United States District Court, D. Colorado
MELISSA RENEE GOODALL, JEREMY WAYDE GOODALL, SHAUNA LEIGH ARRINGTON, JEFFERY PHILLIP ARRINGTON, KARLA JO KROEKER, RYAN MARK TIPPLE, REP. DOUGLAS LAMBORN, and LAMBORN FOR CONGRESS, Plaintiffs,
WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, Defendant.
A. BRIMMER United States District Judge
matter is before the Court on the Partially-Unopposed Motion
to Intervene [Docket No. 9] filed on April 26, 2018. This
Court has subject matter jurisdiction over this case pursuant
to 28 U.S.C. § 1331.
January 2018, U.S. Congressman Douglas Lamborn announced his
intent to seek the Republican Party nomination in the primary
election for Colorado's Fifth Congressional District,
which is to be held on June 26, 2018. Docket No. 1 at 14,
¶ 47. Pursuant to Colo. Rev. Stat. § 1-4-801, which
allows for designation of party candidates by petition,
various volunteer and professional circulators circulated
nominating petitions on Congressman Lamborn's behalf.
Id. at 12, 14, ¶¶ 42, 48, 49. Under §
1-4-801(2)(b), Congressman Lamborn was required to obtain 1,
000 verified signatures from registered Republicans in the
Fifth Congressional District to gain access to the 2018
Republican primary election ballot.
March 29, 2018, defendant Wayne Williams, the Secretary of
State of Colorado (“the Secretary”), certified
that Congressman Lamborn had obtained a total of 1, 269 valid
signatures. Id. at 14, ¶ 50. On April 3, 2018,
five voters from Colorado's Fifth Congressional District
filed a verified petition in the District Court for the City
and County of Denver challenging the Secretary's
determination as to the sufficiency of Congressman
Lamborn's nominating petition. Id. at 15, ¶
51. Specifically, the petitioners argued that several of
Congressman Lamborn's circulators were not residents of
Colorado, as required under Colo. Rev. Stat. §
1-4-905(1),  and thus the signatures collected by those
circulators were invalid. Id. After an evidentiary
hearing, the district court concluded that only one of
Congressman Lamborn's circulators failed to meet the
residency requirements under § 1-4-905(1). Id.
at 15, ¶¶ 51-52; see also Kuhn v.
Williams, No. 18SA176, at *9-10 (Colo. 2018) (slip op.).
Because the signatures collected by the remaining circulators
totaled 1, 211, the court upheld the Secretary's finding
that Congressman Lamborn's nominating petition was
sufficient to certify him to the primary ballot. Id.
On appeal, the Colorado Supreme Court reversed. Docket No. 1
at 15, ¶ 53. In regard to one of the challenged
circulators, the court determined that the district court had
erred in finding that he was a Colorado resident.
Specifically, the Colorado Supreme Court held that the
district court “improperly focused on [Ryan]
Tipple's stated future intent to move to Colorado”
in determining whether he was a resident of Colorado under
§ 1-4-905(1). See Kuhn, No. 18SA176, at *5. The
Colorado Supreme Court determined that Tipple did not satisfy
§ 1-4-905(1)'s residency requirement and thus the
269 signatures he collected on behalf of Congressman Lamborn
were invalid. See Id. at *4, *24. The court further
determined that, because Congressman Lamborn's signatures
now fell short of the 1, 000 required to be on the Republican
primary ballot, the Secretary could “not certify
Representative Lamborn to the 2018 primary ballot for [the
Fifth Congressional District.]” Id. at 25.
- registered voters in Colorado's Fifth Congressional
District, Ryan Tipple, Congressman Douglas Lamborn, and
Lamborn for Congress - filed this lawsuit on April 25, 2018,
challenging the constitutionality of the circulator residency
requirement in Colo. Rev. Stat. § 1-4-905(1). Docket No.
1. Plaintiffs seek a court order declaring that the residency
requirement is unconstitutional under the First Amendment of
the U.S. Constitution. Id. at 20, ¶ 1. In
addition, they request an injunction directing the Colorado
Secretary of State to certify Congressman Lamborn to the 2018
Republican primary election ballot. Id., ¶ 2.
On April 25, 2018, plaintiffs moved for a preliminary
injunction. Docket No. 2.
April 26, 2018, a group of individuals consisting of the
state-court petitioners, current and former legislators of
the Colorado General Assembly, State Senator Owen Hill, a
candidate for Colorado's Fifth Congressional District in
the 2018 Republican Party primary, and Eric Baldini, an
individual who alleges that he was misled into signing
Congressman Lamborn's nominating petition (collectively
“intervenors” or “proposed
intervenors”), filed a motion to intervene in
opposition to plaintiffs' request for a court order
directing the Secretary to certify Congressman Lamborn to the
2018 Republican primary ballot. Docket No. 9. On April 27,
2018, defendant filed a response in opposition to the motion
to intervene. Docket No. 13. Both defendant and the proposed
intervenors have also filed responses opposing
plaintiffs' request for a preliminary injunction. Docket
Nos. 26, 27. The hearing on the motion for a preliminary
injunction is set for Monday, April 30, 2018. Docket No. 7.
The deadline for certification of candidates to the 2018
Republican primary ballot is May 3, 2018. Docket No. 13 at 6
Rule of Civil Procedure 24 governs the intervention of
non-parties. Under Rule 24(a)(2), non-parties may intervene
in a pending lawsuit as of right if: “(1) the
application is timely; (2) the applicants claim an interest
relating to the property or transaction which is the subject
of the action; (3) the applicants' interest may as a
practical matter be impaired or impeded; and (4) the
applicants' interest is not adequately represented by
existing parties.” Western Energy Alliance v.
Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017) (brackets
omitted). “Failure to satisfy even one of
these requirements is sufficient to warrant denial of a
motion to intervene as of right.” Maynard v. Colo.
Supreme Court Office of Attorney Regulation Counsel, No.
09-cv-02052-WYD-KMT, 2010 WL 2775569, at *3 (D. Colo. July
14, 2010) (quoting Commodity Futures Trading Comm'n
v. Heritage Capital Advisory Servs., Ltd., 736 F.2d 384,
386 (7th Cir. 1984)).
non-party is not entitled to intervention as of right, he or
she may seek permissive intervention under Federal Rule of
Civil Procedure 24(b). Permissive intervention is allowed if
(1) the motion to intervene is timely and (2) the non-party
“has a claim or defense that shares with the main
action a common question of law or fact.” Fed.R.Civ.P.
24(b)(1). “The decision to grant or deny a
motion for permissive intervention is wholly discretionary
with the district court.” Maynard, 2010 WL
2775569, at *4 (quoting South Dakota ex rel. Barnett v.
U.S. Dep't of Interior, 317 F.3d 783, 787 (8th Cir.
proposed intervenors assert that they are entitled to
intervene in this action as of right under Rule 24(a)(2).
Docket No. 9 at 5. In the alternative, they contend that they
satisfy the requirements for permissive intervention.
Id. at 15-16.
Compliance with Fed.R.Civ.P. 24(c)
proposed intervenors collectively assert three principal
interests in this litigation. Their first two interests
pertain to (1) preserving the party affiliation requirement
in Colo. Rev. Stat. § 1-4-905(1) and (2) ensuring the
honesty and integrity of petition circulators, based on
alleged misrepresentations made by circulators working on
behalf of Congressman Lamborn. Docket No. 9 at 6-7. Neither
of these interests has any relevance to the subject matter of
this lawsuit, which is the constitutionality of §
1-4-905(1)'s residency requirement. The third interest,
which is asserted primarily by Senator Hill, relates to the
uncertainty and confusion that could result if Congressman
Lamborn is permitted provisional access to the 2018
Republican Party ballot. Docket No. 9 at 8-9.
argues that the motion to intervene should be denied based on
the fact that the proposed intervenors have failed to comply
with the procedural requirements of Fed.R.Civ.P. 24.
See Docket No. 13 at 2. Rule 24(c) requires that a
motion to intervene “state the grounds for intervention
and be accompanied by a pleading that sets out the claim or
defense for which intervention is sought.” The proposed
intervenors have not attached any pleading to their motion to
intervene. Especially where, as here, the intervenors are
attempting to assert claims that plaintiffs have not raised,
compliance with Rule 24(c) is necessary for the Court and the
existing parties to evaluate the propriety and effect of
intervention. Compare Beckman Indus., Inc. v.
Int'l Ins. Co., 966 F.2d 470, 475 (9th Cir. 1992)
(“[W]here, as here, the movant describes the basis for
intervention with sufficient specificity to allow the
district court to rule, its failure to submit a pleading is
not grounds for reversal.”). For example, it is
doubtful whether the Court would have jurisdiction over many
of the claims the intervenors want to assert, which appear to
involve state law issues only.
intervenors contend that the failure to comply with Rule
24(c) is not dispositive because the “motion to
intervene, itself, provides sufficient notice of the claims
the Intervenors intend to assert.” Docket No. 23 at 2.
The Court disagrees. The intervenors seek to add new claims
to this litigation without clearly identifying the legal
bases for those claims, who the claims are asserted against,
and whether some of the claims are being asserted as defenses
to plaintiffs' lawsuit. Under such circumstances, the
failure to comply with Rule 24(c) is a sufficient ground on
which to deny intervention.
noncompliance with Rule 24(c) is not dispositive where the
asserted basis for intervention is sufficiently specific to
allow the court to evaluate the appropriateness of
intervention. Beckman Indus., Inc., 966 F.2d at 474.
As discussed below, Senator Hill has asserted a defined and
particularized interest in avoiding voter confusion. This
interest is within the scope of plaintiffs' complaint.
Accordingly, Senator Hill's failure to comply with Rule
24(c) is not, by itself, preclusive of his ability to