League of Women Voters v. Davidson, 00CA0216.

• Decision Date: 12 April 2001
• Docket Number: No. 00CA0216.,00CA0216.
• Parties: The LEAGUE OF WOMEN VOTERS OF COLORADO, a Colorado non-profit corporation, and Colorado Common Cause, a Colorado non-profit corporation, Plaintiffs-Appellants, v. Donetta DAVIDSON, Secretary of State of Colorado; Centennial Spirit, a Colorado non-profit corporation; Donald K. Bain; and Natalie Meyer, Defendants-Appellees.
• Court: Colorado Court of Appeals

23 P.3d 1266

The LEAGUE OF WOMEN VOTERS OF COLORADO, a Colorado non-profit corporation, and Colorado Common Cause, a Colorado non-profit corporation, Plaintiffs-Appellants, v. Donetta DAVIDSON, Secretary of State of Colorado; Centennial Spirit, a Colorado non-profit corporation; Donald K. Bain; and Natalie Meyer, Defendants-Appellees.

No. 00CA0216.

Colorado Court of Appeals, Div. V.

April 12, 2001.

Kelly/Haglund/Garnsey & Kahn LLC, Christine L. Murphy, Martha M. Tierney, Denver, CO, for Plaintiffs-Appellants.

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, CO, for Defendant-Appellee Donetta Davidson.

Ballard Spahr Andrews & Ingersoll, LLP, Kevin M. Shea, Jon Bernhardt, Denver, CO, for Defendants-Appellees Centennial Spirit, Donald K. Bain, and Natalie Meyer.

Parsons & Funnell LLP, William H. Parsons, Denver, CO; Glenn J. Moramarco, New York, NY, for Amicus Curiae Brennan Center for Justice.

Opinion by Judge ROY.

Appellants, the League of Women Voters of Colorado, a Colorado non-profit corporation, and Colorado Common Cause, a Colorado non-profit corporation (collectively League), appeal the trial court's order affirming the administrative law judge's grant of summary judgment in favor of appellees, Donetta Davidson, Secretary of State of Colorado; and Centennial Spirit, a Colorado non-profit corporation; Donald K. Bain; and Natalie Meyer (collectively Centennial). The Brennan Center for Justice at NYU School of Law filed an amicus curiae brief in support of appellants. We affirm.

Centennial is a non-profit corporation that was organized in July 1998. Donald K. Bain was the incorporator and, during all relevant times, was its secretary/treasurer and member of the board of directors. Natalie Meyer was, at all relevant times, its president. Centennial's articles of incorporation state that the organization operates exclusively for educational purposes to generate interest in the political process and encourage Colorado citizens to vote; to educate voters on important issues facing Colorado and individual legislative records on those issues; and to educate Colorado voters with respect to the virtues of individual freedom, personal responsibility, replacement of the welfare state, creation of an opportunity society, smaller and smarter government, reduction of taxes, and the vigorous enforcement of criminal laws. Centennial's articles of incorporation expressly prohibit it from advocating the election or defeat of any candidate for public office.

At issue in this case are eight political advertisements that were produced and distributed by Centennial at a cost exceeding $686,000, and disseminated within fourteen days prior to the 1998 general election. Three of these advertisements were televised, one was broadcast over the radio, and four were mailed. The contents of these advertisements are not in dispute. The first television advertisement concerned the gubernatorial race between Bill Owens and Gail Schoettler and addressed their respective positions on education. The voice-over stated, "Education, one of Colorado's most important issues." The scene contained Bill Owens' smiling face with his name in bold print below. The voice-over stated that Owens has a plan to improve education by allocating more money for the classroom, emphasize the three R's, reduce class size, provide merit pay increases for good teachers, make schools safer with a discipline policy, and allow teachers to control their own classrooms. The closing scene contained the "disclaimer": "PAID FOR BY CENTENNIAL SPIRIT. A COLORADO NON-PROFIT CORPORATION. THIS ADVERTISEMENT DOES NOT CONSTITUTE AN ENDORSEMENT OF ANY CANDIDATE." The final frame, in white letters against a black background, stated, "It's Colorado's Future, Your Choice."

The second television advertisement concerned the same gubernatorial race and addressed the candidates' respective positions on transportation. The opening scene showed traffic congestion, pollution, and road closure signs. The bottom half of the screen contained the disclaimer. The next scene showed an overweight highway maintenance worker attempting to read blueprints and a blurry, unflattering image of Gail Schoettler. The voice-over stated, "Gail Schoettler claims we need yet another transportation study. Two more years of debate and delay." The next scene depicted a smiling image of Bill Owens next to some comparatively fit highway workers. The voice-over stated, "Gail Schoettler's study, debate and delay; or Bill Owens' plan to fix the problem now?" The advertisement ended with the message, "It's Colorado's Future, Your Choice."

The third television advertisement concerned John Suthers, the Republican candidate for attorney general. The advertisement opened with the words, "Colorado Has a Choice . . ." The voice-over stated, in part, "Our top law enforcement job takes courage and dedication to make the attorney general's office work for the people of Colorado." The next scene then showed a picture of John Suthers with the words, "John Suthers QUALIFIED DEDICATED." The voice-over then stated, "John Suthers has the courtroom experience and dedication needed to do the job right." With jail bars in the background, the voice-over stated, "John Suthers started practicing law over 21 years ago and has convicted more than 2,000 criminals in Colorado." The disclaimer then appeared on the screen, and, as the TV image faded, the advertisement concluded, "Colorado's Future, . . . Your Choice."

The radio advertisement also concerned John Suther's campaign. In the background were sounds of jail cells slamming shut while the voice-over stated, in part, "John Suthers slammed the jail doors shut on more than 2,000 Colorado criminals, murderers, sex offenders, rapists and juvenile thugs. . . . John Suthers served eight years as the El Paso County District Attorney. . . . John Suthers has the courage and courtroom experience the Attorney General needs. Paid for by Centennial Spirit, a Colorado non-profit corporation. This ad is not an endorsement of any candidate."

The first mailer contained Bill Owens' photograph and the words, "This man's name is Bill Owens. He shares your frustration with the current administration's inability to solve the traffic mess . . . but unlike his opponent he has a plan to fix the problem." On the second page of the mailer there was a picture of traffic congestion and the rhetorical question: "Are you sick and tired of this? Bill Owens is . . . and he has a plan. . . ." The third page of the mailer stated, "While you sit in traffic jams . . . Bill Owens says we've had enough studies, enough delay, enough debate. . . . Gail Schoettler says study, delay, study, delay, study, delay . . . then buy a train to carry cars." Underneath this language were copies of newspaper headlines addressing Bill Owens' plan to resolve the transportation problem. The other side of the page contained purported quotes from local newspaper articles concerning Gail Schoettler's plan to "study and delay." At the bottom of the page the mailer stated, "It's your choice . . . Colorado's future is in your hands." The second mailer concerned Bill Owens' and Gail Schoettler's positions on education. The first page contained a blurry picture of Gail Schoettler and the words, "Our kids are not learning to read . . . clearly we need to take action!!" and "More of the same . . ." In smaller print the mailer suggested that Gail Schoettler's plan concerning education was to maintain the status quo and oppose reform. The second page of the mailer contained a sharp photograph of Bill Owens' smiling face and the words, "Bill Owens has a plan to improve Education. Bill Owens and his wife Frances believe that our children are our most precious resource." In smaller print the mailer described Bill Owens' record on education reform and plan for additional reform. At the bottom of the mailer was the message, "It's your choice . . . Colorado's future is in your hands."

The third mailer concerned John Suthers' candidacy. One side of the mailer contained a blurred, but smiling photograph of his opponent, Ken Salazar, and stated, in part, "Between 1985 and 1992, a Canadian Company committed one of the worst environmental crimes in Colorado History. They operated the Summittville [sic] Mine in Southern Colorado . . . And the man responsible for regulating this mine . . . for assuring that our streams, rivers and communities were protected . . . was KEN SALAZAR. As director of the Colorado Department of Natural Resources, Ken Salazar watched as Summittville [sic] poured hundreds of millions of gallons of cyanide laced water into our streams . . . So why is Ken Salazar smiling?. . . BECAUSE HE NOW WANTS TO BE ATTORNEY GENERAL!" The other side of the mailer contained a clear photograph of John Suthers and pictures of laudatory newspaper headlines for his work as district attorney of El Paso County. Below the pictures, the mailer stated, "John Suthers is a respected former prosecutor who knows how to prosecute and convict criminals . . . John Suthers knows crime when he sees it . . . and the Summittville [sic] Mine disaster was an environmental crime . . ." The mailer closed with the statement, "It's your choice. . . Colorado's future is in your hands."

The fourth mailer encouraged early voting. The first page stated, "VOTE EARLY NOW! Don't let El Nino Stop You From Voting on November 3rd!" The next page contained photographs of the Republican candidates running for state and federal offices from the State of Colorado. The photographs were accompanied by the candidates' names printed below and the offices they sought. The next page stated, "HERE IS WHAT THESE CANDIDATES STAND FOR:" The following issues were bulleted: "Smaller government, Local control of education, Protecting Social Security, Reforming the Internal Revenue Service and our tax system, Responsible Stewardship of natural resources,...