Colorado Cause and Colorado Ethics Watch Opening Brief Re Scott Gessler

8/4/2019 Colorado Cause and Colorado Ethics Watch Opening Brief Re Scott Gessler

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DISTRICT COURT, CITY AND COUNTY OFDENVER, STATE OF COLORADODenver City and County Building1437 Bannock StreetDenver, CO 80202(720) 865-8301Plaintiffs:COLORADO COMMON CAUSE, a non-profit corporation, andCOLORADO ETHICS WATCHv.Defendant:SCOTT GESSLER, in his capacity as Colorado Secretary of State

. A . COURT USE ONLY . A .Jennifer H. Hunt, # 29964Nathan P. Flynn, # 39336Hill&Robbins, P.C.1441 18th Street, Suite 100Denver, CO 80202-1256Phone: (303) 296-8100 Fax: (303) 296-2388E-mail: [email protected]@hillandrobbins.comAttorneys/or Plaintiff Colorado Common CauseLuis Toro, #22093Colorado Ethics Watch1630 Welton Street, Suite 415Denver, Colorado 80202Telephone: (303) 626-2100 Fax: (303) 626-2101E-mail: [email protected] Wesoky, #34241Darling Milligan Smith & Lesch, P.C.1331 1i St., Suite 800Denver, CO 80202Telephone: (303) 623-9133 Fax: (303) 623-9129E-mail: [email protected]/or Plaintiff Colorado Ethics Watch

Case Number: 2011CV4164

CtrmlDiv: 414

JOINT OPENING BRIEF
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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I. INTRODUCTIONSecretary of State Gessler's adoption of Campaign and Political Finance Rule 4.27, 8

CCR 1505-6 ("Rule 4.27"), is an unprecedented attempt by a representative of the executivebranch of government to usurp the rule of both the General Assembly and the judiciary. Inadopting Rule 4.27, the Secretary has exceeded his authority to administer and enforce campaignfinance laws by dramatically increasing the constitutional threshold for regulation of issuecommittees. Purportedly in response to a decision of the Tenth Circuit Court of Appeals on anas-applied challenge to campaign finance disclosure provisions of article XXVIII of theColorado Constitution, the Secretary adopted a rule that nullifies provisions of the ColoradoConstitution and statutes and replaces them with weaker disclosure rules. Plaintiffs ask the Courtto set aside the Secretary's unlawful action.

II. PROCEDURAL HISTORYIn 2002, Colorado voters passed Amendment 27, which became article XXVIII of the

Colorado Constitution. Article XXVIII creates a comprehensive campaign and political financesystem, including disclosure requirements that apply to various categories of participants in theelections process, such as issue committees. "Issue committee" is defined, in part, as any group"that has accepted or made contributions or expenditures in excess of two hundred dollars tosupport or oppose any ballot issue or ballot question." Colo. Const. art. XXVIII, 2(10)(a)(II).

Issue committees are required to disclose all contributions and expenditures under the FairCampaign Practices Act. C.R.S. 1-45-108(1)(a)(I).

On November 5,2010, the Tenth Circuit Court of Appeals issued its decision in Sampsonv. Buescher, 625 F.3d 1247 (10th Cir. 2010), determining that, as applied to the facts presented in

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that case (involving a municipal annexation election), the $200 threshold for regulation as anissue committee was unduly burdensome. The Sampson panel did not decide that ColoradoConstitution article XXVIII, 2(10)(a)(II) was unconstitutional on its face. Instead, it found that"Colorado law, as applied to Plaintiffs, has violated their constitutional freedom ofassociation." Id. at 1249 (emphasis added).

In response to Sampson, on December 10,2010, the Secretary issued a Notice ofRulemaking Hearing and Proposed Statement of Basis, Purpose and Specific Statutory Authority("December ION otice") (R. Tab 1). The December ION otice indicated that the addition of anew Rule 4.27 was intended to provide guidance in light of the ruling in the Sampson case. Ahearing pursuant to the December ION otice was held on January 26, 2011.

On March 30, 2011, the Secretary issued a Notice of Second Rulemaking Hearing andRevised Proposed Statement of Basis, Purpose, and Specific Statutory Authority ("March 30Notice") (R. Tab 5). The revised proposed Rule 4.27 raised the threshold for regulation of anissue committee from $200 to $5,000 and exempted issue committees from all disclosurerequirements for any contributions or expenditures up to $5,000 (R. Tab 7). A secondrulemaking hearing was held on May 6, 2011. Rule 4.27 was adopted by the Secretary on May13,2011 (R. Tab 10).

On June 9, 2011, Plaintiffs filed this action asking the Court to find Rule 4.27 unlawfuland void.

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III. STANDARD OF REVIEWA. Administrative Procedure Act

Under the Colorado Administrative Procedure Act, C.R.S. 24-4-101, et seq. (2011), achallenged agency action must be held unlawful if the reviewing court finds:

that the agency action is arbitrary or capricious, a denial ofstatutory right, contrary to constitutional right, power, privilege, orimmunity, in excess of statutory jurisdiction, authority, purposes,or limitations, not in accord with the procedures or procedurallimitations of this article or as otherwise required by law, an abuseor clearly unwarranted exercise of discretion, based upon findingsof fact that are clearly erroneous on the whole record, unsupportedby substantial evidence when the record is considered as a whole,or otherwise contrary to law ...

C.R.S. 24-4-106(7). Upon such a finding, the court must "set aside the agency action and shallrestrain enforcement of the order or rule under review ... and afford such other relief as may beappropriate." Id.

In undertaking this review, the court determines questions of law and interprets statutoryand constitutional provisions. Id. Although the court does defer to the agency's interpretation ofthe statutes and constitutional provisions relevant to its activities, its interpretation is not binding.Bd. of County Comm'rs v. Colo. Pub. Utils. Comm 'n, 157 P.3d 1083, 1088 (Colo. 2007);Colorado Citizens/or Ethics in Gov't v. Comm.for Am. Dream, 187 P.3d 1207,1214 (Colo.App. 2008). The reviewing court is not bound by the agency's action if it has resulted from a

misconstruction or misapplication of the law. See Colo. Citizens/or Ethics in Gov't, 187 F.3d at1214 (an agency's decision should be reversed if the agency erroneously interpreted the law orexceeded its constitutional or statutory authority). Any regulation that is inconsistent with orcontrary to statute is void. C.R.S. 24-4-103(8)(a).

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B. Declaratory JudgmentsA declaratory judgment is "[a] binding adjudication that establishes the rights and other

legal relations of the parties without providing for or ordering enforcement." Black's LawDictionary 918 (emphasis added). In Colorado, C.R.C.P. 57 governs declaratory judgments:

District ... courts ... shall have power to declare rights, status, andother legal relations whether or not further relief is or could beclaimed. No action or proceedings shall be open to objection on theground that a declaratory judgment or decree is prayed for. Thedeclaration may be either affirmative or negative in form andeffect; and such declarations shall have the force and effect of afinal judgment or decree.

C.R.C.P. 57(a). "The primary purpose of the declaratory judgment procedure is to provide aspeedy, inexpensive, and readily accessible means of determining actual controversies whichdepend on the validity or interpretation of some written instrument or law." Toncray v. Dolan,593 P.2d 956,957 (Colo. 1979); see also C.R.C.P. 57(k) ("This Rule is declared to be remedial;its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights,status, and other legal relations; and is to be liberally construed and administered.").

Colorado Rule of Civil Procedure 57 is to be liberally construed and administered.Lakewood Fire Prot. Dist. v. City of Lakewood, 710 P.2d 1124, 1126 (Colo. App. 1985).Moreover, a "claim under C.R.C.P. 57 is not precluded by the possibility ofC.R.C.P. 106(a)(4)review of administrative agency action where C.R.C.P. 106(a)(4) review may be ineffective in

addressing the issues raised by the petitioner." Denver Ctr. for the Performing Arts v. Briggs,696 P.2d 299, 305 (Colo.1985). Rather, constitutional challenges to the validity of an agencyaction are more properly considered under C.R.C.P. 57. See Native Am. Rights Fund, Inc. v. Cityof Boulder, 97 P.3d 283,287 (Colo. App. 2004).

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C. Dismissal of a Counterclaim Pursuant to C.R.C.P. 12(b)(1), (5) and (6).C.R.C.P. 12(b)(1) authorizes a party to seek dismissal of a counterclaim for lack of

subject matter jurisdiction. Under Rule 12(b)(1), the plaintiff has the burden of provingjurisdiction, Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916,925 (Colo.1993). Because the trial court is authorized to make factual findings when presented with amotion to dismiss under this subsection of the Rule, the court "need not treat the facts alleged bythe non-moving party as true as it would under C.R.C.P. 12(b)(5)." City of Lakewood v. Brace,919 P.2d 231, 244(Colo. 1996); see also 2 James Wm. Moore, Moore's Federal Practice 12.30[4] (3d ed.1997) (Noting that under identical Federal Rule of Civil Procedure 12(b)(1),"when a court reviews a complaint under a factual attack, the allegations have no presumptivetruthfulness, and the court that must weigh the evidence has discretion to allow affidavits,documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts"). Thefacts alleged and the relief requested are determinative of the existence of subj ect matterjurisdiction. City of Boulder v. Pub. Servo Co., 996 P.2d 198,203 (Colo.App. 1999).

A party may also seek dismissal under Rule 12(b)(5) for failure to state a claim uponwhich relief can be granted. "The purpose of a C.R.C.P. 12(b)(5) motion to dismiss is to test theformal sufficiency of the plaintiff's complaint." Wagner V. Grange Ins. Ass'n, 166 P.3d 304,306-07 (Colo. App. 2007). Unlike Rule 12(b)(1), the court is constrained under Rule 12(b)(5) andmust take the allegations as true and draw all inferences in the plaintiffs favor. Medina V. State,35 P.3d 443,452 (Colo. 2001). To survive a motion to dismiss asserted under Rule 12(b)(5), it isaxiomatic that a plaintiff must have standing to bring suit. Grossman V. Dean, 80 P.3d 952,958(Colo. App. 2003).

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Finally, a counterclaim may be dismissed pursuant to C.R.C.P. 12(b)(6) for failure to joinan indispensable party. "The test for determining indispensability under C.R.C.P. 19 is whetherthe absent person's interest in the subject matter of the litigation is such that no decree can beentered in the case which will do justice between the parties actually before the court withoutinjuriously affecting the right of such absent person." Woodco v. Lindahl, 152 Colo. 49, 380 P.2d234 (1963).

The following factors must guide the trial court's determination of whether a party isindispensable:

1. the extent to which a judgment rendered in the person's absence might beprejudicial to the person or to those already parties;

2. the extent to which prejudice can be lessened or avoided by protective provisionsin the judgment, by the shaping of relief, or by other measures;

3. whether a judgment rendered in the person's absence will be adequate; and4. whether the plaintiff will have an adequate remedy if the action is dismissed for

nonjoinder.Balkind v. Telluride Mountain Title Co., 8 P.3d 581 (Colo. App. 2000). This analysis presents amixed question of law and fact, and thus the question of whether a party is indispensable must bedetermined on the facts of each case. Friends of Black Forest Reg'l Park, Inc. v. Bd. of CountyComm'rs, 80 P.3d 871 (Colo. App. 2003).

IV. ARGUMENTA. Rule 4.27 Is Inconsistent with Article XXVIII of the Colorado Constitution and the

Reporting Requirements of the Fair Campaign Practices Act.The Secretary has adopted a rule that is in clear conflict with the plain language of both

the Colorado Constitution and Colorado statutes. Article XXVIII, 1 of the ColoradoConstitution states that the "interests of the public are best served by ... providing for full and

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timely disclosure of campaign contributions." Consistent with this purpose, the Fair CampaignPractices Act ("FCPA") requires issue committees to report all contributions, the names andaddresses of all persons who contribute twenty dollars or more, and all expenditures. C.R.S. 1-45-108(1)(a)(I) (2011). The statement of registration must include the name of the issuecommittee; the name of a registered agent; the committee's address and telephone number; theidentities of all affiliated candidates and committees; and the "purpose or nature of interest" ofthe committee. Id.

The definition of "issue committee" in Article XXVIII provides that an entity or groupbecomes an issue committee when it "has accepted or made contributions or expenditures inexcess of two hundred dollars to support or oppose any ballot issue or ballot question." Colo.Const. art. XXVIII, 2(10)(a)(II). Thus, any entity or group who has accepted contributions ormade expenditures related to a ballot measure of $200 or more is an issue committee and mustregister and report all contributions and expenditures in compliance with C.R.S. 1-45-108.

This language is plain and unambiguous. The definition of an issue committee is notsubject to interpretation. The $200 threshold simply could not be more clear - $200 does notmean $500 or $5,000. And the FCPA requires all contributions and expenditures to be reported,not just those received after meeting the threshold. Yet, Rule 4.27 changes the threshold from$200 to $5,000 and states that "contributions to and expenditures made prior to reaching the$5,000 threshold are not required to be reported." Thus, Rule 4.27 not only changes theconstitutional definition of "issue committee," but also creates a loophole whereby individuals orgroups who eventually meet the $5,000 threshold can keep secret the first $4,999 in contributionsor expenditures even after they become subject to reporting requirements (R. Tab 10).

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Both of these provisions are contrary to Colorado law. Creating a new threshold of$5,000 for regulation as an issue committee is in clear conflict with $200 threshold mandated inarticle XXVIII, 2(10)(a)(II). And, regardless of the amount of the threshold, allowing issuecommittees to avoid reporting all contributions to and expenditures made prior to reaching thethreshold is a clear violation of the plain language ofC.R.S. 1-45-108(1)(a)(I), which requiresall contributions and expenditures to be disclosed. Rule 4.27 is thus void under C.R.S. 24-4-103(8)(a) and the Secretary's adoption of the rule is arbitrary and capricious, contrary to aconstitutional right, in excess of statutory authority, an abuse of discretion, unsupported by therecord, and otherwise contrary to law. C.R.S. 24-4-106(7).B. The Secretary Cannot Use the Sampson Case as a Basis to Exceed His Constitutional

Authority to Enforce and Administer Campaign Finance Laws.In the Statement and Basis of Purpose for Rule 4.27 (R. Tab 11), the Secretary indicated

that the rule was promulgated "to resolve uncertainty about registration and disclosurerequirements in light of the ruling of the Tenth Circuit Court of Appeals in Sampson v.Buescher." The Tenth Circuit's decision in Sampson does not validate the Secretary's unlawfulrule.

1. Sampson Did Not Invalidate Either Article XXVIII, 2(lO)(a)(2) of theColorado Constitution or C.R.S. 1-4S-108(1)(a)(I).

Sampson was an as-applied challenge by a small neighborhood group addressing an

annexation election involving a single ballot issue. 625 F.3d at 1251-52. The Tenth Circuit foundthat the $200 element of the definition of "issue committee" was unconstitutional as applied tothe specific facts in that case. Id. at 1259-61. It did not invalidate the rule on a facial basis and, in

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fact, acknowledged that some applications of the issue committee definition are constitutional.Id. at 1261.1

"As-applied constitutional challenges attempt to invalidate a law only in thecircumstances in which a party has acted or proposes to act; thus, a law that is held invalid asapplied is not rendered completely inoperative." Independence Inst. v. Coffman, 209 P.3d 1130,1136 (Colo. App. 2008). Rather, state law regarding severability determines the effect of anyjudicial determination that a state law is unconstitutional in some aspects but not others. Leavittv. Jane L., 518 U.S. 137, 139 (1996). Article XXVIII's severability provision specificallyaddresses the effect of an as-applied challenge: a finding that Article XVIII or any provisionthereof is unconstitutional in a particular application does not "affect other provisions orapplications of the article which can be given effect without the invalid provision or application."Colo. Const. art. XXVIII, 14. Particularly in light of 14's express provision regarding theeffect of a successful as-applied challenge, any argument that Sampson invalidated the $200 limitacross the board is untenable. The Tenth Circuit found the issue committee registrationrequirement invalid as applied to a local annexation committee that spent a minimal amount ofmoney in a type of election that was unlikely to have been considered by voters who enactedArticle XXVIII. See Sampson, 625 F.3d at 1254.

Changed circumstances since the Sampson plaintiffs filed their suit also support a narrowreading of the case. The Tenth Circuit itself dismissed a portion of the plaintiffs' appeal,

1 The unique facts in Sampson are helpful in understanding the Tenth Circuit 's holding. For example, the "issuecommittee" in Sampson was formed in response to a local annexation issue, and the law regarding how annexationelections were to be treated under Article XXVIII was unclear. In addition, the state made "no effort to explain thepublic interest in disclosure in this particular case." Sampson, 625 F.3d at 1261. While the identity of contributors ina local annexation election may indeed be of little importance, this is not the case in statewide initiatives where, forexample, the presence of out of state or contributors from a particular industry might be significant to voters.

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regarding the vagueness surrounding the question when a municipal annexation questionbecomes a "ballot issue" for purposes of campaign finance law, because the legislature enacted aclarifying amendment to the FCPA. Id. at 1252 & n.2 (citing C.R.S. 1-45-708(b)(2) and 31-12-112(6). In addition, as a result of the passage of House Bill 10-1370 in 2010, the Secretary isnow required to notify proponents of a ballot issue "at the time a petition is approved ... that theproponents must register an issue committee pursuant to section 1-45-108 (3.3) if two hundred ormore petition sections are printed or accepted in connection with circulation of the petition."C.R.S. 1-40-113(1 )(b). This new law is clear and easy to follow and raises none of theconcerns expressed in Sampson.

Moreover, Sampson did not address at all the requirement in C.R.S. 1-45-108(1)(a)(I)that issue committees report all contributions and expenditures. The Secretary's attempt to createa loophole allowing some of an issue committee's contributions and expenditures to remainsecret is blatant overreaching. Once an issue committee has met the threshold for regulation, thecommittee must disclose all contributions and expenditures, not just those that occurred after thethreshold had been met. The Tenth Circuit's ruling in Sampson does not provide the Secretarywith a legal basis to rewrite the Constitutional and statutory provisions he is required to enforce.

2. The Secretary Does Not Have the Authority to Adopt Rules That AreInconsistent with Unambiguous Constitutional and Statutory Provisions.

The Secretary's adoption of Rule 4.27 appears to be an attempt to use the Sampson caseto manufacture an ambiguity in the campaign finance laws where none exists in order to craft arule that fundamentally changes state law. While the Sampson case does leave open the questionof whether the $200 threshold is facially unconstitutional, the Secretary does not have the

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authority to resolve that question. Nor does the Secretary have the power to promulgate a rule indirect conflict with unchallenged statutory requirements.

"The constitutional doctrine of separation of powers mandates that agencies act onlywithin the scope of their delegated authority." Hawes v. Colo. Div. of Ins. , 65 P.3d 1008,1016(Colo. 2003). The General Assembly can delegate the power to promulgate rules and regulationsto executive agencies to enforce laws, but it cannot delegate the power to make the law. SeeColorado Auto & Truck Wreckers Ass 'n v. Department of Revenue, 618 P.2d 646, 654 (Colo.1980). The Secretary, as a member of the executive branch, has the authority to execute andenforce the state's laws that are within the scope of his office. See McDonnell v. Juvenile Courtin andfor Second Judicial District, 864 P.2d 565,567 (Colo. 1993). "Enforcement" in thiscontext is commonly understood to mean "to compel observance" of existing law. Delta SalesYard v. Patten, 892 P.2d 297,299 (Colo. 1995).

Rule 4.27 goes far beyond simple enforcement and administration of the campaignfinance laws by reinterpreting both constitutional and statutory provisions. Under article XXVIII, 9(1)(b) of the Colorado Constitution, the Secretary has the authority to promulgate rules "asmay be necessary to administer and enforce any provision of this article." See also C.R.S. 1-45-111.5 (directing the Secretary to promulgate rules as necessary to enforce or administer theFair Campaign Practices Act). In doing so, his office "must comply strictly with its enablingstatutes, and it has no authority to set aside or circumvent legislative mandates." Martinez v.Colo. Dep 'tof Human Servs., 97 P.3d 152, 157 (Colo. App. 2003); see also Fred SchmidAppliance & Television Co. v. Denver, 811 P.2d 31, 33 (Colo. 1991) ("an administrative agencycannot pass upon the constitutionality of the legislation under which it acts"); People ex rei.

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Commissioner oj Agriculture v. Webster, 570 P.2d 560,562 (Colo. App. 1977) ("anadministrative agency is generally without jurisdiction to decide the constitutionality of its ownenabling legislation") (citing K. Davis, Administrative Law Treatise at 20.02 and 20.04(1958)).

The Secretary's authority to interpret statutory and constitutional provisions does notalter this analysis. To the extent the Secretary has any discretion in the interpretation of hisconstitutional and statutory mandates, such interpretation must be consistent with the law, not inconflict with it. Where a constitutional amendment or statute contains plain, clear language, rulesof construction should not be applied to construe its meaning. Tivolino Teller House, Inc. v.Fagan, 926 P. 2d 1208, 1211 (Colo. 1996). "While the construction of a statute by the agencycharged with its enforcement is entitled to deference, courts are not bound by that constructionwhere the result reached by the agency is inconsistent with legislative intent as manifested inthe statutory text." Boulder County Bd. of Equalization v. MD.C. Constr. Co., 830 P.2d 975,981 (1992) (emphasis supplied). Thus, as discussed above, rules or regulations that change,modify or conflict with an existing statute are without force and effect. Adams v. Colo. Dept. ojSoc. Services, 824 P.2d 83,86 (Colo. App. 1991); Sanger v. Dennis, 148 P.3d 404,413 (Colo.App. 2006); C.R.S. 24-4-103(8)(a).

The plain text of both art. XXVIII, 2(10)(a)(II) and C.R.S. 1-45-108(1)(a)(I) is notambiguous. "Issue committee" is defined as any entity or group who accepts contributions ormakes expenditures of $200 related to any ballot issue, and issue committees must disclose allcontributions. If people believe the $200 threshold should be changed, a lawsuit can be broughtand the judiciary can determine whether it is facially unconstitutional. Or, the constitution and

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the law can be changed through either the legislative or the initiative process. Indeed, thelegislature has already acted to reduce confusion around issue committee registrationrequirements by requiring the Secretary to notify initiative proponents that they must register acommittee when two hundred or more petition sections are printed or accepted. C.R.S. 1-40-113(1)(b).

Until a court invalidates the constitutional definition of "issue committee" (leaving "issuecommittee" without a definition in art. XXVIII), or the General Assembly changes the disclosurerequirements, there is no ambiguity for the Secretary to resolve. He has no authority to usurp therole of either the people of the state of Colorado who passed article XXVIII or the GeneralAssembly who enacted the Fair Campaign Practices Act.C. The Secretary's Counterclaim Should Be Dismissed.

The Counterclaim asserted by Defendant Gessler is unprecedented and should bedismissed pursuant to C.R.C.P. 12(b)(1), (5), and (6) because this Court lacks jurisdiction to hearthe claim, it fails to state a claim upon which relief can be granted, and the Secretary failed tojoin an indispensable party.

The Secretary, charged with the duty of enforcing campaign finance laws and theColorado Constitution, has filed a counterclaim against Plaintiffs for a declaratory judgment thatthe issue committee provisions of Article XXVIII of the Colorado Constitution are"unenforceable" under Sampson. Because the Sampson case involved a First Amendmentchallenge to Colorado's campaign finance laws, ruling that a provision of the ColoradoConstitution has been rendered "unenforceable" is no more or less than a declaration that it isfacially unconstitutional. See In re Interrogatories Submitted By Governor Bill Ritter, Jr., 227

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P.3d 892, 893-894 (Colo. 2010) (holding certain provisions of Colorado's campaign finance law"unenforceable" under Citizens United v. FEC, 130 S. Ct. 876 (2010)).

Of course, if the Secretary can file his counterclaim, he also could have filed it as aplaintiff, singling out Common Cause and Ethics Watch as defendants in some effort to obtain adeclaratory ruling that the law he is charged with enforcing is unconstitutional. While theSecretary would be a proper defendant in a suit brought by private parties to achieve such aresult, the Secretary cannot use his official position and State resources to ask the Court todeclare unconstitutional part of the Colorado Constitution he swore to uphold. The Secretary thuslacks standing to assert the counterclaim and it must be dismissed.

1. Common Cause and Ethics Watch Are Not Proper Defendants.Even if the Secretary has the authority to challenge its own constitutional mandate (see

section IV.B, above), there is no legal theory under which Common Cause or Ethics Watchconceivably could be considered proper defendants to such a challenge. In Colorado, the properdefendant in a First Amendment challenge to a state constitutional provision is the agencycharged with administering the challenged provision, unless the agency has not been formed, inwhich case the proper defendant is the governor. Developmental Pathways v. Ritter, 178 P.3d524,529-30 & n.5 (Colo. 2008). Here there is no question that it is the Secretary himself whowould be the proper defendant in a constitutional challenge to Colorado campaign finance law;indeed, in Sampson, the defendant was the Secretary in his official capacity. See Sampson, 625F.3d at 1253; see also Colo. Const. art. XXVIII, 9(1)(b).

Neither Common Cause nor Ethics Watch is "the embodiment of the state" as thegovernor or the Secretary would be in a proper First Amendment challenge to the Colorado

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Constitution. See Developmental Pathways, 178 P.3d at 530; Game & Fish Comm 'n v. Feast,402 P.2d 169, 172 (Colo. 1965) (when "suit is brought against an agency or department of thestate government, it is in effect against the state itself.").Thus, because neither Common Causenor Ethics Watch has the authority to act on behalf of the State of Colorado, they cannot provideany relief to the Secretary. In other words, there is no remedy for the Secretary's Counterclaimand, thus, the claim lacks redressability and any order, judgment or ruling on the merits of theCounterclaim would amount to an impermissible advisory opinion. See Farmers InsuranceExchange v. District Court, 862 P.2d 944 (Colo.1993) ("It is not the function of the courts, evenby way of declaration, to adjudicate ... in the absence of a showing that a judgment, if entered,would afford ... present relief.").

Only the State - perhaps through the Governor - would be able to afford relief under theSecretary's Counterclaim. Defendant has not sought to join the Governor - or any other partythat could afford relief on the Counterclaim - to this action under C.R.C.P. 19 or 57G).2Accordingly, because the claim cannot be redressed, the Court lacks subject matter jurisdiction.Moreover, because the Governor is an indispensable party that is not joined in this suit, theCounterclaim must be dismissed

2. The Secretary Cannot Challenge the Constitutionality of a ConstitutionalProvision From Which His Authority Derives.

As discussed above, the Secretary, acting here in his official capacity, has no authority toassert a constitutional challenge to state campaign finance laws administered by his agency. "Anadministrative agency must comply strictly with its enabling statutes, and it has no authority to

2 It is unclear whether or how the Secretary could bring a claim against the Governor.

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set aside or circumvent legislative mandates." Martinez v. Colo. Dep 'tof Human Servs., 97 P.3d152, 157 (Colo. App. 2003).

Neither the Colorado Constitution nor state statutes give the Secretary of State permissionto file lawsuits to invalidate portions of the Colorado Constitution. The Secretary's authority toinitiate litigation is limited. The Secretary can file suit to enforce the Uniform Election Code,C.R.S. 1-1-107(2)( d), or to enforce a decision of an administrative law judge in a campaignfinance case. Colo. Const. art. XXVIII, 9(2). He does not have free-ranging authority to sueprivate groups to obtain declarations purporting to declare portions of the state Constitutionunenforceable. Because the Secretary's authority is limited to enforcing the campaign financelaws as written, he does not have standing to challenge the constitutionality of any portion ofArticle XXVIII. Sanger, 148 P.3d at 413; Romer v. Fountain Sanitation Dist., 898 P.2d 37,40(Colo. 1995) (political subdivisions of the state lack standing "to challenge the constitutionalityof a state statute directing the performance of their duties") (citing cases); see also Hawes, 65P.3d at 1017 ("Certainly, no implied powers exist when an agency exceeds its jurisdiction byacting contrary to the Colorado Constitution"); Fred Schmid Appliance & Television Co., 811P.2d at 33; People ex rei. Commissioner of Agriculture, 570 P.2d at 562.

Here, voters enacted Article XXVIII into the Colorado Constitution by popular vote. Thepeople of Colorado are the real party in interest in any case questioning the constitutionality ofany provision of that article and are entitled to expect the persons they elected to defend the stateconstitution, not attack it. See Developmental Pathways, 178 P.3d at 529-530 (as "embodimentof the state," governor is proper defendant in constitutional challenge to voter-initiatedconstitutional amendment); see also Romer v. Evans, 517 U.S. 620, 625 (1996) ("Although

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Governor Romer had been on record opposing the adoption of Amendment 2, he was named inhis official capacity as a defendant, together with the Colorado Attorney General and the State ofColorado."). The Secretary, who was elected to administer and enforce Article XXVIII, cannotchallenge its validity.

If any question exists regarding the facial validity of Colorado's system for regulatingissue committees, the proper course of action would be to submit interrogatories to the ColoradoSupreme Court, as was done in Interrogatories Propounded by Governor Bill Ritter, Jr., 227P.3d 892. Significantly, the Secretary lacks authority to submit interrogatories to the ColoradoSupreme Court - that authority is limited to the governor and the state legislature. Colo. Const.Art. VI, Section 3 (2011). The Court should not permit the Secretary to circumvent thisconstitutional limitation by permitting him to maintain his Counterclaim.

v. CONCLUSIONRule 4.27 is contrary to existing law. First, the definition of "issue committee" set forth in

the Colorado Constitution is unambiguous, has not been invalidated, and must be enforced by theSecretary as written until changed by judicial or legislative action. Second, the Secretary cannotadopt a rule changing the statutory requirement that issue committees report all contributions andexpenditures. Thus, Plaintiffs request that this Court determine pursuant to C.R.S. 24-4-106(7)and C.R.C.P. 57(a) that Rule 4.27 is contrary to law, that its adoption was arbitrary andcapricious and without authority, and that the rule should be set aside. Plaintiffs also request thatthe Court dismiss the Secretary's counterclaim for failure to state a claim upon which reliefcould be granted and lack of standing to maintain the claim.

Respectfully submitted September 28, 2011.

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signed original onfile at Hill & Robbins, P.C./s/ Jennifer H.HuntJennifer H. HuntNathan P. FlynnHill & Robbins, P.C.1441 18th Street, Suite 100Denver, CO 80202-1256Attorneys for Plaintiff Colorado CommonCause

signed original onfile at Colorado Ethics Watchlsi Luis TaroLuis ToroColorado Ethics Watch1630 Welton Street, Suite 415Denver, CO 80202signed original on file at Darling Milligan Smith&Lesch, P.C./s/ Jason WesokyJason WesokyDarling Milligan Smith & Lesch, P.C.1331 17th St., Suite 800Denver, CO 80202Attorneys for Plaintiff Colorado Ethics Watch

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CERTIFICATE OF SERVICEThe undersigned hereby certifies that on the 28th day of September, 2011, service of the

foregoing JOINT OPENING BRIEF was made via LexisNexis File & Serve, addressed asfollows:Maurice G. KnaizerState Services DepartmentOffice of the Attorney General1525 Sherman Street, i FloorDenver, CO [email protected]

signed original onfile at Hill & Robbins, P.e.

sf Holly RogersHolly Rogers
mailto:[email protected]:[email protected]

Documents

Colorado Cause and Colorado Ethics Watch Opening Brief Re Scott Gessler