Independence Institute v. Coffman

• Decision Date: 26 November 2008
• Docket Number: No. 07CA1151.,07CA1151.
• Citation: 209 P.3d 1130
• Parties: INDEPENDENCE INSTITUTE, a Colorado non-profit corporation, Plaintiff-Appellant, v. Mike COFFMAN, in his official capacity as Secretary of State of the State of Colorado, Appellee.
• Court: Colorado Court of Appeals

209 P.3d 1130

INDEPENDENCE INSTITUTE, a Colorado non-profit corporation, Plaintiff-Appellant, v. Mike COFFMAN, in his official capacity as Secretary of State of the State of Colorado, Appellee.

No. 07CA1151.

Colorado Court of Appeals, Div. II.

November 26, 2008.

Certiorari Denied June 1, 2009.

Jackson Kelly PLLC, Shayne M. Madsen, Denver, Colorado; William H. Mellor, III, Steven M. Simpson, Arlington, Virginia, for Plaintiff-Appellant.

John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Monica M. Marquez, Assistant Solicitor General, Denver, Colorado, for Appellee.

Opinion by Judge TAUBMAN.

In this campaign finance law dispute, plaintiff, the Independence Institute, appeals the summary judgment entered by the trial court in favor of Mike Coffman, in his official capacity as Secretary of State of Colorado. Because we conclude the definition of "a major purpose" in article XXVIII, section 2(10), of the Colorado Constitution is not unconstitutionally vague or overbroad on its face, we affirm the trial court's judgment.

I. Background

Founded in 1985, the Independence Institute is a nonprofit policy research organization located in Golden, Colorado. Its purpose is "to educate the public about the benefits of the free market and the dangers of expansive government." To do so, the Independence Institute provides policy makers, legislators, business leaders, the media, and Colorado citizens with educational materials about policy issues with which it is concerned.

In the spring of 2005, the General Assembly referred two tax and financing issues— Referenda C and D—to the November ballot. Referendum C would allow the state to retain revenues over a five-year period that would otherwise have to be refunded to taxpayers under the Taxpayer Bill of Rights (TABOR), Colo. Const. art. X, § 20. Referendum D was intended to work in conjunction with Referendum C, allowing the state to issue bonds for certain projects and to trigger provisions in Referendum C to allow the state to spend an additional $100 million each year if Referendum D passed.

Amid wide-ranging campaigns supporting and opposing the adoption of Referenda C and D, the Independence Institute, through its fiscal policy center, initiated an education campaign to inform the public about the impact of Referenda C and D on taxes and government spending. As part of its education campaign, the Independence Institute aired three radio commercials, which provided information on the tax implications of Referendum C, directed listeners to a website to learn more information, but did not explicitly ask listeners to vote yes or no on the referendum. Subsequently, the voters approved Referendum C but not Referendum D.

This dispute began in August 2005 when Richard Evans, an agent of "Vote Yes on C and D," an issue committee promoting the adoption of statewide referenda during the 2005 election, filed an administrative complaint with the Secretary of State. Evans alleged that the Independence Institute was an issue committee opposed to those referenda and had failed to comply with registration, reporting, and disclosure requirements of article XXVIII and the Fair Campaign Practices Act (FCPA), sections 1-45-101 to -115, C.R.S.2008. As required by section 9(2)(a) of article XXVIII, the Secretary referred Evans's complaint to the Office of Administrative Courts for an administrative hearing.

While the administrative proceedings were pending, the Independence Institute filed this lawsuit against Coffman's predecessor, alleging constitutional challenges to article XXVIII and the disclosure provisions of the FCPA. The trial court denied the Independence Institute's request for preliminary injunction to enjoin the administrative hearing scheduled for October 12, 2005. Accordingly, the administrative hearing went forward, and a few days after the election, the administrative law judge (ALJ) issued a decision concluding that the Independence Institute was not an "issue committee" with respect to its activities concerning Referenda C and D and therefore had not violated the registration and disclosure provisions in article XXVIII or the FCPA.

Notwithstanding its favorable decision from the ALJ, the Independence Institute pursued this litigation, maintaining that the constitutional and statutory provisions at issue were unconstitutional on their face. In May 2007, the district court granted summary judgment in favor of Coffman on all of the Independence Institute's claims.

II. Issue Committee Provisions

Article XXVIII establishes Colorado's campaign and political finance laws as constitutional provisions. The purpose of the article is to require certain disclosures of contributions made to influence election outcomes not only as to political candidates, but as to ballot issues as well. See Colo. Const. art. XXVIII, § 1. The requirements ensure that large contributions made to influence election outcomes are not concealed, and that special interest groups cannot disproportionately influence elections outcomes. Id; see also Colorado Citizens for Ethics in Gov't v. Comm. for Am. Dream, 187 P.3d 1207, 1215-16 (Colo.App.2008) (CCEG).

Article XXVIII defines an issue committee as:

any person, other than a natural person, or any group of two or more persons, including natural persons:

(I) [t]hat has a major purpose of supporting or opposing any ballot issue or ballot question; or

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

Colo. Const. art. XXVIII, § 2(10)(a) (emphasis added). By regulation, Coffman has interpreted the emphasized word "or" to mean "and." See Sec'y of State Campaign & Political Finance Rules 1.7, 8 Code Colo. Regs. 1505-6. When an organization is deemed an issue committee, it must fully comply with reporting requirements set forth in article XXVIII and the FCPA.

Among the requirements, all issue committees must register with the Secretary of State before accepting or making any contributions and disclose the name and address of each person who contributed $20 or more, including the occupation and employer of each person who has made a contribution of $100 or more. § 1-45-108(1)(a)(I)-(II), C.R.S.2008.

All issue committees must regularly report to the Secretary of State the balance of funds at the beginning of the reporting period, the amounts of contributions received, and expenditures made during the reporting period. § 1-45-108(2)(b), C.R.S.2008. Additionally, "[a]n issue committee shall be considered open and active until [it] affirmatively" terminates its designation as an issue committee with the state. Colo. Const. art. XXVIII, § 2(10)(c).

The provisions at issue here concern "multi-purpose issue committees." Although that term is not defined in article XXVIII, it was defined in a regulation adopted by the Secretary of State after the ALJ issued her administrative ruling but before the district court ruled on the parties' cross-motions for summary judgment. The regulation defines a multi-purpose issue committee as "an issue committee whose purposes are not limited to supporting or opposing ballot issues or ballot questions." See Secretary of State Campaign & Political Finance Rules 3.8, 8 Code Colo. Regs. 1505-6. The parties here agree that the Independence Institute is not a single-purpose issue committee.

The questions before us now relate only to the propriety of the trial court's summary judgment. Neither the trial court's denial of the Independence Institute's motion for preliminary injunction nor the ALJ's decision in favor of the Independence Institute is before us here.

III. Standard of Review

We review a trial court's grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995). Summary judgment is appropriate only if the pleadings and supporting documents demonstrate there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; see C.R.C.P. 56(c).

Interpretation of a constitutional provision is a question of law that we review de novo. Rocky Mountain Animal Defense v. Colo. Div. of Wildlife, 100 P.3d 508, 513 (Colo.App.2004) (RMAD). In addition, since the judgment relates to political speech, we review the entire record "to ensure that the judgment rendered does not intrude on the right of free speech." See Holliday v. Reg'l Transp. Dist., 43 P.3d 676, 681 (Colo.App. 2001).

IV. Vagueness and Overbreadth

The Independence Institute argues that Colorado Constitution article XXVIII, § 2(10)(a), which defines "issue committee," is unconstitutionally vague and overbroad on its face. We disagree.

In construing a constitutional amendment, we must ascertain and give effect to the intent of the electorate adopting the amendment. Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo.1996); CCEG, 187 P.3d at 1215 (citing RMAD, 100 P.3d at 513-14). To determine that intent, we first look at the plain and ordinary meaning of the words in the amendment without engaging in narrow or overly technical constructions. RMAD, 100 P.3d at 514. We may also discern the electorate's intent by considering the ballot title, the submission clause, the Bluebook, and other materials. Id. Moreover, if the language is ambiguous or reasonably susceptible of more than one interpretation, then we consider the objective to be accomplished and the "mischief to be avoided." Zaner, 917 P.2d at 283. Finally, we must consider the amendment as a whole, and if possible, interpret the provision in harmony with other provisions to avoid a conflict. Id.

General rules of statutory construction apply when interpreting citizen-initiated measures. RMAD, 100 P.3d at 514; see also Bickel v. City of Boulder, 885 P.2d 215, 228 n. 10 (Colo.1994) (courts may interpret citizen-initiated measures using the general rules of...