2012 COA 147
Colo. Ct. App.2012Background
- Colorado Common Cause and Colorado Ethics Watch challenge Secretary of State Rule 4.27 under §24-4-106, C.R.S.2011.
- Rule 4.27 lowers reporting trigger to $5,000; prior threshold was $200.
- Sampson v. Buescher (10th Cir. 2010) held registration/reporting burdens may burden First Amendment rights.
- Secretary adopted Rule 4.27 to address Sampson and clarify applicability of registration/disclosure.
- Trial court found Rule 4.27 exceeded rulemaking authority; this appeal follows.
- Court reviews agency action de novo and must ensure rules do not modify or contravene law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 4.27 exceed rulemaking authority? | Rule 4.27 conflicts with constitutional/ statutory thresholds. | Rule 4.27 clarifies application after Sampson and fills a gap. | Yes; Rule 4.27 is void for exceeding authority. |
| Does Sampson abrogate the $200 threshold? | Sampson eliminates the $200 threshold. | Sampson does not invalidate all provisions; may affect application. | Sampson does not facially invalidate prohibitions; threshold remains governed by law. |
| Did Sampson create a gap requiring rulemaking? | Sampson creates a regulatory gap that Rule 4.27 purported to fill. | No gap; Sampson addresses application, not a general void. | Rule 4.27 overstepped; no gap justifying rule. |
| Was the Secretary authorized to assert the counterclaim? | Counterclaim addressed the definition in light of Sampson. | Counterclaim resolution unnecessary; court affirms dismissal. |
Key Cases Cited
- Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) (applies First Amendment burdens on issue-committee registration and disclosure)
- Colorado Consumer Health Initiative v. Colo. Bd. of Health, 240 P.3d 525 (Colo. App. 2010) (rule may not modify or contravene statutes)
- Sanger v. Dennis, 148 P.3d 404 (Colo. App. 2006) (agency cannot misconstrue or override controlling law)
- Bd. of Cnty. Comm'rs v. Colo. Oil & Gas Conservation Comm'n, 81 P.3d 1119 (Colo. App. 2003) (court voided rule that conflicted with other provisions of law)
- Doe v. Reed, 561 U.S. 186 (2010) (public disclosure interests and informational purposes in campaign finance)