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Case 1:14-cv-02850-REB-KLM Document 40 Filed 12/22/14 USDC Colorado Page 1 of 9


Civil Action No. 14-cv-02850-REB-KLM
ROCKY MOUNTAIN GUN OWNERS, a Colorado non-profit corporation, and
COLORADO CAMPAIGN FOR LIFE, a Colorado non-profit corporation,
SCOTT GESSLER, in his official capacity as Secretary for the State of Colorado, and
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, a Delaware nonprofit corporation, trading as Colorado Ethics Watch,
Defendant Scott Gessler, in his official capacity as Colorado Secretary of State
(the Secretary), moves to dismiss this action against him under Fed. R. Civ. P.
12(b)(1). Undersigned counsel has conferred with the attorneys of record about this
motion to dismiss. Plaintiffs Rocky Mountain Gun Owners (RMGO) and Colorado
Campaign for Life (CCFL) oppose the motion. Co-Defendant Colorado Ethics Watch
supports the Secretarys motion to dismiss.
Last week, on December 16, 2014, this Court denied Plaintiffs requests for a
temporary restraining order and preliminary injunction, ruling that the Court must abstain
from exercising jurisdiction over constitutional issues raised by RMGO and CCFL.
Doc. # 39 at 10-11. In light of this ruling, Defendant Scott Gessler now moves for

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dismissal. Plaintiffs inappropriately seek this Courts intervention in a matter that can be
fully resolved in currently pending state judicial proceedings. The Younger abstention
doctrine therefore justifies dismissal of Plaintiffs claims in their entirety. As this Court
reasoned in its December 16 Order, Plaintiffs constitutional issues are not proper for
this Court to address; rather, those issues must be adjudicated in the pending state
court proceedings, or on appeal of those proceedings. Doc. # 39 at 10-11.
The facts of this case are set forth in the Courts December 16, 2014 order
denying Plaintiffs motions for preliminary injunctive relief. (Doc. # 39.) In brief,
Plaintiffs are pro-gun and pro-life lobbying organizations who admittedly engaged in
electioneering in the run-up to the 2014 primary election but failed to comply with the
disclosure and reporting requirements of Colorado campaign finance law. Because of
Plaintiffs failure to report its electioneering activity, on September 9, 2014, Colorado
Ethics Watch (Ethics Watch) commenced an action against RMGO and CCFL under
Article XXVII, Section 9(2)(a) of Colorados Constitution to enforce Colorados reporting
and disclosure requirements.
On October 17, 2014, Plaintiffs commenced this action, seeking to enjoin the
pending state proceeding and prevent Ethics Watchs claims from being decided in a
state forum. To that end, Plaintiffs raise a number of facial and as-applied constitutional
challenges to Colorados electioneering regulations. Doc. # 1; Doc. # 24 at 15; Docs.

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## 33, 34. This Court denied preliminary relief on December 16, 2014, applying
Younger to abstain from taking jurisdiction over Plaintiffs claims.
The next day, on December 17, 2014, an administrative law judge held a hearing
in connection with Ethics Watchs complaint, at which time oral argument was presented
and the administrative court accepted RMGO, CCFL, and Ethics Watchs stipulated
facts. Additionally, RMGO and CCFL raised an as-applied constitutional challenge to
Colorados reporting and disclosure requirements. The matter was taken under
advisement and, in accordance with statutory requirements, the administrative law
judge will issue a decision within fifteen days of the hearing date, or January 2, 2015.
Rule 12(b)(1) empowers a court to dismiss a complaint for lack of jurisdiction
over the subject matter. FED. R. CIV. P. 12(b)(1) (2012). Dismissal under Rule 12(b)(1)
is not a judgment on the merits of a plaintiffs case. Rather, it calls for a determination
that the court lacks authority to adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d
1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction
and may only exercise jurisdiction when specifically authorized to do so). The burden of
establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction
must dismiss the cause at any stage of the proceeding in which it becomes apparent
that jurisdiction is lacking. Id. A Rule 12(b)(1) motion to dismiss must be determined

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from the allegations of fact in the complaint, without regard to mere conclusory
allegations of jurisdiction. Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971).
Younger abstention is jurisdictional. DL v. Unified Sch. Dist. No. 497, 392 F.3d
1223, 1228 (10th Cir. 2004). Thus, where a court determines that abstention under
Younger is warranted, the proper remedy is to dismiss the case. See Morrow v.
Winslow, 94 F.3d 1386, 1398 (10th Cir. 1996) (remanding the case to the district court
with directions to abstain and dismiss Morrows case without prejudice.).
The Younger abstention doctrine warrants dismissal of this
action in its entirety because Plaintiffs have an adequate
opportunity to raise their claims in a currently pending state
judicial proceeding.
Dismissal of Plaintiffs claims is warranted for the same reasons this Court
denied Plaintiffs motions for temporary and preliminary injunctive relief on December
16, 2014. See Doc. # 39. As stated in this Courts December 16, 2014 Order, it is not
proper for this court to address the constitutional issues raised by RMGO and CCFL . . .
. Rather, these issues must be raised and addressed in proceedings before the
Colorado administrative law judge, the Colorado Court of Appeals, and/or the Colorado
Supreme Court. Id. at 10-11.
The Supreme Court recently explained that Younger abstention is justified in
three circumstances, including ongoing civil enforcement proceedings, particularly
those in which the state, after conducting an investigation, initiated to sanction the
federal plaintiff . . . for some wrongful act. Sprint Commcns v. Jacobs, 134 S. Ct. 584,

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591-92 (2013); see also Amanatullah v. Colo. Bd. of Med. Examrs, 187 F.3d 1160,
1163 (10th Cir. 1999) (noting that abstention is warranted where the state court
provides an adequate forum to hear the claims raised in the federal complaint and the
ongoing state proceedings involve important state interests).
Here, civil enforcement proceedings have commenced against Plaintiffs as a
result of their failure to comply with Colorados reporting and disclosure requirements,
and the enforcement proceedings involve a matter of important state interest. Doc. # 1,
at 35-45. Specifically, Defendant Colorado Ethics Watch commenced a private
enforcement action, pursuant to Article XXVIII, Section 9(2)(a) of Colorados
Constitution, which allows any person who believes that a violation of Colorados
electioneering communications-related disclosure requirements has occurred may file a
complaint with the secretary of state, who shall, in turn, refer the complaint to an
administrative law judge within three days of the filing of the complaint.
Though Ethics Watch, not the State, commenced the underlying enforcement
proceeding, it is akin to a qui tam action under common law, which is brought by a
private citizen, on that individuals, as well as the States, behalf for violation of a civil or
criminal statute. See BLACKS LAW DICTIONARY 578 (2d pocket ed. 2001). Courts have
long recognized qui tam suits as legitimate tools for enforcing the law. See Trevor W.
Morrison, Private Attorneys General and the First Amendment, 103 Mich. L. Rev. 589,
598-601 (2005) (reasoning that the history of qui tam actions confirms that legislative
reliance on uninjured private parties to enforce public-regarding statutes is no recent
innovation); Osterberg v. Peca, 12 S.W.3d 31, 48-50 (Tex. 2000) (reasoning that

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private enforcement of campaign finance laws is designed to deter violators and

encourage enforcement by those involved in the process instead of placing the entire
enforcement burden on the government). Therefore, the underlying civil enforcement
proceedings falls squarely into one of the Supreme Courts recently reiterated
exceptional circumstances.
Moreover, Plaintiffs have an adequate opportunity to assert their constitutional
claims in the pending enforcement proceedings. See Leatherwood v. Whetsel, 537 F.
Appx 794, 796 (10th Cir. 2013) (affirming lower courts abstention, because the plaintiff
could have, but failed, to assert his constitutional claims in state court proceedings); see
also Deatley v. Keybank Natl Assn, No. 12-cv-02973, 2013 U.S. Dist. LEXIS 120235,
at *12 (D. Colo. Aug. 23, 2013) (unpublished) (noting that the abstention doctrine
applies to equitable relief claims). Although in Colorado administrative law judges do
not have authority to consider facial constitutional challenges, a party is free to first raise
those constitutional questions on appeal of the administrative law judges decision. See
Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 504 (Colo. App. 2010). As-applied
constitutional challenges, however, may be raised in the administrative proceedings.
See Horrell v. Dept of Admin., 861 P.2d 1194, 1198 n.4 (Colo. 1993) (noting the State
Personnel Boards authority to consider the possibly unconstitutional application of a
state statute to a particular personnel action). Indeed, Plaintiffs availed themselves of
that opportunity by raising their as-applied constitutional claims during the December
17, 2014 hearing before the Colorado administrative law judge.

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Because Plaintiffs have an adequate opportunity to assert their constitutional

claims in the underlying proceedings and have, at least in part, done so their
present appeal to this Court for a declaration of the Colorados disclosure and reporting
schemes constitutional invalidity is inappropriate. See Ohio Civil Rights Commn v.
Dayton Christian Schs., Inc., 477 U.S. 619, 628 (1986) (applying Younger abstention
doctrine to First Amendment challenge arising from underlying private cause of action to
enforce Ohios employment discrimination laws); Gonzalez v. Waterfront Commn of the
N.Y. Harbor, 755 F.3d 176, 183 (3d Cir. 2014) (assuming that an administrative
adjudication and the subsequent state courts review of it count as a unitary process for
Younger purposes); Fieger v. Cox, 524 F.3d 770, 774-76 (6th Cir. 2008) (affirming
lower courts Younger abstention in First Amendment lawsuit arising from campaign
finance enforcement proceedings and noting the important state interests surrounding
campaign finance-enforcement matters).
Furthermore, Plaintiffs attempt to attack the constitutionality of private
enforcement proceedings, rather than proceedings commenced by a state official,
should not preclude this Courts abstention. As the Court recognized in its December
16, 2014 Order, a constitutional attack on state procedures themselves does not
automatically vitiate the adequacy of state procedures for the purposes of Younger
abstention. Doc. # 39 at 10 (citing Ohio Civil Rights Commn v. Dayton Christian
Schools, 477 U.S. 619, 629 (1986)).
Once the underlying proceedings and all appeals have run their course, Plaintiffs
are free to seek the United States Supreme Courts review of any final state court

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decision that has sustained the validity of a state statute challenged on federal
constitutional grounds[.] Huffman v. Pursue, 420 U.S. 592, 605-06 (1975) (applying
Younger to a First Amendment challenge arising from a civil nuisance proceeding
against an adult movie theater); see also 28 U.S.C. 1257(a) (permitting Supreme
Court review of final judgment or decrees rendered by a states highest court where the
constitutional validity of a state statute is drawn into question).
Accordingly, for these reasons, the Younger abstention doctrine justifies
dismissal of Plaintiffs claims in their entirety.
For the foregoing reasons, the Secretary respectfully requests that the Court
dismiss Plaintiffs claims in their entirety (Doc. # 1). In sum, Plaintiffs have an adequate
opportunity to assert, and have asserted at least in part, their constitutional claims in
ongoing state court proceedings
Respectfully submitted this 22nd day of December, 2014.
Attorney General

s/Kathryn A. Starnella
Assistant Solicitor General
Assistant Attorney General
Public Officials Unit
State Services Section
Attorneys for Scott Gessler, in his official
capacity as Colorado Secretary of State

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Ralph L. Carr Colorado Judicial Center

1300 Broadway, 6th Floor
Denver, Colorado 80203
Telephone: 720-508-6168; 720-508-6176
FAX: 720-508-6041
*Counsel of Record

I hereby certify that on December 22, 2014, I served a true and complete copy of
the foregoing Secretary of States Opposed Rule 12(b)(1) Motion to Dismiss on Younger
Abstention Grounds upon all counsel of record through electronic filing using the Courts
CM/ECF filing system.
s/ Kathryn Starnella