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Rocky Mountain Gun Owners v. Williams

United States District Court, D. Colorado

February 27, 2018

ROCKY MOUNTAIN GUN OWNERS, a Colorado non-profit corporation, and COLORADO CAMPAIGN FOR LIFE, a Colorado non-profit corporation, Plaintiffs,
WAYNE W. WILLIAMS, in his official capacity as Secretary for the State of Colorado, Defendants.



         This matter is before the Court on Defendant's Motion to Dismiss [#82][1] (the “Motion”). Plaintiffs filed a Response [#89] in opposition to the Motion [#82], and Defendant filed a Reply [#92]. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion [#82] has been referred to the undersigned for recommendation. See [#84]. The Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that Motion [#82] be GRANTED.

         I. Summary of the Case

         This lawsuit was filed on October 17, 2014. Compl. [#1]. Plaintiffs are non-profit corporations engaged in grassroots lobbying. Am. Compl. [#78] ¶¶ 10-15. In June 2014, Plaintiffs independently sent mailings to Republican primary voters in Colorado Senate Districts 19 and 22. Id. ¶¶ 27, 29. Each organization's mailings referred to candidates for office in Colorado, and each spent more than $1, 000 on the mailings. Id. ¶¶ 28, 30. The mailings were mailed or delivered to voters within Colorado Senate Districts 19 and 22 within thirty days of the June 24, 2014 primary election. Id. ¶ 31. Neither organization “filed a report to the Secretary of State of the State of Colorado pursuant to Colo. Const. art. XXVIII, § 6(1) or Colo. Rev. Stat. Ann. § 1-45-108 (1)(a)(III) that included spending on such communications, and the name, and address, of any person that contributed more than two hundred and fifty dollars per year, and the occupation and employer of each such natural person.” Id. ¶ 32.

         A private organization named Colorado Ethics Watch (“CEW”) filed a private enforcement action against Plaintiffs based on their failure to make the required filings with the State. Id. ¶ 33. On December 23, 2014 (after the present federal lawsuit had been filed), the Colorado Office of Administrative Courts issued a decision that found Plaintiffs guilty of failing to file electioneering communications reports. Id. ¶ 36. That decision required both Plaintiffs to file such reports within thirty days and to pay a “substantial” civil penalty. Id.

         In connection with this lawsuit, Plaintiffs assert that they “intend to continue to distribute similar issue-based communications in the future, including the next election cycle, to inform their constituencies of the positions of potential candidates on issues surrounding the Second Amendment . . . and/or abortion . . . .” Id. ¶ 37. “Neither the previous mailings, . . . nor future communications, have expressly or impliedly advocated for the election or defeat of any candidate for office.” Id. Plaintiffs “affirm that future mailings for the next election cycle will have similar content to the 2014 mailings, will exceed $1, 0000 [sic] in cost, and will be directed towards the electorate.” Id.

         Plaintiffs “bring this lawsuit [against Defendant Wayne W. Williams in his official capacity as Secretary of State for the State of Colorado] to declare Colorado's electioneering law unconstitutional on its face and as applied to them.” Id. ¶ 38. In Claim One, Plaintiffs assert that Colorado's definition of “electioneering communication” violates the First and Fourteenth Amendments. Id. ¶¶ 39-49. In Claim Two, Plaintiffs assert that the spending threshold which triggers reporting is too low and violates the First and Fourteenth Amendments. Id. ¶¶ 50-55. In Claim Three, Plaintiffs assert that the statutory scheme for private enforcement of alleged violations of campaign finance laws is overly broad and has a chilling effect on First Amendment freedoms. Id. ¶¶ 56-64.[2]

         Plaintiffs' original Complaint also named CEW as a defendant. [#1] ¶ 20. On August 12, 2015, the District Judge dismissed the case on the basis of Younger abstention. Order [#61]. Plaintiffs appealed to the Tenth Circuit Court of Appeals, and on November 7, 2016, the Tenth Circuit reversed and remanded on the basis that Younger is inapplicable to the facts of this case. Rocky Mountain Gun Owners v. Williams, 671 F. App'x 1021 (10th Cir. 2016). In that opinion, the Tenth Circuit declined to address Defendants' mootness argument that there is “no possible relief that this court can grant because the state court enforcement proceedings are complete, ” on the basis that the district court had not reached the issue. Id. at 1025.

         On remand, Plaintiffs filed the Amended Complaint [#78] on March 1, 2017, omitting CEW from the present lawsuit. Defendant Wayne W. Williams, as the sole remaining defendant, argues for dismissal of this entire lawsuit on the basis of mootness pursuant to Fed.R.Civ.P. 12(b)(1) and on the basis of failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Motion [#82].

         II. Standard of Review

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) attacks a court's subject matter jurisdiction. The determination of a court's jurisdiction over the subject is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). The objection that a federal court lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may be raised by a party, or by a court on its own initiative, at any stage in the litigation. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). If at any time, the Court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3); Arbaugh, 546 U.S. at 506. A 12(b)(1) motion may take two forms: a facial attack or factual attack on the complaint. When reviewing a facial attack on the complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint pursuant to Rule 12(b)(1), and when the challenge is supported by affidavits and other documents, the Court makes its own factual findings. Id. at 1003.

         III. Analysis

         At the outset, the Court must address the subject matter jurisdiction issue raised by Defendant, i.e., mootness.[3] Defendant argues that Plaintiffs' lawsuit is moot under both constitutional and prudential mootness doctrines. Motion [#82] at 19. Because the Court finds that constitutional mootness applies here, it does not address Defendant's alternative argument regarding prudential mootness.

         Defendant argues in part that this lawsuit is moot because the underlying enforcement proceedings were concluded in December 2014, and Plaintiffs did not file an appeal regarding those proceedings. Motion [#82] at 20. “Article III of the Constitution limits federal courts to deciding ‘Cases' and ‘Controversies, ' and an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kansas by and through Kansas Dep't for Children & Families v. SourceAmerica, 874 F.3d 1226, 1236 (10th Cir. 2017) (quoting Kingdomware Techs., Inc. v. United States, 136 S.Ct. 1969, 1975 (2016) (internal quotation marks omitted)). “In considering mootness, we ask whether granting a present determination of the issues offered will have some effect in the real world.” SourceAmerica, 874 F.3d at 1236 (quoting Fleming v. Gutierrez, 785 F.3d 442, 444-45 (10th Cir. 2015) (internal quotation marks omitted)). “The burden of ...

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