IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02850-CMA-KLM
ROCKY MOUNTAIN GUN OWNERS, et al.,
Plaintiffs,
v.
WAYNE W. WILLIAMS, et al.,
Defendants.
COLORADO ETHICS WATCHS OPPOSITION TO PLAINTIFFS MOTION TO DEFER
CONSIDERATION OF THE SECRETARYS RULE 12(B)(1) MOTION TO PERMIT
JURISDICTIONAL DISCOVERY

Citizens for Responsibility and Ethics in Washington d/b/a Colorado Ethics Watch
(Ethics Watch), through undersigned counsel, hereby submits its opposition to
Plaintiffs January 15, 2015 motion to defer consideration of the Secretary of States
Rule 12(b)(1) motion to dismiss to permit discovery regarding subject matter jurisdiction
(Doc. 47).
I. INTRODUCTION
Based on a false and misleading portrayal of Ethics Watchs activities, Plaintiffs
ask the Court to imagine that this case is part of some liberal Democratic conspiracy
and asks for leave to conduct discovery to learn 1) who tipped off Ethics Watch to the
existence of the mailers that were the subject of its successful campaign finance
complaint against Plaintiffs; and 2) how Ethics Watch decided to pursue the case.
It is no secret that Ethics Watch received the mailers in question from Republican
primary voters in the State Senate Districts 19 and 22. It is an undisputed fact that the

mailers went to Republican primary voters; Plaintiffs own Verified Complaint alleges as
much. (Doc. 1 at 30 and 32). RMGO and CCL fail to explain why the identity of
Ethics Watchs Republican tipsters matters to the as-applied challenge already lost
before the administrative law judge that they seek to re-litigate here.
It is also obvious why Ethics Watch pursued the case because it was a blatant
example of failure to file electioneering communication disclosures. Under Colorado
law, Ethics Watch has an absolute privilege to file non-frivolous lawsuits. The fact that
Ethics Watch prevailed in the underlying case should be a complete response to any
suggestion of bad faith.
The Motion is not calculated to lead to evidence that would convince the Court
not to abstain from interfering with a state proceeding. That proceeding has already
terminated in a final order adverse to Plaintiffs. Rather, the Motion appears calculated to
enable a campaign of retaliation and harassment by Plaintiffs against Republicans who
dare oppose their agenda for the party, such as the Republican candidates targeted in
the negative campaign mailers at the heart of this case. The Court should reject
Plaintiffs shenanigans and end this case now.
II. ARGUMENT
A.

No Basis Exists For The Court To Reconsider Its Decision To

Abstain.
After the Court entered its order denying Plaintiffs motions for preliminary
injunction and temporary restraining order, a state administrative law judge held the
enforcement hearing required by Colo. Const. art. XXVIII, 9 regarding RMGO and
CCLs failure to file electioneering communications reports. RMGO and CCL argued
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these state disclosure provisions were unconstitutional as-applied to both groups as

their defense in the administrative case. On December 23, 2014, the judge issued a
final order finding RMGO and CCL violated state disclosure law and rejecting the asapplied constitutional challenge. (Doc. 52-1). Thus, both RMGO and CCL had the
chance to argue the same constitutional claims they are now attempting to re-litigate in
this federal case. In addition, the December 23 order can be appealed to the Colorado
Court of Appeals, where RMGO and CCL may not only seek to overturn the ruling on
the as-applied challenge but also argue any facial challenges to the Colorado
electioneering communications provisions or enforcement procedures. See Colo. Const.
art. XXVIII, 9(2)(a); C.R.S. 24-4-106(11).
This discovery motion is simply an attempt by RMGO and CCL to avoid the ruling
of the state administrative judge with a new bad faith argument that was not raised in
their earlier preliminary injunction and temporary restraining order briefing, nor argued in
the administrative proceedings. Rather than authorizing discovery and reconsidering the
Courts decision to abstain in the face of state enforcement proceedings, the Court
should reject the motion and dismiss the complaint.
B.

The Motive Of A Private Group That Files A Meritorious Complaint Is

Never Relevant.
Plaintiffs seem to believe that only they have First Amendment rights, and that
Ethics Watch and its supporters have none. To the contrary, the complaining party in a
private enforcement action has constitutional rights. Both the First Amendment of the
U.S. Constitution and Colo. Const. art. II, 6 protect the right of Ethics Watch and its

supporters to petition the government for redress of grievances and enforcement of

campaign finance laws by filing and prosecuting its meritorious complaint.
Under the First Amendment, any inquiry into the intent of Ethics Watch in filing its
meritorious claims against RMGO and CCL is forbidden. The right of the people to
inform their representatives in government of their desires with respect to the passage
or enforcement of laws cannot properly be made to depend upon their intent in doing
so. Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139
(1961). This principle applies with full force to the right to petition the government for
redress of grievances in judicial settings: collective activity undertaken to obtain
meaningful access to the courts is a fundamental right within the protection of the First
Amendment. United Transp. Union v. State Bar of Michigan, 401 U.S. 576, 585 (1971).
First Amendment protection ends only at baseless litigation premised on intentional
falsehoods or knowingly frivolous claims. Bill Johnson's Rests. v. NLRB, 461 U.S. 731,
743 (1983) (internal citations omitted). Ethics Watchs successful complaint was
anything but baseless.
More recently, the Supreme Court held that [a] test focused on the speaker's
intent could lead to the bizarre result that identical ads aired at the same time could be
protected speech for one speaker, while leading to criminal penalties for another. Under
well-accepted First Amendment doctrine, a speaker's motivation is entirely irrelevant to
the question of constitutional protection." Fed. Election Commn v. Wisconsin Right to
Life, Inc., 551 U.S. 449, 468 (2007) (quotations and internal parenthetical omitted).
Indeed, the Wisconsin Right to Life court found wide-ranging discovery into the intent of

the speaker of the very sort RMGO and CCL ask for here to be a severe burden
on First Amendment rights. 551 U.S. at 468 n.5.
The same result occurs under the Colorado Constitution. A plaintiff asserting a
claim based on a defendants exercise of its state constitutional right to petition the
government for redress of grievances must show both that the litigation was baseless
and that the petitioning activity was conducted primarily for harassment or other
improper purpose. Protect Our Mountain Envt, Inc. v. District Court of County of
Jefferson, 677 P.2d 1361, 1367 (Colo. 1984) (citing Bill Johnsons Rests., 461 U.S. at
748-49). We have construed the Colorado constitutional provision requiring courts to
be open to every person and a speedy remedy be afforded for every injury, Colo. Const.
Art. II, Sec. 6, in a similar fashion. Id. at 1367 n.6. The Colorado Constitution
specifically provides Ethics Watch the right to file campaign finance enforcement cases
as a person who believes that a violation has occurred, without any regard to intent or
motivation. Colo. Const. art. XXVIII, 9(2)(a). Colorado law also provides the
appropriate remedy if the campaign finance enforcement complaint process is abused,
by awarding attorney fees and costs to the respondent if a complaint is substantially
frivolous, substantially groundless, or substantially vexatious. See C.R.S. 1-45111.5(2). The administrative law judge ruling in favor of Ethics Watchs campaign
finance complaint removes it from this category, yet even a complaint that warrants
such sanctions does not involve an inquiry into motivation and intent. See, e.g. Cave v.

McGihon, Colorado Office of Administrative Courts Case No. OS 2012-0010 (Dec. 18,
2012) (Appendix A).1
Ethics Watchs right to petition the government for redress of grievances
precludes the requested discovery because Ethics Watchs suit was not frivolous. That
being the case, Ethics Watchs motives are irrelevant and the requested discovery
would itself violate the First Amendment rights of Ethics Watch and its supporters.
Wisconsin Right to Life, 551 U.S. at 468 n.5.
C.

RMGO and CCL Fail To Establish Any Basis to Find Bad Faith
Putting aside the constitutional implications of delving into Ethics Watchs intent

behind the campaign finance complaint, Plaintiffs have failed to provide any reliable
evidence that indicates bad faith to justify the Motion. RMGO and CCLs bad faith
argument is based primarily on a chart purporting to show that Ethics Watch only
targets conservative groups. No hearing under Daubert v. Merrell Dow Pharm., 509
U.S. 579 (1993) is necessary for the Court to reject the opinions of Plaintiffs Virginia
attorney attempting to characterize almost nine years of an organizations activities
based on his uninformed reading of one portion of the Ethics Watch website. (Doc. 467). Not only does the chart ignore actions described on other portions of the
organizations website, this chart purporting to assign partisan affiliation to Ethics
Watchs legal actions leaves out or mischaracterizes items from the website that dont fit
RMGO and CCLs story.

The copy of this final administrative judge opinion in Appendix A is the official version
available online from the Secretary of States campaign finance complaint database:
http://tracer.sos.colorado.gov/PublicSite/SearchPages/ComplaintSearch.aspx.
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For example, Plaintiffs counsels chart omits Benefield v. Colorado Republican

Party, 329 P.3d 262 (Colo. 2014), in which Ethics Watch filed an amicus brief in support
of the Colorado Republican Partys effort to obtain an award of attorneys fees against
fourteen Democratic legislators who wrongfully withheld documents that were subject to
disclosure. See Doc. 46-5 at 6 (Ethics Watch Joins Coalition To File Supreme Court
Brief In Key CORA Case). The chart also ignores two successful cases brought by
Ethics Watch in coalition with Colorado Common Cause that challenged several
campaign finance rules (reducing disclosure for conservative and liberal political groups
alike) that were overturned for violating the Colorado Constitution. See Gessler v.
Colorado Common Cause, 327 P.3d 232 (Colo. 2014); Colorado Ethics Watch v.
Gessler, 2013 Colo. App. LEXIS 2056, 2013 COA 172M (Colo. App. 2013); Doc. 46-5 at
4 (Court of Appeals Strikes Down Gesslers Campaign Finance Rules); id. at 8
(Appeal Court Affirms Colorado Ballot Issue Disclosure Law).
For those past legal actions that are included in the attorney-created chart, the
partisan affiliation labels and analysis is misleading at best. For example, Number 34 in
the chart (Doc. 46-7) claims that Ethics Watchs lawsuit against Clear the Bench
Colorado should be considered a partisan attack on Republicans; notwithstanding the
facts that Colorado judicial elections are nonpartisan, Clear the Bench described itself
as a nonpartisan group, and one of Ethics Watchs bipartisan team of lawyers on that
case was Robert N. Miller, the former United States Attorney for the District of Colorado
appointed by President Ronald W. Reagan. See Colorado Ethics Watch v. Clear the
Bench Colorado, 277 P.3d 931 (Colo. App. 2012). Plaintiffs attorney also categorizes
Ethics Watchs legal challenge to an advisory opinion issued by the Colorado
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Independent Ethics Commission as a Government suit (Doc. 46-7, Number 29),

without noting that the challenged advisory opinion was given to a Democratic legislator,
authorizing her to accept a gift of travel expenses to Turkey. See Doc. 46-5 at 22
(Ethics Watch Sues IEC To Void Approval Of Junket). Even if the Court were to keep
score on Ethics Watchs past legal actions as described in Plaintiffs chart, RMGO and
CCLs motion completely disregards any action categorized as unknown or
government (particularly when the complaint actually involved Democrats) while
attempting to conjure evidence of bad faith. Despite asserting that Ethics Watch failed to
file enforcement suits against similarly situated liberal groups (Doc. 46 at 26), RMGO
and CCL fail to identify any instances where a liberal group engaged in the type of
electioneering that is the subject of Ethics Watchs administrative complaint.
Ethics Watchs cases involving issues of state campaign finance are too
complicated to simply categorize as Republican or Democratic. For example, Ethics
Watch successfully convinced Republican Secretary of State Scott Gessler to deny
Citizens Uniteds petition to be exempted from Colorado campaign finance law as a
purported media entity. See Doc. 46-5 at 3 (Ethics Watch Applauds SOS Denial of
Citizens United Petition). Ethics Watch then supported Secretary Gesslers defense of
a federal lawsuit filed by Citizens United in a case not listed in Plaintiffs chart. See Doc.
46-5 at 2 (Ethics Watch and Coalition Oppose Citizens United at Tenth Circuit).
Plaintiffs suggestion that this should be considered a partisan attack on Republicans
(Doc. 46-7, Number 46) lacks merit; doubtless, if Ethics Watch had instead sued the
Republican Secretary for opposing the Republican Citizens United, RMGO and CCL
would also have classified such a suit as a partisan attack on Republicans.
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In addition to the Citizens United case, Ethics Watch was cooperatively added as
a co-defendant with the Republican Secretary of State in a suit filed by the Colorado
Republican Party for permission to establish an independent expenditure committee
operating outside campaign finance limits. See Doc. 46-5 at 2 (Ethics Watch Joins
Secretary of State to Defend Lawsuit by Republican Party). While RMGO and CCL
attempt to portray this suit as another partisan attack on Republicans (Doc. 46-7,
Number 47), the reality (in addition to the fact that Ethics Watch is a defendant, not a
plaintiff in the suit) is more complicated. During the administrative hearing that preceded
the court case, the Colorado Democratic Partys representative testified that it also
intends to establish an independent expenditure committee should the Republicans
ultimately prevail. See Doc. 46-5 at 3 (Ethics Watch Calls On Democrats, Republicans
To Drop Super-PAC Plans). The Colorado Democratic Party chose not to join the
Colorado Republican Party when it filed its suit to establish such an unlimited
committee, but is content to sit back and reap any benefits from the outcome. Ethics
Watchs opposition to such committees and defense of the Colorado Constitutions
limits on fundraising by political parties is adverse to both Democratic and Republican
state party committees.
As seen in this brief dissection of RMGO and CCLs offer of proof of bad faith,
Ethics Watchs campaign finance, open records and ethics litigation deals with a mix of
issues and parties that defy simple categorization into partisan camps. If there is a
consistent pattern in Ethics Watchs actions in the last nine years (extending far past the
brief chart summary), it is an ideological position in favor of campaign finance disclosure
& contribution limitations, supportive of an independent judicial branch, and opposed to
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government officials who act under conflicts of interest, misuse public resources or
accept improper gifts. This is no more bad faith than RMGOs advocacy in favor of its
interpretation of the Second Amendment or CCLs advocacy against legal abortion.
Finally, it must be noted that the news article from a defunct blog cited by
RMGO and CCL (Doc. 46-6 at 3) quotes Republican lawyer Mario Nicolais criticizing
Ethics Watch. This is the same Mario Nicolais who was the target of RMGOs attack
mailer and at least one of CCLs attack mailers, yet Ethics Watch pursued this case
anyway. It is hard to imagine better proof of Ethics Watchs lack of bad faith in filing the
underlying case.
III. CONCLUSION
The Court should deny Plaintiffs motion for jurisdictional discovery and enter a
protective order, pursuant to Fed. R. Civ. P. 26(c)(1), forbidding Plaintiffs from engaging
in discovery regarding Ethics Watchs sources or motives for filing its meritorious
campaign finance complaint.
Respectfully Submitted on February 6, 2015,

____s/ Margaret Perl__________

Margaret Perl
Luis Toro
COLORADO ETHICS WATCH
1630 Welton Street, Suite 415
Denver, CO 80202
Telephone: 303-626-2100
Email: pperl@coloradoforethics.org
ltoro@coloradoforethics.org
Attorneys for Colorado Ethics Watch

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CERTIFICATE OF SERVICE
I certify that on February 6, 2015, a copy of this OPPOSITION TO PLAINTIFFS
MOTION TO DEFER CONSIDERATION OF THE SECRETARYS RULE 12(B)(1)
MOTION TO PERMIT JURISDICTIONAL DISCOVERY was served through CM/ECF on
the parties listed below:
David A. Warrington
Laurin H. Mills
Andrew J. Narod
Paris R. Sorrell
LeClairRyan, A Professional Corporation
2318 Mill Road, Suite 1100
Alexandria, Virginia 22314
Telephone: (703) 684-8007
david.warrington@leclairryan.com
laurin.mills@leclairryan.com
andrew.narod@leclairryan.com
paris.sorrell@leclairryan.com
James O. Bardwell
Rocky Mountain Gun Owners
501 Main Street, Suite 200
Windsor, CO 80550
Telephone: (877) 405-4570
jb@nagrhq.org
Attorneys for Rocky Mountain Gun Owners and Colorado Campaign for Life
Kathryn A. Starnella
Assistant Attorney General
Frederick R. Yarger
Assistant Solicitor General
Public Officials Unit |State Services Section
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: (720) 508-6176
kathryn.starnella@state.co.us
fred.yarger@state.co.us
Attorneys for Colorado Secretary of State
___s/ Margaret Perl__________________
Margaret Perl
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