RMGO's Opposition to CO SOS Motion to Dismiss on Younger Abstention Grounds

8/9/2019 RMGO's Opposition to CO SOS Motion to Dismiss on Younger Abstention Grounds

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 1:14-cv-02850

ROCKY MOUNTAIN GUN OWNERS, et al.,

Plaintiffs,

v.

SCOTT GESSLER, et al.,

Defendants.

PLAINTIFFS’ OPPOSITION TO SECRETARY OF STATE’S MOTIONTO DISMISS ON YOUNGER ABSTENTION GROUNDS

The Motion to Dismiss filed by Defendant, Scott Gessler (“Gessler”), and

supported by Co-Defendant, Colorado Ethics Watch (“CEW”) should be denied because

the Court’s application of Younger abstention was improper.

INTRODUCTION

“[O]nly exceptional circumstances justify a federal court’s refusal to decide a

case.” New Orleans Pub Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350,

368 (1989). Because a federal court has “no more right to decline the exercise of

jurisdiction which is given, than to usurp that which is not given. The one or the other

would be treason to the constitution.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 405

(1821). Accordingly, Younger abstention is confined to three specific types of cases

involving parallel state proceedings:

(1) Pending state criminal proceedings;

Case 1:14-cv-02850-REB-KLM Document 46 Filed 01/15/15 USDC Colorado Page 1 of 29


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(2) “certain ‘civil enforcement proceedings’” that are quasi-criminal in nature;and

(3) “civil proceedings involving certain orders” that implicate a state’s interestin enforcing the orders and judgments of its courts.

Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013). “We have not applied

Younger outside these three ‘exceptional’ categories, and today hold . . . that they

define Younger’s exclusive scope.” Id. This Court acknowledged that this case did not

fall within either the first or third categories, but ruled that this case fell within the second

category—quasi-criminal. (Dkt. # 39).

Sprint marked a significant change in or “clarification” of the law that the Court

failed to consider when it denied Plaintiffs’ earlier motions. Brumfiel v. U.S. Bank, N.A.,

No. 14-cv-2453-WJM, 2014 WL 7005253 at *3 (D. Colo. Dec. 11, 2014) (“Thus, Sprint

significantly cabined the breadth of Younger abstention as it has been applied in this

Circuit”). This case does not involve a quasi-criminal action. Even if it did, a state

interest analysis demonstrates that abstention is not appropriate. Abstention is also

unwarranted under the “bad faith” exception to Younger .

FACTUAL BACKGROUND

The facts are largely set forth in the Court’s December 16, 2014, order denying

Plaintiff’s motions for preliminary injunctive relief. (Dkt. # 39). To further supplement

the Court’s factual recitation, Plaintiffs state as follows:

CEW filed its private enforcement action against Rocky Mountain Gun Owners

(“RMGO”) and Colorado Campaign for Life (“CCFL”, and collectively with RMGO, the



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“Plaintiffs”) on September 9, 2014.1 After receiving notice of that action, Gessler’s office

performed the ministerial task of referring this action to the Colorado Office of

Administrative Courts, as required by Colo. Const. art. XXVIII, § 9(2). CEW then

prosecuted its own case, culminating in a hearing on December 17, 2014. 2 Gessler did

not participate in any stage of the administrative hearing process.

CEW describes itself as a “nonpartisan, nonprofit 501(c)(3) watchdog group,”3 yet

its actions since its inception in 2006 paint a much different, and extremely partisan,

picture. CEW has filed lawsuits against 52 entities over the last nine years, only one of

those was against a Democrat. Even in that 2008 lawsuit against Denver District

Attorney Mitch Morrissey, the lawsuit’s focus was upon Morrissey’s refusal to launch an

ethics investigation against a Republican State Senator.4 Attached to this Opposition as

Exhibit A is a table demonstrating the markedly partisan activities conducted by CEW.5

1 In his Motion, Gessler asserts that Plaintiffs “admittedly engaged in electioneering.” (Dkt. # 40)Plaintiffs admit no such thing. Rather, Plaintiffs contend that they engaged in traditional issue speech.2 On December 23, 2014, the Office of Administrative Courts ruled that Plaintiffs failed to reportelectioneering communications and ordered them to each pay a civil penalty of $8,450.3 About Colorado Ethics Watch, http://www.coloradoforethics.org/co-pages/about-colorado-ethics-

watch/ (last accessed January 14, 2015). A true and correct copy of this website is attached hereto asExhibit A to the Declaration of David A. Warrington.4 Valerie Richardson, Colorado Ethics Watch: Left-Wing Litigation Machine or “Nonpartisan”Watchdog?, The Colorado Observer, May 29, 2012, http://thecoloradoobserver.com/2012/05/critics-question-impartiality-of-colorado-ethics-watch/ (last accessed January 14, 2015). A true and correct copyof this article is attached hereto as Exhibit C to the Declaration of David A. Warrington.5 In evaluating a motion to dismiss, the Court may take judicial notice of facts that are of publicrecord. Grynberg v. Koch Gateway Pipeline Co. , 390 F.3d 1276, 1278 n.1 (10th Cir. 2004). A true andcorrect copy of CEW’s website listing of “legal filings” from which this table has been derived is attachedhereto as Exhibit B to the Declaration of David A. Warrington.



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ARGUMENT

I. STANDARD OF REVIEW

The Defendant’s Motion is brought under Fed. R. Civ. P. 12(b)(1), which

“empowers a court to dismiss a complaint for ‘lack of jurisdiction over the subject

matter.’” Brumfiel v. U.S. Bank, N.A., No. 14-cv-2453-WJM, 2014 WL 7005253, at *1

(D. Colo. Dec. 11, 2014). Dismissal under Rule 12(b)(1) is not an adjudication of a

case’s merits, and instead focuses solely on whether the court lacks authority to

adjudicate the matter. Id . at *1. “A rule 12(b)(1) motion to dismiss ‘must be determined

from the allegations of fact in the complaint, without regard to more conclusory

allegations of jurisdiction.’” Id . at *2 (quoting Castaneda v. INS, 23 F.3d 1576, 1580

(10th Cir. 1994)).

However, in deciding this motion, “a court has ‘wide discretion to allow affidavits,

other documents, and a limited evidentiary hearing to resolve disputed jurisdictional

facts.'" Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001)

(quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)). “[A] court’s

reference to evidence outside the pleadings does not convert the motion into a Rule 56

motion” for summary judgment. Id . at 1225.

II. YOUNGER ABSTENTION IS MORE NARROW THAN HAS BEEN APPLIED IN

THIS CASE

Younger did “not [originally] deal with the considerations that should govern a

federal court when it is asked to intervene in state civil proceedings, where, for various

reasons, the balance might be struck differently.” Younger v. Harris, 401 U.S. 37, 55

(1971) (Stewart, J., concurring). Over the past forty years, however, the Younger



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that the so called Middlesex analysis was to be performed only after it was determined

that the proceeding was quasi-criminal in nature. Id.

The Court “clarified” that its prior Middlesex decision should not be read to treat

all civil administrative proceedings as civil enforcement proceedings subject to

abstention. Id . at 592-93. The Court explained that the conditions in Middlesex

(ongoing state judicial proceeding, important state interests, and adequate opportunity

to raise constitutional challenges) must be addressed as “additional” factors after a

court first determines that an action is “quasi-criminal” in nature. Id . at 593. This

clarification effectively adds a step to the now more rigorous analysis that must underlie

any determination by a federal court to abstain from adjudicating a case. If a parallel

state proceeding is not first determined to be quasi-criminal, then there is no need to

perfor m a “state interest” analysis after Sprint .

The Court of Appeals and the IUB attribute to this Court's

decision in Middlesex extraordinary breadth. We invokedYounger in Middlesex to bar a federal court from entertaininga lawyer's challenge to a New Jersey state ethicscommittee's pending investigation of the lawyer. Unlike theIUB proceeding here, the state ethics committee's hearing inMiddlesex was indeed “akin to a criminal proceeding.” Aswe noted, an investigation and formal complaint precededthe hearing, an agency of the State's Supreme Courtinitiated the hearing, and the purpose of the hearing was todetermine whether the lawyer should be disciplined for hisfailure to meet the State's standards of professional conduct.

[citations omitted] The three Middlesex conditions recitedabove were not dispositive; they were, instead, additional factors appropriately considered by the federal court beforeinvoking Younger .

Divorced from their quasi-criminal context, the threeMiddlesex conditions would extend Younger to virtually allparallel state and federal proceedings, at least where a party


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could identify a plausibly important state interest. . . . Thatresult is irreconcilable with our dominant instruction that,even in the presence of parallel state proceedings,

abstention from the exercise of federal jurisdiction is the“exception, not the rule.” [Citations omitted.] In short, toguide other federal courts, we today clarify and affirm thatYounger extends to the three “exceptional circumstances”identified in NOPSI, but no further.

Sprint , 134 S. Ct. at 593 (emphasis in original).

The Supreme Court has now made clear that the Middlesex factors are

“additional” factors to be considered only after a court first makes a determination that

an action is quasi-criminal in nature. 134 S. Ct. at 592-93; see also ACRA Turf Club,

LLC v. Zanzuccki , 748 F.3d 127, 137-38 (3d Cir. 2014) (extensive discussion of the

evolution of the Younger analysis through Sprint ); Dandar v. Church of Scientology Flag

Service Org., Inc., 24 F. Supp. 3d 1181, 1188, 1196 (M.D. Fla. 2014) (“In Sprint , the

Supreme Court clarified that these three conditions ‘[are] not dispositive; they [are],

instead, additional factors appropriately considered by the federal court’ after

determining that a case fits within one of the three ‘exceptional circumstances’”) .

In ruling against Plaintiffs’ motions for injunctive relief , this Court incorrectly held

that the pending proceeding in Colorado fell within the second category of Younger

exceptions (proceedings “akin” to criminal prosecutions). The Court also erred in

concluding, without any analysis, that Colorado’s electioneering laws implicate a

sufficiently “important” state interest to warrant abstention under the second Younger

exception. Finally, the Court erred in failing to consider the bad faith exception to

Younger abstention.


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III. This is Not a Quasi-Criminal Case

A. The Meaning of Quasi-Criminal

Sprint observed that cases applying abstention to the second category have

“generally concerned state proceedings akin to a criminal prosecution in important

respects” and are thus quasi-criminal in nature. Id. at 592. (emphasis added) (internal

quotation and citation omitted).

The phrase quasi-criminal is, like Younger abstention, a judicial creation. It is not

defined in the Constitution or by any federal statute. Black’s Law Dictionary defines

“quasi-criminal proceeding” as “[a] civil proceeding that is conducted in conformity with

the rules of a criminal proceeding because a penalty analogous to a criminal penalty

may apply, as in some juvenile proceedings.” Black's Law Dictionary at 1242 (8th ed.

2004). Legal scholars have defined the term as follows:

Quasi-criminal causes of action can be divided into two

separate branches. The first type of quasi-criminal proceedingstigmatizes the defendant in a manner similar to a criminalproceeding and subjects her to loss of liberty or livelihood. Thesecond type of quasi-criminal proceeding involves a civilforfeiture or penalty predicated on the commission of a criminaloffense.

Elizabeth Ann Fuerstman, Trying (Quasi) Criminal Cases in Civil Courts: The Need for

Constitutional Safeguards in Civil Rico Litigation, 24 Colum. J.L. & Soc. Probs. 169, 177

(1991).

The Supreme Court first used the phrase quasi-criminal in Boyd v. United States,

116 U.S. 616 (1886). There, the indictment alleged an “act to prevent and punish

frauds upon the revenue.” Id. at 621. The offender was to be “fined not exceeding



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$5,000, nor less than $50, or be imprisoned not exceeding two years, or both; and in

addition to such fine such merchandise shall be forfeited.” Id. at 634. The Court stated

that “suits for penalties and forfeitur es, incurred by the commission of offenses against

the law, are of this quasi criminal nature.” Id. at 634 (italics in original). See also One

1958 Plymouth Sedan v. Pa., 380 U.S. 693, 699 (1965) (“[A] forfeiture proceeding is

quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the

commission of an offense against the law.”). The Supreme Court has also found

attorney disbarment proceedings (In re Ruffalo, 390 U.S. 544 (1968)) and juvenile

disciplinary proceedings (In re Gault , 387 U.S. 1 (1967)) to be quasi-criminal.

In Savina Home Industries, Inc. v. Secretary of Labor , 594 F.2d 1358 (10th Cir.

1979), the Tenth Circuit briefly addressed the term quasi-criminal. Savina objected to

OSHA inspections on Fourth Amendment grounds. Id. at 1361. Discussing Supreme

Court precedent, the Tenth Circuit contrasted instances of the “exclusionary rule’s

applicability to noncriminal contexts.” Id. at 1362. The court noted that the rule had

been applied “in certain civil cases characterized by [the Supreme Court] as ‘quasi-

criminal.’” Id. at 1362. In a footnote, the Tenth Circuit discussed the term, observing:

The term quasi-criminal has been defined as follows:

Laws that provide for punishment but are civil rather thancriminal in form have sometimes been labeled ‘quasi-

criminal’ by the Supreme Court. These laws, broadlyspeaking, provide for civil money penalties, forfeitures ofproperty, and the punitive imposition of various disabilities,such as the loss of processional license or publicemployment.

Under that definition an argument could be made that OSHAcivil penalties constitute quasi-criminal sanctions.



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Id. at 1362 n.6 (citation omitted). Since Savina, the Tenth Circuit has not revisited its

definition of quasi-criminal.

C. Post-Spr int Quasi-Criminal Proceedings

Many cases decided post-Middlesex and pre-Sprint failed to first analyze whether

a case was quasi-criminal in nature and proceeded directly to focus only on the

Middlesex factors. See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc.,

477 U.S. 619 (1986). Post-Sprint , several courts have addressed whether certain

proceedings are quasi-criminal. Generally, cases holding a proceeding is quasi-criminal

fall into three categories: licensing violations, professional misconduct, and civil

proceedings aiding criminal law. See, e.g., Mir v. Shah, 569 F. App’x 48 (2d Cir. 2014)

(medical license), Gonzalez v. Waterfront Comm’n of New York Harbor , 755 F.3d 176

(3d. Cir. 2014) (disciplinary proceeding), Hessein v. Union County Prosecutors Office,

569 F. App’x 99 (3d Cir. 2014) (revoke medical license), Garcia v. Wyoming , No. 13-

8019, 2014 WL 5012801 (10th Cir. Oct. 8, 2014) (forfeiture proceeding against car and

firearms used in violation of controlled substances act); Schoenstein v. Constable, No.

13-6803, 2014 WL 6685409 (D.N.J. Nov. 26, 2014) (denial of license exemption for

group home).

On the other hand, cases holding a proceeding is not quasi-criminal span a wide

range. See ACRA Turf Club, LLC v. Zanzuccki , 748 F.3d 127 (3d. Cir. 2014) (forfeiture

proceeding for off-track wagering facility license), Mulholland v. Marion County Election

Bd., 746 F.3d 811 (7th Cir. 2014) (planned county election board hearing on anti-slating

statute), ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund , 754 F.3d 754 (9th Cir.



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2014) (employer’s action alleging state’s premium calculation preempted by federal

regulations), NCCA v. Corbett , No. 1:13-cv-00457, 2014 WL 2619288 (M.D. Pa. June

12, 2014) (action to compel NCCA to comply with state endowment act), Torres v.

DeMatteo Salvage Co., Inc., No. 14-cv-00774, 2014 WL 2928271 (E.D.N.Y. Aug. 4,

2014) (applying Sprint factors and state action that not initiated by state actor or initiated

to sanction), Bolton v. Bryant , No. 14 c 03580, 2014 WL 5350465 (N.D. Ill. Oct. 21.

2014) (denial of concealed carry license).

D. The State Proceeding at Issue Here is Not Quasi-Criminal

This case is not within the realm of proceedings that have been held to be quasi-

criminal before or after Sprint . Indeed, there are several factors that weigh in favor of a

determination that the proceeding is not quasi-criminal.

First, there is no state actor involved in the proceedings as is typical of quasi-

criminal proceedings. Sprint , 134 S. Ct. at 592. The action was initiated and

prosecuted by a private party, CEW. The state did not conduct an investigation, file

formal charges against Plaintiffs, participate in the administrative hearing or conduct any

discovery. See ACRA Turf Club, LLC v. Zanzuccki , 748 F.3d 127, 138-39 (3d Cir.

2014) (noting that a forfeiture proceeding for a wagering facility permit was not initiated

by the state, no state actor conducted an investigation and no state actor filed a formal

complaint). The only state “action” was Gessler’s rubber stamp referral to the ALJ, an

act he is constitutionally obligated to perform. See Colo. Const. art. XXVIII, § 9(2).

The state is not involved in any real capacity unless Gessler decides to enforce

the decision against Plaintiffs. Id. The ALJ’s ability to enforce decisions is similar to



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Mulholland v. Marion County Election Board , 746 F.3d 811 (7th Cir. 2014), where the

Seventh Circuit discussed the “extremely limited” sanction power of a planned election

board hearing. Mulholland , 746 F.3d at 817. In that case, the Court recognized that

some features of a planned hearing—initiation by the state to investigate a possible

violation of law and some coercive authority to subpoena—arguably gave it “a

somewhat closer resemblance to a criminal adjudication.” Mulholland , 746 F.3d at 817.

However, the election board’s sanction power was “extremely limited” and “the hearing

could lead only to a recommendation of prosecution to a county prosecuting attorney or

the state attorney general.” Id. Thus, the planned hearing was “not the type of quasi-

criminal proceeding that would warrant Younger abstention, at least after Sprint .” Id. at

816.

Moreover, there is no parallel criminal proceeding that could be maintained

against Plaintiffs. These are civil statutes attempting to regulate political speech on the

eve of an election. See Colo. Const. art. XXVIII, § 6(1); Colo. Rev. Stat. § 1-45-

108(1)(a)(c).

This Court’s reliance on Ohio Civil Rights Com’n v. Dayton Christian Schools,

Inc., 477 U.S. 619 (1986) is misplaced. The Sprint Court cited Dayton Christian as a

case involving “state initiated administrative proceedings to enforce state civil rights

laws.” Sprint , 134 S. Ct. at 592 (emphasis added). The important distinction between

the state proceeding in Dayton Christian and the state proceeding at issue here is that

while both actions started with a complaint filed by a private party, in Dayton Christian, it

was the state that initiated and conducted the administrative proceeding against the



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school and the state that conducted the corresponding investigation. (Dkt. # 39); see

also Dayton Christian, 477 U.S. at 624. Here, the state merely performs the ministerial

task of forwarding the private party’s complaint to an administrative law judge. See

Colo. Const. art. XXVIII, § 9(2). The state did not initiate the proceedings, nor did it

conduct any investigation. The investigation in this matter is done by the private party

complainant though the civil discovery process.

Younger abstention is inappropriate in this case.

IV. Even if this Case Did Fall within the Second Younger Exception, Colorado’sPurported Interest in the Administration of its Election Law Does notInvolve a Sufficiently “Important” State Interest to Warrant Abstention

Even if the Colorado state action were quasi-criminal in nature, and a “state

interest” analysis were then appropriate, abstention would still be unwarranted. A state

interest is important [or “vital”] for the purposes of the second Younger abstention factor

where “exercise of the federal judicial power would disregard the comity between the

States and the National Government.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11

(1987). The state interest inquiry turns on “the importance of the generic proceedings to

the State.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 365

(1989). The Court here found the state interest to be the enforcement of the state’s

election laws and regulations.

The list of areas in which federal interference would “disregard the comity” that

federalism requires “encompasses those interests that the Constitution and our

traditions assign primarily to the states.” Harper v. Pub. Serv. Comm’n of W. Va., 396

F.3d 348, 352 (4th Cir. 2005). Such interests include enforcing state court judgments,



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operating a state’s judicial system, education, family relations, property law, public

health, and corporate law. Id. at 352-53 (comprehensive analysis of categories).

The Supreme Court’s repeated admonition that the state interest be “important”

or “vital” necessarily means that courts must recognize some limits. “[T]he

characterization of state interests should not be so general to the point of rendering the

Middlesex County test meaningless, or specific to the point of rendering the state

interest trivial.” Id. at 354. A state interest qualifies as “important” when it implicates the

“sovereignty and dignity of a state” in areas that are of “paramount state concern.” Id.

Merely because Colorado states that it has an interest in regulating a type of

conduct does not, ipso facto, mean that the asserted interest is “vital” or “important”

enough to warrant Younger abstention. Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163,

1167 (9th Cir. 2013) (“[T]hat tag line is not an invitation to abstain simply because a suit

implicates a state law, even one involving a traditional state concern”); accord Turner

Broad. Sys. v. FCC , 512 U.S. 622, 664 (1994) (“[T]hat the Government's asserted

interests are important in the abstract does not mean, however, that the [regulation] will

in fact advance those interests. When the Government defends a regulation on speech

as a means to redress past harms or prevent anticipated harms, it must do more than

simply ‘posit the existence of the disease sought to be cured.’”). Indeed, it would be a

tautology to argue that an interest is important or vital merely because a state says that

it is.

Even though state and federal governments operate in our system as “co-

sovereigns,” since the founding of the nation, state regulation of elections has routinely



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taken a back seat to federal law. The Constitution, in particular the First Amendment,

necessarily imposes limits on a state’s regulatory powers concerning political speech.

Williams v. Rose, 393 U.S. 23, 29 (1968) (“Nor can it be thought that the power to select

electors could be exercised in such a way as to violate express constitutional

commands that specifically bar States from passing certain kinds of laws”). Under the

Constitution’s Election Clause, Congress may enact laws that preempt state election

laws insofar as they concern federal elections. Foster v. Love, 522 U.S. 67, 69 (1997);

U.S. Const. art. I, § 4, cl. 1. Federal legislation renders any conflicting state laws

inoperative. Ex parte Seiboldt , 100 U.S. 371, 384 (1997). And “the States may regulate

the incidents of [federal] elections, including balloting, only within the exclusive

delegation of power under the Elections Clause.” Cook v. Gralike, 531 U.S. 510, 523

(2001) (emphasis added).

The Elections Clause is a “grant of authority to issue procedural regulations” and

not “a source of power to dictate electoral outcomes, to favor or disfavor a class of

candidates, or to evade important constitutional constraints.” U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 833-34 (1995). States may regulate the “time, place and

manner” of elections, but only insofar as Congress has opted not to preempt the states.

Arizona v. InterTribal Council of Arizona, Inc., 133 S. Ct. 2247, 2253 (2013).

Congress has further limited the power of certain states to regulate in this area

under the Commerce Clause and the Civil War Amendments to the Constitution, in

particular the Fourteenth Amendment. The Voting Rights Act of 1965, 52 U.S.C. §§

10101, et seq., forever prevented designated states from imposing poll taxes, literacy



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tests, interfering with freedom of elections, denying the right to vote on the basis of race

or religion, or otherwise interfering with the right to vote. The regulation of election law

is, thus, hardly an interest in which the federal government has traditionally observed

comity with respect to the states.

In particular, modern-day campaign finance regulations are largely the product of

federal legislation and an evolving body of constitutional common law. Because such

regulations touch upon core democratic values and immediately implicate constitutional

rights, they do not occupy an area of the law that the Constitution or our traditions have

assigned primarily to the states. Indeed, the First Amendment rights of the citizenry are

not automatically subordinate to the state’s right to administer its own elections.

Independence Inst. v. Gessler , 869 F. Supp. 2d 1289, 1300 (D. Colo. 2012).7

A state’s authority to regulate the state election process corresponds with the

authority to regulate the time, place, and manner of federal elections. Tashjian v.

Republican Party of Conn., 479 U.S. 208, 217 (1986). “But this authority does not

extinguish the State’s responsibility to observe the limits established by the First

Amendment rights of the State’s citizens” and it “does not justify, without more, the

abridgement of fundamental rights.” Id.

The Supreme Court has recognized, however, that the states must be permitted

to enact reasonable regulations to preserve the integrity of the franchise. Timmons v.

Twin Cities Area New Party , 520 U.S. 351, 358 (1997). As such, “[e]lection laws will

7 To support a finding that the Colorado regulation does not implicate an important state interest,the Court need only determine that the regulation of traditional issue advocacy does not occupy an areaof paramount state concern, such that refusing to abstain “would disrespect the allocation of authority laidin place by the Framers.” Harper , 396 F.3d at 354.



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invariably impose some burden upon individual voters.” Burdick v. Takushi , 504 U.S.

428, 433 (1992). But the authority to press that burden begins to wane once the state

moves beyond regulating conduct that tangibly impairs the right to vote, and focuses

instead on curbing “intangible influence.” Burson v. Freeman, 504 U.S. 191, 209 n.11

(1992); Mills v. Alabama, 384 U.S. 214, 218 (1966) (“We should point out at once that

this question in no way involves the extent of a State's power to regulate conduct in and

around the polls in order to maintain peace, order and decorum there .”). Thus, the

prohibition of electioneering within 100-feet of a polling place may be considered an

important state interest, incidental to the state’s authority to regulate elections. Burson,

504 U.S. at 208-11. But outright regulations of speech and association—untethered

from the state’s interest in regulating the polling place and the ballot box—require no

such determination. Tashjian, 479 U.S. at 217; Mills, 384 U.S. at 218-20.

Campaign finance restrictions are not a natural incident of the authority to

regulate elections. A state’s authority to regulate in this area is governed almost entirely

by Buckley and its progeny. Nixon v. Shrink Missouri Gov't PAC , 528 U.S. 377, 381-82

(2000). And the Supreme Court has summarily reversed state court decisions that

deviate from its precedent. Am. Tradition P'ship, Inc. v. Bullock , 132 S. Ct. 2490, 2491

(2012) (per curiam) (“The question presented in this case is whether the holding of

Citizens United applies to the Montana state law. There can be no serious doubt that it

does.”). Therefore, it is a matter of compulsory deference, and not collegial respect,

that the Supreme Court of Colorado tests the validity of Article XXVIII according to the

First Amendment standards promulgated by the federal judiciary. Dallman v. Ritter , 225



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P.3d 610, 621 (Colo. 2010) (“We must examine Amendment 54's contribution ban using

the United States Supreme Court's case law specific to this type of First Amendment

restriction.”) (emphasis added); Colorado Educ. Ass'n v. Rutt , 184 P.3d 65, 70 (Colo.

2008) (“As the Supreme Court has directed us, when the First Amendment is at issue,

the tie goes to the speaker rather than to censorship and regulation.”) (emphasis

added).

Colorado’s regulation exists in an area wholly predominated by federal law and

the supremacy of constitutional rights. “When there is an overwhelming federal interest

– an interest that is as much a core attribute of the national government as the list of

important state interests are attributes of state sovereignty in our constitutional tradition

– no state interest, for abstention purposes, can be nearly as strong at the same time.”

Harper , 396 F.3d at 356. In this case, there is no need to consider the state’s purported

interest to be “important” just to Colorado. Therefore, abstention is not warranted.

V. The Bad Faith Exception to Younger Abstention Requires Federal Court

Intervention Rather Than Deference to the State Administrative Proceeding

Even if this Court believes that Younger abstention is otherwise appropriate, this

Court is required to adjudicate cases brought by parties that successfully establish “the

kind of irreparable injury, above and beyond that associated with the defense of a single

prosecution brought in good faith, that ha[s] always been considered sufficient to justify

federal intervention.” Younger , 401 U.S. at 48. Intervention by this Court is warranted

upon a showing of “bad faith, harassment or any other exceptional circumstance” that

would militate against deference to a state court proceeding. Id. at 54.



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Some courts have previously required that, to demonstrate bad faith or

harassment, the party bringing the state action must have no reasonable expectation of

obtaining a favorable outcome. Kugler v. Helfant , 421 U.S. 117, 126 n.6 (1975). The

Plaintiffs concede that such is not the case in this matter based upon the recent ruling

by Colorado’s administrative court. However, it is well established that a refusal to

abstain is also “ justified where a prosecution or proceeding has been brought to

retaliate for or to deter constitutionally protected conduct, or where a prosecution or

proceeding is otherwise brought in bad faith or for the purpose to harass. ” Cullen v.

Flienger , 18 F.3d 96, 103-04 (2d Cir. 1994); see also Lewellen v. Raff , 843 F.2d 1103,

1109-10 (8th Cir. 1988) (bad faith prosecution brought in retaliation for exercise of First

Amendment rights); Rowe v. Griffin, 676 F.2d 524 (11th Cir. 1982) (bad faith

prosecution brought after assurances of immunity to defendant).

A showing of subjective intent for retaliatory or bad faith prosecution establishes

irreparable injury justifying a court’s refusal to abstain under the Younger doctrine.

Cullen, 18 F.3d at 103-04; see also Bishop v. State Bar of Texas, 736 F.2d 292, 294

(5th Cir. 1984); Shaw v. Garrison, 467 F.2d 113, 119 –21 (5th Cir. 1972). The objective

consideration of the likelihood of success of the party bringing the action is not relevant

if subjective intent to retaliate or to bring an action in bad faith existed. Cullen, 18 F.3d

at . at 103-04; see also Lewellen, 843 F.2d at 1109-10 (federal intervention justified

regardless of expectations where prosecution brought case to discourage exercise of

constitutional rights). Most importantly, abstention serves no purpose in these types of

cases “because a state cannot have a legitimate interest in discouraging the exercise of



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constitutional rights . . . or, equally, in continuing actions otherwise brought in bad faith,

thereby reducing the need for deference to state proceedings.” Cullen, 18 F.3d at 103-

04.

A. The subjective animus, bad faith, desire to harass, and intent to retaliateagainst a litigant for exercise of its constitutional rights underlying astate court prosecution is a proper basis for federal intervention in lieuof abstention.

This Circuit considers three factors in determining whether a state action was

commenced in bad faith, was intended to harass, or was intended as retaliation for

exercise of constitutional rights:

(1) whether it was frivolous or undertaken with no reasonably objective hope of

success;

(2) whether it was motivated by defendant's suspect class or in retaliation for the

defendant's exercise of constitutional rights; and

(3) whether it was conducted in such a way as to constitute harassment and an

abuse of prosecutorial discretion, typically through the unjustified andoppressive use of multiple prosecutions.

Weitzel v. Div. of Occupational & Prof'l Licensing of Dep't of Commerce of State of

Utah, 240 F.3d 871, 877 (10th Cir. 2001). While it is a “heavy burden” to overcome

Younger abstention, a party may do so by providing evidence substantiating its

allegations of bad faith and harassment to support federal intervention. Phelps v.

Hamilton, 122 F.3d 885, 889 (10th Cir. 1997) (“Phelps II”). Once a party shows that

retaliation or bad faith was a “major motivating factor” in the decision to file a state case,

the party seeking abstention must rebut this presumption with “legitimate, articulable”



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reasons to justify the decision to file. Phelps v. Hamilton, 59 F.3d 1058, 1066 (10th Cir.

1995) (“Phelps I”).

While the burden falls upon RMGO and CCFL to establish bad faith on the part of

CEW in bringing its state action, it is appropriate at the motion to dismiss stage to reject

abstention where Plaintiffs allege sufficiently particular facts to support the assertion

that CEW was motivated by animus in its decision to file. Michael v. Lechtinger , No. 10

C 3897, 2011 WL 3471082, at *9 (N.D. Ill. Aug. 5, 2011). Michael alleged that the

Defendants filed state proceedings to advance the goal of harassing their church and

driving them out of the community. Id . at *9. After reviewing these claims, the court

acknowledged that such allegations sufficed to support the bad faith exception to

Younger abstention at the motion to dismiss stage. Id . at *9 (citing Contreras v. City of

Chicago, No. 94 C 4201, 1994 WL 700263, at *3 (N.D. Ill. 1994) (Younger abstention

rejected where plaintiffs allege with sufficient particularity facts supporting their charges

that the defendants’ actions were motivated by animus).

In Cullen, the Second Circuit examined the bad faith exception in the context of a

First Amendment challenge to electioneering laws. 18 F.3d at 104. In affirming the

lower court’s decision to decline abstention based upon bad faith, the court found

evidence that the defendants sought Cullen’s termination from employment and that

charges against Cullen were retaliation for exercise of First Amendment rights to protest

school board elections to be persuasive. Id . at 104. The court also explained that a

history of conflict between the parties suggested a relevant level of personal animus.

Id . at 104. Because the defendants pursued Cullen in a “strictly ad hominem” manner,



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Younger itself acknowledges that evidence of retaliation for the assertion of and

attempt to vindicate First Amendment constitutional rights constitutes such a grave

injury that abstention would be improper. Younger , 401 U.S. at 47-49. The Court cited

its previous civil-rights era cases, including Dombrowski v. Pfister , to demonstrate the

potential for bad faith and the chilling effect inherent in prosecutions designed to

discourage certain persons “from asserting and attempting to vindicate the constitutional

rights of Negro citizens of Louisiana.” Id . at 47-48 (quoting Dombrowski v. Pfister , 380

U.S. 479, 482 (1965)); see also Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d

Cir. 1979) (prosecution initiated to chill first amendment rights sufficient to remove

Younger bar). The rationale for providing a federal forum in such cases is much akin to

the rationale for protection from retaliation for one’s affiliation with controversial groups

as recognized in NAACP v. Alabama, 357 U.S. 449, 462-63 (1958). There is simply no

state interest in adjudicating proceedings brought in bad faith. Cullen, 18 F.3d at 103-

04.

B. The bad faith exception to Younger abstention is applicable here.

The state administrative action filed by CEW is, in many noteworthy ways, similar

to the pretextual targeting of conservative groups that led to application of the bad faith

exception in O’Keefe. 2014 WL 1379934, at *3. Plaintiffs Eric O’Keefe and Wisconsin

Club for Growth, Inc., were two of several targets of a secret criminal investigation

brought in Wisconsin. Id . at *1. O’Keefe alleged that these investigations were

conducted for the primary purpose of intimidating conservative groups, impairing their

fundraising efforts, and otherwise inhibiting their participation in an upcoming election



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cycle. Id . at *1. The selective use of prosecutorial power by a private party to target

conservative groups based upon viewpoint discrimination, as opposed to similarly-

situated liberal groups, served as retaliation for particular conservative viewpoints and

deterred the exercise of first amendment rights. Id . at *3. The pretextual targeting of

conservative groups established bad faith for a Younger analysis. Id . at *3.

CEW describes itself as a “nonpartisan, nonprofit 501(c)(3) watchdog group that

holds public officials and organizations legally accountable for unethical activities that

undermine the integrity of government in Colorado.”8 A careful study of CEW’s activities

since its inception in 2006, however, reveals a highly partisan pattern of selective

prosecutions based upon viewpoint discrimination. The “legal filings” section of CEW’s

web page reveals more than 35 pages worth of lawsuits and open records requests

brought by CEW since 2006.9

An in-depth review of these legal filings provides a staggering revelation

regarding the “nonpartisan” nature of CEW. See Ex. A. In 52 prosecutions between

2006 and 2015, CEW has taken action against conservative groups or politicians on 41

occasions. Id. Of the remaining 11 prosecutions, 10 were made against government

entities or persons with an unknown political affiliation. Id. CEW did, in fact, bring 1

case against a Democrat – a 2008 lawsuit against Denver District Attorney Mitch

Morrissey seeking to require Morrissey to investigate a Republican State Senator. Id.

8 About Colorado Ethics Watch, http://www.coloradoforethics.org/co-pages/about-colorado-ethics-watch/ (last accessed January 14, 2015). A true and correct copy of this website is attached hereto asExhibit A to the Declaration of David A. Warrington.9 A true and correct copy of CEW’s website listing of “legal filings” is attached hereto as Exhibit B tothe Declaration of David A. Warrington.



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CEW’s blatantly partisan targeting of conservatives has not gone unnoticed in

Colorado. News outlet “The Colorado Observer” published a May 29, 2012 article

investigating CEW’s partisan activities appropriately titled “Colorado Ethics Watch: Left-

Wing Litigation Machine or ‘Nonpartisan’ Watchdog?”10 The article outlines the

criticism of CEW’s activities as nothing more than a thinly-veiled pretextual attack on

conservative groups to drain resources, intimidate speech, and distract efforts to

participate in a given election cycle. Id.

At this stage in the proceedings, prior to full discovery on the issue of bad faith,

the evidence shows that, like in Phelps I , CEW has a colorable animus towards

conservative groups, including second amendment and pro-life proponents, based upon

its track record of selectively prosecuting complaints against primarily conservative

causes. Phelps, 59 F.3d at 1066. While the number of cases CEW has brought

against conservative groups is not itself dispositive of this “bad faith” issue, the Tenth

Circuit treats such a fact as probative evidence of CEW’s subjective intent in bringing its

state administrative action. Id . at 1066.

CEW’s state administrative complaint directly attacks RMGO and CCFL based

upon the election-related viewpoints that each group had the temerity to express in

writing. (Dkt. # 1, Exh. D). As a result of RMGO and CCFL exercising their first

amendment rights to political speech (Dkt. # 1, Exh. A, B, C) adverse to CEW’s

viewpoints on certain issues, CEW retaliated by filing its state court case in an attempt

10 Valerie Richardson, Colorado Ethics Watch: Left-Wing Litigation Machine or “Nonpartisan” Watchdog?,The Colorado Observer, May 29, 2012, http://thecoloradoobserver.com/2012/05/critics-question-impartiality-of-colorado-ethics-watch/ (last accessed January 14, 2015). A true and correct copy of thisarticle is attached hereto as Exhibit C to the Declaration of David A. Warrington.



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to chill speech by conservative groups. CEW filed no such cases against similarly-

situated liberal groups to retaliate for their viewpoints on certain issues. See Ex. A.

Such retaliation and harassment is similar to harassing a church to drive it out of the

community in Michael or avenging an adverse viewpoint in Cullen. Michael , 2011 WL

3471082, at *9; see also Cullen, 18 F.3d at 104. Like in Cullen, CEW has sought to chill

the exercise of speech from viewpoints it does not like based upon a campaign of

pretextual targeting against conservatives. Cullen, 18 F.3d at 104. CEW’s goal is

patently ironic in light of liberal defense of the NAACP’s freedom of anonymous

association just fifty years ago and defense of the free speech rights of Louisiana’s

African-American population in Dombrowski . NAACP , 357 U.S. at 462-63; see also

Dombrowski , 380 U.S. at 482.

Examined from another perspective, what does CEW stand to gain from this

matter outside of harassment of conservative groups? The Defendants argue that the

underlying state administrative action is akin to a qui tam suit under common law in that

“uninjured private parties . . . enforce public-regarding statutes.” (Dkt. # 40, p. 5). This

comparison, however, fails to address the key difference between a qui tam action and

CEW’s action: CEW does not share in the government’s proceeds. Defendants define a

qui tam lawsuit under Black’s Law Dictionary 578 (2d pocket ed. 2001), which states

that “A qui tam action is ‘[a]n action brought under a statute that allows a private person

to sue for a penalty, part of which the government or some specified public institution

will receive.” (Dkt. # 40, p. 5).



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Necessarily, and in practice, this definition provides that a qui tam plaintiff shares

in recovery with the government. No similar provision exists for CEW to recover a

portion of fines or assessments against RMGO or CCFL in this case. Instead, outside

of attorneys’ fees, the only expected value of this lawsuit to CEW is the chilling of

conservative viewpoints and the bad faith harassment of conservative groups. At the

motion to dismiss stage, all of this evidence taken in the aggregate provides ample

reason for this Court to decline abstention under the bad faith exception to Younger.

CONCLUSION

For the foregoing reasons, the Court should grant deny Gessler’s Motion to

Dismiss.

Dated: January 15, 2015 Respectfully submitted,

/s/ David A. WarringtonDavid A. WarringtonLaurin H. Mills

Andrew J. NarodParis R. SorrellLeClairRyan, A Professional Corporation

2318 Mill Road, Suite 1100 Alexandria, Virginia 22314Telephone: (703) 684-8007Facsimile: (703) [email protected]@[email protected]@leclairryan.com



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James O. BardwellRocky Mountain Gun Owners

501 Main Street, Suite 200Windsor, CO 80550Telephone: (877) 405-4570Facsimile: (202) 351-0528

[email protected] for Plaintiffs Rocky Mountain GunOwners and Colorado Campaign for Life



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RMGO's Opposition to CO SOS Motion to Dismiss on Younger Abstention Grounds

Documents

Transcript of RMGO's Opposition to CO SOS Motion to Dismiss on Younger Abstention Grounds