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DENVER (Legal Newsline) - Citing a U.S. Supreme Court decision that established the constitutional boundaries for determining political conflicts of interest, a Colorado court rejected claims a county commissioner should have recused himself from voting on a concrete plant permit because the company’s shareholders contributed several thousand dollars to his campaign.
A local activist group sued after Larimer County Commissioner Tom Donnelly voted to approve a gravel pit and concrete plant proposed by Loveland Ready-Mix Concrete. The group, No Laporte Gravel Corp., said the due process rights of nearby residents were violated because Donnelly had accepted $4,100 in donations from Loveland investors in his 2016 reelection campaign.
A trial court dismissed the constitutional challenge but ruled that commissioners had improperly approved Loveland’s permit for other reasons. All the parties appealed, and the Colorado Court of Appeals, in a Jan. 6 decision, affirmed the dismissal of the constitutional challenge and reversed the lower court’s ruling on the permit.
Central to the decision was the Supreme Court’s 2009 decision Caperton v. A.T. Massey Coal Co., which said the due process rights of citizens can be violated in “rare,” “exceptional” and “extreme” cases where a politician’s vote appears to reflect large campaign contributions. In that case, A.T. Massey Chairman Don Blankenship contributed $3 million to the campaign of a West Virginia Supreme Court candidate who went on to reverse a $50 million verdict against Blankenship’s company. Blankenship contributed more than all of the candidate’s other contributors combined, and $1 million more than the candidate’s competitors spent on the election.
“The Caperton Court itself emphasized that recusal was required in that case because the facts were `rare,’ `exceptional,’ and `extreme,’” the Colorado appeals court said in its Loveland decision. “Our case is not so rare, exceptional or extreme.”
The concrete plant investors’ contributions represented less than 8% of the total raised and less than 6% of the total spent in the election, the appeals court observed. Loveland didn’t present its permit application until months after the election, and the county commission didn’t vote on it until two years later.
In June 2018, the Laporte Area Planning Advisory Committee voted 4-2 to recommend denying Ready-Mix’s application. Rejecting suggestions he recuse himself, Donnelley joined a 2-1 majority to approve Ready-Mix’s application later that year.
Activist opponents of the plant cited a county ordinance requiring commissioners “who, in their sole opinion,” believe they have a conflict of interest to recuse themselves. NLGC filed a complaint, including a constitutional challenge to the “sole opinion” clause, which was dismissed.
The appeals court rejected Ready-Mix’s argument that NLGC had no right to make its due process challenge to Donnelly’s vote. Allowing such challenges is the only way to determine whether campaign contributions represent the sort of “extraordinary situation” that requires judicial intervention, the court ruled.
“Our primary concern is the Due Process Clause, and its promise that individuals appearing before quasi-judicial bodies are guaranteed an impartial decision-maker,” the court ruled. But in this case, the contributions “in raw and proportionate terms, 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,” the court ruled.