The Colorado Supreme Court announced on Monday that it will review whether the state’s requirement that ballot issue advocacy groups disclose the name of their legal representative on their election communications violates the First Amendment.

At least three of the court’s seven members must agree to hear an appeal.

The justices also accepted a case implicating Colorado’s crime victim restitution law. Earlier this year, the Supreme Court decided a package of five cases, clarifying its landmark 2021 interpretation of the restitution law. Those opinions all focused on the obligations of trial judges in processing restitution requests and issuing valid restitution orders within the legal deadline.

At the time, the court did not address the role of prosecutors in compiling necessary information in a timely manner. But the Supreme Court agreed to hear a case that asks whether prosecutors can also neglect their obligations in a way that invalidates a restitution order.

Registered agents

No on EE — A Bad Deal for Colorado was an issue committee that opposed Proposition EE in 2020. Voters overwhelmingly approved the measure, which created a state nicotine tax and established a minimum price for packs of cigarettes. No on EE was primarily funded by the tobacco company Liggett Group.

Initially, No on EE spent more than $3 million on communications opposing Prop EE without listing its registered agent, who is the person designated to receive mailings and file campaign finance reports. After a voter filed a campaign finance complaint, No on EE immediately revised its advertisements to correct the omission.

Eventually, the deputy secretary of state imposed a $30,000 fine for the group’s violation. No on EE sought judicial review, contending the fine was excessive and the disclosure requirement violated the First Amendment. Denver District Court Judge Marie Avery Moses rejected that argument, believing the disclosure of a registered agent in election ads helps “put a face to the name.”

However, a three-judge Court of Appeals panel disagreed. By 2-1, the majority believed Colorado, as the only state to require the disclosure of registered agents on election communications, had not shown a “substantial” reason to compel advocacy groups to disclose that piece of information.

The registered agent’s identity is not “something a voter would likely take into consideration when determining how to vote on a ballot measure,” wrote Judge Jerry N. Jones for himself and Judge Robert D. Hawthorne.

Judge Timothy J. Schutz dissented, arguing No on EE had not even properly presented the argument that the disclosure requirement was unconstitutional in all contexts. He also believed that adding a human name to a potentially misleading committee title would assist voters.

“Moreover, we can all think of local and national political leaders, social media influencers, pundits, commentators, celebrities, activists, or ordinary citizens whose disclosure as the registered agent of an issue committee would tell voters something of meaning about the associated advertisement,” he wrote.

Secretary of State Jena Griswold and her deputy appealed to the Supreme Court, arguing she lacked the opportunity to demonstrate how the disclosure requirement was fully constitutional. Colorado Common Cause, a progressive group that advocates for election and ethics reforms, also submitted a brief arguing the name of a prominent registered agent can give useful context about the issue committee’s position.

“Knowing who is willing to stand behind a position and put their name on it matters,” wrote attorneys for Common Cause.

The Supreme Court agreed to examine whether No on EE did, in fact, properly challenge the constitutionality of the law and whether the Court of Appeals’ majority was correct to invalidate it.

The case is Kline et al. v. No on EE — A Bad Deal for Colorado, Issue Committee.

Crime victim restitution

As part of sentencing in Colorado, judges must consider whether defendants owe financial restitution to their victims. If so, prosecutors generally need to provide the requested amount by the time of sentencing or within 91 days of sentencing. Judges must also impose the restitution amount within 91 days of sentencing. If judges need to extend either deadline, they must find extenuating circumstances or good cause.

In People v. Weeks, the Supreme Court ruled in November 2021 that judges’ historical process of awarding compensation to crime victims did not comply with Colorado law. The justices noted a lackadaisical approach had taken hold in the trial courts that neglected the clear deadlines and procedural requirements. Consequently, if trial judges fail to follow the law, they lose authority to issue a restitution order.

In February 2024, the Court of Appeals shifted its focus away from trial judges to answer a different question: What happens if prosecutors are the ones who do not live up to their obligation under Weeks?

Months after the Weeks decision, Skylan M. Brassill pleaded guilty in La Plata County to motor vehicle-related offenses he committed eight months earlier. At Brassill’s sentencing, Deputy District Attorney Brad Neagos said he did not “have a figure on” restitution yet.

“Why don’t we have any information?” responded District Court Judge Suzanne F. Carlson. “I think we need to start understanding why we don’t have this sort of information when we go to sentencing.”

She then ordered Neagos to submit his restitution request within 30 days. Neagos did not submit his request for nearly $14,000 in restitution until 54 days later, in violation of Carlson’s order. Brassill’s attorney pointed out Neagos, in reality, had the estimate of damages within 19 days of sentencing.

“The district attorney’s office does need to get their act together on this,” Carlson agreed at the restitution hearing. “The prosecution’s on warning that if I give them a deadline like that in the future, that (their restitution request is) going to be denied.”

Because the hearing occurred within the 91-day deadline, however, she granted the restitution request “this one time only.”

A Court of Appeals panel ultimately agreed the restitution order was timely. However, it also agreed with Brassill that prosecutors need to use “reasonable diligence” to obtain restitution information by the time of sentencing.

“It is hardly a significant burden for a prosecutor to ask how much that sum is, or to explain to the victim what steps need to be taken to quantify the claimed losses,” wrote Schutz. For Brassill’s case, “it is manifest that the prosecutor failed to exercise reasonable diligence to obtain the amount of restitution before the sentencing hearing.”

Schutz added that Carlson was within her rights to give the prosecution a deadline sooner than the 91-day window. To the extent the government believed it could evade consequences so long as it submitted its numbers within 91 days, “That belief is wrong,” wrote Schutz.

Both sides appealed to the Supreme Court, with the government asking the justices to answer whether the prosecution’s efforts to timely obtain information are relevant to a restitution challenge, and Brassill arguing the prosecution’s conduct in his case should have voided his restitution obligation.

The court agreed to examine the points raised by everyone.

The case is Brassill v. People.

In other restitution news, the Supreme Court returned five cases to the Court of Appeals for a second look in light of its package of decisions clarifying Weeks that it issued in May. 

It also narrowly turned down a second restitution-related appeal. Francisco Ibarra was ordered to pay $6,415 in restitution for his Adams County criminal case. Like Brassill, Ibarra’s attorney argued the prosecution dragged its feet because most of the restitution information was available before sentencing. Instead, the prosecution made its request 32 days after sentencing.

The Court of Appeals upheld Ibarra’s restitution obligation, reasoning his plea agreement gave 91 days for “the amount of restitution (to) be determined.” Ibarra appealed to the Supreme Court, arguing the plea agreement said nothing about the prosecution’s timeline, and Weeks obligated the government to present its existing restitution information before or at sentencing.

Chief Justice Monica M. Márquez and Justice Richard L. Gabriel indicated they would have heard Ibarra’s appeal.

The case is Ibarra v. People.