Larimer County Com'rs v. Secretary of State of Colo., 94CA1103

• Decision Date: 07 December 1995
• Docket Number: No. 94CA1103,94CA1103
• Citation: 911 P.2d 698
• Parties: LARIMER COUNTY COMMISSIONERS, Courtlyn W. Hotchkiss, Daryle W. Klassen, and M.J. Mekelburg, Plaintiffs-Appellees and Cross-Appellants, v. The SECRETARY OF STATE OF the State of COLORADO, Defendant-Appellant and Cross-Appellee, and Larry W. Sarner, Defendant and Cross-Appellee. . IV
• Court: Colorado Court of Appeals

Page 698

911 P.2d 698

LARIMER COUNTY COMMISSIONERS, Courtlyn W. Hotchkiss, Daryle W. Klassen, and M.J. Mekelburg Plaintiffs-Appellees and Cross-Appellants, v. The SECRETARY OF STATE OF the State of COLORADO Defendant-Appellant and Cross-Appellee and Larry W. Sarner, Defendant and Cross-Appellee.

No. 94CA1103.

Colorado Court of Appeals,

Div. IV.

Dec. 7, 1995.

Rehearing Denied Jan. 25, 1996.

George H. Hass, County Attorney, Ralph B. Harden, Assistant County Attorney, Larimer County Attorney's Office, Fort Collins, for Plaintiffs-Appellees and Cross-Appellants.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Laurie Rottersman, Assistant Attorney General, Alesia M. McCloud-Chan, Assistant Attorney General, Denver, for Defendant-Appellant and Cross-Appellee.

Roberts & Associates, James M. Roberts, Fort Collins, for Defendant and Cross-Appellee.

Opinion by Judge TAUBMAN.

Defendant the Secretary of State of Colorado appeals, and plaintiffs, the Larimer County Commissioners, Courtlyn W. Hotchkiss, Daryle W. Klassen, and M.J. Mekelburg (Commissioners), cross-appeal from a judgment of the trial court interpreting various provisions of the Campaign Reform Act. We conclude that the Secretary of State lacked jurisdiction to hear a claim under § 1-45-113(2), C.R.S. (1995 Cum.Supp.) of that Act, as then in effect. Accordingly, we affirm in part and reverse in part.

In August 1990, the Commissioners called a referendum for the citizens of Larimer County to vote on a sales and use tax to finance the construction and operation of additional correctional facilities. Prior to the general election in November, the Commissioners hired a public relations firm to assist in providing information to the electorate regarding the proposed tax.

In preparing this information, the Commissioners were governed by the Campaign Reform Act enacted in 1974 and currently codified at § 1-45-101, et seq., C.R.S. (1995 Cum.Supp.). The stated purpose of the Act is to "promote public confidence in government through a more informed electorate." Section 1-45-102, C.R.S. (1995 Cum.Supp.).

To effectuate this purpose, the Act specifies the circumstances and manner in which candidates, other persons, and political committees must disclose contributions received and expenditures made for the purpose of supporting or opposing candidates or issues in an election. Further, § 1-45-103(10), C.R.S. (1995 Cum.Supp.) defines a "political committee" as:

any two or more persons who are elected, appointed, or chosen or who have associated themselves or cooperated for the purpose of accepting contributions or contributions in kind or making expenditures to support or oppose a candidate for public office at any election or seek to influence the passage or defeat of any issue.

Here, the Commissioners' actions were specifically governed by Colo.Sess.Laws 1988, ch. 33, § 1-45-116(1)(a), which, in 1990, provided in pertinent part:

No agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof shall ... expend public moneys from any source, or make any contributions in kind, to urge electors to vote in favor of or against any issue before the electorate.

Cf. § 1-45-116(1)(a), C.R.S. (1995 Cum.Supp.). However, also applicable then was Colo.Sess.Law 1988, ch. 33, § 1-45-116(b)(I) which further provided that:

Nothing in this subsection (1) shall be construed as prohibiting an agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof from expending public moneys or making contributions in kind to dispense fair and balanced information on any issue of official concern before the electorate.

Cf. § 1-45-116(1)(b)(I), C.R.S. (1995 Cum.Supp.).

The Commissioners reviewed and approved the materials urging electors to vote for the proposed tax, and paid approximately $20,000 of public money for both the services of the firm and the advertising and printing costs. The Commissioners did not file a statement of organization as a political committee, did not file any reports of contributions or contributions in kind, and did not make any type of financial disclosure to either the Secretary of State or the Larimer County clerk and recorder.

Subsequently, two Colorado citizens filed a complaint with the Secretary of State alleging that the Commissioners had violated § 1-45-116 by not presenting all the alternatives to the voters and by not presenting the information in a "fair and balanced" manner. The complaint was filed against the Commissioners individually and also collectively as the Board of County Commissioners of Larimer County.

Pursuant to § 1-45-113(1)(e), C.R.S. (1995 Cum.Supp.), the Secretary of State appointed an Administrative Law Judge (ALJ) to hear the case. The ALJ first determined that the Secretary of State had jurisdiction over the complaints and that they had been filed in a timely manner. The ALJ then concluded that the Commissioners had expended public money in violation of § 1-45-116 because the Commissioners' campaign materials did not present information in a "fair and balanced" manner. He further found that the Commissioners did not constitute a political committee and were, therefore, not required to file any reports. However, the ALJ did not impose any sanctions on the Commissioners.

The Commissioners appealed the decision of the ALJ to the Secretary of State pursuant to § 24-4-105(14), C.R.S. (1995 Cum.Supp.) and § 1-45-113(1)(e). The Secretary of State affirmed the findings of the ALJ, except that she concluded the Commissioners were a political committee within the meaning of § 1-45-103(10), C.R.S. (1995 Cum.Supp.)

On July 25, 1992, the Commissioners filed a complaint for judicial review of agency action under the state Administrative Procedure Act (APA), § 24-4-106, C.R.S. (1995 Cum.Supp.). The Secretary of State counterclaimed, as did the two citizens, requesting, inter alia, a full accounting of the money improperly used, reimbursement of those funds by the Commissioners from personal funds, and that a public hearing be required before the County Commissioners could expend public money to publish similar information in the future.

On May 16, 1994, the trial court entered judgment affirming the findings of the Secretary of State but dismissing the counterclaims of the Secretary of State and the citizens for lack of jurisdiction. The court held that its jurisdiction was limited to claims that had been presented to the administrative tribunals and that, under the Campaign Reform Act, the attorney general was required to file a separate claim to gain further relief.

I.

On appeal, the Secretary of State contends that the trial court erred in dismissing its counterclaim. The Commissioners cross-appeal and contend: (1) the Secretary of State had no jurisdiction to hear this matter; (2) the claims under the Campaign Reform Act were not timely filed; (3) the final determination of the Secretary of State was arbitrary and capricious; and (4) the Secretary of State erred in finding the Commissioners to be a political committee. We agree with the Commissioners that the Secretary of State lacked jurisdiction to hear this matter.

Initially, we note that the Commissioners urge us to consider on appeal a letter sent by the Secretary of State in February 1992 concerning jurisdiction in an unrelated matter. The Commissioners assert that, in this letter, the Secretary of State acknowledged that she had no jurisdiction in a similar matter. However, the letter was not introduced at the hearing before the ALJ, and we will therefore not consider it now. See Mountain States Telephone & Telegraph Co. v. Public Utilities Commission, 182 Colo. 269, 513 P.2d 721 (1973).

A.

The duties of the Secretary of State include hearing claims concerning alleged violations of the Campaign Reform Act. In 1990, at the time of this action, § 1-45-113(2), C.R.S. (1980 Repl.Vol. 1B) provided that: "Any person who believes a violation of this article has occurred may file a written complaint no later than sixty days after the date of the final report of a candidate or political committee with the secretary of state."

Our primary purpose in construing a statute is to ascertain and give effect to the intent...