DISTRICT COURT, CITY AND COUNTY OF DENVER,

STATE OF COLORADO

EFILED Document
DATE
FILED:
August
12, 2011
6:30 PM
CO Denver
County
District
Court
2nd JD
CASE
NUMBER:
2011CV4164
Filing Date: Aug 12 2011 4:30PM MDT
Filing ID: 39262421
Review Clerk: Sean McGowan

1437 Bannock Street

Denver, CO 80202
COLORADO COMMON CAUSE,
a non-profit corporation, and
COLORADO ETHICS WATCH,
Plaintiffs,
v.
SCOTT GESSLER,
in his capacity as Colorado Secretary of State
COURT USE ONLY

Defendant.
Luis Toro, #22093
Colorado Ethics Watch
630 Welton Street , Suite 415
Denver, CO 80202
ltoro@coloradoforethics.org

Case No. 2011-CV-4164

Div.: 1

Jason B. Wesoky, #34241

Darling Milligan Smith & Lesch, P.C.
1331 17th St., Suite 800
Denver, CO 80202
303-623-9133
jwesoky@dmsl-law.com
PLAINTIFF COLORADO ETHICS WATCHS RESPONSE TO DEFENDANTS
MOTION TO DISMISS
Plaintiff Colorado Ethics Watch (CEW), through its attorneys, submits the following
response to Defendants motion to dismiss, and states as follows:
INTRODUCTION
CEW challenges the validity of Campaign and Political Finance Rule 4.27, which would
relax the Colorado Constitutions reporting requirements for issue committees by raising the
threshold at which a group is required to register with the Secretary of State from $200 to $5,000
(the Rule). The Rule would also exempt the first $5,000 of contributions and expenditures from

any disclosure whatsoever. The Secretary of State exceeded its authority when it created the Rule
and, in so doing, violated the Colorado Constitution.
Defendant now attempts to eliminate judicial scrutiny of its actions by claiming CEW lacks
standing to seek review of Defendants unconstitutional rule-making. Defendants motion argues
that without evidence, affidavits, or other documents to show CEW has a legitimate interest in
preventing Defendant from enacting unlawful rules, CEW cannot show it has an interest or injury
that could confer upon it standing. But CEW does not need to meet Defendants artificially high
standing requirements for two reasons.
First, Article XXVIII of the Colorado Constitution explicitly permits CEW to bring this
action. The Colorado courts are not of limited jurisdiction like the federal courts. Thus, Colorados
legislature can allow, and has allowed, anyone to bring an action to enforce a violation of the
Colorado Constitution. Second, CEW can demonstrate an injury sufficient to demonstrate it meets
the traditional standing requirements in state court, which requirements are less stringent than the
federal courts. CEW, like all Coloradans, has a legitimate interest in ethical government and
elections. CEW is thus injured by the Rule because CEW will no longer be able to exercise its
constitutional right to file complaints against those who fail to meet reporting requirements when
they expend more than $200 on an issue election. Thus, CEW has standing and the motion should
be denied.
ARGUMENT
I. STANDARD OF REVIEW
Defendants motion proceeds under the assumption that this case arises solely under the
state Administrative Procedures Act (APA). However, this action is also brought for declaratory
judgment under C.R.C.P. 57. Declaratory judgment is the more proper method to obtain judicial
review when, as here, the overall validity of an administrative action is challenged on
constitutional grounds. Native Am. Rights Fund, Inc. v. City of Boulder, 97 P.3d 283, 287 (Colo.
App. 2004).
The Uniform Declaratory Judgments Law, C.R.S. 13-51-101, et seq. affords parties
judicial relief from uncertainty and insecurity with respect to their rights and legal relations. Board
of County Com'rs, La Plata County v. Bowen/Edwards Associates, Inc., 830 P.2d 1045, 1053 (Colo.
1992). To satisfy the standing requirement for a declaratory judgment, the plaintiff [must]
demonstrate that there is an existing legal controversy that can be effectively resolved by a
declaratory judgment, and not a mere possibility of a future legal dispute over some issue. Id.
To establish standing under the APA, CEW need only allege that it is aggrieved or adversely
affected by Defendants creation of the Rule. See C.R.S. 24-4-106(4); State, Dept. of Personnel v.
Colo. State Personnel Bd., 722 P.2d 1012, 1017 (Colo. 1986). Aggrieved means having suffered
actual loss or injury or being exposed to potential loss or injury to legitimate interests including, but
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not limited to, business, economic, aesthetic, governmental, recreational, or conservational

interests. C.R.S. 24-4-102(3.5).
Colorado lacks the explicit case or controversy requirement of Article III of the federal
constitution. Conrad v. City & County of Denver, 656 P.2d 662, 669 (Colo. 1982). Colorados
standing requirements are rooted in Colorado Constitution Articles III and VI. Ainscough v. Owens,
90 P.3d 851, 855056 (Colo. 2004). Colorado imposes two standing requirements: [f]irst, the
plaintiff must have suffered an injury-in-fact, and second, this harm must have been to a legally
protected interest. Ainscough, 90 P.3d at 855. The first requirement is constitutionally rooted; the
second is prudential. HealthONE v. Rodriguez, 50 P.3d 879, 892 (Colo.2002). In Colorado a litigant
need not meet the same standing threshold as a litigant in federal court. City of Greenwood Village
v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 n. 8 (Colo. 2000). Accordingly, the
test in Colorado has traditionally been relatively easy to satisfy. Ainscough, 90 P.3d at 856.
II. CEW HAS STANDING PURSUANT TO ARTICLE XXVIII WHICH EXPLICITLY
PERMITS CEW TO BRING THIS ACTION
Defendants reliance on cases such as Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-78
(1992) is misplaced. The Court in Lujan found that Congress violated the Separation of Powers
Doctrine when it tried to confer standing on any person to commence a civil suit to enforce the
Endangered Species Act. Id. at 577. Importantly, Congress could not do so because the federal
courts are of limited jurisdiction. See Marbury v. Madison, 5 U.S. 137, 174 (1803); Chemerinsky,
Erwin, Federal Jurisdiction, 1.3, p.16 (1994) (by viewing Article III as the ceiling of federal
jurisdiction, Marbury helped establish the principle that federal courts are courts of limited
jurisdiction.).
Pursuant to Article VI 9(1) of the Colorado Constitution, this Court is a court of record
with general jurisdiction, and has appellate jurisdiction as may be prescribed by law. Thus, the
limited jurisdiction of the federal courts is irrelevant.
This case involves the Colorado Constitution and, specifically, Defendants violation of
Article XXVIII 1 and 7. Article XXVIII 9 provides much broader standing rights than the
United States Constitution. Article XXVIII 9(2)(a) allows CEW to bring a private action against
the Secretary of State to prosecute a violation of Article XXVIII: [a]ny person who believes that a
violation of this article, or of sections 1-45-108, 1-45-114, 1-45-115, or 1-45-117 C.R.S., or any
successor sections, has occurred may file a written complaint. CEW is, by definition, a person.
See Article XXVIII 2(11).1
1

To the extent Defendant may argue CEW must wait until a group avails itself of the Rule to
avoid disclosure upon meeting the $200 threshold, file a complaint against that group, have such
complaint referred to an administrative law judge, and then appeal any ruling by the ALJ, such
argument fails. An ALJ cannot review the constitutionality of an agencys action. See CGAP v.
Accountability for Colo., Case No. OS 2010-0041 (Colo. Admin. Ct. Feb. 15, 2011) (the ALJ is
3

CEW brought this action because it believes Defendant has violated Article XXVIII of the
Colorado Constitution when he enacted the Rule changing the reporting requirements for issue
committees. Because the Colorado Constitution explicitly permits persons like CEW to challenge
violations of Article XXVIII, CEW has standing and the motion should be denied.
III. CEW HAS STANDING BECAUSE DEFENDANTS ILLEGAL ACTIONS HAVE
CAUSED INJURY TO CEW
In addition to being able to prosecute the Complaint because Article XXVIII of the
Colorado Constitution permits CEW to do so, CEW also has standing to bring this claim under both
the Administrative Procedure Act and C.R.C.P. 57 because CEW has suffered an injury to a legally
protected interest as a result of Defendants actions.
Importantly, in Colorado standing can be based on intangible [injuries], such as aesthetic
harm or the deprivation of civil liberties. Barber v. Ritter, 196 P.3d 238, 246 (Colo. 2008). The
standing requirement asks only whether the particular constitutional or statutory provision
underlying the claim creates a right or interest in the plaintiff that has been arguably abridged by
the challenged governmental action. State Bd. for Community Colleges & Occupational Educ. v.
Olson, 687 P.2d 429, 435 (Colo. 1984) (emphasis added). [E]ven where no direct economic harm
is implicated, a citizen has standing to pursue his or her interest in ensuring that governmental
units conform to the state constitution. Nicholl v. E-470 Public Highway Authority, 896 P.2d
859, 866 (Colo. 1995) (emphasis added).
CEW, like all other persons in Colorado, has an interest in ensuring that state government
conforms to the state constitution and related rules and regulations. Here, the basis of CEWs
Complaint is that Defendant Gessler, acting in his official capacity as Secretary of State, violated the
Colorado Constitution when he created a rule that effectively overrules Colorado constitutional and
statutory requirements that issue committees register and report all contributions and expenditures
once the group raises or spends $200. See Article XXVIII 2(10)(a) & 7; C.R.S. 1-45-108.
CEW has an interest in ensuring Defendant and others conform to the constitution and
adhere to Colorados election reporting and disclosure requirements. Defendants creation of the
Rule injures CEW because CEW can no longer file complaints to enforce the $200-threshold
reporting requirement. CEW is also injured because Defendants actions circumvent CEWs

without jurisdiction to find any portion of the FCPA unconstitutional) (attached as Exhibit 1).
See also Colorado State Board of Accountancy v. Paroske, 39 P.3d 1283, 1289 (Colo. App.
2001) (when a party to an administrative proceeding seeks to challenge the facial
constitutionality of a statute, it must do so upon judicial review).
4

constitutional right to enforce campaign finance violations pursuant to Article XXVIII. Therefore,
CEW has suffered an injury and has standing such that the motion should be denied. 2
CONCLUSION
The Colorado Constitution permits CEW to challenge Defendants unconstitutional rule
making. Further, the allegations in the Complaint establish that CEW has standing to contest the
Rule under both the APA and C.R.C.P. 57. Accordingly, Defendants motion should be denied and
the Court should grant such other relief as it deems just and reasonable.
Dated this 12th day of August, 2011.
DARLING MILLIGAN SMITH & LESCH, PC

/s/ Jason B. Wesoky

Jason B. Wesoky, Esq. #34241

Defendants motion references additional evidence he believes CEW must produce to prove
it has standing. This Court neither ordered discovery nor an evidentiary hearing on the issue.
Defendants C.R.C.P. 12(b)(1) motion also fails to challenge CEWs jurisdictional facts
(Defendant provides no facts or evidence to contest those asserted in the Complaint). Thus,
Defendants motion is, at best, a facial attack on subject matter jurisdiction. Accordingly, the
Court must accept the allegations in the complaint as true, Holt v. United States, 46 F.3d 1000,
1002 (10th Cir. 1995), and the Court determines the motion based on the pleadings. However, if
the Court finds additional evidence regarding standing is necessary, the Court can order an
evidentiary hearing.
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CERTIFICATE OF SERVICE
This is to certify that on the 12th day of August, 2011, I served the foregoing PLAINTIFF
COLORADO ETHICS WATCHS RESPONSE TO DEFENDANTS MOTION TO
DISMISS via LexisNexis File & Serve on the following:
Maurice Knaizer, Assistant Attorney General
1525 Sherman Street, 7th Floor
Denver, CO 80203
maurice.knaizer@state.co.us
Counsel for Defendant Scott Gessler
Jennifer Hutchinson Hunt
Nathan P. Flynn
Hill & Robbins PC
1441 18th Street, Suite 100
Denver, CO 80202
jhunt@hillrobbins.com
nflynn@hillrobbins.com
Counsel for Plaintiff Colorado Common Cause
/s/ Audrey Dakan

Audrey Dakan, Paralegal

Pursuant to C.R.C.P. 121, 1-26(9), the original of this document with original signature(s) will be maintained in the offices of
Darling Milligan Smith & Lesch, PC, 1331 17th Street, Suite 800, Denver, Colorado, 80202, and will be made available for inspection by other
parties or the Court upon request.