COLORADO SUPREME COURT

2 E. 14th Avenue, Denver, CO 80202

Original Proceeding
District Court, City and County of Denver,
2015CV31862
In re:
Petitioner/Defendant: INDEPENDENT
ETHICS COMMISSION
v.
Respondent/Plaintiff: COLORADO
ETHICS WATCH
COURT USE ONLY
Attorneys for Respondent:
Luis Toro, #22093
Case Number: 2015SA244
Margaret Perl, #43106
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202
Telephone: (303) 626-2100
Fax: (303) 626-2101
E-mail: ltoro@coloradoforethics.org
RESPONSE TO RULE TO SHOW CAUSE

TABLE OF CONTENTS
I. Introduction.............................................................................................................1
A. Statement of the Case ....................................................................................1
B.

Statement of Facts and Summary of Procedings...........................................2

II. The Structure and Purpose of Article XXIX .........................................................8

III. Dismissal of a Case as Frivolous is a Final Agency Action. .............................10
IV. C.R.S. 24-18.5-101(9) is Constitutional .........................................................13
A.

The Confidentiality Provision Does Not Prevent Judicial Review .............14

B. The IEC Has No Prosecutorial Discretion to Refuse to Investigate and Hear

a Non-Frivolous Complaint.. ................................................................................18
V. Ethics Watch Has Standing to Seek Judicial Review of the Dismissal of its
Complaint .................................................................................................................21
A. Ethics Watch Has Standing To Enforce Article XXIX, A Self-Executing
Amendment ...........................................................................................................22
B.

Ethics Watch Is Legally Entitled To A Hearing On Its Complaint ............24

C. Ethics Watch's Interest in Public Release of the "Preliminary Investigation"

and Other Documents Is Independently Sufficient To Establish a Legal Injury In
Fact. ....................................................................................................................27

ii

TABLE OF AUTHORITIES
Cases
Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). ............................................. 21, 22
Barber v. Ritter, 196 P.3d 238 (Colo. 2008)......................................................... 24
Benefield v. Colo. Republican Party, 2014 CO 57 ............................................... 20
City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d
427 (Colo. 2000) ............................................................................................... 21
Colo. State Civil Service Employees Assn. v. Love, 448 P.2d 624 (Colo. 1968)... 22,
24
Colorado Assn of Public Employees v. Lamm, 677 P.2d 1350 (Colo. 1984) ....... 15
Common Sense Alliance v. Davidson, 995 P.2d 748 (Colo. 2000) ........................ 14
Developmental Pathways v. Ritter, 178 P.2d 524 (Colo. 2008) ..................... passim
Dwyer v. State, 2015 CO 58 ................................................................................. 14
Fed. Election Commn v. Akins, 524 U.S. 11 (1998) ............................................ 28
Gessler v. Grossman, 2015 COA 62 ....................................................... 1, 9, 12, 13
HealthONE v. Rodriguez, 50 P.3d 879 (Colo.2002) ............................................. 21
Hickenlooper v. Freedom From Religion Foundation, 2014 CO 77 ..................... 23
Hinsey v. Jones, 411 P.2d 242 (Colo. 1966) ......................................................... 13
MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010) .................... 10
Nowak v. Suthers, 2014 CO 14 ............................................................................ 20
Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo.
1984) ................................................................................................................ 11
Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007) .................................................. 13
State Bd. for Community Colleges & Occupational Educ. v. Olson, 687 P.2d 429
(Colo. 1984)...................................................................................................... 24
Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002) ................... 17
Taxpayers for Public Education v. Douglas County School Dist., 2015 CO 50 .... 23
Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005) ................................... 17
Statutes
C.R.S. 1-45-117(1)(I)(B)..................................................................................... 3
C.R.S. 1-45-117(4).............................................................................................. 3
iii

C.R.S. 13-22-307 .............................................................................................. 19

C.R.S. 24-4-106 ................................................................................................ 13
C.R.S. 24-18.5-101(9) ....................................................................................... 13
C.R.S. 24-18-103 ................................................................................................ 5
C.R.S. 24-18-109(3)(a) ....................................................................................... 4
C.R.S. 24-18-101 113 .................................................................................... 9
Other Authorities
Buescher v. Whitfeld, Independent Ethics Commission Complaint 10-06 (Final
Order, Jan. 9, 2011) ............................................................................................ 1
Attorney General Formal Opinion 15-01 ............................................................. 15
IEC Position Statement 15-01 (2015)..................................................................... 8
Rules
C.R.C.P. 12(b)(6) ................................................................................................. 12
C.R.C.P. 19 .......................................................................................................... 12
C.R.C.P. 20(a)...................................................................................................... 12
C.R.C.P. 106 ........................................................................................................ 13
C.R.C.P. 121, 1-5 .............................................................................................. 16
C.R.C.P. 251.9 ................................................................................................ 18, 19
Independent Ethics Commission Rules of Procedure, 8 C.C.R. 1510-1 (2011)
.................................................................................................................. passim
Constitutional Provisions
Colo. Const. art. II, 10....................................................................................... 17
Colo. Const. art. XXIX 1 .................................................................................... 8
Colo. Const. art. XXIX, 2(4) ........................................................................ 22, 23
Colo. Const. art. XXIX, 3 ................................................................................... 8
Colo. Const. art. XXIX, 4 ................................................................................... 8
Colo. Const. art. XXIX, 5(1) ............................................................................... 2
Colo. Const. art. XXIX, 5(3)(a)................................................................ 9, 22, 23
Colo. Const. art. XXIX, 5(3)(b) ................................................................... 15, 18
Colo. Const. art. XXIX, 5(3)(c).................................................................. passim
iv

Colo. Const. art. XXIX, 9 ................................................................................. 24

U.S. Const. art. I .................................................................................................. 17

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 21,
including all formatting requirements set forth in these rules. Specifically, I certify
that:
The brief complies with C.A.R. 28(g).
X It contains 6,553 words.

I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 21.
/s/ Luis Toro
Luis Toro
Attorney for the Respondent
Colorado Ethics Watch

Plaintiff Colorado Ethics Watch (Ethics Watch), by its undersigned

counsel, submits its response to the Courts September 17, 2015 Order and Rule to
Show Cause.
I. Introduction
A.

Statement of the Case

In Developmental Pathways v. Ritter, 178 P.2d 524 (Colo. 2008), this Court
rejected a challenge to Colorados Amendment 41 as unripe because it was filed
before the Independent Ethics Commission (IEC), had a chance to begin operation.
Now, seven years later, the IEC comes before this court not as the
overreaching renegade feared by the Developmental Pathways plaintiffs, but as an
ethics enforcement body that has fined only two public employees over its seven
and one-half years of operation and only one of those in a case where the public
employee did not stipulate to the fine. See Gessler v. Grossman, 2015 COA 62,
pet. for cert. filed (Aug. 10, 2015) (only fine against respondent who did not
consent to fine); see also Buescher v. Whitfeld, Independent Ethics Commission
Complaint 10-06 (Final Order, Jan. 9, 2011) (imposing an agreed-upon fine of
$400 on employee of Department of State) (available at
https://www.colorado.gov/pacific/sites/default/files/FinalOrder_10-06_IEC.pdf,
accessed on October 19, 2015).

The IECs failure to accomplish much over seven years is traceable to its
decision to use its rulemaking authority under Colo. Const. art. XXIX, 5(3)(c) to
design a system under which persons filing ethics complaints are required to
prosecute them at their own expense. This system has deterred most Coloradans
from exercising their constitutional right to file a complaint asking whether a
person covered by Article XXIX has violated the provisions of Article XXIX or
other Colorado ethical standards of conduct. See Colo. Const. art. XXIX, 5(1).
Few complaints have been found non-frivolous and proceeded to a hearing. In the
absence of complaints, there has been little work for the ethics commission.
Though its petition, the IEC asks the Supreme Court to declare unreviewable
the IECs decision to label a valid complaint as frivolous. This would empower the
IEC to ignore its constitutional mandate to investigate, hold a public hearing, and
make findings on each non-frivolous complaint, Colo. Const. art. XXIX,
5(3)(c), without having to answer in court for its unconstitutional action. The Court
should reject the IECs arguments and discharge the rule to show cause.
B.

Statement of Facts and Summary of Proceedings

Respondent Colorado Ethics Watch (Ethics Watch) is a state-level project

and registered trade name of Citizens for Responsibility and Ethics in Washington,
a Delaware nonprofit corporation authorized to conduct business in Colorado.
Since opening in 2006, Ethics Watch has sought to improve ethics and
2

transparency in Colorado government. Among other things, Ethics Watch files and
litigates complaints in the private-party-driven processes established to enforce
Article XVIII (Campaign and Political Finance) and Article XXIX (Ethics in
Government) of the Colorado Constitution.
On March 21, 2014, Ethics Watch filed a complaint with the IEC. A copy of
the complaint is submitted as Respondents Exhibit A.
The complaint included documentary evidence establishing the following:
that during 2013 and 2014 Robert Rowland (Commissioner Rowland) was
serving as an elected commissioner on the Elbert County Board of County
Commissioners (BOCC). In December 2013, a campaign finance complaint
(Office of Administrative Courts Case No. OS 2013-0012) was filed against
Commissioner Rowland and the BOCC by Jill Duvall, a resident of Elbert County,
alleging violation of Colorados prohibition on the use of public funds to support a
ballot issue campaign. On December 24, 2013, the Office of Administrative Courts
issued a decision holding that both the BOCC and Commissioner Rowland violated
the statutory prohibition on using public funds to support a local ballot issue at
C.R.S. 1-45-117(1)(I)(B). The order declined to impose a monetary civil penalty
on the BOCC itself, but did order Commissioner Rowland as an individual
responsible for the improper expenditure to reimburse the Elbert County general
fund the amount of $1,000. See C.R.S. 1-45-117(4) (violations of prohibition of
3

using public funds to support or oppose ballot initiatives punishable by an order

directing the person making a contribution or expenditure in violation of this
section to reimburse the fund of the state or political subdivision, as applicable,
from which such moneys were diverted).
The complaint also attached evidence establishing that on January 16, 2014,
the Elbert County BOCC held a special meeting with a single item of new business
set on the agenda: Determination of pursuing an appeal of Administrative Law
Judge decision in case number OS 2013-0012. Commissioner Rowland chaired
the January 16 BOCC meeting and recognized the Elbert County Attorney to
summarize the status of Case No. OS 2013-0012 and raise the issue of whether the
County should file an appeal of that decision. The County Attorney noted that a
monetary penalty had been assessed against Commissioner Rowland personally.
Commissioner Kurt Schlegel moved that the BOCC direct the County Attorney to
appeal the case. Commissioner Rowland himself seconded the motion. After
discussion, the motion passed on a 2-1 vote with Commissioners Rowland and
Schlegel voting yes and Commissioner Ross voting no. As a result of his vote,
Commissioner Rowland enjoyed a taxpayer-funded defense of the campaign
finance award entered against him.
Ethics Watchs IEC complaint alleged that Commissioner Rowland violated
C.R.S. 24-18-109(3)(a), a part of the statutory Code of Ethics, when he seconded
4

the motion and then voted to authorize the County to appeal the decision against
him at County expense. Ethics Watch further alleged that Commissioner
Rowlands actions may implicate the overall breach of fiduciary duty and the
public trust provision at C.R.S. 24-18-103, and that Rowland benefitted from
the alleged breach of duty both by delaying payment of the $1,000 fine and by
receiving free legal representation from the County instead of having to represent
himself or pay for a private attorney to handle the appeal.
On April 25, 2014, the IEC gave written notice to Ethics Watch that all
proceedings on the complaint (designated Complaint 14-07) were stayed pursuant
to IEC Rule of Procedure, 8 C.C.R. 1510-1 (2011), 7.H.1 (hereinafter IEC
Rules), which provides that the IEC may stay a complaint when [a]n action on
the same subject of the complaint is pending before another body with concurrent
jurisdiction. Fearing that the IEC had misinterpreted the complaint as asking it to
review the same misuse of public funds that was the subject of Ms. Duvalls
complaint in OAC Case No. 2013-0012, Ethics Watch filed a supplement to the
complaint on April 30, 2014, attached as Respondents Exhibit B. The supplement
emphasized that Ethics Watchs complaint was limited to Commissioner
Rowlands conflicted vote to have Elbert County taxpayers pay for the appeal of
the ALJs award against himself personally and not to his spending of county

funds to support a ballot measure. The IEC took no action in response to Ethics
Watchs supplement.
After oral argument of the Duvall appeal but before the Court of Appeals
decision, on February 24, 2015, Ethics Watch asked the IEC to lift its stay. Ethics
Watch advised the IEC that the oral argument of the Duvall appeal had established
that (1) the only issue argued before the Court of Appeals was Commissioner
Rowlands personal liability for the OAC fine, and (2) Ms. Duvalls counsel was
admonished for bringing up Commissioner Rowlands vote to have the County pay
for the appeal because that vote was not part of the case before the Court of
Appeals. Respondents Exhibit C.
On March 5, 2015, the Colorado Court of Appeals issued its unpublished
decision in Duvall v. Elbert County Board of County Commissioners and Robert
Rowland, Case No. 14 CA 0312, affirming the order of the OAC in Case No. 20130012 against Commissioner Rowland. To Ethics Watchs knowledge, no certiorari
petition was filed for review of the Court of Appeals judgment.
The Minutes of the IECs March 9, 2015 meeting reflect the IEC met in
executive session to discuss Complaint 14-07, then returned to open session and
voted unanimously to direct the Executive Director to lift the stay and conduct a
preliminary investigation of the complaint. The IEC did not advise Ethics Watch
of anything it learned through this investigation, nor offered Ethics Watch any
6

opportunity to review documents and respond to information collected by the IEC

or legal arguments presumably advanced by Commissioner Rowland in response to
Complaint 14-07.
On May 11, 2015, the IEC met in executive session to discuss Complaint
14-07. Upon return to open session, the Commissioners were advised by counsel
that they could not publicly discuss or debate how to proceed on the complaint.
The Commission then, without any discussion, voted 3-2 to dismiss Complaint 1407 as frivolous. The Commission issued a letter to Ethics Watch, a copy of which
is attached as Respondents Exhibit D, advising Ethics Watch that its complaint
contained no basis in fact or law for the [IEC] to assert its jurisdiction and that as
a result of the dismissal, the Complaint and related materials (presumably the
preliminary investigation documents) shall remain forever secret.
Ethics Watch timely filed a petition for review of this decision in Denver
District Court. IECs Exhibit 1. After the District Court twice denied the IECs
motion to dismiss the complaint, the IEC petitioned this Court for a rule to show
cause why the District Court should not be ordered to dismiss Ethics Watchs
complaint for judicial review. On September 17, 2015, the Court issued an Order
and Rule to Show Cause, to which Ethics Watch now responds.

II.

The Structure and Purpose of Article XXIX.

In order to make certain that elected officials avoid conduct that is in

violation of their public trust or that creates a justifiable impression among

members of the public that such trust is being violated, Colorado citizens passed a
comprehensive ethics reform ballot initiative with 62.5% of Colorado voters in
support.1 Colo. Const. art. XXIX 1. Amendment 41, now Article XXIX of the
Colorado Constitution, had three major components:

The gift ban, which prohibits lobbyists from giving gifts to public

officials or employees and limits most other gifts to public officials to a value of
$50 per year, adjusted for inflation. Colo. Const. art. XXIX, 3; see also IEC
Position Statement 15-01 (2015) (adjusting gift limit to $59 for inflation). The gift
ban was the subject of a constitutional challenge that was dismissed by the this
Court as unripe in Developmental Pathways, 178 P.3d at 533;

The revolving door prohibition, which bans members of the General

Assembly from working as state lobbyists for two years after the expiration of their
terms. Colo. Const. art. XXIX, 4; and

The creation of the IEC as an independent agency empowered to issue

advisory opinions and hear complaints regarding ethics issues arising under this
article and under any other standards of conduct and reporting requirements as
Colorado Secretary of State, Colorado Cumulative Report, December 13, 2006,
available at http://www.sos.state.co.us/pubs/electionresults2006G/.
1

provided by law. Colo. Const. art. XXIX, 5(1). These other standards of
conduct include violations of the state public trust statute and Code of Ethics,
C.R.S. 24-18-101 113, that predated the enactment of Article XXIX. See
Gessler, 2015 COA at 18-22; see also Developmental Pathways, 178 P.3d at
534 (Plaintiffs sought to have the gift bans of Amendment 41 rendered
unconstitutional, leaving only the provision creating the Commission, which, in
their view, would then enforce existing ethics laws).
This case centers on the third of these pillars of Article XXIX: the IECs
duty to investigate and hold a public hearing on ethics complaints. Enforcement
actions at the IEC are initiated when any person files a complaint asking
whether a public officer, member of the general assembly, local government
official, or government employee has failed to comply with this article or any other
standards of conduct or reporting requirements as provided by law within the
preceding twelve months. Colo. Const. art. XXIX, 5(3)(a). The IEC shall
conduct an investigation, hold a public hearing, and render findings on each nonfrivolous complaint pursuant to written rules adopted by the commission. Id.
5(3)(c). Consistent with a centuries-old aversion to Star Chamber proceedings,
the Constitution requires any IEC investigation and hearing to take place in public
after a determination is made that a complaint is not frivolous. Id.; see also IEC
Rule 7.J.2 (providing for release to parties of the IECs staff investigation report).
9

The IEC chose to enact written Rules of Procedure for the investigation and
hearing of non-frivolous complaints that make the person who filed the complaint
a party to the action, responsible for acting as a prosecuting attorney throughout
the proceedings. IEC Rules 3.A.3 (defining complainant as a party), 8.C.1
(requiring parties to exchange disclosures of relevant documents and witnesses),
8.E (parties expected to present evidence at hearing and bear the costs of arranging
for telephone or videophone testimony). Both the person who filed the complaint
and the respondent are subject to sanctions if the party does not follow IEC Rules.
IEC Rule 8.C.3 (Should either party fail to comply with these Rules, the IEC,
may, at its discretion limit the presentation of evidence, or dismiss the complaint).
Had the IEC not erroneously dismissed Ethics Watchs complaint, Ethics
Watch would have the right and duty to present evidence at the hearing and to
participate as a party in all pre-hearing proceedings.
III.

Dismissal of a Complaint as Frivolous is a Final Agency Action.

The District Court described the IECs argument that a dismissal of a

complaint as frivolous is not a final action as Orwellian. IECs Exhibit 5, p.1.

Final means not to be altered or undone. A final decision marks the
consummation of 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,
720-21 (Colo. 2010) (citation omitted). The IECs dismissal of Ethics Watchs
10

complaint satisfies this standard. The dismissal marks the end of proceedings
before the IEC and reflects the agencys determination that the complaint is wholly
without legal or factual merit. See Exhibit D.
Legal consequences flow from the IECs dismissal of the complaint. The
decision marks the end of the agencys decision-making process by concluding that
it is frivolous even to ask whether a county commissioner, who votes to have the
county pay for an appeal of an award entered against the commissioner personally,
has engaged in prohibited self-dealing. It also means that the IEC will not conduct
the public investigation and hearing into Commissioner Rowlands conduct that
the Constitution requires whenever a person files a non-frivolous complaint, and
the IEC will not prepare a public staff investigation report under Colo. Const. art.
XXIX, 5(3)(c) and IEC Rule 7.J. Finally, the finding arguably would satisfy the
first prong of the three-part test announced by this Court to determine whether
petitioning activity is unprotected by the First Amendment, leaving Ethics Watch
or other filers vulnerable to retaliatory lawsuits from persons against whom
complaints were filed. See Protect Our Mountain Environment, Inc. v. District
Court, 677 P.2d 1361, 1369 (Colo. 1984).
In any event, the IECs rules recognize that a dismissal of a complaint, for
any reason, is a final action subject to judicial review. The IEC Rules state that its
decisions on advisory opinion and letter ruling requests are not reviewable
11

final actions, but make no such claim about dismissals of a complaint without a
hearing. See IEC Rule 5.I.
The IEC also argues that judicial review is impracticable because
Commissioner Rowland is not a party to Ethics Watchs case. Ethics Watch, the
complaining party in Gessler, 2015 COA 62, was not a party to the review
proceedings but participated as amicus curiae, even though presumably in the
event of a rehearing Ethics Watch would be expected to prosecute the case a
second time. The IECs motive to defend its own decision meant that Ethics
Watchs interests were adequately protected by the IEC, just as Commissioner
Rowlands interests are protected by the IEC here. Regardless, failure to join
necessary and indispensable parties is not grounds for a dismissal for lack of
subject matter jurisdiction. See C.R.C.P. 12(b)(6) and 19. A respondent who fears
the IEC will not adequately represent his or her interests in a proceeding for
judicial review of the IECs dismissal of a complaint as frivolous could seek
permissive joinder as an additional defendant under C.R.C.P. 20(a).
The IECs dismissal of a complaint as frivolous is just as much a final action
as the decision and order ending consideration of the Gessler complaint. Judicial
review by the aggrieved party is available equally to both final agency actions.

12

IV. C.R.S. 24-18.5-101(9) is constitutional.

Ethics Watchs complaint referenced the IECs facilitating legislation, which
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.
C.R.S. 24-18.5-101(9).2 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 Denver District Court. See Gessler, 2015 COA 62 (appeal by
public official fined by IEC for ethics violations of District Court decision
upholding the IECs action).
The IEC urges this Court to rule that C.R.S. 24-18.5-101(9) is
unconstitutional as applied to judicial review of erroneous determinations that a
complaint is frivolous. The IEC argues that because it is allegedly impracticable
for it to comply with the obligations of an agency in a judicial review case while
simultaneously carrying out its obligation to maintain confidential frivolous
2

The IEC faults Ethics Watch for styling its two claims as alternatively under the
State Administrative Procedure Act, C.R.S. 24-4-106, and under C.R.C.P. 106,
but not directly under C.R.S. 24-18.5-101(9), which was cited as venue authority
in the complaint. Should the Court agree with this argument, the proper remedy
would be to discharge the rule and remand the case with instructions to permit
Ethics Watch to amend its complaint. See, e.g., Hinsey v. Jones, 411 P.2d 242, 244
(Colo. 1966) (complaint is not subject to a motion to dismiss if upon any theory
of law the claim as stated entitles the pleader to relief).
13

complaints, the Court should infer from the confidentiality provision voter intent to
preclude judicial review of frivolousness determinations. The IEC alternatively
argues that its determinations of frivolousness should be considered an
unreviewable exercise of prosecutorial discretion. Neither argument has any merit.
A.

The Confidentiality Provision Does Not Prevent Judicial Review.

The IECs contention that Article XXIX should be read to bar judicial
review of dismissals of ethics complaints as frivolous presents a question of
interpretation of the language of that constitutional provision. When interpreting a
constitutional amendment adopted by citizens initiative, we give effect to the
electorates intent in enacting the amendment. Dwyer v. State, 2015 CO 58, 19
(quotation omitted). This is done by giving words their ordinary and popular
meaning and enforcing a clear and unambiguous constitutional provision as
written. Id. Moreover, voters must be presumed to know the existing law at the
time they amend or clarify that law. Id. (quoting Common Sense Alliance v.
Davidson, 995 P.2d 748, 754 (Colo. 2000)).
The IEC contends that decisions based on information that must be
maintained as confidential are not reviewable as a matter of law, because allowing
a judge to review that information would destroy confidentiality. However, the
IECs obligation is limited to maintaining as confidential its own copy of the

14

allegedly frivolous complaint: Complaints dismissed as frivolous shall be

maintained as confidential by the commission. Colo. Const. art. XXIX, 5(3)(b).
The IEC recently obtained a formal opinion of the Attorney General to the
effect that disclosing complaints found frivolous to the state Auditor does not
violate the IECs obligation to maintain complaints found frivolous as confidential.
Formal opinions issued by the Attorney General have some significance in cases
involving consideration of constitutional provisions where there is room for
interpretation. Colorado Assn of Public Employees v. Lamm, 677 P.2d 1350,
1360 (Colo. 1984).
In Formal Opinion 15-01, a copy of which may be found in IECs Exhibit 3,
the Attorney General opined that the duty to maintain complaints as confidential
means only that the IEC should not publicly release complaints found to be
frivolous. It does not prevent the IEC from disclosing documents regarding
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.
There is no more risk that the IECs copy of a complaint will go public as a
result of filing it under seal with a district court than there would be from turning it
15

over to the state Auditor. C.R.C.P. 121, 1-5 gives district courts power to limit
public access to case files. An order restricting public access to court files
containing the IECs copy of the complaint, and preventing Ethics Watch from
publicly releasing the IECs copy of the complaint, would fully satisfy the IECs
confidentiality obligation while permitting judicial review to go forward. Ethics
Watch is 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.
To the contrary, the structure and purpose of Article XXIX contemplate
judicial supervision over all aspects of the IECs operations. The IEC is to be
separate and distinct from both the executive and legislative branches, presumably
so that it can best evaluate the actions of the members of those branches.
Developmental Pathways, 178 P.3d at 532. Voters did not extend IEC jurisdiction
to the judicial branch, leaving this branch free to review the IECs actions without
any real or apparent conflict of interest. See id. at 535 (The voters of Colorado
have given the Commission the power to enforce the Amendment's provisions; the
Commission must have the room to exercise that power, subject to judicial
review).
An order limiting public access to the case file in a judicial review
proceeding would be sufficient to comply with the underlying intent of Article
16

XXIXs confidentiality provisions. Voters did not intend that complaints would be
maintained at the level of absolute secrecy urged by the IEC. Nothing in Article
XXIX infringes upon the right of any other person to publicize the contents of a
complaint, which is otherwise guaranteed by U.S. Const. art. I and Colo. Const. art.
II, 10. See Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1054 (Colo.
2002) (With respect to expressive freedoms, this court has recognized that the
Colorado Constitution provides broader free speech protections than the Federal
Constitution.) The IECs assertion that Ethics Watch somehow injured
Commissioner Rowland by publicizing its complaint (despite no such evidence of
harm in the record) indicates a lack of concern for the free speech rights of citizens
who criticize elected officials and seek redress for their grievances before the IEC.
In a democracy, public officials have no general privilege to avoid publicity and
embarrassment by preventing public scrutiny of their actions. Walker v. City of
Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005).
Colorados system contemplates that the target of a complaint, the
complaining party, and anyone else besides the IEC itself is free to publish a
complaint that is under preliminary consideration or has been ruled frivolous. No
IEC Rule attempts to impose a gag order or confidentiality requirement on the
parties at any point throughout the investigation or pre-hearing proceedings.

17

Article XXIX does not require that such complaints will be kept out of the public
eye forever at any cost.
Article XXIXs confidentiality provision is narrowly drawn, extending only
to the complaint, not other documents gathered from other sources or created by
the Commission related to the complaint. See Colo. Const. art. XXIX, 5(3)(b).
The Article does not permit the IEC to engage in a secret preliminary ethics
investigation in order to determine that a complaint valid on its face is actually
frivolous, and then use the confidentiality provision to withhold from public view
the documents outside of the complaint it obtained and reviewed to reach that
conclusion. To the contrary, the IEC is supposed to investigate a complaint after it
has determined that it is not frivolous, not before. Colo. Const. art. XXIX,
5(3)(c). Thus, the documents collected by the IEC in its preliminary
investigation need not and should not be treated as confidential, and may form the
basis of a judicial review action.
B.
The IEC Has No Prosecutorial Discretion to Refuse To Investigate
and Hear a Non-Frivolous Complaint
The IEC contends that its determination whether a complaint is frivolous
should be treated as a non-reviewable exercise of prosecutorial discretion. The IEC
analogizes judicial review of its decision to declare a non-frivolous complaint
frivolous to review of a decision not to proceed with an attorney disciplinary
complaint under C.R.C.P. 251.9. The IEC suggests that if the district courts ruling
18

is upheld, a precedent would be established allowing disappointed citizens to

obtain judicial review of a decision not to proceed with an attorney discipline case.
The IECs argument proves the opposite. The rule regarding decisions not to
proceed on disciplinary complaints states that [t]he decision of the Regulation
Counsel shall be final, and the complaining witness shall have no right of appeal.
C.R.C.P. 251.9(3). No such language appears in Article XXIX, as would be
expected had voters intended to foreclose judicial review of failures to investigate
and hear non-frivolous complaints. In fact, the existence of such language in Rule
251.9 at the time Article XXIX was enacted compels the conclusion that voters did
not intend to insulate IEC frivolousness decisions from review; if they had, they
could have chosen language that would mandate that result. See also C.R.S. 1322-307 (2006) (communications made in settlement conference not to be disclosed
voluntarily nor pursuant to a subpoena, and are not admissible in any proceeding).
The IEC complaint and investigation process is unique and not analogous to
Attorney Regulation Counsel, or any other enforcement proceedings where
deference to prosecutorial discretion precludes judicial review. Under its rules
the IEC does not prosecute complaints, and Article XXIX gives the IEC no
discretion to refuse to proceed to a public hearing on a non-frivolous complaint.
The [IEC] shall conduct an investigation, hold a public hearing, and render
findings on each non-frivolous complaint according to rules adopted by the [IEC].
19

Colo. Const. art. XXIX, 5(3)(c). The word shall, when used in a statute or
constitutional provision, indicates that something is mandatory, not discretionary.
See, e.g., Benefield v. Colo. Republican Party, 2014 CO 57, 10 & n.1 (use of
shall in Open Records Act indicated that an award of attorneys fees to a
prevailing applicant was mandatory); Nowak v. Suthers, 2014 CO 14, 24 (use of
shall in statute governing treatment of multiple sentences for purposes of parole
indicated existence of a mandatory duty).
Unlike the prosecuting authorities and law enforcement agencies at issue in
the cases cited by the IEC, Article XXIX does not give the IEC discretion to
choose not to proceed on a non-frivolous claim. The IEC must investigate and must
hold a hearing on the complaint.
Moreover, the IEC does not prosecute the complaint because it has adopted
rules completely delegating that responsibility to the person filing the complaint.
See IEC Rules 3.A.3, 8.C.1, 8.C.3 and 8.E. The IEC cannot refuse to shoulder the
burden and responsibility of prosecuting ethics complaints, but then claim absolute
prosecutorial discretion to evade judicial review of its determination not to hold a
public hearing on a non-frivolous complaint.
The Court should reject the IECs argument that its decision not to proceed
with an investigation and public hearing into the subject matter of a non-frivolous
complaint is immune from judicial review.
20

V.
Ethics Watch has Standing to Seek Judicial Review of the Dismissal of
its Complaint.
Colorados standing requirements are rooted in Colorado Constitution
Articles III and VI. Ainscough v. Owens, 90 P.3d 851, 855-56 (Colo. 2004).
Colorado imposes two standing requirements: [f]irst, the plaintiff must have
suffered an injury-in-fact, and second, this harm must have been to a legally
protected interest. Id. at 855. The first requirement is constitutionally rooted; the
second is prudential. HealthONE v. Rodriguez, 50 P.3d 879, 892 (Colo.2002). In
Colorado a litigant need not meet the same standing threshold as a litigant in
federal court. City of Greenwood Village v. Petitioners for Proposed City of
Centennial, 3 P.3d 427, 437 n. 8 (Colo. 2000). Accordingly, the test in Colorado
has traditionally been relatively easy to satisfy. Ainscough, 90 P.3d at 856.
Ethics Watch has standing to enforce the requirements of Article XXIX
when the IEC acts in violation of those provisions. Ethics Watch suffered an
injury-in-fact when it was denied a hearing and investigation on its non-frivolous
complaint, in violation of the Article XXIX; a harm to an interest legally protected
by the Colorado Constitution, statute and the IEC Rules. Finally, Ethics Watch
suffered an additional injury-in-fact when it was denied access to information it
would have received from the IEC and Commissioner Rowland during the
pendency of the complaint pursuant to IEC Rules, and when it was denied access

21

to documents about the IECs preliminary investigation under the Colorado Open
Records Act.
A.
Ethics Watch Has Standing To Enforce Article XXIX, A SelfExecuting Amendment.
Article XXIX, establishing the IEC to supervise the ethical conduct of the
executive and legislative branches, is self-executing. Developmental Pathways,
178 P.3d at 533. As such, Article XXIX "affords the means of protecting the right
given and of enforcing the duty imposed." Id. at 530 (quoting Colo. State Civil
Service Employees Assn. v. Love, 448 P.2d 624, 627 (Colo. 1968)). The article
empowers any person, including an out-of-state nonprofit corporation authorized
to conduct business in Colorado, to file an ethics complaint. Colo. Const. art.
XXIX, 2(4) (definition of person); id. 5(3)(a).
Ethics Watchs complaint for judicial review alleges that by failing to
investigate and hold a public hearing on its non-frivolous complaint, the IEC has
violated Colo. Const. art. XXIX, 5(3)(c). Colorado law recognizes broad
standing to enforce the terms of self-executing constitutional amendments. A
precept of constitutional law is that a self-executing constitutional provision ipso
facto affords the means of protecting the right given and of enforcing the duty
imposed. Colo. State Civil Service Employees Assn., 448 P.2d at 627. Standing to
enforce the terms of a self-executing amendment has been referred to as a form of
taxpayer standing. See Ainscough, 90 P.3d at 856. More recently, the Court has
22

drawn a distinction between taxpayer standing, which requires a clear nexus

between [the plaintiffs] status as a taxpayer and the challenged government
action, and citizen standing, which is standing to enforce the terms of a selfexecuting constitutional amendment. Hickenlooper v. Freedom From Religion
Foundation, 2014 CO 77, 11-12 & n. 10; see also 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).
Ethics Watch has a form of citizen standing here because as a selfexecuting amendment, Article XXIX creates a privately enforceable right to
have the amendment carried out correctly, Developmental Pathways, 178 P.3d at
530-31, and Ethics Watch falls within the definition of person under Article
XXIX that is authorized to file an ethics complaint with the IEC. Colo. Const. art.
XXIX, 2(4), 5(3)(a).
The purpose of Article XXIX is to make sure members of the legislative and
executive branches live up to the standards of conduct enshrined in Colorado law
that apply to persons engaged in public service. Voters intended the IEC to be
separate and distinct from both the executive and legislative branches, presumably
so that it can best evaluate the actions of the members of those branches.
Developmental Pathways, 178 P.3d at 532. To protect the IEC from interference
23

from the political branches, it is established as separate from both, see id., and is
constitutionally protected against legislation that would limit or restrict the
provisions of this article or the powers herein granted. Colo. Const. art. XXIX,
9. In order to keep the IEC from failing to enforce Article XXIX, members of the
public have a right to sue the IEC to hold it accountable at least when, as here,
the member of the public has first invoked the agencys procedures to get it to do
its job. See Developmental Pathways, 178 P.3d at 530-31; see also Colo. State
Civil Service Employees Assn., 448 P.2d at 627; ([p]etitioners state a justiciable
controversy, because they claim violation of the Civil Service Amendment, which
is fully self-executing).
B.

Ethics Watch Is Legally Entitled To A Hearing On Its Complaint.

In Colorado state courts, a legal injury sufficient to establish 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 standing
requirement asks only whether the particular constitutional or statutory provision
underlying the claim creates a right or interest in the plaintiff that has been
arguably abridged by the challenged governmental action. State Bd. for
Community Colleges & Occupational Educ. v. Olson, 687 P.2d 429, 435 (Colo.
1984).

24

The IECs petition 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)(c). 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, an
opportunity to respond to Commissioner Rowlands defenses, and the entry of
findings after that public hearing. See id. Ethics Watch has established injury by
showing that it has been denied a public hearing to which it is entitled.
The complaining partys right to participate in the hearing of a complaint is
enshrined in the IECs Rules of Procedure, the rules enacted pursuant to its Article
XXIX authority to conduct an investigation, hold a public hearing, and render
findings on each non-frivolous complaint pursuant to written rules adopted by the
[IEC]. Colo. Const. art. XXIX, 5(3)(c). As previously discussed, the IEC Rules
deem the person filing the complaint to be a party with rights and obligations
similar to those of the respondent. The Complainant can be sanctioned with
dismissal of a complaint if it fails to participate in prehearing matters or if it fails to
prosecute the complaint at a hearing. IEC Rule 8.C.3. The complainant is
responsible for presenting witnesses and documentary evidence at the IEC hearing,
and must themselves pay any costs associated with testimony presented by a
25

witness unable to appear before the IEC in person. IEC Rule 8.E. If the IEC had
not erroneously dismissed Ethics Watchs complaint, Ethics Watch would have
been entitled to receive documents and witness lists from Commissioner Rowland.
IEC Rule 8.C.1. It would have been entitled to participate in a hearing of the
complaint and cross examine witnesses. IEC Rules 8.D. and E. Instead, Ethics
Watch was not even afforded a chance to respond during the secret preliminary
investigation before the IEC improperly dismissed the complaint. The IEC cannot
use its constitutional rulemaking authority to create a party-prosecuted ethics
enforcement system, then contend that a complainant has no legal interest in
proceeding with the hearing on a non-frivolous complaint it is required by the IEC
Rules to prosecute.
If the IEC wished to set up an argument that persons who file non-frivolous
complaints have no legal interest in seeing the IEC actually go forward with those
complaints, at a minimum it should have established rules under which IEC staff
would prosecute a complaint (or at least recommend a finding based on an IEC
investigation that could be contested at a hearing) instead of using its constitutional
authority to outsource prosecution to the complaining party. Without question, the
IECs rules putting onerous burdens on complaining parties have deterred many
Coloradans from asking the IEC to investigate possible wrongdoing. The IEC is in
no position to say to this Court that a person who is ready, willing and able to serve
26

as the voluntary prosecutor required by the IECs Rules has no legally protected
interest in participating in that process after it has filed a non-frivolous complaint
such as this one.
C.
Ethics Watchs Interest in Public Release Of the Preliminary
Investigation And Other Documents Is Independently Sufficient to Establish
a Legal Injury In Fact.
Ethics Watch has also demonstrated informational standing as an
independent basis to uphold the district courts determination. Dismissal of a
complaint as frivolous means that the IEC is refusing to release the complaint, and,
in this case, the documents collected in its preliminary investigation, pursuant to
an open records request served before this litigation. Complaint at 19, 22-23.
The IECs petition to this Court states that these documents cannot even be
released to the courts under seal. Ethics Watchs inability to access information
that should be disclosed and post it to its website that it has maintained for years
to help the public monitor the IEC is an injury-in-fact which is a legal
consequence of the IECs decision. Complaint at 6, 28.b.
In addition, had the IEC not erroneously dismissed Ethics Watchs
complaint, Ethics Watch would have been legally entitled to receive documents
and a list of potential witnesses from Commissioner Rowland along with a short
statement regarding the relevant facts or opinions about which each has
information or knowledge. IEC Rule 8.C.1. As a direct result of the challenged
27

dismissal, Ethics Watch has suffered informational injury by being denied access
to government information that should be available to it.
It is well-established that a plaintiffs interest in obtaining government
information that 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) (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 documents that would have been
public had the complaint not been found frivolous. 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
legal injury on an additional, independent ground from the wrongful denial of an
investigation and public hearing on Ethics Watchs non-frivolous complaint in
violation of Article XXIX.

28

WHEREFORE, Ethics Watch requests that the Court discharge the Rule.
Dated: October 19, 2015.
Respectfully submitted,
signed original on file at Colorado Ethics
Watch
/s/ Luis Toro
Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202
Attorneys for Respondent
CERTIFICATE OF SERVICE
I certify that on October 19, 2015 I served the foregoing RESPONSE TO
RULE TO SHOW CAUSE via ICCES to the following:
Lisa B. Freimann, Esq.
Kyle C. Dumler, Esq.
Colorado Department of Law
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 8th Floor
Denver, CO 80203

signed original on file at Colorado Ethics

Watch
/s/ Luis Toro
Luis Toro

29