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Colorado Court of Appeals Opinions
December 12, 2013

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2013 COA 172. 12CA1712. Colorado Ethics Watch v. Gessler, Colorado Secretary of State.
Campaign and Political Finance Amendment—Fair Campaign Practices Act—Administrative Authority—Ambiguous.

Defendant, in his official capacity as Colorado Secretary of State (Secretary), appealed the district court’s judgment invalidating several of his campaign finance rules. Plaintiffs Colorado Ethics Watch and Colorado Common Cause (collectively, Ethics Watch) cross-appealed. The judgment was affirmed in part and reversed in part.

Although the district court respected the Secretary’s “pragmatism” in attempting to harmonize Colorado campaign finance laws with judicial decisions through his rulemaking, the court determined that the Secretary lacked the authority to do so. Its judgment invalidated a number of the Secretary’s new rules, including Rules 1.12, 1.18, 7.2, 1.10, and 18.1.8, because they contradicted the Campaign and Political Finance Amendment (Amendment) and the Fair Campaign Practices Act (FCPA). The district court upheld the validity of the new Rule 1.7, finding that it was sufficiently similar to the rule preceding it, thus entitling it to deference.

On appeal, the Secretary contended that the district court erred in invaliding the rules because they fill gaps in the Amendment and FCPA and the court should defer to his rulemaking authority. The Court of Appeals disagreed. Rule 1.12 is arbitrary, capricious, or manifestly contrary to CRS § 1-45-103(12)(b) because the definition of “major purpose” therein is ambiguous. Rule 1.18.2 is invalid because the provisions of Colo. Const. art. XXVIII, § 2(12)(a) are clear and unambiguous, there is no gap for the Secretary to fill, and the Secretary did not have the authority to add a “major purpose” requirement. Rules 7.2 and 1.10 are invalid because they contradict the clear and unambiguous language of CRS § 1-45-103(14.5). Rule 18.1.8 is invalid because it does not fill a gap and, therefore, is manifestly contrary to Colo. Const. art. XXVIII.

On cross-appeal, Ethics Watch contended that the district court erred in not invalidating Rule 1.7 because this rule contravenes the clear and unambiguous definition of “electioneering communication” found in Colo. Const. art. XXVIII, § 2(7)(a). The Court agreed. Rule 1.7 is invalid because the constitutional provisions are clear and unambiguous, leaving no gap for the Secretary to fill. Therefore, the Secretary exceeded his authority to “administer and enforce” the law. The judgment was affirmed as to Rules 1.12, 1.18, 7.2, 1.10, and 18.1.8, but reversed as to Rule 1.7.

Colorado Court of Appeals Opinions