Lopez v. Griswold

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 13, 2023
• Docket: 22-1082
• Status: Unpublished

Opinion

Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

February 13, 2023 FOR THE TENTH CIRCUIT _______________________________________ Christopher M. Wolpert Clerk of Court GREG LOPEZ; RODNEY PELTON; STEVEN HOUSE,

Plaintiffs - Appellants,

v. No. 22-1082 (D.C. No. 1:22-CV-00247-JLK) JENA GRISWOLD, Colorado (D. Colo.) Secretary of State, in her official capacity; JUDD CHOATE, Director of Election, Colorado Department of State, in his official capacity,

Defendants - Appellees.

__________________________________________

ORDER AND JUDGMENT * __________________________________________

Before BACHARACH, EID, and ROSSMAN, Circuit Judges. ___________________________________________

The Colorado Constitution is designed to encourage political

candidates to limit their expenditures. This design is based on statutory

limitations on contributions. If candidates agree to limit their expenditures,

supporters of these candidates can contribute up to twice the statutory

* This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 2

limits in some circumstances. Colo. Const. art. XXVIII, § 4(5). By

allowing supporters to double their contributions, the state constitutional

provision was intended to encourage candidates to limit their expenditures.

This appeal arises from a challenge to these provisions. Two

candidates and a contributor challenged these provisions during the 2022

election cycle. In confronting these challenges, the district court denied a

request for a preliminary injunction that would have suspended these

provisions during the pendency of the underlying suit. This appeal

challenges the denial of the preliminary injunction.

The defendants argue that the entire appeal is moot, noting that the

2022 election has passed. For this argument, the defendants bear the

burden. WildEarth Guardians v. Public Serv. Co. of Colo., 690 F.3d 1174,

1183 (10th Cir. 2012). We conclude that the defendants have satisfied their

burden.

1. The Colorado Constitution’s method of limiting spending

Colorado generally limits the amount that someone can contribute to

a candidate in primary and general elections. See 8 Colo. Code Regs.

§ 1505-6:10.17.1(i) (2019) (setting limits on spending for candidates

running for governor and state senate). But a candidate’s supporters can

make contributions that double the general limits if

 the candidate agrees to limit campaign spending to a specified amount and

2 Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 3

 an opponent raises at least 10% of the applicable limit and declines to cap expenses at the specified limit.

Colo. Const. art. XXVIII, § 4(5).

The challengers to this scheme included

 candidates running in 2022 for governor (Greg Lopez) and the state senate (Rodney Pelton) and

 a contributor (Steven House).

2. Challenge by the gubernatorial candidate (Mr. Lopez)

Mr. Lopez lost in the 2022 primary, and he concedes that his appeal

is moot. Given Mr. Lopez’s concession, we dismiss his appeal as moot. See

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72–73 (2013)

(assuming without deciding that the claim was moot in light of the

claimant’s concession in earlier proceedings that an offer of judgment

would moot the claim).

3. Challenge by the senatorial candidate (Mr. Pelton)

The defendants argue that Mr. Pelton’s claim became constitutionally

moot when the 2022 election ended. But we need not address constitutional

mootness because Mr. Pelton’s appeal is at least prudentially moot. 1

1 We need not address constitutional mootness before prudential mootness. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))); see also Charles Allen Wright, Arthur R. Miller, and Edward H. Cooper, 13B Fed. Prac. & Proc. Juris § 3533.1, at 763 (3d ed. 2008) (“It also is appropriate 3 Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 4

Under the doctrine of prudential mootness, we can treat an appeal as

moot when the potential injuries are remote enough for the district court to

withhold equitable relief. Jordan v. Sosa, 654 F.3d 1012, 1024, 1029,

1033–34 (10th Cir. 2011). This doctrine applies here.

Mr. Pelton opposes mootness, arguing that when he campaigns again,

he would again confront the same provisions that encourage spending

limits. 2 A future candidacy might ordinarily prevent mootness. See Citizen

Ctr. v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014) (concluding that a

claim for a prospective injunction wasn’t moot because the requested relief

could affect future elections). Here, though, an injury to Mr. Pelton’s

future candidacy would require us to indulge two layers of speculation.

First, it is unclear when the disputed spending provisions would

affect Mr. Pelton. These provisions would affect Mr. Pelton only when he

campaigns again. Colo. Rev. Stats. § 1-45-110(1); Colo. Const. art.

XXVIII, § 4(3). Mr. Pelton won the 2022 general election, 3 so he wouldn’t

to invoke a prudential principle without confronting the uncertain line between Article III and prudential grounds . . . .”). 2 Mr. Pelton also argues that the spending limit hurts his ability to pay off his campaign debts for the 2022 election. But the disputed spending provision doesn’t restrict his ability to raise money. Given the absence of a restriction on raising money, Mr. Pelton doesn’t explain how the disputed spending provision impairs his ability to pay off his existing campaign debts. 3 We take judicial notice of Mr. Pelton’s victory in the 2022 election for state senate. See Senator Rodney Pelton, Colorado General Assembly 4 Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 5

face reelection until 2026. See Colo. Const. art. V, § 3(1) (“Senators shall

be elected for the term of four years.”). Although Mr. Pelton intends to run

for office in the future, he has not indicated which office he intends to

seek or when he would accept the spending limit.

He could conceivably start raising money now for a campaign four

years away. But Mr. Pelton doesn’t need to decide whether to limit

spending until he starts campaigning for a future election. See Colo. Rev.

Stats. § 1-45-110(1); Colo. Const. art. XXVIII, § 4(3).

Second, we can’t predict how long the preliminary injunction would

last, for it would end when the district court issues a final judgment.

United States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th Cir.

1988). And the district court has plowed ahead during the pendency of this

appeal. For example, the district court set deadlines

 in April 2023 for discovery and

 in May 2023 for dispositive motions.

In light of these deadlines, the district court will likely enter a final

judgment before Mr. Pelton could reach the spending limit.

Given the two layers of speculation, Mr. Pelton’s appeal is

prudentially moot because the possibility of an interim injury rests on

(last accessed Jan. 26, 2023), https://leg.colorado.gov/legislators/rod- pelton; see also Mont. Green Party v. Jacobsen, 17 F.4th 919, 927 (9th Cir. 2021) (taking judicial notice of election results under Federal Rule of Evidence 201(b)(2) based on the state’s public website). 5 Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 6

speculation. See Jordan v. Sosa, 654 F.3d 1012, 1024–25 (10th Cir. 2011)

(noting that a request for injunctive relief would become moot if continued

susceptibility to an injury was speculative).

4. Challenge by the contributor (Mr. House)

Mr. House challenges the provisions increasing the statutory caps on

contributions to candidates.

The disputed spending provisions don’t restrict the amount of money

that Mr. House can contribute. Granted, state law elsewhere caps

contributions. But Mr. House isn’t challenging those caps; he challenges

only the provision that allows an increase in those caps.

For this challenge, Mr. House argues that other contributors might be

able to contribute more than he can. But any complaint about this

difference would be prudentially moot for two reasons. First, no

contributor can contribute more to a particular candidate than he can.

Second, any possible injury to Mr. House would rest on too much

speculation to justify a preliminary injunction. We don’t know who Mr.

House will support in future elections, whether those candidates will

accept or decline the spending limit, whether those candidates will face

opponents, or whether those opponents would accept or decline the

spending limit. Without knowing these things, a court could just speculate

whether another contributor would be able to donate more than Mr. House.

6 Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 7

So his appeal is prudentially moot. See Jordan v. Sosa, 654 F.3d 1012,

1024–25 (10th Cir. 2011).

5. Conclusion

We lack appellate jurisdiction because

 Mr. Lopez concedes that his appeal is moot,

 Mr. Pelton’s appeal is prudentially moot because the applicability of the disputed spending provision rests on speculation, and

 Mr. House’s appeal is prudentially moot because the possibility of an injury in future elections would rest on speculation.

So we dismiss the appeal as moot. 4

Entered for the Court

Robert E. Bacharach Circuit Judge

4 Because we dismiss the appeal as moot, we don’t address the merits of the plaintiffs’ appellate arguments. 7