Independence Inst. v. Gessler

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Citation869 F.Supp.2d 1289
Docket NumberCivil Action No. 10–cv–00609–PAB–MEH.
PartiesThe INDEPENDENCE INSTITUTE, et al., Plaintiffs, v. Scott GESSLER, in his official capacity as Colorado Secretary of State, Defendant.
Decision Date26 April 2012

869 F.Supp.2d 1289

The INDEPENDENCE INSTITUTE, et al., Plaintiffs,
Scott GESSLER, in his official capacity as Colorado Secretary of State, Defendant.

Civil Action No. 10–cv–00609–PAB–MEH.

United States District Court,
D. Colorado.

April 26, 2012.

Held Invalid

8 Colo.
Code Regs. § 1505–1:15.3.2

[869 F.Supp.2d 1295]

David Arthur Lane, Lisa R. Sahli, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiffs.

Amy Christine Colony, Leeann Morrill, Matthew David Grove, Maurice G. Knaizer, Melody Mirbaba, Colorado Attorney General's Office, Denver, CO, for Defendant.


PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the Motion for Summary Judgment [Docket No. 143] filed by defendant Scott Gessler in his official capacity as Secretary of State for the State of Colorado. The motion is fully briefed and ripe for disposition.


In 2009, the Colorado General Assembly passed and the Governor signed into law House Bill 09–1326 (“H.B. 1326”), which is codified at Colo.Rev.Stat. §§ 1–40–101 et seq. The Colorado General Assembly enacted H.B. 1326 in order to protect and preserve the integrity of Colorado's initiative and referendum process. In enacting the statute, the General Assembly made the following findings regarding the initiative process:

(I) The initiative process relies upon the truthfulness of circulators who obtain the petition signatures to qualify a ballot issue for the statewide ballot and that during the 2008 general election, the honesty of many petition circulators was at issue because

[869 F.Supp.2d 1296]

of practices that included: Using third parties to circulate petition sections, even though the third parties did not sign the circulator's affidavit, were not of legal age to act as circulators, and were paid in cash to conceal their identities; providing false names or residential addresses in the circulator's affidavits, a practice that permits circulators to evade detection by persons challenging the secretary of state's sufficiency determination; circulating petition sections without even a rudimentary understanding of the legal requirements relating to petition circulation; and obtaining the signatures of persons who purported to notarize circulator affidavits, even though such persons were not legally authorized to act as notaries or administer the required oath;

(II) The per signature compensation system used by many petition entities provides an incentive for circulators to collect as many signatures as possible, without regard for whether all petition signers are registered electors; and

(III) Many petition circulator affidavits are thus executed without regard for specific requirements of law that are designed to assist in the prevention of fraud, abuse, and mistake in the initiative process.

Colo.Rev.Stat. § 1–40–101(2)(a) (2012). The legislative findings of H.B. 1326 also include the following conclusions:

(I) As a result of the problems identified in paragraphs (a) and (b) of this subsection (2), one or more ballot measures appeared on the statewide ballot at the 2008 general election even though significant numbers of the underlying petition signatures were obtained in direct violation of Colorado law and the accuracy of the secretary of state's determination of sufficiency could not be fully evaluated by the district court; and

(II) For the initiative process to operate as an honest expression of the voters' reserved legislative power, it is essential that circulators truthfully verify all elements of their circulator affidavits and make themselves available to participate in challenges to the secretary of state's determination of petition sufficiency.

Colo.Rev.Stat. § 1–40–101(2)(c) (2012).

Plaintiffs are persons, organizations, and petition circulators involved in the initiative and referendum process in the State of Colorado. Plaintiffs argue that certain provisions of H.B. 1326 are unconstitutional as they severely burden their rights under the First Amendment to the United States Constitution. See Docket No. 47. Specifically, Mason Tvert, co-founder and executive director of Safer Alternative For Enjoyable Recreation (“SAFER”), asserts that he has preliminary plans for introducing a statewide initiative in 2012 and the statute burdens his right to free speech. Docket No. 47 at 5. Additionally, Scott Lamm, president of Lamm Consulting, a Denver-based petition drive management company, plans to continue his active involvement in the petitioning process but “is chilled in doing so by provisions of [H.B. 1326].” Id. at 7.

In their second amended complaint, plaintiffs charge that the following portions of H.B. 1326 violate their First Amendment freedom of speech rights: (1) the provision banning non-residents from circulating petitions within the state of Colorado, § 1–40–112(1), § 1–40–111(2)(a); (2) the requirement that circulators provide a form of identification, § 1–40–111(2)(b)(I)(C); (3) the requirement that circulators agree to make themselves available in the event a protest to petition

[869 F.Supp.2d 1297]

signatures is filed, § 1–40–111(2)(a), § 1–40–111(3)(a); (4) the requirement that a petition entity undergo state-mandated training prior to performing petition activities, § 1–40–112(3); (5) the partial ban of pay-per-signature compensation for circulators, § 1–40–112(4); (6) the requirement that petition entities return collected signatures to the Secretary of State three weeks and three months in advance of an election, § 1–40–117(3)(b); (7) the private enforcement and attorney's fees provision, § 1–40–118(2.5); (8) the requirement that petition entities obtain a license from the Secretary of State prior to providing payment to circulators, § 1–40–135(2)(a) and § 1–40–135(2)(c); (9) the requirement that proponents of a petition or an issue committee acting on behalf of proponents file a report stating the dates of circulation by all circulators who were paid on the petition, the total hours each circulator was paid to circulate a section of the petition, and the gross amount of wages paid for such hours, § 1–40–121(1); and (10) the penalty provision, § 1–40–135(3)(a). Docket No. 47 at 14–20.

On April 12, 2010, plaintiffs filed a Motion for a Preliminary Injunction [Docket No. 15] seeking to enjoin the Secretary from enforcing the contested provisions of H.B. 1326. The Court held three hearings on plaintiffs' motion-on May 13, 2010 [Docket No. 42], on May 28, 2010 [Docket No. 54], and on June 2, 2010 [Docket No. 57].

On June 11, 2010, the Court issued an Order, 718 F.Supp.2d 1257 (D.Colo.2010), enjoining the Secretary from enforcing § 1–40–112(4), § 1–40–135, and § 1–40–121 to the extent that those sections applied to the partial ban on pay-per-signature compensation. 718 F.Supp.2d at 1278–79. The Court found that, under either a strict scrutiny analysis or a balancing test, “the State ha[d] failed to demonstrate that its interests make it necessary to burden the plaintiff's rights in the way that § 1–40–112(4) has.” 718 F.Supp.2d at 1278. On August 8, 2010, in a separate Order [Docket No. 72], the Court also enjoined the Secretary from enforcing portions of Colorado Revised Statutes § 1–40–112(1), § 1–40–111(2)(a), and § 1–40–112(2)(b)(I)(C), which banned non-resident circulators from circulating petitions in Colorado. Docket No. 72 at 24.

In the present motion, the Secretary requests that the Court enter summary judgment [Docket No. 144] on eight of plaintiffs' ten claims for relief. The Secretary also filed a motion to strike various portions of affidavits submitted by plaintiffs on the grounds that the submissions are irrelevant or lack adequate foundation [Docket No. 234].


Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to the proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir.2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.1997). When reviewing a motion for summary judgment, a court must view the

[869 F.Supp.2d 1298]

evidence in the light most favorable to the nonmoving party. Id.;see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir.2010).

A movant who bears the burden at trial must submit evidence to establish the essential elements of its claim or affirmative defense. In re Ribozyme Pharms., Inc. Sec. Litig., 209 F.Supp.2d 1106, 1110 (D.Colo.2002). By contrast, if the movant “does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. ANALYSISA. Initiative Process in Colorado

“The Colorado Constitution reserves to the people the power to enact laws and constitutional amendments by initiative, and to reject by referendum laws passed by the general assembly.” Campbell v. Buckley, 203 F.3d 738, 740 (10th Cir.2000), cert. denied,531 U.S. 823, 121 S.Ct. 68, 148 L.Ed.2d 33 (2000). Article V, § 1(1) of the Colorado...

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