DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

City and County Building
1437 Bannock Street, Rm. 256
Denver, CO 80202
(720) 865-8301
COLORADO COMMON CAUSE,
a non-profit corporation, and
COLORADO ETHICS WATCH,
Plaintiffs,
v.
SCOTT GESSLER,
in his capacity as Colorado Secretary of State,
Defendant.

 COURT USE ONLY 

Attorneys for Secretary Gessler:

JOHN W. SUTHERS, Attorney General
MAURICE G. KNAIZER, Deputy Attorney General*
1525 Sherman Street, 7th Floor
Denver, CO 80203
Telephone: (303) 866-5380
FAX: (303) 866-5671
E-Mail: maurie.knaizer@state.co.us
Registration Number: 05264
*Counsel of Record

Case No. 2011CV4164

Courtroom 414

SECRETARY OF STATES MOTION TO DISMISS

The Secretary of State (Secretary), by and through undersigned counsel, hereby moves to
dismiss this action pursuant to C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction.
AS GROUNDS THEREFOR, it is stated:
STANDING UNDER THE ADMINISTRATIVE PROCEDURE ACT
1. Standing is necessary to invoke the jurisdiction of the courts. Standing is a limitation
on a courts subject matter jurisdiction. Dolores Huerta Preparatory High School v. Colorado
State Board of Education, 215 P.3d 1229, 1232 (Colo. App. 2009). A challenge to standing is a
challenge to the courts subject matter jurisdiction. Lobato v. State, 218 P.3d 358, 368 (Colo.
2009).

2. The plaintiff, or non-moving party, has the burden of proving jurisdiction. Cash
Advance and Preferred Cash Loans v. State, 242 P.3d 1099, 1113 (Colo. 2010); DiCocco v.
National General Insurance Co., 140 P.3d 314, 316 (Colo. App. 2006). The non-moving party
must prove jurisdiction by a preponderance of evidence. Cash Advance and Preferred Cash
Loans v. State, 242 P.3d at 1113; Ferrel v. Colorado Department of Corrections, 179 P.3d 178,
184 (Colo. App. 2007). The plaintiff bears the burden of production and proof. GrassRoots
Recycling Network, Inc. v. EPA, 429 F.3d 1109, 1112 (D.C. Cir. 2005)
3. In order to establish subject matter jurisdiction, the plaintiff must show an injury-infact to a legally protected interest. The injury-in-fact must be sufficiently direct and palpable
to allow a court to say with fair assurance that there is an actual controversy proper for judicial
resolution. Public Service Company of Colorado v. Trigen-Nations Energy Company,
L.L.L.P., 982 P.2d 316, 324 (Colo. 1999) (quoting OBryant v. Public Utilities Commission, 778
P.2d 648, 653 (Colo. 1989)). The injury-in-fact must fall within the scope of a legal right
protected by the statutory or constitutional provisions asserted to have been violated. The party
seeking relief from the courts must show that the action complained of has caused or threatens
to cause an injury to an interest protected by law. Id. at 324 (quoting Romer v. Board of County
Commissioners, 956 P.2d 566, 572 (Colo. 1998)). If the party can demonstrate an injury-in-fact,
the party then must show that its interests are within the scope of legally protected interests.
Id.
4. The Administrative Procedure Act incorporates these commonly-accepted
jurisdictional parameters for contesting promulgation and enforcement of administrative rules. A
person who has been adversely affected or aggrieved by an agency action may commence an
action for judicial review. Section 24-4-106(4), C.R.S. (2010). A person includes
corporations, associations or public or private organization[s] of any character other than an
agency. Section 24-4-102 (12), C.R.S. (2010). Aggrieved for the purpose of judicial review
of rule-making, means having suffered actual loss or injury or being exposed to potential loss or
injury to legitimate interests, including, but not limited to business, economic, aesthetic,
governmental, recreational, or conservational interests. Section 24-4-102(3.5), C.R.S. (2010).
The person contesting a rule must show real or potential loss or injury to legitimate interests.

CHALLENGES TO JURISDICTION
5. Challenges to subject matter jurisdiction can be either facial or factual. Archangel
Diamond Corp. v. Arkhangelskgeoldoycha, 94 P.3d 1208 (Colo. App. 2004), affd in part, revd
in part, Archangel Diamond Corp v. Lukoil, 123 P.3d 1187 (Colo. 2005) (ADC). A facial attack
challenges the sufficiency of the pleading. Id., at 1213 When a party asserts a facial challenge
to a complaint, the court must credit the plaintiffs well-pleaded factual allegations (usually
taken from the complaint, but sometimes augmented by an explanatory affidavit or other
repository of uncontested facts), draw all reasonable inferences from them in her favor, and

dispose of the challenge accordingly. (Emphasis added) Valentin v. Hospital Bella Vista, 254
F.3d 358, 363 (1st Cir. 2001)
6. A party asserts a factual challenge to subject matter jurisdiction when the party
contests the accuracy of the jurisdictional facts in the complaint. The plaintiffs jurisdictional
facts are entitled to no presumptive weight. The court must weigh the evidence to confirm its
jurisdiction. ADC, 94 P.3d at 1214. The court may order discovery, consider extrinsic
evidence, and hold evidentiary hearings in order to determine its own jurisdiction when a
factual challenge is made. Valentin v. Hospital Bella Vista, 254 F.3d at 363; Ferrel v. Colorado
Department of Corrections, 179 P.3d at 184 (trial court should conduct an evidentiary hearing
and entering findings when jurisdictional facts are disputed); Hansen v. Long, 166 P.3d 248, 25051 (Colo. App. 2008)
7. The facts and relief set forth in the complaint determine whether a party has made a
preliminary showing of subject matter jurisdiction. Trans Shuttle, Inc. v. Public Utilities
Commission, 58 P.3d 47, 50 (Colo. 2002). To establish standing, a plaintiff must make minimal
factual allegations that are not conclusory or legal arguments masquerading as facts. See, Oxford
Asset Management, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). Conclusory statements
are insufficient. Denver Post Corp. v. Ritter, 10SC94, 2011 WL 2449325 *4 (Colo. June 20,
2011). Courts are not bound by conclusory allegations, unwarranted inferences, or legal
conclusions. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994) Without minimally
adequate factual averments of standing, a complaint succumbs to either a facial or factual
challenge.
COMMON CAUSE HAS FAILED TO ALLEGE FACTS SUFFICIENT TO ESTABLISH
STANDING.
8. An organizations mere interest in a problem is insufficient to render an organization
adversely affected or aggrieved. Sierra Club v. Morton, 405 U.S. 727, 739 (1972). If an
organization is seeking associational standing, then it must show that its members would be
affected. Id. at 735. The United States Supreme Court required more than conclusory statements
to allow an organization to establish standing. At a minimum, an organization seeking to
challenge a rule must identify members who may be affected and describe how they will be
affected. Summers v. Earth Island Institute, 555 U.S. 488, 129 S. Ct. 1142, 1152 (2009) (the
Court has required plaintiffs claiming an organizational standing to identify members who have
suffered the requisite harm).
9. Common Cause claims organizational and associational standing. It has not proffered
any factual statements in its complaint, or provided any affidavits. Instead, it relies solely on the
following allegation in paragraph 6 of the Complaint:

CCCs members are adversely affected or aggrieved by

Respondents action. CCC is a non-profit, non-partisan grassroots
organization dedicated to open and accountable government,
including campaign finance reform. CCCs members are
approximately 5300 residents in 51 counties across the state. All of
CCCs members are impacted by Rule 4.27s creation of a
loophole allowing certain financial contributions to issue
committees to remain undisclosed. The issues in this case and the
interest sought to be protected are germane to CCCs purpose. Per
its mission statement, part of CCCs mission is to: strengthen
public participation and public faith in our institutions of
government; promote fair and honest elections; and protect the
civil rights of all Americans. There is no doubt that the interests
CCC seeks to protect in this action are germane to CCCs purpose.

10. These allegations are, at best, conclusory. Common Cause does not identify
members or state how these members will be harmed. It has not provided any affidavits or other
evidence from members that quantify the members interests in the rule. Thus, Common Cause
has not shown an injury-in-fact on behalf of its members. Nor has Common Cause shown that
its legitimate interests are affected by the rule. The only statement related to Rule 4.27 is that
Common Cause is dedicated to campaign finance reform. A general statement of interest is
insufficient as a matter of law.
ETHICS WATCH HAS FAILED TO ALLEGE FACTS SUFFICIENT TO ESTABLISH
STANDING.
11. Ethics Watch makes the following assertion in support of its standing:
Ethics Watch is also adversely affected or aggrieved by
Respondents action. Ethics Watch is a person for purposes of
Colo. Const. at. XXVIII, 9, which authorizes any person to file
complaints for violations of Colorados campaign finance laws.
Ethics Watch has exercised this right on several occasions,
including in a case involving an issue committee found to have
violated campaign finance laws.Ethics Watch will be harmed by
the Rule because the Rule conflicts with the Colorado Constitution
and will make Ethics Watchs efforts to enforce campaign finance
laws in issue committee elections more difficult.
Complaint, 7)

12. Ethics Watch does not claim standing on behalf of any members. Instead, it claims
that it is has standing as an organization to enforce campaign finance laws. Its argument fails for
two reasons. First, it has not provided any statements, or any evidence in the form of documents
or affidavits, showing that the activities described in paragraph 7 fall within the purposes stated
in its articles of incorporation or its bylaws. Its statements are nothing more than conclusory and
thereby insufficient.
13. In addition, even if Ethics Watch can show that such activity falls within the scope of
its purposes, Ethics Watch cannot prove standing. It contends that the rule limits its ability to
enforce campaign finance laws. It does not assert that it has an interest in the substance of the
laws; rather it intends only to enforce the laws that are in place. Its position is no different from
any other law enforcement official who may be authorized to enforce laws. Like a district
attorney, a judge or a member of the executive branch of government, Ethics Watch may not like
a law, but mere dislike is not sufficient to afford standing to challenge the law. See, Lujan v.
Defenders of Wildlife, 504 U.S. 555, 572-578 (1992) (injury to seeing that certain standards
followed not sufficient by itself to confer standing); L. Singer & Sons v. Union Pacific R. Co.,
311 U.S. 295, 303 (1940) (harm to common concern for obedience to law insufficient to
establish standing).
14. Ethics Watch has not shown an injury-in-fact to its legitimate interests.
WHEREFORE, the Secretary respectfully moves to dismiss the Complaint with
prejudice.
JOHN W. SUTHERS
Attorney General

/s/Maurice G. Knaizer
MAURICE G. KNAIZER, 05264*
Deputy Attorney General
Public Officials Unit
State Services Section
Attorneys for Defendant
*Counsel of Record

CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of July, 2011, I duly served a true and correct copy
of the foregoing SECRETARY OF STATES MOTION TO DISMISS to each of the following
persons by the method(s) indicated below:
Attorney
Jennifer Hutchinson Hunt
Nathan P Flynn
Luis Toro

Law Firm
Hill & Robbins PC
Hill & Robbins PC
Colorado Ethics Watch

Service Method
E-Service
E-Service
E-Service

s/Thomas R. Bovee
THOMAS R. BOVEE
Legal Assistant
Public Officials Unit
State Services Section
Office of the Attorney General