Coffman v. Colorado Common Cause

• Court: Colorado Supreme Court
• Writing for the Court: KOURLIS, Justice.
• Citation: Coffman v. Colorado Common Cause, 102 P.3d 999 (Colo. 2004)
• Decision Date: 06 December 2004
• Docket Number: 03SC397
• Parties: Mike COFFMAN, Colorado State Treasurer, Petitioner, v. COLORADO COMMON CAUSE, a registered not-for-profit corporation; and Pete Maysmith, Executive Director of Colorado Common Cause, Respondents.

102 P.3d 999

Mike COFFMAN, Colorado State Treasurer, Petitioner, v. COLORADO COMMON CAUSE, a registered not-for-profit corporation; and Pete Maysmith, Executive Director of Colorado Common Cause, Respondents.

No. 03SC397.

Supreme Court of Colorado, En Banc.

December 6, 2004.

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Public Officials Unit, State Services, Denver, for Petitioner.

The Overton Law Firm, Richard J. Gleason, Denver, for Respondents.

KOURLIS, Justice.

Mike Coffman, Treasurer of the State of Colorado, challenges the court of appeals' decision in Colorado Common Cause v. Coffman, 85 P.3d 551 (Colo.App.2003), in which the court upheld an Administrative Law Judge's (the "ALJ") determination that during the November 2000 election, Treasurer Coffman violated the Fair Campaign Practices Act (the "FCPA"), section 1-45-101 et seq., C.R.S. (2004), by the issuance of three press releases. The FCPA broadly prohibits public agencies and employees from using public monies to support or oppose election measures, except as otherwise exempted.

A state-wide ballot initiative concerning school funding was proposed for the November 2000 election. Prior to the election, Treasurer Coffman issued three press releases opposing the amendment and advocating its defeat. Following the election, Colorado Common Cause ("Common Cause") filed its complaint with the Secretary of State, alleging that Treasurer Coffman had violated the FCPA. The Secretary of State assigned the case to an Administrative Law Judge. The Treasurer supported his actions by reference to his constitutional and statutory duties as treasurer of the state to protect the State's economic health and solvency. Alternatively, he argued that his activities were covered by exemptions within the FCPA. The ALJ found a violation of the FCPA and on appeal, the court of appeals agreed, opining that the Treasurer had no independent authority to issue the releases free from the FCPA constraints, and that the FCPA does not permit unlimited expenditure of public funds for the purpose of expressing an unbalanced position on a ballot measure.

We granted certiorari to determine whether Treasurer Coffman's pre-election press releases were authorized by the state constitution and statutes governing the office of treasurer, or were otherwise permitted by the FCPA. We now hold that even though the Treasurer is an elected official charged with responsibility for the state coffers and implicitly imbued with leadership responsibilities in that regard, nothing in the constitution or statutes permits him to avoid the constraints of the FCPA with respect to the expenditure of state funds to advocate either for or against a ballot measure pending before the electorate. Concluding that the FCPA is applicable, we further conclude that none of its exemptions immunize the press releases from the limitations of the Act. The ALJ's findings of fact were supported by competent evidence in the record, and we thus hold that the three press releases issued by Treasurer Coffman exceeded the FCPA's fifty-dollar limitation.

Accordingly, since we determine that Treasurer Coffman was bound by the FCPA and that the issuance of the releases made use of resources in excess of the fifty-dollar exemption, we affirm the court of appeals.

I. FACTS

A. BACKGROUND

On November 7, 2000, Colorado voters approved Amendment 23, a state-wide ballot initiative concerning monies appropriated for public school funding. Following the election, Common Cause and its executive director, Pete Maysmith, filed a complaint against Treasurer Coffman alleging the illegality of three pre-election press releases issued by the state treasurer in opposition to the amendment.

Common Cause is a citizen's advocacy group headquartered in Denver, Colorado; Maysmith is a Colorado resident as well (collectively "Common Cause"). Mike Coffman was elected state treasurer in 1998, and remains in that capacity.

Amendment 23 proposed an amendment to the Colorado Constitution creating the "State Education Fund." The measure provided, among other things, that one third of one percent of income tax be set aside each fiscal year for the State Education Fund. The fund was to be administered by the State Treasurer and exempted from fiscal year spending limitations.¹ The Amendment passed in the November, 2000 general election.

Prior to the election, Treasurer Coffman issued three press releases opposing the amendment.² The first press release was dated September 7, 2000 and titled "Coffman: Amendment 23 a `Fiscal Train Wreck.'" The release warned of the dire consequences of voter approval. Treasurer Coffman based his opposition to the amendment on several grounds, including his concern that:

If Colorado voters approve Amendment 23 this November the new State Education Fund it creates will ensure a fiscal "train wreck" for the state when the economy inevitably cools down.... This terribly confusing and complex initiative ... promises nothing in return for a huge increase in spending. I don't think the authors of this initiative fully considered the effects of their amendment when they wrote it.

Although this first press release did not specifically urge voters to defeat the amendment, it did conclude with the treasurer's admonishment that proponents should "tell the taxpayers of Colorado what other important programs the legislature must cut to support the hundreds of millions in new spending that it mandates." The Treasurer's second and third press releases were likewise critical of the amendment, but unlike the first, these specifically advised voters to defeat Amendment 23. The second titled, "Amendment 23 Technically Flawed," was dated October 17, 2000 and warned that passage of the amendment would "force Colorado to slash about $350 million of highway funding and new capital construction projects." Treasurer Coffman attributed such dramatic cuts in "critical expenditures" to "a technical error made by the amendment's drafters," resulting from the timing of the effective date of the amendment. He declared that "[t]he carelessly written amendment is so deeply flawed that I urge Colorado's voters to turn it down."

The third release, dated October 25, 2000 and titled, "Amendment 23 Deceptive," suggested that proponents had used "incomplete and misleading statements" to support the proposal. The Treasurer remarked that "what they say it will do is not exactly what it will do." Treasurer Coffman analogized Amendment 23 to a drunken sailor's intemperate spending spree:

I spent a year out at sea, in the Marine Corps. I remember port visits on paydays with drunken sailors and Marines on spending sprees. Now that I look back on it, they acted like cub scouts at a church picnic compared to many legislators when they have TABOR exempt tax dollars available to spend... when an economic downturn occurs the State Education Fund, like a sailor's wallet on the morning after, probably will not have the money the proponents claim to have set aside to meet the inflation plus one percent obligation.

Treasurer Coffman concluded by urging voters to "turn down Amendment 23."

All three releases were printed on Department of Treasury letterhead and designated "News Release." Each listed Steven Roalstad, a member of the department staff, as the contact person.

B. PROCEDURAL HISTORY

1. Administrative Proceeding

On February 12, 2001, Common Cause filed its complaint with the Secretary of State,³ alleging that Treasurer Coffman and the treasurer's office used public resources to formulate and distribute the three press releases to members of the public and the media, to wit: faxing the releases to various media outlets (and possibly individuals) from the treasurer's office; using state equipment and telephone lines; posting the releases on the official State of Colorado website for the State Treasurer's office; posting the press release dated September 7, on the website with a link to a Denver Post editorial critical of the amendment; and distributing email communications, denominated "Treasur-E-Notes," which opposed the passage of the amendment.

The Secretary of State assigned the case to an ALJ to conduct a hearing.⁴ The ALJ scheduled a hearing for June 5 and 6, 2001. On March 21, the parties filed a case management order in which they set forth a number of stipulated facts. The parties stipulated that the press releases had been faxed to members of the media and posted on the department's website and in addition: (1) copies of the first release had been distributed by the treasurer to members of the media at a press conference he conducted; (2) at least one press release was faxed outside of Colorado; (3) in accordance with Treasurer Mike Coffman's request, Deputy Treasurer Ben Stein researched Amendment 23 and its financial impact; (4) in accordance with Treasurer Mike Coffman's request, Deputy Treasurer Ben Stein and Executive Assistant Steve Roalstad assisted in the drafting of each press release and each Treasur-E-Note.⁵

The case management order provided, in addition, that there were two primary issues in dispute:

(1) Whether Treasurer Mike Coffman was authorized — constitutionally, statutorily or by the common law — to use state resources, in part through the use of e-mails, faxes, web postings and press releases, to express an opinion regarding Amendment 23, and, therefore whether the Treasurer and his staff were allowed to generate and disseminate the statements at issue, such that there was no violation of Section 117 of the Colorado Fair Campaign Practices Act....

(2) If Treasurer Mike Coffman was not so authorized, did his actions constitute a violation of Section 117 of the Fair Campaign Practices Act, or were his actions nevertheless exempt...?

Both sides agreed that if the Administrative Law Judge answered the first question in the negative, the matter would proceed to a hearing on the second issue....