Coalition for Secular Government v. Gessler

Filing 34

ORDER Certifying Questions Under Fule 21.1, Colo. R. App. P.. re: 33 Notice, by Judge John L. Kane on 10/2/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-1708-JLK-KLM
COALITION FOR SECULAR GOVERNMENT, a Colorado nonprofit corporation,
Plaintiff,
v.
SCOTT GESSLER, in his official capacity as Colorado Secretary of State,
Defendant.
________________________________________________________________________
ORDER CERTIFYING QUESTIONS UNDER RULE 21.1, Colo. R. App. P.
________________________________________________________________________
KANE, J.
In my September 6, 2012, Order staying briefing and ordering a status report (Doc.
25), I asked the parties to address whether the issues in this case are appropriate for
certification to the Colorado Supreme Court under Colo. R. App. P. Rule 21.1. After
reviewing the Joint Status Report and the parties’ expedited briefs on the merits of the
case, I conclude the statutory and rulemaking interpretations necessary to the First
Amendment questions presented are uniquely matters of state law and act sua sponte to
certify them now.
Colorado Appellate Rule 21.1 provides that a federal district court may certify a
question to the state Supreme Court where an action involves “questions of law of this
state which may be determinative of the cause then pending in the certifying court and as
to which it appears to the certifying court there is no controlling precedent in the
decisions of the Supreme Court.” The instant lawsuit is such an action, in that it raises

First Amendment challenges to several provisions of Colorado’s campaign finance law
that remain undefined by the Colorado Constitution, Article XXVIII’s implementing
legislation, or the Colorado courts. Clear guidance from the Colorado Supreme Court as
to the scope and meaning of these challenged provisions is likely determinative of most or
all of the questions presented in this case.
Questions Certified.
Having reviewed the Joint Submission of Questions Proposed for Certification
(Doc. 33), and incorporating by reference the statement of facts set forth therein, I
CERTIFY the following questions to the Colorado Supreme Court:
1.

Is the policy paper published by the Coalition for Secular Government
(CSG) in 2010 “express advocacy” under Art. XXVIII, § 2(8)(a) of the
Colorado Constitution?

2.

If the policy paper is express advocacy, does it qualify for the press
exemption found at Art. XXVIII, § 2(8)(b)?

3.

Is the policy paper a “written or broadcast communication” under § 1-45103(12)(b)(II)(B), C.R.S.? If not, did it become a “written or broadcast
communication” when it was posted to CSG’s blog or Facebook page?

4.

In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), what is the
monetary trigger for Issue Committee status under Art. XXVIII §
2(10)(a)(II) of the Colorado Constitution?

The parties’ Joint Submission is appended to this order for ease of reference by the
Colorado Supreme Court.
Dated October 2, 2012.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01708-JLK
COALITION FOR SECULAR GOVERNMENT,
a Colorado nonprofit corporation,
Plaintiff,
v.
SCOTT GESSLER,
in his official capacity as Colorado Secretary of State,
Defendant.
JOINT SUBMISSION OF QUESTIONS PROPOSED FOR
CERTIFICATION TO THE COLORADO SUPREME COURT
I.

Relevant facts

In November 2002, Colorado voters passed Amendment 27, which
amended Article XXVIII of the Colorado Constitution to include several new
campaign financing provisions that apply to both candidate and ballot
initiative elections. See, e.g., Colorado Right to Life Committee, Inc., v.
Coffman, 498 F.3d 1137, 1139 (10th Cir. 2007). With respect to ballot
initiatives, Amendment 27 sets campaign finance reporting and disclosure
requirements for “issue committees,” which include “any person, other than a
natural person, or any group of two or more persons, including natural
persons: (I) that has a major purpose of supporting or opposing any ballot

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issue or ballot question; [and] 1 (II) that has accepted or made contributions or
expenditures in excess of two hundred dollars to support or oppose any ballot
issue or ballot question.” Colo. Const. art. XXVIII, § 2(10). Section 1-45103(12)(b), C.R.S. (2012) provides a definition of “major purpose.”
Plaintiff Coalition for Secular Government (CSG) is a Colorado nonprofit corporation incorporated on July 17, 2008. Diana Hsieh, Ph.D., is the
founder and president of CSG. She has also served as its registered agent,
both for purposes of its corporate filings and for the issue committees
established by CSG in 2008 and 2010. Consistent with Colorado law, CSG’s
corporate filings do not list any particular purpose. CSG’s website, however,
describes the organization as follows:
The Coalition for Secular Government advocates government solely
based on secular principles of individual rights. The protection of a
person's basic rights to life, liberty, property, and the pursuit of
happiness -- including freedom of religion and conscience -- requires a
strict separation of church and state.
Consequently:
1. We oppose any laws or policies based on religious scripture or
dogma, such as restrictions on abortion and government
discrimination against homosexuals.
2. We oppose any government promotion of religion, such as the
teaching of "intelligent design" in government schools and taxfunded "faith-based initiatives."
Amendment 27 uses the disjunctive “or” instead of “and.” By regulation,
the Secretary has interpreted § 2(10) as requiring both “a major purpose” and
a minimum contribution/expenditure requirement. See Independence
Institute v. Coffman, 209 P.3d 1130, 1135 (Colo. App. 2008)

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3. We oppose any special exemptions or privileges based on religion by
government, such as exemptions for churches from the tax law
applicable to other non-profits.
The only proper government is a secular government devoted to the
protection of individual rights.
The Coalition for Secular Government seeks to educate the public
about the necessary secular foundation of a free society, particularly
the principles of individual rights and separation of church and state.
CSG is not connected with any political candidate or any political party.
CSG’s organizational activities consist of: 1) a blog, 2) public advocacy
including editorials and letters to newspaper editorial pages, and
3) publication and distribution of a “public policy paper” in the months
leading up to the 2008 and 2010 general elections. The blog receives an
approximate average of 5,000 hits per week and is updated, on average, 1-3
times per week with postings discussing philosophy, religion, current events,
public policy issues and other topics. The blog features occasional YouTube
videos covering a topic or series of topics in-depth. CSG also maintains a
Facebook page with more than 200 “likes.” The public policy paper was
published for the first time shortly after CSG’s incorporation in 2008. CSG
updated and expanded the public policy paper in 2010. A copy of the 2010
paper is attached hereto.
Because it spends no money on the blog, all of CSG’s budget has
historically been devoted to publishing and distributing the public policy
paper. In 2008 CSG collected $200 in monetary contributions and $229.25 in
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non-monetary contributions. In 2010, CSG received and spent $2951.16 in
monetary and nonmonetary contributions. In both years, CSG registered as
an issue committee and reported the contributions and expenditures
associated with the public policy paper. CSG’s 2008 issue committee was
established July 29, 2008 and terminated November 30, 2008. CSG’s 2010
issue committee was established September 27, 2010 and terminated April 1,
2011.
CSG plans to update, expand, advertise, and distribute the Public
Policy Paper once again in 2012. CSG plans to raise less than $3,500 for these
activities, but does not intend to file as a Colorado Issue Committee in 2012.
Meanwhile, CSG has continued and will continue to operate its blog,
Facebook page, and other electronic media. CSG intends to update and
expand the Paper in future years, including years in which a Personhood
amendment may appear on the Colorado ballot. 2 These efforts will involve
papers substantially similar to the paper published in 2010.

The Secretary issued a letter of insufficiency to the Personhood proponents
on August 28, 2012. On September 27, 2012, the Personhood proponents
protested the Secretary’s determination in Denver District Court. See § 1-40118, C.R.S. (2012). Because ballots are printed and the counties are in the
process of distributing them, the Personhood Amendment would not appear
on the 2012 ballot even if this challenge were successful. See Buckley v.
Chilcutt, 968 P.2d 112 (Colo. 1998) (if insufficiency determination is
successfully challenged after ballot certification deadline, remedy under state
law is placement of initiative on subsequent general election ballot).

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II. Standard for certification
Colorado Appellate Rule 21.1 permits the Colorado Supreme Court to
answer a question of law certified to it by a United States District Court if
the question “may be determinative of the cause then pending in the
certifying court and as to which it appears to the certifying court there is no
controlling precedent in the decisions of the [Colorado] Supreme Court.”
Colo. App. R. 21.1(a).
CSG’s lawsuit raises First Amendment challenges to several provisions
of Colorado campaign finance law that remain undefined by the Colorado
Constitution, Article XXVIII’s implementing legislation, or caselaw from
Colorado courts. Specifically, this Court has not had an opportunity to
clarify: 1) whether publications such as CSG’s public policy paper qualify as
“express advocacy;” 2) whether publications such as CSG’s public policy paper
qualify for the press exemption of Art. XXVIII, § 2(8)(b) or are “written or
broadcast communications under § 1-45-103(12)(b)(II)(B); 3) the parameters
of assessing what constitutes “a major purpose” of supporting a ballot issue or
ballot question; and 4) the impact that the in Sampson v. Buescher, 625 F.3d
1247 (10th Cir. 2010), had on monetary component of issue committee status
under Art. XXVIII, § 2(10)(a)(II).
Clear guidance from the Colorado Supreme Court as to the scope and
meaning of these challenged provisions is potentially determinative of several
of the questions presented in CSG’s federal lawsuit.

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III.

Questions to be certified:

The following questions shall be certified:
a. Is the policy paper published by CSG in 2010 “express advocacy”
under Art. XXVIII, § 2(8)(a)?
b. If the policy paper is express advocacy, does it qualify for the
press exemption found at Art. XXVIII, § 2(8)(b)?
c. Is the policy paper a “written or broadcast communication”
under § 1-45-103(12)(b)(II)(B)? If not, did it become a “written
or broadcast communication” when it was posted to CSG’s blog
or Facebook page?
d. In light of Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010),
what is the monetary trigger for Issue Committee status under
Article XXVIII § 2(l0)(a)(II)?
Respectfully submitted this 28th day of September, 2012.
JOHN W. SUTHERS
Attorney General
s/Maurice G. Knaizer
MAURICE G. KNAIZER*
Deputy Attorney General
LEEANN MORRILL*
MELODY MIRBABA*
MATTHEW GROVE*
Assistant Attorneys General
Public Officials
State Services Section
Attorneys for Secretary Gessler
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
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Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]
*Counsel of Record
s/ Allen Dickerson
Allen Dickerson
Tyler Martinez
Center for Competitive Politics
124 West Street South
Suite 201
Alexandria, Virginia 22314
[e-mail]
[e-mail]
Attorneys for Coalition for Secular
Government

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