Colo. Ethics Watch v. Clear the Bench Colo.

• Decision Date: 15 March 2012
• Docket Number: No. 10CA2291.,10CA2291.
• Citation: 2012 COA 42,277 P.3d 931
• Parties: COLORADO ETHICS WATCH, Complainant–Appellee, v. CLEAR THE BENCH COLORADO, Respondent–Appellant.
• Court: Colorado Court of Appeals

277 P.3d 931

2012 COA 42

COLORADO ETHICS WATCH, Complainant–Appellee,

v.CLEAR THE BENCH COLORADO, Respondent–Appellant.

No. 10CA2291.

Colorado Court of Appeals, Div. VII.

March 15, 2012.

Perkins Coie, LLP, Robert N. Miller, Stephanie E. Dunn, L. Norton Cutler; Luis Toro, Denver, Colorado, for Complainant–Appellee.

Hale Westfall, LLP, Peter J. Krumholz, Denver, Colorado, for Respondent–Appellant.

John W. Suthers, Attorney General, Maurice G. Knaizer, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Secretary of State.

BERNARD, Judge.

¶ 1 We are asked in this appeal to determine whether a committee that supports or opposes the retention of a justice or judge constitutes an “issue committee” or a “political committee” for purposes of Colorado campaign finance law. See Colo. Const. art. XXVIII (Campaign and Political Finance Amendment); §§ 1–45–101 to –118, C.R.S.2011 (Fair Campaign Practices Act). This distinction is significant primarily because political committees are subject to contribution limits, while issue committees are not. SeeColo. Const. art. XXVIII, § 3.

¶ 2 Respondent, Clear the Bench Colorado (CTBC), is an organization that opposed the retention of the three justices of the Colorado Supreme Court who stood for retention in 2010. Complainant, Colorado Ethics Watch, brought this action alleging that CTBC violated state election laws by registering as an issue committee rather than a political committee. An administrative law judge held that CTBC was a political committee.

¶ 3 As discussed below, we conclude that CTBC is properly characterized as a political committee. This is because, under the Campaign and Political Finance Amendment and the Fair Campaign Practices Act:

1. An issue committee is one that supports or opposes a ballot issue or ballot question; judicial retention is not a “ballot issue” or “ballot question” for purposes of campaign finance law; and, therefore, CTBC is not an issue committee; and

2. A political committee is one that supports or opposes the nomination or election of a candidate; a judge or justice standing for retention is a candidate in an election; and, therefore, CTBC is a political committee.

¶ 4 Based on these conclusions, we affirm the administrative law judge's ruling.

I. Background

¶ 5 In April 2009, CTBC attempted to register with the Colorado Secretary of State as a political committee, identifying the committee's purpose only as “judicial retention.” The Secretary's office rejected the application. Its reasons were that CTBC's stated purpose was “too vague” and that the organization “might fall under [the] definition of [an] issue committee.” In a subsequent letter, however, the Secretary's office advised CTBC that it should register as a political committee and identify the specific judges whose retention it supported or opposed.

¶ 6 Instead, CTBC contacted the Elections Division of the Secretary of State to discuss its filing status. It submitted a proposed registration form listing itself as an issue committee. Although the Elections Division had accepted a registration form from an organization opposing retention of judges as a political committee in the past, it was uncertain how to classify CTBC. After several discussions, Elections Division staff concluded that CTBC should file as an issue committee.

¶ 7 While this action was pending before the administrative law judge, CTBC asked the Secretary to conduct emergency rulemaking to adopt a rule requiring committees supporting or opposing judicial officers seeking retention to register as issue committees. The Secretary declined to do so. In a letter to CTBC explaining the decision, the Director of the Elections Division cited “the role of the court [to interpret unclear statutory and constitutional provisions], the fact that a rule could be implemented just weeks before the [November 2010] general election, and the continuing litigation in this case.”

¶ 8 The administrative law judge ruled that CTBC was a political committee.

II. Analysis

A. Standard of Review and Principles of Construction

¶ 9 This case presents a question of constitutional and statutory interpretation, which we review de novo. Patterson Recall Comm., Inc. v. Patterson, 209 P.3d 1210, 1214, 1217 (Colo.App.2009). The rules of construction applied to both types of provisions are essentially the same. Id. at 1217.

¶ 10 We begin with the plain language of a provision, giving the words their ordinary meaning. Id. at 1214. Our “fundamental responsibility” is to give effect to the purpose and intent behind enactment of the measure. Well Augmentation Subdist. v. City of Aurora, 221 P.3d 399, 410 (Colo.2009). “We construe the language in a manner that gives effect to every word,” considering the language in the context of the statute or amendment as a whole. Romanoff v. State Comm'n on Judicial Performance, 126 P.3d 182, 188 (Colo.2006); see also Patterson, 209 P.3d at 1214–15. Where a constitutional provision and a statute pertain to the same subject matter, we construe them in harmony. Colo. Project–Common Cause v. Anderson, 178 Colo. 1, 7, 495 P.2d 220, 222 (1972)(court must read constitutional and statutory provisions relating to same subject matter in pari materia). “We do not resort to extrinsic modes of statutory construction unless the statutory language is ambiguous.” Colo. Ethics Watch v. City & Cnty. of Broomfield, 203 P.3d 623, 625 (Colo.App.2009)

B. Definitions

¶ 11 Section 2(10) of the Campaign and Political Finance Amendment, defines issue committees. It provides in relevant part:

(a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:

(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or

(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.

(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

Colo. Const. art. XXVIII, § 2(10).

¶ 12 Section 2(12) of the Amendment defines political committees. It states in relevant part:

(a) “Political committee” means any person, other than a natural person, or any group of two or more persons, including natural persons that have accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates.

(b) “Political committee” does not include political parties, issue committees, or candidate committees as otherwise defined in this section.

Colo. Const. art. XXVIII, § 2(12).

¶ 13 Thus, issue committees are concerned with ballot issues or ballot questions, while political committees are concerned with the nomination or election of candidates. Further, issue committees and political committees are mutually exclusive.

C. CTBC Is a Political Committee

¶ 14 A political committee is a committee that has “accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates.” Colo. Const. art. XXVIII, § 2(12)(a).

¶ 15 CTBC contends that it is not a political committee because (1) a justice or judge seeking retention is a separate class of “candidate”; and (2) political committees are those that seek nomination or election, but not retention, of a candidate. Because we conclude that a judicial officer seeking retention is a candidate like any other and a retention vote is an election, we disagree.

1. A Judicial Officer Seeking Retention Is a Candidate

¶ 16 Section 2(2) of the Amendment defines a “candidate.”

“Candidate” means any person who seeks nomination or election to any state or local public office that is to be voted on in this state at any primary election, general election, school district election, special district election, or municipal election. “Candidate” also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy. A person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee. A person who maintains a candidate committee after an election cycle, but who has not publicly announced an intention to seek election to public office in the next or any subsequent election cycle, is a candidate for purposes of this article.

Colo. Const. art. XXVIII, § 2(2).

¶ 17 We reject CTBC's assertion that the first two sentences of this section create distinct “categories” of candidates. The word “also” means “in addition,” “as well,” “besides,” or “too.” See Webster's Third New International Dictionary 62 (2002). The word “include” means “to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate.” Id. at 1143. Thus, the phrase “[c]andidate also includes” indicates that a single definition of “candidate” encompasses both scenarios, with the second sentence adding to the first.

¶ 18 CTBC also argues that the provision that “[a] person remains a candidate for purposes of this article so long as the candidate maintains a registered candidate committee” shows that judges are to be considered a different category of candidate because a judicial officer is prohibited from establishing a candidate committee by Rule 4.3 of the Code of Judicial Conduct. We disagree.

¶ 19 The purpose of a candidate committee is to manage campaign contributions and expenditures “under the authority of a candidate.” Colo. Const. art. XXVIII, § 2(3). This provision establishes that a candidate with a registered...