User Name: Julianna Wade

Date and Time: Dec 18, 2015

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1.

Sherritt v. Rocky Mt. Fire Dist., 205 P.3d 544

Client/Matter: TABOR
Content Type
Cases

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Court: Colorado

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Sherritt v. Rocky Mt. Fire Dist.

Court of Appeals of Colorado, Division One
February 19, 2009, Decided
Court of Appeals No. 08CA0914
Reporter
205 P.3d 544; 2009 Colo. App. LEXIS 222

Jay Sherritt, Petitioner-Appellant, v. Rocky Mountain

Fire District, Respondent-Appellee, and Colorado Office
of Administrative Courts, Appellee.
Subsequent History: Released for Publication June 3,
2009.
Prior History: [**1] Office of Administrative Courts. OS
No. 2008-001.
Disposition: ORDER AFFIRMED.

Core Terms
appropriate order, violations, sanctions, spending limit,
provides

Case Summary

Colo. Rev. Stat. 1-45-117. However, the ALJ declined

to impose a fine in the amount requested by petitioner.
Instead, the ALJ fined the fire district $ 400, citing her
authority under Colo. Const. art. XXVIII, 9(2)(a) to
impose an appropriate order, sanction or relief. The
court ruled that the ALJ's findings had record support
and were neither arbitrary, capricious, unsupported by
the evidence, nor contrary to law. The ALJ found that
public funds would be used to satisfy the penalty, and
therefore, a large fine would compound the violation.
Also, Colo. Rev. Stat. 1-45-117(4) (2008) provided the
basis for sanctions.
Outcome
The order was affirmed.

LexisNexis Headnotes
Administrative Law > Judicial Review > Standards of
Review > Arbitrary & Capricious Standard of Review

Procedural Posture
Appellant petitioner challenged the judgment of the
Colorado Office of Administrative Courts, declining to
impose a fine in the amount requested by the petitioner
against respondent fire district, pursuant to the
petitioner's action under the Fair Campaign Practices
Act, Colo. Rev. Stat. 1-45-101 to 1-45-118 (2008).

Administrative Law > Judicial Review > Standards of

Review > Substantial Evidence

HN1 On review, an agency decision will be sustained

unless it is arbitrary, capricious, unsupported by the
evidence, or contrary to law. Colo. Rev. Stat. 24-4106(7) (2008).
Governments > Legislation > Interpretation

Overview
The petitioner filed a complaint alleging that the fire
district violated Colo. Rev. Stat. 1-45-117(1)(a)(I)(C)
(2008), because it expended public money to urge
electors to vote in favor of a ballot issue. The petitioner
sought a civil penalty in the amount of $ 11,857.11,
representing triple the amount spent by the fire district,
under Colo. Const. art. XXVIII, 10, the campaign and
political finance article. An administrative law judge
(ALJ) found that the printing and postage costs
represented public funds that were used in violation of

HN2 When interpreting a statute, a court's primary task

is to give effect to the intent of the legislature. A court
relies on the plain language of the statute and construes
words and phrases according to their plain and ordinary
meaning. A court is not at liberty to read additional terms
into, or to modify, the plain language of a statute.
Civil Procedure > Appeals > Standards of Review > De
Novo Review
Governments > Legislation > Interpretation

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Page 2 of 5
205 P.3d 544, *544; 2009 Colo. App. LEXIS 222, **1
HN3 Statutory interpretation is a question of law that is
reviewed de novo.
Governments > State & Territorial Governments > Elections

HN4 The purpose of Colo. Rev. Stat. 1-45-117 (2008)

is to prohibit the State government and its officials from
spending public funds to influence the outcome of
campaigns for political office or ballot issues.
Governments > State & Territorial Governments > Elections

HN5 See former Colo. Rev. Stat. 1-45-117(4) (2002

Colo. Sess. Laws 280).

may not be overturned absent an abuse of discretion. A

reviewing court may not substitute its judgment for that
of the agency, but must uphold the agency sanction
unless it (1) bears no relation to the conduct; (2) is
manifestly excessive in relation to the needs of the
public; or (3) is otherwise a gross abuse of discretion.
Governments > State & Territorial Governments > Elections

HN13 Before the 2008 amendment, Colo. Rev. Stat.

1-45-117(4) subjected violators to the sanctions
authorized in Colo. Rev. Stat. 1-45-113 or any
appropriate order or relief. 2002 Colo. Sess. Laws 280.
Colo. Rev. Stat. 1-45-113 was repealed in 2002.

Governments > State & Territorial Governments > Elections

Governments > Legislation > Interpretation

HN6 See Colo. Const. art. XXVIII, (9)(2)(a).

Governments > State & Territorial Governments > Elections

HN7 Sanctions for violations of the campaign and

political finance article are listed in Colo. Const. art.
XXVIII, 10.

HN14 The plain and ordinary meaning of the word "any"

is without limitation or restriction.
Counsel: Jay Sherritt, Pro se.
Law Offices of Frederick Huff, Frederick Huff, Denver,
Colorado, for Respondent-Appellee.

Governments > State & Territorial Governments > Elections

No Appearance for Appellee.

HN8 See Colo. Const. art. XXVIII, 10(1).

Governments > State & Territorial Governments > Elections

HN9 Although Colo. Const. art. XXVIII, (9)(2)(a)

provides for any appropriate order, sanction, or relief
authorized by the article, Colo. Const. art. XXVIII,
10(1) only sanctions violations of the article relating to
contribution or voluntary spending limits.
Governments > State & Territorial Governments > Elections

HN10 See Colo. Rev. Stat. 1-45-117(4) (2008).

Administrative Law > Judicial Review > Reviewability >
Preservation for Review

HN11 Issues not raised during administrative

proceeding may not be raised for the first time on
appeal.

Judges: Opinion by: JUDGE ROMAN. Taubman and

Lichtenstein, JJ., concur.
Opinion by: ROMAN

Opinion
[*544] In this action under the Fair Campaign Practices
Act, sections 1-45-101 to -118, C.R.S. 2008, petitioner,
Jay Sherritt, appeals the sanction imposed upon
respondent, [*545] Rocky Mountain Fire District (RMF).
We affirm.

I. Background

Administrative Law > Judicial Review > Standards of

Review > Abuse of Discretion

The parties are in general agreement regarding the

underlying facts. Ballot issue 5A was a measure for
consideration during the November 2007 election. The
measure was designed to exempt RMF from the
Taxpayer Bill of Rights (TABOR), Colo. Const. art. X,
20, and the 5.5% limit imposed by section 29-1-301,
C.R.S. 2008.

HN12 When an administrative agency is granted

statutory authority to impose a sanction, such sanction

Prior to the election, the RMF board of directors spent $

1910.61 in printing and other preparation costs and $

Administrative Law > Agency Adjudication > General

Overview

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Page 3 of 5
205 P.3d 544, *545; 2009 Colo. App. LEXIS 222, **1
3483.69 in postage associated with a letter sent to
registered voters within the RMF district. The letter
stated that "passage of 5A will allow the District to
maintain the steady and predictable revenue stream
necessary to support its mission to provide top quality
fire, rescue [**2] and emergency services." It also
warned that "if 5A is not successful, the amount of
revenue generated from taxes, grants and investments
will be limited and subsequently, have an effect on the
services provided to the District."

(Colo. App. 2003), aff'd, 102 P.3d 999. "We are not at
liberty to read additional terms into, or to modify, the
plain language of a statute . . . ." Nat'l Farmers Union
Prop. & Cas. Co. v. Estate of Mosher, 22 P.3d 531, 534
(Colo. App. 2000). HN3 Statutory interpretation is a
question of law that we review de novo. League of
Women Voters v. Davidson, 23 P.3d 1266, 1270 (Colo.
App. 2001).

Petitioner filed a complaint alleging that RMF violated

section 1-45-117(1)(a)(I)(C), C.R.S. 2008, because it
expended public money to urge electors to vote in favor
of a ballot issue. Petitioner sought a civil penalty in the
amount of $ 11,857.11, representing triple the amount
spent by RMF, under section 10 (section 10) of Colorado Constitution article XXVIII, the campaign and
political finance article.

HN4 "The purpose of [section] 1-45-117 is to prohibit

the state government and [**4] its officials from spending
public funds to influence the outcome of campaigns for
political office or ballot issues." Colo. Common Cause,
85 P.3d at 554.

An administrative law judge (ALJ) found that the printing

and postage costs represented public funds that were
used in violation of section 1-45-117. However, the ALJ
declined to impose a fine in the amount requested by
petitioner. Instead, the ALJ fined RMF $ 400.00, citing
her authority under Colorado Constitution article
XXVIII, section 9(2)(a) (section 9(2)(a)) to impose an
"appropriate order, sanction or relief."

B. Applicable Sanction Provision

When the ALJ's order was issued on April 1, 2008,

section 1-45-117(4) provided, in pertinent part:
HN5 Any violation of this section shall be subject to
the sanctions authorized in section 1-45-113 or any
appropriate order or relief, including injunctive relief
or a restraining order to enjoin the continuance of
the violation.
Ch. 100, 1, 2002 Colo. Sess. Laws 280.
Section 9(2)(a) provides a grievance procedure for
violations of section 1-45-117:

II. Sanction
[*546] HN6 Any person who believes that a violation

Although conceding the ALJ had discretion in setting

the amount of the penalty, petitioner contends that
pursuant to section 10, the ALJ's [**3] discretion is
limited to a penalty which is at least double the amount
of the contribution. Because we conclude section 1-45
-117(4), C.R.S. 2008, is the applicable sanction
provision, we disagree.
A. Standard of Review
HN1 On review, an agency decision will be sustained
unless it is arbitrary, capricious, unsupported by the
evidence, or contrary to law. 24-4-106(7), C.R.S.
2008; Coffman v. Colo. Common Cause, 102 P.3d 999,
1005 (Colo. 2004).
HN2 When interpreting a statute, our primary task is to
give effect to the intent of the legislature. We rely on the
plain language of the statute and construe words and
phrases according to their plain and ordinary meaning.
Colo. Common Cause v. Coffman, 85 P.3d 551, 554

of [certain sections] of this article, or of . . . [section]

1-45-117 C.R.S. . . . has occurred may file a written
complaint with the secretary of state no later than
one hundred eighty days after the date of the alleged
violation. The secretary of state shall refer the
complaint to an administrative law judge within
three days of the filing of the complaint. The
administrative law judge shall hold a hearing within
fifteen days of the referral of the complaint, and
shall render a decision within fifteen days of the
hearing. . . . If the administrative law [**5] judge
determines that such violation has occurred, such
decision shall include any appropriate order,
sanction, or relief authorized by this article.
HN7 Sanctions for violations of the campaign and
political finance article are listed in section 10, which in
pertinent part provides:
HN8 Any person who violates any provision of this
article relating to contribution or voluntary spending

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Page 4 of 5
205 P.3d 544, *546; 2009 Colo. App. LEXIS 222, **5
limits shall be subject to a civil penalty of at least
double and up to five times the amount contributed,
received, or spent in violation of the applicable
provision of this article.
Colo. Const. art. XXVIII, 10(1).
HN9 Although section 9(2)(a) provides for "any
appropriate order, sanction, or relief authorized by this
article," section 10(1) only sanctions violations of "this
article relating to contribution or voluntary spending
limits." Petitioner initiated this action pursuant to section
1-45-117, and the ALJ determined that RMF violated
section 1-45-117. The ALJ did not determine that RMF
violated any article of the constitution. As such, section
1-45-117(4) provided the basis for sanctions here.
In so concluding, we reject petitioner's argument that
the current statutory language in section 1-45-117(4)
"underscores [**6] the interpretation that [section] 10(1)
applies to violations of this section." The current
statutory language provides:
HN10 Any violation of this section shall be subject
to the provisions of sections 9(2) and 10(1) of article
XXVIII of the state constitution or any appropriate
order or relief, including an order directing the
person making a contribution or expenditure in
violation of this section to reimburse the fund of the
state or political subdivision, as applicable, from
which such moneys were diverted for the amount of
the contribution or expenditure, injunctive relief, or
a restraining order to enjoin the continuance of the
violation.
1-45-117(4), C.R.S. 2008 (effective Apr. 10, 2008).
Although this language references section 10(1), the
referenced section still provides sanctions only for
violations of article XXVIII. Here, the ALJ determined
that RMF violated only section 1-45-117. Additionally,
the language of section 1-45-117(4) directing "any
appropriate order or relief" remains unchanged.
We decline to address petitioner's contention that
section 10(1) applies because RMF's expenditures
establish a violation of contribution or voluntary
spending limits. Petitioner's sole [**7] argument to the
ALJ was that RMF violated section 1-45-117(1)(b)(I)
because it urged voters to approve ballot issue 5A;
petitioner did not argue that the expenditure violated a
contribution or spending limit, or make any other

argument concerning the amount RMF spent.

Therefore, on appeal we will not consider an argument
regarding contribution or spending limits. See Associated Bus. Prods. v. Indus. Claim Appeals Office, 126
P.3d 323, 324-25 (Colo. App. 2005) (HN11 issues not
raised during administrative proceeding may not be
raised for the first time on appeal).
C. ALJ's Decision
Turning to section 1-45-117(4), we discern no abuse of
the ALJ's discretion in refusing to sanction RMF at the
higher amount.
HN12 When an administrative agency is granted
statutory authority to impose a sanction, such sanction
may not be overturned absent an abuse of discretion. A
reviewing court "may not substitute [its] judgment for
that of the agency," but "must 'uphold the agency
sanction unless it (1) bears no relation to the conduct,
(2) is manifestly excessive [*547] in relation to the
needs of the public, or (3) is otherwise a gross abuse of
discretion.'" Minh Le v. Colo. Dep't of Revenue, 198
P.3d 1247, 1252-1253 (Colo. App. No. 07CA0927, 2008
Colo. App. LEXIS 894, May 29, 2008) [**8] (quoting
Colo. Real Estate Comm'n v. Hanegan, 947 P.2d 933,
936 (Colo. 1997)).
As stated, HN13 before the 2008 amendment, section
1-45-117(4) subjected violators to "the sanctions
authorized in section 1-45-113 or any appropriate order
or relief." Ch. 100, 1, 2002 Colo. Sess. Laws 280.
Section 1-45-113 was repealed in 2002, and therefore,
the reference to that section was obsolete when the ALJ
issued the order on April 1, 2008. The ALJ was guided
by the plain statutory language: "shall be subject to . . .
any appropriate order or relief." See ch. 145, 1, 2002
Colo. Sess. Laws 280 (emphasis added).
Petitioner's position is contrary to the plain language of
the statute. HN14 The plain and ordinary meaning of
the word "any" is "without limitation or restriction." Nat'l
Farmers Union Prop. & Cas. Co., 22 P.3d at 534; see
also Kauntz v. HCA-Healthone, LLC, 174 P.3d 813, 817
(Colo. App. 2007) ("'Any' means 'all.'"). The General
Assembly chose to include the word "any" in the
sanctions section of the statute. Consequently, the ALJ
had discretion to determine any appropriate order or
relief. See Colo. Common Cause, 85 P.3d at 554 (we
construe statutory terms according to [**9] their plain
and ordinary meaning).
In sanctioning RMF $ 400.00, the ALJ cited RMF's
attempt to comply with the law and the absence of prior

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Page 5 of 5
205 P.3d 544, *547; 2009 Colo. App. LEXIS 222, **9
violations. The ALJ found that public funds would be
used to satisfy the penalty, and therefore, a large fine
would compound the violation. In exercising her
discretion, the ALJ properly considered the needs of the
public. See Minh Le, 198 P. 3d at 1253, 2008 Colo. App.
LEXIS 894, at *13. Additionally, the ALJ's findings have
record support and were neither arbitrary, capricious,
unsupported by the evidence, nor contrary to law.

Therefore, we sustain the decision. See Coffman, 102

P.3d at 1005.
Order affirmed.
JUDGE TAUBMAN and JUDGE LICHTENSTEIN
concur.

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