Cases of Note Archive 2012

Raptor Educ. Found., Inc. v. State, Colorado Court of Appeals No. 11CA2446 (December 27, 2012)

Holding: An amendment to a special license plate statute, expanding eligibility beyond the membership of the sponsoring organization, violated the contract clauses of the state and federal constitution.

Case Summary: The department of revenue entered into a contract with the Raptor Education Foundation (REF) for issuance of special license plates only to REF members.  A dispute ensued over who should be eligible to receive the plates, which dispute was settled by the court ordering the department to issue the plates only to REF members.  In 2009, the General Assembly amended the statute to direct the department to issue the plates not only to REF members but also to members of the Rocky Mountain Raptor Program.  REF sued and won on the basis that the legislation unconstitutionally deprived it of vested contractual rights.

In re Estate of Beren, Colorado Court of Appeals No. 10CA2120 (November 21, 2012)

Case Summary: The deceased died in 1996. In 2001, the surviving spouse chose to take an elective share in lieu of the life estate left her in the will. The value of the elective share and other issues were litigated until, in 2009, the personal representative submitted his final petition with compensation request. The court allowed for an "equitable adjustment" to the spouse's elective share to address the increase in the estate value between death and distribution (approx. $24 million).  The Probate Code has provisions to protect a beneficiary from decreases in value between death and distribution, and the corollary is that the same constant should hold for any increases in value between death and distribution.  The court held that the existing Probate Code provides a precise and detailed mechanism for calculating the elective share, without regard to increases or decreases in the estate's value during administration.

In re Harte, Colorado Court of Appeals No. 11CA1815 (October 25, 2012)

Holding: The successful completion of a deferred judgment for DUI, which is explicitly excluded from the definition of a "conviction" under the DUI statutes, is nonetheless a "conviction" for purposes of the record sealing statute that generally allows only arrest and criminal records that do not relate to "convictions" to be sealed and specifically prohibits the sealing of records relating to a DUI conviction, and the records relating to such a deferred judgment therefore may not be sealed.

Case Summary: Paige Harte sought to have records of her DUI case sealed under section 24-72-308, C.R.S. (the record sealing statute), which generally allows criminal records to be sealed "in any case which was completely dismissed" and specifically prohibits sealing of records relating to a "conviction" for DUI, a sexual offense, or certain other types of offenses. The trial court dismissed the underlying DUI case after Ms. Harte successfully completed a deferred judgment, but denied her request to seal the case records on the ground that for purposes of the record sealing statute "entry of a guilty plea . . . even pursuant to a stipulation for a deferred judgment, constitutes a conviction and precludes sealing." Ms. Harte appealed the denial of the request to seal the records, and the Colorado Court of Appeals affirmed.

The DUI statute states that "a person ... [is] not ... convicted if the person has successfully completed a deferred adjudication." But the Court of Appeals, noting that the term "conviction" is defined differently for purposes of different statutes, held that the definition of "conviction" in the DUI statute, which excludes a successfully completed deferred judgment, did not apply to the sealing statute, that a successfully completed deferred judgment for DUI is a "conviction" for purposes of that statute, and that the records of Ms. Harte's successfully complted deferred judgment for DUI therefore could not be sealed. The Court examined the legislative history of the record sealing statute and found that the General Assembly "had determined in the [record] sealing statute that . . . the public’s safety interest in having available an offender’s alcohol-related driving record outweighs any privacy interest of that offender." The Court also relied on an earlier case in which the Colorado Supreme Court had interpreted the term "conviction" as used in a provison of the record sealing statute that prohibits sealing of records relating to a "conviction" of a sexual offense as including a succesfully completed deferred judgment for such an offense.

In a dissenting opinion, Judge Webb noted that the case was distinguishable from the sexual offense case relied upon by the Court because there was no statutory definition of a "conviction" under the sexual assault statute and concluded that the rules of statutory construction under which more recent enactments prevail over earlier ones, specific statutes prevail over general statutes, statutory exceptions are to be narrowly construed, and that all statutory provisions should given effect when possible weighed against the Court's opinion.

Justus v. People, Colorado Court of Appeals No. 11CA1507 (October 11, 2012)

Case Summary: In response to a significant decrease in PERA's funding level, the General Assembly enacted Senate Bill 10-001, which changed the formula for calculating the COLA for PERA retirees in a manner that reduced the COLA for many PERA retirees. Several PERA retirees filed a lawsuit in Denver District Court, alleging that the provisions of the bill that reduced their COLA violated the Contract Clause of the Colorado constitution and the Contract, Due Process, and Takings Clauses of the United States constitution. The retirees filed a motion for partial summary judgment on the state Contract Clause claim, and PERA filed a motion for summary judgment, arguing that: (1) The retirees had no right to an unchangeable COLA; (2) Even if they had such a right, the changes to the COLA in Senate Bill 10-001 did not substantially impair that right; and (3) The changes to the COLA were reasonable and necessary to serve a legitimate public purpose. The District Court granted PERA's motion for summary judgment, holding that the retirees did not have a contractual right to the specific COLA formula in place when they retired and that they therefore also did not have the property right to that specific COLA needed to support their federal Due Process or Takings claims. Because the District Court ruled in PERA's favor on the contractual right issue, it did not consider whether the changes to the COLA formula made in Senate Bill 10-001 substantially impaired a contractual right or were reasonable and necessary to serve a legitimate public purpose. The retirees appealed.

The Colorado Court of Appeals reversed the District Court's grant of summary judgment, holding that the retirees did have a contractual right to have their retirement benefits calculated using the COLA formula in effect when they retired. But the Court did not grant the retirees summary judgment on the Contract Clause claim. Instead the Court of Appeals remanded the case, instructing the District Court to determine whether or not the changes to the COLA in Senate Bill 10-001: (1) Substantially impaired the retirees' contractual right; or (2) Were reasonable and necessary to serve a legitimate public public purpose.

Colo. Dept. of Pub. Health & Env. v. United States, United States Court of Appeals for the Tenth Circuit No. 09-1554 (September 5, 2012)

Case Summary: United States Court of Appeals for the Tenth Circuit (affirming the United States District Court for the District of Colorado's decision to dismiss Colorado's claims against the United States).

Since the 1950s, the United States has stored chemical weapons at the Army's weapons depot located near Pueblo. Afer extending the deadline a number of times, Congress has mandated that the Army destroy those weapons by December 31, 2017. Separately, Congress authorized Colorado to regulate hazardous waste in the state. Invoking that authority, the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division, declared the chemical weapons stored at the depot awaiting destruction to be hazardous waste. In this action, Colorado sought to enforce against the depot Colorado's regulation prohibiting storage of any hazardous waste.

The court concluded that federal law, 50 U.S.C. §§ 1512a and 1521, preempts Colorado's attempt to regulate the destruction process by enforcing its prohibition on the storage of hazardous waste in 6 Colo. Code Regs. 1007-3, § 268.50 against the depot. The United States cannot comply with the state regulation prohibiting the storage of hazardous waste and also comply with the mandate of Congress on how and when the chemical weapons can be destroyed.

Colo. Common Cause v. Gessler, Colorado Court of Appeals No. 11CA2405 (August 30, 2012)

Case Summary: This is a case of note because it addresses whether an administrative rule promulgated by the Secretary of State (Secretary) in the area of campaign finance is in conflict with state constitutional requirements. The rule has also attracted significant interest among members of the General Assembly who follow election matters. Under section 2 (10) (a) of Article XXVIII of the state constitution, an issue committee, the name given to an entity that supports or opposes ballot issues or ballot questions, must register with the Secretary and file public disclosure reports when it accepts or makes contributions or expenditures in excess of $200 to support or oppose any ballot issue or ballot question. In Sampson v. Buescher, 625 P.3d 1247 (10th Cir. 2010), the Tenth Circuit Court of Appeals held that the $200 threshold unconstitutionally burdened the First Amendment rights of association when applied to a small group of private citizens who had opposed a local annexation petition. However, the Tenth Circuit declined to draw a bright line below which an issue committee would not be required to report contributions and expenditures.

The Secretary promulgated a rule, Rule 4.27, to resolve uncertainty about registration and disclosure requirements resulting from the Sampson case. Rule 4.27 modified the requirements of section 2 (1) (a) of Article XXVIII by changing the threshold for reporting contributions and expenditures by issue committees from $200 to $5,000. The rule further stated that contributions received and expenditures made before reaching the $5,000 threshold are not required to be reported. Plaintiffs Colorado Common Cause and Colorado Ethics Watch brought an action challenging the legality of Rule 4.27. The trial court held that the Secretary had exceeded his rulemaking authority by promulgating Rule 4.27.

On appeal, the Court of Appeals concluded that Rule 4.27 effectively modified and contravened Colorado campaign finance law by eliminating certain requirements of Article XXVIII and the Fair Campaign Practices Act. The Court rejected the Secretary's argument that Sampson created a gap in the law that obliged him to promulgate a rule. Instead, the Court of Appeals concluded that Rule 4.27 exceeded the Scretary's authority because it rendered all of the registration and disclosure requirements completely inoperative for all issue committees prior to reaching the $5,000 threshold even though Sampson rendered the requirements inoperative only in cases with similar factual circumstances to those of the Sampson plaintiffs. Because Rule 4.27 invalidated the requirements imposed on issue committees far beyond what Sampson required, the Secretary exceeded his lawful authority in promulgating the Rule 4.27 and the Court declared the rule void.

Colo. Off-Hwy. Vehicle Coal. v. Colo. Parks & Wildlife Bd., Colorado Court of Appeals No. 11CA1988 (August 30, 2012)

Case Summary: In a case construing the open meetings law that is of significant policy interest to state and local public bodies, the Court of Appeals held that a public body may cure a previous violation of the Open Meetings Law. The Colorado Off-highway Vehicle Coalition (Coalition) sent the Board of Parks and Outdoor Recreation (Board), letters alleging that the Board had violated the Open Meetings Law by excluding the public from three closed meetings at which the Board had discussed proposed changes to the off-highway vehicle program (Program). After receiving the letters, the board held a regularly scheduled meeting in compliance with the Open Meetings Law and took public comments on and unanimously approved the proposed changes.

After the meeting, the Coalition sued the Board, alleging that the changes to the program that it had adopted were invalid because the Board had initially discussed them in closed meetings that violated the Open Meetings Law. The Board admitted the violations, and the Coalition moved for summary judgment. In response, the Board argued that it had cured its Open Meetings Law violations by holding the subsequent regularly scheduled meeting. The trial court granted summary judgment to the Board, rejecting the Coalition's argument that the Board had no right to cure the violations and that the regularly scheduled meeting had been nothing more than an "orchestrated, unanimous rubber stamping" of decisions made at the prior closed meetings and holding that the Board could legally cure prior violations and had in fact done so.

The Court of Appeals affirmed the trial court's granting of summary judgment to the Board. The Court reasoned that because the purpose of the Open Meetings Law is to require open decision-making, not to permanently condemn a decision made in violation of the statute, a public body may cure a previous violation of the law by holding a subsequent complying meeting that is not a mere rubber stamping of an earlier decision.

Hanson v. Colo. Dept. of Rev., Colorado Court of Appeals No. 11CA1351 (August 30, 2012)

Case Summary: A citizen saw a car drive erratically and strike a highway sign. The citizen followed the car to a house and called the police. Deputy Ashby arrived and looked through the garage window. Seeing the damaged car, he pushed through an open door. He found a woman who said her boyfriend had come home and was acting strangely. She got her boyfriend, Hanson, and brought him to Ashby. Hanson appeared drunk and refused to take the test for blood alcohol. He was issued a notice of license revocation.

At the license-revocation hearing, Hanson subpoenaed Ashby who failed to appear. Hanson argued that Ashby's entering his home without a warrant violated the Fourth mendment, and therefore, the evidence should be suppressed. But Ashby's failure to appear made it difficult to make this case. The hearing officer quashed the subpoena and revoked the license based largely on Ashby's written report.

The judicial branch enforces certain constitutional provisions, including the Fourth Amendment's rule against entering a home without a warrant, by the exclusionary rule. If a peace officer violates a constitutional right, the court will exclude any evidence obtained because of the violation. In this case, the court held that the exclusionary rule does not apply to hearings to revoke a driver's license. The court held that an administrative hearing is remedial not criminal in nature. Therefore, evidence will not be excluded based upon a peace officer's warrantless entry of a home.

This is a case of note for two reasons: First, drunk driving enforcement is a matter of significant policy interest. Second, the case appears to overturn the holding in Peterson v. Tipton. See Peterson v. Tipton, 833 P.2d 830 (Colo. Ct. App. 1992). Although the Peterson case didn't deal specifically with the Fourth Amendment, the court held that evidence should be excluded for a constitutional violation.

Colo. Oil & Gas Conservation Comm'n v. Grand Valley Citizens' Alliance, Colorado Supreme Court No. 10SC532 (June 25, 2012)

Case Summary: The Colorado Supreme Court held that section 34-60-108 (7), C.R.S., did not require the Colorado Oil and Gas Conservation Commission (commission) to hold a hearing on the petition of a citizens' group to oppose issuance of a drilling permit. The Supreme Court reversed the Court of Appeals, which had held that the section 34-60-108 (2) requirement that the commission hold a hearing on "any matter within the jurisdiction of the Commission", applied not only to commission rules, regulations, and orders, but also to drilling permit-related petitions. The Supreme Court held that a reference in section 34-60-108 (7) to a "rule, regulation, order, or amendment thereof," limits the section 34-60-108 (7) hearing requirement to those matters, that section 34-60-106 (1) (f), C.R.S. grants the commission broad rule making authority to make rules governing drilling permit issuance, and that commission rules that allow only "the operator, surface owner, or the relevant local government" to request a permit hearing apply to petitions for permit-related hearings.

Justice Hobbs dissented, noting that the commission itself added a provision allowing participation by a "local government" to its rules in 2003 for the express purpose of "provid[ing] an opportunity ... to obtain a hearing on significant issues related to public health, safety and welfare, including the environment." Because the expense of litigating these issues might make a local government unwilling to seek such a hearing, Justice Hobbs would read the rules more expansively, in keeping with the Commission's stated "basis and purpose" of the 2003 amendments, so that a citizens' group could challenge a drilling permit applicant's evidence and cross-examine its witnesses at a hearing. Given the conflicting interpretations of the Supreme Court majority and Justice Hobbs regarding the applicable statutes, the case raises significant issues that the General Assembly may wish to consider clarifying through legislation.

Freedom from Religion Found., Inc. v. Hickenlooper, Colorado Court of Appeals No. 10CA2559 (May 10, 2012)

The Freedom from Religion Foundation, Inc. ("FFRF") and four Colorado citizens sued Governor John Hickenlooper claiming that six annual proclamations of a Colorado day of prayer issued by Governor Hickenlooper and former governors violate the preference clause of the Colorado Constitution, Art. II, Sec. 4, which states that preference may not be given in law to any religious denomination or mode of worship. This section is Colorado's equivalent of the United States Constitution's first amendment establishment clause. The Colorado Court of Appeals found in favor of FFRF and the four Colorado citizens, holding that the proclamations issued from 2004 to 2009 are governmental conduct that violates the preference clause. According to the court, under the Lemon test established by the United States Supreme Court, the predominant purpose of these proclamations is to advance religion and they thus constitute preferential treatment to religion in general. Also, looking through the eyes of a reasonable observer, the proclamations have the primary effect of promoting religion because they send the unequivocal message that the governor endorses the religious expressions embodied therein, thus promoting religion over nonreligion.

The governor argued that, since the United States Supreme Court has approved legislative prayer in Marsh v. Chambers, the Colorado Court of Appeals should similarly find that the proclamations for a Colorado day of prayer are constitutional. But the Colorado Court of Appeals held that legislative prayer and the proclamations at issue in this case are distinguishable from Marsh. The court held that the proclamations, unlike legislative prayer, are not a well-established part of Colorado's history, have a greater scope because they are addressed to the public generally, and have a different effect because they "encourage citizens to 'unite' with those who believe in God and pray to God for the benefit of our country, our state, our leaders, and our people." 

The case is remanded to the trial court to conduct additional proceedings in order to determine whether a permanent injunction should be issued to enjoin Governor Hickenlooper and his successors from issuing similar proclamations.

People ex rel. C.F., Colorado Court of Appeals No. 11CA0928 (April 26, 2012)

Over a three-day period, C.F., a minor, called three schools, leaving messages at each stating that "tomorrow morning, the ... school will be blown up," "tomorrow ... the school you know as CCV will be blown to s---," and "I will bomb the s--- out of your school". C.F. was charged with falsely reporting an explosive, weapon, or harmful substance under section 18-8-110, C.R.S., and interfering with the staff, faculty, or students of an educational institution under section 18-9-109 (2), C.R.S.

The trial court acquitted C.F. on both charges, finding that the district attorney failed to prove all of the elements. The district attorney appealed the trial court's decision.

On the first count, falsely reporting an explosive, weapon, or harmful substance under section 18-8-110, C.R.S., the defense argued that the statute requires an actor to expressly state that at the time of the report "a bomb ... has been placed in any public or private place...". The court of appeals agreed, writing that, while the defendant clearly stated that the schools would "be blown up" at a certain time, the statute requires a specific report of the current placement of a bomb. The court of appeals further found that the defendant's statements did not, in themselves, support a reasonable inference that bombs at been placed somewhere at the time of the reports.

On the second count, interfering with the staff, faculty, or students of an educational institution under section 18-9-109, C.R.S., the court of appeals found that the clause "on or near the premises or facilities of any educational institution", as used in subsections (1) and (2) of that section, refer to the location of the actor who interferes with the staff, faculty, or students as well as to the location of the staff, faculty, and students. The court of appeals found that the statute does not apply if the actor interferes with the staff, faculty, or students while the actor is at a different location, as was the case with C.F.'s phoned-in bomb threat.

Gleason v. Judicial Watch, Inc., Colorado Court of Appeals No. 11CA0930 (April 26, 2012)

At the request of the Arizona Supreme Court, The Chief Justice of the Colorado Supreme Court appointed the Colorado Office of Attorney Regulation Counsel (regulation counsel) to investigate allegations of misconduct by the former Maricopa County, Arizona attorney and two of his deputy county attorneys. Judicial Watch, Inc. made a "Colorado Open Records Act" (CORA) request of regulation counsel for certain records relating to the legal authority for the appointment of regulation counsel and payments made by or to regulation counsel in connection with the investigation. The Denver District Court ordered regulation counsel to release some, but not all, of the records requested, and regulation counsel appealed.

On appeal, the Court of Appeals held that regulation counsel are part of the judicial branch of state government because they are part of a process of attorney regulation that falls within the powers and duties of the judicial branch. Accordingly, following Colorado Supreme Court precedent holding that the judicial branch is neither the state nor a state agency for purposes of CORA, the Court of Appeals held that regulatory counsel records are not public records for purposes of CORA.

Associated Gov'ts of Nw. Colo. v. Colo. Pub. Utils. Comm'n, Colorado Supreme Court No. 11SA224 (April 23, 2012)

In a case involving judicial review of a decision by the PUC, the Colorado Supreme Court held that the filing of the action in Routt County, in which venue was not proper, was a procedural defect for which the proper remedy was a transfer to another county, rather than a jurisdictional defect for which the proper remedy was dismissal.  The court carefully parsed the statutory language and legislative history, including the headnote to the section, and compared the phrasing of different statutes requiring specific types of actions to be "commenced," "commenced and tried," "brought", etc., in a particular court to determine whether the place-based forum requirements of these statutes were jurisdictional or not.  The decision was split 4-2, with a dissent by Justice Rice in which the Chief Justice joined.

This is a case of note because the statute at issue is ambiguous, and in resolving the ambiguity in this statute the Court relied on conventions of construction that may or may not comport with the General Assembly's intent in enacting this statute or the other statutes that the Court examined in the course of the opinion.  Specifically, the statute at issue here (§40-6-115, C.R.S.) could have been--and, according to the dissenting opinion should have been--interpreted to make filing in the proper county a jurisdictional requirement because subsection (1) of the statute grants a party the right to seek review in "the district court", and subsection (5) then specifies that the action "shall be commenced and tried in the district court in and for the county in which the petitioner resides, ... or in the district court of the city and county of Denver, ... "  However, the majority opinion held that subsection (1) contained the only jurisdictional requirement (i.e., that the case be filed in a "district court") and that subsection (5) did not "supplement[] the jurisdictional requirements of subsection (1)" but rather "act[ed] as a freestanding venue requirement."  2012 CO 28, para. 13.

This distinction matters because, in this case, it gave the petitioner an extra bite at the apple; presumably the 30-day period for seeking judicial review would have run and the petitioner would have been without a remedy if the Supreme Court had ordered the Routt County District Court to dismiss the case on jurisdictional grounds.  If the General Assembly desires to preclude this result, it should amend §40-6-115.  And if the General Assembly desires to provide similar opportunities to cure erroneously filed petitions for judicial review under other statutes, it should amend those statutes to make clear that the place-of-filing provisions are intended only to define the proper venue, not to limit the jurisdiction of a district court to accept (and then transfer) a case that was filed in the wrong county.

Hall v. Moreno, Colorado Supreme Court No. 11SC842 (February 27, 2012)

After the general assembly failed to enact a bill to redistrict the state's congressional districts as required by the U.S. constitution and Article V, section 44 of the state constitution, two sets of plaintiffs sued the secretary of state in Denver district court, alleging that the existing congressional districts no longer satisfied federal constitutional and statutory equal population requirements and could not be used for the 2012 election.  Both sets of plaintiffs also submitted maps of proposed congressional redistricting plans.  The Denver district court agreed with the plaintiffs' allegations regarding the unconstitutionality of the existing districts and entered an order adopting a proposed "Moreno/South" map submitted by one of the sets of plaintiffs. The supreme court issued a writ of certiorari to hear the appeal directly without an intermediate appeal to the Colorado Court of Appeals and affirmed the trial court's decision.

Preliminarily, the Supreme Court concluded that neither of the constitutional requirements of equal population and compliance with the federal "Voting Rights Act" were at issue because no appealing party alleged that the Moreno/South map violated those requirements. The supreme court held that: (1) each of the statutory factors that a court may consider must be interpreted in light of the foundational goal of congressional redistricting under the United States constitution: fair and effective representation for all citizens; (2) the minimization of disruption of existing boundary lines, which the appellants emphasized, is only one among many factors that the court must balance; (3) the applicable statute, section 2-1-102, C.R.S., gives the trial court broad discretion in striking this balance; (4) the consideration of competitiveness is consistent with the ultimate goal of maximizing fair and effective representation; and (5) the trial court's adoption of the Moreno/South map reasonably balanced these many factors, was supported by the evidence, and therefore was not an abuse of discretion. 

The Supreme Court then examined each of the proposed congressional districts in the Moreno/South map. Specifically, the incorporation of several of Denver's southern suburbs into the first district was reasonable, both because they share a community of interest and because incorporating suburbs elsewhere would have required splitting municipal boundaries. Current communities of interest, including the I-70 corridor, Rocky Mountain national park, the beetle-kill forest infestation, and higher education and its associated health and high-tech industries, justifies the court's adoption of the second district, while the community of interest for this district from 10 years ago, the cleanup of Rocky Flats, is no longer relevant. The third district minimizes disruption of the existing district lines, thus maintaining communities of interest that remain important today.

The addition of rural Douglas, Arapahoe, and Adams counties into the fourth district, in part to compensate for the transfer of Larimer county into the second district, is supported by those areas' community of interest in agriculture and drought, and it was appropriate for the court to look to the near future in identifying pending oil and gas development in these areas as a community of interest. The fifth district is largely unchanged other than the removal of Lake county, as necessitated by the requirement of population equality.

The sixth district puts Aurora in a single district, unites the newer and fast-developing suburbs from northeast of Denver to southwest of Denver, and properly creates a competitive district. Similarly, the seventh district becomes more compact by including the older suburbs from north of Denver through Jefferson county, which share a community of interest in clean energy and replacing aging infrastructure. The seventh district also includes a significant Latino community of interest and properly creates a competitive district.

Colo. Ethics Watch v. Senate Majority Fund, LLC, Colorado Supreme Court No. 10SC276 (February 21, 2012)

The Colorado Supreme Court considered whether state campaign finance law required two "527" tax-exempt political organizations, the Senate Majority Fund ("SMF") and the Colorado Leadership Fund ("CLF"), to register as, and comply with all laws and administrative rules governing, political committees and held that SMF and CLF were not political committees. SMF's stated purpose was "supporting candidates for the state senate," and CLF's stated purpose was "electing Republicans". Before the November 2008, general election, SMF and CLF paid for and distributed sixteen printed ads and one television ad. Article XXVIII of the state constitution requires a political organization that makes an expenditure "for the purpose of expressly advocating the election or defeat of a candidate" for public office to register as a political committee,

Colorado Ethics Watch ("CEW") sued SMF and CLF, claiming that the ads constituted express advocacy and that SMF and CLF had therefore violated article XXVIII of the state constitution by failing to register as, and comply with the laws and rules that govern, political committees. SMF and CLF moved to dismiss the complaint, arguing that they were not political committees because the ads did not constitute "express advocacy" An administrative law judge ruled that neither organization was a political committee and dismissed the complaint, the Court of Appeals affirmed the dismissal, and CEW appealed. 

The Supreme Court's analysis centered on whether any of the ads at issue constituted "express advocacy" for purposes of article XXVIII. Section 2 (8) defines expenditure to mean a purchase, payment or related benefit made by any person for the purpose of "expressly advocating the election or defeat of a candidate". Relying on United States Supreme Court and Colorado precedent and the presumed intent of the voters in passing article XXVIII, the Colorado Supreme Court held that "express advocacy" includes only speech that explicitly exhorts the viewer or reader to vote for or against a candidate in an upcoming election using so-called "magic words" (e.g., "vote for", "elect", "defeat", "reject") described by the United States Supreme Court or substantially similar synonyms. The Supreme Court also rejected a functional equivalence test for "express advocacy" proposed by CEW on the grounds that it would be difficult to apply, could unconstitutionally chill protected political speech, and was not consistent with Colorado voters' intent in approving article XXVIII. The Supreme Court concluded that because none of the ads at issue contained any of the "magic words" or substantially similar synonyms, they did not constitute "express advocacy", SMF and CLF were not political committees, and it was proper to dismiss CEW's complaint against the organizations for failure to state a claim upon which relief could be granted.

Gessler v. Doty, Colorado Court of Appeals No. 10CA2533 (January 5, 2012)

In this case, the Court of Appeals found two statutes in conflict. In addition, the decision appears to be a landmark decision for Colorado and the subject matter is of significant policy interest.

In 2009, the General Assembly passed legislation authorizing a voter personally to return a mail-in ballot to any polling place in the county in which the voter is registered to vote ("Mail-in Ballot Statute"). An effect of the legislation was to require Arapahoe County ("County") to make available 197 additional locations for drop off mail-in ballots during the 2010 general election at an alleged cost of $80,000. The County notified the Secretary of State ("State") that, because the General Assembly had not appropriated additional funding to cover the county's increased cost, it would not provide the additional drop-off boxes pursuant to a state statute requiring any new state mandate or increase in the level of service for an existing state mandate that is not accompanied by a reimbursement to cover local governments' costs to be optional on the part of the local government ("Unfunded Mandate Statute"). The State then sued the County, seeking a preliminary injunction requiring the county to enable the delivery of mail-in ballots on election day to every polling place. The trial court granted the preliminary injunction.

The Court of Appeals affirmed the decision of the trial court and held that the Mail-in Ballot Statute  requires a county to bear the costs of providing drop-off boxes for mail-in ballots at every polling place. The court concluded that the Mail-In Ballot and Unfunded Mandate Statutes are in irreconcilable conflict and that the Mail-In Ballot Statute, which pertains only to election funding, is more specific than the Unfunded Mandate Statute, which broadly applies to most existing state programs. Although the Unfunded Mandate Statute was adopted after the Mail-In Ballot statute, there was no manifest legislative intent that the Unfunded Mandate Statute should prevail in a conflict with the Mail-in Ballot Statute. Rather, the intent of the legislature was to prioritize citizens' access to free and fair elections over convenience or cost savings to counties. Accordingly, the trial court correctly determined that counties must provide drop-off boxes for mail-in ballots at every polling place on election day, notwithstanding that this increase in service may create additional costs to the county.