Campaign Integrity Watchdog, LLC v. Alliance for a Safe and Independent Woodmen Hills

2017 COA 22

• Court: Colorado Court of Appeals
• Decided: February 23, 2017
• Docket: 16CA0267
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2017COA22

Court of Appeals No. 16CA0267 El Paso County District Court No. 15CV416 Honorable Edward S. Colt, Judge

Campaign Integrity Watchdog, LLC,

Plaintiff-Appellant,

v.

Alliance for a Safe and Independent Woodmen Hills and Sarah Brittain Jack,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE FREYRE Nieto, J.*, concurs Kapelke, J.*, concurs in part and dissents in part

Announced February 23, 2017

Matthew Arnold, as Authorized Representative of Campaign Integrity Watchdog, LLC

Law Office of Robert S. Gardner, Robert S. Gardner, Laura Gardner, Colorado Springs, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016. ¶1 In this action involving the Fair Campaign Practices Act

(FCPA), §§ 1-45-101 to -118, C.R.S. 2016, and the Campaign and

Political Finance Amendment, Colo. Const. art. XXVIII

(Amendment), plaintiff, Campaign Integrity Watchdog LLC (CIW),

appeals the district court’s order dismissing its complaint to enforce

the decision of an Administrative Law Judge (ALJ) against

defendant, Alliance for a Safe and Independent Woodmen Hills

(Alliance), based on the expiration of the statute of limitations. We

are asked, as a matter of first impression, to determine the meaning

of the word “violation” in § 9(2)(a) of the Amendment, as both

parties agree that this word triggers the statute of limitations. We

conclude that “violation” means the act(s) of breaking or

dishonoring the FCPA or Amendment and, thus, that the statute of

limitations begins running the day following the last such act.

Because the complaint and attached ALJ decision state a plausible

claim that the statute of limitations had not yet run, we reverse the

district court’s order granting Alliance’s motion to dismiss and

remand for reinstatement of CIW’s complaint.

1 I. Background

¶2 This case concerns various campaign finance violations that

occurred in the 2014 Woodmen Hills Metropolitan District board of

directors’ election. Before the election, Alliance was established for

the purpose of working “for the common good and general welfare

of” the Woodmen Hills community. Ron Pace, a resident of

Woodmen Hills, ran as a candidate for election to the district’s

board of directors. In the months preceding the election, Alliance

sent postcards directed at undermining Pace’s character and

political platform and created Facebook posts that did the same.

¶3 Believing that the actions of Alliance violated the FCPA, CIW

filed a complaint with the Secretary of State (Secretary) under § 9 of

the Amendment. The Secretary then referred the complaint to the

Office of Administrative Courts. After a hearing, the ALJ found that

Alliance was a “political committee” under the FCPA and that it was

therefore required to register with the Secretary and to comply with

all filing and reporting requirements.1 In a written decision issued

1CIW also asserted that Alliance violated other provisions of the FCPA but the ALJ concluded that Alliance did not commit these additional violations, and CIW did not appeal that ruling.

2 on August 8, 2014, the ALJ found that Alliance’s failure to register

as a political committee and to file the required reports constituted

violations of the FCPA. The ALJ also found that Alliance should

have registered with the Secretary beginning on March 17, 2014,

and found that Alliance had failed to comply with the registration

and reporting requirements as of the first day of the hearing, June

26, 2014. It imposed a fine of $9650 for these violations2 and

ordered Alliance to register with the Secretary and file all required

reports.

¶4 Alliance filed a motion to stay the decision which the ALJ

denied on August 20, 2014. Two days later, Alliance filed a notice

of appeal and a motion for stay of the decision in this court. A

motions division of this court denied the motion for stay, and on

November 21, 2014, Alliance withdrew its appeal. Thereafter, the

Secretary did not pursue enforcement of the ALJ’s decision beyond

sending Alliance invoices for the monetary penalties.

¶5 On September 15, 2015, CIW filed a complaint in El Paso

District Court to enforce the ALJ’s decision. CIW attached a copy of

2 This reflects a fine of $50 per day.

3 the decision to the complaint. Alliance filed a C.R.C.P. 12(b)(5)

motion to dismiss alleging that the Amendment’s one-year statute

of limitations barred CIW’s enforcement action. The district court

dismissed CIW’s complaint based on its conclusion that CIW’s

complaint was time barred under the Amendment.

II. Discussion

¶6 This appeal requires us to decide two issues: (1) the meaning

of the word “violation” in § 9(2)(a) of the Amendment and (2) how to

apply our interpretation to Alliance’s motion to dismiss.

¶7 At issue here is the limitations period described in § 9 of the

Amendment, which provides as follows:

(2)(a) Any person who believes that a violation of section 3, section 4, section 5, section 6, section 7, or section 9(1)(e), of this article, or of sections 1-45-108, 1-45-114, 1-45-115, or 1- 45-117 C.R.S., or any successor sections, has occurred may file a written complaint with the secretary of state no later than one hundred eighty days after the date of the alleged violation. The secretary of state shall refer the complaint to an administrative law judge within three days of the filing of the complaint. The administrative law judge shall hold a hearing within fifteen days of the referral of the complaint, and shall render a decision within fifteen days of the hearing. The defendant shall be granted an extension of up to thirty

4 days upon defendant’s motion, or longer upon a showing of good cause. If the administrative law judge determines that such violation has occurred, such decision shall include any appropriate order, sanction, or relief authorized by this article. The decision of the administrative law judge shall be final and subject to review by the court of appeals, pursuant to section 24-4-106(11), C.R.S., or any successor section. The secretary of state and the administrative law judge are not necessary parties to the review. The decision may be enforced by the secretary of state, or, if the secretary of state does not file an enforcement action within thirty days of the decision, in a private cause of action by the person filing the complaint. Any private action brought under this section shall be brought within one year of the date of the violation in state district court. The prevailing party in a private enforcement action shall be entitled to reasonable attorney fees and costs.

Colo. Const. art. XXVIII, § 9 (emphasis added).

¶8 Both parties agree that the statute of limitations is triggered

by the date of “violation” in § 9(2)(a) of the Amendment, but disagree

about what the term “violation” means. CIW offers several possible

meanings of “violation” and contends that it could refer to (1) the

violation(s) of the FCPA giving rise to the ALJ’s decision; (2) an

ongoing failure to pay the fine imposed by the ALJ’s decision; or (3)

the “final judgment” entered after any appeal. Alternatively, CIW

5 asserts that we should read a tolling provision into the Amendment

to avoid the “absurd” result of an appeal, specifically authorized by

the Amendment, precluding a private cause of action. CIW argues

that an appeal, which often takes longer than one year to complete,

would foreclose a private enforcement action. It reasons that the

exercise of this appellate right could foreclose private actions

altogether.

¶9 Alliance responds that the statute of limitations language is

unambiguous and that the word “violation” refers only to the act or

acts which gave rise to the penalty. It further contends that we

should not read a tolling provision into § 9 of the Amendment where

one does not exist. It reasons that, despite the fact that in some

circumstances a cause of action may be foreclosed, this result is not

absurd so as to justify a deviation from the plain language.

¶ 10 We reject CIW’s contrary arguments and conclude that the

plain language of the Amendment unambiguously creates a one-

year limitations period that begins to run from the date of the act or

acts (or failure to act) violating the FCPA that formed the basis of

the complaint. We acknowledge that reading “violation” according

6 to its ordinary and common meaning may preclude a private cause

of action in some circumstances; however, our legal duty is to apply

the plain language of the Amendment as written and to refrain from

adding language the electorate did not include. Because it is

possible to bring an enforcement action within one year of a

violation, we conclude that our interpretation, based on the plain

language of the Amendment, does not lead to an absurd result. In

applying our interpretation to CIW’s complaint, however, we

conclude that the district court erred when it dismissed the action

based on the statute of limitations.

A. Constitutional Interpretation

¶ 11 We review de novo the interpretation of a constitutional

provision. Patterson Recall Comm., Inc. v. Patterson, 209 P.3d 1210,

1214 (Colo. App. 2009). In construing constitutional provisions, we

are guided by the general principles of statutory construction. Id.

at 1215. This means that when interpreting a constitutional

amendment adopted by citizen’s initiative, we “give effect to the

electorate’s intent in enacting the amendment.” Colo. Ethics Watch

v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20 (quoting Davidson

7 v. Sandstrom, 83 P.3d 648, 654 (Colo. 2004)). To determine what

the voters intended, we “give words their ordinary and popular

meaning.” Id. (quoting Davidson, 83 P.3d at 654). Courts should

not engage in a narrow or overly technical construction of the

language. Rocky Mountain Animal Def. v. Colo. Div. of Wildlife, 100

P.3d 508, 514 (Colo. App. 2004). We assume that voters chose

words and phrases intentionally. Senate Majority Fund, LLC, ¶ 28.

If the language of an amendment is clear and unambiguous, then it

must be enforced as written. Id. at ¶ 20.

¶ 12 We must consider the Amendment as a whole and, when

possible, adopt an interpretation that harmonizes its different

provisions. Patterson, 209 P.3d at 1214. We also must favor a

construction of a constitutional amendment that will render every

word operative, rather than one that may make some words

meaningless or superfluous. Id. However, in rare circumstances,

even where the plain language is clear, we may depart from the

plain meaning of the amendment to avoid an absurd result. See

Guido v. Indus. Claim Appeals Office, 100 P.3d 575, 577 (Colo. App.

2004); see also Rocky Mountain Animal Def. v. Colorado Div. of

8 Wildlife, 100 P.3d 508, 514 (Colo. App. 2004) (when interpreting a

constitutional amendment “[c]ourts should avoid an unreasonable

interpretation or one that produces an absurd result.”).

¶ 13 The Amendment is a comprehensive initiative regulating

campaign financing. See Sanger v. Dennis, 148 P.3d 404, 407

(Colo. App. 2006). Its purpose is to require participants in the

election process, such as political committees, to comply with,

among other things, registration and disclosure requirements. See

Colo. Const. art. XXVIII, § 7; see also Colo. Ethics Watch v. Gessler,

2013 COA 172M, ¶ 5.

¶ 14 The Amendment may be enforced by the Secretary or “by the

person filing the complaint.” A person seeking enforcement must

file a written complaint with the Secretary within 180 days of the

alleged violation. The Secretary must then refer the complaint to an

ALJ to determine whether a violation has occurred and, if so, to

impose the appropriate sanction. Either party may directly appeal

the ALJ’s decision to this court. The Amendment makes no

mention of a stay pending appellate review, but instead provides the

9 Secretary with the immediate authority to enforce the ALJ’s

decision.3

¶ 15 The person who initiates the complaint may seek enforcement

of the ALJ’s decision only if the Secretary “does not file an

enforcement action within thirty days of the decision.” To do so,

such person must file a complaint in state district court “within one

year of the date of the violation.”

¶ 16 The Amendment does not define “violation”; therefore we look

to its plain and ordinary meaning. State v. Nieto, 993 P.2d 493, 500

(Colo. 2000) (courts give words their plain and ordinary meaning

and assume that the governing body meant what it clearly said). A

violation is “[t]he act of breaking or dishonoring the law; the

contravention of a right or duty.” Black’s Law Dictionary 1800

(10th ed. 2014). We therefore disagree with CIW’s contentions that

“violation” refers to the ALJ’s decision after appellate review, or to a

party’s failure to pay a fine included in the ALJ’s decision.

3 We recognize that the Secretary has promulgated a rule stating that it may enforce the ALJ’s decision and that it will not enforce an ALJ’s decision that is pending appeal. See Dep’t of State Reg. 18.3, 8 Code Colo. Regs. 1505-6.

10 ¶ 17 Indeed, the Amendment’s plain language contradicts CIW’s

assertion that the term “violation” is synonymous with the ALJ’s

“decision” because it clearly differentiates the findings of the ALJ by

using the word “decision” to describe it. Moreover, the

Amendment’s first sentence specifically identifies those portions of

the FCPA and Amendment that provide a basis for the complaint.

Because we must assume the electorate did not carelessly choose

its language, and because the electorate chose the word “decision”

to describe the ALJ’s legal findings, we conclude that the word

“violation” unambiguously refers to the conduct which contravened

the FCPA or the Amendment and not to the ALJ’s decision finding a

violation and assessing a penalty.

¶ 18 Moreover, we cannot say that “violation” in this context is

subject to more than one meaning or that the words “violation” and

“decision” were meant to be used interchangeably. Williams v. Dep’t

of Pub. Safety, 2015 COA 180, ¶ 36 (“An ambiguous statute is one

fairly susceptible of more than one interpretation.”) (citation

omitted). The Amendment uses the term “violation” four times,

twice to describe the acts that may give rise to a complaint, once

11 when addressing the ALJ’s legal conclusion that a law violation has

occurred, and finally when discussing the statute of limitations.

Each of these instances is distinguishable from the use of the word

“decision.”

¶ 19 In the Amendment, “decision” refers to the ALJ’s conclusions

finding a violation, imposing a sanction, and identifying the relief

that the Secretary or person filing the complaint may enforce.

Thus, we cannot say that the term “violation” is ambiguous.

Because the word is used multiple times to describe the events

upon which the legal decision rests, we construe “violation” to mean

the same thing in each instance — the act or acts of breaking or

dishonoring the statutory and constitutional provisions enumerated

in the first sentence of Colorado Constitution article XXVIII, section

9(2)(a). Accordingly, we reject CIW’s assertions that “violation”

means the ALJ’s decision or the unpaid fine resulting from that

decision.

¶ 20 For the same reasons, we reject CIW’s argument that the word

“violation” must mean the final judgment following appellate review

or must be construed to include a tolling provision. We note that

12 the Amendment contains no such language, and we are not at

liberty to rewrite the Amendment. In re 2000-2001 Dist. Grand Jury

in & for First Judicial Dist., 97 P.3d 921, 924 (Colo. 2004) (where a

statute is silent on a noncollateral matter, we must interpret the

provisions as written and may not write in new language not

contemplated by the drafters of the provision).

¶ 21 The electorate chose to tie the limitations period of a private

enforcement action to the violation, not to the finality of the

judgment to be enforced. It also chose not to explicitly provide for a

tolling of that limitations period in the plain language of the

Amendment.4 We must interpret the Amendment as written and

may not add language that was not contemplated by the drafters.

US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512, 516-17

(Colo. App. 2009) (“An inference drawn from congressional silence

4 Our opinion should not be construed as foreclosing a party from requesting equitable tolling of the limitations period. We only address tolling insofar as we conclude that the Amendment’s plain language does not explicitly provide this relief. See, e.g., Cochran v. W. Glenwood Springs Sanitation Dist., 223 P.3d 123, 126 (Colo. App. 2009) (the plain language of § 24-10-109(5), C.R.S. 2016, provides for a tolling provision); see also § 24-50-112.5, C.R.S. 2016 (the ninety-day period “shall be tolled until there is a final agency action by the board . . .”).

13 certainly cannot be credited when it is contrary to all other textual

and contextual evidence of congressional intent.” (quoting Burns v.

United States, 501 U.S. 129, 136 (1991))); see also Bruce v. City of

Colorado Springs, 129 P.3d 988, 993 (Colo. 2006) (a court will not

read a statute to create an exception that the plain language does

not suggest, warrant, or mandate).

¶ 22 We acknowledge CIW’s argument that an appellate decision,

when sought, may not be issued within the one-year statute of

limitations. Thus, if the word “violation” does not include final

judgment after appeal or a tolling provision, a private enforcement

action may be precluded. However, we conclude that this is but

one possible scenario. For example, if no appeal is filed or if the

appeal is resolved in less than one year, a person is not time barred

from filing an enforcement action. Moreover, nothing in the

Amendment precludes a person from filing a complaint in the

district court if the Secretary does not file an action itself within

thirty days of the ALJ’s decision. The Secretary’s internal rule

refusing to enforce actions pending the outcome of an appeal has

no bearing on a person’s right to file an enforcement action — once

14 thirty days have passed without the Secretary filing an enforcement

action, the person who filed the complaint may do so in order to

preserve his or her rights under the Amendment. In such

circumstances, the district court judge may stay the action pending

the outcome of the appeal.

¶ 23 Therefore, because many times it will be possible to enforce an

ALJ’s decision within one year of the violation, we conclude the

result is not “absurd” so as to justify reading a tolling provision into

the Amendment where it is otherwise silent. Guido, 100 P.3d at

577. Moreover, our duty is not to ensure that parties have a cause

of action, but is instead to interpret unambiguous language as

written. See Williams, ¶ 34 (“As for judicial economy, policy

considerations are subordinate to giving effect to unambiguous

statutory language.”); People in Interest of D.R.W., 91 P.3d 453, 458

(Colo. App. 2004) (“We reject policy considerations in favor of the

plain language of a statute.”); see also Henry Schein, Inc., 205 P.3d

at 516-17 (“An inference drawn from congressional silence certainly

cannot be credited when it is contrary to all other textual and

15 contextual evidence of congressional intent.” (quoting Burns, 501

U.S. at 136).

¶ 24 Accordingly, because the plain language of the Amendment is

clear, we conclude that the date of “violation” means the date or

dates the FCPA or Amendment is violated, and that a private cause

of action to enforce an ALJ’s decision must be filed within one year

of that date.

B. Dismissal under C.R.C.P. 12(b)(5)

¶ 25 Having concluded that the statute of limitations runs from the

date or dates a violation occurs, we must now determine whether

the district court’s order granting Alliance’s motion to dismiss

properly identified that date. We begin by noting that a “violation”

could either be discrete or continuing. This issue, however, is not

before us. Rather, viewing CIW’s complaint in the light most

favorable to CIW, we must conclude that the complaint could be

read to allege a continuing violation, that Alliance assumed it was a

continuing violation in its motion to dismiss, and that the district

court’s order assumed the violation was continuing. Thus, we

assume, for purposes of this analysis only, that the violation was

16 continuing, and we focus on whether the complaint and attached

ALJ decision state a plausible claim that the violation continued

beyond June 26, 2014, the date relied on by the district court. In

doing so, we express no opinion on whether the specific violations of

failure to register and failure to report constitute discrete offenses

occurring on the dates the filings and reports were due, or

continuing offenses, an issue never raised or briefed by the parties.

We also recognize that the district court did not have the benefit of

our interpretation of “violation” when ruling on Alliance’s motion.

¶ 26 We begin by acknowledging that a case should be dismissed

under Rule 12(b)(5) based on a statute of limitations only in

exceptional circumstances. Indeed, CIW urges us to reverse on this

basis, arguing that a statute of limitations defense is not properly

brought in a Rule 12(b)(5) motion.

¶ 27 To be sure, defenses based on statutes of limitation are

affirmative in nature, and must be raised by responsive pleading.

C.R.C.P. 8(c). Typically, they cannot be raised in a Rule 12(b)(5)

motion to dismiss when the affirmative defense has not been raised

in the pleadings. McPherson v. McPherson, 145 Colo. 170, 358 P.2d

17 478 (1960); Smith v. Kent Oil Co., 128 Colo. 80, 81, 261 P.2d 149,

150 (1953); McIntire & Quiros of Colo., Inc. v. Westinghouse Credit

Corp., 40 Colo. App. 398, 400, 576 P.2d 1026, 1026 (1978).

“However, divisions of this court have recognized an exception

‘where the bare allegations of the complaint reveal that the action

was not brought within the required statutory period.’” Wagner v.

Grange Ins. Ass’n, 166 P.3d 304, 307 (Colo. App. 2007) (quoting

SMLL, L.L.C. v. Peak Nat’l Bank, 111 P.3d 563, 564 (Colo. App.

2005)); see also Coors Brewing Co. v. Floyd, 978 P.2d 663, 665

(Colo. 1999) (“Such motions ‘are viewed with disfavor.’” (quoting

Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996))).

¶ 28 We review a district court’s ruling on a Rule 12(b)(5) motion to

dismiss de novo. Id. Generally, in ruling on a Rule 12(b)(5) motion,

a court may consider only those matters stated in the complaint

and must accept all allegations of material fact as true, viewing the

allegations in the light most favorable to the plaintiff. Coors

Brewing Co., 978 P.2d at 665. However, when the plaintiff attaches

documents to the complaint, a court may consider those documents

in addition to the allegations stated in the complaint. Lambert v.

18 Ritter Inaugural Comm., Inc., 218 P.3d 1115, 1119 (Colo. App.

2009). “Only a complaint that states a plausible claim for relief

survives a motion to dismiss.” Warne v. Hall, 2016 CO 50, ¶ 19

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Under this

standard, a party must plead sufficient facts that, if taken as true,

suggest plausible grounds to support a claim for relief. Warne, ¶

24.

1. Complaint Allegations

¶ 29 CIW filed its complaint on September 15, 2015, seeking

enforcement of the ALJ’s August 8, 2014, decision. The complaint

alleged that the ALJ had found violations of the FCPA, had imposed

a fine for the violations, and had given Alliance thirty days from

August 8 to comply with its decision. It further alleged that “no

part of said Order has been paid or satisfied,” and that Alliance was

“continuing operations in defiance of the law.”

¶ 30 The attached ALJ decision revealed that Alliance had violated

two provisions of the FCPA — registration and reporting as required

by § 1-45-108, C.R.S. 2016. In the “Sanction” section of the

decision, the ALJ found that “[r]egistration was due on March 17,

19 2014, but not filed as of the first day of the hearing, June 26, 2014;

a period of 104 days, for a total of $5,050.” A footnote to this

sentence stated: “Due to the power outage on June 26th, the hearing

could not be concluded in one day and had to be continued for a

month. Because this delay was beyond Alliance’s control, it would

be unfair to extend Alliance’s liability to the second hearing day.”

¶ 31 The ALJ also found that contribution reports were due “by

April 15, 2014,” and “due June 5, 2014,” but that “[n]o report was

filed as of June 26, 2014, a period of 71 days, for a total of $3,550.”

It ordered Alliance to “register with the Secretary of State and file all

required reports . . . within 14 days of the mailing of this decision.”

It further ordered Alliance “to remit [the monetary penalty] to the

Secretary of State, Campaign Finance, within 30 days of the date of

mailing of this decision.”

¶ 32 The district court found that Alliance made a “straightforward

argument[] that the last act in violation of the law, as contained in

the order, was on June 26, 2014 . . .,” and that because CIW filed

its complaint on September 15, 2015, more than one year later, its

enforcement action was barred by the statute of limitations. It

20 concluded that CIW failed to comply with the statute of limitations

and dismissed the complaint.

2. Analysis

¶ 33 CIW contends its complaint sufficiently alleged the existence of

a continuing violation so as to preclude dismissal under the statute

of limitations. Alliance responds that the limitations period began

to run on the hearing date of June 26, 2014 — the last date the ALJ

used to assess a penalty for the violations. For the reasons stated

below, we agree that the allegations of CIW’s complaint, taken as

true, suggest plausible grounds to support a claim for relief.

¶ 34 Based on our conclusion in Part II.A that failure to pay a fine

does not constitute a violation of the FCPA or the Amendment, we

reject Alliance’s argument that the penalty range determines the

date of violation. Because an ALJ has broad discretion to impose

sanctions for violations, the dates he or she selects for determining

the appropriate sanction are merely instructive and not binding for

the purposes of the statute of limitations. See Patterson, 209 P.3d

at 1217 (an ALJ has broad discretion under the Amendment to

determine whether sanctions are appropriate for each violation); see

21 also Colo. State Bd. of Med. Exam’rs v. Hoffner, 832 P.2d 1062, 1067

(Colo. App. 1992) (medical board is not bound by the ALJ’s

imposition of sanctions). Thus, to the extent the district court

concluded that the last date of the penalty range, June 26, 2014,

corresponded with the date of violation in § 9 of the Amendment,

this conclusion was erroneous and was contradicted by other

language in the decision.

¶ 35 Here, the ALJ’s footnote shows that Alliance had not registered

or filed reports as of July 2014, and its order to Alliance to do so

within fourteen days of the decision shows that Alliance had not

done so as of August 8, 2014. Therefore, if the district court

assumed a continuing violation until June 26, 2014, the violation

continued until at least August 8, 2014, and the record does not

show when or if the continuing violation ended. When viewed in a

light most favorable to CIW, we conclude the complaint states a

plausible claim of a continuing violation sufficient to withstand a

Rule 12(b)(5) motion to dismiss based on the statute of limitations.

We neither express nor imply an opinion regarding the correct

determination of the date of violation. See Wagner, 166 P.3d at 307

22 (“Whether a particular claim is time barred is a question of fact.”)

In deciding a motion under Rule 12(b)(5), neither the district court

nor this court can make findings of fact, but rather must accept the

allegations of fact in the light most favorable to the plaintiff. Coors

Brewing Co., 978 P.2d at 665. We have applied this principle in

reviewing the order in this case, although we are aware of

limitations on the continuing violation doctrine. See Polk v. Hergert

Land & Cattle Co., 5 P.3d 402, 405 (Colo. App. 2000) (“However, the

continuing violation doctrine has been limited to discrimination

cases.” citing Harmon v. Fred S. James & Co., 899 P.2d 258 (Colo.

App. 1994)); but see Crowell v. Indus. Claims Appeals Office, 2012

COA 30, ¶ 13 (collecting cases finding a continuing violation and

stating “the difference between a one-time violation and a

continuing violation hinges on whether the violation is subject to

being cured by subsequent action.”).

¶ 36 Accordingly, we reverse the district court’s order dismissing

the complaint and remand the case for reinstatement of the

complaint and further proceedings.

23 III. Attorney Fees

¶ 37 CIW also contends the court erred when it awarded Alliance

attorney fees. Because we remand this case for reinstatement of

the complaint, we also reverse the award of attorney fees. However,

because it may arise on remand, we address CIW’s contention that

its status as a pro se party precludes the court from awarding

attorney fees against it.

¶ 38 First, we note that the plain language of § 9 of the Amendment

entitles the prevailing party in a private enforcement action to

reasonable attorney fees and costs. However, § 1-45-111.5(2),

C.R.S. 2016, requires that § 13-17-102(5) and (6), C.R.S. 2016, be

considered before awarding attorney fees. A district court may not

assess attorney fees against a pro se party under § 13-17-102(6)

unless it “finds that the party clearly knew or reasonably should

have known that his action or defense, or any part thereof, was

substantially frivolous, substantially groundless, or substantially

vexatious.” In considering an award of attorney fees against a pro

se party, a district court must make findings under § 13-17-102(6).

Artes-Roy v. Lyman, 833 P.2d 62, 63 (Colo. App. 1992). We note

24 that the court made no such findings here. Thus, if this issue

arises on remand, the district court should make the requisite

findings before assessing attorney fees against CIW.

IV. Conclusion

¶ 39 The judgment is reversed, and the award of attorney fees is

vacated. The case is remanded for reinstatement of the complaint

and for further proceedings consistent with this opinion.

JUDGE NIETO concurs.

JUDGE KAPELKE concurs in part and dissents in part.

25 JUDGE KAPELKE, concurring in part and dissenting in part.

¶ 40 I agree with the majority’s analysis of the meaning of the term

“violation” in article XXVIII, section 9(2)(a) of the Colorado

Constitution and with its rejection of CIW’s arguments that the

one-year limitation period does not begin to run until the date of

entry of the final judgment following appellate review. I further

agree with the majority that the case should be remanded for the

district court to make the necessary findings under § 13-17-102(6),

C.R.S. 2016, with respect to the issue of attorney fees.

¶ 41 Nevertheless, I disagree with the majority’s conclusion in Part

II.B that the complaint states a “plausible claim for relief” based on

the need for a determination whether there was a “continuing

violation.” In my view, the district court correctly granted Alliance’s

C.R.C.P. 12(b)(5) motion to dismiss the complaint as untimely.

¶ 42 The ALJ determined that Alliance violated § 1-45-108, C.R.S.

2016, of the FCPA (1) “by failing to register as a political committee”

by the due date of March 17, 2014; and (2) by “failing to file

required contribution and expenditure reports” by the respective

due dates of “April 15, May 2, and June 5, 2014.”

26 ¶ 43 Those are, in my view, the controlling dates of the violations.

The plain and unambiguous language of § 9(2)(a) provides: “Any

private action brought under this section shall be brought within

one year of the date of the violation in state district court.” CIW’s

private enforcement action was filed on September 15, 2015, more

than one year after all of the respective dates of the violations

determined by the ALJ in the “Final Agency Decision.” Section

9(2)(a) does not recognize any exception for “continuing violations.”

¶ 44 Accordingly, I would affirm the district court’s order

dismissing the complaint pursuant to C.R.C.P. 12(b)(5).