Colorado Ethics Watch v. Independent Ethics Commission , 369 P.3d 270 ( 2016 )

CHIEF JUSTICE RICE

delivered the Opinion of the Court.,

4 1 In this original proceeding, we consider whether the Independent Ethics Commission's ("IEC") decision to dismiss a complaint against a public officer as frivolous is subject to judicial review, The plaintiff contends that the General Assembly authorized such review when it enacted section 24-18.5-101(9), CRS. (2015), which provides that final action of the commission concerning a complaint shall be subject to judicial review." The Colorado Constitution, however, forbids the General Assembly from "limiting] or restrict[ing]" IEC's powers. Colo. Const. art. XXIX, § 9. Moreover, although the constitution provides that "penalties may be provided by law," id. § 6 (emphasis added), it further provides that IEC "may dismiss frivolous complaints without conducting a public hearing," id. § 5@@8)(b). We conclude that, while the General Assembly may authorize judicial review of IRC's enforcement decisions, it may not encroach upon IEC's décisions not to enforce. Therefore, we hold that the General Assembly's "judicial review" provision does not apply to frivolity dismissals, Accordingly, we make our rule to show cause absolute, and we remand this case to the trial court with instructions to dismiss the plaintiffs complaint.

I. Facts and Procedural History

T2 In 2006, «Colorado voters passed Amendment 41 and created IEC, an independent commission tasked with' allegations of government officials' misconduct. See id. § 5 ("Amend. 41"). The amendment authorizes any person to file a complaint "asking whether a public officer, member of the general assembly, local government official, or government employee has failed to comply" with certain standards of, conduct. (Id. § 5(8)(a) Although IEC must "conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint," it may dismiss frivolous complaints without performing such actions. Id. § 5(8)b)-(c). When IEC dismisses 2a complaint as frivolous, it must keep that complaint confidential, Id. § 5(8)(b).

T3 In 2014, Plaintiff Colorado Ethics Watch ("Ethics Watch"), a self-styled watchdog organization, filed a complaint with IEC regarding a commissioner in 'Elbert County. After initially staying the matter, IEC began reviewing Ethics Watch's complaint in March 2015. IEC conducted a preliminary investigation, and in May 2015, after meeting in executive session to discuss the complaint, IEC dismissed it as frivolous. Subsequently, Ethics Watch filed a request with IEC under the Colorado Open Records Act, §§ 24-72-200.1 to -206, C.R,S. (2015), seekmg "Lalll documents collected, reviewed or generated in connection with" its complaint. IEC denied the request, mung Amendment 41's con-fidentlahty provision 'and stating that it "shall maintain all the documents responsive to [the] request as confidential." .

4 Ethics Watch then sued IEC, claiming relief under both the State Administrative Procedure Act ("APA"), § 24-4-106, C.R.8, (2015), and C.R.C.P. 106. In particular, Ethics Watch sought an order from the trial court declaring IRC's frivolity determination "unlawful" and compelling IEC to "proceed with an investigation, to be followed by a public hearing." 'After the trial court denied IEC's motion to dismiss for lack of subject matter jurisdiction, IEC asked us to exercise our original jurisdiction pursuant to CAR. 21. We issued a rule to show cause why the motion to dismiss should not be granted.¹

I. Original Jurisdiction

15 "Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited both in purpose and availability." Dwyer v. State, 2015 CO 58, ¶ 4, 357 P.3d 185, 187. That said, we "generally elect to hear C.A.R. 21 cases that raise issues of first impression and that are of significant public importance." Id., 357 P.3d at 187-88. This case satisfies both criteria. We have never considered whether IEC's determinations of frivolousness are reviewable. Furthermore, this case presents an important question, as its resolution 1mphcates IEC's operations going forward.

HIL. Standard of Review

- 16 Because the pertinent facts of this case are undisputed, we review the trial court's denial of IEC's motion to dismiss under C.R.C.P. 12(b)(1) de novo. See Medina v. State, 35 P.3d 443, 452 (Colo.2001).

IV, Analysis .

T7 To determine whether IBC's frivolity determinations are subject to judicial review, we first examine the relevant text of Amendment 41, along with its statutory counterpart, section 24-18.5-101. We then consider whether Amendment 41 permits the General Assembly to authorize judicial review of IEC's frivolity determinations. We conclude that the amendment only allows the legislature to sanction review of IEC's enforcement decisions; thus, the General Assembly may not encroach upon IEC's decisions not to en-foree, Therefore, we hold that section 24-18.5-101(9) does not apply to frivolity dismissals,

A. Amendment 41 and Section 24-18.5-101

18 Amendment 41 creates IEC and outlines its investigative function. It provides that IEC "may dismiss frivolous complaints without conducting a public hearing." Amend. 41, § 5(8)®). When IEC does dismiss a complaint as frivolous, that complaint "shall be maintained confidential by [IRC]." Id. For non-frivolous complaints, however, IEC "shall conduct an investigation, hold a public hearing, and lender findings." Id. § 5(8)(c). Add1t10nally, the amendment in-eludes a "Penalty" section that features two 'core components: (1) any public official "who breaches the public trust ... shall be liable" for certain fines; and (2) “[t]he manner of recovery and additional penalties may be provided by law." Id. § 6 (emphasis added). Finally, the, amendment provides that "[lleg-islation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions 'of this article or the powers herein granted." Id. § 9 (emphasis added).

T9 Similar to Amendment 41, section 24-185-101 outlines various IEC functions. Only subsection (9) is relevant here, 'It provides as follows: "Any final action of [IEC] concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver" § 24-18.5-101(9).²

110 Having articulated these provisions, we now turn to the substantive question presented here: whether IBC's frivolity determinations are subject to judicial review.

B. IEC's Frivolity Determinations Are Not Subject to Judicial Review

{ 11 To begin with, we note that IEC is not an executive agency; it is instead an independent, constitutionally created commission that is "separate and distinet from both the executive and legislative branches." Dev. Pathways v. Ritter, 178 P.3d 524, 532 (Colo.2008). Thus, Amendment 41 articulates what the General Assembly can and cannot do. Put differently, any authority that the General Assembly may exercise regarding IHC's operations derives exclusively from Amendment 41 itself, not from standard principles of administrative agency law.

12 Pursuant to Amendment 41, the General Assembly can provide for additional penalties when an official breaches the public trust. See Amend, 41, § 6. As such, Amendment 41 vests the General Assembly with authority to enact legislation involving situations where IEC has enforced. a penalty against an official. But the General Assembly cannot enact legislation that "limit[s] or restrict[s]" IEC's powers. Id. § 9. Therefore, because Amendment 41 only permits the legislature to act with respect to IEC's enforcement actions, the General Assembly cannot constitutionally enact legislatwn pertaining to any IEC decisions that do not involve enforcing penalties.

T18 Given this context, the scope of section 24-18.5-101(9)-which, again, provides that "[alny final action of [IEC] concerning a complaint shall be subject to judicial review"-is necessarily limited. It can only encompass enforcement getions, But IEC's dismissal of a complaint as frivolous does not involve the enforcement of penalties; rather, it represents IEC's decision not to enforce. As discussed, the General Assembly is constitutionally prohibited from enacting legislation that could upend such a decision. See Amend. 41, § 9. Therefore, seetion 24-18.5-101(9) simply cannot apply to IEC's dismissals of frivolous complaints.

114 We note that interpreting section 24-18.5-101(9) to exclude frivolity determinations preserves its constitutionality.³ We presume statutes to be constitutional, and we will not strike one down "unless a 'clear and unmistakable' conflict exists between the statute and a provision of the Colorado Constitution." Coffman v. Williamson, 2015 CO 35, ¶13, 348 P.3d 929, 934 (quoting E-470 Pub. Highway Auth, v. Revenig, 91 P.3d 1038, 1041 (Colo.2004)), We discern no such conflict here. By its terms, subsection (9) authorizes judicial review of "final action[s]." It is entirely reasonable that, in choosing this language, the General Assembly differentiated between enforcement and non-enforcement decisions, as does our constitution. That is, the General Assembly recogmzed both what Amendment 41 permits (Le., legislation involving penalties) and what it forblds (legislation restricting IEC's powers), and it acted accordingly. Thus, section 24-18.5-101(9) sanctions judicial review of IRC's enforcement decisions without unconstitutionally trespassing on IRC's power to dismiss frivolous complaints.

[ 15 Ethics Watch nevertheless insists that IEC's dismissal of its complaint constituted a final action, as it signified the end of IEC's review, Cf. MDC Holdings, Inc: v. Town of Parker, 223 P.3d 710, 721 (Colo.2010) ("A final decision marks the consummation of the agency's decision-making process and is one from which legal consequences flow." (emphasis added)). This argument misses the mark. Ethics Watch characterizes IEC's dismissal as "a Final Agency Action." Response to Rule to Show Cause, at 10. But IEC is not an agency-it is an independent, constitutionally created commission. See Dev. Pathways, 178 P.3d at 530 (noting that Amendment 41 "makes clear that [IBC] is ... 'an entity separate and distinct from the executive and legislative branches"), Thus, generalized case law regarding an agency's "final action" is simply inapplicable to IEC. Instead, it is the clear mandate of the constitution-which provides that "in no way shall [any] legislation limit or restrict" IRC's powers, Amend. 41, § 9-that controls.

T 16 For example, at oral argument, Ethics Watch attempted to distinguish Heckler v. Chaney, 470 T.8. 821, 837-38, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), in which the Supreme Court held that the federal APA did not authorize judicial review of the Food and Drug Administration's refusal to take requested enforcement actions. In Ethics Watch's view, the instant case is more akin to Bachowski v. Brennan, 502 F.2d 79, 88 (3d Cir.1974), rev'd on other grounds sub nom. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 LEd.2d 377 (1975), in which the Third Circuit held that the APA. allowed the plaintiffs to challenge in court the Secretary of Labor's refusal to set aside a union election. The Bachowski court noted that the Secretary's decision hinged on "limited and clearly defined" statutory factors, resulting in "a rather straightforward factual determination" that was not "beyond the judicial capacity to supervise." Id.; cf. Heckler, 470 U.S. at 833-34, 105 S.Ct. 1649 (distinguishing Bachowski). Ethics Watch contends that, because IEC has promulgated rules regarding frivolous complaints, such "clearly defined" factors exist here, meaning a court may review whether IEC abused its disceretion in dismissing a complaint as frivolous.

T 17 In focusing on the minutiae of Heckler and Bachowski, Ethics Watch misses the larger point: Both of these cases are inappo-site. That is, both considered whether the APA authorized judicial review of agency action. If IEC were a creature of statute, we would likely conduct the same inquiry.⁴ But it is not. Ethics Watch has pointed us to no case law suggesting that the general rules of administrative agency law should apply to IEC, a constitutionally created entity whose birthing document explicitly prohibits the General Assembly from interfering with it. See Amend. 41, § 9.

[ 18 Two additional factors bolster our conclusion that IRC's frivolity determinations are not reviewable. First, we note that Amendment 41 features no language authorizing judicial review of such, determinations. And second, the confidentiality requirement for frivolous complaints would in any event render such review impossible.

T19 Ethics Watch disputes the latter point, arguing that the scope of Amendment 41's confidentiality provision is in fact very narrow. , Ethics Watch specifically contends that, to the extent that IEC's preliminary investigation of its complaint resulted in any written materials, such documents are not subject to the confidentiality rule. Instead, Ethics Watch asserts that the amendment's c'onfi'dentiality language applies only to its original, complaint. See id. § 5(8)b) ("Complaints dismissed as frivolous shall be maintained confidential by [IRC].").

T20 This construction makes no sense. Requiring IEC to keep only the complaint confidential from Ethics Watch would be pointless; given that Ethics Watch is the very party who authored the complaint, it is assuredly already aware of its contents. Indeed, Ethics Watch is free to publicize those contents to whomever it chooses. .'Therefore, to accept Ethics Watch's narrow reading of Amendment 41 would be to defang its confidentiality requirement and render it a nullity. Cf. Colo. Educ. Ass'n v. Rutt, 184 P.3d 65, 80 (Colo.2008) (rejecting an interpretation of a constitutional provision as "contrary to the electorate's intent" because the interpretation would "render [that provision] a nullity"). Rather, the only logical construction of Amendment 41's confidentiality language is that it applies to IEC's investigative work product, {e., to ary documents that the commission may create in the course of determining whether a complaint is frivolous. '

421 And therein lies the problem. Again, Ethics Watch seeks judicial review of IEC's determination under either the APA or C.R.C.P. 106.⁵ To conduct such a review, a court must examine the underlying record. See § 24-4-106(6) ("In every case of agency action, the record ... shall include the original or certified copies of all pleadings, applications, evidence, exhibits, and other papers presented to or considered by the agency....",. (emphases added); CRCP. 106(a)(4)(I) ("Review shall be limited to a determination of whether the [governmental body] has ... abused its discretion, based on the emdence in the record before the [body]." (emphasis added)). But when IEC dismisses a frivolous complaint, it is constitutionally prohibited from disclosing the very record that would ordinarily form the basis for judicial review.⁶ Therefore, Amendment 41's confidentiality requirement further militates against judicial review of: IEC’s fmvohty determinations.⁷

22 Accordingly, we conclude that IEC's decision to dismiss a complaint as frivolous i is not subject to judicial review.⁸

V. Conclusion

. T28 The language of Amendment 41 is clear. Although the General Assembly may enact legislation relating to IEC's enforcement decisions, it may not encroach upon IEC's decisions not to enforce. As a result, section 24-18.5-101(9) does not apply to frivolity dismissals. Therefore, we hold that IEC's decision to dismiss a complaint as frivolous is not subject to judicial review. Accordingly, we make, our rule to show ecause absolute, and we remand this case to the trial court with instructions to dismiss Ethics Wateh's complaint for lack of jurisdiction.

JUSTICE GABRIEL dissents, and JUSTICE MARQUEZ and JUSTICE HOOD join in the dissent.

1 . In addition to arguing lack of subject matter jurisdiction under CRCP. 12(b)(1), IEC also argued that Ethics Watch failed to state a claim for relief under C.R.C.P. 12(b)(5). Because we focus here on reviewability, we do not address this alternative argument.

2 . The statute also addresses frivolousness in the context of gift bans, See §.24-18.5-101(5). At oral argument, however, Ethics Watch conceded that it was not relying on this provision .in its argument for judicial review.

3 . In its Response to Rule to Show Cause, Ethics Watch characterized IRC's petition as urging us to deem section 24-18.5-101(9) unconstitutional "as applied to judicial review of erroneous determinations that a complaint is frivolous." IEC, however, never made such an argument, and it confirmed at oral argument that it is not asking us to declare subsection (9) unconstitutional.

4 . Even in this context, IBC's own rules would be of questionable relevance. In both Heckler and Bachowski, the courts considered whether the statute featured clearly defined factors; they did not examine any rules that the agency had promulgated.

5 , Because we conclude that IRC's fnvohty determinations are not subject to judicial review at all, we need not résolve the procedural propriety of Ethics Watch's claims. Arguably, however, a claim under the APA would be improper for any IEC-related matter. The APA applies to executive agencies, See § 24-4-107, C.R.S. (2015). Once again, IEC is not an agency-it is an independent, constitutionally created, commission. See Dev. Pathways, 178 P.3d at 535 ("Amendment [41] creates a super-agency, a commission set apart from the legislative and executive branches of government. ...").

6 . At oral argument, Ethics Watch suggested that a court could scrutinize certain documents on judicial review while simultaneously shielding them from public view. Whether this is true or not is irrelevant. IEC is not just required to keep its work product confidential from the public at large; it must keep such documents confidential from everyone, including the complaining party.

7 . To the extent that Ethics Watch contends that a court could render a ruling without reviewing IEC's work product-that is, simply pronounce whether a complaint alone is frivolous on its face-its argument is unavailing. This would place IEC in the bizarre position of conducting a preliminary investigation but then being forbidden from citing the results of that investigation in court. Essentially, such a procedure would force IEC to defend its behavior in an adversarial proceeding with one hand tied behind its back.

8 . Because we conclude that IBC's frivolity determinations are not subject to judicial review, we need 'not consider whether Ethics Watch has standing to bring this lawsuit: