Colorado Common Cause v. Coffman, No. 01CA1709.

• Docket Nº: No. 01CA1709.
• Citation: 85 P.3d 551
• Case Date: March 27, 2003
• Court: Court of Appeals of Colorado

85 P.3d 551

COLORADO COMMON CAUSE, a registered not-for-profit corporation, and Pete Maysmith, Executive Director of Colorado Common Cause, Complainants-Appellees,
v.
Mike COFFMAN, Colorado State Treasurer, Respondent-Appellant

No. 01CA1709.

Colorado Court of Appeals, Div. V.

March 27, 2003.

As Modified on Denial of Rehearing

Page 552

May 29, 2003.¹

Certiorari Granted March 1, 2004.

Beimford & Gleason, P.C., Richard J. Gleason, Denver, Colorado, for Complainants-Appellees.

Ken Salazar, Attorney General, Maurice Knaizer, Assistant Attorney General, M. Terry Fox, Assistant Attorney General, Denver, Colorado, for Respondent-Appellant.

Opinion by Judge JONES.

Respondent, Mike Coffman, State Treasurer, who leads the Office of the State Treasurer, appeals the order of an administrative law judge (ALJ) against him and in favor of complainants, Colorado Common Cause, and Pete Maysmith, its executive director. The ALJ imposed a civil penalty, finding that the Treasurer willfully violated § 1-45-117, C.R.S.2002, of the Fair Campaign Practices Act (FCPA). We affirm.

The November 2000 election included a state-wide ballot initiative, known as Amendment 23, providing for amendment of the Colorado Constitution to require the state to set aside certain revenues each fiscal year for the State Education Fund.

The parties here concede that Amendment 23 constituted a "[s]tate-wide ballot issue" for purposes of § 1-45-117(1)(a)(I)(A), C.R.S. 2002. The voters approved the amendment.

Under the amendment, the fund is to be administered and invested under the aegis of the State Treasurer and is to be exempt from the TABOR Amendment limitations on fiscal year spending provided for in Colo. Const. art. X, § 20.

85 P.3d 553

Before the election, the Treasurer criticized, and urged the defeat of, the proposed amendment at a press conference and in three press releases, prepared and issued during official work hours and through use of public funds. He issued a fourth press release after the election

The press releases were prepared during regular work hours by a staff member at the direction of the deputy treasurer, who reviewed and edited the drafts. The Treasurer conducted a press conference on September 7, 2002, to express opposition to the amendment. The staff member arranged for the dissemination of the first press release by e-mail, fax, and web posting. No further press conferences were held by the Treasurer, but the other releases were disseminated in October 2000.

The first press release was entitled, "Coffman: Amendment 23 a `Fiscal Train Wreck.'" It stated, in part:

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 .... [It] provides only vague and general guidance for the spending of this money so that some of the more powerful legislators could easily steer this money to their districts for capital construction projects rather than where it is needed most: the classroom.

The second press release noted that the amendment would require the state's capital construction budgets to be reduced by more than $155 million over the following five years, and it characterized the amendment as a "carelessly written amendment [that] is so deeply flawed that I urge Colorado's voters to turn it down."

The third press release was entitled, "Coffman: Amendment 23 Deceptive." It stated that "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," and it urged the voters to reject the amendment "simply because of its complexities." The release noted that "drunken sailors and marines [will] have acted like cub scouts ... compared to many legislators when they have TABOR exempt tax dollars to spend."

Common Cause filed a complaint with the Secretary of State, alleging that, in issuing the press releases and related media pieces, the Treasurer had violated the prohibitions of the FCPA against using state resources to express opposition to a state-wide ballot issue. Pursuant to § 1-45-111, C.R.S.2002, an ALJ was appointed to hear the matter.

In their case management order, the parties stipulated to most of the facts and agreed that two issues were presented:

1) Whether Treasurer Mike Coffman was authorized—constitutionally, statutorily or by the common law—to use state resources, in part through the use of emails, 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, § 1-45-117, C.R.S.2000?

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 pursuant to § 1-45-117(1)(a)(II), C.R.S.2000?

On the parties' cross-motions for summary judgment, the ALJ determined that there were no genuine issues of material fact as to the first issue and that, as a matter of law, the Treasurer was not authorized to use public resources exceeding fifty dollars to urge the electorate to vote against proposed Amendment 23. The ALJ determined, however, that genuine issues remained as to whether the Treasurer had expended more than fifty dollars of public funds under § 1-45-117(1)(a)(II), C.R.S.2002, and also as to whether the Treasurer's actions were...