23CA2061
Colo. Ct. App.Oct 24, 2024Background
- Jason Ray Clark, pro se, appealed the Colorado Securities Commissioner’s order revoking his investment advisor representative license.
- The Colorado Division of Securities conducted two examinations (2010 and 2021) into Clark and his company, finding persistent regulatory deficiencies.
- Clark failed to file required forms and made misleading or incomplete disclosures regarding tax liens, trading practices, fee calculations, and advertising.
- The ALJ found willful violations of numerous securities rules and recommended revocation of Clark’s license, a decision later affirmed by the Commissioner.
- Clark raised defenses including selective prosecution, constitutional lack of ALJ authority, and asserted he cured all deficiencies and caused no harm to the public.
Issues
| Issue | Clark's Argument | Commissioner's Argument | Held |
|---|---|---|---|
| Selective prosecution | Clark was unfairly singled out and retaliated against | No evidence of discriminatory intent or effect | No selective prosecution; Clark’s claim fails |
| ALJ constitutional authority | ALJs lack authority to issue binding legal decisions | State law authorizes ALJs; cited cases are inapposite | ALJs lawfully have this authority under Colorado law |
| Factual basis for revocation | Clark cured all deficiencies, no willful violation, no harm | Clark repeatedly noncompliant and unlikely to improve | Substantial evidence supports revocation decision |
| Weight of omitted hearing transcript | Did not impact; FINRA decision proves honesty | Absence of transcript bars challenging ALJ findings | Presumed ALJ findings supported; no basis to disturb |
Key Cases Cited
- Dill v. Rembrandt Grp., Inc., 2020 COA 69 (issue preservation standard for appeals)
- People v. Melendez, 102 P.3d 315 (Colo. 2004) (pro se litigant pleadings construed broadly)
- E-470 Pub. Highway Auth. v. Revenig, 91 P.3d 1038 (Colo. 2004) (constitutional challenges reviewed de novo)
- Rigmaiden v. Colo. Dep't of Health Care Policy & Fin., 155 P.3d 498 (Colo. App. 2006) (substantial evidence standard for agency decisions)
- W. Colo. Cong. v. Colo. Dep't of Health, 844 P.2d 1264 (Colo. App. 1992) (ALJ authority under Colorado law)