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Coalition for Secular Gov't v. Gessler

United States District Court, D. Colorado

October 10, 2014

COALITION FOR SECULAR GOVERNMENT, a Colorado nonprofit corporation, Plaintiff,
v.
SCOTT GESSLER, in his official capacity as Colorado Secretary of State, Defendant

For Coalition for Secular Government, a Colorado nonprofit corporation, Plaintiff: Tyler Leandro Martinez, Allen Joseph Dickerson, Center for Competitive Politics, Alexandria, VA.

For Scott Gessler, in his official capacity as Colorado Secretary of State, Defendant: Sueanna Park Johnson, LEAD ATTORNEY, Frederick Richard Yarger, Jonathan Patrick Fero, LeeAnn Morrill, Matthew David Grove, Melody Mirbaba, Colorado Attorney General's Office, Denver, CO.

For Colorado Common Cause, Amicus: Jennifer H. Hunt, LEAD ATTORNEY, Hill & Robbins, P.C., Denver, CO; Martha Moore Tierney, Heizer Paul, LLP, Denver, CO.

Page 1177

MEMORANDUM OPINION AND ORDER

John L. Kane, SENIOR UNITED STATES DISTRICT JUDGE.

Speech advocating approval or disapproval of a ballot issue is " 'at the core of our electoral process and of the First Amendment freedoms,' . . . an area of public policy where protection of robust discussion is at its zenith."

Grant v. Meyer, 828 F.2d 1446, 1456-57 (10th Cir. 1987)(Moore, J.)(en banc).

Plaintiff Coalition for Secular Government (CSG) is a small " think tank" that advocates for the separation of church and state. One of its advocacy pieces is a policy paper on " personhood" and, in years where a " personhood" initiative has qualified for Colorado's general election ballot, the paper addresses that initiative and urges a " no" vote. CSG's " electioneering" activities have been limited to " personhood" ballot measures in 2008, 2010, and again in 2014. CSG does not advocate for candidates or political parties.

In 2012, faced with ongoing uncertainty that its " personhood" paper made it an " issue committee" under article XXVIII of the Colorado Constitution and related Fair Campaign Practice Act (FCPA), CSG filed suit, seeking declaratory judgment and injunctive relief exempting it from the law's registration and expenditure disclosure requirements. Personhood's failure to qualify for the 2012 ballot eliminated the immediacy of CSG's request for relief, but the case is newly revived with the qualification of Colorado Amendment 67 on the 2014

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ballot and CSG's desire to market and distribute its updated paper before the election.

Applying the standards articulated in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), as interpreted by the Colorado Supreme Court in Gessler v. Colorado Common Cause, 327 P.3d 232, 2014 CO 44 (Colo. 2014), I find CSG falls outside the scope of ballot issue-committees to which Colorado's campaign finance disclosure laws may constitutionally apply. The nature of CSG and its advocacy render any " informational interest" the government has in mandating contribution and expenditure disclosures so minimal as to be nonexistent, and certainly insufficient to justify the burdens compliance imposes on members' constitutional free speech and association rights.

This conclusion is so obvious, moreover, that having to adjudicate it in every instance as the Colorado Supreme Court implies is necessary itself offends the First Amendment. By setting in stone the uncertainty that precipitated this litigation in the first place, the Court's interpretation chills robust discussion at the very core of our electoral process. I am without authority, however, to undo the damage done because Sampson provides an adequate and binding legal standard under which CSG's specific constitutional claims may be decided. The wholesale invalidation of Colorado's $200 contribution threshold for ballot issue committees, though warranted, would go beyond my charge and be improvident. What I can do, however, is award CSG its attorney fees under 42 U.S.C. § 1988 and advise state lawmakers that the Secretary will be on the hook for fees every time a group, like CSG, falls under the $200 trigger for issue committee status and has to sue to vindicate its First Amendment rights.

I.

Background and Procedural History.

Plaintiff Coalition for Secular Government (" CSG" ) is a nonprofit corporation that " 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 Mission Stm. (Tr. Ex. 40). Its advocacy includes opposition to laws based on religious scripture or dogma, such as abortion and discrimination against gay persons; government promotion of religion such as the teaching of " intelligent design" in public schools; and the granting of tax exemptions or other privileges to churches that are not made available to other non-profits. Id. Its founder and sole principal is Diana Hsieh (pronounced " Shay" ), who holds a doctorate in philosophy. CSG's advocacy takes the form of blog posts and video blogs, and includes a lengthy policy paper on the consequences of enshrining the concept of " personhood" into law.

CSG was originally entirely self-financed by Dr. Hsieh, but now solicits pledges online to defray marketing and operating expenses and to pay Dr. Hsieh and the co-author of the " personhood" paper a small ($1,000 in 2010) honorarium. Combined monetary and nonmonetary contributions to CSG have ranged from $200 in 2008 to approximately $3,500 expected in 2014. Given its small size and the nature of its activities, it has never been clear that CSG is required to register as an " issue committee" under article XXVIII of the Colorado Constitution, or to meet the reporting requirements imposed under ยง ...


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