A complaint alleging that the town of Palisade made an unlawful campaign contribution to a state House candidate was dismissed on Thursday after a Colorado Court of Appeals panel found it lacked jurisdiction over the matter.
Michael C. Day, a former candidate for county treasurer and commissioner in Mesa County, raised a possible violation of Colorado's Fair Campaign Practices Act in an October 2018 complaint with the secretary of state’s office. Thea Chase, a member of Palisade’s board of trustees, was running for the House District 54 legislative seat. However, the June issue of the town’s newsletter contained a profile of Chase that some people considered a taxpayer-funded advertisement for her campaign.
“She will be at Food Truck Fridays, and the Palisade Bluegrass and Roots Festival to collect signatures,” the newsletter announced, adding that Chase needed 400 signatures for a place on the ballot. “Also people can stop by Everything Collectible in downtown Palisade to sign the petition.”
After the Grand Junction Daily Sentinel contacted the town, Palisade sent out a revised newsletter that omitted the article. The town attorney told the newspaper that he did not believe there was a violation of election laws, and Chase said that the secretary of state’s office told her the article was likely not an in-kind campaign contribution from the municipality.
“There is a question about whether the publication crossed the line of impermissible advocacy by a public entity, and also whether the cost of the publication should have been reported as a contribution,” said Matt Soper, the Republican candidate who ultimately prevailed in the election.
In his complaint, Day argued that the town made an unlawful campaign contribution to Chase “in the form of express advocacy in the town government's newsletter which called for readers to sign Chase’s petition.”
Day filed the allegation shortly after a federal court invalidated Colorado's previous system of having an administrative law judge review complaints, whose decision could be appealed to the Colorado Court of Appeals. In the wake of the ruling in Holland v. Williams, then-Secretary of State Wayne Williams issued emergency rules that cut in half the statute of limitations on complaints to 90 days and directed the Elections Division to review complaints first. Appeals would go to the district court level.
After the elections division dismissed Day’s report for falling outside the 90-day window, the Colorado Court of Appeals turned away his appeal on the grounds that it lacked jurisdiction.
“In order for us to have jurisdiction over Day’s appeal, some statute or rule must provide for direct review in the court of appeals,” wrote Judge Neeti Vasant Pawar for the three-member panel. “No such authority exists in the post-Holland rules that were applicable when Day filed his complaint.”
Pawar added that even if the court decided that the federal ruling did not constrain its jurisdiction, the Colorado constitution only gave the appellate court review powers over the decision of an administrative law judge.
“Day’s appeal is not from a decision of an ALJ,” she wrote. “It is from a decision of the Elections Division.”
On Friday, Day said that he planned to appeal to the state Supreme Court, frustrated that "the argument no longer is holding accountable those who make these [campaign finance] mistakes. Now it's more about bringing before the Supreme Court whether or not the appeals court did their job right."
U.S. District Judge Raymond P. Moore in Holland "did not throw out the 180-day rule, and not for the least of reasons because it stands in our state's constitution," Day added. However, the constitutional provision containing the statute of limitations and the directive to appeal to the Colorado Court of Appeals was the section Moore found to violate the First and Fourteenth Amendments.
The case is Michael Day v. Colorado Secretary of State.