Order granting Ethics Watch Motion to intervene as a Defendant in Colorado Republican Party v. Gessler, et al., Denver District Court Case No. 2014CV031851
Order granting Ethics Watch Motion to intervene as a Defendant in Colorado Republican Party v. Gessler, et al., Denver District Court Case No. 2014CV031851
Order granting Ethics Watch Motion to intervene as a Defendant in Colorado Republican Party v. Gessler, et al., Denver District Court Case No. 2014CV031851
Order granting Ethics Watch Motion to intervene as a Defendant in Colorado Republican Party v. Gessler, et al., Denver District Court Case No. 2014CV031851
Court Address: 1437 Bannock Street, Rm 256, Denver, CO, 80202 Plaintiff(s) COLORADO REPUBLICAN PARTY v. Defendant(s) SCOTT GESSLER COURT USE ONLY Case Number: 2014CV31851 Division: 409 Courtroom: Order: COLORADO ETHICS WATCHS UNOPPOSED MOTION TO INTERVENE AS DEFENDANT The motion/proposed order attached hereto: GRANTED. Issue Date: 6/18/2014 ROBERT LEWIS MCGAHEY J R. District Court J udge
DATE FILED: June 18, 2014 12:53 PM CASE NUMBER: 2014CV31851 DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO Court Address: 1437 Bannock Street Denver, Colorado 80202
Plaintiff: COLORADO REPUBLICAN PARTY
v.
Defendant: SCOTT GESSLER, in his capacity as Colorado Secretary of State
Attorneys for Proposed Intervenor Defendant Colorado Ethics Watch: Luis Toro, #22093 Margaret Perl, #43106 Colorado Ethics Watch 1630 Welton Street, Suite 415 Denver, Colorado 80202 Telephone: (303) 626-2100 Fax: (303) 626-2101 E-mail: ltoro@coloradoforethics.org pperl@coloradoforethics.org
COURT USE ONLY
Case Number:2014CV031851
Division: 409 Courtroom: COLORADO ETHICS WATCHS UNOPPOSED MOTION TO INTERVENE AS DEFENDANT
Proposed Intervenor Defendant Colorado Ethics Watch, by its undersigned attorneys, pursuant to C.R.C.P. 24 hereby moves the Court for an order permitting it to intervene as a defendant in this action pursuant to Rules 24(a) and 57(j) of the Colorado Rules of Civil Procedure. In accordance with Rule 24(c), Ethics Watch contemporaneously submits its Answer to the Complaint. In support of this Motion, Ethics Watch states as follows:
CERTIFICATE OF COMPLIANCE WITH C.R.C.P. 121, 1-15
1. Pursuant to C.R.C.P. 121, 1-15, undersigned counsel certifies that they have conferred with counsel for the parties and are authorized to state that neither party is opposed to this motion to intervene.
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ARGUMENT
2. Ethics Watch is the registered trade name of Citizens for Responsibility and Ethics in Washington, a nonprofit organization authorized to conduct business in Colorado. Ethics Watch has filed and litigated several campaign finance complaints under the private-party enforcement system established in Section 10 of Article XXVIII of the Colorado Constitution.
3. This action for declaratory judgment was filed by the Colorado Republican Party (CRP) after Defendant Secretary of State Scott Gessler (the Secretary) denied the CRPs administrative petition for a declaratory order to authorize the CRP to establish an independent expenditure committee (colloquially known as a Super-PAC) connected to the CRP, but raising funds without regard to Colorados contribution limits and source prohibitions applicable to political party committees.
4. After the CRP filed its declaratory order petition, Ethics Watch filed a Petition for Rulemaking with the Secretary, arguing that the declaratory order petition was procedurally improper and that because the CRP was in effect asking for creation of a rule of general application, the Secretary should proceed through rulemaking. See Verified Complaint at 16. The Secretary added Ethics Watchs petition to the record of the CRPs declaratory order petition and did not initiate rulemaking.
4. An essential allegation of CRPs complaint is that Ethics Watchs participation as a non-party to the declaratory order proceeding implies that Ethics Watch will challenge the [CRP]s independent expenditures by filing a campaign finance complaint, with resulting large potential fines and the need for costly litigation expenses. Verified Complaint at 16. This allegation is key to CRPs contention that an actual controversy exists for the court to resolve through a declaratory judgment.
5. A party is entitled to intervene as of right in a pending action when the applicant claims an interest relating to the transaction that is the subject of the action, the applicant is so situated that the disposition of the action may, as a practical matter, impair or impede his or her ability to protect that interest, and the applicants interest is not or may not be adequately represented by existing parties. C.R.C.P. 24(a)(2); Mauro v. State Farm Mut. Auto. Ins. Co., 2013 COA 117, 12. The Rule should be liberally interpreted to allow, whenever possible and compatible with efficient and due process, issues related to the same transaction to be resolved in the same lawsuit and at the trial court level. Id. (citations omitted).
6. In a declaratory judgment case, all persons shall be made parties who have or claim any interest which would be affected by the declaration. C.R.C.P. 57(j). A court should insist that jurisdiction be obtained of all parties whose rights would be adversely affected either personally or in an appropriate class action. Bancroft-Clover Water & Sanitation Dist. v. Metropolitan Denver Sewage Disposal Dist. No. 1, 670 P.2d 428, 430 (Colo. App. 1983) (internal brackets, ellipsis and quotation omitted).
7. In Colorado, the enforcement of campaign finance laws is left primarily to private parties. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, 10 n.2; Colo. A t t a c h m e n t
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Const. 9(2)(a). Article XXVIII, the Campaign Finance Amendment, establishes a two-track enforcement system, under which the appropriate officer (in most cases, the Secretary) imposes $50 per day fines for late filings by registered committees, while all other alleged violations are enforced by private parties before an administrative law judge. Patterson Recall Comm., Inc. v. Patterson, 209 P.3d 1210, 1215 (Colo. App. 2009); see Colo. Const. art. XXVIII, 9-10. Plaintiff is asking the Court for permission to violate the political party contribution limits in Colo. Const. art. XXVIII, 3(3) and the prohibition of corporate or labor union contributions to political parties in Colo. Const. art. XXVIII, 3(4). Any violation of those provisions would be enforced, if at all, exclusively through the private-party enforcement system. Colo. Const. art. XXVIII, 9(2).
8. Plaintiffs Complaint makes no allegation that the Secretary might file a private- party enforcement action against Plaintiff. To the contrary, the Plaintiff alleges that the Secretary issued an advisory opinion arguably supportive of Plaintiffs position and encouraged Plaintiff to file a declaratory judgment action. Complaint at 17-18. Only Ethics Watch is alleged to present a litigation threat to Plaintiff. If a real controversy exists that a declaratory judgment could resolve, it is between Plaintiff and Ethics Watch, not the Secretary. Moreover, because the Secretarys enforcement authority does not reach the potential campaign finance violations at issue, see Colo. Const. art. XXVIII, 9(2), Ethics Watchs interest will not or may not be adequately protected by the Secretary. See C.R.C.P. 24(a)(2).
9. Pursuant to C.R.C.P. 24(c), Ethics Watch is attaching a proposed Answer to Plaintiffs Complaint.
WHEREFORE, Colorado Ethics Watch respectfully requests that the Court enter an order permitting it to intervene as a party defendant in this action, accepting the attached Answer of Intervenor Defendant, and granting such further relief as the Court deems proper.
DATED: June 17, 2014
COLORADO ETHICS WATCH
_____[Original Signature On File]______ Margaret Perl, #43106
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CERTIFICATE OF SERVICE
I certify that on June 17, 2014, I served a true copy of the above and foregoing through ICCES on the following:
Richard A. Westfall, Esq. Allan L. Hale, Esq. Peter J. Krumholz, Esq. Hale Westfall, LLP 1600 Stout St., Suite 500 Denver, CO 80202
And via United States mail, postage prepaid and addressed as follows:
John W. Suthers, Esq. Matthew Grove, Esq. 1300 Broadway, 10th Floor Denver, CO 80203
_____[Original Signature On File]______ Margaret Perl