Cceg v. Cad

• Decision Date: 29 May 2008
• Docket Number: No. 07CA1176.,07CA1176.
• Citation: 187 P.3d 1207
• Parties: COLORADO CITIZENS FOR ETHICS IN GOVERNMENT, Petitioner-Appellee and Cross-Appellant, v. COMMITTEE FOR the AMERICAN DREAM, Respondent-Appellant and Cross-Appellee, and Division of Administrative Courts, Appellee.
• Court: Colorado Court of Appeals

187 P.3d 1207

COLORADO CITIZENS FOR ETHICS IN GOVERNMENT, Petitioner-Appellee and Cross-Appellant, v. COMMITTEE FOR the AMERICAN DREAM, Respondent-Appellant and Cross-Appellee, and Division of Administrative Courts, Appellee.

No. 07CA1176.

Colorado Court of Appeals, Div. IV.

May 29, 2008.

Chantell Taylor, Denver, Colorado, for Petitioner-Appellee and Cross-Appellant.

Hackstaff Gessler, L.L.C., Scott E. Gessler, Mario D. Nicolais, II, Denver, Colorado, for Respondent-Appellant and Cross-Appellee.

John W. Suthers, Attorney General, Denver, Colorado, for Appellee.

Opinion by Judge WEBB.

In this action concerning the Campaign and Political Finance Amendment, Colorado Constitution article XXVIII, and the Fair Campaign Practices Act (FCPA), sections 1-45-101 to -118, C.R.S.2007, respondent, Committee for the American Dream (CAD), appeals the administrative law judge's (ALJ) judgment imposing a monetary penalty for violation of reporting requirements. Petitioner, Colorado Citizens for Ethics in Government (CCEG), cross-appeals the ALJ's order awarding attorney fees to CAD on a claim that CCEG voluntarily dismissed. We affirm.

CAD is a political committee registered with the Secretary of State. It supports candidates for political office who have a pro-business and pro-property rights agenda, opposes those who do not, and is funded solely by contributions from the Colorado Association of Home Builders (CAHB), a membership organization.

During the November 2006 election cycle, CAD contracted with Rock Chalk Media to produce television advertisements urging voters to oppose Representative John Kefalas, who was seeking reelection to the Colorado State House of Representatives. Rock Chalk arranged with Comcast Spotlight to broadcast these advertisements.

CAD filed reports under section 1-45-108, C.R.S.2007, with the Secretary of State for all contributions received and expenditures made in 2006, including the payments made to Rock Chalk. Its reports did not identify Representative Kefalas as the target of its advertisements, nor did it file either itemized reports of membership contributions from CAHB or a separate electioneering communications report.

CCEG filed a complaint with the Secretary of State alleging that CAD's failure to file itemized reports of membership contributions and a separate electioneering communications report that named Representative Kefalas violated Article XXVIII and the FCPA. When the hearing began, CCEG moved to dismiss its membership contributions claim, and the ALJ granted that motion.

In a thorough and well-reasoned decision, the ALJ found that the advertisements were electioneering communications within the meaning of Article XXVIII, section 2(7)(a); that "the regular course and scope of business" exception to the definition of electioneering communications under Article XXVIII, section 2(7)(b)(III) did not apply to CAD; that although CAD complied with all other contribution and expenditure reporting requirements, it failed to file separate electioneering communications reports; and that CAD did not identify Representative Kefalas by name in its reports as required by the Secretary of State's FCPA Rule 9.3, 8 Code Colo. Regs. 1505-6, for electioneering communications reports under Article XXVIII, section 6(1).

The ALJ imposed a $1000 penalty on CAD under Article XXVIII, section 10(2). He also awarded attorney fees of $2,722.44 to CAD, concluding that CCEG's membership contributions claim was groundless as filed.

I. Mootness

We first address and reject CCEG's assertion that newly enacted FCPA Rule 9.5.1 renders CAD's appeal moot.

Generally, appellate courts will not render opinions on the merits of an appeal when the issues presented have become moot because of subsequent events. United Air Lines, Inc. v. City & County of Denver, 973 P.2d 647, 652 (Colo.App.1998), aff'd, 992 P.2d 41 (Colo.2000). A case is moot when a judgment would have no practical effect on an existing controversy or would not end any uncertainty. Id.

After the ALJ's decision, the Secretary of State promulgated FCPA Rule 9.5.1, which provides that a political committee is not required to file electioneering communications reports separate from its regularly filed disclosure reports, so long as any expenditure for electioneering communications is disclosed and the disclosure includes the name of the candidate referred to in the electioneering communication.

Rule 9.5.1 makes unlikely another dispute about whether a candidate referred to in an electioneering communication must be identified in some type of disclosure report. Nevertheless, because Rule 9.5.1 has only prospective application, we must determine whether the $1000 penalty against CAD was erroneous.

Accordingly, we conclude the case is not moot.

II. Evidentiary Issue

We begin with CAD's contention that the ALJ abused his discretion by admitting documentary evidence without proper authentication under CRE 901(a), because if essential evidence was admitted improperly the penalty against CAD could not stand. We discern no evidentiary error.

The documents at issue are (1) a Record of Request for Purchase of Political Time; (2) an Agreement Form for Non-Candidate/Issue Advertisements; (3) an Affidavit of Performance; and (4) invoices from Rock Chalk.

"The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." CRE 901(a).

Whether a proper foundation has been established is a matter within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of discretion. People v. Huehn, 53 P.3d 733, 737 (Colo.App.2002).

Administrative hearings need not comply with the strict rules of evidence. Id. The standard to be applied is whether the evidence has probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Id.

Here, when asked about the Record of Request for Purchase of Political Time, CAD's registered agent, Rob Nanfelt, testified that he had authority to purchase political time and CAD had hired Rock Chalk to produce television advertisements. As to the Agreement Form for Non-Candidate/Issue Advertisements, he testified that CAD purchased airtime for advertisements that advocated against Representative Kefalas. He further testified that the invoices from Rock Chalk referred to these advertisements and that CAD paid for the advertisements to air between October 23 and November 5, 2006.

Based on this testimony, we discern no abuse of discretion in admitting these documents as having been sufficiently authenticated under CRE 901(b)(I). However, these documents do not indicate the time frame in which the advertisements were broadcast, specify the broadcast area, or refer to Representative Kefalas by name.

On appeal, CAD concedes that the Affidavit of Performance, a computer-generated report from the Comcast website, which identified dates, airtimes, and the district in which the advertisements were broadcast, was exempt from the hearsay rule as an adoptive admission under CRE 801(d)(2)(B). Nevertheless, CAD argues that this report was not authenticated because Nanfelt testified that he lacked personal knowledge of its accuracy, and therefore it was inadmissible.

We agree with the ALJ that Nanfelt would not have authorized payment of the invoices from Rock Chalk if he doubted that the advertisements had been aired during the 2006 election cycle and in the district where Representative Kefalas was running. Hence we perceive no need to further authenticate the Affidavit of Performance, because Nanfelt's conduct manifested "belief in its truth." CRE 801(d)(2)(B). Under these circumstances, we conclude that the ALJ did not abuse his discretion by admitting this document.

Collectively, these documents support the ALJ's factual findings that during the period of October 25 to November 5, 2006, Rock Chalk, on behalf of CAD, arranged with Comcast to broadcast 568 television advertisements opposing Representative Kefalas to voters in his district.

III. Electioneering Communications

We next consider and reject CAD's contentions that the advertisements either were not electioneering communications because they constituted express advocacy or came within an exception to the definition of electioneering communications because they involved CAD's regular business of supporting and opposing candidates.

A. Express Advocacy

CAD asserts that Article XXVIII treats express advocacy and electioneering communications differently, with distinct reporting requirements, and because the advertisements were express advocacy, they are not electioneering communications. It relies primarily on a statement in the biennial Bluebook analysis of ballot proposals prepared by the legislature, which explains that the electioneering communications provisions were intended to address political advertisements that refer to a candidate "without specifically urging the election or defeat of the candidate." Colo. Legislative Council, Research Pub. No. 502-1, 2002 Ballot Information Booklet: Analysis of Statewide Ballot Issues (2002).

Bluebook explanations, however, are not binding. Tivolino Teller House, Inc. v. Fagan, 926 P.2d 1208, 1214 (Colo.1996); see also Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo.2004)("when the language of an amendment is clear and unambiguous, the amendment must be enforced as written").

Section 2(7)(a) defines "electioneering communication" as "any communication broadcasted by television . . . that unambiguously refers to any candidate . . . and is broadcasted . . . sixty days before a general election . . . to an audience that includes members of the electorate for such public office."

This unambiguous reference to "any communication" does not distinguish between express advocacy and advocacy that is not express. The word "any" means...