Rocky Mountain Gun Owners et al v. Gessler et al

Filing 39

ORDER denying 33 Motion for TRO; denying 23 Motion for Preliminary Injunction. By Judge Robert E. Blackburn on 12/16/2014.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 1:14-cv-02850
ROCKY MOUNTAIN GUN OWNERS, et al.,
Plaintiffs,
v.
SCOTT GESSLER, et al.,
Defendants.

ORDER DENYING MOTIONS FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Blackburn, J.
This matter is before me on the following: (1) the Motion for Preliminary
Injunction [#23]1 filed November 7, 2014; and (2) the Motion for Temporary
Restraining Order [#33] filed December 8, 2014. Both motions were filed by the
plaintiffs. The defendants filed responses [#26 & #28] to the Motion for Preliminary
Injunction [#23], and the plaintiffs filed a reply [#35]. No response or reply has been
filed concerning the Motion for Temporary Restraining Order [#33]. Both motions
address the same undisputed facts and address the same legal issues. I deny the
motions.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).

1

“[#23]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

II. BACKGROUND
Rocky Mountain Gun Owners (RMGO) and Colorado Campaign for Life (CCFL)
are Colorado non-profit corporations. The stated mission of RMGO is to defend the
right of Coloradans to keep and bear arms. The stated mission of CCFL is to promote
the passage of pro-life legislation and to lobby for support of such public policy
positions. In pursuit of these missions, RMGO and CCFL engage in issue driven
speech to inform Coloradans about the public policy positions of political candidates on
relevant issues.
In June 2014, RMGO and CCFL sent mailers to Republican primary voters in
Colorado Senate Districts 19 and 22. The mailings unambiguously referred to
candidates for office in Colorado and highlighted the track records of candidates on
either gun rights or the protection of unborn life. Each mailing campaign cost more than
1,000 dollars. The mailers were mailed to voters within thirty days of the June 24, 2014,
primary election.
Colorado Ethics Watch (CEW)2 contends the mailers sent by RMGO and CCFL
are subject to certain reporting requirements under Colorado elections law. Neither
RMGO nor CCFL filed reports concerning the communications described above. On
September 9, 2014, CEW filed a complaint with the Colorado Secretary of State,
defendant Scott Gessler, concerning the failure of RMGO and CCFL to file the reports
required by Colorado law. As a result of the complaint filed by CEW, a hearing before
an administrative law judge is scheduled for December 17, 2014. In its present
motions, RMGO and CCFL seek an order enjoining the defendants from proceeding
2

According to the complaint [#1], Colorado Ethics Watch is a trade name under which defendant
Committee for Responsibility and Ethics in Washington (CREW) is registered to operate in Colorado.
Complaint [#1], ¶ 20.

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with the December 17, 2014, hearing and mandating a stay of the state administrative
proceedings until this court can address the constitutional claims of the plaintiffs.
Memorandum of plaintiffs [#34], p.17.
In their complaint [#1], RMGO and CCFL contend, inter alia, that the reporting
provisions of Colorado law concerning electioneering communications are facially
unconstitutional because the definition of “electioneering communication” is too broad
and the spending threshold which triggers the reporting requirement is too low. The
requirements of Colorado law and the enforcement scheme, the plaintiffs contend, have
an unconstitutional chilling effect on their First Amendment freedoms. In addition, the
plaintiffs contend the reporting requirements violate the Colorado Constitution.
A brief summary of the relevant provisions of Colorado law is necessary. Article
XXVIII of the Constitution of the State of Colorado and the Colorado Fair Campaign
Practices Act (FCPA) are the primary campaign finance laws in Colorado. Colo. Const.
art. XXVIII, §§ 1 - 17; §§1-45-101 - 118, C.R.S. These provisions impose various
reporting and disclosure requirements on speakers engaged make an electioneering
communication. An electioneering communication is
[A]ny communication broadcasted by television or radio, printed in a
newspaper or on a billboard, directly mailed or delivered by hand to
personal residences or otherwise distributed that:
(I) Unambiguously refers to any candidate; and
(II) Is broadcasted, printed, mailed, delivered, or distributed
within thirty days before a primary election or sixty days
before a general election; and
(III) Is broadcasted to, printed in a newspaper, distributed to,
mailed to, delivered by hand to, or otherwise distributed to
an audience that includes members of the electorate for
such public office.

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Colo. Const. art. XXVIII, § 2(7); §1-45-103(9), C.R.S. A wide range of communications
are excluded explicitly from the definition of electioneering communication, including
news articles, opinion writings, and certain broadcasts. Colo. Const. art. XXVIII, § 2(7);
§1-45-103(9), C.R.S. However, if a person or entity spends 1,000 dollars or more on
electioneering communications in a calendar year, the person or entity must file an
online transaction report that includes, inter alia, the name of the candidate(s) to which
the communication(s) referred, a report of all spending in excess of 1,000 dollars on
electioneering communications, identifying information for the person or entity, and
certain information about persons contributing money to fund the electioneering
communications. Colo. Const. art. XXVIII, § 6(1); §1-45-108(1)(a)(3), C.R.S.
The Colorado Secretary of State is responsible for promulgating rules for the
administration and enforcement of these provisions. Colo. Const. Art. XXVIII, §§ 8 - 9.
In addition, any person may file with the Secretary of State a complaint seeking
enforcement of these provisions. Colo. Const. Art. XXVIII, § 9(2)(a). When such a
complaint is filed, the Secretary of State is required to refer the complaint to an
administrative law judge. Id. The administrative law judge must hold a hearing within
fifteen days of the reference of the complaint and must render a decision within fifteen
days of the hearing. Id. Such decisions are subject to review by the Colorado Court of
Appeals. Id.
The secretary of state may bring an enforcement action to enforce the decision of
the administrative law judge. Id. If the secretary of state does not bring an enforcement
action, a private party may bring an enforcement action. Id. Violators are subject to a
fine of 50 dollars for each day that the required reports are not filed after they are due.
Colo. Const. Art. XXVIII, § 10(2)(a). On appeal, an administrate law judge may reduce
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or set aside the penalty based on a showing of good cause. Colo. Const. art. XXVIII, §
10(2)(b).
In the briefing on the motions, the parties address the standards applicable to a
motion for temporary restraining order and motion for preliminary injunction. In addition,
the Colorado Secretary of State contends that this court should abstain from exercising
jurisdiction over this case under the abstention doctrine established in Younger v.
Harris, 401 U.S. 37 (1971) and its progeny. I agree with this contention.
III. YOUNGER ABSTENTION
“(F)ederal courts have a virtually unflagging obligation to exercise their
jurisdiction except in those extraordinary circumstances where the order to the parties to
repair to the State court would clearly serve an important countervailing interest.”
Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (internal quotations omitted). “(E)ven
in the presence of parallel state proceedings, abstention from the exercise of federal
jurisdiction is the exception not the rule.” Sprint Communications v. Jacobs, ___ U.S.
___, 134 S.Ct. 584 (2013).
In Sprint Communications, the Supreme Court of the United States
summarized the three types of proceedings in which a federal court should refuse to
decide a case in deference to a parallel state proceeding. First, federal courts abstain
from intruding into ongoing state criminal prosecutions. Id. at ___, 134 S.Ct. at 591.
Second, certain state civil enforcement proceedings warrant federal court abstention.
Id. Third, abstention is warranted when federal court action would interfere with
pending state civil proceedings involving orders uniquely in furtherance of the ability of
state courts to perform their judicial functions. Id.
The Sprint Court addressed the second category, civil enforcement proceedings.
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That category is the only category with potential application in this case. Such
enforcement actions are “characteristically initiated to sanction the federal plaintiff, i.e.,
the party challenging the state action, for some wrongful act.” Id. at ___, 134 S.Ct. at
592. Citing examples of such state civil enforcement proceedings which the Court has
found to be subject to Younger abstention, the court noted cases involving attorney
discipline proceedings for violation of state ethics rules, state-initiated administrative
proceedings to enforce civil rights laws, a state-initiated proceeding to gain custody of
children allegedly abused by their parents, a civil proceeding to recover welfare
payments allegedly obtained by fraud, and a state initiated proceeding to enforce
obscenity laws. Id. at 592 (citing cases). Such administrative proceedings, the Court
noted, generally are invoked to impose a state sanction for a wrongful act, often are
initiated by a state authority, and, at least in those respects, are “akin to a criminal
prosecution.” Id. at 592 - 593 (internal quotation and citation omitted).3
The decision of the Court in Ohio Civil Rights Commission v Dayton Christian
Schools, an example of proper Younger abstention cited in Sprint, is informative. 477
U.S. 619 (1986). In Dayton Christian Schools, Linda Hoskinson, a teacher employed
by Dayton Christian Schools, told her principal that she was pregnant. The principal
told Ms. Hoskinson that her contract would not be renewed at the end of the school year
because the school adhered to the religious doctrine that mothers should stay home
with their preschool age children. Ms. Hoskinson contacted an attorney who threatened

3

In Sprint, the Court held Younger abstention was not applicable to the administrative
proceeding at issue there because the state proceeding in question was invoked primarily to settle a civil
dispute between private parties and not to sanction Sprint for commission of a wrongful act. Sprint, ___
U.S. at ___, 134 S.Ct. at 592 - 593. Further, the court noted that the administrative proceeding was not
initiated by the state in its sovereign capacity and did not involve a state investigation of the activities of
Sprint. Id. ___ U.S. at ___, 134 S.Ct. at 592.

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litigation against the school based on state and federal sex discrimination laws. The
superintendent of Dayton Christian told Ms. Hoskinson that she was suspended
immediately because, by threatening litigation, she challenged the nonrenewal decision
in a manner inconsistent with the internal dispute resolution doctrine of the school,
which also had a basis in religious doctrine. Ultimately, the employment of Ms.
Hoskinson was terminated because of her violation of the dispute resolution doctrine.
Id. at 623.
Ms. Hoskinson filed a complaint with the Ohio Civil Rights Commission, alleging
that the initial nonrenewal decision constituted sex discrimination under Ohio and
federal law and the termination decision penalized her for asserting her rights
concerning sex discrimination in employment. The commission notified Dayton
Christian that the commission was conducting an investigation. Ultimately, the
commission determined that there was probable cause to believe Dayton Christian had
discriminated against Ms. Hoskinson based on her sex and had retaliated against her
for attempting to assert her rights. The commission initiated administrative proceedings
against Dayton Christian by filing a complaint.
Dayton Christian answered the administrative complaint and asserted that the
First Amendment prevented the commission from exercising jurisdiction over Dayton
Christian because the actions of the school had been taken based on its sincerely held
religious beliefs. While the administrative proceedings were pending, Dayton Christian
filed suit in federal court and sought a permanent injunction against the state
administrative proceedings. Dayton Christian claimed that any administrative
investigation of its hiring process and any administrative imposition of sanctions for the
nonrenewal or termination decisions would violate the religious clauses of the First
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Amendment. Id. at 624 - 625.
The Supreme Court held that “the District Court should have abstained from
adjudicating this case under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d
669 (1971), and later cases.” Dayton Christian Schools, 477 U.S. at 625. The Court
noted the application of Younger to state administrative proceedings in which important
state interests are vindicated, “so long as in the course of those proceedings the federal
plaintiff would have a full and fair opportunity to litigate his constitutional claim.” Id. at
627. The Court found that the state interest in eliminating prohibited sex discrimination
is sufficiently important to bring the case within the ambit of Younger. Id. at 628. In
addition, the court found that the state proceedings provided an adequate opportunity
for Dayton Christian to raise its constitutional claims. Id. On this point, the Court
concluded that even if Dayton Christian could not raise its constitutional claims in the
administrative proceedings, “it is sufficient . . . that constitutional claims may be raised in
state-court judicial review of the administrative proceeding.” Id. at 629.
Whether state administrative proceedings are judicial in nature is another factor
noted by the Dayton Christian Schools Court. Id. at 627. If state law indicates that
state administrative proceedings are not judicial in nature, then “abstention may not be
appropriate.” Id. at 627, n. 2. However, when an administrative proceeding leads to a
judicial proceeding on the same issue, the proceedings as a whole generally are seen
to be judicial in nature. See, e.g., Sprint, ___ U.S. at ___, 134 S.Ct. at 592 (assuming
without deciding that an administrative adjudication followed by state court review is a
unitary process for purposes of Younger.)
Dayton Christian argued that the mere exercise of jurisdiction over it by the state
administrative body violated its First Amendment rights. In response, the Court noted
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that “we have repeatedly rejected the argument that a constitutional attack on state
procedures themselves automatically vitiates the adequacy of those procedures for
purposes of the Younger - Huffman line of cases.” Id. at 628 (internal quotation and
citation omitted).
Applying the principles stated in Sprint and Dayton Christian Schools, I find
and conclude that Younger abstention is proper in the present case. The
administrative enforcement action at issue here was initiated to determine if RMGO and
CCFL violated state law and to sanction RMGO and CCFL for any such violations. If
sanctions are imposed, they are imposed and enforced by state authorities. Colo.
Const. art. XXVIII, §§ 9-10. The enforcement action serves the state interest in
enforcing its election laws and regulations. That interest generally is of the same level
of importance as the enforcement of sex discrimination law or the enforcement of
professional rules regulating the practice of law. Dayton Christian Schools, 477 U.S.
at 628; Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423,
434-35 (1982).
Although the enforcement action against RMGO and CCFL was initiated when a
private organization filed a complaint, that complaint triggered action by a state official,
the Colorado Secretary of State, to engage the enforcement mechanisms provided in
the Colorado Constitution and statutes. The administrative proceedings at issue in
Dayton Christian Schools also were initiated by a complaint filed by a private party
and that complaint triggered state action. The first step in the Colorado proceedings at
issue here is a hearing before an administrative law judge who must determine if a
violation has occurred and, if so, must impose financial penalties mandated by the
Colorado Constitution. From the outset, these proceedings are judicial in nature. In all
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relevant respects, the administrative proceedings in which RMGO and CCFL are
involved are of the same nature as the proceedings at issue in Dayton Christian
Schools and the other administrative proceedings subject to Younger abstention noted
by the Supreme Court in Sprint. Sprint Communications, ___ U.S. ___, 134 S.Ct. at
591.
RMGO and CCFL note that they may not raise their facial federal constitutional
challenge to the Colorado constitutional and statutory provisions in proceedings before
the Colorado administrative law judge. The defendants concede that this is true.
However, it is undisputed that, assuming RMGO and CCFL are sanctioned by the
administrative law judge, they may raise any constitutional claim they wish to assert in
an appeal of the decision of the administrative law judge to the Colorado Court of
Appeals. For purposes of Younger abstention, this is an adequate opportunity for
RMGO and CCFL to raise their federal constitutional claims in the state proceedings.
Dayton Christian Schools, 477 U.S. at 629.
In addition, RMGO and CCFL contend that the state administrative proceedings
and possible fines are “an unnecessary and unconstitutional tax on free speech and
freedom of association . . . .” Motion for temporary restraining order [#34], p. 4. This
contention does not undermine the application of Younger abstention. As the Court
noted in Dayton Christian Schools, a constitutional attack on state procedures
themselves does not automatically vitiate the adequacy of state procedures for the
purposes of Younger abstention. 477 U.S. at 629.
IV. CONCLUSION & ORDERS
The administrative proceedings pending against RMGO and CCFL are the type
of proceedings entitled to abstention under Younger v. Harris, 401 U.S. 37 (1971) and
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its progeny. As a result, it is not proper for this court to address the constitutional issues
raised by RMGO and CCFL, including their motions for temporary restraining order and
preliminary injunction. Rather, these issues must be raised and addressed in
proceedings before the Colorado administrative law judge, the Colorado Court of
Appeals, and/or the Colorado Supreme Court.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion for Preliminary Injunction [#23] filed November 7, 2014, is
DENIED without prejudice; and
2. That the Motion for Temporary Restraining Order [#33] filed December 8,
2014, is DENIED without prejudice.
Dated December 16, 2014, at Denver, Colorado.
BY THE COURT:

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