SUPREME COURT

STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203
Appeal from the District Court, City and
County of Denver, Colorado
Case No. 2015 CV 031862, Division 424
IN RE:
Petitioner,
INDEPENDENT ETHICS COMMISSION,
v.
Respondent,

COURT USE ONLY

Case No.

COLORADO ETHICS WATCH.

CYNTHIA H. COFFMAN, Attorney General
FREDERICK R. YARGER, Solicitor
General
LISA BRENNER FREIMANN, First
Assistant Attorney General*
KYLE DUMLER, Senior Assistant Attorney
General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 8th Floor
Denver, CO 80203
Telephone: 720-508-6385; 720-508-6415
Registration Numbers: 31175, 18777
*Counsel of Record
PETITION PURSUANT TO C.A.R. 21 FOR A RULE TO SHOW
CAUSE

INTRODUCTION
This case raises a novel question of constitutional and statutory
interpretation: does a party that files a complaint with the Independent
Ethics Commission (Commission) have the right to judicial review of
the Commissions decision to dismiss that complaint as frivolous, when
neither the Colorado Constitution nor section 24-18.5-101(9), C.R.S.
provides such right and no legal obligations flow from the dismissal?
This question arose when Colorado Ethics Watch (Ethics Watch)
sued the Commission, seeking review of the Commissions decision to
dismiss as frivolous a complaint Ethics Watch filed. Article XXIX of the
Colorado Constitution (Article XXIX) creates a two-track system for
ethics complaints. If the Commission deems a complaint to be frivolous,
Article XXIX allows the Commission to dismiss the complaint and does
not require the Commission to investigate, hold a public hearing or
render findings on that complaint. Instead, Article XXIX requires the
Commission to keep frivolous complaints confidential and does not

provide any further rights to a complainant whose complaint has been

dismissed as frivolous.
In contrast, if the Commission determines that a complaint is not
frivolous, Article XXIX requires a public process. The Commission must
investigate the complaint, hold a public hearing, and render findings on
that complaint. Once the Commission issues its findings, section 2418.5-101(9), C.R.S. specifically authorizes judicial review.
Here, the district court denied the Commissions motion to dismiss
Ethics Watchs action seeking judicial review, reading Article XXIX and
section 24-18.5-101(9), C.R.S. to create a new substantive right that has
not before existed in Coloradoa right to public judicial review of
complaints the Commission has deemed meritless and which it must
maintain as confidential.
The Commission petitions this Court to issue a rule to show cause
why Ethics Watchs complaint should not be dismissed. This is a
matter of first impression. Requiring the Commission to respond to
Ethics Watchs complaint and file a record on review will require the
3

Commission to litigate a matter in which the district court lacks subject

matter jurisdiction and will violate the Commissions duty to maintain
the confidentiality of frivolous complaints.
RULE 21(e)(2) FACTORS
A. Identity of the Parties.
1. Petitioner/Defendant: Independent Ethics Commission.
Attorneys for Petitioner/Defendant:
Lisa Brenner Freimann, #31175
Kyle Dumler, #18777
Colorado Department of Law
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 8th Floor
Denver, CO 80203
Email: lisa.freimann@state.co.us; kyle.dumler@state.co.us
Telephone (720) 508-6385; 720-508-6415
Fax number (720) 508-6397
2. Proposed Respondent/Plaintiff: Colorado Ethics Watch.
Attorneys for Proposed Respondent:
Luis Toro, Esq.
Margaret Perl, Esq.
1630 Welton Street, Suite 203
Denver, Colorado 80202
Email: ltoro@coloradoforethics.org; pperl@coloradoforethics.org
Telephone (303) 626-2100
Fax (303) 626-2101

B. Identity of the court below.

The Court below is the Denver District Court; Honorable A. Bruce
Jones, Case name: Colorado Ethics Watch, Plaintiff, v. Independent
Ethics Commission, Defendant (Case No. 2015CV31862).
C. Identity of persons or entities against whom relief is
sought.
The Commission seeks relief in the form of a writ against the
proposed respondent, Ethics Watch.
D. Ruling complained of and the relief being sought.
On July 21, 2015, the district court entered an order denying the
Commissions motion to dismiss. In that order, the district court
addressed the Commissions argument that dismissal of Ethics Watchs
complaint as being frivolous was not final action. The district court
found that the Commissions dismissal of Ethics Watchs complaint as
frivolous was a final action, contrary to the case law cited by the
Commission.

The Commission also asserted that Ethics Watch lacks standing to

seek judicial review. The district court applied the two factors from
Barber v. Ritter, 196 P.3d 238, 246 (Colo. 2008) to determine whether
Ethics Watch has standing to seek judicial review. Under the first
prong, whether Ethics Watch suffered an injury in fact, the district
court found that Ethics Watch had suffered an injury in fact when the
Commission dismissed its complaint. With respect to the second prong,
whether the injury was to a legally protected interest, the court found
Article XXIX allows any person to file a complaint. Therefore, the
district court concluded that Ethics Watch suffered an injury to a
legally protected interest under the constitution.
The Commission seeks an order from this Court holding that
Article XXIX does not permit judicial review of the Commissions
dismissal of a frivolous complaint, that such a dismissal is not
reviewable final action under section 24-18.5-101(9), C.R.S., and that
Ethics Watch is not adversely affected or aggrieved by the
Commissions actions under section 24-4-106, C.R.S. of Colorados
Administrative Procedures Act (APA).
6

E. Why no other adequate remedy is available.

This Courts exercise of original jurisdiction is discretionary and it
determines whether to exercise that discretion by examining the
particular circumstances of each case. City and County of Denver v.
District Court, 939 P. 2d 1353, 1360-61 (Colo. 1997). C.A.R. 21
authorizes the Court to exercise its original jurisdiction to review a trial
courts order if a remedy on appeal would be inadequate. Ortega v.
Colo. Permanente Med. Group, P.C., 265 P.3d 444, 447 (Colo. 2011)
(citing Cardenas v. Jerath, 180 P.3d 415, 420 (Colo. 2008)).
This case raises an issue of first impression and is of significant
public importance. Whether a district court may review the dismissal of
a complaint that the Commission determined to be frivolous, and thus
required to be kept confidential by Article XXIX, is of critical
importance to all individuals against whom complaints may be filed
with the Commission. This issue is also important as a matter of the
Commissions structure and functioning. Until now, findings of
frivolousness have been insulated from judicial review to ensure
7

confidentiality for the benefit of the subject of the complaint. Because

the district court interpreted the Article XXIX and section 24-18.5-101,
C.R.S. contrary to current understandingand in a manner that will
alter the Commissions functioning in the futurethis Court should
exercise its original jurisdiction. See Wiggins v. Wiggins, 279 P. 3d 1, 5
(Colo. 2012) (this Court will generally exercise its original jurisdiction if
the petition raises an issue of first impression that is of significant
public importance).
If the Commission is required to answer Ethics Watchs complaint,
file a record with the court for review, and then argue the merits of its
decision, the Commission will be forced to violate its constitutionally
mandated duty to maintain the confidentiality of complaints deemed
frivolous. As a result, the Commission will suffer injury regardless of
the ultimate outcome of the matter on appeal. Cf. Ortega at 447, citing
Clark v. Dist. Court, 668 P.2d 3, 7 (Colo. 1983) (When a trial courts
order involves records which a party claims are protected by a statutory
privilege an immediate review is appropriate because the damage
that could result from disclosure would occur regardless of the ultimate
8

outcome of an appeal from a final judgment.). As this Court explained,

if ... [the] records are in fact privileged, then the damage caused by
disclosure cannot be remedied on appeal, making review under Rule 21
necessary and appropriate. Hoffman v. Brookfield Republic, Inc., 87
P.3d 858, 861 (Colo. 2004).
C.A.R. 21 relief also may be granted when the trial court lacks
subject matter jurisdiction. See e.g. In re Associated Gov'ts of Northwest
Colo. v. Colo. PUC, 275 P.3d 646 (Colo. 2012) (granting C.A.R. 21 relief
when the petitioner contended the district court lacked subject matter
jurisdiction over a judicial review action); Martin v. District Court of
County of Montrose, 550 P.2d 864 (Colo. 1976) (issuing a rule to show
cause after a denial of a motion to dismiss a judicial review action
arguing lack of standing and concomitant subject matter jurisdiction);
Bustamante v. District Court of Third Judicial Dist., 329 P.2d 1013,
1017-1018 (Colo. 1958) (holding a writ of prohibition as the proper
remedy in a criminal matter where the trial court lacked jurisdiction
over the indictment as the trial would be a useless act causing
unnecessary expense to the public and the defendant).
9

As discussed more fully below, the district court lacks subject

matter jurisdiction over this controversy because Article XXIX and the
Commissions implementing statute do not permit judicial review of the
Commissions decision to dismiss a frivolous complaint. Additionally,
the dismissal is not appealable final action under the APA, and Ethics
Watch is not adversely affected or aggrieved under the APA.
F. The issue presented.
Are Commission determinations of frivolousness, and related
decisions not to initiate public enforcement proceedings, reviewable in
court?
G. Facts necessary to understand the issue presented.
1.

Article XXIX and the Commission.

Amendment 41 of the Colorado Constitution was an initiative

passed by Colorado voters in November 2006. Now codified as Article
XXIX of the Colorado Constitution, Governor Owens declared it
effective on December 31, 2006. Article XXIX is self-executing and

10

effective without any additional action from the General Assembly.

Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008).
Amendment 41 created the Commission, comprised of five
members, no more than two of which can be affiliated with the same
political party. Colo. Const. Art. XXIX, 5(2). In addition, the members
shall be appointed as follows: one by the Colorado senate; one by the
Colorado house of representatives; one by the governor of Colorado; one
by the chief justice of the Colorado Supreme Court; and one, either a
local government official or local government employee, by an
affirmative vote of at least three members of the Commission itself.
Colo. Const. Art. XXIX, 5(2)(a)(I-V).
Article XXIX gives the Commission the authority to administer,
implement, and enforce Amendment 41s provision. Developmental
Pathways, 178 P.3d at 535. Among other duties, the Commission is
charged, to hear complaints, issue findings, and assess penalties on
ethics issues arising under Article XXIX and under any other standard
of conduct or reporting requirement provided by law. Colo. Const. Art.
XXIX, 5(1). Any person may file a written complaint with the
11

Commission asking whether public officers, members of the general

assembly, government employees, or local government officials failed to
comply with Article XXIX or any other standard of conduct or reporting
requirements provided by law. Colo. Const. Art. XXIX, 5(3)(a).
The Commission must conduct investigations, hold public
hearings, and render findings on all non-frivolous complaints. Colo.
Const. Art. XXIX, 5(3)(c). Frivolous complaints, however, may be
dismissed without conducting public hearings, and complaints
dismissed as frivolous [s]hall be maintained confidential by the
commission. Colo. Const. Art. XXIX, 5(3)(b).
Article XXIX authorizes the Commission to adopt reasonable rules
necessary for the purpose of administering and enforcing the provisions
of Article XXIX. Colo. Const. Art. XXIX, 5(1). The Commission
adopted Rule of Procedure 7.F pursuant to this constitutional authority.
Commission Rule 7.F states:
The Commission may determine whether a complaint is frivolous
based on the face of the complaint itself. Alternatively, the
Commission in its discretion may defer a frivolous determination
until after a preliminary investigation of the complaint by the
staff of the Commission. The Commission shall exercise care to
12

the extent practicable not to disclose the contents of the complaint

as part of the preliminary investigation. If after a preliminary
investigation the Commission is unable to determine whether or
not a complaint is frivolous, the Commission may disclose the
complaint to the individual who is the subject of the complaint for
their response in order to aid the Commission in rendering a
frivolous determination.
2.

Complaint 14-07.

On March 21, 2014, Ethics Watch filed a complaint with the

Commission, designated Complaint 14-07. On April 14, 2014, the
Commission met in executive session to review Complaint 14-07. The
Commission voted to stay the matter pursuant to Commission Rule
7.H.1. 1 Review of Complaint 14-07 remained stayed until March 9,
2015, when the Commission voted unanimously to lift the stay and
directed the Commissions Executive Director to conduct a preliminary
investigation of Complaint 14-07 under Commission Rule 7.F, while
continuing to maintain the confidentiality of the complaint until a
frivolous determination could be made.
Pursuant to Commission Rule 7.H.1, a complaint may be stayed by the
Commission on one or more of the following grounds: An action on the
same subject of the complaint is pending before another body with
concurrent jurisdiction.
1

13

On May 11, 2015, the Commission met in executive session to

discuss Complaint 14-07 in order to maintain its confidentiality in the
event the Commission determined the complaint to be frivolous. After
the executive session was concluded, the Commission entered into open
session and voted 3-2 to dismiss Complaint 14-07 as frivolous.
3.

District Court Action.

On May 26, 2015, Ethics Watch filed a complaint in the Denver

District Court seeking judicial review of the Commissions decision to
dismiss as frivolous Complaint 14-07. In response, the Commission
filed a motion to dismiss. After full briefing, the district court, by order
dated July 21, 2015, denied the Commissions motion to dismiss,
holding that the Commissions dismissal of the complaint is a
reviewable final action and that Ethics Watch has standing to bring the
lawsuit. On August 5, 2015, the Commission filed a motion for
reconsideration, which was denied on August 10, 2015.
The Commission filed a motion to stay the trial court proceedings
pending the filing and outcome of this C.A.R. 21 petition. The district
court denied this motion, but granted an enlargement of time until
14

September 21, 2015 to respond to the complaint and until October 5,

2015 to file the record on review.
H. Argument and points of authority.
1. The Commission is vested with the authority to decide
whether a complaint should be dismissed as frivolous.
Article XXIX entrusts the Commission with discretion to initiate
public proceedings on a complaint or, instead, to dismiss a complaint as
frivolous. Article XXIX evinces this intent in two ways. First, it vests
the Commission with the authority to determine whether a complaint is
frivolous without holding a public hearing and requires the Commission
to maintain a frivolous complaint as confidential. Colo. Const. Art.
XXIX, 5(3)(b). Second, while Article XXIX provides that any person
may file a written complaint, it conveys no additional rights to a
complainant whose complaint is dismissed as frivolous. Colo. Const.
Art. XXIX, 5(3)(a).
Constitutional provisions are to be interpreted to give effect to the
intent of the voters by giving words their ordinary and popular
meaning, without engaging in narrow or overly technical construction of
15

the language. Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo. 2004).

[W]hen the language of an amendment is clear and unambiguous, the
amendment must be enforced as written. Id. Courts should not engage
in a narrow or technical reading of language contained in an initiated
constitutional amendment if to do such would defeat the intent of the
people. Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1995). Here,
the plain language of Article XXIX demonstrates that complaints
deemed frivolous, and subject to Article XXIXs rule of confidentiality,
are not subject to judicial review.
It is not unusual for an agencys non-enforcement decisions to be
presumptively insulated from judicial review. The United States
Supreme Court, interpreting the Federal Administrative Procedure Act,
explained that [a]n agencys decision not to prosecute or enforce,
whether through civil or criminal process, is a decision generally
committed to an agencys absolute discretion. Heckler v. Chaney, 470
U.S. 821, 831 (1985) (emphasis added). Indeed, other federal cases
emphasize the importance of insulting non-enforcement decisions from
judicial review as a basic principle of the separation of powers. See, e.g.,
16

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ([A] citizen lacks
standing to contest the policies of the prosecuting authority when he
himself is neither prosecuted nor threatened with prosecution.); cf.
Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005) (describing
the deep-rooted nature of law-enforcement discretion, even in the
presence of seemingly mandatory legislative commands).
In Heckler, the United States Supreme Court noted:
[w]hen an agency refuses to act it generally does not exercise
its coercive power over any individuals liberty or property
rights, and thus does not infringe upon areas that courts
often are called upon to protect. Similarly, when an agency
does act to enforce, that action itself provides a focus for
judicial review, inasmuch as the agency exceeded its
statutory powers.
Heckler, 470 U.S. at 832. The dismissal of Complaint 14-07 was not the
exercise of the Commissions coercive power over an individuals liberty
or property rights. In contrast, when the Commission decides that a
complaint is not frivolous, and subsequently exercises its enforcement
powers by investigating, holding a hearing, and rendering findings
pursuant to section 5(3)(c) of Article XXIX, those findings are
reviewable final action under section 24-18.5-101(9), C.R.S.
17

Other regulatory bodies in Colorado are granted discretion to

dismiss complaints or institute enforcement proceedings, and are not
subject to judicial review when they decline to initiate enforcement
proceedings. For example, Colorado Attorney Regulation Counsel
(Regulation Counsel) has sole authority to make an inquiry regarding
facts of a complaint against an attorney and determine if there is an
allegation that would constitute grounds for discipline. See C.R.C.P.
251.9. If Regulation Counsel decides not to proceed with an
investigation, its [d]ecision shall be final, and the complaining witness
shall have no right of appeal. Id.
Like the constitutional confidentiality provision applying to
frivolous complaints, proceedings conducted by the Colorado
Commission on Judicial Discipline are confidential unless and until the
Judicial Disciplinary Commission files a recommendation with the
Supreme Court for one or more sanctions of a judges conduct. Colo.
RJD. Rule 6.5. Both Regulation Counsel and the Commission on
Judicial Discipline maintain confidentiality of dismissed complaints and
neither provide for judicial review of the propriety of the determination
18

to dismiss a complaint. Indeed, were the district courts order in this

case to stand, its reasoning would open the door to arguments that the
non-enforcement decisions of other agencies, like Regulation Counsel,
may be reviewable in court.
2. The dismissal of a frivolous complaint is not final action
subject to judicial review under the plain language of
Article XXIX.
The district court ruled that Ethics Watch has a legally protected
interest under Article XXIX to challenge the dismissal of its complaint
because public respect and confidence would be diminished in the
Commission if complainants were not permitted to challenge the
dismissal of a frivolous complaint. The district court order ignores the
plain language of Article XXIX, and it ignores that the very design of
the Commissionthe requirement of bipartisanship and the
requirement that members be appointed by all three branches of
governmentis the mechanism by which public confidence in the
Commissions proceedings is guarded.

19

For example, in some cases, a complaint may be dismissed as

frivolous without the target of the complaint ever knowing the matter
was filed. As a result, if judicial review were allowed, the frivolity of a
complaint could be litigated without the target of the complaint ever
participating in the actiona circumstance that could raise due process
and fairness concerns. Moreover, if the dismissal of a frivolous
complaint is appealable, the complaint may lose its confidentiality and
the target of the frivolous complaint may be harmedindeed, that is
precisely what occurred in this case.
3. Judicial review of frivolous complaints will frustrate the
Commissions duty to maintain strict confidentiality.
The district court found any confidentiality issues could be
addressed by a suppression order. However, any review of a dismissed
complaint with or without a protective order, circumvents the plain and
unambiguous language of the Constitution. Colo. Const. Art. XXIX,
5(3)(b) (Complaints dismissed as frivolous shall be maintained
confidential by the commission.). The plain language of Amendment
41 evinces the voters intent that there be no subsequent scrutiny of any
20

dismissed frivolous complaint. Judicial review of a dismissed complaint

would forgo the confidentiality protection, and allow the names and
allegations to be revealed to the reviewing court. This result is contrary
to the plain language of Article XXIX.
4. The dismissal of a frivolous complaint is not subject to
judicial review under the C.R.C.P. 106 or the APA.
Ethics Watchs complaint in the district court case contains both a
claim for relief under C.R.C.P. 106 and a claim for judicial review under
section 24-4-106, C.R.S., of the APA. Neither of these avenues of
general judicial review displace the more specific provisions of Article
XXIX and the Commissions implementing statute.
Rule 106. Rule 106 provides for judicial review only in the
limited circumstances that there is no other plain, speedy and adequate
remedy otherwise provided by law. See State of Colo. v. Dist. Court of
Denver, 802 P.2d 473, 476-77 (Colo. 1990) (finding that judicial review
under 42-2-122.1(9)(b) and the APA provided a plain, speedy and
adequate remedy to review the decision to revoke a drivers license and
therefore the remedies of C.R.C.P. 106(a)(4) were unavailable). Because
21

section 24-18.5-101(9), C.R.S. provides for the right of judicial review of

any final action of the Commission, C.R.C.P. 106 does not apply. See In
re Associated Gov'ts of Northwest Colo., 275 P.3d at 648 (holding that
where a statute provides a right of review of an administrative decision,
the statute is the exclusive means to secure review); Chonoski v. State
of Colo., 699 P.2d 416 (Colo. App. 1985) (affirming trial courts dismissal
of a complaint, filed under 24-4-106, C.R.S., and C.R.C.P. 106, for lack
of jurisdiction due to no final action).
Judicial Review under the APA. For three reasons, the
judicial review provisions of the APA are likewise inapplicable. First,
both Article XXIX and section 24-18.5-101, C.R.S. contain specific
judicial review provisions that displace the more general provisions of
the APA. Second, the dismissal of a complaint as frivolous is not a
final action under the APA. Third, Ethics Watch is not an aggrieved
party under the APA, and therefore does not have a right to invoke
judicial review.
As an initial matter, the APA does not apply to this case.
Section 24-18.5-101(9), C.R.S., provides for judicial review. Article
22

XXIX makes clear that this judicial review applies only in the case of
complaints deemed not to be frivolous and subject to public proceedings.
This specific judicial review provision displaces the more general
provisions of the APA. See, e.g., Colo. State Bd. of Medical Examiners
v. Reiner, 786 P.2d 499, 501 (Colo. App. 1989) (Thus, insofar as the
provisions of [the APA] conflict with the specific provisions of the
Medical Practice Act, the latter are deemed controlling as to
professional disciplinary proceedings before the Board.); Zappas v.
Indus. Comm., 543 P.2d 101, 102 (Colo. App. 1975) (The appeal
procedures under the Workmens Compensation Act are complete and
definitive and constitute an organic act which is self-operational
without the need of supplementation from the Administrative
Procedure Act.).
Even assuming the APA applies, it does not provide an avenue for
review. Section 24-4-106(7), C.R.S., provides that[f]inal agency action
under this or any other law shall be subject to judicial review as
provided in this section. (emphasis added). The Commissions
dismissal of Complaint 14-07 is not final action under section 24-18.523

101(9), C.R.S. because the dismissal neither involves an adjudication of

rights or obligations nor do any legal obligations flow from the dismissal
of the complaint. 2
The APA defines action to include the whole or any part of an
agency rule, order, interlocutory order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act. C.R.S. 24-4-102(1). For
agency action to be final, two criteria must be met: (1) the action must
mark the consummation of the agencys decision making process; and
(2) the action must be one by which rights or obligations have been
determined or from which legal obligations will flow. Chittenden v.
Colo. Bd. of Social Work Examiners, 292 P.3d 1138, 1141 (Colo. App.
2012).
The Commissions dismissal of Complaint 14-07 does not amount
to a rule, sanction, or the denial of a license; the dismissal does not
2

For the same reasons, the frivolous finding is not final action under 24-18.5101(9), C.R.S. See 24-18.5-101(9), C.R.S. (stating that [a]ny final action of the
commission concerning a complaint shall be subject to judicial review by the
district court for the city and county of Denver). Read in conjunction with Article
XXIX, which grants the Commission discretion to decline to initiate public
enforcement proceedings, this statute does not provide an avenue of judicial review
of frivolous complaints.
24

determine any persons rights or obligations; and no legal obligations

flow from the dismissal. Cf. Chittenden at 1141. Rather, the
Commissions dismissal of Complaint 14-07 as frivolous amounts to a
determination by the Commission that Complaint 14-07 was filed
without a rational argument for the Commissions involvement based
on the facts or law. See Commission Rule 3.A.5. (defining frivolous).
Case law construing the APAs final action requirement supports
this conclusion. In Colorado Board of Medical Examiners v. B.L.L., 820
P.2d 1190 (Colo. App. 1991), the Colorado Board of Medical Examiners,
after conducting an investigation, dismissed a proceeding through a
confidential letter of concern. The target of the investigation appealed
the issuance of the letter. The Colorado Court of Appeals held that the
dismissal of disciplinary proceedings after an investigation was not
subject to judicial review. The court reasoned that a letter of concern is
not appealable disciplinary action under the Medical Practice Act
because the letter has no adverse consequences to the doctor and is
confidential. Id. at 1191.

25

In the proceeding below, the district court distinguished B.L.L.

because there, it was the target of the complaint who appealed the
dismissal and, here, it is the complainant who is appealing the
dismissal. For purposes of a final action determination, however,
whether the target of the complaint or the complainant commences the
action is immaterial. Instead, the determination is based on whether
the agencys action decided rights or obligations, or whether legal
consequences flowed from the agencys action. As a result, B.L.L.
supports the conclusion that Ethics Watchs complaint should be
dismissed.
Finally, even if the APA applies and a Commissions dismissal of a
frivolous complaint may be considered a final action, Ethics Watch is
not an aggrieved party, and is therefore not entitled to judicial review
under the APA. In order to bring a judicial review action under the
APA, a person or party must be adversely affected or aggrieved by the
agency action at issue. See 24-4-106(1), C.R.S. To satisfy this
standard, a plaintiff must allege that she has sustained an injury in
fact to an interest which, as a matter of law, is entitled to legal
26

protection. State Dep't of Personnel v. Colorado State Personnel Bd.,

722 P.2d 1012, 1017 (Colo.1986) (citing Cloverleaf Kennel Club, Inc. v.
Colorado Racing Commn, 620 P.2d 1051, 1057 (Colo. 1980)).
As explained above, Article XXIX vests the Commission with
authority to decide when a complaint should be dismissed as frivolous
and when it should be subject to public proceedings. While Article
XXIX provides any person the right to file a complaint, it does not
confer any additional legal rights to the complainant. For these
reasons, Article XXIX does not provide Ethics Watch with a legally
protected interest in the appeal of the dismissal of Complaint 14-07.
Accordingly, Ethics Watch is not adversely affected or aggrieved.
CONCLUSION
Like other administrative bodies in Colorado, the Commission is
vested with discretion to decide which complaints should be dismissed
as frivolous, and which complaints the Commission should investigate,
hold a public hearing, and render findings. When the Commission
makes a decision not to initiate formal, public enforcement proceedings,
that decision is not subject to judicial review.
27

For these reasons, the Commission requests that this Court issue
a rule to show cause as to why the district courts order denying the
Commissions motion to dismiss should not be reversed.
I.

List of supporting documents.

Exhibit 1.

Complaint (without supporting exhibits).

Exhibit 2.

Motion to Dismiss.

Exhibit 3.

Opposition to Motion to Dismiss.

Exhibit 4.

Reply to Opposition to Motion to Dismiss.

Exhibit 5.

District Court Order denying Motion to Dismiss.

Exhibit 6.

Motion for Reconsideration of Order denying

Motion to Dismiss.

Exhibit 7.

District Court Order denying Motion for

Reconsideration.

Exhibit 8.

Motion to Stay Proceedings pending C.A.R. 21

Petition.

Exhibit 9.

Order Denying Motion for Stay.

Exhibit 10.

Order granting motion for enlargement of time to

file response to complaint up until September 21,
2015 and filing record up until October 5, 2015.

Exhibit 11.

Commission Rules of Procedure.

28

Respectfully submitted this 11th day of September, 2015.

CYNTHIA H. COFFMAN
Attorney General
/s/ KYLE DUMLER
KYLE DUMLER, *
Senior Assistant Attorney General
Business and Licensing Section
Attorneys for Petitioner
*Counsel of Record

29

CERTIFICATE OF SERVICE
This is to certify that I have duly served the within PETITION
PURSUANT TO C.A.R. 21 FOR A RULE TO SHOW CAUSE upon
all parties herein via the ICCES E-filing service this 11th day of
September, 2015, as follows:
Luis Toro, Esq.
Margaret Perl, Esq.
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202
The Honorable A. Bruce Jones
District Court, City and County of Denver
1437 Bannock Street, Division 424
Denver, Colorado 80202
/s/_Janet Price ____________________