Response to Rule to Show Cause IEC v. CO Ethics Watch

8/20/2019 Response to Rule to Show Cause IEC v. CO Ethics Watch

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COLORADO SUPREME COURT2 E. 14th Avenue, Denver, CO 80202

Original ProceedingDistrict Court, City and County of Denver,

2015CV31862

In re:

Petitioner/Defendant: INDEPENDENTETHICS COMMISSION

v.

Respondent/Plaintiff: COLORADO

ETHICS WATCH

Attorneys for Respondent:Luis Toro, #22093Margaret Perl, #43106Colorado Ethics Watch1630 Welton Street, Suite 415Denver, Colorado 80202Telephone: (303) 626-2100

Fax: (303) 626-2101E-mail: [email protected]

COURT USE ONLY

Case Number: 2015SA244

RESPONSE TO RULE TO SHOW CAUSE

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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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 Heara 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-ExecutingAmendment ...........................................................................................................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 InFact. ....................................................................................................................27


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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 Ass’n 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 Comm’n 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 .... 23Walker 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


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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


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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 certifythat:

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 therequirements of C.A.R. 21.

/s/ Luis Toro

Luis ToroAttorney for the RespondentColorado Ethics Watch


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

counsel, submits its response to the Court’s 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 Colorado’s 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).

https://www.colorado.gov/pacific/sites/default/files/FinalOrder_10-06_IEC.pdfhttps://www.colorado.gov/pacific/sites/default/files/FinalOrder_10-06_IEC.pdfhttps://www.colorado.gov/pacific/sites/default/files/FinalOrder_10-06_IEC.pdf


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The IEC’s f ailure 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 IEC’s 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 IEC’s 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


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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 Watch’s 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


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the motion and then voted to authorize the County to appeal the decision against

him at County expense. Ethics Watch further alleged that Commissioner

Rowland’s 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. Duvall’s

complaint in OAC Case No. 2013-0012, Ethics Watch filed a supplement to the

complaint on April 30, 2014, attached as Respondent’s Exhibit B. The supplement

emphasized that Ethics Watch’s complaint was “limited to Commissioner

Rowland’s conflicted vote to have Elbert County taxpayers pay for the appeal of

the ALJ’s award against himself personally” and not to his spending of county


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funds to support a ballot measure. The IEC took no action in response to Ethics

Watch’s 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

Rowland’s personal liability for the OAC fine, and (2) Ms. Duvall’s counsel was

admonished for bringing up Commissioner Rowland’s vote to have the County pay

for the appeal because that vote was not part of the case before the Court of

Appeals. Respondent’s 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. 2013-

0012 against Commissioner Rowland. To Ethics Watch’s knowledge, no certiorari

petition was filed for review of the Court of Appeals’ judgment.

The Minutes of the IEC’s 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


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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 14-

07 as frivolous. The Commission issued a letter to Ethics Watch, a copy of which

is attached as Respondent’s 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. IEC’s Exhibit 1. After the District Court twice denied the IEC’s

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 Watch’s

complaint for judicial review. On September 17, 2015, the Court issued an Order

and Rule to Show Cause, to which Ethics Watch now responds.


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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

1 Colorado Secretary of State, “Colorado Cumulative Report,” December 13, 2006,available at http://www.sos.state.co.us/pubs/electionresults2006G/.


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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 IEC’s

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 non-

frivolous 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 IEC’s staff investigation report).


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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 Watch’s 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 IEC’s argument that a dismissal of a

complaint as frivolous is not a “final action” as “Orwellian.” IEC’s 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 IEC’s dismissal of Ethics Watch’s


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complaint satisfies this standard. The dismissal marks the end of proceedings

before the IEC and reflects the agency’s determination that the complaint is wholly

without legal or factual merit. See Exhibit D.

Legal consequences flow from the IEC’s dismissal of the complaint. The

decision marks the end of the agency’s 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 Rowland’s 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 IEC’s 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


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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 Watch’s 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 IEC’s motive to defend its own decision meant that Ethics

Watch’s interests were adequately protected by the IEC, just as Commissioner

Rowland’s 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 IEC’s dismissal of a complaint as frivolous could seek

permissive joinder as an additional defendant under C.R.C.P. 20(a).

The IEC’s 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.


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

Ethics Watch’s complaint referenced the IEC’s 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 IEC’s 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 authorityin the complaint. Should the Court agree with this argument, the proper remedywould be to discharge the rule and remand the case with instructions to permitEthics 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 theoryof law the claim as stated entitles the pleader to relief”).


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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 IEC’s contention that Ar ticle 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 citizen’s initiative, we give effect to the

electorate’s 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

IEC’s obligation is limited to maintaining as confidential its own copy of the


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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 IEC’s 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 Ass’n 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 IEC’s 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 IEC’s 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


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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 IEC’s copy of the complaint, and preventing Ethics Watch from

publicly releasing the IEC’s copy of the complaint, would fully satisfy the IEC’s

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

IEC’s duty to maintain frivolous complaints as conf idential 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 IEC’s 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 IEC’s 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


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XXIX’s 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 IEC’s 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).

Colorado’s 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.


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Article XXIX does not require that such complaints will be kept out of the public

eye forever at any cost.

Article XXIX’s 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 court’s ruling


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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 IEC’s 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. § 13-

22-307 (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].”


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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 IEC’s 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.


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V. Ethics Watch has Standing to Seek Judicial Review of the Dismissal of

its Complaint.

Colorado’s 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


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to documents about the IEC’s preliminary investigation under the Colorado Open

Records Act.

A. Ethics Watch Has Standing To Enforce Article XXIX, A Self-

Executing 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 Watch’s 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


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

between [the plaintiff’s] status as a taxpayer and the challenged government

action,” and “citizen standing,” which is standing to enforce the terms of a self -

executing 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 district’s 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 self-

executing 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


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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 agency’s 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).


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The IEC’s petition 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)(c). 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, an

opportunity to respond to Commissioner Rowland’s 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 party’s right to participate in the hearing of a complaint is

enshrined in the IEC’s 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


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witness unable to appear before the IEC in person. IEC Rule 8.E. If the IEC had

not erroneously dismissed Ethics Watch’s 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

IEC’s 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


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as the voluntary prosecutor required by the IEC’s 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 Watch’s 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 court’s 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 IEC’s petition to this Court states that these documents cannot even be

released to the courts under seal. 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 an injury-in-fact which is a legal

consequence of the IEC’s decision. Complaint at ¶¶ 6, 28.b.

In addition, had the IEC not erroneously dismissed Ethics Watch’s

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


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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 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 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 Watch’s complaint demonstrates

legal injury on an additional, independent ground from the wrongful denial of an

investigation and public hearing on Ethics Watch’s non-frivolous complaint in

violation of Article XXIX.


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WHEREFORE, Ethics Watch requests that the Court discharge the Rule.

Dated: October 19, 2015.

Respectfully submitted,

igned original on file at Colorado Ethics

Watch

s/ Luis Toro

Luis ToroMargaret PerlColorado Ethics Watch1630 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 TORULE TO SHOW CAUSE via ICCES to the following:

Lisa B. Freimann, Esq.Kyle C. Dumler, Esq.

Colorado Department of LawRalph L. Carr Colorado Judicial Center1300 Broadway, 8

th Floor

Denver, CO 80203

igned original on file at Colorado EthicsWatch

s/ Luis ToroLuis Toro