IEC v. Ethics Watch Rule 21 petition

8/20/2019 IEC v. Ethics Watch Rule 21 petition

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SUPREME COURT

STATE OF COLORADO

2 East 14th Avenue

Denver, CO 80203

COURT USE ONLY

Case No.

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,

COLORADO ETHICS WATCH.

CYNTHIA H. COFFMAN, Attorney General

FREDERICK R. YARGER, SolicitorGeneral

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; 720-508-6415Registration Numbers: 31175, 18777

*Counsel of Record

PETITION PURSUANT TO C.A.R. 21 FOR A RULE TO SHOW

CAUSE


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INTRODUCTIONThis 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 Commission’s 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 Commission’s 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


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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 24-

18.5-101(9), C.R.S. specifically authorizes judicial review.

Here, the district court denied the Commission’s motion to dismiss

Ethics Watch’s 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 Colorado—a 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 Watch’s complaint should not be dismissed. This is a

matter of first impression. Requiring the Commission to respond to

Ethics Watch’s complaint and file a “record” on review will require the


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

matter jurisdiction and will violate the Commission’s 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: [email protected]; [email protected]

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: [email protected]; [email protected]

Telephone (303) 626-2100

Fax (303) 626-2101


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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

Commission’s motion to dismiss. In that order, the district court

addressed the Commission’s argument that dismissal of Ethics Watch’s

complaint as being frivolous was not final action. The district court

found that the Commission’s dismissal of Ethics Watch’s complaint as

frivolous was a final action, contrary to the case law cited by the

Commission.


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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 Commission’s

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

Commission’s actions under section 24-4-106, C.R.S. of Colorado’s

Administrative Procedures Act (“APA”).


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E.

Why no other adequate remedy is available.

This Court’s 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

court’s 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

Commission’s structure and functioning. Until now, findings of

frivolousness have been insulated from judicial review to ensure


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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 understanding—and in a manner that will

alter the Commission’s functioning in the future—this 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 Watch’s 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 court’s

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


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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).


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As discussed more fully below, the district court lacks subject

matter jurisdiction over this controversy because Article XXIX and the

Commission’s implementing statute do not permit judicial review of the

Commission’s 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


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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 41’s 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


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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


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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 ornot 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 Commission’s 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.

1 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.


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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 Commission’s 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 Commission’s motion to dismiss,

holding that the Commission’s 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


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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


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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 XXIX’s rule of confidentiality,

are not subject to judicial review.

It is not unusual for an agency’s 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 agency’s decision not to prosecute or enforce,

whether through civil or criminal process, is a decision generally

committed to an agency’s 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.,


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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 individual’s 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 Commission’s coercive power over an individual’s 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.


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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 judge’s 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


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to dismiss a complaint. Indeed, were the district court’s 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 Commission—the requirement of bipartisanship and the

requirement that members be appointed by all three branches of

government—is the mechanism by which public confidence in the

Commission’s proceedings is guarded.


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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 action—a 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 harmed—indeed, that is

precisely what occurred in this case.

3.

Judicial review of frivolous complaints will frustrate the

Commission’s 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


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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 Watch’s 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 Commission’s 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 driver’s license and

therefore the remedies of C.R.C.P. 106(a)(4) were unavailable). Because


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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 court’s 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


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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 Workmen’s 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 Commission’s

dismissal of Complaint 14-07 is not “final action” under section 24-18.5-


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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 agency’s 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 Commission’s 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 § 24-18.5-

101(9), C.R.S. See § 24-18.5-101(9), C.R.S. (stating that “[a]ny final action of thecommission concerning a complaint shall be subject to judicial review by thedistrict court for the city and county of Denver”). Read in conjunction with Article

XXIX, which grants the Commission discretion to decline to initiate publicenforcement proceedings, this statute does not provide an avenue of judicial review

of frivolous complaints.


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determine any person’s rights or obligations; and no legal obligations

flow from the dismissal. Cf. Chittenden at 1141. Rather, the

Commission’s 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 Commission’s involvement based

on the facts or law. See Commission Rule 3.A.5. (defining “frivolous”).

Case law construing the APA’s “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.


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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 agency’s action decided rights or obligations, or whether legal

consequences flowed from the agency’s action. As a result, B.L.L.

supports the conclusion that Ethics Watch’s complaint should be

dismissed.

Finally, even if the APA applies and a Commission’s 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


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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 Comm’n, 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.


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For these reasons, the Commission requests that this Court issue

a rule to show cause as to why the district court’s order denying the

Commission’s 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.


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Respectfully submitted this 11th day of September, 2015.

CYNTHIA H. COFFMAN

Attorney General

/s/ KYLE DUMLER

KYLE DUMLER, *

Senior Assistant Attorney GeneralBusiness and Licensing Section

Attorneys for Petitioner

*Counsel of Record


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CERTIFICATE OF SERVICE

This is to certify that I have duly served the within PETITIONPURSUANT 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 415Denver, 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 ____________________

IEC v. Ethics Watch Rule 21 petition

Documents

Transcript of IEC v. Ethics Watch Rule 21 petition