COLORADO COURT OF APPEALS 2017COA22 

Court of Appeals No. 16CA0267 

El Paso County District Court No. 15CV416 

Honorable Edward S. Colt, Judge 

Campaign Integrity Watchdog, LLC, 

Plaintiff-Appellant, 

v. 

Alliance for a Safe and Independent Woodmen Hills and Sarah Brittain Jack, 

Defendants-Appellees. 

JUDGMENT REVERSED AND CASE 

REMANDED WITH DIRECTIONS 

Division V 

Opinion by JUDGE FREYRE 

Nieto, J.*, concurs 

Kapelke, J.*, concurs in part and dissents in part 

 

Announced February 23, 2017 

Matthew Arnold, as Authorized Representative of Campaign Integrity 

Watchdog, LLC 

Law Office of Robert S. Gardner, Robert S. Gardner, Laura Gardner, Colorado 

Springs, Colorado, for Defendant-Appellee 

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2016. 

 
1 

¶ 1 In this action involving the Fair Campaign Practices Act 

(FCPA), §§ 1-45-101 to -118, C.R.S. 2016, and the Campaign and 

Political Finance Amendment, Colo. Const. art. XXVIII 

(Amendment), plaintiff, Campaign Integrity Watchdog LLC (CIW), 

appeals the district court’s order dismissing its complaint to enforce 

the decision of an Administrative Law Judge (ALJ) against 

defendant, Alliance for a Safe and Independent Woodmen Hills 

(Alliance), based on the expiration of the statute of limitations. We 

are asked, as a matter of first impression, to determine the meaning 

of the word “violation” in § 9(2)(a) of the Amendment, as both 

parties agree that this word triggers the statute of limitations. We 

conclude that “violation” means the act(s) of breaking or 

dishonoring the FCPA or Amendment and, thus, that the statute of 

limitations begins running the day following the last such act. 

Because the complaint and attached ALJ decision state a plausible 

claim that the statute of limitations had not yet run, we reverse the 

district court’s order granting Alliance’s motion to dismiss and 

remand for reinstatement of CIW’s complaint. 
2 

I. Background 

¶ 2 This case concerns various campaign finance violations that 

occurred in the 2014 Woodmen Hills Metropolitan District board of 

directors’ election. Before the election, Alliance was established for 

the purpose of working “for the common good and general welfare 

of” the Woodmen Hills community. Ron Pace, a resident of 

Woodmen Hills, ran as a candidate for election to the district’s 

board of directors. In the months preceding the election, Alliance 

sent postcards directed at undermining Pace’s character and 

political platform and created Facebook posts that did the same. 

¶ 3 Believing that the actions of Alliance violated the FCPA, CIW 

filed a complaint with the Secretary of State (Secretary) under § 9 of 

the Amendment. The Secretary then referred the complaint to the 

Office of Administrative Courts. After a hearing, the ALJ found that 

Alliance was a “political committee” under the FCPA and that it was 

therefore required to register with the Secretary and to comply with 

all filing and reporting requirements.1 In a written decision issued 

 

1 CIW also asserted that Alliance violated other provisions of the 

FCPA but the ALJ concluded that Alliance did not commit these 

additional violations, and CIW did not appeal that ruling. 
3 

on August 8, 2014, the ALJ found that Alliance’s failure to register 

as a political committee and to file the required reports constituted 

violations of the FCPA. The ALJ also found that Alliance should 

have registered with the Secretary beginning on March 17, 2014, 

and found that Alliance had failed to comply with the registration 

and reporting requirements as of the first day of the hearing, June 

26, 2014. It imposed a fine of $9650 for these violations2 and 

ordered Alliance to register with the Secretary and file all required 

reports. 

¶ 4 Alliance filed a motion to stay the decision which the ALJ 

denied on August 20, 2014. Two days later, Alliance filed a notice 

of appeal and a motion for stay of the decision in this court. A 

motions division of this court denied the motion for stay, and on 

November 21, 2014, Alliance withdrew its appeal. Thereafter, the 

Secretary did not pursue enforcement of the ALJ’s decision beyond 

sending Alliance invoices for the monetary penalties. 

¶ 5 On September 15, 2015, CIW filed a complaint in El Paso 

District Court to enforce the ALJ’s decision. CIW attached a copy of 

 

2 This reflects a fine of $50 per day. 
4 

the decision to the complaint. Alliance filed a C.R.C.P. 12(b)(5) 

motion to dismiss alleging that the Amendment’s one-year statute 

of limitations barred CIW’s enforcement action. The district court 

dismissed CIW’s complaint based on its conclusion that CIW’s 

complaint was time barred under the Amendment. 

II. Discussion 

¶ 6 This appeal requires us to decide two issues: (1) the meaning 

of the word “violation” in § 9(2)(a) of the Amendment and (2) how to 

apply our interpretation to Alliance’s motion to dismiss. 

¶ 7 At issue here is the limitations period described in § 9 of the 

Amendment, which provides as follows: 

(2)(a) Any person who believes that a violation 

of section 3, section 4, section 5, section 6, 

section 7, or section 9(1)(e), of this article, or of 

sections 1-45-108, 1-45-114, 1-45-115, or 1-

45-117 C.R.S., or any successor sections, has 

occurred may file a written complaint with the 

secretary of state no later than one hundred 

eighty days after the date of the alleged 

violation. The secretary of state shall refer the 

complaint to an administrative law judge 

within three days of the filing of the complaint. 

The administrative law judge shall hold a 

hearing within fifteen days of the referral of the 

complaint, and shall render a decision within 

fifteen days of the hearing. The defendant 

shall be granted an extension of up to thirty 
5 

days upon defendant’s motion, or longer upon 

a showing of good cause. If the administrative 

law judge determines that such violation has 

occurred, such decision shall include any 

appropriate order, sanction, or relief 

authorized by this article. The decision of the 

administrative law judge shall be final and 

subject to review by the court of appeals, 

pursuant to section 24-4-106(11), C.R.S., or 

any successor section. The secretary of state 

and the administrative law judge are not 

necessary parties to the review. The decision 

may be enforced by the secretary of state, or, if 

the secretary of state does not file an 

enforcement action within thirty days of the 

decision, in a private cause of action by the 

person filing the complaint. Any private action 

brought under this section shall be brought 

within one year of the date of the violation in 

state district court. The prevailing party in a 

private enforcement action shall be entitled to 

reasonable attorney fees and costs. 

Colo. Const. art. XXVIII, § 9 (emphasis added). 

¶ 8 Both parties agree that the statute of limitations is triggered 

by the date of “violation” in § 9(2)(a) of the Amendment, but disagree 

about what the term “violation” means. CIW offers several possible 

meanings of “violation” and contends that it could refer to (1) the 

violation(s) of the FCPA giving rise to the ALJ’s decision; (2) an 

ongoing failure to pay the fine imposed by the ALJ’s decision; or (3) 

the “final judgment” entered after any appeal. Alternatively, CIW 
6 

asserts that we should read a tolling provision into the Amendment 

to avoid the “absurd” result of an appeal, specifically authorized by 

the Amendment, precluding a private cause of action. CIW argues 

that an appeal, which often takes longer than one year to complete, 

would foreclose a private enforcement action. It reasons that the 

exercise of this appellate right could foreclose private actions 

altogether. 

¶ 9 Alliance responds that the statute of limitations language is 

unambiguous and that the word “violation” refers only to the act or 

acts which gave rise to the penalty. It further contends that we 

should not read a tolling provision into § 9 of the Amendment where 

one does not exist. It reasons that, despite the fact that in some 

circumstances a cause of action may be foreclosed, this result is not 

absurd so as to justify a deviation from the plain language. 

¶ 10 We reject CIW’s contrary arguments and conclude that the 

plain language of the Amendment unambiguously creates a oneyear limitations period that begins to run from the date of the act or 

acts (or failure to act) violating the FCPA that formed the basis of 

the complaint. We acknowledge that reading “violation” according 
7 

to its ordinary and common meaning may preclude a private cause 

of action in some circumstances; however, our legal duty is to apply 

the plain language of the Amendment as written and to refrain from 

adding language the electorate did not include. Because it is 

possible to bring an enforcement action within one year of a 

violation, we conclude that our interpretation, based on the plain 

language of the Amendment, does not lead to an absurd result. In 

applying our interpretation to CIW’s complaint, however, we 

conclude that the district court erred when it dismissed the action 

based on the statute of limitations. 

A. Constitutional Interpretation 

¶ 11 We review de novo the interpretation of a constitutional 

provision. Patterson Recall Comm., Inc. v. Patterson, 209 P.3d 1210, 

1214 (Colo. App. 2009). In construing constitutional provisions, we 

are guided by the general principles of statutory construction. Id.

at 1215. This means that when interpreting a constitutional 

amendment adopted by citizen’s initiative, we “give effect to the 

electorate’s intent in enacting the amendment.” Colo. Ethics Watch 

v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20 (quoting Davidson 
8 

v. Sandstrom, 83 P.3d 648, 654 (Colo. 2004)). To determine what 

the voters intended, we “give words their ordinary and popular 

meaning.” Id. (quoting Davidson, 83 P.3d at 654). Courts should 

not engage in a narrow or overly technical construction of the 

language. Rocky Mountain Animal Def. v. Colo. Div. of Wildlife, 100 

P.3d 508, 514 (Colo. App. 2004). We assume that voters chose 

words and phrases intentionally. Senate Majority Fund, LLC, ¶ 28. 

If the language of an amendment is clear and unambiguous, then it 

must be enforced as written. Id. at ¶ 20. 

¶ 12 We must consider the Amendment as a whole and, when 

possible, adopt an interpretation that harmonizes its different 

provisions. Patterson, 209 P.3d at 1214. We also must favor a 

construction of a constitutional amendment that will render every 

word operative, rather than one that may make some words 

meaningless or superfluous. Id. However, in rare circumstances, 

even where the plain language is clear, we may depart from the 

plain meaning of the amendment to avoid an absurd result. See

Guido v. Indus. Claim Appeals Office, 100 P.3d 575, 577 (Colo. App. 

2004); see also Rocky Mountain Animal Def. v. Colorado Div. of 
9 

Wildlife, 100 P.3d 508, 514 (Colo. App. 2004) (when interpreting a 

constitutional amendment “[c]ourts should avoid an unreasonable 

interpretation or one that produces an absurd result.”). 

¶ 13 The Amendment is a comprehensive initiative regulating 

campaign financing. See Sanger v. Dennis, 148 P.3d 404, 407 

(Colo. App. 2006). Its purpose is to require participants in the 

election process, such as political committees, to comply with, 

among other things, registration and disclosure requirements. See 

Colo. Const. art. XXVIII, § 7; see also Colo. Ethics Watch v. Gessler,

2013 COA 172M, ¶ 5. 

¶ 14 The Amendment may be enforced by the Secretary or “by the 

person filing the complaint.” A person seeking enforcement must 

file a written complaint with the Secretary within 180 days of the 

alleged violation. The Secretary must then refer the complaint to an 

ALJ to determine whether a violation has occurred and, if so, to 

impose the appropriate sanction. Either party may directly appeal 

the ALJ’s decision to this court. The Amendment makes no 

mention of a stay pending appellate review, but instead provides the 
10 

Secretary with the immediate authority to enforce the ALJ’s 

decision.3

¶ 15 The person who initiates the complaint may seek enforcement 

of the ALJ’s decision only if the Secretary “does not file an 

enforcement action within thirty days of the decision.” To do so, 

such person must file a complaint in state district court “within one 

year of the date of the violation.” 

¶ 16 The Amendment does not define “violation”; therefore we look 

to its plain and ordinary meaning. State v. Nieto, 993 P.2d 493, 500 

(Colo. 2000) (courts give words their plain and ordinary meaning 

and assume that the governing body meant what it clearly said). A 

violation is “[t]he act of breaking or dishonoring the law; the 

contravention of a right or duty.” Black’s Law Dictionary 1800 

(10th ed. 2014). We therefore disagree with CIW’s contentions that 

“violation” refers to the ALJ’s decision after appellate review, or to a 

party’s failure to pay a fine included in the ALJ’s decision. 

 

3 We recognize that the Secretary has promulgated a rule stating 

that it may enforce the ALJ’s decision and that it will not enforce an 

ALJ’s decision that is pending appeal. See Dep’t of State Reg. 18.3, 

8 Code Colo. Regs. 1505-6. 
11 

¶ 17 Indeed, the Amendment’s plain language contradicts CIW’s 

assertion that the term “violation” is synonymous with the ALJ’s 

“decision” because it clearly differentiates the findings of the ALJ by 

using the word “decision” to describe it. Moreover, the 

Amendment’s first sentence specifically identifies those portions of 

the FCPA and Amendment that provide a basis for the complaint. 

Because we must assume the electorate did not carelessly choose 

its language, and because the electorate chose the word “decision” 

to describe the ALJ’s legal findings, we conclude that the word 

“violation” unambiguously refers to the conduct which contravened 

the FCPA or the Amendment and not to the ALJ’s decision finding a 

violation and assessing a penalty. 

¶ 18 Moreover, we cannot say that “violation” in this context is 

subject to more than one meaning or that the words “violation” and 

“decision” were meant to be used interchangeably. Williams v. Dep’t 

of Pub. Safety, 2015 COA 180, ¶ 36 (“An ambiguous statute is one 

fairly susceptible of more than one interpretation.”) (citation 

omitted). The Amendment uses the term “violation” four times, 

twice to describe the acts that may give rise to a complaint, once 
12 

when addressing the ALJ’s legal conclusion that a law violation has 

occurred, and finally when discussing the statute of limitations. 

Each of these instances is distinguishable from the use of the word 

“decision.” 

¶ 19 In the Amendment, “decision” refers to the ALJ’s conclusions 

finding a violation, imposing a sanction, and identifying the relief 

that the Secretary or person filing the complaint may enforce. 

Thus, we cannot say that the term “violation” is ambiguous. 

Because the word is used multiple times to describe the events 

upon which the legal decision rests, we construe “violation” to mean 

the same thing in each instance — the act or acts of breaking or 

dishonoring the statutory and constitutional provisions enumerated 

in the first sentence of Colorado Constitution article XXVIII, section 

9(2)(a). Accordingly, we reject CIW’s assertions that “violation” 

means the ALJ’s decision or the unpaid fine resulting from that 

decision. 

¶ 20 For the same reasons, we reject CIW’s argument that the word 

“violation” must mean the final judgment following appellate review 

or must be construed to include a tolling provision. We note that 
13 

the Amendment contains no such language, and we are not at 

liberty to rewrite the Amendment. In re 2000-2001 Dist. Grand Jury 

in & for First Judicial Dist., 97 P.3d 921, 924 (Colo. 2004) (where a 

statute is silent on a noncollateral matter, we must interpret the 

provisions as written and may not write in new language not 

contemplated by the drafters of the provision). 

¶ 21 The electorate chose to tie the limitations period of a private 

enforcement action to the violation, not to the finality of the 

judgment to be enforced. It also chose not to explicitly provide for a 

tolling of that limitations period in the plain language of the 

Amendment.4 We must interpret the Amendment as written and 

may not add language that was not contemplated by the drafters. 

US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512, 516-17 

(Colo. App. 2009) (“An inference drawn from congressional silence 

 

4 Our opinion should not be construed as foreclosing a party from 

requesting equitable tolling of the limitations period. We only 

address tolling insofar as we conclude that the Amendment’s plain 

language does not explicitly provide this relief. See, e.g., Cochran v. 

W. Glenwood Springs Sanitation Dist., 223 P.3d 123, 126 (Colo. App. 

2009) (the plain language of § 24-10-109(5), C.R.S. 2016, provides 

for a tolling provision); see also § 24-50-112.5, C.R.S. 2016 (the 

ninety-day period “shall be tolled until there is a final agency action 

by the board . . .”). 
14 

certainly cannot be credited when it is contrary to all other textual 

and contextual evidence of congressional intent.” (quoting Burns v. 

United States, 501 U.S. 129, 136 (1991))); see also Bruce v. City of 

Colorado Springs, 129 P.3d 988, 993 (Colo. 2006) (a court will not 

read a statute to create an exception that the plain language does 

not suggest, warrant, or mandate). 

¶ 22 We acknowledge CIW’s argument that an appellate decision, 

when sought, may not be issued within the one-year statute of 

limitations. Thus, if the word “violation” does not include final 

judgment after appeal or a tolling provision, a private enforcement 

action may be precluded. However, we conclude that this is but 

one possible scenario. For example, if no appeal is filed or if the 

appeal is resolved in less than one year, a person is not time barred 

from filing an enforcement action. Moreover, nothing in the 

Amendment precludes a person from filing a complaint in the 

district court if the Secretary does not file an action itself within 

thirty days of the ALJ’s decision. The Secretary’s internal rule 

refusing to enforce actions pending the outcome of an appeal has 

no bearing on a person’s right to file an enforcement action — once 
15 

thirty days have passed without the Secretary filing an enforcement 

action, the person who filed the complaint may do so in order to 

preserve his or her rights under the Amendment. In such 

circumstances, the district court judge may stay the action pending 

the outcome of the appeal. 

¶ 23 Therefore, because many times it will be possible to enforce an 

ALJ’s decision within one year of the violation, we conclude the 

result is not “absurd” so as to justify reading a tolling provision into 

the Amendment where it is otherwise silent. Guido, 100 P.3d at 

577. Moreover, our duty is not to ensure that parties have a cause 

of action, but is instead to interpret unambiguous language as 

written. See Williams, ¶ 34 (“As for judicial economy, policy 

considerations are subordinate to giving effect to unambiguous 

statutory language.”); People in Interest of D.R.W., 91 P.3d 453, 458 

(Colo. App. 2004) (“We reject policy considerations in favor of the 

plain language of a statute.”); see also Henry Schein, Inc., 205 P.3d 

at 516-17 (“An inference drawn from congressional silence certainly 

cannot be credited when it is contrary to all other textual and 
16 

contextual evidence of congressional intent.” (quoting Burns, 501 

U.S. at 136). 

¶ 24 Accordingly, because the plain language of the Amendment is 

clear, we conclude that the date of “violation” means the date or 

dates the FCPA or Amendment is violated, and that a private cause 

of action to enforce an ALJ’s decision must be filed within one year 

of that date. 

B. Dismissal under C.R.C.P. 12(b)(5) 

¶ 25 Having concluded that the statute of limitations runs from the 

date or dates a violation occurs, we must now determine whether 

the district court’s order granting Alliance’s motion to dismiss 

properly identified that date. We begin by noting that a “violation” 

could either be discrete or continuing. This issue, however, is not 

before us. Rather, viewing CIW’s complaint in the light most 

favorable to CIW, we must conclude that the complaint could be 

read to allege a continuing violation, that Alliance assumed it was a 

continuing violation in its motion to dismiss, and that the district 

court’s order assumed the violation was continuing. Thus, we 

assume, for purposes of this analysis only, that the violation was 
17 

continuing, and we focus on whether the complaint and attached 

ALJ decision state a plausible claim that the violation continued 

beyond June 26, 2014, the date relied on by the district court. In 

doing so, we express no opinion on whether the specific violations of 

failure to register and failure to report constitute discrete offenses 

occurring on the dates the filings and reports were due, or 

continuing offenses, an issue never raised or briefed by the parties. 

We also recognize that the district court did not have the benefit of 

our interpretation of “violation” when ruling on Alliance’s motion. 

¶ 26 We begin by acknowledging that a case should be dismissed 

under Rule 12(b)(5) based on a statute of limitations only in 

exceptional circumstances. Indeed, CIW urges us to reverse on this 

basis, arguing that a statute of limitations defense is not properly 

brought in a Rule 12(b)(5) motion. 

¶ 27 To be sure, defenses based on statutes of limitation are 

affirmative in nature, and must be raised by responsive pleading. 

C.R.C.P. 8(c). Typically, they cannot be raised in a Rule 12(b)(5) 

motion to dismiss when the affirmative defense has not been raised 

in the pleadings. McPherson v. McPherson, 145 Colo. 170, 358 P.2d 
18 

478 (1960); Smith v. Kent Oil Co., 128 Colo. 80, 81, 261 P.2d 149, 

150 (1953); McIntire & Quiros of Colo., Inc. v. Westinghouse Credit 

Corp., 40 Colo. App. 398, 400, 576 P.2d 1026, 1026 (1978). 

“However, divisions of this court have recognized an exception 

‘where the bare allegations of the complaint reveal that the action 

was not brought within the required statutory period.’” Wagner v. 

Grange Ins. Ass’n, 166 P.3d 304, 307 (Colo. App. 2007) (quoting

SMLL, L.L.C. v. Peak Nat’l Bank, 111 P.3d 563, 564 (Colo. App. 

2005)); see also Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 

(Colo. 1999) (“Such motions ‘are viewed with disfavor.’” (quoting 

Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996))). 

¶ 28 We review a district court’s ruling on a Rule 12(b)(5) motion to 

dismiss de novo. Id. Generally, in ruling on a Rule 12(b)(5) motion, 

a court may consider only those matters stated in the complaint 

and must accept all allegations of material fact as true, viewing the 

allegations in the light most favorable to the plaintiff. Coors 

Brewing Co., 978 P.2d at 665. However, when the plaintiff attaches 

documents to the complaint, a court may consider those documents 

in addition to the allegations stated in the complaint. Lambert v. 
19 

Ritter Inaugural Comm., Inc., 218 P.3d 1115, 1119 (Colo. App. 

2009). “Only a complaint that states a plausible claim for relief 

survives a motion to dismiss.” Warne v. Hall, 2016 CO 50, ¶ 19 

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Under this 

standard, a party must plead sufficient facts that, if taken as true, 

suggest plausible grounds to support a claim for relief. Warne, ¶ 

24. 

1. Complaint Allegations 

¶ 29 CIW filed its complaint on September 15, 2015, seeking 

enforcement of the ALJ’s August 8, 2014, decision. The complaint 

alleged that the ALJ had found violations of the FCPA, had imposed 

a fine for the violations, and had given Alliance thirty days from 

August 8 to comply with its decision. It further alleged that “no 

part of said Order has been paid or satisfied,” and that Alliance was 

“continuing operations in defiance of the law.” 

¶ 30 The attached ALJ decision revealed that Alliance had violated 

two provisions of the FCPA — registration and reporting as required 

by § 1-45-108, C.R.S. 2016. In the “Sanction” section of the 

decision, the ALJ found that “[r]egistration was due on March 17, 
20 

2014, but not filed as of the first day of the hearing, June 26, 2014; 

a period of 104 days, for a total of $5,050.” A footnote to this 

sentence stated: “Due to the power outage on June 26th, the hearing 

could not be concluded in one day and had to be continued for a 

month. Because this delay was beyond Alliance’s control, it would 

be unfair to extend Alliance’s liability to the second hearing day.” 

¶ 31 The ALJ also found that contribution reports were due “by 

April 15, 2014,” and “due June 5, 2014,” but that “[n]o report was 

filed as of June 26, 2014, a period of 71 days, for a total of $3,550.” 

It ordered Alliance to “register with the Secretary of State and file all 

required reports . . . within 14 days of the mailing of this decision.” 

It further ordered Alliance “to remit [the monetary penalty] to the 

Secretary of State, Campaign Finance, within 30 days of the date of 

mailing of this decision.” 

¶ 32 The district court found that Alliance made a “straightforward 

argument[] that the last act in violation of the law, as contained in 

the order, was on June 26, 2014 . . .,” and that because CIW filed 

its complaint on September 15, 2015, more than one year later, its 

enforcement action was barred by the statute of limitations. It 
21 

concluded that CIW failed to comply with the statute of limitations 

and dismissed the complaint. 

2. Analysis 

¶ 33 CIW contends its complaint sufficiently alleged the existence of 

a continuing violation so as to preclude dismissal under the statute 

of limitations. Alliance responds that the limitations period began 

to run on the hearing date of June 26, 2014 — the last date the ALJ 

used to assess a penalty for the violations. For the reasons stated 

below, we agree that the allegations of CIW’s complaint, taken as 

true, suggest plausible grounds to support a claim for relief. 

¶ 34 Based on our conclusion in Part II.A that failure to pay a fine 

does not constitute a violation of the FCPA or the Amendment, we 

reject Alliance’s argument that the penalty range determines the 

date of violation. Because an ALJ has broad discretion to impose 

sanctions for violations, the dates he or she selects for determining 

the appropriate sanction are merely instructive and not binding for 

the purposes of the statute of limitations. See Patterson, 209 P.3d 

at 1217 (an ALJ has broad discretion under the Amendment to 

determine whether sanctions are appropriate for each violation); see 
22 

also Colo. State Bd. of Med. Exam’rs v. Hoffner, 832 P.2d 1062, 1067 

(Colo. App. 1992) (medical board is not bound by the ALJ’s 

imposition of sanctions). Thus, to the extent the district court 

concluded that the last date of the penalty range, June 26, 2014, 

corresponded with the date of violation in § 9 of the Amendment, 

this conclusion was erroneous and was contradicted by other 

language in the decision. 

¶ 35 Here, the ALJ’s footnote shows that Alliance had not registered 

or filed reports as of July 2014, and its order to Alliance to do so 

within fourteen days of the decision shows that Alliance had not 

done so as of August 8, 2014. Therefore, if the district court 

assumed a continuing violation until June 26, 2014, the violation 

continued until at least August 8, 2014, and the record does not 

show when or if the continuing violation ended. When viewed in a 

light most favorable to CIW, we conclude the complaint states a 

plausible claim of a continuing violation sufficient to withstand a 

Rule 12(b)(5) motion to dismiss based on the statute of limitations. 

We neither express nor imply an opinion regarding the correct 

determination of the date of violation. See Wagner, 166 P.3d at 307 
23 

(“Whether a particular claim is time barred is a question of fact.”) 

In deciding a motion under Rule 12(b)(5), neither the district court 

nor this court can make findings of fact, but rather must accept the 

allegations of fact in the light most favorable to the plaintiff. Coors 

Brewing Co., 978 P.2d at 665. We have applied this principle in 

reviewing the order in this case, although we are aware of 

limitations on the continuing violation doctrine. See Polk v. Hergert 

Land & Cattle Co., 5 P.3d 402, 405 (Colo. App. 2000) (“However, the 

continuing violation doctrine has been limited to discrimination 

cases.” citing Harmon v. Fred S. James & Co., 899 P.2d 258 (Colo. 

App. 1994)); but see Crowell v. Indus. Claims Appeals Office, 2012 

COA 30, ¶ 13 (collecting cases finding a continuing violation and 

stating “the difference between a one-time violation and a 

continuing violation hinges on whether the violation is subject to 

being cured by subsequent action.”). 

¶ 36 Accordingly, we reverse the district court’s order dismissing 

the complaint and remand the case for reinstatement of the 

complaint and further proceedings. 
24 

III. Attorney Fees 

¶ 37 CIW also contends the court erred when it awarded Alliance 

attorney fees. Because we remand this case for reinstatement of 

the complaint, we also reverse the award of attorney fees. However, 

because it may arise on remand, we address CIW’s contention that 

its status as a pro se party precludes the court from awarding 

attorney fees against it. 

¶ 38 First, we note that the plain language of § 9 of the Amendment 

entitles the prevailing party in a private enforcement action to 

reasonable attorney fees and costs. However, § 1-45-111.5(2), 

C.R.S. 2016, requires that § 13-17-102(5) and (6), C.R.S. 2016, be 

considered before awarding attorney fees. A district court may not 

assess attorney fees against a pro se party under § 13-17-102(6) 

unless it “finds that the party clearly knew or reasonably should 

have known that his action or defense, or any part thereof, was 

substantially frivolous, substantially groundless, or substantially 

vexatious.” In considering an award of attorney fees against a pro 

se party, a district court must make findings under § 13-17-102(6). 

Artes-Roy v. Lyman, 833 P.2d 62, 63 (Colo. App. 1992). We note 
25 

that the court made no such findings here. Thus, if this issue 

arises on remand, the district court should make the requisite 

findings before assessing attorney fees against CIW. 

IV. Conclusion 

¶ 39 The judgment is reversed, and the award of attorney fees is 

vacated. The case is remanded for reinstatement of the complaint 

and for further proceedings consistent with this opinion. 

JUDGE NIETO concurs. 

JUDGE KAPELKE concurs in part and dissents in part. 
26 

JUDGE KAPELKE, concurring in part and dissenting in part. 

¶ 40 I agree with the majority’s analysis of the meaning of the term 

“violation” in article XXVIII, section 9(2)(a) of the Colorado 

Constitution and with its rejection of CIW’s arguments that the 

one-year limitation period does not begin to run until the date of 

entry of the final judgment following appellate review. I further 

agree with the majority that the case should be remanded for the 

district court to make the necessary findings under § 13-17-102(6), 

C.R.S. 2016, with respect to the issue of attorney fees. 

¶ 41 Nevertheless, I disagree with the majority’s conclusion in Part 

II.B that the complaint states a “plausible claim for relief” based on 

the need for a determination whether there was a “continuing 

violation.” In my view, the district court correctly granted Alliance’s 

C.R.C.P. 12(b)(5) motion to dismiss the complaint as untimely. 

¶ 42 The ALJ determined that Alliance violated § 1-45-108, C.R.S. 

2016, of the FCPA (1) “by failing to register as a political committee” 

by the due date of March 17, 2014; and (2) by “failing to file 

required contribution and expenditure reports” by the respective 

due dates of “April 15, May 2, and June 5, 2014.” 
27 

¶ 43 Those are, in my view, the controlling dates of the violations. 

The plain and unambiguous language of § 9(2)(a) provides: “Any 

private action brought under this section shall be brought within 

one year of the date of the violation in state district court.” CIW’s 

private enforcement action was filed on September 15, 2015, more 

than one year after all of the respective dates of the violations 

determined by the ALJ in the “Final Agency Decision.” Section 

9(2)(a) does not recognize any exception for “continuing violations.” 

¶ 44 Accordingly, I would affirm the district court’s order 

dismissing the complaint pursuant to C.R.C.P. 12(b)(5).