Dallman v. Ritter

• Decision Date: 22 February 2010
• Docket Number: No. 09SA224.,09SA224.
• Citation: 225 P.3d 610
• Parties: Kerrie DALLMAN; Laurence Botnick; School District 14 Classroom Teachers Association Political Action Committee, a Colorado political committee; School District 14 Classroom Teachers Association, a Colorado labor organization; and Aurora Fire Fighters Protective Association, a Colorado labor organization; Douglas County Federation, a Colorado labor organization, Plaintiffs-Appellees v. William RITTER, in his official capacity as the Governor of Colorado; and Rich L. Gonzales, in his official capacity as the Executive Director of Colorado's Department of Personnel and Administration, Defendants-Appellants. Daniel Ritchie, an individual; Patrick Hamill, an individual; Charles V. Brown, Jr., an individual; Matthew R. Dalton, an individual; The Children's Hospital Association, a 501(c)(3) nonprofit organization; and The Colorado Seminary, a 501(c)(3) nonprofit which owns and operates the University of Denver, Plaintiffs-Appellees v. Bill Ritter, as Governor of the State of Colorado; and Rich Gonzales, as Executive Director of the Colorado Department of Administration, Defendants-Appellants.
• Court: Colorado Supreme Court

225 P.3d 610

Kerrie DALLMAN; Laurence Botnick; School District 14 Classroom Teachers Association Political Action Committee, a Colorado political committee; School District 14 Classroom Teachers Association, a Colorado labor organization; and Aurora Fire Fighters Protective Association, a Colorado labor organization; Douglas County Federation, a Colorado labor organization, Plaintiffs-Appellees v. William RITTER, in his official capacity as the Governor of Colorado; and Rich L. Gonzales, in his official capacity as the Executive Director of Colorado's Department of Personnel and Administration, Defendants-Appellants.

Daniel Ritchie, an individual; Patrick Hamill, an individual; Charles V. Brown, Jr., an individual; Matthew R. Dalton, an individual; The Children's Hospital Association, a 501(c)(3) nonprofit organization; and The Colorado Seminary, a 501(c)(3) nonprofit which owns and operates the University of Denver, Plaintiffs-Appellees v. Bill Ritter, as Governor of the State of Colorado; and Rich Gonzales, as Executive Director of the Colorado Department of Administration, Defendants-Appellants.

No. 09SA224.

Supreme Court of Colorado, En Banc.

February 22, 2010.

Isaacson Rosenbaum, P.C., Mark G. Grueskin, Edward T. Ramey, Denver, Colorado, Attorneys for Plaintiffs-Appellees Kerrie Dallman and Laurence Botnick.

Colorado Education Association, Martha R. Houser, Bradley C. Bartels, Denver, Colorado, Attorneys for Plaintiffs-Appellees School District 14 Classroom Teachers Association Political Action Committee, a Colorado political committee; and School District 14 Classroom Teachers Association, a Colorado labor organization.

Buescher Goldhammer Kelman & Dodge, P.C., Thomas B. Buescher, Joseph M. Goldhammer, Denver, Colorado, Attorneys for Plaintiff-Appellees Aurora Fire Fighters Protective Association, a Colorado labor organization; and Douglas County Federation, a Colorado labor organization.

The Dubofsky Law Firm, P.C., Jean E. Dubofsky, Boulder, Colorado, Greenberg Traurig, LLP, Michael R. Davis, Douglas J. Friednash, Denver, Colorado, Attorneys for Plaintiffs-Appellees Daniel Ritchie, Patrick Hamill, Charles V. Brown, Jr., and Matthew R. Dalton, as individuals; The Children's Hospital Association, a 501(c)(3) nonprofit organization; and The Colorado Seminary, a 501(c)(3) nonprofit which owns and operates the University of Denver.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for Defendant-Appellee.

Cross & Liechty, P.C., Robert M. Liechty, Greenwood Village, Colorado, Attorneys for Amicus Curiae Clean Government Colorado.

Justice RICE delivers the Opinion of the Court.

Plaintiffs-appellees challenge the constitutionality of Amendment 54, now codified as parts of article XXVIII of the Colorado Constitution. Voters narrowly passed Amendment 54 in November 2008, and it became operational on December 31st of that year. Colo. Const. art XXVIII, § 13. Designed to eliminate "a presumption of impropriety between contributions to any campaign and sole source government contracts," the Amendment prohibits and imposes severe penalties on campaign donations from those holding sole source contracts to "any candidate for any elected office of the state or any of its political subdivisions." Colo. Const. art XXVIII, § 15.

The plaintiffs allege a multitude of constitutional inadequacies that, in total, would render all of Amendment 54 invalid. The plaintiffs range from unions impacted by the Amendment to the Children's Hospital to the chief officer of the Denver Center for the Performing Arts. Although some of the plaintiffs' arguments are meritless, we agree that many of Amendment 54's component parts are unconstitutionally vague, disproportional, overbroad, or otherwise infirm. Indeed, we find the Amendment's deficiencies so pervasive that we must nullify the Amendment in its entirety, leaving article XXVIII of the Colorado Constitution as it was prior to November 2008.

I. Facts and Procedural History

A. Overview of Amendment 54

We begin by outlining Amendment 54's additions to the Campaign and Political Finance Article of the Colorado Constitution. Section 15 includes both the stated purpose of the Amendment and its principal rule — a complete prohibition of all contributions by contract holders and contributions made on behalf of contract holders and their immediate family, during the contract and for two years thereafter, to any candidate for any office or any political party. Colo. Const. art. XXVIII, § 15. In its entirety, this key provision reads:

Because of a presumption of impropriety between contributions to any campaign and sole source government contracts, contract holders shall contractually agree, for the duration of the contract and for two years thereafter, to cease making, causing to be made, or inducing by any means, a contribution, directly or indirectly, on be-half of the contract holder or on behalf of his or her immediate family member and for the benefit of any political party or for the benefit of any candidate for any elected office of the state or any of its political subdivisions.

Id. The drafters' language combines into a single sentence the Amendment's purpose, duration, and ban on contributions, with language describing its application to various political actors, contract holders, and contract holders' families.

By comparison, section 16 is more limited. It describes a publication mechanism designed to inform the public of all sole source government contracts and their contents.¹ First, it instructs the executive director of the department of personnel to "publish and maintain a summary of each sole source government contract issued." Colo. Const. art. XXVIII, § 16. Next, it requires all holders of sole source contracts to provide the executive director of the department of personnel a "Government Contract Summary," including the names and addresses of all contracting parties, the nature of the contract, the estimated contract amount, the dates of the contract period, and a disclosure of "other information as determined by the executive director of the department of personnel." Id. Finally, it empowers the executive director to promulgate rules to facilitate enforcement of these requirements. Id.

Section 17 is better understood as an amalgamation of five relatively unrelated subsections than as a single, cohesive constitutional provision. Subsection 1 begins by incorporating section 15 into all future government contracts. Colo. Const. art. XXVIII, § 17(1). It then turns to penalties, stating that Any person who intentionally accepts contributions on behalf of a candidate committee, political committee, small donor committee, political party, or other entity, in violation of section 15 has engaged in corrupt misconduct and shall pay restitution to the general treasury of the contracting governmental entity to compensate the governmental entity for all costs and expenses associated with the breach, including costs and losses involved in securing a new contract if that becomes necessary.

Id. The subsection also extends liability to any bookkeeper for a contract holder and to any "person acting on behalf of the governmental entity" if that person "obtains knowledge" of a section 15 violation and "intentionally fails to notify" the appropriate government officer within ten days.² Id.

Turning to the other parts of section 17,³ subsection 2 disqualifies "[a]ny person who makes or causes to be made any contribution intended to promote or influence the result of an election on a ballot issue" from holding a sole source contract related to that issue. Colo. Const. art. XXVIII, § 17(2). Subsection 3 states that, "if a contract holder intentionally violates section 15 or section 17(2), as contractual damages that contract holder shall be ineligible to hold any sole source government contract, or public employment with the state or any of its political subdivisions, for three years." Colo. Const. art. XXVIII, § 17(3). Subsection 4 penalizes any "knowing violation" of the Amendment by a government official with removal from office, disqualification from future office, and other "misconduct or malfeasance" consequences. Colo. Const. art. XXVIII, § 17(4). Finally, subsection 5 gives standing to enforce the Amendment to any registered voter of the state. Colo. Const. art. XXVIII, § 17(5).

Next, section 13 in Amendment 54 replaces the prior version of section 13 in article XXVIII and amends the effective date of the new law. Colo. Const. art. XXVIII, § 13. It maintains that the Campaign and Political Finance Act remains in effect as it was on December 6, 2002, with the new Amendment 54 provisions taking effect on December 31, 2008. Id. The section, both pre- and post-Amendment 54, concludes with: "Legislation may be enacted to facilitate its operations, but in no way limiting or restricting the provisions of this article or the powers herein granted." Id.; Colo. Const. art. XXVIII, § 13 (2003).

Finally, Amendment 54 adds four new definitions to the existing definitions in article XXVIII, section 2. The first states:

`Contract holder' means any non-governmental party to a sole source government contract, including persons that control ten percent or more shares or interest in that party; or that party's officers, directors or trustees; or, in the case of collective bargaining agreements, the labor organization and any political committees created or controlled by the labor organization.

Colo. Const. art. XXVIII, § 2(4.5).

Amendment 54 broadly defines immediate family member to include "any spouse, child, spouse's child, son-in-law, daughter-in-law, parent, sibling, grandparent, grandchild, stepbrother, stepsister, stepparent, parent-in-law, brother-in-law, sister-in-law, aunt, niece, nephew, guardian, or domestic partner."⁴ Colo. Const. art. XXVIII, § 2(8.5).

Section 2(14.4)...