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DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, CO 80202

▲ COURT USE ONLY ▲

COLORADO ETHICS WATCH, Plaintiff, v. INDEPENDENT ETHICS COMMISSION, Defendant.

Case No.: 2015 CV 031862 Division: 424

ORDER

This matter is before the Court on Defendant Independent Ethics Commission’s (“IEC”) Motion to Dismiss, filed June 16, 2015. IEC first argues that its dismissal of Plaintiff’s ethics complaint as frivolous is not a final action subject to judicial review. Plaintiff calls this argument “absurd.” The Court believes “Orwellian” is a more apt description. On its face, the dismissal of the complaint as frivolous was a final action—it left nothing more to be done, other than the ministerial task of maintaining the complaint as confidential. The primary case relied upon by IEC is not to the contrary. In Colorado Board of Medical Examiners v. B.L.L., 820 P.2d 1190 (Colo. App. 1991), the party against whom a complaint had been filed—and dismissed—attempted to appeal a “letter of concern” issued by the Medical Board. The court determined that no disciplinary action had been taken against the appealing physician, and the Medical Practice Act only allowed judicial review of adverse disciplinary actions. Id. at 1191-92.

DATE FILED: July 21, 2015 8:55 AM CASE NUMBER: 2015CV31862

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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. IEC’s 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 Plaintiff’s alleged injury was to a legally protected interest under the constitution. Motion denied.

DATED July 21, 2015.

______________________ A. Bruce Jones

District Court Judge

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, CO 80202 COLORADO ETHICS WATCH, Plaintiff, v. INDEPENDENT ETHICS COMMISSION, Defendant. COURT USE ONLY CYNTHIA H. COFFMAN, Attorney General LISA BRENNER FREIMANN * First Assistant Attorney General KYLE DUMLER * Senior Assistant Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 8th Floor Denver, CO 80203 Telephone: 720-508-6385 FAX: 720-508-6037 E-Mail: lisa.freimann@state.co.us Registration Numbers: 31175, 18777 *Counsel of Record

Case No. 2015 CV 031862 Div: 424

MOTION TO DISMISS The Independent Ethics Commission (“IEC” or “Commission”), through its

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 Commission’s counsel that Ethics Watch opposes this motion.

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I. Introduction and Undisputed Material Facts

A. Amendment 41 and the Commission

Amendment 41 of the Colorado Constitution (“Amendment 41”), now codified

as Article XXIX of the Colorado Constitution, was an initiative enacted by Colorado

voters in November 2006. Amendment 41 creates the Commission, comprised of

five members, no more than two of which can be affiliated with the same political

party. Colo. Const. Art. XXIX, § 5(2).

Among other things, the Commission is charged, “to hear complaints, issue

findings, and assess penalties” on ethics issues arising under Article XXIX and

under any other standard of conduct or reporting requirement provided by law.

Colo. Const. Art. XXIX, § 5(1). Any person may file a written complaint with the

Commission asking whether public officers, members of the general assembly,

government employees or local government officials failed to comply with

Amendment 41 or any other standard of conduct or reporting requirements

provided by law. Colo. Const. Art. XXIX, § 5(3)(a).

The Commission must conduct investigations, hold public hearings and

render findings on all non-frivolous complaints, pursuant to IEC Rules. Colo.

Const. Art. XXIX, § 5(3)(c). In contrast to non-frivolous complaints, the Commission

may dismiss frivolous complaints without conducting public hearings. Colo. Const.

Art. XXIX, § 5(3)(b). “Complaints dismissed as frivolous shall be maintained

confidential by the commission.” Id.

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Amendment 41 explicitly authorizes the Commission to adopt reasonable

rules necessary for the purpose of administering and enforcing the provisions of

Amendment 41. Colo. Const. Art. XXIX, § 5(1). The IEC adopted Rule of

Procedure 7.F pursuant to this constitutional authority and pursuant to Colorado’s

Administrative Procedures Act (“APA”), C.R.S. § 24-72-201 et seq. IEC Rule 7.F

states:

The Commission may determine whether a complaint is frivolous based on the face of the complaint itself. Alternatively, the Commission in its discretion may defer a frivolous determination until after a preliminary investigation of the complaint by the staff of the Commission. The Commission shall exercise care to the extent practicable not to disclose the contents of the complaint as part of the preliminary investigation. If after a preliminary investigation the Commission is unable to determine whether or not a complaint is frivolous, the Commission may disclose the complaint to the individual who is the subject of the complaint for their response in order to aid the Commission in rendering a frivolous determination.

A copy of the IEC Rules is attached as Exhibit 1.

B. Complaint 14-07

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 Commission’s Executive Director to conduct a preliminary investigation

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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

14-07. Complaint, para. 20.

On May 11, 2015, the Commission met in executive session to discuss

Complaint 14-07. Complaint, para. 2. The Commission met in executive session to

discuss the complaint in order to maintain its confidentiality as required by § 5(3)(b)

of Article XXIX of the Colorado Constitution, should the complaint be determined

frivolous by the Commission. Thereafter, the Commission entered into open session

and voted 3-2 to dismiss Complaint 14-07 as frivolous. Complaint, para. 21.

II. Standard of Review

A motion to dismiss under C.R.C.P. 12(b)(1) for lack of jurisdiction should be

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 court’s subject

matter jurisdiction. Dolores Huerta Preparatory High v. Colo. St. Bd. of Education,

215 P.3d 1229, 1232 (Colo.App. 2009).

A motion to dismiss under C.R.C.P. 12(b)(5) should be granted when

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).

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III. Argument

A. The Commission’s Decision to Dismiss a Frivolous Complaint is not Final Action Subject to Judicial Review.

C.R.S. section 24-18.5-101(9) provides that “[a]ny final action of the

commission concerning a complaint shall be subject to judicial review . . ..” C.R.S.

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).

While the phrase “final action” is not defined in either the APA or section 24-

18.5-101, the APA defines “action” to include “the whole or any part of an agency

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

following two criteria must be met: (1) the action must mark the consummation of

the agency’s 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.

The Commission’s dismissal of Complaint 14-07 as frivolous is not “final

action” subject to judicial review. The Commission’s dismissal of Complaint 14-07

does not amount to a rule, sanction or the denial of a license and the dismissal does

not determine any person’s rights or obligations and no legal obligations flow from

the dismissal. See Chittenden, supra, (holding that the Colorado Board of Social

Work Examiners decision not to issue a declaratory order upon request to do so was

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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 Commission’s 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 Commission’s involvement based on the facts or law. See IEC

Rule 3.A.5. (defining “frivolous”).

The fact that the Colorado Constitution requires the Commission to keep

frivolous complaints confidential (Colo. Const. Art. XXIX, § 5(3)(b)) reinforces the

conclusion that the dismissal of a frivolous complaint is not subject to judicial

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);

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 requirement1.

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. 1 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

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

“final action” and therefore, this case should be dismissed for lack of subject matter

jurisdiction.

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

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 court’s dismissal of a

complaint, filed under § 24-4-106 and C.R.C.P. 106, for lack of jurisdiction due to no

final action).

B. As an Additional Ground to Dismiss the Complaint, Ethics Watch Neither is Adversely Affected Nor Aggrieved and Lacks Standing under Both the APA and C.R.C.P. 106.

Neither section 24-4-106(4), C.R.S. of the APA nor C.R.C.P. 106 confer

standing, but rather address the procedures of review, once it is established a

dispute is justiciable pursuant to other statutory authority. Dolores Huerta

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Preparatory High, 215 P.3d at 1233, citing State Dep’t. of Personnel v. Colo. St.

Personnel Bd., 722 P.2d 1012, 1019 (Colo. 1986) and Romer v. Bd. of County

Comm’rs, 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

final agency action may commence an action for judicial review. § 24-4-106(4),

C.R.S. A person is adversely affected or aggrieved, and therefore has standing to

bring a judicial review action, if the party has suffered actual loss or injury to a

legally protected right or there is a showing that the party is exposed to potential

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.

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 Comm’rs, 720 P.2d 579, 582 (Colo.App. 1985).

Ethics Watch alleges that it has standing because Ethics Watch has a right to

file non-frivolous complaints under the Colorado Constitution, which must be

investigated and upon which the Commission must hold a hearing and that they

were deprived of these rights as a result of the Commission’s frivolous

determination. Complaint, para. 28. Ethics Watch correctly identifies that it has

the right to file a complaint with the Commission. Ethics Watch, however, does not

have a legally protected interest in the outcome they wish to receive from the

Commission once a complaint has been filed. The Colorado Constitution vests the

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authority with the Commission to determine whether a complaint is frivolous or

not. As previously discussed, if the Commission determines that a complaint is

frivolous, neither the voters of this state nor the General Assembly intended for any

party or person to have any appeal rights from that decision.

Ethics Watch also alleges that it has standing in this case because Ethics

Watch has been deprived of the records reviewed, collected or generated by the

Commission during its preliminary investigation of Complaint 14-07 due to the

frivolous determination and the Constitution’s confidentiality requirement.

Complaint, para. 28. Plaintiff possesses no legally protectable right to receive a

copy of the complaint deemed frivolous, or records of the Commission’s preliminary

investigation made to determine whether a complaint is frivolous. “Complaints

dismissed as frivolous shall be maintained confidential by the commission.” Colo.

Const. Art. XXIX, § 5(3)(b).

The records obtained by the IEC as part of its preliminary investigation

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 Constitution’s mandate to maintain the confidentiality of frivolous

complaints. Under IEC Rule 7.F, the Commission’s 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.

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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.

Respectfully submitted this 16th day of June, 2015.

CYNTHIA H. COFFMAN Attorney General Pursuant to C.R.C.P. 121, §1-26(7), a printable copy of this document is maintained in the Office of the Attorney General for the State of Colorado /s/ LISA BRENNER FREIMANN LISA BRENNER FREIMANN, * First Assistant Attorney General KYLE DUMLER,* Senior Assistant Attorney General Attorneys for THE INDEPENDENT ETHICS

COMMISSION *Counsel of Record

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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:

Luis Toro Margaret Perl Colorado Ethics Watch 1630 Welton Street, Suite 415 Denver, Colorado 80202

/s/ William Russell

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

Plaintiff: COLORADO ETHICS WATCH

v.

Defendant: INDEPENDENT ETHICS

COMMISSION

Attorneys for Plaintiff:

Luis Toro, #22093

Margaret Perl, #43106

Colorado Ethics Watch

1630 Welton Street, Suite 203

Denver, Colorado 80202

Telephone: (303) 626-2100

Fax: (303) 626-2101

E-mail: ltoro@coloradoforethics.org

COURT USE ONLY

Case Number: 2015CV031862

Division 424

OPPOSITION TO MOTION TO DISMISS

Plaintiff Colorado Ethics Watch (“Ethics Watch”), by its undersigned counsel, submits its

opposition to the Defendant Independent Ethics Commission’s (“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 IEC’s dismissal, as frivolous, of a

complaint Ethics Watch filed against Elbert County Commissioner Robert Rowland. Ethics

Watch’s complaint established through self-authenticating public records that Commissioner

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Rowland cast the deciding vote to authorize the Elbert County Attorney to appeal an

administrative law judge’s 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

the vote. Ethics Watch supplied the IEC with the minutes reflecting Commissioner Rowland’s

casting of the decisive vote and even provided a video of the meeting, at which the dissenting

commissioner objected that county money was being spent for the personal benefit of

Commissioner Rowland. Complaint at ¶ 11. After stalling for almost a full year, the IEC

launched a secret “preliminary investigation” of the complaint and then voted 3-2 to dismiss the

complaint as frivolous. Id. at ¶¶ 14-21.

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 person’s rights or obligations and no

legal obligations flow from the dismissal,” and (2) Ethics Watch is not adversely affected or

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aggrieved by the dismissal of its complaint as frivolous. They also argue that the Colorado

Constitution’s 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

IEC’s erroneous dismissal of a non-frivolous complaint. These arguments all lack merit.

II. Ethics Watch Has Standing

The IEC’s 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

consequences to Ethics Watch. Because Ethics Watch is harmed by the dismissal, both

arguments should be rejected.

A. The Dismissal Is a Final Action

“‘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, 713-721 (Colo. 2010) (citation omitted). The

IEC’s dismissal of Ethics Watch’s complaint satisfies this standard. The dismissal marks the end

of proceedings before the IEC.

The IEC’s 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

Rowland’s 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.

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The IEC’s “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 IEC’s argument that Ethics Watch lacks standing must be rejected.

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

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

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).

The IEC’s Motion does not present the question whether Ethics Watch would be entitled

to seek review of the IEC’s 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 IEC’s 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.

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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

not suffer an injury to a legally protected interest by the Secretary’s failure to hold a hearing. See

id. at ¶¶ 8, 78. The district court rejected the Secretary’s argument, and the Court of Appeals

affirmed, holding that Marks’ “right to a hearing on the record” was a sufficient legal injury to

establish standing. Id. at ¶ 88. Moreover, because she satisfied the statutory prerequisites to

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.

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 IEC’s erroneous dismissal of Ethics Watch’s

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

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would be subject to discipline; and (3) the order itself noted the plaintiff’s 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

entitled to such review.” Id. at ¶ 29.

In contrast, here the IEC’s decision ended the proceedings, determined both that

Commissioner Rowland will not be subject to discipline and that Ethics Watch would not receive

a public hearing or findings on its complaint, and now purports to foreclose judicial review of the

IEC’s action for all time. If anything, Chittenden counsels against granting the Motion.

Article XXIX’s private-party-driven mechanism to initiate complaints, like HAVA’s

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 individual’s, as well as the State’s, 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.

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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 Watch’s complaint. The IEC’s position, if accepted, would

create a perverse incentive structure: the IEC’s decision to penalize a wrongdoer would be

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

threaten legal review of any IEC ruling against them, while citizens would be powerless to

challenge any decision declaring a meritorious complaint frivolous. The predictable result is that

the IEC would cease to be an effective independent ethics enforcement agency.

C. Ethics Watch Has Standing To Ensure Compliance With Article XXVIII, A

Self-Executing Constitutional Amendment

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. v. Love, 448 P.2d 624,

627 (Colo. 1968) (“Love”); see also Hickenlooper v. Freedom From Religion Foundation, 2014

CO 17, ¶ 11 n. 10 (distinguishing “citizen standing” under Love from the more restrictive but

still generous “taxpayer standing” recognized in Colorado law). Article XXIX, establishing the

IEC to supervise the ethical conduct of the executive and legislative branches, is self-executing.

Developmental Pathways v. Ritter, 178 P.3d 524, 533 (Colo. 2008). Love’s recognition of

standing in suits to enforce self-executing constitutional provisions applies fully to this case, in

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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

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

from abusing this independence through overzealousness, the voters made IEC action contingent

upon requests from the public. See Colo. Const. art. XXIX, § 5(5) (covered individuals may

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

under the IEC’s 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 self-

executing 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 district’s 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 IEC’s 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”).

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D. Ethics Watch’s Interest in Public Release Of the “Preliminary Investigation”

Is Independently Sufficient to Establish Standing

Dismissal of a complaint as frivolous also means that the IEC will not publicly release

the complaint, and, in this case, the documents collected or generated in connection with its

closed-door “preliminary investigation.” The IEC rejected Ethics Watch’s request for these

materials pursuant to the Colorado Open Records Act. Complaint at ¶¶ 19, 22-23. Ethics Watch’s

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 a legal consequence of the IEC’s

decision. Complaint at ¶¶ 6, 28.b. A plaintiff’s 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 Comm’n 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 Watch’s 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 Watch’s complaint demonstrates standing on an additional,

independent ground to establish standing.

III. The Confidentiality Requirement Does Not Foreclose Judicial Review

Had the voters who enacted Article XXIX by ballot initiative intended to foreclose

judicial review of the IEC’s decision to dismiss a complaint as frivolous, they would have said so

in so many words. Even though no such language exists in the Article, the IEC asks the Court to

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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

that rejected the IEC’s view of its own confidentiality obligations. Formal opinions issued by the

Attorney General have “some significance in cases involving consideration of constitutional

provisions where there is room for interpretation.” In re Complaint Filed by City of Colo.

Springs, 2012 COA 55, ¶ 19.

In Formal Opinion 15-01, a copy of which is attached hereto as an Appendix, 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 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 IEC’s copy of the complaint1

would fully satisfy the IEC’s confidentiality obligation while permitting judicial review to go

1 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 IEC’s 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 IEC’s motion to dismiss.

Dated: July 6, 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 203

Denver, Colorado 80202

Attorneys for Plaintiff Colorado Ethics Watch

CERTIFICATE OF SERVICE

I certify that on July 6, 2015 I served the foregoing OPPOSITION TO MOTION TO

DISMISS via ICCES to the following:

Kyle C. Dumler, Esq.

Senior Assistant Attorney General

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

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DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, CO 80202 COLORADO ETHICS WATCH, Plaintiff, v. INDEPENDENT ETHICS COMMISSION, Defendant. COURT USE ONLY CYNTHIA H. COFMANN, Attorney General LISA BRENNER FREIMANN * First Assistant Attorney General KYLE DUMLER * Senior Assistant Attorney General NATALIE LUCAS * Assistant Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 8th Floor Denver, CO 80203 Telephone: 720-508-6385 FAX: 720-508-6037 E-Mail: lisa.freimann@state.co.us Registration Numbers: 31175, 18777, 35680 *Counsel of Record

Case No.: 2015 CV 031862 Division: 424

REPLY TO OPPOSITION TO MOTION TO DISMISS The Independent Ethics Commission (“IEC” or “Commission”), through its

counsel the Office of the Colorado Attorney General, replies to Colorado Ethics

Watch’s (“Ethics Watch”) Opposition to the Commission’s Motion to Dismiss (the

“Opposition Brief”). In support of this Reply, the Commission states the following.

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Argument

I. Dismissal of a Frivolous Complaint is not Final Action Subject to Judicial Review.

In order for there to be “final action,” as required by Colorado’s

Administrative Procedures Act (“APA”) as a prerequisite to judicial review, the

“action” must be one by which rights or obligations have been determined or from

which legal obligations will flow. Chittenden v. Colo. Bd. of Social Work Examiners,

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

whom the complaint was filed. Cf. Colorado Board of Medical Examiners v. B.L.L.,

820 P.2d 1190 (Colo.App. 1991) (holding that the dismissal of disciplinary

proceedings against a doctor solely with the issuance of a confidential letter of

concern, is not appealable disciplinary action subject to judicial review because

there are no adverse consequences to the doctor, the proceedings are confidential

and there is no record for the court to review). The Opposition Brief fails to address

the discussion in the Commission’s Motion at pp. 6-7 of B.L.L. and its analogous set

of facts.

Rather, Ethics Watch contends that final action exists in this case because

the Commission’s dismissal of Complaint 14-07: (1) exonerates Commissioner

Rowland1, posturing him as the victim of a frivolous complaint; (2) wrongfully

brands Ethics Watch as a frivolous filer; (3) deprives Ethics Watch and the citizens

of Elbert County from seeing Rowland held accountable through an IEC 1 Based on the constitutional bar of confidentiality, the Commission is unable to confirm or deny whether Commissioner Rowland is the subject of Complaint 14-07.

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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 Watch’s contentions, the dismissal of Complaint 14-07 neither branded nor

exonerated anyone, especially given the Commission’s maintenance of the

confidentiality of Complaint 14-07.

Moreover, while Article XXIX of the Colorado Constitution provides Ethics

Watch with the opportunity to file a complaint with the IEC, the Constitution does

not vest in Ethics Watch, or any other person, the right to have every complaint

investigated and heard. The Commission is required to conduct investigations, hold

public hearings and render findings only on non-frivolous complaints. Colo.Const.

art. XXIX, § 5(3)(c). Similarly, the Colorado Constitution does not vest Ethics

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 Watch’s 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 IEC’s 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 Commission’s final actions are

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subject to judicial review. § 24-18.5-101(9), C.R.S. Moreover, as exemplified by

Formal Opinion No. 15-01 attached as an Appendix to the Opposition Brief, the

Office of the State Auditor may review the IEC’s dismissals of frivolous complaints

as part of its performance audit function, without any violation of the Constitution’s

confidentiality requirements because the State Auditor must maintain the

confidentiality of those records.

For these reasons, this Court should reject Ethics Watch’s arguments in

support of its contention that there is final action in this case.

II. Ethics Watch Lacks Standing to Seek Judicial Review of a Complaint Dismissed as Frivolous by the Commission.

A. Failure to Provide Ethics Watch with an Investigation and a Hearing Does Not Amount to an Injury in Fact.

To establish standing in Colorado, Ethics Watch must prove that: (1) it

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).

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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.

In Common Cause, supra, Common Cause filed suit in district court seeking

judicial review of the Federal Election Commission’s (“FEC”) decision to dismiss a

complaint filed by Common Cause, which alleged violations of federal election

campaign law. Like Ethics Watch in this case, Common Cause desired a ruling

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

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 Comm’n, 293 F.Supp.2d 41 (D.D.C. 2003) (holding that a plaintiff

lacked standing to seek judicial review of the FEC’s failure to act on his

administrative complaint within the deadlines required by law, as the plaintiff

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does not have a justiciable interest in the enforcement of the law and therefore, no

injury in fact), attached as Exhibit 2.

Here, Ethics Watch’s 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

have a justiciable interest in the enforcement of the law and has alleged no other

direct injury, it lacks standing in this case.

Ethics Watch relies on Marks v. Gessler, 2013 COA 115 (Colo.App. 2013) as

support for its argument. Marks is distinguishable from the present case. While

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

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 Comm’n, 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

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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 1-1.5-

105(b)(2), C.R.S. (2013), and is dismissed without a hearing, the individual has

standing to seek judicial review of the Secretary of State’s final determination

because the person is “aggrieved” pursuant to section 1-1.5-105(4),C.R.S. (2013).” A

copy of this Order is attached as Exhibit 3. Thereafter, the case was fully briefed

before the Supreme Court and oral argument was heard on April 28, 2015. By order

dated April 30, 2015, the Supreme Court denied certiorari as having been

improvidently granted. A copy of this Order is attached as Exhibit 4. It is the

undersigned’s understanding that Ms. Marks ultimately was provided a hearing

before the Supreme Court’s April 30th Order.

B. A Self-Executing Constitutional Amendment Does Not in and of Itself Confer Standing.

Ethics Watch argues that because Article XXIX is self-executing, Ethics

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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that it suffered an injury to a right protected by the subject constitutional provision.

Wimberly, 570 P.2d at 539. As previously discussed, Article XXIX does not grant

Ethics Watch the right to judicial review in this case.

Colorado State Civil Service Employees Assoc. v. Love, 448 P.2d 624 (Colo.

1968) does not support Ethic Watch’s position. In Love, the court did not equate

self-execution with standing. Rather, the court discussed self-execution for the

purpose of determining whether certain legislation violated self-executing

provisions of the Colorado Constitution. The facts in Love are not applicable here.

C. Ethics Watch’s Desire for Information Related to Complaint 14-07 Does Not Confer Standing.

Ethics Watch argues that its interest in the public release of Complaint 14-

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 Comm’n 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 Watch’s complaint asserts no direct

harm or other injury to it from the Commission’s failure to disclose Complaint 14-

07, other than Ethics Watch’s 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.

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In Judicial Watch, supra, the D.C. district court discussed the D.C. Circuit’s

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

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

to seek judicial review of the FEC’s dismissal of his complaint because what the

plaintiff really was seeking was not information, but rather a determination that

the law was violated. Judicial Watch also supports this Court’s rejection of Ethics

Watch’s informational standing argument.

Conclusion

For the reasons set forth herein and in the Commission’s Motion to Dismiss,

the Independent Ethics Commission requests that the complaint in this case be

dismissed.

Respectfully Submitted this 13th day of July, 2015.

CYNTHIA H. COFFMAN Attorney General Pursuant to C.R.C.P. 121, §1-26(7), a printable copy of this document is maintained in the Office of the Attorney General for the State of Colorado /s/LISA BRENNER FREIMANN

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LISA BRENNER FREIMANN, * First Assistant Attorney General KYLE DUMLER,* Senior Assistant Attorney General NATALIE LUCAS* Assistant Attorney General Attorneys for THE INDEPENDENT ETHICS

COMMISSION *Counsel of Record

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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 E-

filing 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

s/ William Russell

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