Common Sense Alliance v. Davidson

• Decision Date: 13 March 2000
• Docket Number: No. 99SA76.,99SA76.
• Citation: 995 P.2d 748
• Parties: COMMON SENSE ALLIANCE, an unincorporated Colorado association, Plaintiff, v. Donetta DAVIDSON, Secretary of State for the State of Colorado; Kenneth Salazar, Attorney General for the State of Colorado; Mac Myers, District Attorney for the Ninth Judicial District, State of Colorado; and John M. Ely, County Attorney for the County of Pitkin, State of Colorado, Defendants.
• Court: Colorado Supreme Court

995 P.2d 748

COMMON SENSE ALLIANCE, an unincorporated Colorado association, Plaintiff, v. Donetta DAVIDSON, Secretary of State for the State of Colorado; Kenneth Salazar, Attorney General for the State of Colorado; Mac Myers, District Attorney for the Ninth Judicial District, State of Colorado; and John M. Ely, County Attorney for the County of Pitkin, State of Colorado, Defendants.

No. 99SA76.

Supreme Court of Colorado, En Banc.

March 13, 2000.

Isaacson, Rosenbaum, Woods & Levy, P.C., Edward T. Ramey, Melissa K. Thompson, American Civil Liberties Union Foundation of Colorado, Mark Silverstein, Denver, Colorado, Attorneys for Plaintiff.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Defendants Secretary of State and Attorney General.

No appearance by or on behalf of defendants Mac Myers and John M. Ely

Justice KOURLIS delivered the Opinion of the Court.

Pursuant to C.A.R. 21.1, we agreed to answer several questions certified to us by the United States District Court for the District of Colorado. The questions arise out of a civil action currently pending in the United States District Court in which a political organization, Common Sense Alliance (CS Alliance), contests the application and interpretation of certain reporting provisions of the Fair Campaign Practices Act (the FCPA).

Central to the contested issues before the United States District Court is the question of whether CS Alliance is an "issue committee" under the terms of the FCPA. A group of individuals in Pitkin County originally formed CS Alliance in 1996 as a "political action committee" for political purposes such as supporting candidates, protecting constitutional principles, and curbing governmental powers. In 1997 and 1998, the group became active on a particular ballot issue by drafting and promoting an initiative. The FCPA defines "issue committee" as two or more persons who have associated themselves for the purpose of supporting or opposing a ballot initiative, and imposes reporting and disclosure requirements on issue committees. It also sets out criminal sanctions for failure to comply with those requirements.

The first certified question asks whether an organization formed for other purposes may later become an issue committee as defined by the FCPA. If an organization can evolve into an issue committee, the second question asks at what point in time the group becomes subject to the statute's requirements, and the third question asks which contributions must be disclosed.

We conclude that the statute is insufficiently clear to include CS Alliance within the reach of the issue committee definition. The statute contains no guidance as to when a committee formed for another purpose would be deemed to become an issue committee; when its contributors would become subject to the disclosure requirements; or even which of its contributors would need to be disclosed.

Were we to interpret the statute broadly, any political or special interest organization could become an issue committee through a decision of its leadership to support or oppose a ballot initiative without the assent or perhaps even the knowledge of its members. Such a decision would then trigger the reporting and disclosure requirements and would make public the names and financial contributions of the members of the organization. Because constitutional rights concerning freedom of association and freedom of speech are implicated, we decline to give the statute that broad reading and decline to provide judicial answers to the questions left unanswered in the statute. We, therefore, answer the first certified question in the negative. As a result, it is unnecessary for us to answer the second and third certified questions.

I.

A.

Residents of Pitkin County, Colorado who were interested in influencing local government formed CS Alliance in May 1996. The group describes itself as "a loosely organized unincorporated association primarily of residents of the Roaring Fork Valley in central Colorado." At the time of its formation, CS Alliance's Mission Statement listed three goals: "protecting constitutional principles, curbing governmental powers, and improving participation in the electoral process." Its bylaws describe the group as a "political action committee," advancing causes consistent with its Mission Statement. Neither the Mission Statement nor the bylaws appear to make any reference to activities the group might undertake in supporting or opposing ballot issues or questions.

CS Alliance is managed by a seven-person executive council that guides CS Alliance in pursuing its objectives. There are no formal membership requirements, and anyone who appears at one of CS Alliance's periodic meetings has a voice and may participate in the determination of any action to be taken.

CS Alliance is generally inactive except at election time, when it engages in a variety of activities on a number of different public issues. Since its formation, the group has conducted public issue discussions and nonpartisan candidate forums, endorsed candidates for various local offices, and conducted voter registration drives during state elections. CS Alliance also published its position with respect to a number of issues, including eleven different ballot questions before the electorate.¹

Beginning in November 1996, CS Alliance turned its attention to local ballot issues regarding mass transportation. Pitkin County and the City of Aspen had placed a referred matter proposing the creation of a rail line between Glenwood Springs and Aspen on their local ballots. CS Alliance opposed light rail, supporting the creation of a bus lane between the two towns instead. CS Alliance advertised its position on the "Entrance to Aspen issue,"² drafted and published a proposed substitute local ballot initiative, and invited members of the community to attend a meeting to discuss the ballot issue.

The CS Alliance initiative would have required Pitkin County and the City of Aspen to obtain financing by a certain date for the proposed rail system between Aspen and Glenwood Springs. Failing that, the initiative would have required the local governments to refrain from further efforts to obtain financing for the project. Further, if Pitkin County and Aspen did not obtain financing for the light rail system, the two governments would have been required to transfer land to the state so that the state could widen State Highway 82, which runs between Glenwood Springs and Aspen. Thus, in effect, the initiative provided an alternate means of traveling between Glenwood Springs and Aspen by the addition of a bus lane instead of travel by light rail.

On July 20, 1998, CS Alliance submitted its proposed ballot issue to the Pitkin County Clerk and Recorder. CS Alliance's proposal ultimately became Ballot Question 100 on the November 1998 Pitkin County and City of Aspen ballots. On October 15, 1998, CS Alliance ran an advertisement in the Aspen Daily News in support of Pitkin County Ballot Question 100 and in opposition to the government-referred measures in support of light rail. CS Alliance's treasurer also sent an email to local residents soliciting funds for use in the ballot issue campaign. Four contributors to CS Alliance requested anonymity, in two cases out of "fear that their employment or civic service might be negatively affected if their contributions were known."

B.

CS Alliance's activities triggered an administrative complaint by defendant John M. Ely, the County Attorney for Pitkin County, Colorado, against CS Alliance for violations of the FCPA's reporting procedures. Ely transmitted his complaint to the Secretary of State, who referred the matter to the Colorado Division of Administrative Hearings. The Division set the matter for a hearing before an administrative law judge (the ALJ).

The ALJ took evidence, and on October 29, 1998, issued an "Agency Decision." The ALJ found that CS Alliance was not an issue committee before July 20, 1998, but that "[b]eginning by approximately July 20, 1998,... advocacy regarding the three ballot issues which were the subject [of] Mr. Ely's complaint became `the major or primary purpose' of Common Sense Alliance's activities." The ALJ noted that by July 20, 1998, CS Alliance was "accepting contributions and making expenditures almost exclusively to support or oppose this ballot question and the two related ballot questions."³ Because CS Alliance "became an issue committee," as defined by section 1-45-103(8), 1 C.R.S. (1999), the group should have registered and filed the disclosure statements required by section 1-45-108, 1 C.R.S. (1999). The ALJ therefore concluded that CS Alliance failed to comply with the registration and reporting requirements of the FCPA. The ALJ thus referred the matter to the Attorney General and local district attorney for appropriate enforcement action, pursuant to section 1-45-111(2)(a), 1 C.R.S. (1999).⁴

C.

The decision of the ALJ led to the case now pending before the United States District Court. CS Alliance brought an action against defendants Donetta Davidson,⁵ Kenneth Salazar, Mac Myers, and John M. Ely, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 (1994). CS Alliance claims that the FCPA's registration and reporting requirements for issue committees violate the First and Fourteenth Amendments to the Constitution of the United States, both on their face and as applied to CS Alliance. See U.S. Const. amends. I, XIV. CS Alliance also seeks a preliminary and permanent injunction against the defendants, prohibiting them from taking any enforcement action against it under the FCPA.

By his certification order dated January 28, 1999, Judge John L. Kane requested this court to exercise its original jurisdiction and answer three questions of...