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IN THE UNITED STATES DISTRICT COURT


FOR 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 STATES MOTION


TO 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 Courts application of Younger abstention was improper.
INTRODUCTION
[O]nly exceptional circumstances justify a federal courts 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;

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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 states interest


in enforcing the orders and judgments of its courts.

Sprint Commcns, 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 Youngers 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
categoryquasi-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 Courts December 16, 2014, order denying
Plaintiffs motions for preliminary injunctive relief. (Dkt. # 39). To further supplement
the Courts 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, Gesslers 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 lawsuits focus was upon Morrisseys 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

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 report
electioneering 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-ethicswatch/ (last accessed January 14, 2015). A true and correct copy of this website is attached hereto as
Exhibit 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/criticsquestion-impartiality-of-colorado-ethics-watch/ (last accessed January 14, 2015). A true and correct copy
of 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 public
record. Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004). A true and
correct copy of CEWs website listing of legal filings from which this table has been derived is attached
hereto as Exhibit B to the Declaration of David A. Warrington.

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ARGUMENT
I.

STANDARD OF REVIEW
The Defendants 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
cases 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] courts
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
4

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doctrine has expanded to apply in certain non-criminal civil contexts,6 Those civil
contexts are limited to quasi-criminal proceedings and those civil proceedings
involving certain orders that implicate a states interest in enforcing the orders and
judgments of its courts. Sprint, 134 S.Ct. at 591.
A.

The Recent Clarification of the Scope of Younger Abstention

Sprint clarified how Younger analysis is to be performed and drew bright lines
around the scope of the doctrine. In Sprint the issue was whether the court should
abstain from ruling on an issue of federal law involving intrastate access fees applied to
voice-over-internet-protocol calls in light of a pending state rate making proceeding.
Sprint, 134 S. Ct. at 592-93. The Eighth Circuit had held that abstention was proper
because there was an ongoing state judicial proceeding that implicated important state
interests and that the state proceeding provided an adequate opportunity to raise
federal challenges. Id. at 593.
In reversing, the Supreme Court rejected the same argument and analysis relied
upon for the invocation of Younger abstention herethat there were important state
interests at stake and the state proceeding provided adequate opportunity to raise
federal challengesthe so-called Middlesex analysis. Id. The Courts holding clarified

See e.g., Ohio Civil Rights Commn v. Dayton Christian Sch., Inc., 477 U.S. 619 (1986) (stateinitiated administrative proceedings to enforce state civil rights laws); Middlesex County Ethics Commn v.
Garden State Bar Assn, 457 U.S. 423 (1982) (state attorney disciplinary proceedings); Trainor v.
Hernandez, 431 U.S. 434 (1977) (civil enforcement actions relating to alleged state public assistance
fraud); Juidice v. Vail, 430 U.S. 327 (1977) (state contempt procedures); Huffman v. Pursue, Ltd., 420
U.S. 592 (1975) (state enforcement of public nuisance statutes); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1
(1987) (the amount of a civil appeal bond); New Orleans Pub. Serv., Inc. v. Council of the City of New
Orleans, 491 U.S. 350 (1989) (a states police power over intrastate utility rates).

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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
perform a state interest analysis after Sprint.
The Court of Appeals and the IUB attribute to this Court's
decision in Middlesex extraordinary breadth. We invoked
Younger in Middlesex to bar a federal court from entertaining
a lawyer's challenge to a New Jersey state ethics
committee's pending investigation of the lawyer. Unlike the
IUB proceeding here, the state ethics committee's hearing in
Middlesex was indeed akin to a criminal proceeding. As
we noted, an investigation and formal complaint preceded
the hearing, an agency of the State's Supreme Court
initiated the hearing, and the purpose of the hearing was to
determine whether the lawyer should be disciplined for his
failure to meet the State's standards of professional conduct.
[citations omitted] The three Middlesex conditions recited
above were not dispositive; they were, instead, additional
factors appropriately considered by the federal court before
invoking Younger.
Divorced from their quasi-criminal context, the three
Middlesex conditions would extend Younger to virtually all
parallel state and federal proceedings, at least where a party
6

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could identify a plausibly important state interest. . . . That


result 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, to
guide other federal courts, we today clarify and affirm that
Younger 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 Colorados 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. Blacks 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 proceeding
stigmatizes the defendant in a manner similar to a criminal
proceeding and subjects her to loss of liberty or livelihood. The
second type of quasi-criminal proceeding involves a civil
forfeiture or penalty predicated on the commission of a criminal
offense.
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 forfeitures, 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 rules
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 quasicriminal. 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 than
criminal in form have sometimes been labeled quasicriminal by the Supreme Court. These laws, broadly
speaking, provide for civil money penalties, forfeitures of
property, and the punitive imposition of various disabilities,
such as the loss of processional license or public
employment.
Under that definition an argument could be made that OSHA
civil penalties constitute quasi-criminal sanctions.
9

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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-Sprint 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 Commn 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. Appx 48 (2d Cir. 2014)
(medical license), Gonzalez v. Waterfront Commn of New York Harbor, 755 F.3d 176
(3d. Cir. 2014) (disciplinary proceeding), Hessein v. Union County Prosecutors Office,
569 F. Appx 99 (3d Cir. 2014) (revoke medical license), Garcia v. Wyoming, No. 138019, 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.
10

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2014) (employers action alleging states 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 quasicriminal 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 quasicriminal 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 Gesslers 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 ALJs 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 hearinginitiation by the state to investigate a possible
violation of law and some coercive authority to subpoenaarguably gave it a
somewhat closer resemblance to a criminal adjudication. Mulholland, 746 F.3d at 817.
However, the election boards 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 quasicriminal 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. 1-45108(1)(a)(c).
This Courts reliance on Ohio Civil Rights Comn 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 partys 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, Colorados
Purported Interest in the Administration of its Election Law Does not
Involve 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 states
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. Commn of W. Va., 396
F.3d 348, 352 (4th Cir. 2005). Such interests include enforcing state court judgments,

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operating a states judicial system, education, family relations, property law, public
health, and corporate law. Id. at 352-53 (comprehensive analysis of categories).
The Supreme Courts 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 Natl Assn, 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 cosovereigns, 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 states 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
Constitutions 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 states right to administer its own elections.
Independence Inst. v. Gessler, 869 F. Supp. 2d 1289, 1300 (D. Colo. 2012).7
A states 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 States responsibility to observe the limits established by the First
Amendment rights of the States 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 area
of paramount state concern, such that refusing to abstain would disrespect the allocation of authority laid
in 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 states authority to regulate elections. Burson,
504 U.S. at 208-11. But outright regulations of speech and associationuntethered
from the states interest in regulating the polling place and the ballot boxrequire 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 states 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).
Colorados 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 states 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 Colorados 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 courts 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, 11921 (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 10304.
A. The subjective animus, bad faith, desire to harass, and intent to retaliate
against a litigant for exercise of its constitutional rights underlying a
state court prosecution is a proper basis for federal intervention in lieu
of 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 and
oppressive 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 courts decision to decline abstention based upon bad faith, the court found
evidence that the defendants sought Cullens 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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and the charges themselves as well as the ensuing proceedings imposed a chilling
effect on Cullens First Amendment rights, the Second Circuit affirmed the lower courts
decision to not abstain. Id. at 104.
One particularly relevant means to prove bad faith is to demonstrate that the
state proceeding was brought in bad faith to deter the exercise of constitutional rights by
a certain class of politically likeminded entities. OKeefe v. Schmitz, 2014 WL 1379934,
at *3 (E.D. Wis. April 8, 2014), revd on other grounds, OKeefe v. Chisholm, 769 F.3d
936 (7th Cir. 2014). In OKeefe, the plaintiff demonstrated that defendants used a
series of state administrative proceedings as a pretext to target conservative groups
across the state. Id. at *9. Because the power vested in government proceedings is
great and can potentially infringe upon constitutional rights, the court found that such
pretextual proceedings amounted to intimidation of conservative groups and retaliation
for their temerity to discuss certain political issues in a manner adverse to the state
complainant. Id. at *9.
The three considerations set forth in Weitzel are not each required to
demonstrate cause for refusal to abstain. Weitzel, 240 F.3d at 877. Even where there
is no pattern of multiple prosecutions, and where the prosecution at issue could result in
an objectively valid conviction, subjective bad faith and intent to retaliate provide ample
support for the bad faith exception to Younger abstention. Fitzgerald v. Peek, 636 F.2d
943, 944-45 (5th Cir. 1981). So long as the evidence of subjectively improper intent to
bring a state action exists, the objective merit of the case is not relevant to this
determination. Id. at 945.

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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 ones 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 10304.
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 OKeefe. 2014 WL 1379934, at *3. Plaintiffs Eric OKeefe and Wisconsin
Club for Growth, Inc., were two of several targets of a secret criminal investigation
brought in Wisconsin. Id. at *1. OKeefe 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 similarlysituated 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 CEWs activities
since its inception in 2006, however, reveals a highly partisan pattern of selective
prosecutions based upon viewpoint discrimination. The legal filings section of CEWs
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.

About Colorado Ethics Watch, http://www.coloradoforethics.org/co-pages/about-colorado-ethicswatch/ (last accessed January 14, 2015). A true and correct copy of this website is attached hereto as
Exhibit A to the Declaration of David A. Warrington.
9
A true and correct copy of CEWs website listing of legal filings is attached hereto as Exhibit B to
the Declaration of David A. Warrington.

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CEWs blatantly partisan targeting of conservatives has not gone unnoticed in


Colorado. News outlet The Colorado Observer published a May 29, 2012 article
investigating CEWs partisan activities appropriately titled Colorado Ethics Watch: LeftWing Litigation Machine or Nonpartisan Watchdog?10 The article outlines the
criticism of CEWs 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 CEWs subjective intent in bringing its
state administrative action. Id. at 1066.
CEWs 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 CEWs
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-questionimpartiality-of-colorado-ethics-watch/ (last accessed January 14, 2015). A true and correct copy of this
article 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 similarlysituated 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. CEWs goal is
patently ironic in light of liberal defense of the NAACPs freedom of anonymous
association just fifty years ago and defense of the free speech rights of Louisianas
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
CEWs action: CEW does not share in the governments proceeds. Defendants define a
qui tam lawsuit under Blacks 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 Gesslers Motion to
Dismiss.

Dated: January 15, 2015

Respectfully submitted,

/s/ David A. Warrington


David A. Warrington
Laurin H. Mills
Andrew J. Narod
Paris R. Sorrell
LeClairRyan, A Professional Corporation
2318 Mill Road, Suite 1100
Alexandria, Virginia 22314
Telephone: (703) 684-8007
Facsimile: (703) 647-5999
david.warrington@leclairryan.com
laurin.mills@leclairryan.com
andrew.narod@leclairryan.com
paris.sorrell@leclairryan.com
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James O. Bardwell
Rocky Mountain Gun Owners
501 Main Street, Suite 200
Windsor, CO 80550
Telephone: (877) 405-4570
Facsimile: (202) 351-0528
jb@nagrhq.org
Counsel for Plaintiffs Rocky Mountain Gun
Owners and Colorado Campaign for Life

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CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2015, I electronically filed the foregoing
document with the Clerk of Court using the CM/ECF system, which will send notice of
such filing to counsel of record who are registered with CM/ECF.
/s/ David A. Warrington

29