United States District Court, D. Colorado
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.
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX, MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion
to Dismiss [#82] (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
Summary of the Case
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.
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.
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.”
“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. ¶¶
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.
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).
Standard of Review
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.
outset, the Court must address the subject matter
jurisdiction issue raised by Defendant, i.e.,
mootness. 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.
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 ...