DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
DATE FILED: July 21, 2015 8:55 AM
CASE NUMBER: 2015CV31862

1437 Bannock Street

Denver, CO 80202
COLORADO ETHICS WATCH,
Plaintiff,
v.
INDEPENDENT ETHICS COMMISSION,

COURT USE ONLY

Defendant.

Case No.: 2015 CV 031862

Division: 424

ORDER

This matter is before the Court on Defendant Independent Ethics Commissions

(IEC) Motion to Dismiss, filed June 16, 2015.
IEC first argues that its dismissal of Plaintiffs ethics complaint as frivolous is not a
final action subject to judicial review. Plaintiff calls this argument absurd. The
Court believes Orwellian is a more apt description.
On its face, the dismissal of the complaint as frivolous was a final actionit left
nothing more to be done, other than the ministerial task of maintaining the complaint
as confidential.
The primary case relied upon by IEC is not to the contrary. In Colorado Board of
Medical Examiners v. B.L.L., 820 P.2d 1190 (Colo. App. 1991), the party against
whom a complaint had been filedand dismissedattempted to appeal a letter of
concern issued by the Medical Board. The court determined that no disciplinary
action had been taken against the appealing physician, and the Medical Practice Act
only allowed judicial review of adverse disciplinary actions. Id. at 1191-92.

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Here, in contrast, it is the party which initiated the complaint and had its complaint
dismissed that seeks review.
IEC further argues that an appeal would interfere with its duty to maintain
confidentiality. This concern can be addressed through an appropriate suppression
order. It does not support deeming the dismissal as a non-final action.
IECs second argument is that Plaintiff lacks standing. In this regard, its reliance on
federal case law is misguided since Colorado case law views standing more
expansively than does federal law. See, e.g., Barber v. Ritter, 196 P.3d 238, 246
(Colo. 2008). Additionally, the federal cases involve statutory, not constitutional,
provisions.
To establish standing in Colorado, a party must show (1) injury in fact, and (2) the
injury was to a legally protected interest. Id. at 245. Here, Plaintiff submitted a
complaint, as contemplated by the state constitution. COLO. CONST. art. XXIX,
5(3)(a). Having had that complaint declared frivolous, Plaintiff was injured in fact
in that its complaint was dismissed. Further, Plaintiff was injured because it incurred
the expense of initiating the complaint, but not the benefit of a hearing on its merits.
Under article XXIX, section 5, any person may file a complaint with the IEC. The
purpose of the article is to promote respect and confidence of the people in its public
officers and employees. See id. 1. This purpose is broader than merely providing
ethical guidance to public officers and employees. The intended effect of article
XXIX would be diminished if a complainant could not challenge a dismissal,
whether deemed frivolous or otherwise. Public respect and confidence would be
lessened, not promoted. Thus, the Court finds that Plaintiffs alleged injury was to a
legally protected interest under the constitution.
Motion denied.
DATED July 21, 2015.

______________________
A. Bruce Jones
District Court Judge

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street
Denver, CO 80202
COLORADO ETHICS WATCH,
Plaintiff,
v.

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INDEPENDENT ETHICS COMMISSION,

Defendant.
CYNTHIA H. COFFMAN, Attorney General
LISA BRENNER FREIMANN *
First Assistant Attorney General
KYLE DUMLER *
Senior Assistant Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 8th Floor
Denver, CO 80203
Telephone: 720-508-6385
FAX: 720-508-6037
E-Mail: lisa.freimann@state.co.us
Registration Numbers: 31175, 18777
*Counsel of Record

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COURT USE ONLY

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Case No. 2015 CV 031862

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Div: 424

MOTION TO DISMISS

The Independent Ethics Commission (IEC or Commission), through its

counsel the Office of the Colorado Attorney General and pursuant to C.R.C.P.
12(b)(1) and 12(b)(5), moves to dismiss the complaint in this matter. In support of
this motion, the Commission states the following.
CERTIFICATE OF COMPLIANCE WITH C.R.C.P. 121 1-15(8)
Counsel for the Commission conferred with counsel for Ethics Watch, who
informed the Commissions counsel that Ethics Watch opposes this motion.

I.

Introduction and Undisputed Material Facts

A. Amendment 41 and the Commission
Amendment 41 of the Colorado Constitution (Amendment 41), now codified

as Article XXIX of the Colorado Constitution, was an initiative enacted by Colorado

voters in November 2006. Amendment 41 creates the Commission, comprised of

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five members, no more than two of which can be affiliated with the same political
party. Colo. Const. Art. XXIX, 5(2).

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Among other things, the Commission is charged, to hear complaints, issue

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findings, and assess penalties on ethics issues arising under Article XXIX and

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under any other standard of conduct or reporting requirement provided by law.

Colo. Const. Art. XXIX, 5(1). Any person may file a written complaint with the

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Commission asking whether public officers, members of the general assembly,

government employees or local government officials failed to comply with
Amendment 41 or any other standard of conduct or reporting requirements
provided by law. Colo. Const. Art. XXIX, 5(3)(a).
The Commission must conduct investigations, hold public hearings and

render findings on all non-frivolous complaints, pursuant to IEC Rules. Colo.

Const. Art. XXIX, 5(3)(c). In contrast to non-frivolous complaints, the Commission
may dismiss frivolous complaints without conducting public hearings. Colo. Const.
Art. XXIX, 5(3)(b). Complaints dismissed as frivolous shall be maintained
confidential by the commission. Id.

Amendment 41 explicitly authorizes the Commission to adopt reasonable

rules necessary for the purpose of administering and enforcing the provisions of
Amendment 41. Colo. Const. Art. XXIX, 5(1). The IEC adopted Rule of
Procedure 7.F pursuant to this constitutional authority and pursuant to Colorados
Administrative Procedures Act (APA), C.R.S. 24-72-201 et seq. IEC Rule 7.F

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states:

The Commission may determine whether a complaint is frivolous

based on the face of the complaint itself. Alternatively, the
Commission in its discretion may defer a frivolous determination
until after a preliminary investigation of the complaint by the
staff of the Commission. The Commission shall exercise care to
the extent practicable not to disclose the contents of the complaint
as part of the preliminary investigation. If after a preliminary
investigation the Commission is unable to determine whether or
not a complaint is frivolous, the Commission may disclose the
complaint to the individual who is the subject of the complaint for
their response in order to aid the Commission in rendering a
frivolous determination.

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A copy of the IEC Rules is attached as Exhibit 1.

B. Complaint 14-07

On March 24, 2014, Ethics Watch filed a complaint with the Commission,

which was designated Complaint 14-07. Complaint, paras. 11, 13. The
Commission thereafter stayed its review of Complaint 14-07, pursuant to IEC Rule
7.H.1, which provides the Commission the authority to stay its review of a
complaint when the same subject of the complaint is pending before another body.
Complaint, para. 14.
On March 9, 2015, the Commission voted unanimously to lift the stay and
directed the Commissions Executive Director to conduct a preliminary investigation

of Complaint 14-07 under IEC Rule 7.F, while continuing to maintain the
confidentiality of the complaint until a frivolous determination could be made.
Complaint, para. 19 and Ex. 6 attached to the Complaint. On April 10, 2015, the
Commission met in executive session to receive legal advice regarding Complaint

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14-07. Complaint, para. 20.

On May 11, 2015, the Commission met in executive session to discuss

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Complaint 14-07. Complaint, para. 2. The Commission met in executive session to

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discuss the complaint in order to maintain its confidentiality as required by 5(3)(b)

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of Article XXIX of the Colorado Constitution, should the complaint be determined

frivolous by the Commission. Thereafter, the Commission entered into open session

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and voted 3-2 to dismiss Complaint 14-07 as frivolous. Complaint, para. 21.
II.

Standard of Review

A motion to dismiss under C.R.C.P. 12(b)(1) for lack of jurisdiction should be

granted when review is sought improperly in the district court. Hansen v. Long,
166 P.3d 248, 250-51 (Colo.App. 2007). Standing is a limitation on a courts subject
matter jurisdiction. Dolores Huerta Preparatory High v. Colo. St. Bd. of Education,
215 P.3d 1229, 1232 (Colo.App. 2009).

A motion to dismiss under C.R.C.P. 12(b)(5) should be granted when

accepting all facts pled in a complaint as true, the plaintiff has failed to state a
claim upon which relief can be granted. Town of Alma v. AZCO Constr. Inc., 10
P.3d 1256, 1259 (Colo. 2000).

III.

Argument

A. The Commissions Decision to Dismiss a Frivolous Complaint is not Final

Action Subject to Judicial Review.
C.R.S. section 24-18.5-101(9) provides that [a]ny final action of the
commission concerning a complaint shall be subject to judicial review . . .. C.R.S.

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section 24-4-106 and the APA govern judicial review. Chittenden v. Colo. Bd. of
Social Work Examiners, 292 P.3d 1138, 1141 (Colo.App. 2012).

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While the phrase final action is not defined in either the APA or section 24-

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18.5-101, the APA defines action to include the whole or any part of an agency

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rule, order, interlocutory order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act. C.R.S. 24-4-102(1). For agency action to be final, the

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following two criteria must be met: (1) the action must mark the consummation of
the agencys decision making process; and (2) the action must be one by which
rights or obligations have been determined or from which legal obligations will flow.
Chittenden, 292 P.3d at 1143.

The Commissions dismissal of Complaint 14-07 as frivolous is not final

action subject to judicial review. The Commissions dismissal of Complaint 14-07

does not amount to a rule, sanction or the denial of a license and the dismissal does
not determine any persons rights or obligations and no legal obligations flow from
the dismissal. See Chittenden, supra, (holding that the Colorado Board of Social
Work Examiners decision not to issue a declaratory order upon request to do so was

not final agency action subject to judicial review because the decision did not
determine any rights or obligations nor did any legal consequences flow from it.)
Rather, the Commissions dismissal of Complaint 14-07 as frivolous amounts to a
determination by the Commission that the complaint was filed without a rational
argument for the Commissions involvement based on the facts or law. See IEC

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Rule 3.A.5. (defining frivolous).

The fact that the Colorado Constitution requires the Commission to keep

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frivolous complaints confidential (Colo. Const. Art. XXIX, 5(3)(b)) reinforces the

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conclusion that the dismissal of a frivolous complaint is not subject to judicial

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review. Judicial review under the APA is appellate in nature and must be
performed based on the record reviewed by the agency. See 24-4-106(6) and (7);

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Stream v. Heckers, 519 P.2d 336, 337 (Colo. 1974). Had Coloradans, when they
voted in favor of Amendment 41, intended for dismissals of frivolous complaints to
be subject to judicial review, there would be no confidentiality requirement 1.
In Colorado Board of Medical Examiners v. B.L.L., 820 P.2d 1190 (Colo.App.

1991), the Court of Appeals dismissed the case for lack of subject matter jurisdiction
and held that the dismissal of disciplinary proceedings against a doctor after an
investigation, with the issuance of a confidential letter of concern to that doctor,
was not subject to judicial review. In so holding, the Court of Appeals reasoned that
a letter of concern is not appealable disciplinary action under the Medical Practice
Act because the letter has no adverse consequences to the doctor and is confidential.
Section 9 of Article XXIX of the Colorado Constitution explicitly authorizes the enactment of
legislation to facilitate the operation of Article XXIX, but caveats that in no way shall such
legislation limit or restrict the provisions of this article or the powers herein granted.
1

820 P.2d at 1191-1192. The Court also noted that because the disciplinary case was
dismissed, there is no evidentiary record for the court to review. Id. at 1191.
The dismissal of Complaint 14-07 is analogous to the dismissal of disciplinary
proceeds against the doctor in B.L.L. The dismissal of Complaint 14-07 has no
adverse consequences to the person against whom it was filed, the complaint is

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confidential and there is no record for this court to review. For these reasons,

B.L.L. supports the conclusion that dismissal of Complaint 14-07 does not constitute

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final action and therefore, this case should be dismissed for lack of subject matter
jurisdiction.

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For the same reasons Ethics Watch is not entitled to judicial review under
the APA, Ethics Watch is not entitled to judicial review under C.R.C.P. 106. The

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General Assembly provided the right to judicial review for final action under
section 24-18.5-101(9), C.R.S. Where final action does not exist, there is no right to
judicial review, under either the APA or under C.R.C.P. 106. See Chonoski v. State
of Colo., 699 P.2d 416 (Colo.App. 1985) (affirming trial courts dismissal of a
complaint, filed under 24-4-106 and C.R.C.P. 106, for lack of jurisdiction due to no
final action).

B. As an Additional Ground to Dismiss the Complaint, Ethics Watch Neither

is Adversely Affected Nor Aggrieved and Lacks Standing under Both the
APA and C.R.C.P. 106.
Neither section 24-4-106(4), C.R.S. of the APA nor C.R.C.P. 106 confer

standing, but rather address the procedures of review, once it is established a

dispute is justiciable pursuant to other statutory authority. Dolores Huerta

Preparatory High, 215 P.3d at 1233, citing State Dept. of Personnel v. Colo. St.
Personnel Bd., 722 P.2d 1012, 1019 (Colo. 1986) and Romer v. Bd. of County
Commrs, 956 P.2d 566, 577 (Colo. 1998); Reeves v. City of Fort Collins, 170 P.3d
850, 852 (Colo.App. 2007).
Under the APA, only persons or parties adversely affected or aggrieved by

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final agency action may commence an action for judicial review. 24-4-106(4),

C.R.S. A person is adversely affected or aggrieved, and therefore has standing to

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bring a judicial review action, if the party has suffered actual loss or injury to a

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legally protected right or there is a showing that the party is exposed to potential

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loss or injury to legitimate interests. Hawes v. Colo. Div. of Ins., 32 P.3d 571, 573
(Colo.App. 2001), citing 24-4-102(3.5). The standard for standing under C.R.C.P.

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106 is similar to the standard under the APA. A plaintiff must show injury in fact
to a legally protected interest as contemplated by statutory or constitutional
provisions. Brown v. Board of County Commrs, 720 P.2d 579, 582 (Colo.App. 1985).
Ethics Watch alleges that it has standing because Ethics Watch has a right to

file non-frivolous complaints under the Colorado Constitution, which must be

investigated and upon which the Commission must hold a hearing and that they
were deprived of these rights as a result of the Commissions frivolous
determination. Complaint, para. 28. Ethics Watch correctly identifies that it has
the right to file a complaint with the Commission. Ethics Watch, however, does not
have a legally protected interest in the outcome they wish to receive from the
Commission once a complaint has been filed. The Colorado Constitution vests the

authority with the Commission to determine whether a complaint is frivolous or

not. As previously discussed, if the Commission determines that a complaint is
frivolous, neither the voters of this state nor the General Assembly intended for any
party or person to have any appeal rights from that decision.
Ethics Watch also alleges that it has standing in this case because Ethics

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Watch has been deprived of the records reviewed, collected or generated by the

Commission during its preliminary investigation of Complaint 14-07 due to the

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frivolous determination and the Constitutions confidentiality requirement.

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Complaint, para. 28. Plaintiff possesses no legally protectable right to receive a

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copy of the complaint deemed frivolous, or records of the Commissions preliminary

investigation made to determine whether a complaint is frivolous. Complaints

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dismissed as frivolous shall be maintained confidential by the commission. Colo.

Const. Art. XXIX, 5(3)(b).

The records obtained by the IEC as part of its preliminary investigation

performed pursuant to IEC Rule 7.F to aid the Commission in its determination as
to whether Complaint 14-07 was frivolous likewise are confidential. If these records
were required to be disclosed, the Commission ultimately would be violating the
Colorado Constitutions mandate to maintain the confidentiality of frivolous
complaints. Under IEC Rule 7.F, the Commissions Executive Director must
exercise care not to disclose the contents of a complaint to anyone other than the
individual who is the subject of the complaint.

For these reasons and based on the allegations made in the complaint, Ethics
Watch lacks standing for both causes of actions and therefore, the complaint should
be dismissed.
WHEREFORE, for the reasons set forth herein, the Commission respectfully
requests that the complaint be dismissed.

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Respectfully submitted this 16th day of June, 2015.

CYNTHIA H. COFFMAN
Attorney General

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Pursuant to C.R.C.P. 121, 1-26(7), a printable copy of this

document is maintained in the Office of the Attorney General
for the State of Colorado

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/s/ LISA BRENNER FREIMANN

LISA BRENNER FREIMANN, *
First Assistant Attorney General
KYLE DUMLER,*
Senior Assistant Attorney General

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Attorneys for THE INDEPENDENT ETHICS

COMMISSION
*Counsel of Record

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CERTIFICATE OF SERVICE
This is to certify that I have duly served the within MOTION TO DISMISS
upon all parties herein via the ICCES E-filing service at Denver , Colorado, this 16th
day of June, 2015, as follows:

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Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202

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/s/ William Russell

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
Court Address: 1437 Bannock Street
Denver, Colorado 80202
Plaintiff: COLORADO ETHICS WATCH
v.

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Defendant: INDEPENDENT ETHICS

COMMISSION

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Attorneys for Plaintiff:

Luis Toro, #22093
Margaret Perl, #43106
COURT USE ONLY
Colorado Ethics Watch
1630 Welton Street, Suite 203
Case Number: 2015CV031862
Denver, Colorado 80202
Telephone: (303) 626-2100
Fax: (303) 626-2101
Division 424
E-mail: ltoro@coloradoforethics.org
OPPOSITION TO MOTION TO DISMISS

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Plaintiff Colorado Ethics Watch (Ethics Watch), by its undersigned counsel, submits its

opposition to the Defendant Independent Ethics Commissions (IEC) June 16, 2015 motion to
dismiss (Motion).

I. Introduction

Through its Motion, the IEC asks the Court to rule that a person who exercises the

constitutional right to file a non-frivolous complaint asking whether a public official under its
jurisdiction has violated ethical standards of conduct has no legal recourse when the IEC
erroneously dismisses its complaint as frivolous, without the public investigation, hearing, and
findings mandated for non-frivolous complaints under Colo. Const. art. XXIX, 5(3)(c).
Ethics Watch filed this action for judicial review of the IECs dismissal, as frivolous, of a
complaint Ethics Watch filed against Elbert County Commissioner Robert Rowland. Ethics
Watchs complaint established through self-authenticating public records that Commissioner

Rowland cast the deciding vote to authorize the Elbert County Attorney to appeal an
administrative law judges fine against him personally. C.R.S. 24-18-109(2)(b) and (3)(a)
require a county commissioner (among others) to refrain from taking official action that would
provide a direct financial benefit to the commissioner, and to disclose the existence of a personal
financial interest, recuse from voting, and refrain from attempting to influence the outcome of

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the vote. Ethics Watch supplied the IEC with the minutes reflecting Commissioner Rowlands
casting of the decisive vote and even provided a video of the meeting, at which the dissenting

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commissioner objected that county money was being spent for the personal benefit of

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Commissioner Rowland. Complaint at 11. After stalling for almost a full year, the IEC

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launched a secret preliminary investigation of the complaint and then voted 3-2 to dismiss the
complaint as frivolous. Id. at 14-21.

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The IEC makes its Motion even though C.R.S. 24-18.5-101(9) expressly provides that

[a]ny final action of the commission concerning a complaint shall be subject to judicial review
by the district court for the city and county of Denver. When used as an adjective in a statute,
the word any means all. Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007). The statute
contemplates that any final action on a complaint, be it a dismissal without a hearing for
frivolousness or a sanction imposed after a full hearing, is subject to judicial review in this Court.
See Gessler v. Grossman, 2015 COA 62 (action for judicial review by public official fined by
IEC for ethics violations).

In spite of this plain language, the IEC argues that its frivolousness determination is
immune from judicial review because (1) the dismissal of a complaint as frivolous is not a final
action because it purportedly does not determine any persons rights or obligations and no
legal obligations flow from the dismissal, and (2) Ethics Watch is not adversely affected or

aggrieved by the dismissal of its complaint as frivolous. They also argue that the Colorado
Constitutions requirement that the IEC maintain frivolous complaints as confidential somehow
reflects the intent of the voters who enacted Article XXIX to preclude judicial review of the
IECs erroneous dismissal of a non-frivolous complaint. These arguments all lack merit.
II. Ethics Watch Has Standing

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The IECs arguments that its dismissal is not a final action and that Ethics Watch lacks
standing to seek judicial review both depend on the assertion that the dismissal had no legal

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consequences to Ethics Watch. Because Ethics Watch is harmed by the dismissal, both
arguments should be rejected.
A. The Dismissal Is a Final Action

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Final means not to be altered or undone. A final decision marks the consummation of

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the agency's decision-making process and is one from which legal consequences flow. MDC
Holdings, Inc. v. Town of Parker, 223 P.3d 710, 713-721 (Colo. 2010) (citation omitted). The
IECs dismissal of Ethics Watchs complaint satisfies this standard. The dismissal marks the end
of proceedings before the IEC.

The IECs suggestion that no legal consequences flow from a dismissal is absurd. The

decision exonerates Commissioner Rowland and indeed allows him to posture as the victim of a
frivolous complaint. It wrongfully brands Ethics Watch as a frivolous filer. It deprives Ethics
Watch, and the Elbert County citizens who are interested in seeing Commissioner Rowland held
accountable for his abuse of power, of the public investigation and hearing into Commissioner
Rowlands conduct that the Constitution requires whenever a person files a non-frivolous
complaint. Finally, based on the erroneous decision the IEC is withholding information about the
complaint that should be public.

The IECs no final action argument is really just a reformulation of its standing
argument it claims that neither Ethics Watch nor any other person actually has a legally
enforceable interest in making sure the IEC does the job given to it under the state Constitution.
For many reasons, the IECs argument that Ethics Watch lacks standing must be rejected.
B.

Ethics Watch Is Legally Entitled To A Hearing On Its Complaint

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In Colorado state courts, standing can arise from intangible [injuries], such as aesthetic
harm or the deprivation of civil liberties. Barber v. Ritter, 196 P.3d 238, 246 (Colo. 2008). The

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standing requirement asks only whether the particular constitutional or statutory provision

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underlying the claim creates a right or interest in the plaintiff that has been arguably abridged by

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the challenged governmental action. State Bd. for Community Colleges & Occupational Educ.
v. Olson, 687 P.2d 429, 435 (Colo. 1984).

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The IECs Motion does not present the question whether Ethics Watch would be entitled

to seek review of the IECs findings of fact and conclusions of law entered after an investigation
and public hearing pursuant to Colo. Const. art. XXIX, 5(3). Rather, the question is whether
Ethics Watch can challenge the IECs erroneous dismissal of its complaint as frivolous, which
had the legal consequence of depriving Ethics Watch of an investigation, a public hearing, and
the entry of findings after that public hearing. See id. Ethics Watch has established standing by
showing that it has been denied a public hearing to which it is entitled.
When a public official or body fails to hold a required public hearing for a violation of a

statute that allows any person to file a complaint and have a public hearing, the person who
filed the complaint has standing to challenge dismissal without a hearing -- even if the only
interest is that of a public watchdog trying to make sure government does what it is required to
do. Marks v. Gessler, 2013 COA 115, 88. Marks alone requires denial of the motion.

The plaintiff in Marks was a citizen watchdog who invoked a statute, in that case the
federal Help America Vote Act (HAVA), to request a hearing before the Colorado Secretary of
State regarding alleged election irregularities in Saguache County. Id. at 5. The Secretary
dismissed her complaint without a hearing and, on appeal, argued that she lacked standing to
obtain judicial review of that dismissal because as a non-resident of Saguache County, she did

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not suffer an injury to a legally protected interest by the Secretarys failure to hold a hearing. See
id. at 8, 78. The district court rejected the Secretarys argument, and the Court of Appeals

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affirmed, holding that Marks right to a hearing on the record was a sufficient legal injury to

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establish standing. Id. at 88. Moreover, because she satisfied the statutory prerequisites to

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obtain a hearing, she was adversely affected by the dismissal without a hearing and had a right
to judicial review under the APA. Id. at 89.

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Marks is indistinguishable from this case. Article XXIX, 5(3)(c) states that the IEC

shall conduct an investigation, hold a public hearing, and render findings on each non-frivolous
complaint. (emphasis added). Because the IECs erroneous dismissal of Ethics Watchs
complaint denies Ethics Watch its constitutional right to a public hearing on its complaint, Ethics
Watch has standing to challenge that dismissal. See id.

While Marks in on point, the case principally relied upon by the IEC has little relevance

to the issues raised by the Motion. Chittenden v. Colo. Bd. of Social Work Examiners, 2012 COA
150M, was an appeal from the denial of a declaratory order petition filed in a pending
disciplinary proceeding against the plaintiff. Id. at 3-7. The Court of Appeals determined that
the denial of the petition was not final agency action because (1) the disciplinary proceeding was
still pending, giving the plaintiff an opportunity to obtain an agency ruling on the matters raised
in her petition; (2) the denial of the declaratory order did not determine whether the plaintiff

would be subject to discipline; and (3) the order itself noted the plaintiffs ability to obtain a
ruling on her contentions at the hearing on the merits of the disciplinary action. Id. at 28-30.
Also unlike the situation presented here, the defendant agency in Chittenden did not argue that its
ultimate decision would be immune from review, indeed, the court noted that the Order did not
deprive Chittenden of any rights of judicial review. The only question is when Chittenden will be

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entitled to such review. Id. at 29.

In contrast, here the IECs decision ended the proceedings, determined both that

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Commissioner Rowland will not be subject to discipline and that Ethics Watch would not receive

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a public hearing or findings on its complaint, and now purports to foreclose judicial review of the

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IECs action for all time. If anything, Chittenden counsels against granting the Motion.
Article XXIXs private-party-driven mechanism to initiate complaints, like HAVAs

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private-party complaint procedure and other laws that depend on citizen attorneys-general for
enforcement, are all akin to a qui tam action under common law, which is brought by a private
citizen, on that individuals, as well as the States, behalf for violation of a civil or criminal
statute. In the related context of campaign finance enforcement, the Texas Supreme Court held
that private party enforcement is a proper way for a state to deter violators and encourage
enforcement by candidates and others directly participating in the process, rather than placing the
entire enforcement burden on the government. Osterberg v. Peca, 12 S.W.3d 31, 49 (Tex.
2000). Indeed, the IEC requires those who file complaints to prosecute them at their own
expense through motions and public hearings. See Gessler, 2015 COA 62, 4-5. It is
inconsistent at best for the IEC to impose the burden to prosecute a complaint on Ethics Watch
but then argue that Ethics Watch is not affected by, and has no standing to challenge, a complaint
dismissed as frivolous.

The will of the people to have the IEC investigate non-frivolous complaints should not be
thwarted by an overly restrictive view of standing that would immunize the IEC from judicial
review of the even the most egregious failures to act in the face of a non-frivolous complaint
such as the one alleged in Ethics Watchs complaint. The IECs position, if accepted, would
create a perverse incentive structure: the IECs decision to penalize a wrongdoer would be

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subject to judicial review, see Gessler, 2015 COA 62, while the decision to sweep a meritorious
complaint under the rug by declaring it frivolous would not. Officeholders would be able to

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threaten legal review of any IEC ruling against them, while citizens would be powerless to

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challenge any decision declaring a meritorious complaint frivolous. The predictable result is that

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the IEC would cease to be an effective independent ethics enforcement agency.

C.

Ethics Watch Has Standing To Ensure Compliance With Article XXVIII, A

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Self-Executing Constitutional Amendment

Colorado law recognizes broad standing to enforce the terms of self-executing

constitutional amendments. A precept of constitutional law is that a self-executing

constitutional provision ipso facto affords the means of protecting the right given and of
enforcing the duty imposed. Colo. State Civil Service Employees Assn. v. Love, 448 P.2d 624,
627 (Colo. 1968) (Love); see also Hickenlooper v. Freedom From Religion Foundation, 2014
CO 17, 11 n. 10 (distinguishing citizen standing under Love from the more restrictive but
still generous taxpayer standing recognized in Colorado law). Article XXIX, establishing the
IEC to supervise the ethical conduct of the executive and legislative branches, is self-executing.
Developmental Pathways v. Ritter, 178 P.3d 524, 533 (Colo. 2008). Loves recognition of
standing in suits to enforce self-executing constitutional provisions applies fully to this case, in

which Ethics Watch seeks to compel the IEC to investigate, hold a hearing and make findings on
a non-frivolous complaint. Colo. Const. art. XXIX, 5(3)(c).
The purpose of Article XXIX is to empower the public to make sure members of the
legislative and executive branches live up to the standards of conduct expected of public service.
Voters intended the IEC to be separate and distinct from both the executive and legislative

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branches, presumably so that it can best evaluate the actions of the members of those branches.
Developmental Pathways v. Ritter, 178 P.3d 524, 532 (Colo. 2008). In order to keep the IEC

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from abusing this independence through overzealousness, the voters made IEC action contingent

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upon requests from the public. See Colo. Const. art. XXIX, 5(5) (covered individuals may

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request advisory opinions on whether conduct by that person would violate ethics standards); id.
5(3) (IEC investigates only when any person files a complaint asking whether someone

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under the IECs jurisdiction has violated ethical standards of conduct). In turn, members of the
public have an inherent right to sue the IEC for failure to adhere to Article XXIX, a selfexecuting constitutional amendment. See Love, 448 P.2d at 667; cf. Taxpayers for Public
Education v. Douglas County School Dist., 2015 CO 50 (citizens lacked standing to challenge
validity of a school districts voucher plan under state statute but had standing to challenge that
plan under the Colorado Constitution).

Even without the enactment of C.R.S. 24-18.5-101(9), Ethics Watch would have the

right to challenge the IECs wrongful dismissal of its complaint, because the complaint seeks to
enforce the terms of a self-executing constitutional amendment. Love, 448 P.2d at 627
(Petitioners state a justiciable controversy, because they claim violation of the Civil Service
Amendment, which is fully self-executing).

D.

Ethics Watchs Interest in Public Release Of the Preliminary Investigation

Is Independently Sufficient to Establish Standing

Dismissal of a complaint as frivolous also means that the IEC will not publicly release
the complaint, and, in this case, the documents collected or generated in connection with its
closed-door preliminary investigation. The IEC rejected Ethics Watchs request for these

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materials pursuant to the Colorado Open Records Act. Complaint at 19, 22-23. Ethics Watchs
inability to access information that should be disclosed and post it to its website that it has

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maintained for years to help the public monitor the IEC is a legal consequence of the IECs

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decision. Complaint at 6, 28.b. A plaintiffs interest in obtaining government information that

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is being withheld as a result of agency action is sufficient to establish standing, even under the
more exacting federal standing law. See Fed. Election Commn v. Akins, 524 U.S. 11, 21 (1998)

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(complaint should not have been dismissed for lack of standing when agency action deprived
plaintiffs of information to which they arguably were legally entitled).
The IEC addresses Ethics Watchs informational standing allegation only through the

circular argument that because the complaint has been found frivolous, Ethics Watch has no
interest in public release of the complaint. This is an action for judicial review of that
determination; denial of access to records that would be made public had the IEC not
erroneously dismissed Ethics Watchs complaint demonstrates standing on an additional,
independent ground to establish standing.

III. The Confidentiality Requirement Does Not Foreclose Judicial Review

Had the voters who enacted Article XXIX by ballot initiative intended to foreclose
judicial review of the IECs decision to dismiss a complaint as frivolous, they would have said so
in so many words. Even though no such language exists in the Article, the IEC asks the Court to

imply such intent from the language of the Article requiring the IEC to maintain frivolous
complaints as confidential. Colo. Const. art. XXIX, 5(3). The IEC contends that it is forbidden
from disclosing frivolous complaints even to a court, and in the absence of any record, the court
cannot review its action.
Earlier this year, the IEC received a formal opinion from the Colorado Attorney General

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that rejected the IECs view of its own confidentiality obligations. Formal opinions issued by the
Attorney General have some significance in cases involving consideration of constitutional

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provisions where there is room for interpretation. In re Complaint Filed by City of Colo.
Springs, 2012 COA 55, 19.

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In Formal Opinion 15-01, a copy of which is attached hereto as an Appendix, the

Attorney General opined that the duty to maintain complaints as confidential means only that the

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IEC should not publicly release complaints found to be frivolous. It does not prevent the IEC
from disclosing frivolous complaints to the Office of the State Auditor, because that office is also
bound by the duty not to disclose those documents to the public. See id. This is because
according to the plain meaning of the terms maintain as confidential, the IEC may disclose
frivolous complaints to other government entities that will also preserve the confidentiality of
those records. See id.

If the IEC can release frivolous complaints to the State Auditor, certainly it can release

them to this Court. C.R.C.P. 121, 1-5 gives this Court power to limit public access to case files.
An order restricting public access to court files containing the IECs copy of the complaint1
would fully satisfy the IECs confidentiality obligation while permitting judicial review to go
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The IEC may take the position that its duty of confidentiality extends beyond the complaint
itself to all documents collected in the course of its secret preliminary investigation. While
Ethics Watch disagrees with that position, for purposes of the motion it is sufficient to note that a
protective order could limit public access to those documents as well.
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forward. Ethics Watch is fully aware of the contents of the complaint, because Ethics Watch
filed it. The IECs duty to maintain frivolous complaints as confidential cannot be read to
preclude judicial review of erroneous dismissals.
WHEREFORE, Ethics Watch requests that the Court deny the IECs motion to dismiss.
Dated: July 6, 2015.

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Respectfully submitted,

signed original on file at Colorado Ethics Watch

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/s/ Luis Toro

Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 203
Denver, Colorado 80202

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Attorneys for Plaintiff Colorado Ethics Watch

CERTIFICATE OF SERVICE

I certify that on July 6, 2015 I served the foregoing OPPOSITION TO MOTION TO

DISMISS via ICCES to the following:
Kyle C. Dumler, Esq.
Senior Assistant Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 8th Floor
Denver, CO 80203

signed original on file at Colorado Ethics Watch

/s/ Luis Toro
Luis Toro

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
1437 Bannock Street
Denver, CO 80202
COLORADO ETHICS WATCH,
Plaintiff,
v.

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INDEPENDENT ETHICS COMMISSION,

Defendant.
CYNTHIA H. COFMANN, Attorney General
LISA BRENNER FREIMANN *
First Assistant Attorney General
KYLE DUMLER *
Senior Assistant Attorney General
NATALIE LUCAS *
Assistant Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 8th Floor
Denver, CO 80203
Telephone: 720-508-6385
FAX: 720-508-6037
E-Mail: lisa.freimann@state.co.us
Registration Numbers: 31175, 18777, 35680
*Counsel of Record

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COURT USE ONLY

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Case No.: 2015 CV 031862

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Division: 424

REPLY TO OPPOSITION TO MOTION TO DISMISS

The Independent Ethics Commission (IEC or Commission), through its

counsel the Office of the Colorado Attorney General, replies to Colorado Ethics
Watchs (Ethics Watch) Opposition to the Commissions Motion to Dismiss (the
Opposition Brief). In support of this Reply, the Commission states the following.

Argument
I.

Dismissal of a Frivolous Complaint is not Final Action Subject to

Judicial Review.

In order for there to be final action, as required by Colorados

Administrative Procedures Act (APA) as a prerequisite to judicial review, the
action must be one by which rights or obligations have been determined or from

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which legal obligations will flow. Chittenden v. Colo. Bd. of Social Work Examiners,

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292 P.3d 1138, 1143 (Colo.App. 2012). The dismissal of Complaint 14-07 neither
determined the rights nor obligations of either Ethics Watch or the person against

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whom the complaint was filed. Cf. Colorado Board of Medical Examiners v. B.L.L.,

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820 P.2d 1190 (Colo.App. 1991) (holding that the dismissal of disciplinary

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proceedings against a doctor solely with the issuance of a confidential letter of

concern, is not appealable disciplinary action subject to judicial review because
there are no adverse consequences to the doctor, the proceedings are confidential
and there is no record for the court to review). The Opposition Brief fails to address
the discussion in the Commissions Motion at pp. 6-7 of B.L.L. and its analogous set
of facts.

Rather, Ethics Watch contends that final action exists in this case because

the Commissions dismissal of Complaint 14-07: (1) exonerates Commissioner

Rowland 1, posturing him as the victim of a frivolous complaint; (2) wrongfully
brands Ethics Watch as a frivolous filer; (3) deprives Ethics Watch and the citizens
of Elbert County from seeing Rowland held accountable through an IEC
Based on the constitutional bar of confidentiality, the Commission is unable to confirm or deny
whether Commissioner Rowland is the subject of Complaint 14-07.
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investigation and hearing; and (4) deprives Ethics Watch of information the IEC is
keeping confidential regarding the complaint. Opposition Brief, p. 3. Contrary to
Ethics Watchs contentions, the dismissal of Complaint 14-07 neither branded nor
exonerated anyone, especially given the Commissions maintenance of the
confidentiality of Complaint 14-07.

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Moreover, while Article XXIX of the Colorado Constitution provides Ethics

Watch with the opportunity to file a complaint with the IEC, the Constitution does

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not vest in Ethics Watch, or any other person, the right to have every complaint

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investigated and heard. The Commission is required to conduct investigations, hold

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public hearings and render findings only on non-frivolous complaints. Colo.Const.

art. XXIX, 5(3)(c). Similarly, the Colorado Constitution does not vest Ethics

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Watch with the right to receive frivolous complaints deemed confidential. See
Colo.Const. art. XXIX, 5(3)(b). The dismissal of Complaint 14-07 therefore, could
not have determined Ethics Watchs legal rights or obligations in these regards
because no such legal rights exist. Cf. Common Cause v. Federal Election
Commission, 108 F.3d 413 (D.C. Cir. 1997) (ruling that deprivation of knowledge as
to whether a violation of the law occurred or not is not a justiciable right), a copy of
which is attached as Exhibit 1.

Ethics Watch also argues that according to the IECs position, no person has

a legally enforceable interest in making sure the IEC complies with the
Constitution. Opposition Brief, p. 4. To the contrary, once the Commission
determines a complaint to be non-frivolous, the Commissions final actions are

subject to judicial review. 24-18.5-101(9), C.R.S. Moreover, as exemplified by

Formal Opinion No. 15-01 attached as an Appendix to the Opposition Brief, the
Office of the State Auditor may review the IECs dismissals of frivolous complaints
as part of its performance audit function, without any violation of the Constitutions
confidentiality requirements because the State Auditor must maintain the

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confidentiality of those records.

For these reasons, this Court should reject Ethics Watchs arguments in
support of its contention that there is final action in this case.
II.

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Ethics Watch Lacks Standing to Seek Judicial Review of a Complaint

Dismissed as Frivolous by the Commission.

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A. Failure to Provide Ethics Watch with an Investigation and a

Hearing Does Not Amount to an Injury in Fact.

To establish standing in Colorado, Ethics Watch must prove that: (1) it

suffered an injury in fact; and (2) the injury in fact was to a legally protected
interest as contemplated by statutory or constitutional provisions. Wimberly v.
Ettenberg, 570 P.2d 535, 539 (Colo. 1977). To satisfy the first prong, the alleged
injury must be direct, palpable and tangible. Olson v. City of Golden, 53 P.3d 747,
752 (Colo.App. 2002). An injury that is merely indirect and incidental is insufficient
to confer standing. Brotman v. East Lake Creek Ranch, LLP, 31 P.3d 886, 891
(Colo. 2001). The second prong considers whether the plaintiff has a constitutional
or statutory right to be free of the alleged injury. Ainscough v. Owens, 90 P.3d 851,
856 (Colo. 2004).

Ethics Watch essentially argues that it has standing because it has a right to
an investigation and a hearing regarding whether or not the person against whom
Ethics Watch filed the complaint violated the law. Opposition Brief, pp. 4-7. This
desire, in and of itself, is not sufficient to satiate the direct injury requirement of
the first prong of the Wimberly test.

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In Common Cause, supra, Common Cause filed suit in district court seeking
judicial review of the Federal Election Commissions (FEC) decision to dismiss a

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complaint filed by Common Cause, which alleged violations of federal election

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campaign law. Like Ethics Watch in this case, Common Cause desired a ruling

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from an administrative body that a violation of the law occurred. In holding that
Common Cause lacked standing to challenge the dismissal of the complaint, the

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D.C. Circuit reasoned that a plaintiff cannot establish injury in fact merely by
alleging that she has been deprived of the knowledge as to whether a violation of
the law has occurred because it would be tantamount to recognizing a justiciable
interest in the enforcement of the law. 108 F.3d at 417-18. According to the D.C.
Circuit, Congress cannot create standing by conferring upon all persons the right
to ensure that the executive branch follows the law. 108 F.3d at 418, citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 573 (1992). See also Judicial Watch, Inc. v.
Federal Election Commn, 293 F.Supp.2d 41 (D.D.C. 2003) (holding that a plaintiff
lacked standing to seek judicial review of the FECs failure to act on his
administrative complaint within the deadlines required by law, as the plaintiff

does not have a justiciable interest in the enforcement of the law and therefore, no
injury in fact), attached as Exhibit 2.
Here, Ethics Watchs complaint fails to allege any injury other than its
rebuked desire for an investigation and hearing as to whether the person against
whom it filed the complaint violated ethics laws or not. As Ethics Watch does not

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have a justiciable interest in the enforcement of the law and has alleged no other
direct injury, it lacks standing in this case.

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Ethics Watch relies on Marks v. Gessler, 2013 COA 115 (Colo.App. 2013) as

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support for its argument. Marks is distinguishable from the present case. While

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the voting acts laws at issue in Marks may provide the absolute right to a hearing,
Article XXIX of the Colorado Constitution does not. Investigations and hearings are

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required only for non-frivolous complaints. Colo.Const. art. XXIX, 5(3)(b) and (c).
Moreover, unlike the voting acts at issue in Marks, the Colorado Constitution
evinces the intent that there is no private right of action or standing regarding the
dismissal of frivolous complaints as those must be treated confidentially under the
Constitution. See Cloverleaf Kennel Club, Inc. v. Colorado Racing Commn, 620
P.2d 1051, 1058 (Colo. 1980) (stating that where statutes do not explicitly specify
what counts as actionable injury, the law of implied private rights of action
furnishes a model as to whether the substantive law creates rights the violation of
which confer standing under the Colorado Administrative Procedures Act).
Moreover, the Colorado Supreme Court recently questioned the decision in
Marks. On June 23, 2014, the Colorado Supreme Court issued an order granting

certiorari from the Court of Appeals decision in Marks on two issues, one of which
was whether the court of appeals erred in holding that when a Colorado Help
America Vote Act administrative complaint is filed pursuant to section 1-1.5105(b)(2), C.R.S. (2013), and is dismissed without a hearing, the individual has
standing to seek judicial review of the Secretary of States final determination

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because the person is aggrieved pursuant to section 1-1.5-105(4),C.R.S. (2013). A

copy of this Order is attached as Exhibit 3. Thereafter, the case was fully briefed

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before the Supreme Court and oral argument was heard on April 28, 2015. By order

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dated April 30, 2015, the Supreme Court denied certiorari as having been

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improvidently granted. A copy of this Order is attached as Exhibit 4. It is the

undersigneds understanding that Ms. Marks ultimately was provided a hearing

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before the Supreme Courts April 30th Order.

B. A Self-Executing Constitutional Amendment Does Not in

and of Itself Confer Standing.

Ethics Watch argues that because Article XXIX is self-executing, Ethics

Watch has [a]n inherent right to sue the IEC for failure to adhere to Article XXIX.
Opposition Brief, p. 8. In asserting this argument, Ethics Watch conflates the
concepts of self-executing constitutional provisions and standing. A constitutional
provision is self-executing when the provision appears to take immediate effect
and no further action by the legislature is required to implement the right given.
Developmental Pathways v. Ritter, 178 P.3d 524, 531 (Colo. 2008). A self-executing
constitutional provision, however, does not automatically confer broad standing on
a party to initiate a lawsuit related to the provision. Instead, a plaintiff must show

that it suffered an injury to a right protected by the subject constitutional provision.

Wimberly, 570 P.2d at 539. As previously discussed, Article XXIX does not grant
Ethics Watch the right to judicial review in this case.
Colorado State Civil Service Employees Assoc. v. Love, 448 P.2d 624 (Colo.
1968) does not support Ethic Watchs position. In Love, the court did not equate

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self-execution with standing. Rather, the court discussed self-execution for the
purpose of determining whether certain legislation violated self-executing

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provisions of the Colorado Constitution. The facts in Love are not applicable here.

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C. Ethics Watchs Desire for Information Related to Complaint

14-07 Does Not Confer Standing.

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Ethics Watch argues that its interest in the public release of Complaint 14-

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07, which was determined to be frivolous by the IEC, is sufficient in and of itself to
establish standing. Ethics Watch cites only Federal Election Commn v. Akins, 524
U.S. 11, 21 (1998) as support for its argument. Opposition Brief, p. 9. In Akins, the
information the voter/plaintiffs were seeking were lists of donors and contributions
and expenditures information helpful to them to evaluate candidates. 524 U.S. at
21. As a result, the United States Supreme Court determined that this lack of
information was concrete and particular enough to constitute injury in fact. Id.
In contrast to the facts of Akins, Ethics Watchs complaint asserts no direct

harm or other injury to it from the Commissions failure to disclose Complaint 1407, other than Ethics Watchs interests in assuring the law is followed. This is in
contrast to the type of informational injury at issue in Akins, where it was alleged
that voters were deprived of useful political information at the time of voting.

In Judicial Watch, supra, the D.C. district court discussed the D.C. Circuits
analysis in Common Cause, supra, regarding the difference between an
informational injury which occurs when voters are deprived of useful political
information at the time of voting, and an injury that occurs when a person is
deprived of information that a law has been violated the former creating standing

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and the latter not. 293 F.Supp.2d at 46, citing Common Cause, 108 F.3d at 417.

Based on this analysis, the D.C. district court held that the plaintiff lacked standing

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to seek judicial review of the FECs dismissal of his complaint because what the

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plaintiff really was seeking was not information, but rather a determination that

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the law was violated. Judicial Watch also supports this Courts rejection of Ethics
Watchs informational standing argument.

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Conclusion

For the reasons set forth herein and in the Commissions Motion to Dismiss,

the Independent Ethics Commission requests that the complaint in this case be
dismissed.

Respectfully Submitted this 13th day of July, 2015.

CYNTHIA H. COFFMAN
Attorney General
Pursuant to C.R.C.P. 121, 1-26(7), a printable copy of this
document is maintained in the Office of the Attorney General
for the State of Colorado

/s/LISA BRENNER FREIMANN

LISA BRENNER FREIMANN, *

First Assistant Attorney General
KYLE DUMLER,*
Senior Assistant Attorney General
NATALIE LUCAS*
Assistant Attorney General
Attorneys for THE INDEPENDENT ETHICS
COMMISSION
*Counsel of Record

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CERTIFICATE OF SERVICE
This is to certify that I have duly served the within REPLY TO
OPPOSITION TO MOTION TO DISMISS upon all parties herein via the ICCES Efiling service at Denver, Colorado, this 13th day of July, 2015.
Luis Toro
Margaret Perl
Colorado Ethics Watch
1630 Welton Street, Suite 203
Denver, Colorado 80202

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s/ William Russell

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