Developmental Pathways v. Ritter, No. 07SA181.

• Decision Date: 25 February 2008
• Docket Number: No. 07SA181.
• Citation: 178 P.3d 524
• Parties: DEVELOPMENTAL PATHWAYS, a Colorado not-for-profit corporation; Edward H. Stammel, an individual; Norma Anderson, an individual; Virginia Buczek, an individual; Douglas Abraham, an individual; Adams County Economic Development, Inc., a Colorado not-for-profit corporation; Susan K. Rusch, an individual; Ann L. McGihon, an individual; and Daniel E. Williams, an individual, Plaintiffs-Appellees v. Bill RITTER, as Governor of the State of Colorado, Defendant-Appellant.
• Court: Colorado Supreme Court

178 P.3d 524

DEVELOPMENTAL PATHWAYS, a Colorado not-for-profit corporation; Edward H. Stammel, an individual; Norma Anderson, an individual; Virginia Buczek, an individual; Douglas Abraham, an individual; Adams County Economic Development, Inc., a Colorado not-for-profit corporation; Susan K. Rusch, an individual; Ann L. McGihon, an individual; and Daniel E. Williams, an individual, Plaintiffs-Appellees v. Bill RITTER, as Governor of the State of Colorado, Defendant-Appellant.

No. 07SA181.

Supreme Court of Colorado, En Banc.

February 25, 2008.

Rehearing Denied March 24, 2008.

John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for Defendant-Appellant.

Fairfield and Woods, P.C., Douglas J. Friednash, John M. Tanner, Susan F. Fisher, Denver, Colorado, Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, Attorneys for Plaintiffs-Appellees.

Kelly Garnsey Hubbell & Lass LLC, Martha M. Tierney, Denver, Colorado, Attorneys for Amicus Curiae Colorado Common Cause.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

This case involves a constitutional challenge to the gift ban provisions in Amendment 41 of the Colorado Constitution ("Amendment 41"), now codified as Colo. Const. art. XXIX. Amendment 41, entitled "Ethics in Government," was an initiative enacted by the Colorado voters in November 2006. The Plaintiffs-Appellees are a combination of individuals and entities covered under the Amendment, including a lobbyist, a legislator, a county commissioner, a university professor, an appointed board member for a statutory city, non-profit organizations, and government employees and their families. For purposes of this opinion, they will be referred to collectively as "Plaintiffs."

Bringing a suit against Governor Ritter in Denver District Court, Plaintiffs challenged the gift bans in section 3 of Amendment 41 as being overbroad and vague, and thus violating their First Amendment rights to free speech, free association, and petition. The district court agreed, finding that the bans impermissibly chilled Plaintiffs' First Amendment rights, and so preliminarily enjoined the enforcement of these gift ban provisions. Governor Ritter appealed this injunction under C.A.R. 1(a)(3), and we granted review. The issues on appeal are: 1) whether Amendment 41 is self-executing prior to the appointment of the Ethics Commission created by the Amendment and the enactment of rules by the Commission; 2) whether Governor Ritter is a proper party defendant; 3) whether the gift limitations apply only to gifts given or received for private gain or personal financial gain in violation of the public trust; and 4) whether sections 2 and 3 of Amendment 41 violate the rights of speech, association, and petition.

While we hold that Governor Ritter is a proper party defendant to this action and that Amendment 41 is self-executing, we find that Plaintiffs did not present a ripe as-applied constitutional challenge. Because Plaintiffs failed to meet the justiciability requirements necessary for a court to hear the case, we hold that the Denver District Court did not have the jurisdiction to grant a preliminary injunction. Although we agree with the district court's ruling on the proper party and self-execution issues, we reverse the order of the district court on the ground of ripeness and direct the court to vacate the injunction. We do not reach the merits of the constitutional challenge.

II. Facts and Procedural History

A. The Provisions of Amendment 41 and Senate Bill 07-210

We begin by briefly summarizing the relevant provisions of Amendment 41. Section 1 sets forth the purposes of the Amendment, as well as the factual findings supporting those purposes. It emphasizes that "[t]he conduct of public officers, members of the General Assembly, local government officials, and government employees must hold the respect and confidence of the people." Colo. Const. art. XXIX, § 1(1)(a). Moreover, these government employees must "carry out their duties for the benefit of the people of the State." Id. at § 1(1)(b). To achieve these stated goals, these employees should "avoid conduct that is in violation of their public trust or that creates a justifiable impression among members of the public that such trust is being violated." Id. at § 1(1)(c). The section then states that it is a violation of the public trust to "realize personal financial gain through public office" and notes that there must be both specific standards to ensure the propriety of government employees' conduct and a penalty mechanism for enforcement of those standards. Id. at § 1(1)(d), (e).

Section 2 defines various terms in the Amendment, particularly identifying those persons to whom its provisions apply. Id. at § 2. This section, however, does not define "public trust" or "private gain," terms used in the purpose section of the Amendment. The Governor relies on these terms in arguing that the Amendment's gift ban provisions are not overly broad or vague, as Plaintiffs allege, because the provisions must be read in conjunction with the purposes of the Amendment.

As specified in sections 2 and 3, the Amendment covers employees of the legislative and executive branches, as well as public officers, employees of state agencies and public institutions of higher education, independent contractors of the state, and local government officials. Id. at §§ 2-3.¹ Subsection 2(6) specifically excludes judicial officers and employees from coverage under the Amendment. Id. at § 2(6).

Section 3 of Amendment 41 is at the heart of this constitutional challenge. This section establishes two distinct gift bans: the "fifty-dollar ban" and the "zero-dollar ban." The fifty-dollar ban provides that covered government officials and employees may not:

either directly or indirectly as the beneficiary of a gift or thing of value given to such person's spouse or dependent child . . . solicit, accept, or receive any gift or other thing of value having either a fair market value or aggregate actual cost greater than fifty dollars ($50) in any calendar year . . . from a person, without the person receiving lawful consideration of equal or greater value in return from the [covered employee or official].

Id. at § 3(2). The provision delineates a non-exclusive list of possible gifts, loans, favors, honoraria, and special discounts that would fall within this ban. Id. Moreover, a covered person cannot accept or receive "money, forbearance, or forgiveness of indebtedness" without providing "lawful consideration of equal or greater value." Id. at § 3(1). Subsection 3(3) lists numerous exceptions to the limitations, such as for campaign contributions, unsolicited items of trivial value, unsolicited informational material, the cost of food and admission for an event at which the recipient is scheduled to speak, gifts given by a relative or personal friend on a special occasion, and typical compensation for employment. Id. at § 3(3).

A second gift limitation provision, the zero-dollar ban, prohibits any lobbyist from either giving a "thing of value" to a covered individual or knowingly paying for a meal or beverage to be consumed by such a covered person. Id. at § 3(4). The provision specifically states that the limitation applies to both a lobbyist's business and personal events. Id.

Section 5 creates an independent ethics commission ("the Commission") for the purposes of "hear[ing] complaints, issu[ing] findings, and assess[ing] penalties," as well as "issu[ing] advisory opinions, on ethics issues arising under this article and under any other standards of conduct and reporting requirements as provided by law." Id. at § 5(1). The Commission has the power to adopt rules for the administration and enforcement of the Amendment. Id. Section 5 also establishes the appointment process and term limits for members of the Commission. Id.²

In addition, subsection 5(3) describes the general process of filing an ethics complaint. Id. at § 5(3). Under this provision, any person can file a written complaint based on actions taken by a covered individual within the preceding twelve months. Id. at § 5(3)(a). The Commission will then "conduct an investigation, hold a public hearing, and render findings . . . pursuant to written rules adopted by the Commission." Id. at § 5(3)(c).

Section 6 discusses the penalty for violating the gift ban provisions, stating that any covered individual "who breaches the public trust for private gain" is liable for double the financial equivalent of any benefit received. Id. at § 6. The section also provides: "The manner of recovery and additional penalties may be provided by law." Id.

Finally, section 9 addresses facilitating legislation, stating that "[l]egislation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions of this article or the powers herein granted." Id. at § 9.

In April 2007, Senate Bill 07-210 ("S.B. 07-210") was adopted by the General Assembly and approved by the Governor as a piece of implementing legislation for Amendment 41. See § 24-18.5-101, C.R.S. (2007). In addition to detailing the appointment process and duties of the Commission, as well as appropriating funding for its existence, S.B. 07-210 states that the Commission "shall dismiss as frivolous any complaint filed under article XXIX that fails to allege that a [covered individual] has accepted or received any gift or other thing of value for private gain or personal financial gain." § 24-18.5-101(2)-(5) (emphasis added). The statute then defines "private gain" or "personal financial gain" as:

any money, forbearance, forgiveness of indebtedness, gift, or other thing of value given or offered by a person seeking to influence an official act that is performed in the course and scope of the public duties of a public officer, member of the General...