Colorado’s second-highest court has ruled for the first time that campaign contributions to an elected official may, in rare cases, require their recusal from voting in matters that implicate a person’s right to an impartial decision-maker.
At the same time, a three-judge panel for the Court of Appeals found that the $4,100 given to a Larimer County commissioner two years before he voted to approve a gravel mining operation did not rise to the level of a constitutional violation.
In reaching its conclusion, the panel rejected as “extreme” the position offered by the Colorado Municipal League, the organization that represents nearly all of the state’s 272 cities and towns. The league submitted a brief in support of Larimer County and took the position that campaign contributions themselves can never disqualify local elected officials from participating in decisions.
To rule otherwise “will likely engender mass confusion for local elected officials throughout the state and the attorneys who advise them,” wrote the league to the Court of Appeals. “And most ominously, it may have the effect of chilling the exercise of First Amendment rights by those running for municipal office in the future as well as those citizens who would contribute to candidate campaigns.”
“We decline to adopt such an extreme position,” responded Judge Terry Fox in the panel’s Jan. 6 opinion.
Kevin Bommer, executive director of the Colorado Municipal League, stood by his organization’s position. He noted that the panel ultimately deemed recusal by elected officials is warranted simply when there is a risk of bias due to campaign contributions, regardless of whether the official was actually biased.
“The ruling itself could certainly be labeled a bit extreme, in that regard,” Bommer countered.
The legal dispute stemmed from a November 2018 vote the three-member Larimer County Board of County Commissioners took to approve a gravel-mining operation and concrete processing plant on 123 acres near Laporte. The vote was 2-1, with Donnelly in the majority. Under Larimer County’s code, board members are responsible for recusing themselves if, “in their sole opinion,” they have a conflict of interest in hearings that operate similar to court proceedings.
Several months prior to the vote, a member of the opposition group No Laporte Gravel emailed Donnelly to point out the commissioner had received contributions for his 2016 reelection campaign from people affiliated with Loveland Ready-Mix Concrete, Inc. Ready-Mix was the company whose application for the gravel mine was in progress at the time of the email.
The campaign contributions amounted to $4,100 from six people. Most were members of the Fancher family, which owns and operates Ready-Mix. The donations to Donnelly were under 8% of his total contributions for the 2016 election cycle. Donnelly, a Republican, defeated his Democratic challenger by a margin of 55% to 45% that year.
No Laporte Gravel sued following the board’s vote, alleging a violation of their constitutional due process rights. Due process, in quasi-judicial decisions like land use, requires an impartial decision-maker. The Ready-Mix donations to Donnelly, No Laporte Gravel argued, were “outsized,” created a significant risk of bias and effectively allowed the company “to select its own judge.”
Larimer County disputed that characterization. It pointed out the donations were similar in size to other donations Donnelly received, and that they were a small fraction of his total contributions. In addition, one contributor affiliated with Ready-Mix was “so far removed that it sounds like the punch-line of a joke but for the seriousness of the charge — the husband of the granddaughter of a deceased stockholder,” the county wrote.
District Court Judge Juan G. Villaseñor sided with the county and Ready-Mix. The donations, he pointed out, came before Ready-Mix had even filed their application with the county, and there was no evidence that the $4,100 significantly affected the election.
“While it’s possible that Ready-Mix’s stockholders made a calculated decision to support a candidate who’d later back their company’s future application,” Villaseñor explained, “the law doesn’t proscribe such conduct.”
Villaseñor and the Court of Appeals both relied on a 2009 decision from the U.S. Supreme Court establishing that, in extraordinary circumstances, the U.S. Constitution may require a judicial decision-maker to recuse themselves. The case at hand, Caperton v. Massey, arose after a West Virginia jury found a coal company liable for $50 million in damages. The company’s chief executive, Don Blankenship, knew an appeal would come before West Virginia’s highest court and he single-handedly spent $3 million to elect Brent Benjamin as a justice.
Benjamin won his election and, despite a request to recuse, participated in the appeal. The decision to reverse the verdict against Blankenship’s company was 3-2, with Benjamin in the majority.
The case landed before the U.S. Supreme Court, where a 5-4 majority ruled that not every campaign contribution to an elected judge rose to the level of creating a constitutional problem — but this one had.
“We conclude that there is a serious risk of actual bias,” wrote then-Justice Anthony M. Kennedy, “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
The factors to consider, the court added, were the size of the contribution relative to the total amount a candidate raised, the amount the candidate spent on their election and the “apparent effect” the contribution had on the election’s outcome.
Using the Caperton criteria, the Court of Appeals panel concluded there was no violation of the constitutional guarantee to an impartial judge from the $4,100 given to Donnelly.
The amount, wrote Fox, was “a far cry from the contributions in Caperton, where Blankenship’s $3 million exceeded the amount spent by all of Benjamin’s other supporters and both of his competitors combined. We therefore agree with the district court that the amounts Donnelly received here do not create a risk of actual bias.”
She made it clear, however, that campaign contributions do fall under the type of financial interest that triggers due process protections where elected officials act in judicial-like proceedings.
Jane T. Feldman, the former executive director of the Colorado Independent Ethics Commission, believed the Court of Appeals decided correctly.
“I think political contributions can create bias and also the appearance of bias,” she said. “I can imagine a scenario in which a campaign contribution would be so large that bias would be implied.”
Bommer, of the Colorado Municipal League, said the decision’s applicability to rare cases would not likely affect the work of local elected leaders, but it will now be part of their consideration in judicial-like proceedings. In contrast, the organization’s legal brief described in apocalyptic terms the consequence of a ruling that labels some undefined quantity of campaign donations a cause for recusal.
“The message to candidates and contributors: Forego your First Amendment rights and eschew contributions that may make it impossible for the elected official to perform one of the most important elements of his or her job, the ability to vote on quasi-judicial decisions that are critical to the health, safety and general welfare of the community,” the league warned.
Donnelly, who was term-limited in 2020, is also the subject of another case pending before the appeals court. Villaseñor determined that it did, in fact, create an unconstitutional risk of bias when Donnelly voted on a different gravel mining application earlier in 2018. The owners in that instance donated $10,000 to Donnelly while their application was awaiting action in Larimer County.
The Court of Appeals panel also sided with Larimer County and Ready-Mix on another aspect of the appeal. It found Villaseñor wrongly concluded the commissioners misapplied a section of the land-use code. The panel determined the board had complied with the code after all. It returned the case to the district court to address any remaining claims.
The case is No Laporte Gravel Corp. v. Board of County Commissioners of Larimer County.
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