, which provides the Commission the authority to stay its review of a
complaint when the same subject of the complaint is pending before another body.
Complaint, para. 14.
On March 9, 2015, the Commission voted unanimously to lift the stay and
directed the Commissions Executive Director to conduct a preliminary investigation
of Complaint 14-07 under IEC Rule 7.F, while continuing to maintain the
confidentiality of the complaint until a frivolous determination could be made.
Complaint, para. 19 and Ex. 6 attached to the Complaint. On April 10, 2015, the
Commission met in executive session to receive legal advice regarding Complaint
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and voted 3-2 to dismiss Complaint 14-07 as frivolous. Complaint, para. 21.
II.
Standard of Review
granted when review is sought improperly in the district court. Hansen v. Long,
166 P.3d 248, 250-51 (Colo.App. 2007). Standing is a limitation on a courts subject
matter jurisdiction. Dolores Huerta Preparatory High v. Colo. St. Bd. of Education,
215 P.3d 1229, 1232 (Colo.App. 2009).
accepting all facts pled in a complaint as true, the plaintiff has failed to state a
claim upon which relief can be granted. Town of Alma v. AZCO Constr. Inc., 10
P.3d 1256, 1259 (Colo. 2000).
III.
Argument
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section 24-4-106 and the APA govern judicial review. Chittenden v. Colo. Bd. of
Social Work Examiners, 292 P.3d 1138, 1141 (Colo.App. 2012).
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While the phrase final action is not defined in either the APA or section 24-
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18.5-101, the APA defines action to include the whole or any part of an agency
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rule, order, interlocutory order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act. C.R.S. 24-4-102(1). For agency action to be final, the
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following two criteria must be met: (1) the action must mark the consummation of
the agencys decision making process; and (2) the action must be one by which
rights or obligations have been determined or from which legal obligations will flow.
Chittenden, 292 P.3d at 1143.
not final agency action subject to judicial review because the decision did not
determine any rights or obligations nor did any legal consequences flow from it.)
Rather, the Commissions dismissal of Complaint 14-07 as frivolous amounts to a
determination by the Commission that the complaint was filed without a rational
argument for the Commissions involvement based on the facts or law. See IEC
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The fact that the Colorado Constitution requires the Commission to keep
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frivolous complaints confidential (Colo. Const. Art. XXIX, 5(3)(b)) reinforces the
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review. Judicial review under the APA is appellate in nature and must be
performed based on the record reviewed by the agency. See 24-4-106(6) and (7);
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Stream v. Heckers, 519 P.2d 336, 337 (Colo. 1974). Had Coloradans, when they
voted in favor of Amendment 41, intended for dismissals of frivolous complaints to
be subject to judicial review, there would be no confidentiality requirement 1.
In Colorado Board of Medical Examiners v. B.L.L., 820 P.2d 1190 (Colo.App.
1991), the Court of Appeals dismissed the case for lack of subject matter jurisdiction
and held that the dismissal of disciplinary proceedings against a doctor after an
investigation, with the issuance of a confidential letter of concern to that doctor,
was not subject to judicial review. In so holding, the Court of Appeals reasoned that
a letter of concern is not appealable disciplinary action under the Medical Practice
Act because the letter has no adverse consequences to the doctor and is confidential.
Section 9 of Article XXIX of the Colorado Constitution explicitly authorizes the enactment of
legislation to facilitate the operation of Article XXIX, but caveats that in no way shall such
legislation limit or restrict the provisions of this article or the powers herein granted.
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820 P.2d at 1191-1192. The Court also noted that because the disciplinary case was
dismissed, there is no evidentiary record for the court to review. Id. at 1191.
The dismissal of Complaint 14-07 is analogous to the dismissal of disciplinary
proceeds against the doctor in B.L.L. The dismissal of Complaint 14-07 has no
adverse consequences to the person against whom it was filed, the complaint is
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confidential and there is no record for this court to review. For these reasons,
B.L.L. supports the conclusion that dismissal of Complaint 14-07 does not constitute
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final action and therefore, this case should be dismissed for lack of subject matter
jurisdiction.
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For the same reasons Ethics Watch is not entitled to judicial review under
the APA, Ethics Watch is not entitled to judicial review under C.R.C.P. 106. The
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General Assembly provided the right to judicial review for final action under
section 24-18.5-101(9), C.R.S. Where final action does not exist, there is no right to
judicial review, under either the APA or under C.R.C.P. 106. See Chonoski v. State
of Colo., 699 P.2d 416 (Colo.App. 1985) (affirming trial courts dismissal of a
complaint, filed under 24-4-106 and C.R.C.P. 106, for lack of jurisdiction due to no
final action).
Preparatory High, 215 P.3d at 1233, citing State Dept. of Personnel v. Colo. St.
Personnel Bd., 722 P.2d 1012, 1019 (Colo. 1986) and Romer v. Bd. of County
Commrs, 956 P.2d 566, 577 (Colo. 1998); Reeves v. City of Fort Collins, 170 P.3d
850, 852 (Colo.App. 2007).
Under the APA, only persons or parties adversely affected or aggrieved by
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final agency action may commence an action for judicial review. 24-4-106(4),
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bring a judicial review action, if the party has suffered actual loss or injury to a
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legally protected right or there is a showing that the party is exposed to potential
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loss or injury to legitimate interests. Hawes v. Colo. Div. of Ins., 32 P.3d 571, 573
(Colo.App. 2001), citing 24-4-102(3.5). The standard for standing under C.R.C.P.
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106 is similar to the standard under the APA. A plaintiff must show injury in fact
to a legally protected interest as contemplated by statutory or constitutional
provisions. Brown v. Board of County Commrs, 720 P.2d 579, 582 (Colo.App. 1985).
Ethics Watch alleges that it has standing because Ethics Watch has a right to
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Watch has been deprived of the records reviewed, collected or generated by the
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performed pursuant to IEC Rule 7.F to aid the Commission in its determination as
to whether Complaint 14-07 was frivolous likewise are confidential. If these records
were required to be disclosed, the Commission ultimately would be violating the
Colorado Constitutions mandate to maintain the confidentiality of frivolous
complaints. Under IEC Rule 7.F, the Commissions Executive Director must
exercise care not to disclose the contents of a complaint to anyone other than the
individual who is the subject of the complaint.
For these reasons and based on the allegations made in the complaint, Ethics
Watch lacks standing for both causes of actions and therefore, the complaint should
be dismissed.
WHEREFORE, for the reasons set forth herein, the Commission respectfully
requests that the complaint be dismissed.
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10
CERTIFICATE OF SERVICE
This is to certify that I have duly served the within MOTION TO DISMISS
upon all parties herein via the ICCES E-filing service at Denver , Colorado, this 16th
day of June, 2015, as follows:
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Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202
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Plaintiff Colorado Ethics Watch (Ethics Watch), by its undersigned counsel, submits its
opposition to the Defendant Independent Ethics Commissions (IEC) June 16, 2015 motion to
dismiss (Motion).
I. Introduction
Through its Motion, the IEC asks the Court to rule that a person who exercises the
constitutional right to file a non-frivolous complaint asking whether a public official under its
jurisdiction has violated ethical standards of conduct has no legal recourse when the IEC
erroneously dismisses its complaint as frivolous, without the public investigation, hearing, and
findings mandated for non-frivolous complaints under Colo. Const. art. XXIX, 5(3)(c).
Ethics Watch filed this action for judicial review of the IECs dismissal, as frivolous, of a
complaint Ethics Watch filed against Elbert County Commissioner Robert Rowland. Ethics
Watchs complaint established through self-authenticating public records that Commissioner
Rowland cast the deciding vote to authorize the Elbert County Attorney to appeal an
administrative law judges fine against him personally. C.R.S. 24-18-109(2)(b) and (3)(a)
require a county commissioner (among others) to refrain from taking official action that would
provide a direct financial benefit to the commissioner, and to disclose the existence of a personal
financial interest, recuse from voting, and refrain from attempting to influence the outcome of
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the vote. Ethics Watch supplied the IEC with the minutes reflecting Commissioner Rowlands
casting of the decisive vote and even provided a video of the meeting, at which the dissenting
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commissioner objected that county money was being spent for the personal benefit of
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Commissioner Rowland. Complaint at 11. After stalling for almost a full year, the IEC
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launched a secret preliminary investigation of the complaint and then voted 3-2 to dismiss the
complaint as frivolous. Id. at 14-21.
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The IEC makes its Motion even though C.R.S. 24-18.5-101(9) expressly provides that
[a]ny final action of the commission concerning a complaint shall be subject to judicial review
by the district court for the city and county of Denver. When used as an adjective in a statute,
the word any means all. Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007). The statute
contemplates that any final action on a complaint, be it a dismissal without a hearing for
frivolousness or a sanction imposed after a full hearing, is subject to judicial review in this Court.
See Gessler v. Grossman, 2015 COA 62 (action for judicial review by public official fined by
IEC for ethics violations).
In spite of this plain language, the IEC argues that its frivolousness determination is
immune from judicial review because (1) the dismissal of a complaint as frivolous is not a final
action because it purportedly does not determine any persons rights or obligations and no
legal obligations flow from the dismissal, and (2) Ethics Watch is not adversely affected or
aggrieved by the dismissal of its complaint as frivolous. They also argue that the Colorado
Constitutions requirement that the IEC maintain frivolous complaints as confidential somehow
reflects the intent of the voters who enacted Article XXIX to preclude judicial review of the
IECs erroneous dismissal of a non-frivolous complaint. These arguments all lack merit.
II. Ethics Watch Has Standing
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The IECs arguments that its dismissal is not a final action and that Ethics Watch lacks
standing to seek judicial review both depend on the assertion that the dismissal had no legal
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consequences to Ethics Watch. Because Ethics Watch is harmed by the dismissal, both
arguments should be rejected.
A. The Dismissal Is a Final Action
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Final means not to be altered or undone. A final decision marks the consummation of
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the agency's decision-making process and is one from which legal consequences flow. MDC
Holdings, Inc. v. Town of Parker, 223 P.3d 710, 713-721 (Colo. 2010) (citation omitted). The
IECs dismissal of Ethics Watchs complaint satisfies this standard. The dismissal marks the end
of proceedings before the IEC.
The IECs suggestion that no legal consequences flow from a dismissal is absurd. The
decision exonerates Commissioner Rowland and indeed allows him to posture as the victim of a
frivolous complaint. It wrongfully brands Ethics Watch as a frivolous filer. It deprives Ethics
Watch, and the Elbert County citizens who are interested in seeing Commissioner Rowland held
accountable for his abuse of power, of the public investigation and hearing into Commissioner
Rowlands conduct that the Constitution requires whenever a person files a non-frivolous
complaint. Finally, based on the erroneous decision the IEC is withholding information about the
complaint that should be public.
The IECs no final action argument is really just a reformulation of its standing
argument it claims that neither Ethics Watch nor any other person actually has a legally
enforceable interest in making sure the IEC does the job given to it under the state Constitution.
For many reasons, the IECs argument that Ethics Watch lacks standing must be rejected.
B.
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In Colorado state courts, standing can arise from intangible [injuries], such as aesthetic
harm or the deprivation of civil liberties. Barber v. Ritter, 196 P.3d 238, 246 (Colo. 2008). The
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standing requirement asks only whether the particular constitutional or statutory provision
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underlying the claim creates a right or interest in the plaintiff that has been arguably abridged by
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the challenged governmental action. State Bd. for Community Colleges & Occupational Educ.
v. Olson, 687 P.2d 429, 435 (Colo. 1984).
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The IECs Motion does not present the question whether Ethics Watch would be entitled
to seek review of the IECs findings of fact and conclusions of law entered after an investigation
and public hearing pursuant to Colo. Const. art. XXIX, 5(3). Rather, the question is whether
Ethics Watch can challenge the IECs erroneous dismissal of its complaint as frivolous, which
had the legal consequence of depriving Ethics Watch of an investigation, a public hearing, and
the entry of findings after that public hearing. See id. Ethics Watch has established standing by
showing that it has been denied a public hearing to which it is entitled.
When a public official or body fails to hold a required public hearing for a violation of a
statute that allows any person to file a complaint and have a public hearing, the person who
filed the complaint has standing to challenge dismissal without a hearing -- even if the only
interest is that of a public watchdog trying to make sure government does what it is required to
do. Marks v. Gessler, 2013 COA 115, 88. Marks alone requires denial of the motion.
The plaintiff in Marks was a citizen watchdog who invoked a statute, in that case the
federal Help America Vote Act (HAVA), to request a hearing before the Colorado Secretary of
State regarding alleged election irregularities in Saguache County. Id. at 5. The Secretary
dismissed her complaint without a hearing and, on appeal, argued that she lacked standing to
obtain judicial review of that dismissal because as a non-resident of Saguache County, she did
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not suffer an injury to a legally protected interest by the Secretarys failure to hold a hearing. See
id. at 8, 78. The district court rejected the Secretarys argument, and the Court of Appeals
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affirmed, holding that Marks right to a hearing on the record was a sufficient legal injury to
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establish standing. Id. at 88. Moreover, because she satisfied the statutory prerequisites to
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obtain a hearing, she was adversely affected by the dismissal without a hearing and had a right
to judicial review under the APA. Id. at 89.
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Marks is indistinguishable from this case. Article XXIX, 5(3)(c) states that the IEC
shall conduct an investigation, hold a public hearing, and render findings on each non-frivolous
complaint. (emphasis added). Because the IECs erroneous dismissal of Ethics Watchs
complaint denies Ethics Watch its constitutional right to a public hearing on its complaint, Ethics
Watch has standing to challenge that dismissal. See id.
While Marks in on point, the case principally relied upon by the IEC has little relevance
to the issues raised by the Motion. Chittenden v. Colo. Bd. of Social Work Examiners, 2012 COA
150M, was an appeal from the denial of a declaratory order petition filed in a pending
disciplinary proceeding against the plaintiff. Id. at 3-7. The Court of Appeals determined that
the denial of the petition was not final agency action because (1) the disciplinary proceeding was
still pending, giving the plaintiff an opportunity to obtain an agency ruling on the matters raised
in her petition; (2) the denial of the declaratory order did not determine whether the plaintiff
would be subject to discipline; and (3) the order itself noted the plaintiffs ability to obtain a
ruling on her contentions at the hearing on the merits of the disciplinary action. Id. at 28-30.
Also unlike the situation presented here, the defendant agency in Chittenden did not argue that its
ultimate decision would be immune from review, indeed, the court noted that the Order did not
deprive Chittenden of any rights of judicial review. The only question is when Chittenden will be
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In contrast, here the IECs decision ended the proceedings, determined both that
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Commissioner Rowland will not be subject to discipline and that Ethics Watch would not receive
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a public hearing or findings on its complaint, and now purports to foreclose judicial review of the
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IECs action for all time. If anything, Chittenden counsels against granting the Motion.
Article XXIXs private-party-driven mechanism to initiate complaints, like HAVAs
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private-party complaint procedure and other laws that depend on citizen attorneys-general for
enforcement, are all akin to a qui tam action under common law, which is brought by a private
citizen, on that individuals, as well as the States, behalf for violation of a civil or criminal
statute. In the related context of campaign finance enforcement, the Texas Supreme Court held
that private party enforcement is a proper way for a state to deter violators and encourage
enforcement by candidates and others directly participating in the process, rather than placing the
entire enforcement burden on the government. Osterberg v. Peca, 12 S.W.3d 31, 49 (Tex.
2000). Indeed, the IEC requires those who file complaints to prosecute them at their own
expense through motions and public hearings. See Gessler, 2015 COA 62, 4-5. It is
inconsistent at best for the IEC to impose the burden to prosecute a complaint on Ethics Watch
but then argue that Ethics Watch is not affected by, and has no standing to challenge, a complaint
dismissed as frivolous.
The will of the people to have the IEC investigate non-frivolous complaints should not be
thwarted by an overly restrictive view of standing that would immunize the IEC from judicial
review of the even the most egregious failures to act in the face of a non-frivolous complaint
such as the one alleged in Ethics Watchs complaint. The IECs position, if accepted, would
create a perverse incentive structure: the IECs decision to penalize a wrongdoer would be
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subject to judicial review, see Gessler, 2015 COA 62, while the decision to sweep a meritorious
complaint under the rug by declaring it frivolous would not. Officeholders would be able to
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threaten legal review of any IEC ruling against them, while citizens would be powerless to
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challenge any decision declaring a meritorious complaint frivolous. The predictable result is that
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which Ethics Watch seeks to compel the IEC to investigate, hold a hearing and make findings on
a non-frivolous complaint. Colo. Const. art. XXIX, 5(3)(c).
The purpose of Article XXIX is to empower the public to make sure members of the
legislative and executive branches live up to the standards of conduct expected of public service.
Voters intended the IEC to be separate and distinct from both the executive and legislative
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branches, presumably so that it can best evaluate the actions of the members of those branches.
Developmental Pathways v. Ritter, 178 P.3d 524, 532 (Colo. 2008). In order to keep the IEC
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from abusing this independence through overzealousness, the voters made IEC action contingent
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upon requests from the public. See Colo. Const. art. XXIX, 5(5) (covered individuals may
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request advisory opinions on whether conduct by that person would violate ethics standards); id.
5(3) (IEC investigates only when any person files a complaint asking whether someone
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under the IECs jurisdiction has violated ethical standards of conduct). In turn, members of the
public have an inherent right to sue the IEC for failure to adhere to Article XXIX, a selfexecuting constitutional amendment. See Love, 448 P.2d at 667; cf. Taxpayers for Public
Education v. Douglas County School Dist., 2015 CO 50 (citizens lacked standing to challenge
validity of a school districts voucher plan under state statute but had standing to challenge that
plan under the Colorado Constitution).
Even without the enactment of C.R.S. 24-18.5-101(9), Ethics Watch would have the
right to challenge the IECs wrongful dismissal of its complaint, because the complaint seeks to
enforce the terms of a self-executing constitutional amendment. Love, 448 P.2d at 627
(Petitioners state a justiciable controversy, because they claim violation of the Civil Service
Amendment, which is fully self-executing).
D.
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materials pursuant to the Colorado Open Records Act. Complaint at 19, 22-23. Ethics Watchs
inability to access information that should be disclosed and post it to its website that it has
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maintained for years to help the public monitor the IEC is a legal consequence of the IECs
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is being withheld as a result of agency action is sufficient to establish standing, even under the
more exacting federal standing law. See Fed. Election Commn v. Akins, 524 U.S. 11, 21 (1998)
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(complaint should not have been dismissed for lack of standing when agency action deprived
plaintiffs of information to which they arguably were legally entitled).
The IEC addresses Ethics Watchs informational standing allegation only through the
circular argument that because the complaint has been found frivolous, Ethics Watch has no
interest in public release of the complaint. This is an action for judicial review of that
determination; denial of access to records that would be made public had the IEC not
erroneously dismissed Ethics Watchs complaint demonstrates standing on an additional,
independent ground to establish standing.
imply such intent from the language of the Article requiring the IEC to maintain frivolous
complaints as confidential. Colo. Const. art. XXIX, 5(3). The IEC contends that it is forbidden
from disclosing frivolous complaints even to a court, and in the absence of any record, the court
cannot review its action.
Earlier this year, the IEC received a formal opinion from the Colorado Attorney General
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that rejected the IECs view of its own confidentiality obligations. Formal opinions issued by the
Attorney General have some significance in cases involving consideration of constitutional
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provisions where there is room for interpretation. In re Complaint Filed by City of Colo.
Springs, 2012 COA 55, 19.
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IEC should not publicly release complaints found to be frivolous. It does not prevent the IEC
from disclosing frivolous complaints to the Office of the State Auditor, because that office is also
bound by the duty not to disclose those documents to the public. See id. This is because
according to the plain meaning of the terms maintain as confidential, the IEC may disclose
frivolous complaints to other government entities that will also preserve the confidentiality of
those records. See id.
If the IEC can release frivolous complaints to the State Auditor, certainly it can release
them to this Court. C.R.C.P. 121, 1-5 gives this Court power to limit public access to case files.
An order restricting public access to court files containing the IECs copy of the complaint1
would fully satisfy the IECs confidentiality obligation while permitting judicial review to go
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The IEC may take the position that its duty of confidentiality extends beyond the complaint
itself to all documents collected in the course of its secret preliminary investigation. While
Ethics Watch disagrees with that position, for purposes of the motion it is sufficient to note that a
protective order could limit public access to those documents as well.
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forward. Ethics Watch is fully aware of the contents of the complaint, because Ethics Watch
filed it. The IECs duty to maintain frivolous complaints as confidential cannot be read to
preclude judicial review of erroneous dismissals.
WHEREFORE, Ethics Watch requests that the Court deny the IECs motion to dismiss.
Dated: July 6, 2015.
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Respectfully submitted,
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CERTIFICATE OF SERVICE
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Division: 424
counsel the Office of the Colorado Attorney General, replies to Colorado Ethics
Watchs (Ethics Watch) Opposition to the Commissions Motion to Dismiss (the
Opposition Brief). In support of this Reply, the Commission states the following.
Argument
I.
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which legal obligations will flow. Chittenden v. Colo. Bd. of Social Work Examiners,
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292 P.3d 1138, 1143 (Colo.App. 2012). The dismissal of Complaint 14-07 neither
determined the rights nor obligations of either Ethics Watch or the person against
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whom the complaint was filed. Cf. Colorado Board of Medical Examiners v. B.L.L.,
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820 P.2d 1190 (Colo.App. 1991) (holding that the dismissal of disciplinary
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Rather, Ethics Watch contends that final action exists in this case because
investigation and hearing; and (4) deprives Ethics Watch of information the IEC is
keeping confidential regarding the complaint. Opposition Brief, p. 3. Contrary to
Ethics Watchs contentions, the dismissal of Complaint 14-07 neither branded nor
exonerated anyone, especially given the Commissions maintenance of the
confidentiality of Complaint 14-07.
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not vest in Ethics Watch, or any other person, the right to have every complaint
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Watch with the right to receive frivolous complaints deemed confidential. See
Colo.Const. art. XXIX, 5(3)(b). The dismissal of Complaint 14-07 therefore, could
not have determined Ethics Watchs legal rights or obligations in these regards
because no such legal rights exist. Cf. Common Cause v. Federal Election
Commission, 108 F.3d 413 (D.C. Cir. 1997) (ruling that deprivation of knowledge as
to whether a violation of the law occurred or not is not a justiciable right), a copy of
which is attached as Exhibit 1.
Ethics Watch also argues that according to the IECs position, no person has
a legally enforceable interest in making sure the IEC complies with the
Constitution. Opposition Brief, p. 4. To the contrary, once the Commission
determines a complaint to be non-frivolous, the Commissions final actions are
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For these reasons, this Court should reject Ethics Watchs arguments in
support of its contention that there is final action in this case.
II.
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suffered an injury in fact; and (2) the injury in fact was to a legally protected
interest as contemplated by statutory or constitutional provisions. Wimberly v.
Ettenberg, 570 P.2d 535, 539 (Colo. 1977). To satisfy the first prong, the alleged
injury must be direct, palpable and tangible. Olson v. City of Golden, 53 P.3d 747,
752 (Colo.App. 2002). An injury that is merely indirect and incidental is insufficient
to confer standing. Brotman v. East Lake Creek Ranch, LLP, 31 P.3d 886, 891
(Colo. 2001). The second prong considers whether the plaintiff has a constitutional
or statutory right to be free of the alleged injury. Ainscough v. Owens, 90 P.3d 851,
856 (Colo. 2004).
Ethics Watch essentially argues that it has standing because it has a right to
an investigation and a hearing regarding whether or not the person against whom
Ethics Watch filed the complaint violated the law. Opposition Brief, pp. 4-7. This
desire, in and of itself, is not sufficient to satiate the direct injury requirement of
the first prong of the Wimberly test.
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In Common Cause, supra, Common Cause filed suit in district court seeking
judicial review of the Federal Election Commissions (FEC) decision to dismiss a
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campaign law. Like Ethics Watch in this case, Common Cause desired a ruling
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from an administrative body that a violation of the law occurred. In holding that
Common Cause lacked standing to challenge the dismissal of the complaint, the
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D.C. Circuit reasoned that a plaintiff cannot establish injury in fact merely by
alleging that she has been deprived of the knowledge as to whether a violation of
the law has occurred because it would be tantamount to recognizing a justiciable
interest in the enforcement of the law. 108 F.3d at 417-18. According to the D.C.
Circuit, Congress cannot create standing by conferring upon all persons the right
to ensure that the executive branch follows the law. 108 F.3d at 418, citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 573 (1992). See also Judicial Watch, Inc. v.
Federal Election Commn, 293 F.Supp.2d 41 (D.D.C. 2003) (holding that a plaintiff
lacked standing to seek judicial review of the FECs failure to act on his
administrative complaint within the deadlines required by law, as the plaintiff
does not have a justiciable interest in the enforcement of the law and therefore, no
injury in fact), attached as Exhibit 2.
Here, Ethics Watchs complaint fails to allege any injury other than its
rebuked desire for an investigation and hearing as to whether the person against
whom it filed the complaint violated ethics laws or not. As Ethics Watch does not
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have a justiciable interest in the enforcement of the law and has alleged no other
direct injury, it lacks standing in this case.
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Ethics Watch relies on Marks v. Gessler, 2013 COA 115 (Colo.App. 2013) as
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support for its argument. Marks is distinguishable from the present case. While
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the voting acts laws at issue in Marks may provide the absolute right to a hearing,
Article XXIX of the Colorado Constitution does not. Investigations and hearings are
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required only for non-frivolous complaints. Colo.Const. art. XXIX, 5(3)(b) and (c).
Moreover, unlike the voting acts at issue in Marks, the Colorado Constitution
evinces the intent that there is no private right of action or standing regarding the
dismissal of frivolous complaints as those must be treated confidentially under the
Constitution. See Cloverleaf Kennel Club, Inc. v. Colorado Racing Commn, 620
P.2d 1051, 1058 (Colo. 1980) (stating that where statutes do not explicitly specify
what counts as actionable injury, the law of implied private rights of action
furnishes a model as to whether the substantive law creates rights the violation of
which confer standing under the Colorado Administrative Procedures Act).
Moreover, the Colorado Supreme Court recently questioned the decision in
Marks. On June 23, 2014, the Colorado Supreme Court issued an order granting
certiorari from the Court of Appeals decision in Marks on two issues, one of which
was whether the court of appeals erred in holding that when a Colorado Help
America Vote Act administrative complaint is filed pursuant to section 1-1.5105(b)(2), C.R.S. (2013), and is dismissed without a hearing, the individual has
standing to seek judicial review of the Secretary of States final determination
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before the Supreme Court and oral argument was heard on April 28, 2015. By order
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dated April 30, 2015, the Supreme Court denied certiorari as having been
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Watch has [a]n inherent right to sue the IEC for failure to adhere to Article XXIX.
Opposition Brief, p. 8. In asserting this argument, Ethics Watch conflates the
concepts of self-executing constitutional provisions and standing. A constitutional
provision is self-executing when the provision appears to take immediate effect
and no further action by the legislature is required to implement the right given.
Developmental Pathways v. Ritter, 178 P.3d 524, 531 (Colo. 2008). A self-executing
constitutional provision, however, does not automatically confer broad standing on
a party to initiate a lawsuit related to the provision. Instead, a plaintiff must show
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self-execution with standing. Rather, the court discussed self-execution for the
purpose of determining whether certain legislation violated self-executing
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provisions of the Colorado Constitution. The facts in Love are not applicable here.
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07, which was determined to be frivolous by the IEC, is sufficient in and of itself to
establish standing. Ethics Watch cites only Federal Election Commn v. Akins, 524
U.S. 11, 21 (1998) as support for its argument. Opposition Brief, p. 9. In Akins, the
information the voter/plaintiffs were seeking were lists of donors and contributions
and expenditures information helpful to them to evaluate candidates. 524 U.S. at
21. As a result, the United States Supreme Court determined that this lack of
information was concrete and particular enough to constitute injury in fact. Id.
In contrast to the facts of Akins, Ethics Watchs complaint asserts no direct
harm or other injury to it from the Commissions failure to disclose Complaint 1407, other than Ethics Watchs interests in assuring the law is followed. This is in
contrast to the type of informational injury at issue in Akins, where it was alleged
that voters were deprived of useful political information at the time of voting.
In Judicial Watch, supra, the D.C. district court discussed the D.C. Circuits
analysis in Common Cause, supra, regarding the difference between an
informational injury which occurs when voters are deprived of useful political
information at the time of voting, and an injury that occurs when a person is
deprived of information that a law has been violated the former creating standing
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and the latter not. 293 F.Supp.2d at 46, citing Common Cause, 108 F.3d at 417.
Based on this analysis, the D.C. district court held that the plaintiff lacked standing
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to seek judicial review of the FECs dismissal of his complaint because what the
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plaintiff really was seeking was not information, but rather a determination that
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the law was violated. Judicial Watch also supports this Courts rejection of Ethics
Watchs informational standing argument.
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Conclusion
For the reasons set forth herein and in the Commissions Motion to Dismiss,
the Independent Ethics Commission requests that the complaint in this case be
dismissed.
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CERTIFICATE OF SERVICE
This is to certify that I have duly served the within REPLY TO
OPPOSITION TO MOTION TO DISMISS upon all parties herein via the ICCES Efiling service at Denver, Colorado, this 13th day of July, 2015.
Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 203
Denver, Colorado 80202
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s/ William Russell
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