DAVIDSON v. COMMITTEE FOR SCHOETTLER

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Docket Number

No. 00SA154

Attorney(S)

Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Defendant-Appellant. Isaacson, Rosenbaum, Woods Levy, P.C., Mark G. Grueskin, Edward T. Ramey, Blain D. Myhre, Denver, Colorado, Attorneys for Plaintiff-Appellee The Committee for Gail Schoettler. Moye, Giles, O'Keefe, Vermeire Gorrell LLP, John E. Moye, Guadalupe J. Sisneros, Denver, Colorado, Attorneys for Plaintiffs-Appellees Coloradans for Western Values and Judith Wagner. Godfrey Lapuyade, P.C., Bruce B. McLarty, Denver, Colorado, Attorneys for Amici Curaie Colorado Common Cause and the League of Women Voters.

Judges

Rebecca Love Kourlis

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Smart Summary

Factual and Procedural Background

Colorado Common Cause and the League of Women Voters filed a complaint under the prior version of the Fair Campaign Practices Act (FCPA) with the Secretary of State alleging violations by The Committee for Gail Schoettler, Inc. (Committee), Coloradans for Western Values (CWV) and Judith Wagner. The Secretary referred the matter to an administrative law judge (ALJ), who after a September 2, 1998 hearing found: Wagner violated section 1-45-107 by purchasing and delivering tee-shirts constituting a donation without required notice and disclosures; the Committee accepted contributions in excess of limits under former section 1-45-104; CWV was a political committee that failed to register and disclose under section 1-45-108; and Wagner deposited personal funds and paid for radio advertisements with filing and disclosure issues. The ALJ outlined possible penalties and directed notification of the Attorney General and the appropriate district attorney.

The Respondents sought district court review under the Administrative Procedures Act, section 24-4-106(2). The Secretary moved to dismiss for lack of subject-matter jurisdiction, arguing the ALJ decision was not final agency action; the district court denied that motion, affirmed portions of the ALJ's decision, and held sections 1-45-104(2) and (7) unconstitutional. The Secretary appealed to the Colorado Supreme Court. During the appeal, the General Assembly substantially amended and effectively repealed the challenged provisions of the FCPA. The Colorado Supreme Court found the case moot, dismissed the appeal, and vacated the district court's and ALJ's judgments.

Legal Issues Presented

Whether the district court had subject-matter jurisdiction under section 24-4-106, 7 C.R.S. (2000), to review the ALJ's order.
Whether the ALJ's order constituted final agency action for purposes of judicial review.
Whether the district court could consider the constitutionality of sections 1-45-104(2) and (7) of the prior FCPA without conducting a trial and taking evidence.
Whether sections 1-45-104(2) and (7) of the prior FCPA were constitutional.

Arguments of the Parties

Secretary of State's Arguments

The district court lacked subject-matter jurisdiction because the ALJ decision was not final agency action and thus not reviewable under section 24-4-106.
The district court could not adjudicate the constitutionality of the FCPA provisions without conducting a trial and taking evidence.
The court should uphold the constitutionality of sections 1-45-104(2) and (7).
On mootness, the Secretary argued the case was not moot because the Attorney General might prosecute under the prior FCPA, the constitutional questions remain relevant in other litigation, and resolution could affect attorney-fee determinations in related cases.

Respondents

The Respondents sought judicial review of the ALJ order under the Administrative Procedures Act and obtained district court determinations affirming parts of the ALJ's findings and holding sections 1-45-104(2) and (7) unconstitutional (as reported by the district court).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426 (Colo. 1990)	The definition and operation of the mootness doctrine: a case is moot when a court's ruling would have no practical legal effect.	The court relied on this principle to conclude that repeal of the challenged statute renders the action presumptively moot.
Anema v. Transit Constr. Auth., 788 P.2d 1261, 1264 (Colo. 1990)	Ruling on a statute no longer in effect is presumptively moot absent special circumstances.	Used to support the presumption that the court should not decide the constitutionality of provisions no longer in force.
Citizens for Responsible Government State Political Action Committee v. Buckley, 60 F. Supp.2d 1066, 1087, 1089 (D.Colo. 1999), vacated as moot, 236 F.3d 1174, 1182 (10th Cir. 2000)	The district court decision holding campaign contribution limitations unconstitutional (and the Tenth Circuit's subsequent treatment of that decision as moot upon statutory change).	The district court had relied on the district-court Buckley decision to hold the Colorado contribution limits unconstitutional; the Colorado Supreme Court noted the Tenth Circuit later concluded statutory change rendered such challenges moot and vacated orders.
Citizens for Responsible Gov't State Political Action Comm., 236 F.3d 1174, 1182 (10th Cir. 2000)	Change in statute rendered challenges to repealed provisions moot; parties have no legally cognizable interest in the constitutional validity of an obsolete statute.	The Colorado Supreme Court adopted the Tenth Circuit's conclusion and followed it in deeming the present case moot.
Bustamante v. Dist. Court, 138 Colo. 97, 104, 329 P.2d 1013, 1016 (1958)	Equitable tolling does not apply to criminal causes of action and has limited application to other causes.	The court cited this authority to reject the Secretary's contention that equitable tolling would preserve prosecution under superseded statutes and to deem future enforcement speculative.

Court's Reasoning and Analysis

The court framed the appeal as a direct appeal of a district court ruling that held prior FCPA provisions unconstitutional. It then explained that the General Assembly substantially amended and reenacted the FCPA during the pendency of the appeal, repealing the challenged contribution limits and revising disclosure and review procedures. Because the ALJ order rested on provisions that have been repealed and the reenacted statute altered enforcement and review mechanisms, the court concluded a decision on the prior provisions would have no practical legal effect and the action was therefore moot. The court relied on Colorado precedent about mootness and on the Tenth Circuit's decision holding similar challenges moot after statutory change. The court considered and rejected the Secretary's arguments that: (1) potential future prosecution under the prior FCPA or equitable tolling preserved a live controversy (finding such prosecution speculative and tolling inapplicable to criminal causes); (2) the issue's public importance or relevance to other litigation resuscitated the case (finding such concerns collateral and not sufficient to overcome mootness); and (3) potential impact on attorney-fee determinations in related federal litigation justified review (finding attorney-fee concerns alone inadequate to avoid mootness). Because the case was moot, the court declined to reach substantive constitutional or jurisdictional questions and vacated the district court's and ALJ's judgments to clear the way for future relitigation.

Holding and Implications

THE COURT HELD THE ACTION MOOT AND DISMISSED THE APPEAL.

Direct effects: the appeal was dismissed, and the court vacated the district court's judgment and the ALJ's order. The court declined to address the substantive constitutional or jurisdictional issues raised. The opinion did not establish a new substantive precedent on the constitutionality of the repealed FCPA provisions; vacatur was intended to clear the path for future relitigation in the event a live controversy arises.

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Donetta Da v. dson, Secretary of State of Colorado, Defendant-Appellant,

No. 00SA154: Donetta Davidson. v. The Committee for Gail Schoettler, Inc . — Fair Campaign Practices Act — Moot — Administrative Law Judge — Subject-Matter Jurisdiction — Final Agency Action.

This case arises out of a determination by an administrative law judge that The Committee for Gail Schoettler, Inc., (Committee), Coloradans for Western Values (CWV) and Judith Wagner (Wagner) violated the former Fair Campaign Practices Act (FCPA). In response, the Committee, CWV and Wagner filed an action with the district court pursuant to the Administrative Procedures Act.

The Secretary filed a motion to dismiss, arguing that the court lacked subject-matter jurisdiction because the ALJ's decision did not constitute final agency action. The district court found sections 1-45-104(2) and (7) of the FCPA unconstitutional and otherwise affirmed the ALJ. The Secretary appealed.

The Colorado General Assembly has substantially amended the FCPA, including repealing the contribution limits under Section 104 and revising the disclosure provisions. Additionally, the General Assembly changed the portion of the statute dealing with the process by which courts review ALJ orders.

Because the Secretary asks the court to decide issues that relate to the workings, and ultimately the constitutionality of an Act no longer in force, the supreme court finds the case moot and declines to address the substantive issues.

JUSTICE KOURLIS delivered the Opinion of the Court.

This case is before the court under section 13-4-102(1)(b), 5 C.R.S. (2000), upon direct appeal of a district court ruling holding portions of the prior version of the Fair Campaign Practices Act (FCPA), specifically sections 1-45-104(2) and (7), 1 C.R.S. (1999) (repealed 2000), unconstitutional.

Because during the pendency of this case, the General Assembly repealed and reenacted the FCPA with significant changes, and because the Administrative Law Judge (ALJ) order forming the basis for the district court's review would have no further enforceability, we find this action moot and accordingly dismiss it.

Colorado Common Cause and the League of Women Voters filed a complaint under the prior version of the FCPA with the Secretary of State alleging violations of the FCPA by The Committee for Gail Schoettler, Inc., (Committee), Coloradans for Western Values (CWV) and Judith Wagner (Wagner). The Secretary of State referred it to an administrative law judge for hearing.

The hearing occurred on September 2, 1998. The ALJ made various findings. She found that Wagner violated FCPA section 1-45-107 by purchasing 400 tee-shirts with Gail Schoettler campaign slogans on the front and back at a cost of $3,364.00, and delivering the tee-shirts to the campaign headquarters for distribution the next day by campaign volunteers at the site of a political convention. The ALJ concluded that the tee-shirts were a donation, within the meaning of section 1-45-103(4)(IV), 1 C.R.S. (2000) and that Wagner violated the Act by failing to file a timely Notice of Independent Expenditure for the tee-shirts, and by failing to place the proper disclosures on them. The ALJ also concluded that the Committee violated the Act by accepting contributions in excess of the amount permitted by law under former section 1-45-104.

Additionally, the ALJ found that Wagner formed a nonprofit corporation called CWV on July 2, 1998 and did not register CWV as a political committee. Wagner received nine checks from other individuals, totaling $185.00 that she deposited to the account of CWV. Additionally, she deposited $30,000 of her own funds into the account on July 13, 1998. Wagner contracted for radio advertisement spots in support of Gail Schoettler's candidacy for Governor, and paid the sum of $29,500 for those advertisements. She did file a timely Notice of Independent Expenditures, identifying CWV as the source of funds for the advertisements. The ALJ concluded that CWV constituted a political committee under section 1-45-103(10)(a), and that it failed to comply with the registration and disclosure requirements of section 1-45-108, 1 C.R.S. (1999) (amended 2000).

At the end of the ALJ's Order, she outlined the possible penalties attendant upon violations of the FCPA and directed the Secretary of State to "notify the Attorney General and the appropriate district attorney pursuant to Section 1-45-111(2)(a), [1 C.R.S (1999) (amended 2000)]."

The Committee, CWV and Wagner (Respondents) filed an action with the district court pursuant to section 24-4-106(2), 7 C.R.S. (2000). That section, which appears in the Administrative Procedures Act, provides that "[f]inal agency action under this or any other law shall be subject to judicial review as provided in this section." Id.

The Secretary of State filed a motion to dismiss, arguing that the court lacked subject-matter jurisdiction because the ALJ's decision did not constitute final agency action. The district court denied that motion.

The district court issued its order on October 20, 1999, holding sections 1-45-104(2) and (7) unconstitutional and otherwise affirming the ALJ's decision. Specifically, the district court adopted the decision of the United States District Court for the District of Colorado in Citizens for Responsible Government State Political Action Committee v. Buckley, 60 F. Supp.2d 1066, 1087, 1089, (D.Colo. 1999), vacated as moot, 236 F.3d 1174, 1182 (10th Cir. 2000), holding the contribution limits contained in section 1-45-104(2) and (7) unconstitutional. Accordingly, the district court overturned the ALJ's conclusion regarding violations of the FCPA by Wagner and the Committee regarding the tee-shirts and vacated all related sanctions. The district court also reversed the ALJ's conclusion that Wagner and CWV had violated the FCPA by making and accepting improper contributions to a political committee. The district court affirmed only the ALJ's conclusion that CWV was a political committee, and that it violated the disclosure requirements.

The Secretary appealed to this court, asking this court to rule: that the district court had no subject-matter jurisdiction under section 24-4-106, 7 C.R.S. (2000); that the ALJ order did not constitute final agency action; that the district court could not consider the constitutionality of the FCPA without conducting a trial and taking evidence; and ultimately asking that the court declare sections 1-45-104(2) and (7) constitutional.

Because we determine that the case is moot, we decline to address any of the substantive issues.

II.

The Secretary asks us to decide issues that relate to the workings, and ultimately the constitutionality of an Act that is no longer the law.

On March 15, 2000, the Colorado General Assembly substantially amended the FCPA. Ch. 36, sec. 1-15, §§ 1-45-103 to -114, 2000 Colo. Sess. Laws 118, 118-29. The changes are numerous, and include complete repeal of the contribution limits under former section 1-45-104 and replacement of that section with new section 1-45-105.3, 1 C.R.S. (2000); and substantial revision to the disclosure provisions of section 1-45-108.

Furthermore, the General Assembly changed the portion of the statute that deals with the process by which courts review ALJ orders. The prior version of the statute contained no specific procedure by which a respondent could seek review of an ALJ finding of a violation of the FCPA. That omission caused Respondents to seek review by the district court under the general provisions of the Administrative Procedures Act. The General Assembly has now addressed the problem and specified that, "The decision of the Administrative Law Judge shall be final and subject to review by the court of appeals, pursuant to section 24-4-106(11). The decision may be enforced by the secretary of state or by the person filing the complaint." § 1-45-111(2)(a).

Courts must confine their exercise of jurisdiction to cases that present a live case or controversy. A case is moot when the court's ruling would have no practical legal effect. Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426 (Colo. 1990). Here, the General Assembly has repealed the statute on which the court is being asked to rule. A ruling by this court regarding a statute no longer in effect is presumptively moot, absent some express circumstance that dictates otherwise. Anema v. Transit Constr. Auth., 788 P.2d 1261, 1264 (Colo. 1990).

The Tenth Circuit Court of Appeals dealt with this precise question. It addressed the federal district court order holding the campaign contribution limitations unconstitutional — the same order upon which the district court in this case relied for a similar conclusion. On December 26, 2000, the Tenth Circuit concluded that the change in the FCPA rendered any challenge to the validity of the repealed provisions moot. Citizens for Responsible Gov't State Political Action Comm., 236 F.3d 1174, 1182 (10th Cir. 2000). That court held that "the parties have no legally cognizable interest in the constitutional validity of an obsolete statute." Id. Accordingly, it vacated the district court's orders dealing with those issues.

The Secretary argues that the case is not moot because the Attorney General may bring an action pursuant to the FCPA as it existed at the time of the alleged violations, and because the case involves matters of great public importance since the constitutionality of the old contribution limits is still at issue in other litigation. All of those arguments were made to and rejected by the Tenth Circuit. Similarly, we find them unpersuasive.

First, we decline to afford the Secretary an exception to the mootness doctrine on grounds that she may decide to prosecute these parties or others based upon the previous version of the FCPA. We note that neither the Attorney General nor any of the private parties have at any time instituted actions for enforcement of the ALJ's order against the Committee, Wagner or CWV. The ALJ issued her order over two and one-half years ago. To commence such litigation at this late date, the prosecuting party would have to avoid operation of strict statutes of limitation such as the one-year statute under section 1-45-113(2), 1 C.R.S. (2000). The Secretary argues that equitable tolling would negate the dictates of the statute, because of the pendency of the federal litigation. Equitable tolling certainly does not apply to criminal causes of action and has only speculative application to the remaining civil causes of action that the Secretary or other Petitioners could file. See Bustamante v. Dist. Court, 138 Colo. 97, 104, 329 P.2d 1013, 1016 (1958). The only tolling allowed in criminal cases is by statute. § 16-5-401, 6 C.R.S. (2000). We conclude that the likelihood of additional proceedings against these Respondents on the basis of violation of now superseded provisions of the FCPA is far too conjectural to afford us a basis for exercising jurisdiction.

In addition to abolishing equitable tolling in criminal cases, the legislature has abolished all common law defenses and offenses. See § 18-1-104(3), 6 C.R.S. (2000).

Second, we agree with the Tenth Circuit that the Secretary's concerns regarding other pending litigation in which the constitutionality of the prior statutes may be raised is collateral to our present case. Citizens for Responsible Gov't State Political Action Comm., 236 F.3d at 1184. By our ruling today, we do not impact other litigants' rights to raise the constitutionality of the prior statutes in the context of a live controversy.

Lastly, the Secretary suggests that we should address the substantive issues because our conclusions may color the federal court's ultimate determination as to which party has prevailed in the federal litigation for purposes of assessing attorney fees. Although we by no means discount the importance of attorney fee decisions to the parties in a case, the question of attorney fees in a related case cannot alone resurrect this case from operation of the mootness doctrine.

Accordingly, we agree with the Tenth Circuit Court of Appeals and conclude that this case is moot.

III.

Having determined that the case is moot, we vacate the judgment of the district court and that of the ALJ in order to clear "the path for future relitigation of the issues . . . and eliminat[e] a judgment, review of which was prevented through happenstance." Van Schaack, 798 P.2d at 427.

CHIEF JUSTICE MULLARKEY does not participate.