Coalition for Secular Government v. Gessler

71 F. Supp. 3d 1176, 2014 U.S. Dist. LEXIS 144389, 2014 WL 5092227
CourtDistrict Court, D. Colorado
DecidedOctober 10, 2014
DocketCivil Action No. 12-cv-1708-JLK-KLM
StatusPublished

This text of 71 F. Supp. 3d 1176 (Coalition for Secular Government v. Gessler) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coalition for Secular Government v. Gessler, 71 F. Supp. 3d 1176, 2014 U.S. Dist. LEXIS 144389, 2014 WL 5092227 (D. Colo. 2014).

Opinion

MEMORANDUM OPINION AND ORDER

KANE, J.

Speech advocating approval or disapproval of a ballot issue is “ ‘at the core of our electoral process and of the First Amendment freedoms,’ ... an area of public policy where protection of robust discussion is at its zenith.”

Grant v. Meyer, 828 F.2d 1446, 1456-57 (10th Cir.1987)(Moore, J.)(en banc).

Plaintiff Coalition for Secular Government (CSG) is a small “think tank” that advocates for the separation of church and state. One of its advocacy pieces is a policy paper on “personhood” and, in years where a “personhood” initiative has qualified for Colorado’s general election ballot, the paper addresses that initiative and urges a “no” vote. CSG’s “electioneering” activities have been limited to “person-hood” ballot measures in 2008, 2010, and again in 2014. CSG does not advocate for candidates or political parties.

In 2012, faced with ongoing uncertainty that its “personhood” paper made it an “issue committee” under article XXVIII of the Colorado Constitution and related Fair Campaign Practice Act (FCPA), CSG filed suit, seeking declaratory judgment and in-junctive relief exempting it from the law’s registration and expenditure disclosure requirements. Personhood’s failure to qualify for the 2012 ballot eliminated the immediacy of CSG’s request for relief, but the case is newly revived with the qualification of Colorado Amendment 67 on the 2014 [1178]*1178ballot and CSG’s desire to market and distribute its updated paper before the election.

Applying the standards articulated in Sampson v. Buescher, 625 F.3d 1247 (10th Cir.2010), as interpreted by the Colorado Supreme Court in Gessler v. Colorado Common Cause, 327 P.3d 232 (Colo.2014), I find CSG falls outside the scope of ballot issue-committees to which Colorado’s campaign finance disclosure laws may constitutionally apply. The nature of CSG and its advocacy render any “informational interest” the government has in mandating contribution and expenditure disclosures so minimal as to be nonexistent, and certainly insufficient to justify the burdens compliance imposes on members’ constitutional free speech and association rights.

This conclusion is so obvious, moreover, that having to adjudicate it in every instance as the Colorado Supreme Court implies is necessary itself offends the First Amendment. By setting in stone the uncertainty that precipitated this litigation in the first place, the Court’s interpretation chills robust discussion at the very core of our electoral process. I am without authority, however, to undo the damage done because Sampson provides an adequate and binding legal standard under which CSG’s specific constitutional claims may be decided. The wholesale invalidation of Colorado’s $200 contribution threshold for ballot issue committees, though warranted, would go beyond my charge and be improvident. What I can do, however, is award CSG its attorney fees under 42 U.S.C. § 1988 and advise state lawmakers that the Secretary will be on the hook for fees every time a group, like CSG, falls under the $200 trigger for issue committee status and has to sue to vindicate its First Amendment rights.

I.

Background, and Procedural History.

Plaintiff Coalition for Secular Government (“CSG”) is a nonprofit corporation that “seeks to educate the public about the necessary secular foundation of a free society, particularly the principles of individual rights and separation of church and state.” CSG Mission Stm. (Tr. Ex. 40). Its advocacy includes opposition to laws based on religious scripture or dogma, such as abortion and discrimination against gay persons; government promotion of religion such as the teaching of “intelligent design” in public schools; and the granting of tax exemptions or other privileges to churches that are not made available to other nonprofits. Id. Its founder and sole principal is Diana Hsieh (pronounced “Shay”), who holds a doctorate in philosophy. CSG’s advocacy takes the form of blog posts and video blogs, and includes a lengthy policy paper on the consequences of enshrining the concept of “personhood” into law.

CSG was originally entirely self-financed by Dr. Hsieh,. but now solicits pledges online to defray marketing and operating expenses and to pay Dr. Hsieh and the coauthor of the “personhood” paper a small ($1,000 in 2010) honorarium. Combined monetary and nonmonetary contributions to CSG have ranged from $200 in 2008 to approximately $3,500 expected in 2014. Given its small size and the nature of its activities, it has never been clear that CSG is required to register as an “issue committee” under article XXVIII of the Colorado Constitution, or to meet the reporting requirements imposed under § 1-45-108 of the state’s Fair Campaign Practice Act (FCPA).1 Not wanting to run afoul of the law, Dr. Hsieh elected to register CSG as [1179]*1179an “issue committee” in 2008 and 2010, and did her best to comply with the FCPA reporting requirements.2

In October 2010, Dr. Hsieh’s house flooded and in the confusion she was a day late in filing a committee report. She was fined $50,3 and her fine was only waived after she sought an administrative remedy. When movement began on qualifying a Personhood Amendment for the 2012 election cycle, CSG filed suit, seeking a declaration that certain elements of article XXVIII § (2) and FCPS reporting requirements were unconstitutionally vague and overbroad and seeking preliminary in-junctive relief from having to register in 2012.

When it became clear “personhood” would not make the 2012 ballot, it was agreed that the declarations CSG was seeking were uniquely matters of state law and appropriate for certification to the Colorado Supreme Court. By Order dated October 10, 2012, I certified four questions 4 to the Court under Colorado Appellate Rule 21.1. (Doc. 34).

By Order dated July 2, 2014, the State Supreme Court summarily dismissed the certified questions “in light of the Court’s decision in case 12SC783 Gessler v. Colorado Common Cause, which was issued June 16, 2014.” (Doc. 40-1.) I will discuss Gessler in more detail below, but its gist was to invalidate a rulemaking in which the Secretary sought to raise the contribution threshold for article XXVIII “issue committee” status from $200 to $5,000 in response to the Tenth Circuit’s decision in Sampson v. Buescher, 625 F.3d 1247 (10th Cir.2010). In Sampson, the Tenth Circuit held unconstitutional Colorado’s campaign finance disclosure requirements as applied to a single ballot-issue committee of neighbors that had spent $1,000 to challenge an annexation initiative. The Court applied “exacting scrutiny” to the case, invalidating Colorado’s disclosure requirements on grounds the burdens imposed could not be justified by the public’s informational interest in how the group made and spent its money. Id. at 1261 (holding government’s [1180]*1180informational interest was “minimal, if not nonexistent, in light of the small size of the contributions”).

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Related

Buckley v. Valeo
424 U.S. 1 (Supreme Court, 1976)
First Nat. Bank of Boston v. Bellotti
435 U.S. 765 (Supreme Court, 1978)
Sampson v. Buescher
625 F.3d 1247 (Tenth Circuit, 2010)
Gessler v. Colorado Common Cause
2014 CO 44 (Supreme Court of Colorado, 2014)
Doe v. Reed
177 L. Ed. 2d 493 (Supreme Court, 2010)
Grant v. Meyer
828 F.2d 1446 (Tenth Circuit, 1987)

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Bluebook (online)
71 F. Supp. 3d 1176, 2014 U.S. Dist. LEXIS 144389, 2014 WL 5092227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coalition-for-secular-government-v-gessler-cod-2014.