DISTRICT COURT, CITY AND COUNTY OF

DENVER, STATE OF COLORADO

Denver City and County Building
1437 Bannock Street
Denver, CO 80202
(720) 865-8301
COURT USE ONLY
Plaintiffs:
COLORADO COMMON CAUSE, a non-proIit corporation, and
COLORADO ETHICS WATCH
v.
Defendant:
SCOTT GESSLER, in his capacity as Colorado Secretary oI State
JenniIer H. Hunt, # 29964
Nathan P. Flynn, # 39336
Hill & Robbins, P.C.
1441 18th Street, Suite 100
Denver, CO 80202-1256
Phone: (303) 296-8100 Fax: (303) 296-2388
E-mail: jhunthillandrobbins.com
nIlynnhillandrobbins.com
Attorneys for Plaintiff Coloraao Common Cause
Luis Toro, #22093
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, Colorado 80202
Telephone: (303) 626-2100 Fax: (303) 626-2101
E-mail: ltorocoloradoIorethics.org
Jason Wesoky, #34241
Darling Milligan Smith & Lesch, P.C.
1331 17
th
St., Suite 800
Denver, CO 80202
Telephone: (303) 623-9133 Fax: (303) 623-9129
E-mail: jwesokydmsl-law.com
Attorneys for Plaintiff Coloraao Ethics Watch
Case Number: 2011CV4164
Ctrm/Div: 414
1OINT OPENING BRIEF
2
I. INTRODUCTION
Secretary oI State Gessler`s adoption oI Campaign and Political Finance Rule 4.27, 8
CCR 1505-6 ('Rule 4.27), is an unprecedented attempt by a representative oI the executive
branch oI government to usurp the rule oI both the General Assembly and the judiciary. In
adopting Rule 4.27, the Secretary has exceeded his authority to administer and enIorce campaign
Iinance laws by dramatically increasing the constitutional threshold Ior regulation oI issue
committees. Purportedly in response to a decision oI the Tenth Circuit Court oI Appeals on an
as-applied challenge to campaign Iinance disclosure provisions oI article XXVIII oI the
Colorado Constitution, the Secretary adopted a rule that nulliIies provisions oI the Colorado
Constitution and statutes and replaces them with weaker disclosure rules. PlaintiIIs ask the Court
to set aside the Secretary`s unlawIul action.
II. PROCEDURAL HISTORY
In 2002, Colorado voters passed Amendment 27, which became article XXVIII oI the
Colorado Constitution. Article XXVIII creates a comprehensive campaign and political Iinance
system, including disclosure requirements that apply to various categories oI participants in the
elections process, such as issue committees. 'Issue committee is deIined, in part, as any group
'that has accepted or made contributions or expenditures in excess oI two hundred dollars to
support or oppose any ballot issue or ballot question. Colo. Const. art. XXVIII, 2(10)(a)(II).
Issue committees are required to disclose all contributions and expenditures under the Fair
Campaign Practices Act. C.R.S. 1-45-108(1)(a)(I).
On November 5, 2010, the Tenth Circuit Court oI Appeals issued its decision in Sampson
v. Buescher, 625 F.3d 1247 (10
th
Cir. 2010), determining that, as applied to the Iacts presented in
3
that case (involving a municipal annexation election), the $200 threshold Ior regulation as an
issue committee was unduly burdensome. The Sampson panel did not decide that Colorado
Constitution article XXVIII, 2(10)(a)(II) was unconstitutional on its Iace. Instead, it Iound that
'Colorado law, as applied to Plaintiffs, has violated their constitutional Ireedom oI
association. Ia. at 1249 (emphasis added).
In response to Sampson, on December 10, 2010, the Secretary issued a Notice oI
Rulemaking Hearing and Proposed Statement oI Basis, Purpose and SpeciIic Statutory Authority
('December 10 Notice) (R. Tab 1). The December 10 Notice indicated that the addition oI a
new Rule 4.27 was intended to provide guidance in light oI the ruling in the Sampson case. A
hearing pursuant to the December 10 Notice was held on January 26, 2011.
On March 30, 2011, the Secretary issued a Notice oI Second Rulemaking Hearing and
Revised Proposed Statement oI Basis, Purpose, and SpeciIic Statutory Authority ('March 30
Notice) (R. Tab 5). The revised proposed Rule 4.27 raised the threshold Ior regulation oI an
issue committee Irom $200 to $5,000 and exempted issue committees Irom all disclosure
requirements Ior any contributions or expenditures up to $5,000 (R. Tab 7). A second
rulemaking hearing was held on May 6, 2011. Rule 4.27 was adopted by the Secretary on May
13, 2011 (R. Tab 10).
On June 9, 2011, PlaintiIIs Iiled this action asking the Court to Iind Rule 4.27 unlawIul
and void.
4
III. STANDARD OF REVIEW
A. Administrative Procedure Act
Under the Colorado Administrative Procedure Act, C.R.S. 24-4-101, et seq. (2011), a
challenged agency action must be held unlawIul iI the reviewing court Iinds:
that the agency action is arbitrary or capricious, a denial oI
statutory right, contrary to constitutional right, power, privilege, or
immunity, in excess oI statutory jurisdiction, authority, purposes,
or limitations, not in accord with the procedures or procedural
limitations oI this article or as otherwise required by law, an abuse
or clearly unwarranted exercise oI discretion, based upon Iindings
oI Iact that are clearly erroneous on the whole record, unsupported
by substantial evidence when the record is considered as a whole,
or otherwise contrary to law . . .
C.R.S. 24-4-106(7). Upon such a Iinding, the court must 'set aside the agency action and shall
restrain enIorcement oI the order or rule under review . . . and aIIord such other relieI as may be
appropriate. Ia.
In undertaking this review, the court determines questions oI law and interprets statutory
and constitutional provisions. Ia. Although the court does deIer to the agency`s interpretation oI
the statutes and constitutional provisions relevant to its activities, its interpretation is not binding.
Ba. of County Commrs v. Colo. Pub. Utils. Commn, 157 P.3d 1083, 1088 (Colo. 2007);
Coloraao Citi:ens for Ethics in Govt v. Comm. for Am. Dream, 187 P.3d 1207, 1214 (Colo.
App. 2008). The reviewing court is not bound by the agency`s action iI it has resulted Irom a
misconstruction or misapplication oI the law. See Colo. Citi:ens for Ethics in Govt, 187 F.3d at
1214 (an agency`s decision should be reversed iI the agency erroneously interpreted the law or
exceeded its constitutional or statutory authority). Any regulation that is inconsistent with or
contrary to statute is void. C.R.S. 24-4-103(8)(a).
5
B. Declaratory 1udgments
A declaratory judgment is '|a| binding adjudication that establishes the rights and other
legal relations oI the parties without providing Ior or ordering enIorcement. Black's Law
Dictionary 918 (emphasis added). In Colorado, C.R.C.P. 57 governs declaratory judgments:
District ... courts ... shall have power to declare rights, status, and
other legal relations whether or not Iurther relieI is or could be
claimed. No action or proceedings shall be open to objection on the
ground that a declaratory judgment or decree is prayed Ior. The
declaration may be either aIIirmative or negative in Iorm and
eIIect; and such declarations shall have the Iorce and eIIect oI a
Iinal judgment or decree.
C.R.C.P. 57(a). 'The primary purpose oI the declaratory judgment procedure is to provide a
speedy, inexpensive, and readily accessible means oI determining actual controversies which
depend on the validity or interpretation oI some written instrument or law. Toncray v. Dolan,
593 P.2d 956, 957 (Colo. 1979); see also C.R.C.P. 57(k) ( 'This Rule is declared to be remedial;
its purpose is to settle and to aIIord relieI Irom uncertainty and insecurity with respect to rights,
status, and other legal relations; and is to be liberally construed and administered.).
Colorado Rule oI Civil Procedure 57 is to be liberally construed and administered.
Lakewooa Fire Prot. Dist. v. City of Lakewooa, 710 P.2d 1124, 1126 (Colo. App. 1985).
Moreover, a 'claim under C.R.C.P. 57 is not precluded by the possibility oI C.R.C.P. 106(a)(4)
review oI administrative agency action where C.R.C.P. 106(a)(4) review may be ineIIective in
addressing the issues raised by the petitioner. Denver Ctr. for the Performing Arts v. Briggs,
696 P.2d 299, 305 (Colo.1985). Rather, constitutional challenges to the validity oI an agency
action are more properly considered under C.R.C.P. 57. See Native Am. Rights Funa, Inc. v. City
of Boulaer, 97 P.3d 283, 287 (Colo. App. 2004).
6
C. Dismissal of a Counterclaim Pursuant to C.R.C.P. 12(b)(1), (5) and (6).
C.R.C.P. 12(b)(1) authorizes a party to seek dismissal oI a counterclaim Ior lack oI
subject matter jurisdiction. Under Rule 12(b)(1), the plaintiII has the burden oI proving
jurisdiction, Trinity Broaa. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 925 (Colo.
1993). Because the trial court is authorized to make Iactual Iindings when presented with a
motion to dismiss under this subsection oI the Rule, the court 'need not treat the Iacts alleged by
the non-moving party as true as it would under C.R.C.P. 12(b)(5). City of Lakewooa v. Brace,
919 P.2d 231, 244(Colo. 1996); see also 2 James Wm. Moore, Moore's Federal Practice
12.30|4| (3d ed.1997) (Noting that under identical Federal Rule oI Civil Procedure 12(b)(1),
'when a court reviews a complaint under a Iactual attack, the allegations have no presumptive
truthIulness, and the court that must weigh the evidence has discretion to allow aIIidavits,
documents, and even a limited evidentiary hearing to resolve disputed jurisdictional Iacts). The
Iacts alleged and the relieI requested are determinative oI the existence oI subject matter
jurisdiction. City of Boulaer v. Pub. Serv. Co., 996 P.2d 198, 203 (Colo.App. 1999).
A party may also seek dismissal under Rule 12(b)(5) Ior Iailure to state a claim upon
which relieI can be granted. 'The purpose oI a C.R.C.P. 12(b)(5) motion to dismiss is to test the
Iormal suIIiciency oI the plaintiII`s complaint. Wagner v. Grange Ins. Assn, 166 P.3d 304, 306-
07 (Colo. App. 2007). Unlike Rule 12(b)(1), the court is constrained under Rule 12(b)(5) and
must take the allegations as true and draw all inIerences in the plaintiII's Iavor. Meaina v. State,
35 P.3d 443, 452 (Colo. 2001). To survive a motion to dismiss asserted under Rule 12(b)(5), it is
axiomatic that a plaintiII must have standing to bring suit. Grossman v. Dean, 80 P.3d 952, 958
(Colo. App. 2003).
7
Finally, a counterclaim may be dismissed pursuant to C.R.C.P. 12(b)(6) Ior Iailure to join
an indispensable party. 'The test Ior determining indispensability under C.R.C.P. 19 is whether
the absent person's interest in the subject matter oI the litigation is such that no decree can be
entered in the case which will do justice between the parties actually beIore the court without
injuriously aIIecting the right oI such absent person. Wooaco v. Linaahl, 152 Colo. 49, 380 P.2d
234 (1963).
The Iollowing Iactors must guide the trial court`s determination oI whether a party is
indispensable:
1. the extent to which a judgment rendered in the person's absence might be
prejudicial to the person or to those already parties;
2. the extent to which prejudice can be lessened or avoided by protective provisions
in the judgment, by the shaping oI relieI, or by other measures;
3. whether a judgment rendered in the person's absence will be adequate; and
4. whether the plaintiII will have an adequate remedy iI the action is dismissed Ior
nonjoinder.
Balkina v. Telluriae Mountain Title Co., 8 P.3d 581 (Colo. App. 2000). This analysis presents a
mixed question oI law and Iact, and thus the question oI whether a party is indispensable must be
determined on the Iacts oI each case. Frienas of Black Forest Regl Park, Inc. v. Ba. of County
Commrs, 80 P.3d 871 (Colo. App. 2003).
IV. ARGUMENT
A. Rule 4.27 Is Inconsistent with Article XXVIII of the Colorado Constitution and the
Reporting Requirements of the Fair Campaign Practices Act.
The Secretary has adopted a rule that is in clear conIlict with the plain language oI both
the Colorado Constitution and Colorado statutes. Article XXVIII, 1 oI the Colorado
Constitution states that the 'interests oI the public are best served by . . . providing Ior Iull and
8
timely disclosure oI campaign contributions. Consistent with this purpose, the Fair Campaign
Practices Act ('FCPA) requires issue committees to report all contributions, the names and
addresses oI all persons who contribute twenty dollars or more, and all expenditures. C.R.S. 1-
45-108(1)(a)(I) (2011). The statement oI registration must include the name oI the issue
committee; the name oI a registered agent; the committee`s address and telephone number; the
identities oI all aIIiliated candidates and committees; and the 'purpose or nature oI interest oI
the committee. Ia.
The deIinition oI 'issue committee in Article XXVIII provides that an entity or group
becomes an issue committee when it 'has accepted or made contributions or expenditures in
excess oI two hundred dollars to support or oppose any ballot issue or ballot question. Colo.
Const. art. XXVIII, 2(10)(a)(II). Thus, any entity or group who has accepted contributions or
made expenditures related to a ballot measure oI $200 or more is an issue committee and must
register and report all contributions and expenditures in compliance with C.R.S. 1-45-108.
This language is plain and unambiguous. The deIinition oI an issue committee is not
subject to interpretation. The $200 threshold simply could not be more clear $200 does not
mean $500 or $5,000. And the FCPA requires all contributions and expenditures to be reported,
not just those received aIter meeting the threshold. Yet, Rule 4.27 changes the threshold Irom
$200 to $5,000 and states that 'contributions to and expenditures made prior to reaching the
$5,000 threshold are not required to be reported. Thus, Rule 4.27 not only changes the
constitutional deIinition oI 'issue committee, but also creates a loophole whereby individuals or
groups who eventually meet the $5,000 threshold can keep secret the Iirst $4,999 in contributions
or expenditures even aIter they become subject to reporting requirements (R. Tab 10).
9
Both oI these provisions are contrary to Colorado law. Creating a new threshold oI
$5,000 Ior regulation as an issue committee is in clear conIlict with $200 threshold mandated in
article XXVIII, 2(10)(a)(II). And, regardless oI the amount oI the threshold, allowing issue
committees to avoid reporting all contributions to and expenditures made prior to reaching the
threshold is a clear violation oI the plain language oI C.R.S. 1-45-108(1)(a)(I), which requires
contributions and expenditures to be disclosed. Rule 4.27 is thus void under C.R.S. 24-4-
103(8)(a) and the Secretary`s adoption oI the rule is arbitrary and capricious, contrary to a
constitutional right, in excess oI statutory authority, an abuse oI discretion, unsupported by the
record, and otherwise contrary to law. C.R.S. 24-4-106(7).
B. The Secretary Cannot Use the Case as a Basis to Exceed His Constitutional
Authority to Enforce and Administer Campaign Finance Laws.
In the Statement and Basis oI Purpose Ior Rule 4.27 (R. Tab 11), the Secretary indicated
that the rule was promulgated 'to resolve uncertainty about registration and disclosure
requirements in light oI the ruling oI the Tenth Circuit Court oI Appeals in Sampson v.
Buescher. The Tenth Circuit`s decision in Sampson does not validate the Secretary`s unlawIul
rule.
1. Did Not Invalidate Either Article XXVIII, 2(10)(a)(2) of the
Colorado Constitution or C.R.S. 1-45-108(1)(a)(I).
Sampson was an as-applied challenge by a small neighborhood group addressing an
annexation election involving a single ballot issue. 625 F.3d at 1251-52. The Tenth Circuit Iound
that the $200 element oI the deIinition oI 'issue committee was unconstitutional as applied to
the speciIic Iacts in that case. Ia. at 1259-61. It did not invalidate the rule on a Iacial basis and, in
10
Iact, acknowledged that some applications oI the issue committee deIinition are constitutional.
Ia. at 1261.
1
'As-applied constitutional challenges attempt to invalidate a law only in the
circumstances in which a party has acted or proposes to act; thus, a law that is held invalid as
applied is not rendered completely inoperative. Inaepenaence Inst. v. Coffman, 209 P.3d 1130,
1136 (Colo. App. 2008). Rather, state law regarding severability determines the eIIect oI any
judicial determination that a state law is unconstitutional in some aspects but not others. Leavitt
v. Jane L., 518 U.S. 137, 139 (1996). Article XXVIII`s severability provision speciIically
addresses the eIIect oI an as-applied challenge: a Iinding that Article XVIII or any provision
thereoI is unconstitutional in a particular application does not 'aIIect other provisions or
applications oI the article which can be given eIIect without the invalid provision or application.
Colo. Const. art. XXVIII, 14. Particularly in light oI 14`s express provision regarding the
eIIect oI a successIul as-applied challenge, any argument that Sampson invalidated the $200 limit
across the board is untenable. The Tenth Circuit Iound the issue committee registration
requirement invalid as applied to a local annexation committee that spent a minimal amount oI
money in a type oI election that was unlikely to have been considered by voters who enacted
Article XXVIII. See Sampson, 625 F.3d at 1254.
Changed circumstances since the Sampson plaintiIIs Iiled their suit also support a narrow
reading oI the case. The Tenth Circuit itselI dismissed a portion oI the plaintiIIs` appeal,

1
The unique Iacts in Sampson are helpIul in understanding the Tenth Circuit`s holding. For example, the 'issue
committee in Sampson was Iormed in response to a local annexation issue, and the law regarding how annexation
elections were to be treated under Article XXVIII was unclear. In addition, the state made 'no eIIort to explain the
public interest in disclosure in this particular case. Sampson, 625 F.3d at 1261. While the identity oI contributors in
a local annexation election may indeed be oI little importance, this is not the case in statewide initiatives where, Ior
example, the presence oI out oI state or contributors Irom a particular industry might be signiIicant to voters.
11
regarding the vagueness surrounding the question when a municipal annexation question
becomes a 'ballot issue Ior purposes oI campaign Iinance law, because the legislature enacted a
clariIying amendment to the FCPA. Ia. at 1252 & n.2 (citing C.R.S. 1-45-708(b)(2) and 31-
12-112(6). In addition, as a result oI the passage oI House Bill 10-1370 in 2010, the Secretary is
now required to notiIy proponents oI a ballot issue 'at the time a petition is approved . . . that the
proponents must register an issue committee pursuant to section 1-45-108 (3.3) iI two hundred or
more petition sections are printed or accepted in connection with circulation oI the petition.
C.R.S. 1-40-113(1)(b). This new law is clear and easy to Iollow and raises none oI the
concerns expressed in Sampson.
Moreover, Sampson did not address at all the requirement in C.R.S. 1-45-108(1)(a)(I)
that issue committees report all contributions and expenditures. The Secretary`s attempt to create
a loophole allowing some oI an issue committee`s contributions and expenditures to remain
secret is blatant overreaching. Once an issue committee has met the threshold Ior regulation, the
committee must disclose contributions and expenditures, not just those that occurred aIter the
threshold had been met. The Tenth Circuit`s ruling in Sampson does not provide the Secretary
with a legal basis to rewrite the Constitutional and statutory provisions he is required to enIorce.
2. The Secretary Does Not Have the Authority to Adopt Rules That Are
Inconsistent with Unambiguous Constitutional and Statutory Provisions.
The Secretary`s adoption oI Rule 4.27 appears to be an attempt to use the Sampson case
to manuIacture an ambiguity in the campaign Iinance laws where none exists in order to craIt a
rule that Iundamentally changes state law. While the Sampson case does leave open the question
oI whether the $200 threshold is Iacially unconstitutional, the Secretary does not have the
12
authority to resolve that question. Nor does the Secretary have the power to promulgate a rule in
direct conIlict with unchallenged statutory requirements.
'The constitutional doctrine oI separation oI powers mandates that agencies act only
within the scope oI their delegated authority. Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1016
(Colo. 2003). The General Assembly can delegate the power to promulgate rules and regulations
to executive agencies to enIorce laws, but it cannot delegate the power to make the law. See
Coloraao Auto & Truck Wreckers Assn v. Department of Revenue, 618 P.2d 646, 654 (Colo.
1980). The Secretary, as a member oI the executive branch, has the authority to execute and
enIorce the state`s laws that are within the scope oI his oIIice. See McDonnell v. Juvenile Court
in ana for Secona Juaicial District, 864 P.2d 565, 567 (Colo. 1993). 'EnIorcement in this
context is commonly understood to mean 'to compel observance oI existing law. Delta Sales
Yara v. Patten, 892 P.2d 297, 299 (Colo. 1995).
Rule 4.27 goes Iar beyond simple enIorcement and administration oI the campaign
Iinance laws by reinterpreting both constitutional and statutory provisions. Under article XXVIII,
9(1)(b) oI the Colorado Constitution, the Secretary has the authority to promulgate rules 'as
may be necessary to administer and enIorce any provision oI this article. See also C.R.S. 1-
45-111.5 (directing the Secretary to promulgate rules as necessary to enIorce or administer the
Fair Campaign Practices Act). In doing so, his oIIice 'must comply strictly with its enabling
statutes, and it has no authority to set aside or circumvent legislative mandates. Martine: v.
Colo. Dept of Human Servs., 97 P.3d 152, 157 (Colo. App. 2003); see also Frea Schmia
Appliance & Television Co. v. Denver, 811 P.2d 31, 33 (Colo. 1991) ('an administrative agency
cannot pass upon the constitutionality oI the legislation under which it acts); People ex rel.
13
Commissioner of Agriculture v. Webster, 570 P.2d 560, 562 (Colo. App. 1977) ('an
administrative agency is generally without jurisdiction to decide the constitutionality oI its own
enabling legislation) (citing K. Davis, Administrative Law Treatise at 20.02 and 20.04
(1958)).
The Secretary`s authority to interpret statutory and constitutional provisions does not
alter this analysis. To the extent the Secretary has any discretion in the interpretation oI his
constitutional and statutory mandates, such interpretation must be consistent with the law, not in
conIlict with it. Where a constitutional amendment or statute contains plain, clear language, rules
oI construction should not be applied to construe its meaning. Tivolino Teller House, Inc. v.
Fagan, 926 P. 2d 1208, 1211 (Colo. 1996). 'While the construction oI a statute by the agency
charged with its enIorcement is entitled to deIerence, courts are not bound by that construction
where the result reached by the agency is inconsistent with legislative intent as manifested in
the statutory text. Boulaer County Ba. of Equali:ation v. M.D.C. Constr. Co., 830 P.2d 975,
981 (1992) (emphasis supplied). Thus, as discussed above, rules or regulations that change,
modiIy or conIlict with an existing statute are without Iorce and eIIect. Aaams v. Colo. Dept. of
Soc. Services, 824 P.2d 83, 86 (Colo. App. 1991); Sanger v. Dennis, 148 P.3d 404, 413 (Colo.
App. 2006); C.R.S. 24-4-103(8)(a).
The plain text oI both art. XXVIII, 2(10)(a)(II) and C.R.S. 1-45-108(1)(a)(I) is not
ambiguous. 'Issue committee is deIined as any entity or group who accepts contributions or
makes expenditures oI $200 related to any ballot issue, and issue committees must disclose all
contributions. II people believe the $200 threshold should be changed, a lawsuit can be brought
and the judiciary can determine whether it is Iacially unconstitutional. Or, the constitution and
14
the law can be changed through either the legislative or the initiative process. Indeed, the
legislature has already acted to reduce conIusion around issue committee registration
requirements by requiring the Secretary to notiIy initiative proponents that they must register a
committee when two hundred or more petition sections are printed or accepted. C.R.S. 1-40-
113(1)(b).
Until a court invalidates the constitutional deIinition oI 'issue committee (leaving 'issue
committee without a deIinition in art. XXVIII), or the General Assembly changes the disclosure
requirements, there is no ambiguity Ior the Secretary to resolve. He has no authority to usurp the
role oI either the people oI the state oI Colorado who passed article XXVIII or the General
Assembly who enacted the Fair Campaign Practices Act.
C. The Secretary`s Counterclaim Should Be Dismissed.
The Counterclaim asserted by DeIendant Gessler is unprecedented and should be
dismissed pursuant to C.R.C.P. 12(b)(1), (5), and (6) because this Court lacks jurisdiction to hear
the claim, it Iails to state a claim upon which relieI can be granted, and the Secretary Iailed to
join an indispensable party.
The Secretary, charged with the duty oI enIorcing campaign Iinance laws and the
Colorado Constitution, has Iiled a counterclaim against PlaintiIIs Ior a declaratory judgment that
the issue committee provisions oI Article XXVIII oI the Colorado Constitution are
'unenIorceable under Sampson. Because the Sampson case involved a First Amendment
challenge to Colorado`s campaign Iinance laws, ruling that a provision oI the Colorado
Constitution has been rendered 'unenIorceable is no more or less than a declaration that it is
Iacially unconstitutional. See In re Interrogatories Submittea By Governor Bill Ritter, Jr., 227
15
P.3d 892, 893-894 (Colo. 2010) (holding certain provisions oI Colorado`s campaign Iinance law
'unenIorceable under Citi:ens Unitea v. FEC, 130 S. Ct. 876 (2010)).
OI course, iI the Secretary can Iile his counterclaim, he also could have Iiled it as a
plaintiII, singling out Common Cause and Ethics Watch as deIendants in some eIIort to obtain a
declaratory ruling that the law he is charged with enIorcing is unconstitutional. While the
Secretary would be a proper deIendant in a suit brought by private parties to achieve such a
result, the Secretary cannot use his oIIicial position and State resources to ask the Court to
declare unconstitutional part oI the Colorado Constitution he swore to uphold. The Secretary thus
lacks standing to assert the counterclaim and it must be dismissed.
1. Common Cause and Ethics Watch Are Not Proper Defendants.
Even iI the Secretary has the authority to challenge its own constitutional mandate (see
section IV.B, above), there is no legal theory under which Common Cause or Ethics Watch
conceivably could be considered proper deIendants to such a challenge. In Colorado, the proper
deIendant in a First Amendment challenge to a state constitutional provision is the agency
charged with administering the challenged provision, unless the agency has not been Iormed, in
which case the proper deIendant is the governor. Developmental Pathways v. Ritter, 178 P.3d
524, 529-30 & n.5 (Colo. 2008). Here there is no question that it is the Secretary himselI who
would be the proper deIendant in a constitutional challenge to Colorado campaign Iinance law;
indeed, in Sampson, the deIendant was the Secretary in his oIIicial capacity. See Sampson, 625
F.3d at 1253; see also Colo. Const. art. XXVIII, 9(1)(b).
Neither Common Cause nor Ethics Watch is 'the embodiment oI the state as the
governor or the Secretary would be in a proper First Amendment challenge to the Colorado
16
Constitution. See Developmental Pathways, 178 P.3d at 530; Game & Fish Commn v. Feast,
402 P.2d 169, 172 (Colo. 1965) (when 'suit is brought against an agency or department oI the
state government, it is in eIIect against the state itselI.).Thus, because neither Common Cause
nor Ethics Watch has the authority to act on behalI oI the State oI Colorado, they cannot provide
any relieI to the Secretary. In other words, there is no remedy Ior the Secretary`s Counterclaim
and, thus, the claim lacks redressability and any order, judgment or ruling on the merits oI the
Counterclaim would amount to an impermissible advisory opinion. See Farmers Insurance
Exchange v. District Court, 862 P.2d 944 (Colo.1993) ('It is not the Iunction oI the courts, even
by way oI declaration, to adjudicate ... in the absence oI a showing that a judgment, iI entered,
would aIIord . present relieI.).
Only the State perhaps through the Governor would be able to aIIord relieI under the
Secretary`s Counterclaim. DeIendant has not sought to join the Governor or any other party
that could aIIord relieI on the Counterclaim to this action under C.R.C.P. 19 or 57(j).
2
Accordingly, because the claim cannot be redressed, the Court lacks subject matter jurisdiction.
Moreover, because the Governor is an indispensable party that is not joined in this suit, the
Counterclaim must be dismissed
2. The Secretary Cannot Challenge the Constitutionality of a Constitutional
Provision From Which His Authority Derives.
As discussed above, the Secretary, acting here in his oIIicial capacity, has no authority to
assert a constitutional challenge to state campaign Iinance laws administered by his agency. 'An
administrative agency must comply strictly with its enabling statutes, and it has no authority to

2
It is unclear whether or how the Secretary could bring a claim against the Governor.
17
set aside or circumvent legislative mandates. Martine: v. Colo. Dept of Human Servs., 97 P.3d
152, 157 (Colo. App. 2003).
Neither the Colorado Constitution nor state statutes give the Secretary oI State permission
to Iile lawsuits to invalidate portions oI the Colorado Constitution. The Secretary`s authority to
initiate litigation is limited. The Secretary can Iile suit to enIorce the UniIorm Election Code,
C.R.S. 1-1-107(2)(d), or to enIorce a decision oI an administrative law judge in a campaign
Iinance case. Colo. Const. art. XXVIII, 9(2). He does not have Iree-ranging authority to sue
private groups to obtain declarations purporting to declare portions oI the state Constitution
unenIorceable. Because the Secretary`s authority is limited to enIorcing the campaign Iinance
laws as written, he does not have standing to challenge the constitutionality oI any portion oI
Article XXVIII. Sanger, 148 P.3d at 413; Romer v. Fountain Sanitation Dist., 898 P.2d 37, 40
(Colo. 1995) (political subdivisions oI the state lack standing 'to challenge the constitutionality
oI a state statute directing the perIormance oI their duties) (citing cases); see also Hawes, 65
P.3d at 1017 ('Certainly, no implied powers exist when an agency exceeds its jurisdiction by
acting contrary to the Colorado Constitution); Frea Schmia Appliance & Television Co., 811
P.2d at 33; People ex rel. Commissioner of Agriculture , 570 P.2d at 562.
Here, voters enacted Article XXVIII into the Colorado Constitution by popular vote. The
people oI Colorado are the real party in interest in any case questioning the constitutionality oI
any provision oI that article and are entitled to expect the persons they elected to deIend the state
constitution, not attack it. See Developmental Pathways, 178 P.3d at 529-530 (as 'embodiment
oI the state, governor is proper deIendant in constitutional challenge to voter-initiated
constitutional amendment); see also Romer v. Evans, 517 U.S. 620, 625 (1996) ('Although
18
Governor Romer had been on record opposing the adoption oI Amendment 2, he was named in
his oIIicial capacity as a deIendant, together with the Colorado Attorney General and the State oI
Colorado.). The Secretary, who was elected to administer and enIorce Article XXVIII, cannot
challenge its validity.
II any question exists regarding the Iacial validity oI Colorado`s system Ior regulating
issue committees, the proper course oI action would be to submit interrogatories to the Colorado
Supreme Court, as was done in Interrogatories Propounaea by Governor Bill Ritter, Jr., 227
P.3d 892. SigniIicantly, the Secretary lacks authority to submit interrogatories to the Colorado
Supreme Court that authority is limited to the governor and the state legislature. Colo. Const.
Art. VI, Section 3 (2011). The Court should not permit the Secretary to circumvent this
constitutional limitation by permitting him to maintain his Counterclaim.
V. CONCLUSION
Rule 4.27 is contrary to existing law. First, the deIinition oI 'issue committee set Iorth in
the Colorado Constitution is unambiguous, has not been invalidated, and must be enIorced by the
Secretary as written until changed by judicial or legislative action. Second, the Secretary cannot
adopt a rule changing the statutory requirement that issue committees report all contributions and
expenditures. Thus, PlaintiIIs request that this Court determine pursuant to C.R.S. 24-4-106(7)
and C.R.C.P. 57(a) that Rule 4.27 is contrary to law, that its adoption was arbitrary and
capricious and without authority, and that the rule should be set aside. PlaintiIIs also request that
the Court dismiss the Secretary`s counterclaim Ior Iailure to state a claim upon which relieI
could be granted and lack oI standing to maintain the claim.
RespectIully submitted September 28, 2011.
19
signea original on file at Hill & Robbins, P.C.
/s/ Jennifer H. Hunt
JenniIer H. Hunt
Nathan P. Flynn
Hill & Robbins, P.C.
1441 18th Street, Suite 100
Denver, CO 80202-1256
Attorneys Ior PlaintiII Colorado Common
Cause
signea original on file at Coloraao Ethics Watch
/s/ Luis Toro
Luis Toro
Colorado Ethics Watch
1630 Welton Street, Suite 415
Denver, CO 80202
signea original on file at Darling Milligan Smith
& Lesch, P.C.
/s/ Jason Wesoky
Jason Wesoky
Darling Milligan Smith & Lesch, P.C.
1331 17
th
St., Suite 800
Denver, CO 80202
Attorneys Ior PlaintiII Colorado Ethics Watch
20
CERTIFICATE OF SERVICE
The undersigned hereby certiIies that on the 28
th
day oI September, 2011, service oI the
Ioregoing JOINT OPENING BRIEF was made via LexisNexis File & Serve, addressed as
Iollows:
Maurice G. Knaizer
State Services Department
OIIice oI the Attorney General
1525 Sherman Street, 7
th
Floor
Denver, CO 80203
maurie.knaizerstate.co.us
signea original on file at Hill & Robbins, P.C.
s/ Holly Rogers
Holly Rogers