The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY February 20, 2025
2025COA18
No. 24CA0128, Campaign Integrity Watchdog v. Colorado Secretary of State — Election Law — Fair Campaign Practices Act — Campaign Finance Complaints — Investigation and Enforcement
The division concludes that the campaign and political finance
enforcement mechanism in section 1-45-111.7, C.R.S. 2024, is
facially constitutional. The division determines that once the
United States District Court for the District of Colorado held that
section 9(2)(a) of article XXVIII of the Colorado Constitution was
facially unconstitutional in Holland v. Williams, 457 F. Supp. 3d
979 (D. Colo. 2018), and the Secretary could no longer act under
that constitutional provision, the subsequent enactment of a new
enforcement mechanism was necessary under section 9(1)(b) of
article XXVIII. The division holds that the plaintiff failed to prove that the subsequently enacted section 1-45-111.7 violates
principles of separation of powers or due process.
Next, the division addresses the district court’s dismissal of
the plaintiff’s complaint filed under section 1-45-111.7 against the
defendant political committee. First, the division reverses that part
of the district court’s order holding that the committee was not
required to file mandatory reports under the applicable campaign
and political finance laws. However, the division affirms the portion
of the order dismissing the plaintiff’s allegation that the committee
failed to maintain an active registered agent. COLORADO COURT OF APPEALS 2025COA18
Court of Appeals No. 24CA0128 City and County of Denver District Court No. 22CV666 Honorable Kandace C. Gerdes, Judge
Campaign Integrity Watchdog LLC, a Colorado corporation,
Plaintiff-Appellant,
v.
Colorado Secretary of State, Jena Griswold, in her official capacity,
Defendant-Appellee.
ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE TAUBMAN* Tow and Bernard*, JJ., concur
Announced February 20, 2025
Matthew Arnold, Denver, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Peter G. Baumann, Assistant Solicitor General, Denver, 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. 2024. ¶1 In this campaign finance law dispute, plaintiff, Campaign
Integrity Watchdog LLC (Watchdog), appeals the district court’s
order affirming the Secretary of State’s dismissal of Watchdog’s
complaint against Alliance for a Safe and Independent Woodmen
Hills (Alliance). Because we conclude that the campaign finance
constitutional and agree that Alliance had a registered agent, we
affirm the order in part. Because we agree with Watchdog’s
contention that the Secretary erred by dismissing its allegation that
Alliance had failed to file reports required by Colorado’s campaign
finance laws, we reverse the order in part and remand the case for
further proceedings.
I. Background
A. Watchdog and Alliance’s Extensive History of Campaign Finance Disputes
¶2 Alliance is a “political committee” under article XXVIII of the
Colorado Constitution.1 Colo. Const. art. XXVII, § 2(12).
1 As the supreme court did in previous litigation between these
parties, we will also “treat Alliance as a ‘political committee’ because that is how it is registered and its status is not at issue in this case.” Campaign Integrity Watchdog v. All. for a Safe & Indep. Woodmen Hills, 2018 CO 7, ¶ 22, 409 P.3d 357, 361 (Watchdog I).
1 ¶3 Watchdog is a Colorado limited liability company that
frequently pursues private enforcement of campaign and political
finance matters.
¶4 When Alliance campaigned against a candidate in a local
election in 2014, Watchdog filed its first complaint against Alliance
with the Secretary of State under article XXVIII, section 9(2)(a), of
the Colorado Constitution. This complaint marked the beginning of
a decade-long adversarial relationship between Watchdog and
Alliance that has been well documented in prior litigation. See
generally Campaign Integrity Watchdog v. All. for a Safe & Indep.
Woodmen Hills, 2018 CO 7, 409 P.3d 357 (Watchdog I); All. for a
Safe & Indep. Woodmen Hills v. Campaign Integrity Watchdog, LLC,
2019 CO 76, 450 P.3d 282 (Watchdog II). However, because not all
the parties’ litigation history is relevant here, we only discuss the
pertinent aspects of their prior litigation.
B. Colorado’s Changing Campaign and Political Finance Enforcement Scheme
¶5 Article XXVIII of the Colorado Constitution governs campaign
and political finance. Article XXVIII was proposed by a citizens’
initiative as “Amendment 27” and adopted by popular vote in 2002.
2 Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 17,
269 P.3d 1248, 1253. In adopting article XXVIII, the electorate
declared
that large campaign contributions to political candidates create the potential for corruption and the appearance of corruption; that large campaign contributions made to influence election outcomes allow wealthy individuals, corporations, and special interest groups to exercise a disproportionate level of influence over the political process; . . . that because of the use of early voting in Colorado[,] timely notice of independent expenditures is essential for informing the electorate; that in recent years the advent of significant spending on electioneering communications, as defined herein, has frustrated the purpose of existing campaign finance requirements; that independent research has demonstrated that the vast majority of televised electioneering communications goes beyond issue discussion to express electoral advocacy; . . . and that the interests of the public are best served by limiting campaign contributions, establishing campaign spending limits, providing for full and timely disclosure of campaign contributions, independent expenditures, and funding of electioneering communications, and strong enforcement of campaign finance requirements.
Colo. Const. art. XXVIII, § 1 (emphasis added). Article XXVIII vests
the Secretary with authority to administer and enforce its
provisions, though of course not without limit. Colo. Const. art.
3 XXVIII, § 9(1)(b) (“The secretary of state shall . . . [p]romulgate
rules . . . as may be necessary to administer and enforce . . . this
article.”); Hanlen v. Gessler, 2014 CO 24, ¶ 35, 333 P.3d 41, 49
(“[T]he Secretary lacks authority to promulgate rules that conflict
with statutory provisions.”).
¶6 The Fair Campaign Practices Act (the Act) also governs
campaign and political finance and “gives effect to [article XXVIII’s]
mandates.” No on EE – A Bad Deal for Colo., Issue Comm. v. Beall,
2024 COA 79, ¶ 75, 558 P.3d 671, 686 (Schutz, J., dissenting).
Like article XXVIII, the Act allows the Secretary to promulgate rules
concerning campaign and political finance. See § 1-45-111.5(1),
C.R.S. 2024; Sec’y of State Rules 1 to 25.2, 8 Code Colo. Regs.
1505-6 (the Rules).
¶7 In 2018, the United States District Court for the District of
Colorado held section 9(2)(a) of article XXVIII facially
unconstitutional. Holland v. Williams, 457 F. Supp. 3d 979 (D.
Colo. 2018). Section 9(2)(a) allows any person to file a complaint
alleging a campaign finance violation and requires that the
complaint be referred to an administrative law judge (ALJ) for a
hearing and decision. The Holland court held that this provision
4 regulated core political speech, and under a strict scrutiny analysis,
it determined that the enforcement provisions were not narrowly
tailored to serve the state’s compelling interest in enforcing
Colorado’s campaign finance laws. Holland, 457 F. Supp. 3d at
989-91. Thus, the court held that allowing any person to file a
complaint alleging a campaign finance violation and requiring every
complaint to be resolved by an ALJ after a hearing violated the First
and Fourteenth Amendments. See id. at 998.
¶8 The Secretary did not appeal the Holland decision to the Tenth
Circuit Court of Appeals. As a party to that case, the Secretary was
bound by Holland and was thereby precluded from acting according
to section 9(2)(a) from that point forward.
¶9 Following Holland, the Secretary has proceeded — as it
must — as though section 9(2)(a) is no longer in effect. The
Secretary promulgated new emergency rules, which the General
Assembly later enacted in large part under section 1-45-111.7.
This new campaign finance enforcement scheme replaced section
9(2)(a)’s requirement that campaign finance complaints be
automatically referred to an ALJ. Instead, under the new statute,
when a campaign finance complaint is filed with the Secretary, the
5 Elections Division conducts an initial review to determine whether
to recommend dismissal of the complaint, provide the respondent
with an opportunity to cure the alleged violations, or conduct
further review. See § 1-45-111.7(3). If the Division determines that
the complaint was not timely filed; has not specifically identified
one or more violations of the article, the Act, or the Rules; or does
not assert facts sufficient to support a factual or legal basis for an
alleged violation, then the Division files a motion to dismiss with the
deputy secretary.2 § 1-45-111.7(3)(b)(I). If a complaint is not
dismissed during either its initial review or by means of the cure
proceedings, the Division determines whether to file a complaint
with a hearing officer. § 1-45-111.7(5).
2 The Secretary may appoint a deputy secretary pursuant to section
24-21-105, C.R.S. 2024. The Act defines “[d]eputy secretary” as “the deputy secretary of state appointed pursuant to section 24-21- 105 or the deputy secretary’s designee.” § 1-45-111.7(1)(b), C.R.S. 2024. The Rules define “[d]eputy secretary” as “the person appointed by the Secretary of State as the deputy secretary of state pursuant to section 24-21-105, C.R.S., with authority under section 1-45-111.7, C.R.S., or such other person as may be designated by the deputy secretary of state as the deputy secretary’s designee under section 1-45-111.7(1)(b), C.R.S.” Sec’y of State Rule 1.7, 8 Code Colo. Regs. 1505-6.
6 ¶ 10 Since the enactment of section 111.7, the supreme court has
not addressed the constitutionality of section 9(2)(a). Watchdog II,
¶ 23 n.3, 450 P.3d at 287 n.3 (noting that Holland is not binding on
the supreme court and concluding that it “need not address the
constitutionality of section 9(2)(a)’s enforcement provision” because
even if it were to assume that section 9(2)(a) is constitutional,
Watchdog’s action against Alliance was time barred). A division of
our court also declined to address the constitutionality of section
9(2)(a) in 2020. Day v. Chase for Colo., 2020 COA 84, ¶ 11, 479
P.3d 1, 3 (noting that Holland is not binding on Colorado state
courts and declining to reach the question of the constitutionality of
section 9(2)(a)). Significantly, neither party to this appeal asks us
to address the constitutionality of section 9(2)(a). Indeed, Watchdog
argues that “this is not the proper forum” to do so, and the
Secretary agrees that we need not reach the issue.
C. The Administrative Proceedings in this Case
¶ 11 In October 2022, Watchdog filed the complaint against
Alliance that is at issue in this appeal using the procedures in
section 1-45-111.7. Watchdog filed the complaint with the Division
and stated it was filing it pursuant to both article XXVIII and the
7 Act. Watchdog’s complaint alleged that Alliance had failed “to file
required reports and statements per [section] 1-45-108[, C.R.S.
2024].” Watchdog attached a five-page document to its complaint
elaborating on its claims for relief. First, Watchdog alleged that
Alliance had failed to file an annual report on May 2, 2022. Second,
Watchdog alleged that Alliance had failed to maintain an active
registered agent and, relatedly, had failed to file an amended
committee registration.
¶ 12 The Division moved to dismiss Watchdog’s complaint pursuant
to section 1-45-111.7(3). Among other things, the Division argued
that the complaint was not timely filed.
¶ 13 The deputy secretary dismissed Watchdog’s complaint on
grounds different from those presented in the Division’s motion to
dismiss. Although the deputy secretary found that Watchdog’s
allegation about Alliance’s failure to report in May 2022 was timely,
he also found that there was “no legal or factual basis to hold
[Alliance] responsible for not filing a report at that time.” The
deputy secretary also found that there was “no basis to find that
[Alliance] failed to file a required amended registration statement
listing a new registered agent.”
8 ¶ 14 Under the judicial review provision in section 1-45-
111.7(3)(b)(I), Watchdog appealed the deputy secretary’s dismissal
order to the district court.
D. The District Court’s Decision
¶ 15 Before the district court, Watchdog argued that section 1-45-
111.7 was unconstitutional. Watchdog also argued that the deputy
secretary erred by dismissing its complaint against Alliance.
¶ 16 After a hearing, the district court ruled in favor of the deputy
secretary. First, in conclusory fashion, the court rejected
Watchdog’s constitutional challenges to section 111.7. Next, based
on a review of the administrative record, the court found that the
Secretary had discretion to conclude that Alliance (1) was not
required to file a report for the May 2022 timeframe and (2) had a
registered agent. Finally, in affirming the deputy secretary’s
dismissal of Watchdog’s complaint against Alliance, the court
concluded that “the Deputy Secretary did not act in an arbitrary or
capricious manner.”
9 E. The Parties’ Appellate Arguments in this Case
¶ 17 On appeal, Watchdog challenges the constitutionality of
section 1-45-111.7, both on its face and as applied.3 It also
maintains that the deputy secretary erred by dismissing its
complaint against Alliance. We disagree, except with regard to
Watchdog’s contention that Alliance failed to file a required report.
II. Standard of Review
¶ 18 Section 24-4-106, C.R.S. 2024, governs judicial review of this
agency action. See § 1-45-117(3)(b)(I) (“The final determination by
the deputy secretary on the motion to dismiss constitutes final
agency action and is subject to judicial review by a state district
court under section 24-4-106.”). We may set aside an agency’s
action if we conclude that the agency acted contrary to law. No on
EE, ¶ 15, 558 P.3d at 675; § 24-4-106(11)(e) (applying the standard
of review set forth in section 24-4-106(7) to judicial review of agency
action that is directed to the court of appeals); § 24-4-106(7)(b)
(listing several bases for a reviewing court to set aside an agency
action).
3 Watchdog does not challenge the constitutionality of the Rules.
10 III. The Constitutionality of Section 1-45-111.7
A. Facial Challenge
¶ 19 Watchdog contends that section 1-45-111.7 “substitutes
agency discretion for constitutional mandates, putting the entire
statute in conflict with [a]rticle XXVIII.” More specifically, Watchdog
argues that section 111.7 is unconstitutional because it conflicts
with section 9(2)(a) and because it “violates fundamental principles
of separation of powers and due process of law.”4
1. Standard of Review and Principles of Interpretation
¶ 20 Watchdog’s facial challenge to section 1-45-111.7 presents a
pure question of law, which we review de novo. See Watchdog I,
¶ 19, 409 P.3d at 361; see also Heotis v. Colo. State Bd. of Educ.,
2019 COA 35, ¶ 16, 457 P.3d 691, 694-95 (citing Coffman v.
4 To the extent Watchdog challenges the constitutionality of section
1-45-111.7 on the grounds that it conflicts with article XXVIII, sections 1, 6, 7, 10, 11, or 12, of the Colorado Constitution, we decline to reach these undeveloped assertions. See, e.g., Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12, 490 P.3d 598, 611 n.12, aff’d, 2021 CO 56, 489 P.3d 735.
11 Williamson, 2015 CO 35, ¶ 13, 348 P.3d 929, 934).5 Because we
presume a statute is constitutional, we construe it that way
whenever a reasonable and practical construction allows. Morris-
Schindler, LLC v. City & Cnty. of Denver, 251 P.3d 1076, 1084 (Colo.
App. 2010).
¶ 21 If a statute is susceptible of different interpretations, we adopt
the one which comports with constitutional standards. People v.
Bondurant, 2012 COA 50, ¶ 13, 296 P.3d 200, 206.
¶ 22 In both facial and as-applied challenges, the challenging party
must prove that a statute is unconstitutional beyond a reasonable
doubt. See Heotis, ¶ 17, 457 P.3d at 695.
2. Section 9(2)(a) of the Article and Section 111.7 of the Act
¶ 23 Although neither party asks us to reach the constitutionality
of section 9(2)(a) under the United States Constitution, Watchdog
asks us to declare that section 111.7 is unconstitutional under the
5 A party is not required to raise a facial constitutional challenge in
agency proceedings to preserve it for judicial review because an agency does not have authority to determine that issue. See Horrell v. Dep’t of Admin., 861 P.2d 1194, 1198 (Colo. 1993); Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 504 (Colo. App. 2010) (addressing a challenge to Colorado Constitution, article XXVIII, section 2(10)(a)(I)).
12 Colorado Constitution precisely because section 111.7 conflicts with
section 9(2)(a). We are not persuaded.
¶ 24 As a party to the Holland decision, the Secretary has been
barred from enforcing Colorado’s campaign finance laws under
section 9(2)(a). Thus, in this case, section 111.7 does not conflict
with section 9(2)(a) because section 9(2)(a) cannot be enforced,
unless a party other than the Secretary asserts that the Secretary is
not bound by the Holland court’s finding of unconstitutionality,
which Watchdog has declined to do. In other words, even though
Colorado courts are not bound by Holland, the Secretary is and has
been prohibited from operating in accordance with section 9(2)(a)
since 2018. In the void created by Holland, section 9(1)(b) of article
XXVIII required the Secretary to create a new enforcement scheme
for Colorado’s campaign finance laws. (We note in passing that the
Holland court declined to permanently enjoin the Secretary from
enforcing section 9(2)(a) precisely because the Secretary promptly
promulgated the Rules detailing a new enforcement scheme.) After
the emergency Rules were promulgated, the General Assembly
could enact section 111.7 to legislatively implement them.
13 Accordingly, article XXVIII, the Act, and the Rules now require the
Secretary to enforce section 111.7.
¶ 25 Because the Secretary cannot enforce section 9(2)(a), we
cannot discern any conflict between that defunct enforcement
mechanism and the new enforcement mechanism contained in
section 111.7. Therefore, Watchdog has not succeeded in proving
beyond a reasonable doubt that section 111.7 is unconstitutional
on its face on the ground that it conflicts with section 9(2)(a).
3. Separation of Powers and Due Process
¶ 26 Watchdog contends, as a matter of first impression, that
section 111.7 is unconstitutional on its face because it violates the
separation of powers doctrine of the Colorado Constitution, as well
as principles of due process. Indeed, Watchdog contends that
section 111.7 meets the “very definition of tyranny.” Again, we
disagree.
¶ 27 The Colorado Constitution divides the powers of government
among three branches — legislative, executive, and judicial. Colo.
Const. art. III. The doctrine of separation of powers generally
prohibits one branch from exercising powers that the constitution
exclusively vests in another branch. Crowe v. Tull, 126 P.3d 196,
14 205 (Colo. 2006). However, the separation of powers doctrine “does
not require a complete division of authority among the three
branches.” Bondurant, ¶ 19, 296 P.3d at 207 (quoting Crowe, 126
P.3d at 205). Instead, in a separation of powers analysis, we ask
whether one branch has usurped powers vested in another branch.
Baum v. Indus. Claim Appeals Off., 2019 COA 94, ¶ 27, 487 P.3d
1079, 1086.
¶ 28 When, as here, the final agency decision is subject to judicial
review, agency adjudicative procedures do not violate separation of
powers principles. See, e.g., Dee Enters. v. Indus. Claim Appeals
Off., 89 P.3d 430, 434 (Colo. App. 2003).6 We are, in fact, reviewing
the Secretary’s dismissal of Watchdog’s complaint in this very case.
¶ 29 Watchdog further contends that due process requires
adjudication of complaints by an impartial decision-maker and that
due process requires notice and an opportunity to be heard before a
6 While we note Watchdog’s mention of Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024), and Securities & Exchange Commission v. Jarkesy, 603 U.S. 109 (2024), for the proposition that section 1-45-111.7 is unconstitutional, Watchdog not only fails to develop its argument on these bases but also fails to show how these cases apply to this case brought under Colorado’s Administrative Procedure Act, and not the federal Administrative Procedure Act, addressed in those Supreme Court decisions.
15 “neutral adjudicator.” Similar challenges have been raised — and
rejected — to the constitutionality of the workers’ compensation
administrative appellate procedures. See Sanchez v. Indus. Claim
Appeals Off., 2017 COA 71, 411 P.3d 245 (rejecting claimant’s
argument that the Division of Workers’ Compensation’s use of
executive-appointed ALJs and Panels rather than judicial branch
officers violated his fundamental right to a fair hearing); Kilpatrick v.
Indus. Claim Appeals Off., 2015 COA 30, 356 P.3d 1008; Youngs v.
Indus. Claim Appeals Off., 2012 COA 85M, 297 P.3d 964; Aviado v.
Indus. Claim Appeals Off., 228 P.3d 177 (Colo. App. 2009); MGM
Supply Co. v. Indus. Claim Appeals Off., 62 P.3d 1001 (Colo. App.
2002). We perceive no reason to reject the reasoning of these cases,
including Dee Enterprises, based on Watchdog’s due process
challenges to section 111.7.
¶ 30 Accordingly, Watchdog has not succeeded in proving beyond a
reasonable doubt that section 111.7 is unconstitutional on its face
on the grounds that it violates either principles of separation of
powers or due process.
16 B. As-Applied Challenge
¶ 31 Watchdog contends in one paragraph that section 1-45-111.7
is unconstitutional as applied. To the extent Watchdog’s argument
relies on “incorporat[ion] by reference [to] arguments from [its]
previous briefs,” it may not do so under the Colorado Appellate
Rules. See C.A.R. 28(a) (requirements for an opening brief).
Accordingly, because Watchdog fails to develop its as-applied
challenge, we decline to address it. See, e.g., Woodbridge Condo.
Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12, 490 P.3d
598, 611 n.12, aff’d, 2021 CO 56, 489 P.3d 735.
IV. The Deputy Secretary’s Dismissal of Watchdog’s Complaint
¶ 32 Watchdog contends that the district court erred by affirming
the deputy secretary’s dismissal of its complaint. It argues that its
complaint alleged sufficient facts that Alliance failed to (1) file a
mandatory report and (2) maintain an active registered agent. We
agree with the former and disagree with the latter.
A. Standard of Review and Principles of Interpretation
¶ 33 We review questions of constitutional and statutory
interpretation de novo. Gessler v. Colo. Common Cause, 2014 CO
44, ¶ 7, 327 P.3d 232, 235. We also review an administrative
17 agency’s conclusions of law de novo. Campaign Integrity Watchdog
v. Colo. Republican Comm., 2017 COA 126, ¶ 9, 488 P.3d 284, 286.
¶ 34 In construing statutes and citizen initiatives, we attempt to
give effect to the General Assembly’s and the electorate’s intent,
respectively. See Teague v. People, 2017 CO 66, ¶ 8, 395 P.3d 782,
784 (statute); People v. Lente, 2017 CO 74, ¶ 16, 406 P.3d 829, 832
(citizen initiative). We read words and phrases in context, § 2-4-
101, C.R.S. 2024, according to their plain and ordinary meanings,
Teague, ¶ 8, 395 P.3d at 784; Lente, ¶ 16, 406 P.3d at 832. If the
language is clear, we apply it as written. Teague, ¶ 8, 395 P.3d at
784; Lente, ¶ 16, 406 P.3d at 832.
1. Constitutional Interpretation
¶ 35 In interpreting a constitutional amendment like article XXVIII,
we must “give effect to the electorate’s intent in enacting the
amendment.” Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo.
2004). In so doing, we must give words their “ordinary and popular
meaning in order to ascertain what the voters believed the
amendment to mean when they adopted it.” Id. We also consider
constitutional amendments as a whole and, “when possible, adopt
an interpretation of the language which harmonizes different
18 constitutional provisions rather than an interpretation [that] would
create a conflict between such provisions.” Gessler v. Smith, 2018
CO 48, ¶ 18, 419 P.3d 964, 969 (quoting Zaner v. City of Brighton,
917 P.2d 280, 283 (Colo. 1996)).
¶ 36 When an amendment’s language is clear and unambiguous,
the amendment must be enforced as written. Id. Language is
ambiguous when it is reasonably susceptible of multiple
interpretations. Id. If the language is not ambiguous, “[w]e do not
resort to extrinsic modes of statutory construction.” Colo. Ethics
Watch v. Clear the Bench Colo., 2012 COA 42, ¶ 10, 277 P.3d 931,
933 (quoting Colo. Ethics Watch v. City & Cnty. of Broomfield, 203
P.3d 623, 625 (Colo. App. 2009)).
2. Statutory Interpretation
¶ 37 “The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context
in which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997). We read the statutory scheme as a whole to give
“consistent, harmonious, and sensible effect to all parts of the
statute.” Salazar v. Indus. Claim Appeals Off., 10 P.3d 666, 667
19 (Colo. App. 2000). We will not adopt a statutory interpretation that
leads to an illogical or absurd result or is at odds with the
legislative scheme. Bryant v. Cmty. Choice Credit Union, 160 P.3d
266, 274 (Colo. App. 2007).
3. Regulatory Interpretation
¶ 38 The construction of administrative regulations such as the
Rules is guided by the same principles that apply to statutory
interpretation. Gomez v. JP Trucking, Inc., 2022 CO 21, ¶ 27, 509
P.3d 429, 436. Consequently, our foremost goal in interpreting a
regulation is to give effect to the promulgating body’s intent. Id. As
with a statute, if the language of a regulation is unambiguous, we
enforce it as written, giving the words and phrases their common
and ordinary meanings. Id. In such a situation, we may not rely on
other canons of construction. Id. The amount of deference a
reviewing court affords an agency’s interpretation of its regulation
depends on whether the regulatory language is ambiguous or
unambiguous. Id. at ¶¶ 28-30, 509 P.3d at 436-37.
20 B. Alliance’s Alleged Failure to Comply with Mandatory Reporting Requirements
¶ 39 Watchdog contends that the Secretary “exceeded [her]
authority by failing to enforce disclosure requirements mandated by
express constitutional, statutory, and regulatory language, which it
is powerless to modify or ignore.” We agree.
¶ 40 In its October 2022 complaint filed with the Election Division,
Watchdog alleged that Alliance failed to file campaign finance
reports in 2022 as required by section 1-45-108.
¶ 41 The Division responded that because it considered Alliance
“defunct,” it did not assign Alliance a report to file in 2022. In other
words, the Division responded that it did not require Alliance to file
a report in 2022.
¶ 42 In granting the Division’s motion to dismiss, the deputy
secretary concluded that Alliance was not required to file disclosure
reports in 2022 because it had been “essentially inactive since the
2014 November election,” had not been assigned a report in 2022,
and was eligible for administrative termination under the Rules.
21 ¶ 43 The district court held that the deputy secretary did not
exceed his authority because it agreed that Alliance was not
required to file a report in May 2022.
¶ 44 Article XXVIII, the Act, and the Rules contain registration and
reporting requirements for political committees such as Alliance.
For example, the Act requires political committees to report
“expenditures made, and obligations entered into.” Watchdog I,
¶ 16, 409 P.3d at 361; § 1-45-108(1)(a)(I). “[T]he requirement to
disclose and file reports is unconditionally imposed until a
committee is terminated.” Patterson Recall Comm., Inc. v. Patterson,
209 P.3d 1210, 1217 (Colo. App. 2009). A political committee may
be terminated by filing a termination report if, among other things,
the committee’s TRACER7 account has a zero balance, indicating
that it has no cash or assets on hand and has no outstanding
debts, penalties, or obligations. Sec’y of State Rule 12.3.2, 8 Code
7 The Colorado Secretary of State’s Office developed a website called
TRACER, an acronym for “Transparency in Contribution and Expenditure Reporting,” to increase transparency of the campaign finance system to interested third parties and the efficiency of reporting for political candidates, committees, and organizations. Campaign Integrity Watchdog v. Coloradans for a Better Future, 2016 COA 56M, ¶ 8 n.4, 378 P.3d 852, 855 n.4.
22 Colo. Regs. 1505-6. The Rules also provide a mechanism for
“[a]dministrative committee terminations” that allows an officer to
terminate a committee if the committee “fails to file any required
reports for six consecutive reporting periods or 18 months,
whichever is shorter, or files ‘zero’ reports or reports with no activity
for the same time period in accordance with the procedures set out
in the State Administrative Procedure Act.” Id. at Rule 12.4.
¶ 45 When Watchdog filed its complaint in October 2022, Alliance
had an outstanding penalty, was not eligible for termination under
Rule 12.3, and had not been terminated under Rule 12.4.8
¶ 46 The Secretary argues that applying the mandatory reporting
requirements to Alliance in these circumstances would raise
significant constitutional concerns because Colorado must still
ensure that its regulation of committees comports with “exacting
scrutiny.” If we were to adhere to this proposition, though, it would
8 In 2014, an ALJ ordered Alliance to pay $9,650 in penalties based
on a complaint filed by Watchdog. See All. for a Safe & Indep. Woodmen Hills v. Campaign Integrity Watchdog, LLC, 2019 CO 76, ¶ 8, 450 P.3d 282, 284 (Watchdog II). The supreme court noted previously that the Secretary invoiced Alliance for the $9,650 in penalties, “but the Secretary does not appear to have otherwise pursued enforcement of the ALJ’s order.” Id. at ¶ 10, 450 P.3d at 285.
23 make it difficult, if not impossible, for any political committee to
know in advance whether it would be required to file otherwise
mandatory reports. More fundamentally, though, the Secretary’s
constitutional concerns are misplaced because while the Secretary
contends that “Alliance qualified for administrative termination,” no
officer had actually terminated Alliance on these grounds. Because
Alliance is not eligible for termination under Rule 12.3 and had not
been terminated under Rule 12.4, we find no authority for the
Division to sua sponte declare a committee “defunct” and exempt it
from mandatory reporting requirements. Under these
circumstances, construing the definition of “political committee” to
include an organization that (1) has an outstanding penalty; (2) is
not eligible for termination under Rule 12.3; and (3) has not been
terminated under Rule 12.4 does not raise significant constitutional
concerns. This is especially so when the Secretary has a significant
interest in ensuring that penalties are paid or determining they
cannot be paid.
¶ 47 On remand, while the Secretary must require Alliance to
comply with reporting obligations unless and until Alliance is
terminated, the Secretary nevertheless retains discretion when
24 determining appropriate penalties, if any, for any unfulfilled
obligations. See Patterson, 209 P.3d at 1216.
¶ 48 Because the deputy secretary erred by dismissing this part of
Watchdog’s complaint, we reverse this portion of the order and
remand the case for further proceedings.
C. Alliance’s Alleged Failure to Maintain a Registered Agent
¶ 49 Next, Watchdog contends that the Secretary “arbitrarily and
capriciously exempted [Alliance] from established practice requiring
committees to maintain current contact information and report
changes within ten days, as required by law and regulation.” We
¶ 50 In its complaint to the Election Division, Watchdog alleged
that Alliance had failed to “maintain an active registered agent” as
required by section 1-45-108(3) and Rules 9.2.2 and 12.1.
Watchdog further alleged that Alliance’s registered agent, Ryan Call,
had been disbarred; “fled Colorado in 2020”; and “failed to update
his address or substitute another natural person as registered
agent for the committee” and that Alliance’s listed address was “no
longer actively monitored.”
25 ¶ 51 In its motion to dismiss, the Election Division agreed that Call
had been disbarred and had “apparently relocated to Utah in 2019”
and conceded its “difficulty” in contacting him.
¶ 52 In granting the Division’s motion to dismiss, the deputy
secretary concluded that Alliance still had a registered agent as
required by the Rules because Call was not required to be a
Colorado resident and his disbarment was irrelevant.
¶ 53 The district court affirmed this portion of the deputy
secretary’s order, concluding that there was insufficient evidence to
find that Call was no longer Alliance’s registered agent.
¶ 54 Under the Act, a political committee must have “[a] natural
person authorized to act as a registered agent.” § 1-45-108(3)(b).
According to the Rules, “[r]egistered agent” means “a natural person
or candidate designated to receive mailings, to address concerns
and questions regarding a committee, and is responsible for timely
filing campaign finance reports.” Sec’y of State Rule 1.28, 8 Code
Colo. Regs. 1505-6.
¶ 55 While the Rules state that “[a] committee must have an active
registered agent at all times,” neither the Act nor the Rules define
“active registered agent.” Id. at Rule 9.2.2 (emphasis added).
26 ¶ 56 The Rules require that changes to a committee’s registered
agent must be reported within ten days. Id. Relatedly, the Rules
require any changes to a committee’s registration statement (which
includes naming the committee’s registered agent) to be reported
within ten days. Id. at Rule 12.1.
¶ 57 In its complaint, Watchdog’s allegations regarding Alliance not
having a registered agent were that Call had fled Colorado and had
been disbarred. We agree with the district court that these
allegations, without more, were insufficient to demonstrate that
Alliance did not have a registered agent.
V. New Contentions Raised During Oral Argument
¶ 58 Finally, we note — but do not address — two significant
arguments raised for the first time during oral argument. McGihon
v. Cave, 2016 COA 78, ¶ 10 n.1, 410 P.3d 647, 651 (“We do not
consider arguments that were not raised in the district court[,] [n]or
do we consider arguments first asserted in oral argument.”)
(citations omitted).
¶ 59 First, for the first time during oral argument, the Secretary
argued that Alliance is not a political committee. More specifically,
the Secretary claimed that “as of 2019 the Secretary had made the
27 determination in a final agency order that the Alliance no longer
qualified as a political committee.” Not only was this contention not
raised until oral argument, which deprived Watchdog of any
opportunity to meaningfully respond, but it is also not clear that
the record supports it.
¶ 60 Second, for the first time during oral argument Watchdog
argued that employees of the Secretary are engaged in the
unauthorized practice of law. More specifically, Watchdog claimed
that the Secretary was “acting unlawfully” because some of her
employees are engaged in the unauthorized practice of law. Again,
we do not address arguments raised for the first time during oral
argument. See id.
VI. Disposition
¶ 61 The district court’s order is affirmed in part and reversed in
part, and the case is remanded for further proceedings consistent
with this opinion.
JUDGE TOW and JUDGE BERNARD concur.