Independence Institute, The et al v. Buescher
Filing
327
ORDER. The 143 Secretary's Motion for Summary Judgment is granted in part and denied in part. The Secretary's Motion for Summary Judgment is granted as to plaintiffs' Second, Third, Fourth, Eighth, Ninth, and Tenth claims for relief. The Court denies the Secretary's Motion for Summary Judgment as to plaintiffs' First and Fifth claims for relief. Plaintiffs' Sixth and Seventh claims for relief are dismissed as moot. The 234 Secretary's Motion to Strike Portions of Affidavits Submitted in Support of Plaintiffs' Response to Motion for Summary Judgment is denied as moot. by Judge Philip A. Brimmer on 4/26/12.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00609-PAB-MEH
THE INDEPENDENCE INSTITUTE, et al.
Plaintiffs,
v.
SCOTT GESSLER, in his official capacity as Colorado Secretary of State,
Defendant.
_____________________________________________________________________
ORDER
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 143] filed by defendant Scott Gessler in his official capacity as Secretary of State
for the State of Colorado. The motion is fully briefed and ripe for disposition.
I. BACKGROUND
In 2009, the Colorado General Assembly passed and the Governor signed into
law House Bill 09-1326 (“H.B. 1326”), which is codified at Colo. Rev. Stat. §§ 1-40-101
et seq. The Colorado General Assembly enacted H.B. 1326 in order to protect and
preserve the integrity of Colorado’s initiative and referendum process. In enacting the
statute, the General Assembly made the following findings regarding the initiative
process:
(I)
The initiative process relies upon the truthfulness of circulators who obtain
the petition signatures to qualify a ballot issue for the statewide ballot and
that during the 2008 general election, the honesty of many petition
circulators was at issue because of practices that included: Using third
parties to circulate petition sections, even though the third parties did not
sign the circulator’s affidavit, were not of legal age to act as circulators,
and were paid in cash to conceal their identities; providing false names or
residential addresses in the circulator's affidavits, a practice that permits
circulators to evade detection by persons challenging the secretary of
state’s sufficiency determination; circulating petition sections without even
a rudimentary understanding of the legal requirements relating to petition
circulation; and obtaining the signatures of persons who purported to
notarize circulator affidavits, even though such persons were not legally
authorized to act as notaries or administer the required oath;
(II)
The per signature compensation system used by many petition entities
provides an incentive for circulators to collect as many signatures as
possible, without regard for whether all petition signers are registered
electors; and
(III)
Many petition circulator affidavits are thus executed without regard for
specific requirements of law that are designed to assist in the prevention
of fraud, abuse, and mistake in the initiative process.
Colo. Rev. Stat. § 1-40-101(2)(a) (2012). The legislative findings of H.B. 1326 also
include the following conclusions:
(I)
As a result of the problems identified in paragraphs (a) and (b) of this
subsection (2), one or more ballot measures appeared on the statewide
ballot at the 2008 general election even though significant numbers of the
underlying petition signatures were obtained in direct violation of Colorado
law and the accuracy of the secretary of state’s determination of
sufficiency could not be fully evaluated by the district court; and
(II)
For the initiative process to operate as an honest expression of the voters’
reserved legislative power, it is essential that circulators truthfully verify all
elements of their circulator affidavits and make themselves available to
participate in challenges to the secretary of state’s determination of
petition sufficiency.
Colo. Rev. Stat. § 1-40-101(2)(c) (2012).
Plaintiffs are persons, organizations, and petition circulators involved in the
initiative and referendum process in the State of Colorado. Plaintiffs argue that certain
provisions of H.B. 1326 are unconstitutional as they severely burden their rights under
the First Amendment to the United States Constitution. See Docket No. 47.
2
Specifically, Mason Tvert, co-founder and executive director of Safer Alternative For
Enjoyable Recreation (“SAFER”), asserts that he has preliminary plans for introducing a
statewide initiative in 2012 and the statute burdens his right to free speech. Docket No.
47 at 5. Additionally, Scott Lamm, president of Lamm Consulting, a Denver-based
petition drive management company, plans to continue his active involvement in the
petitioning process but “is chilled in doing so by provisions of [H.B. 1326].” Id. at 7.
In their second amended complaint, plaintiffs charge that the following portions
of H.B. 1326 violate their First Amendment freedom of speech rights: (1) the provision
banning non-residents from circulating petitions within the state of Colorado,
§ 1-40-112(1), § 1-40-111(2)(a); (2) the requirement that circulators provide a form of
identification, § 1-40-111(2)(b)(I)(C); (3) the requirement that circulators agree to make
themselves available in the event a protest to petition signatures is filed,
§ 1-40-111(2)(a), § 1-40-111(3)(a); (4) the requirement that a petition entity undergo
state-mandated training prior to performing petition activities, § 1-40-112(3); (5) the
partial ban of pay-per-signature compensation for circulators, § 1-40-112(4); (6) the
requirement that petition entities return collected signatures to the Secretary of State
three weeks and three months in advance of an election, § 1-40-117(3)(b); (7) the
private enforcement and attorney’s fees provision, § 1-40-118(2.5); (8) the requirement
that petition entities obtain a license from the Secretary of State prior to providing
payment to circulators, § 1-40-135(2)(a) and § 1-40-135(2)(c); (9) the requirement that
proponents of a petition or an issue committee acting on behalf of proponents file a
report stating the dates of circulation by all circulators who were paid on the petition, the
total hours each circulator was paid to circulate a section of the petition, and the gross
3
amount of wages paid for such hours, § 1-40-121(1); and (10) the penalty provision,
§ 1-40-135(3)(a). Docket No. 47 at 14-20.
On April 12, 2010, plaintiffs filed a Motion for a Preliminary Injunction [Docket
No. 15] seeking to enjoin the Secretary from enforcing the contested provisions of
H.B. 1326. The Court held three hearings on plaintiffs’ motion--on May 13, 2010
[Docket No. 42], on May 28, 2010 [Docket No. 54], and on June 2, 2010 [Docket No.
57].
On June 11, 2010, the Court issued an Order [Docket No. 60] enjoining the
Secretary from enforcing § 1-40-112(4), § 1-40-135, and § 1-40-121 to the extent that
those sections applied to the partial ban on pay-per-signature compensation. Docket
No. 60 at 37. The Court found that, under either a strict scrutiny analysis or a balancing
test, “the State ha[d] failed to demonstrate that its interests make it necessary to burden
the plaintiff’s rights in the way that § 1-40-112(4) has.” Docket No. 60 at 35. On August
8, 2010, in a separate Order [Docket No. 72], the Court also enjoined the Secretary
from enforcing portions of Colorado Revised Statutes § 1-40-112(1), § 1-40-111(2)(a),
and § 1-40-112(2)(b)(I)(C), which banned non-resident circulators from circulating
petitions in Colorado. Docket No. 72 at 24.
In the present motion, the Secretary requests that the Court enter summary
judgment [Docket No. 144] on eight of plaintiffs’ ten claims for relief. The Secretary
also filed a motion to strike various portions of affidavits submitted by plaintiffs on the
grounds that the submissions are irrelevant or lack adequate foundation [Docket No.
234].
4
II. STANDARD OF REVIEW
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil
Procedure “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is
“material” if under the relevant substantive law it is essential to the proper disposition of
the claim. Wright v. Abbot Labs, Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997). When reviewing a motion for summary judgment, a court must view the
evidence in the light most favorable to the nonmoving party. Id.; see McBeth v. Himes,
598 F.3d 708, 715 (10th Cir. 2010).
A movant who bears the burden at trial must submit evidence to establish the
essential elements of its claim or affirmative defense. In re Ribozyme Pharms., Inc.
Sec. Litig., 209 F. Supp. 2d 1106, 1110 (D. Colo. 2002). By contrast, if the movant
“does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the
summary judgment stage by identifying a lack of evidence for the nonmovant on an
essential element of the nonmovant’s claim.” Bausman v. Interstate Brands Corp., 252
F.3d 1111, 1115 (10th Cir. 2001). The nonmoving party may not rest solely on the
5
allegations in the pleadings, but instead must designate “specific facts showing that
there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
III. ANALYSIS
A. Initiative Process in Colorado
“The Colorado Constitution reserves to the people the power to enact laws and
constitutional amendments by initiative, and to reject by referendum laws passed by the
general assembly.” Campbell v. Buckley, 203 F.3d 738, 740 (10th Cir. 2000), cert.
denied, 531 U.S. 823 (2000). Article V, § 1(1) of the Colorado Constitution states that
“the people reserve to themselves the power to propose laws and amendments to the
constitution and to enact or reject the same at the polls independent of the general
assembly and also reserve power at their own option to approve or reject at the polls
any act or item, section, or part of any act of the general assembly.” An initiative to
amend the Colorado Constitution may be placed on the ballot only where the proponent
provides a petition “in such form as may be prescribed pursuant to law” with the
required number of signatures of registered electors and does so at least three months
before the general election. Colo. Const. art. V, § 1(2). The Colorado General
Assembly is empowered to enact certain regulations regarding the initiative process
based upon both the Colorado Constitution, see American Constitutional Law
Foundation, Inc. v. Meyer, 120 F.3d 1092, 1096 (10th Cir. 1997) (citing Committee for
Better Health Care v. Meyer, 830 P.2d 884, 893 (Colo. 1992); Colo. Const. art. V,
§ 1(2); Colo. Const. art. VII, § 11), and Article I, Section 4 of the United States
6
Constitution. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)
(citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986)).
B. Level of Scrutiny
The First Amendment, made applicable to the states via the Fourteenth
Amendment, Gitlow v. New York, 268 U.S. 652, 666 (1925), provides, “Congress shall
make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The First
Amendment was “fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people.” Meyer v. Grant, 486 U.S.
414, 421 (1988) (citation omitted). Plaintiffs in this case, like the initiative proponents in
Meyer, “seek by petition to achieve political change in Colorado; their right freely to
engage in discussions concerning the need for that change is guarded by the First
Amendment.” Id. Plaintiffs rely on signature gatherers or circulators who play an
important role in the initiative process as they are solely responsible for gathering the
number of signatures required to place an issue on the statewide ballot. Am.
Constitutional Law Found. v. Meyer, 120 F.3d 1092, 1099 (10th Cir. 1997), aff’d sub
nom. Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999). Because petition
circulation involves “interactive communication concerning political change,” this activity
is usually considered “core political speech.” Meyer, 486 U.S. at 421-22. As such, the
importance of petition circulators has prompted courts to apply strict scrutiny where an
election law severely restricts circulators’ ability to gather signatures. See Meyer, 486
U.S. at 414 (exclusion of all paid circulators); Buckley v. Am. Constitutional Law Found.,
Inc., 525 U.S. 182, 187 (1999) (exclusion of circulators not registered to vote).
7
Nevertheless, because “there must be a substantial regulation of elections if they are to
be fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic processes,” Buckley, 525 U.S. at 187, Colorado’s General Assembly has
“the authority to adopt legislation designed to prevent fraud, mistake or other abuses in
the petition process.” Campbell, 203 F.3d at 741 (citation omitted).
When a state statute regulating the election process is challenged under the
First Amendment, the court’s first step is to ascertain which standard of review will
apply to its provisions. Id. at 742. The analysis typically turns in large measure on
whether the regulation at issue is subject to a balancing test or strict scrutiny. Id.
Although predictability of decisions in election law is important, “[n]o bright line
separates permissible election-related regulation from unconstitutional infringements on
First Amendment freedoms.” Id. at 745 (quoting Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 359 (1997)).
Generally, whether a regulation must face a balancing test or strict scrutiny
depends on the severity of the burden the regulation places on speech. See Lee v.
Keith, 463 F.3d 763, 768 (7th Cir. 2006) (describing the Supreme Court’s flexible
approach in similar First Amendment cases as a “sliding scale”). “Regulations imposing
severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling
state interest. Lesser burdens, however, trigger less exacting review, and a State’s
important regulatory interests will usually be enough to justify reasonable,
nondiscriminatory restrictions.” Timmons, 520 U.S. at 358 (quotation marks omitted);
see American Constitutional Law Found., 120 F.3d at 1098 (“[T]he rigorousness of our
8
inquiry depends upon the extent to which the challenged law burdens plaintiffs’ First
and Fourteenth Amendment rights.”).
Where a law appears on its face to regulate the initiative process, courts should
engage in a searching inquiry to determine if, in regulating the process, a state has
gone too far by instituting procedures which effectively limit the underlying speech.
Therefore, the essential consideration is how severe a burden a particular regulation
effectively places on the underlying speech. See Timmons, 520 U.S. at 358.
Rules which place a significant and substantial obstacle in an initiative
proponent’s way face strict scrutiny. An election law will face strict scrutiny where, for
example, the evidence shows that it severely burdens speech due to restrictions on
campaign expenditures, reductions in the available pool of circulators or other
supporters, or that it seriously discourages participation by eliminating the anonymity of
participants. In these cases, the state bears the burden of proving that the regulation is
narrowly tailored to serve a compelling state interest. Yes On Term Limits, Inc. v.
Savage, 550 F.3d 1023, 1028 (10th Cir. 2008).
At the same time, where the evidence shows that a law regulating the initiative
process does not impose a severe burden on the underlying speech it need only pass a
balancing test. This is because “there is a crucial difference between a law that has the
‘inevitable effect’ of reducing speech because it restricts or regulates speech, and a law
that has the ‘inevitable effect’ of reducing speech because it makes particular speech
less likely to succeed.” Initiative and Referendum Institute v. Walker, 450 F.3d 1082,
1100 (10th Cir. 2006); see also Campbell, 203 F.3d at 743 (“Petitioner proceeds from
the erroneous assumption that a law that imposes any burden upon the right to vote
9
must be subject to strict scrutiny. . . . [T]o subject every voting regulation to strict
scrutiny . . . would tie the hands of States seeking to assure that elections are operated
equitably and efficiently.”).
Under the balancing test, a court must balance “the character and magnitude of
the asserted injury to the rights protected by the First and Fourteenth Amendments that
the plaintiff seeks to vindicate” with “the precise interests put forward by the State as
justifications for the burden imposed by its rule.” Campbell, 203 F.3d at 742-43 (quoting
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)); see also Timmons, 520 U.S. at
358; Burdick v. Takushi, 504 U.S. 428, 434 (1992). The Court must evaluate “the
legitimacy and strength” of each of the State’s purported interests; however, in doing
so, the Court “also must consider the extent to which those interests make it necessary
to burden the plaintiff’s rights.” Campbell, 203 F.3d at 743 (quoting Anderson, 460 U.S.
at 789); see also Timmons, 520 U.S. at 358; Burdick ,504 U.S. at 434. Although “a
State’s important regulatory interests will usually be enough to justify reasonable,
nondiscriminatory restrictions,” Timmons, 520 U.S. at 358, that determination is not
automatic.
With these principles in mind, the Court will evaluate the burden imposed by
each of the challenged provisions and apply the corresponding level of scrutiny.
C.
First Claim for Relief
Plaintiffs’ first claim for relief alleges that Colo. Rev. Stat. § 1-40-112(1) violates
the free speech protections of the First Amendment. Section 1-40-112(1) states that:
“No person shall circulate a petition for an initiative or referendum measure unless the
10
person is a resident of the state, a citizen of the United States, and at least eighteen
years of age at the time the petition is circulated.”
On April 18, 2011, pursuant to the State Administrative Procedure Act, Colo.
Rev. Stat. § 24-4-103, the Secretary amended the Colorado Secretary of State Election
Rules via formal rule making and adopted Rule 15.3.2. Docket No. 144 at 12. Rule
15.3.2 states in relevant part:
The petition circulator shall provide his or her permanent residence
address as defined in paragraph (a) of this rule on the circulator affidavit.
In addition to providing his or her permanent residence address, if the
circulator is not a permanent resident of Colorado as described in section
1-2-102(1)(a)(i), C.R.S., and paragraph a of this rule, the circulator shall
also provide the address in Colorado where he or she is temporarily living
as of the date the affidavit is signed.
...
b. For the purposes of petition circulator residence address, a homeless
circulator shall provide the address or location where he or she is living as
of the date the affidavit is signed.
8 Colo. Code Regs. § 1505-1:15.3.2 (emphasis added). Rule 15.3.2 allows
non-residents to circulate petitions for an initiative or referendum as long as the
circulator provides “his or her permanent address” and provides the address in
Colorado where “he or she is temporarily living as of the date the affidavit is signed.” 8
Colo. Code Regs. § 1505-1:15.3.2.
Plaintiffs argue that § 1-40-112(1) excludes non-residents from participating in
petition activities within Colorado, which severely burdens the free speech rights of all
non-residents. Plaintiffs rely on Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023
(10th Cir. 2008), which held that a blanket ban on non-resident circulators violated the
First and Fourteenth Amendments to the United States Constitution. Id. at 1031.
11
Additionally, plaintiffs challenge the legality of Rule 15.3.2, arguing that the Secretary
lacks the authority to enact rules that are inconsistent with governing statutes. Docket
No. 164 at 17. Moreover, plaintiffs claim that, because the Secretary retains the
authority to amend the rule, plaintiffs are subject to an ongoing threat of enforcement.
Id. at 19.
The Secretary does not contest the applicability of Yes on Term Limits to the
facts of this case. Instead, the Secretary responds that, via formal rulemaking, he has
adopted a limiting construction of the two statutes that will “hew as closely as possible
to the Colorado legislature’s original intent.” Docket No. 144 at 12. The Secretary
claims that rules adopted pursuant to formal rulemaking have the force and effect of
law. Id.
Under Colorado law, where a statute contains plain, clear, and unambiguous
language, a court does not resort to interpretive rules to construe its meaning. Carrara
Place, Ltd. v. Arapahoe Cnty. Bd. of Equalization, 761 P.2d 197, 202 (Colo. 1988). A
court’s task is to give full effect to the legislative intent, Skruch v. Highlands Ranch
Metro. Dist. Nos. 3 & 4, 107 P.3d 1140, 1142 (Colo. App. 2004), and to give effect to
that intent, courts look to the words used, reading them in context and according them
their plain and ordinary meaning. Id. Moreover, a court need not resort to extrinsic
modes of statutory construction unless the statutory language is ambiguous. Dep’t of
Revenue v. Woodmen of the World, 919 P.2d 806, 809 (Colo. 1996).
As a general matter, courts must give deference to the reasonable
interpretations of administrative agencies that are authorized to administer and enforce
12
the law. Coffman v. Colo. Common Cause, 102 P.3d 999, 1005 (Colo. 2004). And, in
the case of federal courts reviewing state administrative rules, a federal court should
give “deference to a state administrative agency’s interpretation and application of a
state statute which it is charged with administering.” Macias v. N.M. Dep’t of Labor, 21
F.3d 366, 369 (10th Cir. 1994). Even though an agency’s interpretation should be given
appropriate deference, its interpretation is not binding on the court. Coffman, 102 P.3d
at 1005; see also U.S. W. Commc’ns, Inc. v. Hix, 986 F. Supp. 13, 16 (D. Colo. 1997)
(“federal courts do not defer to state agencies on questions of federal law”). Moreover,
deference is not appropriate if the agency’s “statutory interpretation would defeat the
General Assembly’s intent in enacting the statute or is contrary to the plain meaning of
the statute.” Bd. of Cnty. Comm’rs v. Colo. Public Utilities Comm’n, 157 P.3d 1083,
1089 (Colo. 2007); Colo. Ethics Watch v. Clear the Bench Colo., --- P.3d ----, 2012 WL
866861, at *7 (Colo. App. March 15, 2012).
Section 1-40-112(1) states that “[n]o person shall circulate” petitions within the
State of Colorado “unless the person is a resident of the state.” Colo. Rev. Stat.
§ 1-40-112(1). The Secretary argues that Rule 15.3.2 is not inconsistent with
§ 1-40-112(1) because the provision does not expressly define the term “resident” and
therefore temporary residents fall within the definition of resident. Docket No. 233 at 9.
The Court finds this argument unconvincing.
The General Assembly has stated that, for purposes of determining the
“residence” of a person intending to register to vote or to vote in Colorado, the
“residence of a person is the principal or primary home” of a person and is that home to
13
which a person “has the present intention of returning after a departure.” Colo. Rev.
Stat. § 1-2-102. The term “resident” is also used consistently in other Colorado statutes
regulating the voting process. See Colo. Rev. Stat. § 1-2-102(1)(d) (to register as a
voter a “person shall not be considered to have gained a residence in this state, or in
any county or municipality in this state, while retaining a home or domicile elsewhere”);
see also Colo. Rev. Stat. § 31-10-201(3)(a) (“The residence of a person is the principal
or primary home or place of abode of a person.”). Colorado courts generally presume
that the legislature has knowledge of the legal import imparted by chosen words and
phrases. See People v. Rockwell, 125 P.3d 410, 417 (Colo. 2005).
Furthermore, Colo. Rev. Stat. § 1-40-111(2)(a), another section of H.B. 1326,
requires that a circulator both provide the address where he or she resides and avow
that he or she is a resident of Colorado. If the General Assembly intended for the term
“resident” to include temporary residents, it would have been sufficient for a circulator to
list his or her address in Colorado in order to satisfy the “resident” requirement in
§ 1-40-111(2)(a). However, because § 1-40-111(2)(a) requires a circulator both to
provide an address and to affirm his residency, a circulator needs more than just a
temporary address in Colorado. If the Court were to accept the Secretary’s proposed
construction, one of the requirements of § 1-40-111(2)(a) would be superfluous.
However, a statute must be read in order to give effect to all of its clauses. Thermo
Dev., Inc. v. Central Masonry Corp., 195 P.3d 1166, 1168 (Colo. App. 2008).
Given that the General Assembly has used the term “resident” consistently in
other statutes related to the voting process to exclude temporary residents, the Court
construes § 1-40-112(1) to forbid non-residents from circulating petitions within
14
Colorado. See People v. Bowers, 801 P.2d 511, 524 (Colo. 1990) (cardinal rule of
statutory construction that a term which has acquired “a technical or particular meaning,
whether by legislative definition or otherwise, should be construed according to its
acquired meaning.”); see also Nat’l Farmers Union Property & Cas. Co. v. Estate of
Mosher, 22 P.3d 531, 533 (Colo. App. 2000) (when a “statute defines a term, that term
must ordinarily be given its statutory meaning.”). Although a federal court must uphold
a statute if it is readily “susceptible to a narrowing construction that would make it
constitutional,” courts should not “rewrite a state law to conform it to constitutional
requirements.” Citizens for Responsible Gov’t State Political Action Comm. v.
Davidson, 236 F.3d 1174, 1194 (10th Cir. 2000) (citation omitted). Here, the language
of the statute is clear in forbidding non-residents from circulating petitions, and the
statute is not susceptible to any other reasonable interpretation. See Colo. Dep’t of
Revenue v. Woodmen of the World, 919 P.2d 806, 809 (Colo. 1996) (when a statute is
unambiguous, courts need not resort to extrinsic modes of statutory construction).
Because the Secretary’s Rule allows temporary non-residents to circulate
petitions within Colorado, it is contrary to the plain language of § 1-40-112(1). See
Golden Aluminum Co. v. Weld Cnty. Bd. Of Cnty. Comm’rs, 867 P.2d 190, 192 (Colo.
App. 1993) (rejecting an agency interpretation that was contrary to the plain meaning of
the statute). To the extent that the Secretary argues that he has the authority to
promulgate rules and regulations that have the force and effect of law, Cornerstone
Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo. App. 1992), it is
axiomatic that an administrative rule is not the equivalent of a statute. Id. at 1149.
15
Thus, because the Secretary’s rule is contrary to law, it is not entitled to deference.
See Colo. Consumer Health Initiative v. Colo. Bd. of Health, 240 P.3d 525, 528 (Colo.
App. 2010) (“[an agency] rule may not modify or contravene an existing statute, and any
rule that is inconsistent with or contrary to a statute is void.”); Suetrack USA v. Indus.
Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995) (any regulation that is contrary to
or inconsistent with the regulatory authorizing statute is void). The Court finds that the
Secretary is not entitled to summary judgment on this claim.
D. Second Claim for Relief
Plaintiffs’ second claim for relief challenges the legality of § 1-40-111(2)(b)(I)(C).
Docket No. 164 at 19-20. Section 1-40-111(2)(b) states:
(I) A notary public shall not notarize an affidavit required pursuant to
[§ 1-40-111(2)(a)] unless:
...
(C) The circulator presents a form of identification, as such term is defined
in section 1-1-104(19.5). A notary public shall specify the form of
identification presented to him or her on a blank line, which shall be part
of the affidavit form.
Colo. Rev. Stat. § 1-40-111(2)(b)(I)(C). Plaintiffs claim that this section of the statute is
unconstitutional because it excludes non-resident circulators. Plaintiffs argue that,
because § 1-40-111(2)(a) expressly requires circulators to show proof of residency in
Colorado, § 1-40-111(2)(b)(I)(C) incorporates the residency requirement by
cross-referencing § 1-40-111(2)(a). Docket No. 164 at 20. In other words, plaintiffs
argue that, in addition to requiring identification, § 1-40-111(2)(b)(I)(C) also requires that
circulators show proof of Colorado residency.
16
Under § 1-40-111(2)(b)(I)(C), a circulator must provide a form of identification as
defined in § 1-1-104(19.5). Paragraph (b) of subsection 19.5 states “[a]ny form of
identification indicated in paragraph (a) of this subsection (19.5) that shows the address
of the eligible elector shall be considered identification only if the address is in the state
of Colorado.” Colo. Rev. Stat. § 1-1-104(19.5)(b). Despite this fact, § 1-1-104(19.5)
lists several permissible forms of identification for which Colorado residency is not a
prerequisite. See id. (permissible identification includes birth certificate, medicare or
medicaid card, United States passport, etc.). Additionally, an individual need not reside
in Colorado in order to obtain state-issued identification. See Colo. Rev. Stat.
§ 42-1-102(81) (a person who has obtained gainful employment in the state may obtain
Colorado identification). Thus, although § 1-1-104(19.5)(b) requires that, if any form of
identification shows an address, it show an address located in Colorado, this does not
convert § 1-40-111(2)(b)(I)(C) into a residency requirement.
The Court finds plaintiffs’ interpretation of § 1-40-111(2)(c) unpersuasive. First,
the provisions of § 1-40-111(2)(c) are directed at the Secretary of State, while those of
§ 1-40-111(2)(b)(I)(C) are directed at notaries public. Although both sections reference
each other, plaintiffs fail to explain how these two provisions expressly incorporate each
other’s terms. The natural interpretation of the statute is to read § 1-40-111(2)(b)(I)(C)
as directing the notary public to verify a circulator’s identification to ensure that the
circulator is the person named in the affidavit. On the other hand, § 1-40-111(2)(c)
requires the Secretary to reject petitions that lack a “valid notarized affidavit” that
complies with §§ 1-40-111(2)(a) and (b). Similarly, § 1-40-111(2)(b)(I)(C) does not
require that a notary public ensure that the contents of the affidavit in § 1-40-111(2)(a)
17
are accurate. Accordingly, because § 1-40-111(2)(b)(I)(C) does not contain a residency
requirement, it does not restrict the ability of non-resident circulators to gather
signatures in Colorado.
Given that § 1-40-111(2)(b)(I)(C) does not restrict non-resident circulators from
signature-gathering activities, this section does not severely burden plaintiffs’ First
Amendment rights. Plaintiffs do not otherwise argue that § 1-40-111(2)(b)(I)(C) is
unconstitutional if it does not include a residency requirement. Therefore, the Court
finds that there are no genuine disputes of material fact as to the constitutionality of
§ 1-40-111(2)(b)(I)(C), and the Secretary is entitled to summary judgment on plaintiffs’
second claim for relief.
E. Third Claim for Relief
Plaintiffs’ third claim for relief challenges the legality of the “call-back” provision in
Colo. Rev. Stat. §§ 1-40-111(2)(a) and 1-40-111(3)(a). Section 1-40-111(2)(a) states:
[t]o each petition section shall be attached a signed, notarized, and dated
affidavit executed by the person who circulated the petition section, which
shall include . . . that he or she understands that failing to make himself or
herself available to be deposed and to provide testimony in the event of a
protest shall invalidate the petition section if it is challenged on the
grounds of circulator fraud.
Section 1-40-111(3)(a) states:
As part of any court proceeding or hearing conducted by the secretary of
state related to a protest of all or part of a petition section, the circulator of
such petition section shall be required to make himself or herself available
to be deposed and to testify in person, by telephone, or by any other
means permitted under the Colorado rules of civil procedure. Except as
set forth in paragraph (b) of this subsection (3), the petition section that is
the subject of the protest shall be invalid if a circulator fails to comply with
the requirement set forth in this paragraph (a) for any protest that includes
an allegation of circulator fraud that is pled with particularity regarding:
18
(I)
Forgery of a registered elector’s signature;
(II)
Circulation of a petition section, in whole or part, by anyone
other than the person who signs the affidavit attached to the
petition section;
(III)
Use of a false circulator name or address in the affidavit; or
(IV)
Payment of money or other things of value to any person for
the purpose of inducing the person to sign the petition.
Colo. Rev. Stat. § 1-40-111(3)(a).
In their second amended complaint, plaintiffs asserted that the call-back
provision severely burdened their rights to free speech because it coerced circulators to
“bind themselves for an indefinite period to the State of Colorado thereby” decreasing
the pool of available circulators. Docket No. 47 at 15. However, in response to the
summary judgment motion, plaintiffs now allege that the State has failed to identify a
legitimate interest to burden their First Amendment rights through the call-back
provision. Docket No. 164 at 21. Plaintiffs argue that the call-back provision only
furthers the interest of opponents of proposed petitions and the state has no colorable
interest in favoring either the proponent or the opponent to a petition. Id. at 22.
The legislative findings of H.B. 1326 concluded that, in order for the initiative
process to operate honestly, it was essential for circulators to verify all elements of their
affidavits and make themselves available to the Secretary for a determination of the
petition’s sufficiency. Colo. Rev. Stat. § 1-40-101(2)(c). In Yes on Term Limits, the
Tenth Circuit acknowledged that the State of Oklahoma had a legitimate interest in
protecting the integrity of the petition process by requiring circulators to return to the
state for petition challenges. 550 F.3d at 1029. The Tenth Circuit concluded, however,
19
that Oklahoma’s proposed scheme was not narrowly tailored to further that interest.
Similarly, in Chandler v. City of Arvada, Colo., 292 F.3d 1236 (10th Cir. 2002), the
Tenth Circuit found that the City of Arvada had a compelling interest in its call-back
provision (Arvada could require that a “circulator agree to submit to the jurisdiction of
the Arvada Municipal Court”), but that the provision was not narrowly tailored to meet its
interest. 292 F.3d at 1244. Given that numerous courts have found that states have an
interest in ensuring the reliability and honesty of the ballot and initiative process, the
Secretary has identified a legitimate state interest in the call-back provision. See
Buckley, 525 U.S. at 187 (there must be substantial regulation of elections if they are to
be fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic process); Am. Constitutional Found., 120 F.3d at 1098 (the state has
interest in both candidate elections and ballot issues); Campbell, 203 F.3d at 741 (the
Colorado General Assembly has authority to adopt legislation designed to prevent fraud
or mistake or other abuses in petition process).
The Secretary has presented evidence showing that the call-back provision will
have no measurable impact on the pool of available circulators. See, e.g., Docket No.
146-1 at 7 (Lamm Consulting Dep. 155:1-2) (the need to make circulators available for
depositions by telephone did not pose a problem for the majority of the petition
circulators). One of plaintiffs’ experts, Edward Agazarm, agrees that the circulator
availability agreement is unlikely to deter circulators who wish to work in Colorado. See
Docket No. 144-9 at 1 (Agazarm Dep. 275:21-23). Based on the undisputed record, the
20
Court is satisfied that the call-back provision would not discourage participation by
professional circulators or others in the petition gathering process.
As stated earlier, although not identified in their second amended complaint,
plaintiffs argue in response to the Secretary’s motion that the call-back provision
burdens their First Amendment rights. Plaintiffs present an affidavit from Jennifer
Gratz, an employee of the Civil Rights Institute and American Civil Rights Coalition.
Docket No. 164-10. Ms. Gratz states that the “availability” requirement could
significantly increase legal costs by encouraging and permitting political opponents to
depose multiple petition circulators. Docket No. 164-10 at 3, ¶ 10. However, Ms. Gratz
does not explain how the call-back provision increases the costs of legal challenges to
initiative proponents compared to the previous system of petition challenges. Given
that the statute expressly allows for depositions by telephone, challenges to circulators’
signatures are no more costly for in-state circulators than they would be for those
located outside of Colorado. Moreover, to the extent Ms. Gratz anticipates frivolous
challenges, Colo. Rev. Stat. § 1-40-118(2.5)(b) allows for the recovery of attorney’s
fees if the challenge is found to lack “substantial justification.” The Court finds that Ms.
Gratz’s affidavit is not persuasive because it does not adequately explain why signature
gathering costs would increase because of the call-back provision.
Plaintiffs also present an affidavit from plaintiff Jon Caldara, a proponent of
initiatives, to show that the call-back provision chilled his participation in the initiative
process. Docket No. 166-7. The Court finds that Mr. Caldara’s affidavit also fails to
raise any genuine dispute of fact regarding burdens on plaintiffs’ First Amendment
Rights. Mr. Caldara’s affidavit does not explain how the call-back provision has chilled
21
his rights, id. at 4, ¶¶ 13-14, and like Ms. Gratz’s affidavit, fails to explain how it would
increase the costs of legal challenges to proponents compared to the previous system.
Accordingly, plaintiffs’ evidence fails to show the severity of the burden the call-back
provision imposes on their First Amendment rights. Because the evidence presented
by the Secretary shows that the call-back provision imposes no more than a slight
burden on petition entities, the Court applies a balancing test.
As noted above, the state has an important interest in protecting the legitimacy
of the petition process. The circulator availability requirement is legitimately related to
that interest. Although the opponent of a petition may gain some advantage from
challenging petition signatures, the incremental burden from this provision is small and
there is a benefit to the integrity of the initiative process in an impartial determination of
the validity of signatures. Because the state has a strong interest in maintaining the
integrity of the petition process and the statute imposes little or no burden on plaintiffs’
rights, the Court finds that the state’s interest outweighs the minimal burden imposed
on plaintiffs. Accordingly, the Secretary is entitled to summary judgment on plaintiffs’
third claim for relief.
F. Fourth Claim for Relief
Plaintiffs’ fourth claim for relief alleges that Colorado Revised Statutes
§ 1-40-112(3) violates the free speech protections of the First Amendment. This
provision states:
The secretary of state shall develop circulator training programs for paid
and volunteer circulators. Such programs shall be conducted in the
broadest, most cost-effective manner available to the secretary of state,
including but not limited to training sessions for persons associated with
the proponents or a petition entity, as defined in section 1-40-135(1), and
22
by electronic and remote access. The proponents of an initiative petition
or the representatives of a petition entity shall inform paid and volunteer
circulators of the availability of these training programs as one manner of
complying with the requirement set forth in the circulator’s affidavit that a
circulator read and understand the laws pertaining to petition circulation.
Colo. Rev. Stat. § 1-40-112(3). According to § 1-40-135(2)(a):
It is unlawful for any petition entity to provide compensation to a circulator
to circulate a petition without first obtaining a license therefor from the
secretary of state. The secretary of state may deny a license if he or she
finds that the petition entity or any of its principals have been found, in a
judicial or administrative proceeding, to have violated the petition laws of
Colorado or any other state and such violation involves authorizing or
knowingly permitting any of the acts set forth in paragraph (c) of this
subsection (2), excluding subparagraph (V) of said paragraph (c). The
secretary of state shall deny a license:
(I)
Unless the petition entity agrees that it shall not pay a
circulator more than twenty percent of his or her
compensation on a per signature or per petition basis; or
(II)
If no current representative of the petition entity has
completed the training related to potential fraudulent activities
in petition circulation, as established by the secretary of state,
pursuant to section 1-40-112(3).
Colo. Rev. Stat. § 1-40-135(2)(a).
Plaintiffs argue that the petition entity training provision is unconstitutional
because it grants the Secretary unfettered discretion to expand the requirements of
state mandated training. Docket No. 164 at 24. Plaintiffs state that the enforcement
provisions of H.B. 1326 require that a petition entity complete state-mandated training
before meeting the eligibility requirements to obtain a license. Docket No. 164 at 23.
Plaintiffs argue that, because the statute provides the Secretary with unlimited
discretion in devising the training program, the Secretary can devise costly and
burdensome multi-day training as a condition to obtain a license. Id. at 24. Plaintiffs
23
claim that state-mandated training is a form of prior restraint as costly training could
delay petition entities’ ability to obtain a license indefinitely, thereby chilling their
speech. Id. Plaintiffs also contend that state-mandated training would reduce the
number of persons lawfully able to circulate petitions. Id.
As a threshold matter, the Court notes that nothing in the record supports
plaintiffs’ argument that the state-mandated training would reduce the pool of
circulators. First, the training requirement is directed at petition entities, not circulators,
and therefore does not directly impact the pool of circulators. Additionally,
Rule 30(b)(6) deposition testimony from Lamm Consulting, one of plaintiffs’ witnesses,
shows that the Secretary’s current training requirement has had no measurable impact
on circulators’ willingness to work in Colorado. See Docket No. 146-1 at 5 (Lamm
Consulting Dep. 152:4-7) (none of the circulators refused to work on the petition drive
because of the petition training).
Unlike adverse action taken in response to actual speech, a prior restraint chills
potential speech before it happens. Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192, 1209 (10th Cir. 2007). In the case of licenses, the concern is that a
party will have to refrain from speaking while it awaits a decision from the licensing
authority. Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150, 1163 (10th Cir. 2006). A
scheme of prior restraint could also give public officials the power to deny the use of a
forum in advance of actual expression. See, e.g., Am. Target Adver., Inc. v. Giani, 199
F.3d 1241, 1250 (10th Cir. 2000) (a law banning solicitation activity before complying
with registration requirements). Nevertheless, assuming the state’s petition entity
24
training requirement here qualifies as a form of prior restraint, the training requirement
is not per se unconstitutional. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 558 (1975) (noting that prior restraints are not unconstitutional per se). Generally,
a system of prior restraint is unconstitutional if it contains two features: first, it places
“‘unbridled discretion in the hands of a government official or agency”; and second, it
fails to place limits on the time within which the decisionmaker must act.1 See FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 225-26 (1990).
As to the issue of discretion, a law subjecting the exercise of First Amendment
freedoms to instances of prior restraint must contain narrow, objective, and definite
standards to guide the decisionmaker. Forsyth Cnty. v. Nationalist Movement, 505 U.S.
123, 131 (1992). Such standards provide guideposts that check the decisionmaker and
allow courts to quickly and easily determine whether the decisionmaker is discriminating
against disfavored speech. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
758 (1988). However, laws that are content neutral are not subject to the strictest of
procedural safeguards. Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002).
Here, the Court finds that § 1-40-112(3) does not give the Secretary unbridled
discretion in the development of the training program. Section 1-40-112(3) requires that
the Secretary use the “most cost-effective” measures to develop training programs
including “electronic and remote access” training sessions. Colo. Rev. Stat.
§ 1-40-112(3). This language evinces a legislative intent that the Secretary adopt a
training program that is convenient and accessible to petition entities. The Secretary
1
Neither side argues that the time limit feature is implicated by the
state-mandated training requirement.
25
has provided evidence showing that the current petition training course is not unduly
burdensome for petition entities.2 Plaintiffs’ Rule 30(b)(6) witness from Lamm
Consulting stated in his deposition that it was not burdensome to complete the
Secretary’s training program. See Docket No. 146-1 at 12 (Lamm Consulting Dep.
298:12-18). Mr. Kennedy, of Kennedy Enterprises, another of plaintiffs’ witnesses, also
believed that the Secretary’s current training program was not demanding since it only
required reading a 43-page booklet. See Docket No. 146-2 at 1 (Kennedy Dep.
32:12-24). Moreover, plaintiffs have failed to provide evidence showing that the
Secretary’s current training program is burdensome, that the current training unduly
restricts their ability to run petition campaigns, or that there is any likelihood that the
Secretary will impose more burdensome training requirements in the future.3
Accordingly, the Court finds that the statute’s training requirement is not a severe
burden on plaintiffs’ First Amendment rights and therefore applies a balancing test.
Professional circulators usually work in various states and therefore are subject
to a variety of state laws. In the legislative findings, the General Assembly determined
that certain circulators were circulating petition sections “without even a rudimentary
understanding of the [state’s] legal requirements.” Colo. Rev. Stat. § 1-40-101(2)(a)(I).
In instituting the training program, the Secretary claims that Colorado has a significant
2
The Secretary’s current training program consists of reading a 43-page booklet
and signing an affirmation of having done so. Docket No. 144-5.
3
Plaintiffs’ argument that $100 could be burdensome for some petition entities is
unconvincing. Docket No. 164 at 3, ¶ 12. Given that petition campaigns generally cost
over $100,000, see Docket No. 164-5 (gathering 130,000 signatures at $2.20 per
signature), a requirement that an entity pay $100 to inform itself of Colorado law is a
minimal burden.
26
interest in ensuring that petition entities are knowledgeable about Colorado law in order
to inform paid or unpaid circulators about the state’s statutory requirements. The Court
agrees. Because plaintiffs have failed to provide evidence showing the severity of the
burden imposed on their petition activity, the balancing of the interests weighs in the
favor of the state. Accordingly, the Court finds that there are no genuine questions of
material fact with regard to this claim and the Secretary is entitled to summary judgment
on plaintiffs’ fourth claim for relief.
G. Fifth Claim for Relief
Plaintiffs’ fifth claim for relief challenges the constitutionality of § 1-40-112(4) also
known as the “partial pay ban” provision. Section 1-40-112(4) states that “[i]t shall be
unlawful for any person to pay a circulator more than twenty percent of his or her
compensation for circulating petitions on a per signature or petition section basis.”
Colo. Rev. Stat. § 1-40-112(4). Section 1-40-112(4) does not strictly prohibit paying
petition circulators by the number of signatures that they gather, but does limit
per-signature compensation to 20% of a circulator’s overall compensation. Plaintiffs
argue that restricting pay-per-signature compensation to only twenty percent of
circulators’ overall earnings severely burdens their First Amendment rights. Docket No.
164 at 26.
The Secretary concedes that “balancing the burden of a law with the state’s
justifications for it is a fact-intensive inquiry” and that “[s]ome genuine factual disputes
may exist.” Docket No. 233 at 17-18. However, the Secretary believes that plaintiffs
have failed to raise genuine issues of material fact as to whether the hybrid payment
law will shrink the pool of circulators or convert signature gatherers from independent
27
contractors to employees. Thus, the Secretary requests entry of partial summary
judgment as to those subsidiary issues in plaintiffs’ fifth claim for relief.
The parties have submitted sharply contrasting evidence on the issue of whether
§ 1-40-112(4) will shrink the pool of circulators. The Court finds that there exist genuine
issues of material fact which preclude summary judgment on this issue. The resolution
of that issue must await trial. Similarly, the Court finds that factual disputes preclude
summary judgment on the “independent contractor” versus “employee” issue. The
determination of this issue by state taxing entities is a fact-intensive inquiry. It is no less
so when done as to prove or disprove a collateral consequence, as in this case. The
resolution of the factual disputes at trial will allow the Court to apply Colorado law to
determine what impact, if any, the circulators’ employment status under the Colorado
Employment Security Act will have on the overall costs of securing a petition on a
statewide ballot.
The Court will deny defendant’s motion for summary judgment as to the plaintiffs’
fifth claim for relief.
H. Sixth Claim for Relief
The Secretary states that the ruling in Hayes v. Buescher, Case No.
2010-cv-6078, from the Denver District Court has mooted this issue. Docket No. 144-7.
Plaintiffs do not disagree. Accordingly, the Court dismisses this claim as moot.
28
I. Seventh Claim for Relief
Plaintiffs state that Rule 15.2.2 as promulgated by the Secretary cures their
unconstitutional vagueness claim. Docket No. 164 at 38. Accordingly, the Court
dismisses this claim as moot.
J. Eighth Claim for Relief
Plaintiffs’ eighth claim for relief alleges that Colorado Revised Statutes
§ 1-40-135(2)(a) and § 1-40-135(2)(c) violate the free speech protections of the First
Amendment. According to § 1-40-135(2)(a):
It is unlawful for any petition entity to provide compensation to a circulator
to circulate a petition without first obtaining a license therefor from the
secretary of state. The secretary of state may deny a license if he or she
finds that the petition entity or any of its principals have been found, in a
judicial or administrative proceeding, to have violated the petition laws of
Colorado or any other state and such violation involves authorizing or
knowingly permitting any of the acts set forth in paragraph (c) of this
subsection (2), excluding subparagraph (V) of said paragraph (c). The
secretary of state shall deny a license:
(I)
Unless the petition entity agrees that it shall not pay a
circulator more than twenty percent of his or her
compensation on a per signature or per petition basis; or
(II)
If no current representative of the petition entity has
completed the training related to potential fraudulent activities
in petition circulation, as established by the secretary of state,
pursuant to section 1-40-112(3).
Section 1-40-135(2)(c) states:
The secretary of state shall revoke the petition entity license if, at any time
after receiving a license, a petition entity is determined to no longer be in
compliance with the requirements set forth in paragraph (a) of this
subsection (2) or if the petition entity authorized or knowingly permitted:
(I)
Forgery of a registered elector’s signature;
29
(II)
Circulation of a petition section, in whole or part, by anyone
other than the circulator who signs the affidavit attached to
the petition section;
(III)
Use of a false circulator name or address in the affidavit;
(IV)
Payment of money or other things of value to any person for
the purpose of inducing the person to sign or withdraw his or
her name from the petition;
(V)
Payment to a circulator of more than twenty percent of his or
her compensation on a per signature or per petition section
basis; or
(VI)
A notary public’s notarization of a petition section outside of
the presence of the circulator or without the production of
the required identification for notarization of a petition
section.
Colo. Rev. Stat. § 1-40-135(2)(c).
Section 1-40-135(2)(a) is an example of a prior restraint on speech as it requires
that a petition entity obtain a license before commencing solicitation activity. However,
as noted above, although the licensing requirement may constitute a prior restraint on
speech, see Am. Target Adver., 199 F.3d at 1250, such licensing requirements may
survive a constitutional challenge if they contain narrow, objective, and definite
standards to guide the licensing authority. Forsyth Cnty., 505 U.S. at 131. Additionally,
as long as the statute’s licensing requirement is content neutral, it is not subject to strict
procedural safeguards. Thomas, 534 U.S. at 322.
In this instance, H.B. 1326 is a content neutral statute, as it does not authorize
the Secretary to pass judgment on the content of the speech. Thomas, 534 U.S. at
322. Additionally, despite plaintiffs’ argument to the contrary, the provision contains
sufficiently precise, clear, and neutral standards that govern when the Secretary can
30
deny, suspend, or revoke a permit. First, the Secretary can only deny a petition if (1)
the petition entity has not completed petition entity training, (2) the petition entity
violated § 1-40-112(4), or (3) the petition entity violated petition election law. Colo. Rev.
Stat. § 1-40-135(2)(a). Second, the Secretary may only revoke a petition entity’s
license if the entity knew or authorized (1) forgery of an elector’s signature, (2) a petition
not circulated by the circulator who signed the affidavit, (3) use of a false circulator’s
name or address, (4) paying an elector to sign a petition, (5) violations of § 1-40-112(4),
or (6) signing a circulator’s affidavit outside the presence of a notary. Colo. Rev. Stat.
§ 1-40-135(2)(c). These standards curtail the Secretary’s discretion when granting a
license.
Additionally, pursuant to Colo. Rev. Stat. § 1-40-135(4), the Secretary is required
to “issue a decision on any application for a new or reinstated license within ten
business days after a petition entity files an application.” The Secretary provides
evidence showing that petition entity licenses are usually granted within one business
day. Docket No. 233-8 at 1, ¶ 8 (“Of the 10 complete applications, three were certified
as licensed petition entities within the same business day, six were certified within one
business day, and one was certified within two business days”); see also Docket No.
233-1 at 2 (Kennedy Dep. 32:7-10) (explaining that his entity obtained a license within
one business day from the Secretary of State); Walker v. Oregon, 2010 WL 1224235,
at *9 (D. Or. March 23, 2010) (finding no unconstitutional restraint when the statute
ordered the Secretary of State to grant licenses within two days of the application).
Because the licensing requirement does not give the Secretary unbridled
discretion, the statute is content neutral, and the statute places limits on the time within
31
which the Secretary must act, the licensing requirement is not an unconstitutional prior
restraint. Moreover, because plaintiffs have failed to present evidence showing the
severity of the burden imposed on their First Amendment rights, the Court applies a
balancing test. The state has an interest in the regulation of the initiative process to
ensure it is fair and honest, which this provision promotes, and plaintiffs have neither
shown a severe burden on their First Amendment rights nor raised a genuine issue of
material fact as to the constitutionality of the licensing provision. Accordingly, the
Secretary is entitled to summary judgment on plaintiffs’ eighth claim for relief.
K. Ninth Claim for Relief
Plaintiffs’ ninth claim for relief alleges that the disclosure provision of
§ 1-40-121(1) violates the free speech protections of the First Amendment. The
parties, however, rely on a prior version of § 1-40-121(1). House Bill 11-1072 amended
the law on June 2, 2011. See 2011 Colo. Sess. Laws 255 (West 2011). The previous
version of § 1-40-121(1) stated:
The proponents of the petition or an issue committee acting on behalf of
the proponents shall file with the official who receives filings under the
“Fair Campaign Practices Act”, article 45 of this title, for the election a
report stating the dates of circulation by all circulators who were paid to
circulate a section of the petition, the total hours for which each circulator
was paid to circulate a section of the petition, and the gross amount of
wages paid for such hours. The filing shall be made at the same time the
petition is filed with the secretary of state. A payment made to a circulator
is an expenditure under article 45 of this title.
Colo. Rev. Stat. § 1-40-121(1) (2010). The new version of Colo. Rev. Stat. § 1-40-121
had an effective date of August 10, 2011. Section 1-40-121 now states:
(2) No later than ten days after the date that the petition is filed with the
secretary of state, the designated representatives of the proponents must
submit to the secretary of state a report that:
32
(a) States the dates of circulation by all circulators who were paid to
circulate a section of the petition, the total hours of which each circulator
was paid to circulate a section of the petition, the gross amount of wages
paid for such hours, and any addresses used by circulators on their
affidavits that the designated representatives or their agents have
determined, prior to petition filing, to be false addresses;
(b) Includes any other expenditures made by any person or issue
committee related to the circulation of petitions for signatures. Such
information shall include the name of the person or issue committee and
the amount of the expenditure.
Colo. Rev. Stat. § 1-40-121(2) (2012). Since the challenged portions of § 1-40-121
remain virtually unchanged, the record is sufficient for the Court to consider the issue
on summary judgment.
In the Court’s previous Order, the Court enjoined enforcement of § 1-40-121(1)
insofar as it applied to the restriction on pay-per-signature compensation. Docket No.
60 at 37. The Secretary does not dispute that, if the Court invalidates the partial ban on
the pay-per-signature provision in § 1-40-112(4), the portion of the challenged statute
that requires petition entities to report the total number of hours paid should also be
invalidated. Docket No. 144 at 29. However, the Secretary argues that the remainder
of the statute should stand based on the Supreme Court’s ruling in Buckley. Id.
Plaintiffs claim that the disclosure of proponents’ names and total amount spent
to collect signatures is fully vindicated by other Colorado statutes. Id. In particular,
plaintiffs argue § 1-40-121 is unnecessary because § 1-45-108 also requires campaign
disclosures. The Court rejects plaintiffs’ argument that the disclosure requirements of
§ 1-40-121 add “nothing to achieving the state’s asserted interest in identifying the
source and amount of money spent.” Docket No. 164 at 39 (emphasis in original). The
general disclosure requirements of Colo. Rev. Stat. § 1-45-108 are not tailored to the
33
state’s interest in regulating initiative and petition drives. Section 1-45-108 requires
disclosures of contributions to candidates, political committees, and issue committees,
among other things, and is not focused on signature gathering activities. Colo. Rev.
Stat. § 1-45-108(1). Thus, although some provisions of § 1-45-108 may also contain
disclosure requirements, § 1-45-108 does not allow voters to know specifically “who has
proposed [a measure],” and “who has provided funds for its circulation.” Buckley, 525
U.S. at 203.
Plaintiffs also argue that requiring petition entities to report the total hours for
which each circulator was paid, or the gross amount of wages paid for such hours, is
not a compelling state interest because it serves no purpose in identifying the source of
the money spent. Docket No. 164 at 39. As stated in the preliminary injunction order
[Docket No. 72], the Supreme Court’s ruling in Buckley v. Am. Constitutional Law
Foundation, Inc. “was less sympathetic to the loss of anonymity that is felt by those who
fund petition campaigns.” Docket No. 72 at 22. In Buckley, the Supreme Court noted
that “[d]isclosure of the names of initiative sponsors, and of the amounts they have
spent gathering support for their initiatives,” acts as a control or check on the
domination of the initiative process by affluent special interest groups. Buckley, 525
U.S. at 202-03. Such provisions allow voters to remain informed of the source and
amount of money spent by proponents to get a measure on the ballot. Id. Because
§ 1-40-121 does not require that petition entities release the names or addresses of
34
circulators,4 the Court finds that plaintiffs have failed to provide evidence of the severity
of the burden imposed on their First Amendment rights by this provision.
Since its decision in Buckley, the Supreme Court has clarified that a campaign
finance disclosure requirement is constitutional only if it survives exacting scrutiny,
meaning that it is substantially related to a sufficiently important governmental interest.
See Doe v. Reed, --- U.S. ----, 130 S.Ct. 2811 (2010). In Reed, the Supreme Court
examined a statute authorizing disclosure of the signatories to a ballot initiative. Id. at
2818. In explaining why disclosure requirements were not subject to a strict scrutiny
analysis, the Reed Court emphasized that the statute at issue was “not a prohibition on
speech, but instead a disclosure requirement.” Id. “[D]isclosure requirements may
burden the ability to speak, but they ‘impose no ceiling on campaign-related activities’
and do not ‘prevent anyone from speaking.’” Citizens United v. Fed. Election Comm’n,
--- U.S. ----, 130 S.Ct. 876, 914 (2010) (internal citations omitted).
Plaintiffs fail to identify a severe burden on their rights, which might trigger strict
scrutiny, and, as a result, the Court applies exacting scrutiny. To survive exacting
scrutiny, the disclosure provision must bear a substantial relationship to the state’s
informational interest. See Reed, 130 S.Ct. at 2818. Here, the state has a sufficiently
important interest in the disclosure law because, by revealing information about the
4
Newly amended § 1-40-121(2)(a) requires that petition entities report any “false
addresses” to the Secretary. False addresses are places identified in a circulator’s
affidavit that do not represent the circulator’s correct permanent domicile at the time he
or she circulated petitions. Given that the statute only requires the disclosure of invalid
addresses, this provision does not implicate Buckley’s concern that circulators would
“surrender the anonymity” enjoyed by their volunteer circulator counterparts and is
therefore not constitutionally problematic. 525 U.S. at 204.
35
contributors to ballot initiatives, disclosure laws help ensure that voters have the facts
they need to evaluate the various messages competing for their attention. Cf. Human
Life Of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1008 (9th Cir. 2010) (“Campaign
finance disclosure requirements thus advance [an] important and well-recognized
governmental interest”). Additionally, § 1-40-121 is substantially related to the state’s
interest as it limits disclosure requirements to the proponents’ designated
representative5 and only requires the disclosure of payments to circulators made in
furtherance of the petition. See Colo. Rev. Stat. § 1-40-121(2). Therefore, § 1-40-121
is substantially related to the state’s sufficiently important informational interest.
Plaintiffs, on the other hand, present scant evidence about the burdens imposed
on their First Amendment rights by the disclosure provision. They do not assert that the
disclosure requirements have burdened their ability to raise money or place an undue
financial burden on petition entities. Thus, the state’s interest in informing the public
about the sources of funding for ballot measures outweighs the slight burden imposed
on plaintiffs by the reporting requirement. Accordingly, the Court finds that the
Secretary is entitled to summary judgment on this claim to the extent it does not
implicate the injunction on pay-per-signature compensation.
5
A designated representative means a person that represents the proponents in
all matters affecting the petition. Colo. Rev. Stat. § 1-40-102(3.7). Pursuant to
§ 1-40-104, when proponents file a proposed text of the initiative for consideration on
the statewide ballot, they must designated the names and mailing addresses of two
persons to represent proponents in all matters affecting the petition. Colo. Rev. Stat.
§ 1-40-104.
36
L. Tenth Claim for Relief
Plaintiffs’ tenth claim for relief alleges that § 1-40-135(3)(a) violates the free
speech rights guaranteed by the First Amendment. Section 1-40-135(3)(a) states:
Any procedures by which alleged violations involving petition entities are
heard and adjudicated shall be governed by the “State Administrative
Procedure Act,” article 4 of title 24, C.R.S. If a complaint is filed with the
secretary of state pursuant to section 1-40-132(1) alleging that a petition
entity was not licensed when it compensated any circulator, the secretary
may use information that the entity is required to produce pursuant to
section 1-40-121 and any other information to which the secretary may
reasonably gain access, including documentation produced pursuant to
paragraph (b) of subsection (2) of this section, at a hearing. After a
hearing is held, if a violation is determined to have occurred, such petition
entity shall be fined by the secretary in an amount not to exceed one
hundred dollars per circulator for each day that the named individual or
individuals circulated petition sections on behalf of the unlicensed petition
entity. If the secretary finds that a petition entity violated a provision of
paragraph (c) of subsection (2) of this section, the secretary shall revoke
the entity's license for not less than ninety days or more than one hundred
eighty days. Upon finding any subsequent violation of a provision of
paragraph (c) of subsection (2) of this section, the secretary shall revoke
the petition entity’s license for not less than one hundred eighty days or
more than one year. The secretary shall consider all circumstances
surrounding the violations in fixing the length of the revocations.
Colo. Rev. Stat. § 1-40-135(3)(a).
Plaintiffs state that, if the Court finds that the licensing provision is
unconstitutional, then this provision must also be unconstitutional. Docket No. 164 at
39. As previously noted, the licensing and training requirements are permissible
instances of prior restraints on speech. Therefore, given that plaintiffs have no
predicate basis for this claim, there are no genuine material issues of fact and the
Secretary is entitled to summary judgment on plaintiffs’ tenth claim for relief.
37
M. Motion to Strike
The Secretary requests that the Court strike certain portions of plaintiffs’
affidavits pursuant to Rule 56(c)(4) of the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.”).
The Court, however, did not rely upon any of the challenged portions of the declarations
in resolving the motion for summary judgment. See Rich Floors, LLC v. Jaylon, Inc.,
No. 08-cv-02291-LTB-BNB, 2010 WL 1332944, at *11 (D. Colo. April 5, 2010) (denying
the motion to strike portions of affidavits because the court did not consider the
complained-of evidence). Therefore, the pending motion to strike is denied as moot.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Secretary’s Motion for Summary Judgment [Docket No. 143] is
GRANTED in part and DENIED in part. It is further
ORDERED that the Secretary’s Motion for Summary Judgment is granted as to
plaintiffs’ Second, Third, Fourth, Eighth, Ninth, and Tenth claims for relief. The Court
denies the Secretary’s Motion for Summary Judgment as to plaintiffs’ First and Fifth
claims for relief. It is further
ORDERED that plaintiffs’ Sixth and Seventh claims for relief are DISMISSED as
moot. It is further
38
ORDERED that the Secretary’s Motion to Strike Portions of Affidavits Submitted
in Support of Plaintiffs’ Response to Motion for Summary Judgment [Docket No. 234] is
DENIED as moot.
DATED April 26, 2012.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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