DISTRICT COURT, CITY AND COUNTY

OF DENVER, COLORADO
Denver City and County Building
1437 Bannock Street
Denver. Colorado 80202
Phone (720) 865-9301
COLORADO REPUBLICAN PARTY,
Plaintiffs

DATE FILED: September 30, 2014 3:14 PM

CASE NUMBER: 2014CV31851

v.
COURT USE ONLY

SCOTT GESSLER, in his capacity as

Colorado Secretary of State

Case Number: 2014CV031851

and

Courtroom: 409

Intervenor Defendant, COLORADO ETHICS

WATCH,
Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before me on Plaintiffs Motion for Summary Judgment, filed on
August 8, 2014. I have reviewed the Motion, Intervenor Defendant, Colorado Ethics Watch
(CEW) Response, filed on August 22, 2014, and Plaintiffs Reply, filed on September 2, 2014,
the entire court file, and the applicable case and statutory law, and make the following findings
of fact and conclusions of law:
STANDARD OF REVIEW
Pursuant to C.R.C.P. 56(c), summary judgment is only appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, show
that there is no genuine issue of material fact and that the moving party is entitled to judgment as
a matter of law. Civil Serv. Comn v. Pinder, 812 P.2d 645, 649 (Colo. 1991).

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In evaluating a motion for summary judgment, the nonmoving party is entitled to the
benefit of all favorable inferences that may be reasonably drawn from the undisputed facts, and
all doubts must be resolved against the nonmoving party. HealthONE v. Rodriguez ex rel.
Rodriguez, 50 P.3d 879, 887 (Colo. 2002). Additionally, because a grant of summary judgment
denies the party opposing the motion a right to trial, it is appropriate only where there is no role
for the fact finder to play and where the controlling law entitles one party or the other to a
judgment in its favor. Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546, 548 (Colo. 2006).
In deciding a motion for summary judgment, the trial judges function is not to weigh
the evidence and decide what occurred, but to determine whether or not a genuine issue exists for
the jury. Andersen v. Lindenbaum, 160 P.3d 237, 239 (Colo. 2007). Summary judgment is a
drastic remedy, to be granted only when there is a clear showing that the controlling standards
have been met. HealthONE at 887-88.
FACTS
On May 7, 2014, the Colorado Republican Party (CRP) filed papers with the Secretary
of States office to establish and register a Colorado Republican Party Independent Expenditure
Committee (IEC). CRP Chairman Ryan Call appointed Tyler Harber as the executive director
of the IEC that day and Kevin Kauffman and Lisa Pinto as management committee members on
July 29, 2014. On August 8, 2014, Harber, Kauffman, and Pinto adopted a set of Standing
Rules, which govern and restricts the activities of the IEC. The Standing Rules state, inter alia,
that beyond the initial appointment of the management committee members, all IEC activities
and expenditures will be conducted independent of any CRP staff, and that the State Party
Chairman may only remove a member of the IEC management committee for cause upon the

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recommendation of the majority of the management committee. Further, no member of the IEC
management committee may hold any office or position within the regular political party
organization of the CRP, nor may they serve as a delegate to any Republican assembly or
convention where any Republican candidate is to be nominated or designated to the primary
election ballot.
ARGUMENT
CRP argues that it is entitled to summary judgment because under the Colorado
Constitution, independent expenditures, which may be made by any person, are permissible so
long as there is not coordination, and are not subject to contribution limits or source prohibitions.
The Colorado Constitution defines a person to include, inter alia, political parties.
Colo. Const., Art. XXVIII, 2(11). Colorados Independent Expenditure Statute imposes
disclosure and reporting requirements upon persons accepting independent expenditures, but
does not limit which persons may or may not accept independent expenditures. In fact, the
statute expands the definition of person to include corporations and labor unions following the
Supreme Courts holding in Citizens United v. F.E.C., 558 U.S. 310 (2010). Because political
parties are persons in Colorado, and C.R.S. 1-45-107.5(2) does not prohibit certain persons
from accepting independent expenditures, CRP may establish the IEC to accept independent
expenditures subject to the reporting and disclosure provisions contained therein.
Intervenor Defendant CEW argues that the IEP is controlled by and coordinates with
CRP, and is thus subject to the same contribution limits and prohibitions as political parties.
Colo. Const., Art. XXVIII. 3. As evidence of this control, CEW points to the facts that the IEC
(a) has initial and replacement committee members named by CRPs Chairman, (b) abides by the
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CRPs by-laws, and (c) lists CRP as its parent corporation. CEW also points to the fact that the
CRP Chairman may also remove committee members subject to certain provisions. Those
provisions are limited, however, by the IEC Standing Rules to removal for cause, such as fraud
or malfeasance. Further, removal of any committee member first requires the recommendation
of a majority of the management committee.
CEW further argues that the IEC coordinates with CRP because Chairman Call and other
agents and representatives of CRP will be soliciting contributions to the IEC, but offers no
evidence in support of this allegation. CEW admits that the IECs Standing Rules require that,
beyond the initial appointment of the Executive director and management committee members,
the management and development of any plans, projects, expenditures, or activities of the IEC
will be conducted independent of any CRP official or staff member, including the State
Chairman. CEW believes, but has offered no evidence that the IEC will, in the future, not abide
by its own rules.
The regulations defining coordination provide that expenditures are deemed to have been
coordinated with a candidate committee or political party if [a] person makes an expenditure or
engages in spending at the request, suggestion, or direction of, in consultation with, or under the
control of that candidate committee or political party. 8 Colo. Code Regs. 1505-6, Rule 1.4.
CEW implicitly concedes that the Standing Rules prevent a candidate committee, the Party, or
any of the Partys agents or officers from making a request for, or suggestion of, an
expenditure by the IEC. Similarly, CEW also apparently concedes that the Standing Rules
preclude the IEC from making any expenditure at the direction of or in consultation with a
candidate committee, the Party, or any of the Partys agents or officers. In countering a motion
for summary judgment, mere assertions are not enough, but must be supported by some showing
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of what specific evidence could be offered at trial. C.R.C.P. 56(e); Smith v. Mehaffy, 30 P.3d
727, 730 (Colo. App. 2000). CEW has not made such a showing.
Because CRP is a person in Colorado, it may establish the IEC, so long as the IEC is
independent. I find no genuine issue of material fact exists regarding CRPs control over or
coordination with, or lack thereof, the IEC. Therefore, I find summary judgment to be proper.
CONCLUSION
Accordingly, Plaintiff CRPs Motion for Summary Judgment is GRANTED, and a
declaratory judgment is entered confirming CRPs authorization under existing law to sponsor,
maintain, and operate the IEC as would any other person under Colorado law.

Done this September 30, 2014

BY THE COURT:

Robert L. McGahey, Jr.

District Judge
Cc: All Parties via efile

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