
    2016 CO 21
    In re COLORADO ETHICS WATCH, Plaintiff v. INDEPENDENT ETHICS COMMISSION, Defendant.
    Supreme Court Case No. 15SA244
    Supreme Court of Colorado.
    April 25, 2016
    Attorneys for Plaintiff: Colorado 'Eithics Watch, Luis Toro, Margaret Perl, Denver, Colorado.
    Attorneys for Defendant: Cynthia H. Coff-man, Attorney General, Frederick R. Yarger, Solicitor General, Lisa Brenner Freimann, First Assistant Attorney General, Kyle Dum-ler, Senior Assistant Attorney General, Natalie M. Lucas, Assistant Attorney General, Denver, Colorado.
   CHIEF JUSTICE RICE

delivered the Opinion of the Court.,

4 1 In this original proceeding, we consider whether the Independent Ethics Commission's ("IEC") decision to dismiss a complaint against a public officer as frivolous is subject to judicial review, The plaintiff contends that the General Assembly authorized such review when it enacted section 24-18.5-101(9), CRS. (2015), which provides that final action of the commission concerning a complaint shall be subject to judicial review." The Colorado Constitution, however, forbids the General Assembly from "limiting] or restrict[ing]" IEC's powers. Colo. Const. art. XXIX, § 9. Moreover, although the constitution provides that "penalties may be provided by law," id. § 6 (emphasis added), it further provides that IEC "may dismiss frivolous complaints without conducting a public hearing," id. § 5@@8)(b). We conclude that, while the General Assembly may authorize judicial review of IRC's enforcement decisions, it may not encroach upon IEC's décisions not to enforce. Therefore, we hold that the General Assembly's "judicial review" provision does not apply to frivolity dismissals, Accordingly, we make our rule to show cause absolute, and we remand this case to the trial court with instructions to dismiss the plaintiffs complaint.

I. Facts and Procedural History

T2 In 2006, «Colorado voters passed Amendment 41 and created IEC, an independent commission tasked with' allegations of government officials' misconduct. See id. § 5 ("Amend. 41"). The amendment authorizes any person to file a complaint "asking whether a public officer, member of the general assembly, local government official, or government employee has failed to comply" with certain standards of, conduct. (Id. § 5(8)(a) Although IEC must "conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint," it may dismiss frivolous complaints without performing such actions. Id. § 5(8)b)-(c). When IEC dismisses 2a complaint as frivolous, it must keep that complaint confidential, Id. § 5(8)(b).

T3 In 2014, Plaintiff Colorado Ethics Watch ("Ethics Watch"), a self-styled watchdog organization, filed a complaint with IEC regarding a commissioner in 'Elbert County. After initially staying the matter, IEC began reviewing Ethics Watch's complaint in March 2015. IEC conducted a preliminary investigation, and in May 2015, after meeting in executive session to discuss the complaint, IEC dismissed it as frivolous. Subsequently, Ethics Watch filed a request with IEC under the Colorado Open Records Act, §§ 24-72-200.1 to -206, C.R,S. (2015), seekmg "Lalll documents collected, reviewed or generated in connection with" its complaint. IEC denied the request, mung Amendment 41's con-ﬁdentlahty provision 'and stating that it "shall maintain all the documents responsive to [the] request as confidential." .

4 Ethics Watch then sued IEC, claiming relief under both the State Administrative Procedure Act ("APA"), § 24-4-106, C.R.8, (2015), and C.R.C.P. 106. In particular, Ethics Watch sought an order from the trial court declaring IRC's frivolity determination "unlawful" and compelling IEC to "proceed with an investigation, to be followed by a public hearing." 'After the trial court denied IEC's motion to dismiss for lack of subject matter jurisdiction, IEC asked us to exercise our original jurisdiction pursuant to CAR. 21. We issued a rule to show cause why the motion to dismiss should not be granted.

I. Original Jurisdiction

15 "Original relief pursuant to C.A.R. 21 is an extraordinary remedy that is limited both in purpose and availability." Dwyer v. State, 2015 CO 58, ¶ 4, 357 P.3d 185, 187. That said, we "generally elect to hear C.A.R. 21 cases that raise issues of first impression and that are of significant public importance." Id., 357 P.3d at 187-88. This case satisfies both criteria. We have never considered whether IEC's determinations of frivolousness are reviewable. Furthermore, this case presents an important question, as its resolution 1mphcates IEC's operations going forward.

HIL. Standard of Review

- 16 Because the pertinent facts of this case are undisputed, we review the trial court's denial of IEC's motion to dismiss under C.R.C.P. 12(b)(1) de novo. See Medina v. State, 35 P.3d 443, 452 (Colo.2001).

IV, Analysis .

T7 To determine whether IBC's frivolity determinations are subject to judicial review, we first examine the relevant text of Amendment 41, along with its statutory counterpart, section 24-18.5-101. We then consider whether Amendment 41 permits the General Assembly to authorize judicial review of IEC's frivolity determinations. We conclude that the amendment only allows the legislature to sanction review of IEC's enforcement decisions; thus, the General Assembly may not encroach upon IEC's decisions not to en-foree, Therefore, we hold that section 24-18.5-101(9) does not apply to frivolity dismissals,

A. Amendment 41 and Section 24-18.5-101

18 Amendment 41 creates IEC and outlines its investigative function. It provides that IEC "may dismiss frivolous complaints without conducting a public hearing." Amend. 41, § 5(8)®). When IEC does dismiss a complaint as frivolous, that complaint "shall be maintained confidential by [IRC]." Id. For non-frivolous complaints, however, IEC "shall conduct an investigation, hold a public hearing, and lender findings." Id. § 5(8)(c). Add1t10nally, the amendment in-eludes a "Penalty" section that features two 'core components: (1) any public official "who breaches the public trust ... shall be liable" for certain fines; and (2) “[t]he manner of recovery and additional penalties may be provided by law." Id. § 6 (emphasis added). Finally, the, amendment provides that "[lleg-islation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions 'of this article or the powers herein granted." Id. § 9 (emphasis added).

T9 Similar to Amendment 41, section 24-185-101 outlines various IEC functions. Only subsection (9) is relevant here, 'It provides as follows: "Any final action of [IEC] concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver" § 24-18.5-101(9).

110 Having articulated these provisions, we now turn to the substantive question presented here: whether IBC's frivolity determinations are subject to judicial review.

B. IEC's Frivolity Determinations Are Not Subject to Judicial Review

{ 11 To begin with, we note that IEC is not an executive agency; it is instead an independent, constitutionally created commission that is "separate and distinet from both the executive and legislative branches." Dev. Pathways v. Ritter, 178 P.3d 524, 532 (Colo.2008). Thus, Amendment 41 articulates what the General Assembly can and cannot do. Put differently, any authority that the General Assembly may exercise regarding IHC's operations derives exclusively from Amendment 41 itself, not from standard principles of administrative agency law.

12 Pursuant to Amendment 41, the General Assembly can provide for additional penalties when an official breaches the public trust. See Amend, 41, § 6. As such, Amendment 41 vests the General Assembly with authority to enact legislation involving situations where IEC has enforced. a penalty against an official. But the General Assembly cannot enact legislation that "limit[s] or restrict[s]" IEC's powers. Id. § 9. Therefore, because Amendment 41 only permits the legislature to act with respect to IEC's enforcement actions, the General Assembly cannot constitutionally enact legislatwn pertaining to any IEC decisions that do not involve enforcing penalties.

T18 Given this context, the scope of section 24-18.5-101(9)-which, again, provides that "[alny final action of [IEC] concerning a complaint shall be subject to judicial review"-is necessarily limited. It can only encompass enforcement getions, But IEC's dismissal of a complaint as frivolous does not involve the enforcement of penalties; rather, it represents IEC's decision not to enforce. As discussed, the General Assembly is constitutionally prohibited from enacting legislation that could upend such a decision. See Amend. 41, § 9. Therefore, seetion 24-18.5-101(9) simply cannot apply to IEC's dismissals of frivolous complaints.

114 We note that interpreting section 24-18.5-101(9) to exclude frivolity determinations preserves its constitutionality. We presume statutes to be constitutional, and we will not strike one down "unless a 'clear and unmistakable' conflict exists between the statute and a provision of the Colorado Constitution." Coffman v. Williamson, 2015 CO 35, ¶13, 348 P.3d 929, 934 (quoting E-470 Pub. Highway Auth, v. Revenig, 91 P.3d 1038, 1041 (Colo.2004)), We discern no such conflict here. By its terms, subsection (9) authorizes judicial review of "final action[s]." It is entirely reasonable that, in choosing this language, the General Assembly differentiated between enforcement and non-enforcement decisions, as does our constitution. That is, the General Assembly recogmzed both what Amendment 41 permits (Le., legislation involving penalties) and what it forblds (legislation restricting IEC's powers), and it acted accordingly. Thus, section 24-18.5-101(9) sanctions judicial review of IRC's enforcement decisions without unconstitutionally trespassing on IRC's power to dismiss frivolous complaints.

[ 15 Ethics Watch nevertheless insists that IEC's dismissal of its complaint constituted a final action, as it signified the end of IEC's review, Cf. MDC Holdings, Inc: v. Town of Parker, 223 P.3d 710, 721 (Colo.2010) ("A final decision marks the consummation of the agency's decision-making process and is one from which legal consequences flow." (emphasis added)). This argument misses the mark. Ethics Watch characterizes IEC's dismissal as "a Final Agency Action." Response to Rule to Show Cause, at 10. But IEC is not an agency-it is an independent, constitutionally created commission. See Dev. Pathways, 178 P.3d at 530 (noting that Amendment 41 "makes clear that [IBC] is ... 'an entity separate and distinct from the executive and legislative branches"), Thus, generalized case law regarding an agency's "final action" is simply inapplicable to IEC. Instead, it is the clear mandate of the constitution-which provides that "in no way shall [any] legislation limit or restrict" IRC's powers, Amend. 41, § 9-that controls.

T 16 For example, at oral argument, Ethics Watch attempted to distinguish Heckler v. Chaney, 470 T.8. 821, 837-38, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), in which the Supreme Court held that the federal APA did not authorize judicial review of the Food and Drug Administration's refusal to take requested enforcement actions. In Ethics Watch's view, the instant case is more akin to Bachowski v. Brennan, 502 F.2d 79, 88 (3d Cir.1974), rev'd on other grounds sub nom. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 LEd.2d 377 (1975), in which the Third Circuit held that the APA. allowed the plaintiffs to challenge in court the Secretary of Labor's refusal to set aside a union election. The Bachowski court noted that the Secretary's decision hinged on "limited and clearly defined" statutory factors, resulting in "a rather straightforward factual determination" that was not "beyond the judicial capacity to supervise." Id.; cf. Heckler, 470 U.S. at 833-34, 105 S.Ct. 1649 (distinguishing Bachowski). Ethics Watch contends that, because IEC has promulgated rules regarding frivolous complaints, such "clearly defined" factors exist here, meaning a court may review whether IEC abused its disceretion in dismissing a complaint as frivolous.

T 17 In focusing on the minutiae of Heckler and Bachowski, Ethics Watch misses the larger point: Both of these cases are inappo-site. That is, both considered whether the APA authorized judicial review of agency action. If IEC were a creature of statute, we would likely conduct the same inquiry. But it is not. Ethics Watch has pointed us to no case law suggesting that the general rules of administrative agency law should apply to IEC, a constitutionally created entity whose birthing document explicitly prohibits the General Assembly from interfering with it. See Amend. 41, § 9.

[ 18 Two additional factors bolster our conclusion that IRC's frivolity determinations are not reviewable. First, we note that Amendment 41 features no language authorizing judicial review of such, determinations. And second, the confidentiality requirement for frivolous complaints would in any event render such review impossible.

T19 Ethics Watch disputes the latter point, arguing that the scope of Amendment 41's confidentiality provision is in fact very narrow. , Ethics Watch specifically contends that, to the extent that IEC's preliminary investigation of its complaint resulted in any written materials, such documents are not subject to the confidentiality rule. Instead, Ethics Watch asserts that the amendment's c'onﬁ'dentiality language applies only to its original, complaint. See id. § 5(8)b) ("Complaints dismissed as frivolous shall be maintained confidential by [IRC].").

T20 This construction makes no sense. Requiring IEC to keep only the complaint confidential from Ethics Watch would be pointless; given that Ethics Watch is the very party who authored the complaint, it is assuredly already aware of its contents. Indeed, Ethics Watch is free to publicize those contents to whomever it chooses. .'Therefore, to accept Ethics Watch's narrow reading of Amendment 41 would be to defang its confidentiality requirement and render it a nullity. Cf. Colo. Educ. Ass'n v. Rutt, 184 P.3d 65, 80 (Colo.2008) (rejecting an interpretation of a constitutional provision as "contrary to the electorate's intent" because the interpretation would "render [that provision] a nullity"). Rather, the only logical construction of Amendment 41's confidentiality language is that it applies to IEC's investigative work product, {e., to ary documents that the commission may create in the course of determining whether a complaint is frivolous. '

421 And therein lies the problem. Again, Ethics Watch seeks judicial review of IEC's determination under either the APA or C.R.C.P. 106. To conduct such a review, a court must examine the underlying record. See § 24-4-106(6) ("In every case of agency action, the record ... shall include the original or certified copies of all pleadings, applications, evidence, exhibits, and other papers presented to or considered by the agency....",. (emphases added); CRCP. 106(a)(4)(I) ("Review shall be limited to a determination of whether the [governmental body] has ... abused its discretion, based on the emdence in the record before the [body]." (emphasis added)). But when IEC dismisses a frivolous complaint, it is constitutionally prohibited from disclosing the very record that would ordinarily form the basis for judicial review. Therefore, Amendment 41's confidentiality requirement further militates against judicial review of: IEC’s fmvohty determinations.

22 Accordingly, we conclude that IEC's decision to dismiss a complaint as frivolous i is not subject to judicial review.

V. Conclusion

. T28 The language of Amendment 41 is clear. Although the General Assembly may enact legislation relating to IEC's enforcement decisions, it may not encroach upon IEC's decisions not to enforce. As a result, section 24-18.5-101(9) does not apply to frivolity dismissals. Therefore, we hold that IEC's decision to dismiss a complaint as frivolous is not subject to judicial review. Accordingly, we make, our rule to show ecause absolute, and we remand this case to the trial court with instructions to dismiss Ethics Wateh's complaint for lack of jurisdiction.

JUSTICE GABRIEL dissents, and JUSTICE MARQUEZ and JUSTICE HOOD join in the dissent.

JUSTICE GABRIEL,

dissenting.

124 As the majority observes, this case concerns a party's right to judicial review of a decision by the Independent Ethics Commission (IEC" or "commission") to dismiss the party's complaint as frivolous, Specifically, Colorado Ethics Watch contends that judicial review is authorized by section 24—-18.5-101(9), C.R.S. (2015).

25 Even though no party in this case has ever advanced such an argument, the majority concludes that although the General Assembly may authorize judicial review of IEC enforcement decisions, it may not encroach on IEC decisions not to enforce. Maj. op. { 1. Concluding further that the IRC's decision to dismiss a complaint as frivolous amounts to a decision not to enforce, the majority holds that section 24-18.5-101(9) does not apply to such a decision. Id. The majority thus resolves this case based, in large part, on an argument that no party has raised, and in doing so, it discusses only tangentially (if at all) the arguments on which the IEC did rely, namely, that (1) its duty of confidentiality precludes judicial review of a decision to dismiss a complaint as frivolous and (2) the dismissal of a complaint as frivolous constitutes the exercise of a discretionary gatekeeping function by the IEC and is therefore not subject to judicial review. 2. .

¶ 26 I disagree with the majority's conclusions and the IEC's above-noted assertions. In my view, (1) nothing in the Colorado Constitution precludes the application of seetion 24-18.5~101(9) in this context, and the dismissal of a complaint as frivolous constitutes "final action" within the meaning of that section; (2) the IEC's duty of confidentiality. does not preclude judicial review; (8) the IEC's dismissal of a complaint as frivolous does not constitute the exercise of a dlscretlonary gatekeeping function i in the circumstances presented here; and (4) the ma-JOI‘lty’S opinion undermines a primary purpose of the IEC, namely, to preserve pubhc confidence in govlernment Accordingly, I respectfully dissent. |

I. Facts and Procedural History

. T 27 This case began when a citizen filed a complaint against, among others, a county commissioner (the "subject commissioner"), alleging violations of Colorado campaign finance law. The Office of Administrative Courts ("OAC") ultimately found that the subject commissioner had violated a statutory prohibition on using public funds to support a local ballot issue and ordered him, as "an individual responsible for the improper expenditure," to reimburse his county's general fund in the amount of $1,000.

- 128 Thereafter, the board of county commissioners 'met to determine whether to appeal the OAC's decision. The subject commissioner chaired this meeting. After the county attorney summarized the proceedings, another county commissioner moved that the board direct the county attorney to appeal the case. The subject commissioner seconded the motion, and after further discussion, the motion passed by a 2-1 vote, with the subject commissioner voting in favor of the motion. Thus, the subject commissioner voted to direct the county attorney to expend county funds to appeal a monetary. penalty imposed on the subject commissioner personally.

¶29 Based on this conduct, Ethics Watch filed a complaint with the IEC, alleging that the subject commissioner's actions violated section 24-18-109(8)(a), C.R:S8. (2015). That provision (1) requires a member of the governing body of a- local government who has a personal or private interest in any matter proposed or pending before the governing body to discloge that interest and (2) prohibits that member from voting on the matter or attempting to influence the decision of other members of the governing body voting on the matter. Id. -

30 By a 3-2 vote, the IEC subsequently dismissed Ethics Watch's complaint as frivolous, and Ethics Watch sought judicial review in the district court for the city and county of Denver,. The IEC moved to dismiss Ethics Watch's petition for judicial review, however, arguing that the IEC's decision to dismiss Ethics Watch's ethics complaint as frivolous was not subject to judicial review.

{31 The district court denied the IEC's motion to dismiss, as well as its subsequent motion. for reconsideration. As pertinent here, the district court concluded that the IEC's dismissal of the ethics complaint constituted final agency action that was subject to judicial review, The court further concluded that suppression orders would adequately safeguard the confidentiality of frivolous complaints and that Ethics Watch had standing to seek judicial review.

32 The IEC then filed the present C.A.R. 21 petition, and we issued a rule to show cause why the motion to dismiss should not be granted.

II Analysis

T33 I begin by addressing the apphcable constitutional and statutory provisions and conclude that (1) section 24-18.5-101(9) applies to a complaint dismissed by the IEC as frivolous and (2) such a dismissal is a final action that is subject to judicial review pursuant to that section. I then address and reject the IRC's contentions that judicial review in this case is precluded by (1) the IEC's duty to maintain the confidentiality of dismissed frivolous complaints and (2) the fact that the dismissal of a, frivolous complaint is a discretionary gatekeeping function of the IEC.

A. Section 24-18.5-101(9)

134 Article XXIX, section 5@8)(a) of our state's constitution, which for consistency with the majority opinion I will refer to as Amendment 41, authorizes any person to file a complaint "asking whether a public officer, member of the general assembly, local government official, or government employee has failed to comply" with certain standards of conduct. As the majority observes, maj. op. 12, although the IEC must "conduct an investigation, hold a public hearing, and render findings on each non-frivolous complaint," it may dismiss frivolous complaints without conducting a public hearing. Colo. Const. art. XXIX, § 5@8)(b)-(c). In addition, Amendment 41 provides, "Complaints dismissed as frivolous shall be maintained confidential by the commission." Id. at § 5(3)(b).

*I 35 Amendment 41, however, says nothing about the right of judicial review from determinations on either frivolous or non-frivolous complaints. Section 24-18.5-101(9), which is the IEC's implementing statute, describes the seope of judicial review, and the IEC conceded at oral argument that this statute is constitutional.

1 36 Section 24-18.5-101(9) provides, "Any final action of the commission concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver." Notwithstanding this clear and unambiguous language and the fact that all parties in this case have conceded this provision's constitutionality, the majority concludes that the phrase "[alny final action" is limited to IEC enforcement actions and cannot constitutionally include IEC decisions not to exercise its enforcement power, which the majority deems to include decisions to dismiss complaints as frivolous. Maj. op. 11 12-18. The majority derives this argument from sections 6 and 9 of Amendment 41. Id. at 1 12.

137 Section 6 concerns penalties and provides that (1) enumerated public officials who breach the public trust shall be liable to their state or local jurisdictions for double the amount of the financial equivalent of any benefits obtained by such actions and (2) "tlhe manner of recovery and additional penalties may be provided by liw." Colo. Const. art. XXIX, § 6. '

. 138 Section 9, in turn, which is entitled "Legislation to facilitate article," provides, "Legislation may be enacted to facilitate the operation of this article, but in no way shall such legislation limit or restrict the provisions of this article or the powers herein granted." Colo Const. art. XXIX, § 9.

1189 Reading sectmns 6 and 9 together, the majority concludes that Amendment 41 vests the General Assembly with the authority to enact legislation in situations in which the IEC has enforced a penalty against an official but precludes the legislature from enacting legislation pertaining to IEC. decisions that do not involve enforcing penalties. Maj. op. ©12. For three reasons, I respectfully disagree.

€ 40 First, the fact that section 6 says that "additional penalties may be provided by law" in no way limits implementing legislation to matters relating to the enforcement of penalties. Section 6 does not define the scope of the General Assembly's authority to pass implementing legislation. Rather, seetion 9 is the provision defining the legislature's authority, and that section precludes only legislation limiting or restricting the provisions of Amendment 41 or the powers granted therein. In my view, reading seetion 6 to limit the seope of the legislature's authority to pass implementing legislation renders section 9 superfluous, and we must avoid such a construction. See People v, Rodrigues, 112 P.Bd 693, 697 (Colo.2005) {noting that appellate courts presume that each phrase of the constitution was included for a purpose and thus reading a constitutional provision to imply a particular requirement because interpreting the provision otherwise would render a portion of it superfluous); In re Great Outdoors Colo. Tr. Fund, 913 P.2d 588, 542 (Colo.1996) ("[In construing constitutional language, each clause and sentence must be presumed to have purpose and use.... Courts must lean in favor of a construction that will render every word operative, rather than one that may make some words idle and nugato- ”) ,

{41 Second, I see nothmg in section 9 precluding the General Assembly from enacting legislation touching on IEC decisions other than those enforcing penalties, including legislation authorizing judicial review of a decision to dismiss a complaint as frivolous. As noted above, section 9 precludes the legislature from enacting legislation that limits or restricts the provisions of Amendment 41 or the powers granted thereunder. Colo. Const. art. XXIX, $ 9. Amendment 41, however, is silent regarding judicial review, Thus, a provision like section 24-18.5-101(9), which authorizes judicial review of "[alny final action" of the IEC, cannot be read to limit or restrict the provisions of Amendment 41 or the powers granted therein. Accordingly, in my view, section 24-18.5-101(9) allows for judicial review of an IEC decision to dismiss a complaint as frivolous and in no way conflicts with section 9 of Amendment 41.

42 Third, the implications of the majority's rationale are troubling. , As I understand the majority's view, judicial review would be permitted only when the IEC has investigated, held a heanng, found a violation, and enforced a penalty. Aecordmgly, a complam-ant would not be entitled to, judicial review in a case in which the IEC investigated the complainant's complaint, held a hearing, and then dismissed the complaint on the merits. I perceive no basis in the constitution or in any applicable law for'depriving such a complainant of a right to judicial review, and I cannot subscribe to a construction of Amendment 41 that would lead to such a result. Ree Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo.2011) (noting that in construing a constitutional provision, the supreme court must avoid interpretations that lead to unjust, absurd, or unreasonable results); cf. § 2-4-203(1)(e), C.R.S. (2015) (providing that if a statute is ambiguous, then a court, in determining the intention of the General Assembly, may consider the consequences of a particular construction).

4] 43 For these reasons, I disagree with the majority's conclusion that section 24-18.5-101(9) allows judicial review of IEC enforcement decisions but precludes judicial review of IEC decisions not to enforce, including decisions to dismiss complaints as frivolous. Rather, in my view, section 24-18.5-101(9) allows judicial review of any final action of the IEC, just as it says. -

1144 The question thus becomes whether the IEC's decision to dismiss a complaint as frivolous constitutes "final action" within the meaning of this statute. (I believe that it does.

¶ 45 Unhke the majority, I view the Umted States Supreme Court's decision in Heckler v. Chaney, 440 U.S, 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), as mstructxve here. In Heckler, 470 U.S. at 831, 105 S.Ct. 1649, the Court, construing the federal Admlmstratwe Procedure Act, 5 U.S.C. § 70l(a), observed that "an agency's decigion not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion." . In so stating, the Court recognized the genei'al unsuitability for judicial review of agency decisions to refuse enforcement," Id. The Court went on to emphasme, however, that an agency's decision not to take enforcement action was "only presumptively unreviewable." Id. at 882, 105 S.Ct. 1649. The Court then opined that such a presumption "may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Id. at 833, 105 S Ct. 1649.

T. 46 That is prec1sely the case here Specifically, the IEC has enacted rules of procedure regarding its handling of complaints. In these rules, the IEC has defined "frivolous" to mean "a complaint filed without a rational argument for the IRC's involvement based on the facts or law." IEC Rules of Procedure § 8(A)(5).

1 47 Accordingly, because the IEC’s governing rules provide guidelines for it to follow in determining whether to dismiss a com-pldint as "frivolous, the IEC does not have unfettered discretion in that decision. ~ See Heckler, 470 U.S. at 833, 105 S.Ct. 1649.

~ {148 Moreover, compliance with the applicable guidelines is a matter that is readily subject to judicial review; a reviewing court ordmamly would need to look no further than the face of the complaint, Amendment 41, and section 24~-18.5-101 to determine 'whether the' complaint contains "a rational argument for the IEC's involvement based on the facts or law." ' IEC Rules of Procedure § 3(A)(5); cf. Dunlop v. Bachowski, 421 U.S. 560, 567 n. 7, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975) (rejecting the Secretary of Labor's contention that a decision not to prosecute a matter was an unreviewable exercise of pros-ecutorial discretion, when the applicable statute required the Secretary to investigate certain complaints and to bring a civil lawsuit "if he finds probable cause to believe that a violation ... has occurred"), overruled in part on other grounds by Local No. 82 v. Crowley, 467 U.S. 526, 549 n. 22, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984).

49 And in my view, the IEC's dismissal of a complaint constitutes "final action" within the meaning of section 24-18.5-101 because such a dismissal ends the IEC's deci-sgion-making process, is neither tentative nor interlocutory in nature, and has legal consequences for the complainant,. Cf. Chittenden v. Colo. Bd. of Soc. Work Exam'rs, 2012 COA 150, ¶ 26, 292 P.3d 1138, 1148 ("For agency action to be final pursuant to section 24-4-106(2), it must (1) mark the consummation of the agency's decision-making process and fiot be' merely tentative or interlocutory in nature, and (2) constitute an action by which rights or obligations have been determined or from which legal consequences will flow.").

¶ 50 For these reasons, I would conclude that the IEC's decision to dismiss Ethics Watch's complaint as frivolous was properly subject to judicial review, and I would discharge the order to show cause. I next explain why I am not persuaded otherwise by the IEC's contrary assertions.

B, Duty of Confidentiality

151° As noted above, the IEC contends that its duty to maintain the confidentiality of a dismissed frivolous complaint . somehow precludes judicial review. For several reasons, I am not persuaded.

€52 First, nothing in section 24—18 5-101(9) creates such an exception. To the contrary, that provision speaks in broad language: "Any final action of the commission concerning a complaint shall be subject to judicial review by the district court for the city and county of Denver." (Emphases added.) The legislature could have limited this provision to final actions concerning non-frivolous complaints. Alternatively, it could have provided that the IEC's dismissal of a complaint as frivolous is not subject to judicial review. -It did neither, choosing instead to provide for judicial review of "[alny final action." And section 24-18.5-101(9) makes no mention of confidentiality concerns.

T53 Second, contrary to the majority's view, both Amendment 41 and the IEC's own rules of procedure limit the duty of confidentiality to the complaint. See Colo. Const. art. XXIX, § 5(8)(b) (@Complaints dismissed as frivolous shall be maintained confidential by the commission."); IEC Rules of Procedure § 7(E) ("Any complaint dismissed as frivolous shall be maintained confidential by the Commission."). Although the majority contends that such a limitation renders the confidentiality provision a nullity, maj. op: 120, Amendment 41 itself, the IEC's rules of procedure, and the undisputed fact that the duty of confidentiality does not apply to Ethics Watch, which is free to publicize the contents of its complaint to whomever it chooses, establish the limited reach of Amendment 41's confidentiality provision,

€ 54 Nor do I read the duty of confidentiality so broadly as to preclude the disclosure of a dismissed complaint to a court in the context of a judicial review proceeding. Indeed, I know of no analogous context in which a duty of confidentiality precludes submitting an appropriate dispute to a court with jurisdiction over the matter. To the contrary, judicial review of a complaint dismissed by the IEC as frivolous would be similar to the myriad cases in which courts are called on to resolve disputes involving confidential or proprietary information and in which the parties have agreed to protect By way of example, cases involving trade. secrets and intellectual property often present confidentiality issues, and courts have proven well-equipped to handle them through appropriate protective and suppression orders. See C.R.C.P. 26(c) (concerning protective orders}; CRCP. 121, § 1-5 (concerning orders limiting access to court files).

1 55 Third, even were I to agree with the majority that the IRC's duty of confidentiality extends beyond the dismissed complaint to the IRC's "record," I still do not agree that such a duty would preclude the judicial review for which the General Assembly has expressly provided. This is particularly true here, where the IEC's Rules of Procedure make clear that any such "record" would be limited.

[ 56 Specifically, section 7(F) of the IEC’ Rules of Procedure provides: ©.

The Commission may determine whether a complaint is frivolous based on the face of the, complaint itself. Alternatively,; the Commission in its discretion may defer a frivolous determination until after a preliminary investigation of the complaint by the staff of the Commigsion. The Commission shall exercise care to the extent practicable not to disclose the contents of the complaint as part of the preliminary investigation. If after a preliminary investigation the Commission is unable to determine whether or not a complaint is frivolous, the Commission may disclose the complaint to the individual who is the subject of the complamt for their response in order to aid the Gommlssmn in rendemng -a frivolous determination.,

41 57 Thus, in many cases, the record would be limited to the complaint itself, , In others, it would be limited to a "preliminary investigation." And even if the IEC's investigative work product were confidential, that confidentiality would not immunize the facts of the case, as opposed, to the IEC's mental processes, from disclosure to a court.

158 Fourth, as noted above, and as the majority acknowledges, the duty of confidentiality does not apply to Eithics Watch. Maj. op. 120. Accordingly, regardless of the duty imposed on the IEC, Ethics Watch has every right to disclose its complaint, and any facts that it has uncovered, to a district court in the context of a request for judicial review. The court can then determine whether any of that information should be placed under seal, and it can proceed to assess independently whether Ethics Watch's complaint was frivolous within the above-described guidelines adopted by the IEC.

159 For all of these reasons, I dlsagree with the IEC's assertion that its duty 'of confidentiality precludes Judlmal review in this case.

C. The IEC's Function

60 I likewise am unpersuaded by the IEC's characterization of the dismissal of an allegedly frivolous ethics complaint as a discretionary gatekeeping function or a matter of prosecutorial discretion within the IRC's area of expertise. *

61 The IEC's Rules of Procedure contain detailed requirements for what must be included in a complaint See IEC Rules of Procedure § 7. Among other things, the complaint must contain a~statement of the facts underlying the complaint "with specificity regarding the ethical violation, including the section or sections of Article XXIX or other standard of 'conduct which the complainant believes was violated." See id. at § 7(D)(1). In addition, the complaint must contain (1) the name, address, position, and email address (if available) of any person whose conduct is being complained about; (2) the date of the alleged violation; and (8) "lal statement that, to the best of the complainant's knowledge, information and belief, the facts and any allegations set out in the complaint are true.": See id. at § 7(D)(@)-(4). Accordingly, the complaint is far more than a formulaic request for an investigation. It is a specific and detailed allegation of an ethics violation, As a result, in my view, the dismissal of such a complaint, particularly on the ground that it is frivolous, does not constitute the mere exercise of a discretionary gatekeeping function. 'To the contrary, a dismissal as frivolous under the IRC's Rules of Procedure amounts to a legal conclusion that the complaint lacks a rational argument for the IRC's involvement based on the facts or law. In short, it is a substantive legal ruling on a formal complaint.

T62 Moreover, such a dismissal does not involve a balancing of factors that are peeu-larly within the IEC's expertise, such that the IEC is better positioned than a court to assess whether a complaint is frivolous. As noted above, the term "frivolous" is defined in the IEC Rules of Procedure, and in my view, a court is just as able as the IEC to determine whether a complaint is frivolous pursuant to the established guidelines.

T68 In reaching this conclusion, I note that this case does not involve the kind of prosecutorial discretion discussed in Heckler, 470 U.S. at 881, 105 S.Ct. 1649, in which an agency -

must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all.

[ 64 The IEC does not serve such a prose-cutorial function. Rather, it operates in an adjudicatory role and does not have the unfettered discretion to pursue whatever complaints it chooses, Indeed, it is required to conduct an investigation, hold a public hearing, and render findings on every non-frivolous complaint brought before it. Colo. Const. art. XXIX, § 58)(c).

I 65 Accordingly, I disagree that the IEC's decision to dismiss 'a complaint as frivolous involves the exercise of agency expertise and is merely the exercise of a discretionary ga-tekeeping function, such that the issue should be immunized from judicial review.

III. Conclusion

T66 A primary purpose of the IEC is to preserve public confidence in government. Colo. Const. art. XXIX, § 1. In my view, allowing judicial review here, as section 24-18.5-101(9) expressly requires, would promote that laudable goal. In contrast, by precluding judicial review in this context, I fear that the majority's ruling will have precisely the opposite effect.

167 For all of the foregoing reasons, I would discharge the order to show cause. I therefore respectfully dissent.

I am authorized to state that JUSTICE MARQUEZ and JUSTICE HOOD join in this dissent. 
      
      . In addition to arguing lack of subject matter jurisdiction under CRCP. 12(b)(1), IEC also argued that Ethics Watch failed to state a claim for relief under C.R.C.P. 12(b)(5). Because we focus here on reviewability, we do not address this alternative argument.
     
      
      . The statute also addresses frivolousness in the context of gift bans, See §.24-18.5-101(5). At oral argument, however, Ethics Watch conceded that it was not relying on this provision .in its argument for judicial review.
     
      
      . In its Response to Rule to Show Cause, Ethics Watch characterized IRC's petition as urging us to deem section 24-18.5-101(9) unconstitutional "as applied to judicial review of erroneous determinations that a complaint is frivolous." IEC, however, never made such an argument, and it confirmed at oral argument that it is not asking us to declare subsection (9) unconstitutional.
     
      
      . Even in this context, IBC's own rules would be of questionable relevance. In both Heckler and Bachowski, the courts considered whether the statute featured clearly defined factors; they did not examine any rules that the agency had promulgated.
     
      
      , Because we conclude that IRC's fnvohty determinations are not subject to judicial review at all, we need not résolve the procedural propriety of Ethics Watch's claims. Arguably, however, a claim under the APA would be improper for any IEC-related matter. The APA applies to executive agencies, See § 24-4-107, C.R.S. (2015). Once again, IEC is not an agency-it is an independent, constitutionally created, commission. See Dev. Pathways, 178 P.3d at 535 ("Amendment [41] creates a super-agency, a commission set apart from the legislative and executive branches of government. ...").
     
      
      . At oral argument, Ethics Watch suggested that a court could scrutinize certain documents on judicial review while simultaneously shielding them from public view. Whether this is true or not is irrelevant. IEC is not just required to keep its work product confidential from the public at large; it must keep such documents confidential from everyone, including the complaining party.
     
      
      . To the extent that Ethics Watch contends that a court could render a ruling without reviewing IEC's work product-that is, simply pronounce whether a complaint alone is frivolous on its face-its argument is unavailing. This would place IEC in the bizarre position of conducting a preliminary investigation but then being forbidden from citing the results of that investigation in court. Essentially, such a procedure would force IEC to defend its behavior in an adversarial proceeding with one hand tied behind its back.
     
      
      . Because we conclude that IBC's frivolity determinations are not subject to judicial review, we need 'not consider whether Ethics Watch has standing to bring this lawsuit:
     
      
      . Because the right to judicial réview in this case turns on section 2418.5-101(9), I need not consider the analogous right to judicial review established by the Colorado Administrative Procedures Act ("APA"), § 24-4-106, C.R.S. (2015). See V Bar Ranch LLC v. Cotten, 233 P.3d 1200, 1205 (Colo.2010) (noting that the APA generally serves as a "gap-filler" and that its provisions apply to agency actions unless they conflict with a specific provision of the agency's statute or another statutory provision preempts the prow-sions of the APA). *
     
      
      . Although the majority addresses these issues only tangentially, if at all, I believe that I must do so because were I to agree with the IEC, that would potentially dictate a different result. ' -
     