Grant v. Meyer

Citation828 F.2d 1446
Decision Date02 September 1987
Docket NumberNo. 84-1949,84-1949
PartiesPaul K. GRANT, Edward Hoskins, Nancy P. Bigbee, Lori A. Massie, Ralph R. Harrison, Coloradans for Free Enterprise, Inc., a Colorado corporation, Plaintiffs-Appellants, v. Natalie MEYER, in her official capacity as Colorado Secretary of State, and Duane Woodard, Colorado Attorney General, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

William C. Danks, Denver, Colo., for plaintiffs-appellants.

Maurice G. Knaizer, First Asst. Atty. Gen., Denver, Colo., for defendants-appellees.



HOLLOWAY, Chief Judge.

This appeal involves the constitutionality, under the First and Fourteenth Amendments, of Colo.Rev.Stat. Sec. 1-40-110 (1980) 1 which makes it a criminal offense 2 to pay any consideration for the circulation of initiative or referendum petitions.

The plaintiffs initiated a petition to amend the Colorado Constitution by removing motor carriers from the jurisdiction of the State Public Utilities Commission. In order to obtain the required number of signatures, the plaintiffs wished to pay other individuals to circulate the petitions. Plaintiffs brought suit under 42 U.S.C. Sec. 1983 (1982) claiming that the statutory prohibition against such payment violates their rights of free speech and political association. The district court rejected the

constitutional claim. A divided panel of this court affirmed, adopting the opinion of the district court. 741 F.2d 1210, 1211 (10th Cir.1984) (per curiam). We granted rehearing en banc and vacated the panel opinion. 780 F.2d 848 (10th Cir.1985). After consideration of supplemental briefs and reargument to the court en banc, we now reverse

The critical facts are not in dispute. Colorado is one of 23 states to allow its citizens to place propositions on the ballot through the initiative process. Colo. Const. art. V, Sec. 1; Colo.Rev.Stat. Sec. 1-40-101 et seq. (1980); see Defendant's Exhibit E ("Initiative Provisions by State"). Under Colorado law, sponsors of the initiative must submit their proposition to the directors of the State Legislative Council and Drafting Office for review and comment. The draft is then submitted to a three-member board, 3 which prepares a title, submission clause and summary. The proponents of the initiative then have six months to obtain the necessary signatures and file the petition with the Secretary of State. 4 If these requirements are met, the submission clause will appear on the ballot at the next general election. Colo.Rev.Stat. Sec. 1-40-101-105 (1980 & 1986 cum. supp.); Dye v. Baker, 143 Colo. 458, 354 P.2d 498, 500 (1960).

The plaintiffs submitted their initiative measure to the Secretary of State, and set out to obtain the required 46,737 signatures of registered voters. When the trial began the plaintiffs had slightly over one month remaining to obtain approximately 30,000 more signatures.


We have considered, sua sponte, several questions relating to the justiciability of the constitutional issue presented: (1) the desirability of abstention because of the criminal sanctions in the Colorado statute banning the payment of initiative petition circulators; (2) the question of ripeness since the plaintiffs have not yet been prosecuted for violating the Colorado statute; and (3) the possibility that the appeal is moot since the November 1984 election, which was originally in question, has already passed. We conclude that we should decide the merits of the appeal.


We feel that abstention is not proper here. In opposing an injunction pending appeal, the State's memorandum cited Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), inter alia, arguing that grounds for injunctive relief against enforcement of the State criminal statute were not demonstrated. On appeal, however, the plaintiffs have omitted their prayer for injunctive relief, expressing confidence that a declaratory judgment would be respected by the defendants. We feel that there is no impediment to affording these plaintiffs declaratory relief in order to vindicate their rights under the First and Fourteenth Amendments. 5


We also believe the dispute is ripe despite the absence of a pending criminal prosecution against any of the plaintiffs. The plaintiff class consists of five individuals and a corporation called "Coloradans for Free Enterprise, Inc." The individual plaintiffs are registered voters in Colorado and several of them testified that they wished to pay others for their time and labor in circulating the petitions. Additionally plaintiffs Grant and Hoskins have been designated as representatives of the petition to deregulate Colorado's transportation industry and plaintiff Coloradans for Free Enterprise, Inc., has supported the petition. Plaintiffs' Exhibit 1.

The plaintiffs are therefore parties "against whom these criminal statutes directly operate...." Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). "Moreover, the State has not disavowed any intention of invoking the criminal penalty provision ..." against these plaintiffs, Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 2311, 60 L.Ed.2d 895 (1979), and the State here is vigorously upholding the statute in litigation with these plaintiffs. "[W]hen fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative, a plaintiff need not 'first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.' " Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974)). Thus the positions of the parties are sufficiently adverse for us to reach the merits of plaintiffs' constitutional claim. Wilson v. Stocker, 819 F.2d 943, 946-47 (10th Cir.1987).


We also believe that the appeal is not moot even though the November 1984 general election has passed, as the Court held in First National Bank of Boston v. Bellotti, 435 U.S. 765, 774-75, 98 S.Ct. 1407, 1414-15, 55 L.Ed.2d 707 (1978). It is well settled that an appeal is not moot if the dispute is "capable of repetition, yet evading review." See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. ----, ----, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Under such a rationale two requirements must be met. First, the duration of the challenged action must be too short for completion of litigation prior to its cessation or expiration. Second, there must be a reasonable expectation that the same complaining party will be subjected to the same action again. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S.Ct. 983, 992, 59 L.Ed.2d 230 (1979); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam).

These requirements are satisfied here. First, Colorado law requires proponents of an initiative to obtain a substantial number of signatures within a six-month period. Even if a proponent could obtain a favorable ruling within that time, he would likely be unable to take advantage of his victory by using paid circulators to obtain the necessary signatures. First National Bank of Boston v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414, 55 L.Ed.2d 707 (1978). Second, Colorado continues to prohibit the payment of circulators and the initiative to deregulate Colorado's transportation industry apparently has not yet been enacted. As a result we can reasonably expect that the same dispute will erupt again between the parties. See id. at 774-75, 98 S.Ct. at 1414-15; Mandel v. Bradley, 432 U.S. 173, 175 n. 1, 97 S.Ct. 2238, 2240 n. 1, 53 L.Ed.2d 199 (1977) (per curiam).

For these reasons we turn to the merits of plaintiffs' constitutional claim.


As noted, the district court rejected the plaintiffs' claim on the merits, finding that the statute does not impose a burden on their right to free speech. The court stated that plaintiffs are not restricted in the

personal communication of their belief in the proposition; that their ability to spend money on every other form of thought dissemination is totally unfettered; and that the statute only restricts generalized support for political thought, much as the contribution of money was regarded in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). The court also "[took] seriously" the State's interests sought to be achieved by the statute--(1) protecting the integrity of the initiative process, and (2) insuring a broad base of support for any initiated measure

As to the first asserted state interest, the court found that the testimony lends credence to the State's contentions that paid circulators would be persuaded to use sales techniques, not inherently illegal, just to enhance their own compensation. The court also referred to testimony about an incident in Florida where circulators padded petitions with names taken from a telephone book and cited evidence that no effort is made in Colorado to verify the validity of signatures except on the filing of written objections.

With respect to the second asserted state interest, the district court pointed to evidence of the history of the initiative process as supporting the State's contention that there is a significant need to insure any measure has a substantial base of support before it is submitted to the electorate. Specifically, the court pointed out that the initiative process originated in the West as a "grassroots" means of protecting citizens from overpowering special interest groups, and that this process is relatively rigid in practice in that once the measure is submitted to State officers for review and presented to the public, it cannot...

To continue reading

Request your trial
30 cases
  • Citizens for Respon. Gov. State Polit. v. Buckley, Civ.A. 96-S-2844.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • August 10, 1999
    ...applies in cases involving contribution limits."), cert. denied, 518 U.S. 1033, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996); Grant v. Meyer, 828 F.2d 1446, 1452 (10th Cir.1987) ("[R]estraints Page 1076 on political association and communication, imposed by restrictions on financing of campaigns......
  • Koontz v. Watson
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • January 30, 2018
    ...current form, the state is free to initiate such action against candidates [for judicial office]." Id. at 1118 (citing Grant v. Meyer , 828 F.2d 1446, 1449 (10th Cir. 1987) (explaining that when fear of sanction "is not imaginary or wholly speculative, a plaintiff need not first expose hims......
  • Kansas Judicial Review v. Stout, 06-3290.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 12, 2008 the Canons remain in effect in their current form, the state is free to initiate such action against candidates. See Grant v. Meyer, 828 F.2d 1446, 1449 (10th Cir.1987) (when fear of sanction "is not imaginary or wholly speculative, a plaintiff need not `first expose himself to actual ar......
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 5, 2010
    ...policy where protection of robust discussion is at its zenith). Meyer v. Grant, 486 U.S. at 425, 108 S.Ct. 1886 (quoting Grant v. Meyer, 828 F.2d 1446, 1456-57 (10th Meyer v. Grant involved direct prohibitions and limitations on the number of people with whom the plaintiffs in those cases c......
  • Request a trial to view additional results
1 books & journal articles
  • Election fraud and the initiative process: a study of the 2006 Michigan civil rights initiative.
    • United States
    • Fordham Urban Law Journal Vol. 34 No. 3, April - April 2007
    • April 1, 2007
    ...same seriousness of purpose and intense publicity that is generally accorded contested nomination elections"). (154.) See Grant v. Meyer, 828 F.2d 1446, 1455 (10th Cir. 1987). The number of signatures needed is typically a percentage of the population that voted in a recent election. INITIA......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT