DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO 1437 Bannock Street Denver, CO 80202 Plaintiff: SCOTT

E. GESSLER, individually and in his capacity as the Secretary of State of Colorado v. Defendants: DAN GROSSMAN, SALLY H. HOPPER, BILL PINKHAM, MATT SMITH AND ROSEMARY MARSHALL in their official capacities as members of the Independent Ethics Commission, and the INDEPENDENT ETHICS COMMISSION, an inferior tribunal of the State of Colorado Attorneys for Amicus Curiae Colorado Common Cause: Jennifer H. Hunt, #29964 Hill & Robbins P.C. 1441 18th Street, Suite 100 Denver, CO 80202 Telephone: 303-296-8100; Facsimile: 303-296-2388 Email: jhunt@hillandrobbins.com Martha M. Tierney, #27521 Heizer Paul LLP 2401 15th Street, Suite 300 Denver, CO 80202 Telephone: 303-376-3711 (direct) Telephone: 303-376-3703 Facsimile: 303-595-4750 Email: mtierney@hpfirm.com

DATE FILED: December 17, 2013 4:20 PM FILING ID: BABC383413A3E CASE NUMBER: 2013CV30421

COURT USE ONLY

Case No. 2013CV030421

BRIEF OF AMICUS CURIAE COLORADO COMMON CAUSE IN SUPPORT OF DEFENDANTS

I. INTRODUCTION Not content simply to ask this Court to overrule the decision of the Independent Ethics Commission (IEC) on the merits, the Secretary argues that the IEC lacked jurisdiction to even consider the complaint against him because the complaint did not assert a violation of Amendment 41s gift ban. The Secretarys argument, however, ignores the clear language of both article XXIX of the Colorado Constitution and C.R.S. 24-18.5-101, and is inconsistent with the constitutional and statutory purpose of the IEC. Adoption of this argument would have a profoundly negative impact on the ability of the IEC to serve its purpose to ensure that government officials conduct the peoples business with the utmost transparency and integrity. This Court should reject the Secretarys argument. II. ARGUMENT The IECs decision relied on its review of the Secretarys conduct with respect to several statutes and rules, including C.R.S. 24-18-103(1) (Public Trust Breach of Fiduciary Duty), C.R.S. 24-9-105(1)(d) (Elected State Officials Discretionary Funds), and the State Fiscal Rule. IEC Order (June 9, 2013) at 4. There was no allegation that the Secretary violated the gift ban provisions in article XXIX, section 3 of the Colorado Constitution. The Secretary argues that, without such an allegation, the IEC lacked jurisdiction to review Ethics Watchs complaint. To resolve the question of the IECs jurisdiction, the first step is to look to the plain language of article XXIX. In construing a constitutional provision, [the courts] obligation is to give effect to the intent of the electorate that adopted it. Colorado Ethics Watch v. Senate Majority Fund, LLC, 275 P.3d 674, 682 (Colo. App. 2010), affd, 269 P.3d 1248 (Colo. 2012) (quoting Harwood v. Senate Majority Fund, LLC, 141 P.3d 962, 964 (Colo. App. 2006)). The

reviewing court must give words their ordinary and popular meaning in order to ascertain what the voters believed the amendment to mean when they adopted it. Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo. 2004) (citing Havens v. Bd. of County Commrs, 924 P.2d 517, 522 (Colo. 1996)). When the language of a constitutional amendment is clear and unambiguous, the amendment must be enforced as written. Id. (citing In re Interrogatories Relating to the Great Outdoors Colorado Trust Fund, 913 P.2d 533, 538 (Colo. 1996)). Only if the language is ambiguous meaning that it is reasonably susceptible to more than one interpretation may the court consider other relevant materials, such as the Colorado Legislative Councils analysis of ballot initiatives (known as the Bluebook) to construe the amendment in light of the objective sought to be achieved and the mischief to be avoided by the amendment. Id. at 654-55 (citing In re Submission of Interrogatories on House Bill 991325, 979 P.2d 549, 554 (Colo.1999)). In this case, the intent of the electorate is clear and unambiguous whether one looks at the language of the constitutional amendment or the Bluebook. A. The Unambiguous Language of article XXIX, section 5 Grants the IEC Broad Jurisdiction Over Ethics Complaints. On November 7, 2006, over 62% of Colorado voters passed Amendment 41, Colorado Constitution article XXIX, entitled Ethics in Government. Prior to its adoption, Amendment 41 was reviewed by representatives of Legislative Council and Legislative Legal Services in a public hearing, and a ballot title was approved by the Title Board. The purpose and factual findings of the Amendment were clearly stated up front. Specifically, the Amendment states that the conduct of public officers, members of the General Assembly, local government officials, and government employees must hold the respect and confidence of the people and that government officials and employees must carry out their duties for the benefit of the people of

the State. Colo. Const. art. XXIX, 1(1)(a) and (b). To achieve these goals, government officials and employees must avoid conduct that is in violation of their public trust or that creates a justifiable impression among members of the public that such trust is being violated. Id. l(l)(c). The primary and most publicized provision in Amendment 41 is the gift ban, which prohibits public officials from accepting anything of value without consideration. Colo. Const. art. XXIX, 3. But the gift ban was just one issue addressed by Amendment 41. The Amendment also imposes restrictions on former legislators serving as lobbyists (Section 4) and establishes an Independent Ethics Commission (Section 5). These two provisions are separate from, and not dependent on, the gift ban articulated in section 3. As stated in article XXIX, section 5, [t]he purpose of the Independent Ethics Commission shall be to hear complaints, issue findings, and assess penalties, and also to issue advisory opinions, on ethics issues arising under this article and under any other standards of conduct and reporting requirements as provided by law. Colo. Const. art. XXIX, 5(1) (emphasis added). The IEC is also granted the authority to adopt such reasonable rules as may be necessary for the purpose of administering and enforcing the provisions of this article and any other standards of conduct and reporting requirements as provided by law. Id. (emphasis added). Incredibly, the Secretarys opening brief omits any reference to the full statement of the IECs authority, thus implying that no such statement exists. But the Secretary cannot obscure the fact that the ordinary meaning of the phrase and any other standards of conduct and reporting requirements as provided by law is not difficult to discern. Under article XXIX,

section 5, the IEC has the authority to hear complaints under the gift ban provision in article XXIX, section 3 and other ethical standards of conduct required by law, such as C.R.S. 24-18103(1) (Public Trust Breach of Fiduciary Duty) and C.R.S. 24-9-105(1)(d) (Elected State Officials Discretionary Funds). Because the ethics complaint did not allege a violation of the gift ban, the Secretarys analysis of the meaning of gift in article XXIX, section 3 is meaningless. Thus, according to the clear and unambiguous constitutional language of article XXIX, section 5, the IEC has jurisdiction not only to hear complaints alleging violations of the gift ban, but also complaints alleging violations of statutes governing public officials breaches of fiduciary duties and handling of discretionary funds, such as the complaint filed by Ethics Watch. The language is clear and unambiguous, and nothing more is required to determine the electorates intent. B. The Broad Reach of the IEC Was Clearly Explained in the 2006 Bluebook. But even if there were a question about what was meant by granting the IEC authority to hear complaints related to other standards of conduct and reporting requirements as provided by law, the Bluebook supports the conclusion that the IEC was meant to have broad jurisdiction over ethics complaints. Contrary to the Secretarys contention, the Bluebook clearly explains that the intent of creating the IEC was not to create a forum limited to consideration of alleged violations of the gift ban, but to create an entity tasked more broadly to address the full panoply of potential violations of Colorado's code of ethics. Again, the Secretarys analysis is off point, focusing on the Bluebooks discussion of the meaning of the gift ban rather than on its discussion of the IEC. In explaining the IEC, the Bluebook states:

Under current law, public officials and government employees are subject to a code of ethics. Ethics complaints against statewide elected officeholders, governor appointees, and employees of state departments are reviewed by a board of ethics upon request of the governor. Complaints filed against legislators are heard by a committee made up of legislators at the discretion of legislative leadership. Many local governments also have procedures in place to handle ethics complaints. Amendment 41 creates an ethics commission with jurisdiction over all state, county, and municipal offices and employees. The commissions purpose is to hear complaints, issue findings, assess penalties, and issue advisory opinions. Any person can file a complaint with the commission alleging a violation of the [gift ban], or any other standard of conduct or reporting requirement specified in law. 2006 Ballot Information Booklet: Analysis of Statewide Ballot Issues, Colo. Legis. Council, Research Pub. No. 554 (2006), at 9 (the 2006 Bluebook). In the Arguments For section, the 2006 Bluebook states that, because elected officials may not be able to objectively judge the ethics of their peers, an independent forum is needed where citizens can file legitimate concerns about possible ethics violations by their elected representatives. The ethics commission created by Amendment 41 is charged with enforcing standards of conduct for both state and local public officials and employees and provides a central venue for filing ethics complaints from across the state. Id. at 10. Thus, the 2006 Bluebook clearly explained to the voters that the IEC was created not simply to enforce the gift ban, but also to address inconsistent and subjective reviews of ethics complaints across state and local governments. The IEC was created along-side the gift ban, but not solely dependent on it.

C.

The Jurisdiction of the IEC Cannot Be and Has Not Been Limited by the General Assembly. The statute enacted to facilitate the implementation of article XXIX is similarly

unambiguous. C.R.S. 24-18.5-101 establishes funding for the IEC and provides additional guidance for its operation. Consistent with section 5 of article XXIX, the statute provides that the IEC has the power to hear complaints, issue findings, and assess penalties on ethics issues arising under article XXIX and other standards of conduct and reporting requirements as provided by law. C.R.S. 24-18.5-101(4)(a) (2013) (emphasis added). It also recognizes the IECs authority to issue advisory opinions on the same issues. C.R.S. 24-18.5-101(4)(b). The Secretary rests his argument that this authority was subsequently limited by the General Assembly on a misinterpretation of subsection (5) of the statute. That provision reads, in relevant part: the commission shall dismiss as frivolous any complaint filed under article XXIX that fails to allege that a public officer, member of the general assembly, local government official, or government employee has accepted or received any gift or other thing of value for private gain or personal financial gain. C.R.S. 24-18.5-101(5)(a) (emphasis added). The Secretary asserts that this requirement limits the IECs jurisdiction to complaints alleging a violation of the gift ban. First and foremost, the General Assembly is bound to follow constitutional mandates and cannot enact a statute that contradicts a constitutional provision. See In re Great Outdoors Colorado Trust Fund, 913 P.2d 533, 539 (Colo. 1996) (noting General Assemblys authority to resolve ambiguities in constitutional amendments in a manner consistent with the terms and underlying purposes of the constitutional provisions). Therefore, even if C.R.S. 24-18.5-

101(5) could be read as attempting to limit the IECs jurisdiction, it would contradict a clear and unambiguous constitutional provision and should be void. Nonetheless, contrary to the Secretarys bold contention, it is not undisputed that C.R.S. 24-18.5-101(5) purports to limit the IECs jurisdiction. Amicus agrees with the Secretary that the Courts task when interpreting a statute is to give effect to the ordinary meaning of words used by the legislature and that the statute should be construed as written, giving full effect to the words chosen, as it is presumed that the General Assembly meant what it clearly said. State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). In this case, the plain language of the statute states that the limitation of section 101(5) applies to any complaint filed under article XXIX of the Colorado Constitution. Assuming the General Assembly meant what it said, the inclusion of the modifying phrase, filed under article XXIX, unambiguously limits the dismissal requirement to claims alleging a violation of the gift ban, requiring dismissal of such claims that do not allege that the public official accepted a gift for private gain or personal financial gain, as defined in the statute. As the Secretary notes, this provision was enacted to preserve the constitutionality of the gift ban provision, which had been challenged as unconstitutionally vague and overbroad. This provision is unrelated to the scope of the IECs jurisdiction. Indeed, the case the Secretary cites to support his argument that C.R.S. 24-18.5-101(5) somehow limits the jurisdiction of the IEC explicitly states otherwise. In Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008), the Colorado Supreme Court was asked to declare that the gift ban provision in article XXIX was unconstitutionally broad. The plaintiffs did not raise any issues related to the constitutionality of the IEC itself. In fact, the plaintiffs themselves assumed that the IEC would have a role to play even if the gift ban was declared

unconstitutional. As the court noted, Plaintiffs sought to have the gift bans of Amendment 41 rendered unconstitutional, leaving only the provision creating the Commission, which, in their view, would then enforce existing ethics laws. Id. at 534 (emphasis added). The court did discuss the role of the IEC in the context of its analysis of whether article XXIX was self-executing and, therefore, presented a justiciable issue for the court. In determining that Amendment 41 could take effect without any further action by the legislature, the court noted that the amendment provides for the creation of the Commission that, once in existence, will be independent of the General Assembly and will promulgate the necessary rules to implement and enforce the gift bans and other ethical standards. Id. at 532. Once again, the courts statement underscores the clear and unambiguous language in article XXIX, section 5 stating that the IEC was intended to have broad jurisdiction over all ethical issues applicable to public officials. III. CONCLUSION The plain, unambiguous language of both the Colorado Constitution and Colorado statutes clearly states that the IEC has jurisdiction to hear and decide alleged ethical violations not only of Amendment 41s gift ban, but all other ethical standards found in Colorado Law. This Court should reject the Secretarys argument that the IEC lacked jurisdiction to hear the complaint against him. DATED: December 17, 2013. Respectfully submitted, HILL & ROBBINS, P.C. signed original on file at Hill & Robbins, P.C.

s/ Jennifer H. Hunt Jennifer H. Hunt

HEIZER PAUL LLP Martha M. Tierney Attorneys for Amicus Curiae Colorado Common Cause

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 17th day of December, 2014, service of the foregoing BRIEF OF AMICUS CURIAE COLORADO COMMON CAUSE IN SUPPORT OF DEFENDANTS was made via ICCES, addressed as follows: Party Name Bill Pinkham Dan Grossman Independent Ethics Comm Matt Smith Party Suppressed Party Suppressed Rosemary Marshall Sally H Hopper Scott E Gessler Party Type Defendant Defendant Defendant Defendant Impartial Movant Defendant Defendant Plaintiff Attorney Name Lisa Freimann, Russell Klein, Joel Kiesey Lisa Freimann, Russell Klein, Joel Kiesey Lisa Freimann, Russell Klein, Joel Kiesey Lisa Freimann, Russell Klein, Joel Kiesey N/A N/A Lisa Freimann, Russell Klein, Joel Kiesey Lisa Freimann, Russell Klein, Joel Kiesey Robert Bruce, David Lane, Michael Davis

signed original on file at Hill & Robbins, P.C.

s/ Rae Macias

Rae Macias

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