The Colorado Supreme Court announced on Monday it will consider when groups that advocate on ballot initiatives were required to register and disclose their election spending under a pre-2022 version of state law.

At least three of the court’s seven members must agree to hear a case.

The justices will also evaluate whether a father was improperly denied his right to a jury trial in his child neglect case.

Undisclosed spending

Unite for Colorado formed in late 2019 and spent roughly $17 million during the 2020 election. Among other things, the group funded signature gathering and advertising for three ballot measures advancing conservative causes.

However, Unite for Colorado attracted a campaign finance complaint, alleging it failed to register as an “issue committee.” Issue committees must register with the state if they spend over $200 on any ballot initiative and if their “major purpose” is ballot issue advocacy. Spending and donor disclosure requirements apply for committees that spend in excess of $5,000.

Recently, the General Assembly passed a forward-looking law that clarified how much an organization must spend on ballot measures relative to its total funds in order to have a major purpose of ballot issue advocacy. Under that framework, enacted in 2022, Unite for Colorado’s $4 million expenditure on the three initiatives — 23% of its total election spending — would not have qualified.

Under the legal standard in place at the time, though, Colorado’s deputy secretary of state determined Unite for Colorado’s major purpose was ballot issue advocacy. He ordered Unite for Colorado to pay a $40,000 fine and required it to disclose its contributions and expenditures from early 2020 onward.

Unite for Colorado appealed to Denver District Court and persuaded Judge David H. Goldberg to overturn that decision. Goldberg noted Colorado’s campaign finance law referred to spending on “a ballot issue.” Although Unite for Colorado spent nearly a quarter of its money on ballot issue advocacy, it spent less than 11% on each of the three individual measures.

The Colorado Secretary of State’s Office appealed, and a three-judge Court of Appeals panel reinstated the deputy secretary’s decision. Weighing the circumstances, the panel reasoned the group’s $4 million aggregate expenditure required it to register as an issue committee.

“We conclude that Unite is precisely the type of organization that the people of Colorado envisioned” in enacting campaign finance regulations, wrote Judge Terry Fox.

The Supreme Court will review whether Unite for Colorado had a major purpose qualifying it as an issue committee. The court declined to take up the group’s second issue of whether the state’s disclosure requirements violate the First Amendment.

The case is Unite for Colorado v. Colorado Department of State et al.

No jury trial

Under Colorado law, parents have the right of a jury trial to determine whether a child is neglected. However, a parent can forfeit their choice of jury trial by, among other things, failing to show up at the trial.

In 2021, El Paso County initiated welfare proceedings on behalf of five children. The father, identified as K.L.W., denied the allegations of neglect and asked for a jury trial. K.L.W. failed to appear at the trial, so the judge converted the proceedings to a bench trial and declared the children neglected by default based on K.L.W.’s absence. K.L.W. challenged the decision, disputing the authority to make a child neglect decision by default. 

In 2023, at a hearing focused on whether to terminate the legal relationship between K.L.W. and his children, District Court Judge Robin Chittum deemed the earlier neglect decision void after all. She then converted the termination hearing into a new trial to determine if the children were neglected in the first place.

Over the objection of K.L.W.’s lawyer, Chittum decided K.L.W.’s failure to appear for the original trial meant he also forfeited his right to a jury trial the second time — even though K.L.W. was now present. She again found the children neglected.

A Court of Appeals panel decided, to the contrary, that K.L.W.’s failure to appear at his first jury trial did not automatically mean he gave up his right to a jury in the impromptu second child neglect trial.

“The two adjudicatory trials were separate and distinct. This was not a circumstance in which an originally scheduled adjudicatory trial was ‘continued’ to another date,” wrote Judge Katharine E. Lum. “And because father did appear at the 2023 adjudicatory trial, he didn’t waive his right to a jury.”

The panel reversed the child neglect decision. Now, the Supreme Court will decide if its logic was correct.

The case is People in the Interest of Kay.W. et al.