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Holland v. Williams

United States District Court, D. Colorado

June 12, 2018

WAYNE W. WILLIAMS, in his official capacity as Colorado Secretary of State, Defendant.



         On January 20, 2016, plaintiff Tammy Holland (“plaintiff”) filed a Complaint against defendant Wayne W. Williams in his capacity as the Colorado Secretary of State (“defendant”), alleging Article XXVIII, § 9(2)(a) of the Colorado Constitution (“Section 9(2)(a)”) and Colo. Rev. Stat. § 1-45-111.5(1.5)(a) (“Section 1.5(a)”) are facially unconstitutional under the First and Fourteenth Amendments of the U.S. Constitution. (ECF No. 1.)

         Among other things, pending before the Court is plaintiff's motion for summary judgment (“the motion for summary judgment”) (ECF Nos. 129, 131) and statement of undisputed material facts (ECF Nos. 129-1, 131-1). Defendant has filed a response in opposition to the motion for summary judgment (ECF No. 145), and a response in opposition to plaintiff's statement of undisputed material facts (ECF Nos. 145-1, 147). Plaintiff filed a reply (ECF Nos. 152, 154), and a reply statement of undisputed material facts (ECF Nos. 152-1, 154-1).

         I. Legal Standard for Summary Judgment

         Summary judgment is appropriate “when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Initially, the movant bears the “responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If this burden is met, then the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. Id. at 324. A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

         In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Id. However, a mere “scintilla of evidence” is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead, a non-movant “must proffer facts such that a reasonable jury could find in her favor.” Id.

         II. Discussion[1]

         A. The Relevant First Amendment Test

         Before addressing the merits of plaintiff's constitutional challenges to Section 9(2)(a) and Section 1.5(a) (collectively, “the enforcement provisions”), the Court must determine by which test they must be judged. As will be seen, in the context of the First Amendment and the speech at issue here, this is easier said than done. The parties propose their own tests, so the Court will address them first.

         First, defendant. Defendant proposes that the Court apply a test requiring that, in every application, the enforcement provisions create an impermissible risk of suppression of ideas, citing Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007) (“CRLC”). (ECF No. 145 at 4-5.) Unfortunately for defendant, as will be seen later, it made a critical mis-step in relying upon CRLC. For now, it is enough to say that CRLC does not provide the relevant test for this case. Defendant should have realized this, given that it cites to another case that illustrates why the “in every application” test is more a figment of the imagination, rather than a test for facial constitutional challenges.

         That case is Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012). Defendant cites this case for the proposition that, when it comes to facial challenges, a court must compare statutory text to the relevant constitutional test in order to determine whether a statute is constitutional. (ECF No. 145 at 5.) With that, the Court can agree. The problem is that defendant then asserts that the relevant constitutional test is the “in every application” test set forth above. (See id.) A cursory reading of Doe would have shown defendant that, that is not the relevant test. Instead, reading Doe would have shown defendant that the “in every application” test is not a test at all. As the Tenth Circuit Court of Appeals clearly explained, the “in every application” principle “is correctly understood not as a separate test applicable to facial challenges, but a description of the outcome of a facial challenge in which a statute fails to satisfy the appropriate constitutional framework.” Doe, 667 F.3d at 1123. The Tenth Circuit, relying on language from the Supreme Court, further explained that the distinction between a facial and an as-applied challenge “‘goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.'” Id. at 1124 (quoting Citizens United v. FEC, 558 U.S. 310, 331, 130 S.Ct. 876 (2010)). In other words, to call the “in every application” principle a test is “simply a fiction, readily dispelled by a plethora of Supreme Court authority.” Id. Then, just to make sure that the reader could not be mistaken, the Tenth Circuit did not apply the “in every application” principle as the test to the facial challenge in Doe; instead, it applied “the applicable constitutional framework—in this case, forum analysis.” Id. at 1127-28.

         To the extent CRLC suggests a different approach to facial challenges, this Court chooses to follow the more recent guidance from the Tenth Circuit in Doe as to how to approach the same. As a result, the Court rejects defendant's proposal for the applicable test here.

         As Doe explains, though, a court must still determine the applicable constitutional test with respect to the law at issue. Id. at 1123. This Court continues on that quest by considering plaintiff's proposed test. Plaintiff first proposes that the enforcement provisions are unconstitutional because they place “unchecked power” in private citizens to enforce Colorado's campaign finance laws, which, plaintiff argues, raises constitutional concerns of the highest order and is “virtually per se invalid.” (ECF No. 131 at 14-16, 22-23.)[2] To the extent this “categorical” test is, in fact, a test with support in case law, it is not the applicable test here.

         A cursory review of plaintiff's argument in this regard reflects that plaintiff has borrowed this purported test from a line of cases involving laws that delegate “overly broad discretion” to a person charged with making decisions for granting or denying licenses or permits. (See ECF No. 131 at 14-15 (citing Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 133 n.10, 112 S.Ct. 2395 (1992))). The fundamental problem with plaintiff doing so is that, in her reply, plaintiff completely, and very clearly, disavows any dependency on an overbreadth challenge. (See ECF No. 154 at 10 n. 2 (“[Defendant] also draws heavily on precedent involving the First Amendment overbreadth doctrine, but as in Doe, this lawsuit is not properly characterized as an overbreadth challenge.”) (citations and quotation omitted)). In other words, the motion for summary judgment and plaintiff's reply were either written by two entirely different beings or plaintiff is attempting to cherry-pick favorable sounding bites from cases, while also distancing herself from the less palatable portions of those cases. At best, plaintiff is a pot calling the kettle black, given that plaintiff also draws heavily on the overbreadth doctrine.

         In any event, irrespective of plaintiff's disavowal of the overbreadth doctrine, it would not be the appropriate test here. In a nutshell, plaintiff's argument is that the enforcement provisions grant too much discretion in the person bringing an enforcement action to choose the reason why he or she is bringing the action. (ECF No. 131 at 14-15.) According to plaintiff, a person could bring an enforcement action to target speech that the enforcer dislikes due to the discretion vested in the enforcement provisions. (Id.) The problem is that the Supreme Court has strongly indicated, if not actually held, that challenges to laws placing unconstrained authority in a decisionmaker are generally limited to licensing schemes. See Ward v. Rock Against Racism, 491 U.S. 781, 793, 109 S.Ct. 2746 (1989) (“As a threshold matter, it is far from clear that respondent should be permitted to bring a facial challenge to this aspect of the regulation. Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that vest unbridled discretion in a government official over whether to permit or deny expressive activity.”) (quotation omitted).

         Asin Ward, the grant of discretion that plaintiff seeks to challenge “is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny [speech] altogether.” Id. at 794. Here, the clear text of the enforcement provisions reflects that any person who decides to enforce Colorado's campaign finance laws can only do so if he or she believes that a violation of those laws has occurred. It is plainly impossible for a person to have such a belief before someone has actually purportedly committed a violation, i.e., before someone has actually spoken. Moreover, the enforcement provisions are in no sense a licensing or permit scheme. Thus, even if the Court were willing to accept plaintiff's assertion that her speech has been chilled, a person bringing an enforcement action under the enforcement provisions does not have unfettered discretion to deny speech altogether. Therefore, this case (and the test plaintiff proposes) does not fall into the “narrow class of permissible facial challenges” concerning unconstrained discretion. See id.[3]

         Fortunately for plaintiff, she does not place all of her eggs in one basket, as she also argues that the enforcement provisions fail under any level of scrutiny. (See ECF No. 131 at 23-24.) Plaintiff, though, spends limited time, if any, explaining what the applicable levels of scrutiny are in this case, other than regurgitating the meaning of strict scrutiny. (See id.) There could be a good reason for this because, as mentioned, determining the applicable test is not straightforward. That being said, in light of the Court rejecting the parties' principal proposals, the Court must do the heavy lifting on its own.

         Alas, the Tenth Circuit has again provided substantial illumination in this regard. Specifically, the Tenth Circuit has explained that, when a State regulates the voting process, the regulation at issue is subject to either a balancing test or strict scrutiny. Campbell v. Buckley, 203 F.3d 738, 742 (10th Cir. 2000). The Circuit, quoting the Supreme Court, explained the “balancing test” as follows:

‘A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. When a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions.'

Id. at 743 (quoting Burdick v. Takushi, 504 U.S. 428, 432-434, 112 S.Ct. 2059 (1992)) (ellipses and alteration omitted). In addition, “‘[r]egulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.'” Id. at 743-744 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364 (1997)). The Tenth Circuit explained that the balancing test is used in deciding the constitutionality of content-neutral regulations of the voting process. Id. at 745.

         In contrast, the Tenth Circuit explained that “strict scrutiny is applied where the government restricts the overall quantum of speech available to the election voting process.” Id. The Tenth Circuit pointed to certain examples of when strict scrutiny is applied; specifically, restrictions on campaign expenditures, restrictions on the available pool of circulators or other supporters of a candidate or initiative, and the anonymity of political supporters. The Tenth Circuit then held that the balancing test was appropriate in Campbell because the law at issue might, if anything, encourage more speech. Id.

         The Supreme Court has provided similar guidance. In McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115 S.Ct. 1511 (1995), the Supreme Court explained that the balancing test has been used when assessing the constitutionality of “election code provisions governing the voting process itself.” Id. at 344-345. In contrast, because the law in McIntyre did not control the “mechanics of the electoral process, ” but, instead, was a pure regulation of speech, even though it applied evenly to advocates of differing viewpoints. Id. at 345. As a result, the Supreme Court applied strict scrutiny. Id. at 347.

         It is not necessarily easy, however, to differentiate laws involving the “mechanics” of the electoral process from those that regulate speech. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 206-209, 119 S.Ct. 636 (1999) (Thomas, J., concurring) (“there is no bright line separating severe from lesser burdens”); Pest Comm. v. Miller, 626 F.3d 1097, 1105 (9th Cir. 2010) (explaining that “[t]he precise contours of what constitutes ‘core political speech' are less than perfectly clear.”). In Pest Comm., though, the Ninth Circuit Court of Appeals provided a helpful synthesis of core political speech, explaining that “it involves ‘interactive communication concerning political change.'” Pest Comm., 626 F.3d at 1105 (quoting Meyer v. Grant, 486 U.S. 414, 422, 108 S.Ct. 1886 (1988)). The Ninth Circuit concluded that one of the laws at issue in Pest Comm.—a law allowing pre-election challenges to an initiative or referendum—did not involve core political speech because the pre-election challenge procedure did not involve one-on-one communication with voters, even though there was evidence that the challenge procedure tied up initiative petitions for extended periods of time. Id. at 1109.

         Further guidance can be drawn from the Supreme Court's relatively recent decision in Reed v. Town of Gilbert, Ariz., 576 U.S.__, 135 S.Ct. 2218 (2015). In Reed, the Supreme Court explained that content-based laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id. at 2226. The Supreme Court then provided its explanation of what it is for a law to be content-based. A law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed, ” or if the law “cannot be justified without reference to the content of the regulated speech, or [because the law was] adopted by the government because of disagreement with the message the speech conveys.” Id. at 2227 (quotations and internal quotations omitted).

         From this summary, this Court distills the following. One, if a law is content-based it is subject to strict-scrutiny analysis. Two, somewhat relatedly, if a law constitutes a regulation of speech, including core political speech, it too is subject to strict scrutiny. Three, core political speech is interactive communication about political change. Four, if a law places a severe burden on speech it is also subject to strict scrutiny. Five, one example of a severe burden is a law that reduces the overall quantum of speech available to the electorate. Six, when a law concerns the mechanics of the electoral process it is subject to a balancing test. Seven, if a law is content-neutral it too is subject to a balancing test. Eight, a law that places lesser burdens on speech is also subject to a balancing test.

         Now the Court has the task of determining where the enforcement provisions fall within those guiding principles. The Court begins by summarizing the salient parts of those provisions. The enforcement provisions are, in essence, largely the same. The parts plaintiff focuses her greatest ire towards are the following: if any person believes that a violation of Colorado's campaign and political finance rules (which are contained in Article XXVIII of the Colorado Constitution (“Article XXVIII”)) or Colorado's Fair Campaign Practices Act (which is contained in Article 45 of the Colorado Revised Statutes (“Article 45”)) has occurred, that person may file a written complaint with Colorado's Secretary of State, which the Secretary of State must refer to an administrative law judge within three days. The administrative law judge must then hold a hearing on the complaint within 15 days of it being referred. More specifically, plaintiff's concern is with the fact that any person may file a complaint and the fact that the Secretary of State must forward such a complaint to an administrative law judge, resulting in a hearing.

         More important from the Court's perspective, however, are the laws that any person is allowed to enforce. The headings of those laws suggest their content—they involve campaign and political finance and fair campaign practices. In other words, by any construction the laws that any person is being asked to enforce involve political speech. For example, Section 9(2)(a) allows any person to file a complaint concerning violations of, inter alia, contribution limits to political committees, voluntary campaign spending limits, independent expenditures supporting political candidates, electioneering communications, disclosure requirements for political committees, and making reports and statements available to the public. Similarly, Section 1.5(a) allows any person to file a complaint concerning violations of, inter alia, disclosure requirements ...

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