August 23, 2019

Archives for September 5, 2012

Colorado Court of Appeals: Secretary of State Exceeded Rulemaking Authority by Promulgating Rules that Modify or Contravene Statutory or Constitutional Provisions

The Colorado Court of Appeals issued its opinion in Colorado Common Cause v. Gessler, Secretary of State on August 30, 2012.

Rulemaking Authority—Campaign Finance Laws.

This case arose out of a challenge to the Colorado Secretary of State’s (Secretary) rulemaking authority brought by plaintiffs, Colorado Common Cause and Colorado Ethics Watch, pursuant to CRS § 24-4-106. The Secretary appealed the trial court’s order finding he exceeded his rulemaking authority in promulgating Rule 4.27. [Rule 4.27 has since been renumbered as Rule 4.1, 8 Code Colo. Regs. 1505–6.] The order was affirmed.

In 2002, Colorado voters adopted the Campaign and Political Finance Amendment (Amendment), which sets forth specific disclosure requirements that apply to various categories of participants in the elections process. The Amendment also regulates “issue committees” that advocate for or against ballot issues or questions. The Amendment incorporates the registration and disclosure requirements set forth in the Fair Campaign Practices Act (Act). In November 2010, a panel of the Tenth Circuit held in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), that the financial burden of complying with the registration and reporting requirements for issue committees was substantial and the public interest in such information was minimal.

In response to Sampson, the Secretary commenced a rulemaking process to implement the decision. As part of this process, the Secretary published proposed Rule 4.27, which ultimately was adopted.Rule 4.27 states that “[a]n issue committee shall not be subject to any of the requirements of [the Amendment] or [the Act] until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.” The contributions and expenditure made before reaching this threshold are not required to be reported.

Plaintiffs sued under CRS § 24-4-106. The trial court held that the Secretary had exceeded his rulemaking authority and dismissed the Secretary’s counterclaim for a declaration that the definition of issues committee is unenforceable until such a rule is adopted.

The Court of Appeals noted that an agency does not have authority to promulgate rules that modify or contravene statutory or constitutional provisions. Rule 4.27 creates a contribution and expenditure threshold of $5,000 that triggers an issue committee’s duty to register and disclose. The Act establishes a threshold of $200. On its face, Rule 4.27 conflicts with the clear requirements of Colorado law. Thus, unless Sampson abrogated the $200 threshold, the Secretary lacked the authority to promulgate the rule. The Secretary argued Sampson did just that. The Court disagreed.

The Tenth Circuit declined to address the facial challenge to Colorado’s campaign finance laws, holding only that the application of those laws under the specific facts of Sampson unconstitutionally burdened their freedom of association. The Circuit specifically acknowledged that Colorado campaign finance laws may be constitutionally applied outside of the context presented in Sampson. Consequently, Rule 4.27 sweeps far too broadly. The rule was set aside as void and the order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Violations of Open Meeting Law Can be “Cured” if Subsequent Meeting Meets Open Meeting Law’s Requirements

The Colorado Court of Appeals issued its opinion in Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation on August 30, 2012.

Curing an Open Meetings Law Violation—Summary Judgment.

In this action alleging violations of the Open Meetings Law (OML), plaintiffs, the Colorado Off-Highway Vehicle Coalition (COHVCo) and several nonprofit corporations and interested citizens, appealed the district court’s summary judgment in favor of defendant, the Colorado Board of Parks and Outdoor Recreation (Board). Plaintiffs also appealed the court’s order denying them costs and attorney fees. The judgment and order were affirmed.

The Board is responsible for managing all state parks and outdoor recreation areas and for administering all state park and outdoor recreation programs. One such program is the off-highway vehicle (OHV) program. Under the OHV Act, annual registration and permit fees are placed in the OHV Recreation Fund and are required to be used for specified OHV purposes. For several years, the Board has made a portion of the OHV funds available through a grant process awarded by the OHV Subcommittee, though the Board retains final authority to allocate the grant funds.

In November 2009, the Board provided notice and held a public meeting regarding possible changes to the OHV grant program and subcommittee. Notice of subsequent public meetings was made and meetings were held in January, February, March, May, and July of 2010. During the course of these proceedings, three violations of the OML occurred: (1) on March 19, following the meeting, the Board discussed proposed changes to the OHV program and the OHV Subcommittee via e-mail; (2) on April 28, the Board held a meeting via telephone and e-mail to discuss the proposed changes; and (3) on June 7, an “OHV Program Modifications Roundtable” was convened by the state Division of Parks and Outdoor Recreation to discuss the proposed changes (all Board members were notified, two attended, and one actively participated in this meeting).

After the June 7 meeting, COHVCo sent the Board a letter alleging it had violated the OML and subsequently alleged violations of the OML regarding the March 19 and April 28 meetings. On July 16, at its regularly scheduled public meeting, the Board was briefed by the Attorney General regarding the legal implications of the alleged violations. The meeting was well attended by all interested parties and numerous “key” parties commented on record. Ultimately, the Board unanimously approved the changes.

Plaintiffs sued the Board in August 2010. In its answer, the Board admitted to the three OML violations and plaintiffs moved for summary judgment and requested costs and attorney fees. The Board argued the OML violations “were all effectively remedied” by the July 16 public meeting. Following an extensive hearing, the district court granted summary judgment in favor of the Board and denied the request for costs and attorney fees, because the “Board cured any violation of the OML before the initiation of this lawsuit.”

On appeal, plaintiffs argued it was error to find that the Board “cured” the three OML violations. The Court of Appeals disagreed. The Court noted that the OML does not explicitly address whether a violation can be cured by holding a subsequent meeting that complies with the act. However, Colorado case law on the OML implies a public body may do so as long as it isn’t merely “rubber stamping” the earlier decision. The Court found that the July 16 meeting that effected the cure was not a rubber stamping of an earlier decision.

Plaintiffs also appealed the denial of their costs and attorney fees. The Court agreed with the district court that the Board “cured” the previous violation of the OML and therefore no costs or fees should have been awarded to plaintiffs. The judgment and order were affirmed.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 10-4-110.5 Only Mandates Automatic Renewal of Commercial Automobile Insurance Policies

The Colorado Court of Appeals issued its opinion in Progressive Casualty Insurance Co. v. Moore on August 30, 2012.

Denial of Benefits—Statutory Notice Requirements—Commercial Versus Personal Policies.

In this declaratory judgment action, S. Bryan Moore appealed the judgment entered in favor of Progressive Casualty Insurance Company. The judgment was affirmed.

Moore was involved in a car accident. Progressive Casualty Insurance Co. (Progressive) denied his claim for insurance benefits because his automobile insurance policy had expired months earlier.

Moore contended that the trial court misapprehended the applicability of CRS § 10-4-110.5. Specifically, Moore argued that the policy had renewed automatically because Progressive had failed to comply with the statutory notice requirements. However, § 10-4-110.5 applies only to commercial automobile insurance policies, and Moore’s policy was not commercial. Therefore, the trial court’s ruling was affirmed.

Summary and full case available here.

Tenth Circuit: Government Waiver of Unconditional Guilty Plea’s Effect Did Not Deprive Court of Subject Matter Jurisdiction

The Tenth Circuit published its opinion in United States v. De Vaughn on August 31, 2012.

The defendant, Jay De Vaughn, pleaded guilty to mailing threatening communications and made this plea unconditionally, without reserving a right to appeal. De Vaughn appealed, saying his statements did not constitute threats, and making an as-applied First Amendment argument. Because the government failed to raise the preclusive effect of his guilty plea, the court analyzed whether it had jurisdiction to hear the appeal before concluding that it did under 28 U.S.C. § 1291.

Generally, “a voluntary and unconditional guilty plea waives all non-jurisdictional defenses.” The Tenth Circuit applied United States v. Cotton to hold that an argument that an indictment or information does not charge a crime against the United States is not jurisdictional.

“A guilty plea waives all defenses except those that go to the court’s subject-matter jurisdiction and the narrow class of constitutional claims involving the right not to be haled into court.” The Tenth Circuit held that the defendant’s First Amendment argument did not involve subject matter jurisdiction.

Because the government waived the preclusive effect of defendant’s guilty plea, the court reviewed the defendant’s arguments for plain error and found none.

Tenth Circuit: Board of Immigration Appeals Must Reevaluate § 212 Waiver Denial Due to Judulang

The Tenth Circuit published its opinion in Sosa-Valenzuela v. Holder on August 31, 2012.

Baltazar Sosa-Valenzuela, a lawful permanent resident, shot a gang member and was convicted. The INS (now the DHS) sought to deport him. Sosa-Valenzuela sought a § 212 waiver (since repealed) and later, adjustment of status due to his marriage to an American citizen. An immigration judge (IJ) granted both requests and denied the DHS’s motion to reconsider. The Board of Immigration Appeals (BIA) vacated the IJ’s § 212 waiver and adjustment of status.

The BIA has broad appellate jurisdiction under 8 C.F.R.  § 1003.1 and reviews IJ decisions de novo. It also is required to apply new law to its decisions. The BIA’s broad powers of collateral review do not violate a petitioner’s due process rights because “the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Sosa-Valenzuela was afforded that opportunity.

The Tenth Circuit remanded to the BIA to reevaluate the § 212 waiver decision because the case it relied on in finding Sosa-Valenzuela was ineligible for the waiver had later been found unconstitutional by the Supreme Court in Judulang v. Holder, 132 S. Ct. 476 (2011). The court affirmed the BIA’s denial of adjustment of status due to marriage because its review of the BIA’s exercise of discretion is limited under 8 U.S.C. § 1252 to constitutional claims or questions of law, neither of which was present here.

Tenth Circuit: Unpublished Opinions, 8/31/12

On Friday, August 31, 2012, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Rounds v. Clements

Gee v. Pacheco

United States v. Stroup

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.