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PLAINTIFFS/APPELLANTS:
Court of Appeals Case No.:
COLORADO UNION OF TAXPAYERS COURT USE ONLY
2019CA543
FOUNDATION; and TABOR COMMITTEE
District Court Case Number:
2017CV034617
DEFENDANT/APPELLEE:
County: Denver, Colorado
CITY OF DENVER COLORADO
TABOR Committee, by and through their attorneys of record, and hereby submit
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28
Word Limits: This brief has 7,464 words, which is not more than the 9,500 word
limit.
Included Sections: In the arguments section, before arguing each issue on appeal, I
Preservation: I discuss if that issue was preserved for appeal. I cite to the
page in the Record on Appeal where I raised this issue before the District Court
rules.
i
TABLE OF CONTENTS
D. At trial, Appellants showed that both they and like-minded groups are
routinely subject to ideological harassment and intimidation. ................... 12
1. Plaintiffs did not need to show that they had already spoken about
a Denver ballot measure before they could show injury-in-fact. ....... 19
iii
TABLE OF AUTHORITIES
Cases
Bd. of Cnty. Comm’rs, La Plata Cnty. v. Bowen/Edwards Assoc., 830 P.2d 1045
(Colo. 1992) ................................................................................................... 18, 19
Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d
1174 (10th Cir. 2000)............................................................................................33
Cmty. Tele–Commc’ns, Inc. v. Heather Corp., 677 P.2d 330 (Colo.1984) ...... 18, 20
Conrad v. City & Cnty. of Denver, 656 P.2d 662 (Colo.1983) ...............................20
Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012) .................................33
Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .................21
Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008) 30, 31, 32, 33
Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) . 22, 25
People ex rel. Tooley v. Seven Thirty-Five E. Colfax, Inc., 697 P.2d 348 (Colo.
1985) .............................................................................................................. 18, 20
Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984) ....................21
iv
State Bd. for Cmty. Colleges & Occupational Educ. v. Olson, 687 P.2d 429 (Colo.
1984) .....................................................................................................................29
Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass’n, 758 P.2d 164
(Colo.1988) ...........................................................................................................20
Statutes
Regulations
Constitutional Provisions
v
U.S. Constitution, amend. I ........................................................................................1
vi
I. ISSUE PRESENTED FOR REVIEW
free-speech case, by showing that they regularly engage in the kind of speech
speech that is regulated by the ordinance; and are credibly chilled from doing so
A. Course of Proceedings
groups to disclose the identities and personal information of their donors to the
City whenever those groups spend more than a minimal amount of money to
2017, Appellants filed the case, which seeks declaratory and injunctive relief. In
the Complaint, Appellants allege that the disclosure requirements violate the First
Amendment to the U.S. Constitution, and the free-speech clause, Article II Sec. 10,
make an unconstitutional choice: speak to voters about local ballot measures and
1
After the parties conducted discovery, they by agreement filed cross-motions
for summary judgment on the legal questions presented in this case. On January 7,
2019, the Trial Court denied the cross-motions for summary judgment and ordered
the parties to trial. In the order denying the cross-motions for summary judgment,
the trail court emphasized that “the threshold issue at trial shall be whether
Plaintiffs have standing to bring the present action. However, the parties shall also
A bench trial was conducted from February 4–5, 2019. During the trial, the
Trial Court heard from five witnesses. Mr. Daniel Volkosh, the Policy and
Compliance Administrator for the Denver clerk and Recorder’s Office, testified
about the operation of the ordinance and the City’s purported reasons for enacting
it. A representative for each Appellant testified about the effect the ordinance had
harassment to which they had been exposed. Finally, two additional witnesses,
2
B. Disposition in the Trial Court
At the conclusion of the two-day bench trial, the Trial Court entered
judgment for Appellee. The Trial Court ruled that Plaintiffs had not established
Plaintiffs have not shown any evidence that they are or will be required
to comply with Denver’s campaign finance reporting requirements.
Specifically, the Court finds that Plaintiffs do not, and have never,
communicated with Denver voters on a Denver ballot measure.
Additionally, Plaintiffs have not produced any persuasive evidence that
they have or are likely to experience real, immediate, or future harm
because of the municipal code. Therefore, the Court finds that neither
Plaintiffs [sic] have standing to challenge [the law].
CF, p 770.
This appeal timely followed.
adopting Council Bill No. CB17-0866. Among many other changes, the new law
requires groups that communicate with voters about proposed Denver ballot
measures to file periodic reports with the City. Denver, Colo., Rev. Mun. Code §§
3
15-35 and 15-35.5 (together the “Disclosure Ordinance”). These reports include
personal information about the groups’ donors and are made available for public
The Disclosure Ordinance establishes two types of groups that must submit
information about a ballot measure, but does not take a position, that group has
communications must file a report that includes the name and address of every
person who donated $25 or more for the purpose of making the communications.
On the other hand, if a group spends $500 or more and actively encourages
committee. Id. § 15-32(m). Issue committees must file a report that includes the
name and address of every person who donates $50 or more to support the
issue committee must also report to the City that person’s occupation and
4
Hence, any group spending any reasonable amount of money to
communicate with Denver voters, about a ballot measure, will be required to file
reports with the City that detail its donors’ names, addresses, and in many cases
only to which dollar threshold triggers the reporting requirement. Id., art. III, Chpt.
when they first spend $1,000 or more, plus an additional report for each subsequent
hours of the expenditure being made. Id. Issue committee reports are due each
month after a group becomes an issue committee. For instance, if a group begins
communicating with voters in June, and the election is held in November, that
group would be required to submit reports for June, July, August, September,
October, and November, plus a “post-election report” and a “year-end report.” Id.
§ 15-35(c). These reports are made available for public review and inspection on
the City’s website, and the personal information of donors is not redacted. Id. §
15-36(c). Failure to file a report can subject a group to penalties of $50 per day, up
5
B. Denver asserts an “informational interest” in the donor
information.
After the disclosures are made, the reports are published to the internet. Id.
§ 15-36(c). Any interested party can search for this information since the reports
are formatted to be a PDF. Daniel Volkosh, a representative for the City at trial,
testified that no information on these internet PDFs gets redacted. Tr. (02/04/19) p
31:31:3–4. Volkosh also testified that that the information is made available in
perpetuity, and that he didn’t know if there is a policy in place to eventually take
through public disclosure. This includes the public disclosure of the names and
issue committee that has an aggregate amount or value of $50.00 or more within a
calendar year and the occupation and employer of any natural person if the sum of
$200.00 or more in a calendar year.” CF, p 110 ¶ 42. The City further asserts that
“[d]isclosure of this information serves the purpose and interest of providing the
electorate with information about the source and amount of money contributed to
arguments to which they are being subjected and in deciding whether to support or
oppose the issue or question. The information about the source and amount of
decisions and giving proper weight to different speakers and messages.” Id. ¶ 39.
In short, the City wants its voters “to be making … informed decision[s],” and
“want[s] them to be correctly evaluating … the arguments that are being made to
The City offers no evidence that voters regularly access this information,
however. Id. ¶ 41. It does not know whether voters actually find this information
useful. Id. When asked what the City meant by “preserving the integrity of the
political system and its elections,” its representative testified that it means “making
sure that, if someone is telling our voters to vote a certain way …, it could be a
issue, we think our voters deserve to know who is speaking to them so that they
may make an informed decision about the value of that communication.” Id., ¶ 42.
The City identified no specific reason, nor any occurrence in a previous Denver
election, that led the City to be concerned about the integrity of its electoral
process. The City did not “talk about the wisdom of” the dollar amounts that
7
trigger disclosure before it adopted the Ordinance. CF, p 111 ¶ 44. According to
incentivize the public to “do their own investigation” into “specific employer[s] or
The City agrees that if certain groups chose to remain silent as a result of the
conveyed to voters.” Id. ¶ 46. Despite this, the City did not consider any
stakeholder meetings that were held to solicit public input before adoption of the
Colorado Ethics Watch, and Common Cause, but were not attended by any
nonprofit groups that opposed the compulsory disclosure of donor information. Id.
¶ 49.
group incorporated in 2009 under section 501(c)(3) of the Internal Revenue Code
and based in Lyons, Colorado. CF, p 699 ¶ 11. CUT has a sister organization, the
501(c)(4) group and rates the legislature every year. Id. The Foundation is a
8
501(c)(3) that works on educating the citizenry on tax issues. Id. ¶ 12. The CUT
Foundation is an Appellant in this lawsuit. The CUT Committee is not. Id. ¶ 14.
taxpayers. CUT’s mission is to “remind the Legislators, we, the taxpayers, are
well able to make our own decisions on how we spend our own money. The job of
one-another and not to simply redistribute our earnings as they see fit.” Id. p 8 ¶
19.
CUT educates the public in various ways. One way it does so is through the
use of radio ads about pending ballot propositions. CF, p 106 ¶ 20. CUT has paid
for radio ads “on specific issues, giving the pros and cons of a tax issue.” Id. ¶ 21.
For instance, CUT has paid for radio ads “when Amendment 69 was on the ballot.”
Colorado. The goal of CUT’s radio ads is to “explain to people the effect of the
law that’s being proposed.” Id. A 30 second ad run 25 times a week costs $4,500.
testified that CUT would engage in purchasing radio ads that educated Denver
9
impacted CUT’s mission to promote responsible governmental spending and low
to a loss of donors, since most donors understand the donation to be private and
longer engage in Denver elections. Id. p 124:19–24. She testified that donors
would be “absolutely” less likely to contribute if they knew their names were listed
incorporated in 2009 under section 501(c)(4) of the Internal Revenue Code and
based in Lakewood, Colorado. CF, p 699 ¶ 15. TABOR also has a sister
which the group describes as “the gold standard” for restraining government
10
growth and ensuring fiscal responsibility. CF, p 107 ¶ 28. As part of its mission,
affecting [the Taxpayers Bill of Rights].” Id. ¶ 29. For example, TABOR
Committee informs voters about ballot questions going to Denver voters for
spending and low tax burdens on Colorado citizens. Tr. (02/04/19) pp 83:9–84:2,
84:20–85:4.
TABOR’s board of directors volunteer for the organization and the time they
example, Dana West, a web master and a member of the board, actively maintains
the website. Id. Although the value of West’s contributions is not exactly known,
The cash donations that are spent on communicating and educating the
public about ballot questions exceeds the thresholds of the challenged law. CF, p
108 ¶ 32.
11
TABOR receives donations larger than $50 as well as $200. Id. p 81:12–15.
Penn Pfiffner, a representative of TABOR testified in court that all donations are
given with the expectation of privacy. Id. pp 81:23–82:2. Mr. Pfiffner also
testified that if TABOR is forced to disclose donor information, then it will not be
able to raise the necessary funds to educate the public on future ballot measures.
remain anonymous and does not want to be identified. Mr. Pfiffner testimony Id.
pp 88:18–20. Mr. Pfiffner testified that the donor wishes to remain anonymous for
fear of losing clients who hold political beliefs that are different than his. Id. pp
88:22–89:7.
political sign in the back of her car during a gubernatorial race, her car was
different election, she was the victim of two different road rage incidents because
of a political bumper sticker on her vehicle. The instigators made obscene gestures
12
towards Nielsen and her family, tried to force them into a different lane, and
honked their horn at them. Because of this, Nielsen decided the bumper sticker
subjected to “intimidation and harassment for his political stances.” CF, p 108 ¶
35. Mr. Pfiffner testified that starting from the early-2000’s Mr. Pfiffner’s car and
house has been vandalized. In one instance, Mr. Pfiffner’s vehicle was egged. The
next instance, his house as well as his vehicle were vandalized. The worst
threw a rock the size of a football into Mr. Pfiffner’s vehicle, destroying the rear
windshield and the dashboard, as well as damaging the front windshield. All
incidents occurred shortly after Mr. Pfiffner placed different yard signs expressing
harassment, Mr. Pfiffner stopped placing yard signs outside of his house. Ever
since this decision, Mr. Pfiffner’s property has not been vandalized. Id.
vulgar and threatening emails and Tweets based on the work his organization
13
performs. One email read, “Hey asshole, we know who signs your checks for the
propaganda you spew. We know where you live and we’re watching you. Go
crawl back into the hole from which you came!” Tr. (02/05/19) p 22:3–14; Tr. Ex.
9 p 6. A Tweet directed at Mr. Trabert read, “KOCH (just say the word) … makes
1 wish some crazy could get them a bullet between the eyes!” Id. p 27:4–9; Tr. Ex.
9, p 3. He received other emails with explicit threats of sexual violence. Tr. Ex. 9
p 4–5, 7. Mr. Trabert testified that after reading these types of communications, he
was scared, and it was his understanding that the intimidation and threats were
related to his work at the Kansas Policy Institute. Tr. (02/05/19) pp 20:25–21:12.
that has a similar mission as the Appellants’, was spat upon by people who oppose
his work. Id. pp 7:5–8:21. He has been shouted down by ideological opponents to
the extent that the people shouting him down needed to be removed by police. Id.
indicating something dangerous would be waiting for him when he returned home,
14
IV. SUMMARY OF ARGUMENT
ordinance that requires groups that communicate with voters about municipal
ballot measures to disclose the names and personal information of their donors to
the government. This information is then made publicly available on the internet.
The Trial Court committed reversible error when it ruled that Appellants did
not have standing to challenge the constitutionality of the law under the First
As explained below, they did because Appellants showed that they regularly
engage in the kind of speech the law regulates; that they both desire to speak about
Denver ballot measures in the future and have already refrained from doing so; and
that they have and will refrain from speaking because of Appellee’s requirement
that they disclose their donors as a condition of being allowed to speak. These
15
V. STATEMENT OF APPLICABLE STANDARD OF REVIEW
The Trial Court determined that Appellants lack standing to challenge the
disclosure ordinance. CF, p 770. Because standing is a pure question of law, this
and heavily briefed by the Parties prior to Trial. CF, pp 251–54; CF, pp 435–39.
The Trial Court’s discussion of standing in its order dismissing for lack
which requires groups that support, oppose, or merely speak about a Denver ballot
measure to file reports disclosing the names and personal information of their
donors. These reports are then made publicly available on the internet. Appellants
are non-profit organizations that have been operating throughout Colorado for
16
several decades, focusing on promoting a limited-government and low-tax agenda.
missions—they desired to and were likely to speak about Denver ballot measures
in the foreseeable future. And both Appellant organizations showed that they
would refrain from speaking about Denver ballot measures because their donors
result of the Disclosure Ordinance, and that they accordingly have standing. The
demonstrate: (1) a legally protected right; (2) an injury in fact; and (3) properly
named defendants. Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004). Neither
Appellee nor the Trial Court questioned prongs one and three. That is because
they are easily satisfied. The right to speak about municipal ballot measures is a
impacts that right. Denver, Colo., Rev. Mun. Code, art. III, Chpt. 15. To the third
17
prong, Appellee City of Denver is the properly named defendant because it passed
and enforces the challenged law. Thus, the Trial Court’s decision turned on its
On appeal, this Court may examine “allegations of the complaint, along with
any other evidence submitted on the issue of standing.” Bd. of Cnty. Comm’rs, La
Plata Cnty. v. Bowen/Edwards Assoc., 830 P.2d 1045, 1053 (Colo. 1992);
Rangeview, LLC v. City of Aurora, 381 P.3d 445, 449 ¶ 11 (Colo. App. 2016) (“an
appellate court may consider testimony and other documentary evidence in the
for purposes of First Amendment standing. As shown below, they did. The
inquiry into whether someone has shown an injury-in-fact is dependent on the kind
of claims being brought. For claims brought under the Colorado Uniform
Declaratory Judgment Act, plaintiffs are not required to violate the statute in order
to have standing. Cmty. Tele–Commc’ns, Inc. v. Heather Corp., 677 P.2d 330, 334
(Colo.1984). And for free-speech cases, the standing analysis is relaxed because
courts are concerned that speech may be unnecessarily chilled otherwise. People
ex rel. Tooley v. Seven Thirty-Five E. Colfax, Inc., 697 P.2d 348, 355 (Colo. 1985).
18
This is not to say that the injury-in-fact inquiry is toothless—it is not. But here,
Appellants introduced evidence at trial that they regularly engage in the type of
speech being regulated, that they credibly desire to engage in speech about Denver
ballot measures in the future, and that they both will refrain and have already
refrained from engaging in such speech due to the existence of the Disclosure
in this case.
1. Plaintiffs did not need to show that they had already spoken
about a Denver ballot measure before they could show
injury-in-fact.
In general, injury-in-fact is satisfied when an “injury [is] sufficiently direct
and palpable to allow a court to say with fair assurance that there is an actual
controversy proper for judicial resolution.” O’Bryant v. Pub. Utils. Comm’n, 778
P.2d 648, 653 (Colo.1989). This requirement is satisfied “when the allegations of
the complaint, along with any other evidence submitted on the issue of standing,
establish[] that [a] regulatory scheme threatens to cause injury to the plaintiff’s
19
Importantly, Appellants seek a declaratory judgment and permanent
injunction under the Colorado Uniform Declaratory Judgments Act. The UDJA “is
a remedial statute calculated to afford parties judicial relief from uncertainty and
insecurity with respect to their rights and legal relations.” Id. A plaintiff seeking a
violate the regulation and thus become subject to punishment “in order to secure
the adjudication of uncertain legal rights.” Cmty. Tele-Commc’ns, 677 P.2d at 334.
that can be effectively resolved by a declaratory judgment. See Three Bells Ranch
Assocs. v. Cache La Poudre Water Users Ass’n, 758 P.2d 164, 168 (Colo.1988);
Conrad v. City & Cnty. of Denver, 656 P.2d 662, 668 (Colo.1983).
But the “leniency of First Amendment standing manifests itself most commonly in
the doctrine’s first element: injury-in-fact.” Cooksey v. Futrell, 721 F.3d 226, 235
(4th Cir. 2013). And limitations on standing are “substantially relaxed in the
context of first amendment claims.” Tooley, 697 P.2d at 355; see also Lopez v.
Candaele, 630 F.3d 775, 781 (9th Cir. 2010) (“First Amendment cases raise unique
20
standing considerations that tilt dramatically toward a finding of standing.”
statute … because … the statute’s very existence may cause [litigants and others]
Md. v. Joseph H. Munson Co., 467 U.S. 947, 956–57 (1984). This presumption is
censorship. See Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir.1987); see also
Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010)
rights, the Supreme Court has dispensed with rigid standing requirements.”
(internal quotation marks and citation omitted)). The Disclosure Ordinance does
silent, or violate the privacy rights of their donors by complying with the
21
2. At trial, Appellants showed that they suffer an injury-in-
fact due to the Disclosure Ordinance.
Plaintiffs in free-speech cases do not need to violate a speech-restrictive law
before they can challenge it, but they must do more than simply allege that a law
violates their free-speech rights. The Tenth Circuit offered a useful guide for how
courts should navigate this inquiry in Initiative & Referendum Institute v. Walker,
450 F.3d 1082 (10th Cir. 2006). There, the Court held that it is not necessary for a
plaintiff “to show they have specific plans or intentions to engage in the type of
(1) evidence that in the past [plaintiffs] have engaged in the type of
speech affected by the challenged government action; (2) affidavits or
testimony stating a present desire, though no specific plans, to engage
in such speech; and (3) a plausible claim that they presently have no
intention to do so because of a credible threat that the statute will be
enforced.
Id. at 1089. As shown below, Appellants satisfied all three of these elements at
trial.
trial about the activities they have engaged in during their decades of existence.
While it is true that Appellants are small organizations with small budgets, they
22
nevertheless demonstrated that they routinely engage in speech about
Committee is “an advocacy organization,” the mission of which is “to protect and
TABOR believes that there “has been a poor interpretation” of that provision,
“we’ve gotten active in reacting to … what we see as violations” of it. Id. p 72:1–
5.
Mr. Pfiffner gave examples of this. One such example occurred in Grand
Lake. There, the City had adopted “a charge [that] had been put on that was called
a municipal fee. Now, this charge was identical to anything you and I would call a
tax. … And yet they had the audacity to say this is just a fee” so as to bypass the
made an effort to let the town know about just how wrongheaded this was so we
solicited and got an interview with the local paper and [later got] an op ed.” Id. pp
72:8–73:3.
TABOR Committee was concerned about “a debt issue [that] had been passed for
the Downtown Development Authority.” Id. p 73:6–8. The debt issue had only
23
been voted on by roughly 900 people who lived within the zone of the Authority.
Id. p 73:9–10. But because the entire city was responsible for the debt, TABOR
believed that the Taxpayer’s Bill of Rights required it to be voted on by the entire
prompted TABOR to send a letter to the City expressing its concern about the 900-
and ballot measures around the state. Marty Nielsen, president of CUT, testified
that CUT offers information about ballot measures “[t]o hopefully encourage the
voter to come to the right conclusion when they go to the ballot. … Generally
speaking it would be to have less government and lower taxes.” Id. pp 120:25–
121:5. For example, CUT opposed a statewide ballot measure called Amendment
69, which would provide universal healthcare in Colorado. The group ran “some
radio advertisements informing the public” about its concerns with Amendment 69.
Id. p 121:8–12. It did the same with a ballot measure called Measure C, which
certain areas, for five years. For its radio advertisements opposing these measures,
24
Thus, Appellants introduced substantial testimony showing a history of
engaging with spending issues around the state, including issues that appeared as
ballot measures. This is exactly the kind of testimony that the Walker court was
where the court was looking for “evidence that in the past [plaintiffs] have engaged
in the type of speech affected by the challenged government action[.]” 450 F.3d at
directly examined at trial about their desire to communicate with Denver voters
about municipal ballot measures. Penn Pfiffner, chairman of TABOR, was asked
whether advocating for ballot measures is within the scope of the TABOR
Committee’s mission. He answered that “Absolutely those are within the purview
there are “any geographic limitations on where the committee will operate,” he
answered, “[f]or ballot issues, [all of] Colorado.” Id. p 77:21–24. When asked
25
whether that would include every city in Colorado, he answered that “it would
include every city.” Id. pp 77:25–78:1. This would, obviously, include Denver.
Mr. Pfiffner was then asked about whether “raising money to oppose or
support a ballot measure [is] the kind of thing TABOR would do if it felt it was
important?” He answered, “It’s something we would love to do. We have not had
enough resources or the focus away from other things to be able to do these sort of
lot more.” Id. p 79:12–22. When asked, “If you needed to raise $500 to do that
similar desire to educate voters about Denver ballot measures in the future,
consistent with CUT’s mission. For instance, Ms. Nielsen testified that CUT
would like to speak about Denver issues ranging from “a Denver sales tax
Bill of Rights. Id. p 125:10–20. She also testified that CUT would have the ability
to raise money—to fund speech about Denver ballot measures—that would exceed
Thus, Appellants showed that speaking about Denver ballot measures is well
within the long-standing scope of their respective organizational missions, and that
26
they are likely to speak about Denver ballot measures in the future. They showed
that it is not a matter of if this law will chill them, but when. Appellants showed
that they would speak about any Denver ballot measure that impacts their
statewide, and both have the mission of promoting limited government and lower
taxes. They showed that they have the ability to raise funds that exceed the dollar
threshold to trigger the reporting requirements; and that they are likely to spend
more than the threshold amounts when they speak about a Denver ballot measure.
And, as detailed in the following section, the Ordinance has already prevented
prevent them from speaking about Denver ballot measures in the future. For
instance, Denver placed a number of tax measures on its ballot for citizen approval
in fall of 2018. Mr. Pfiffner testified that TABOR did not get involved with
informing citizens about those measures because “we were putting ourselves at
risk” because of the Disclosure Ordinance. Id. p 83:13–20. “We ha[ve] to self
27
censor as long as this statute’s in place,” he said. Id. He further testified that
shortly after the Disclosure Ordinance was adopted, he sent an email to TABOR’s
board members urging them to remain silent on any Denver ballot measures. “Be
silent,” he said, “on what you say in terms of taking a position on anything that’s
Mr. Pfiffner testified that at least one donor has told him that he wishes to remain
anonymous, and that he will stop giving if there is a risk his name will be put on a
asked “if it’s a condition of engaging in Denver election[s] that CUT has to
disclose its donors, would CUT engage in Denver elections?” Ms. Nielsen
She elaborated that “many of [our donors] would fear repercussions in their
business and maybe in their personal life” because of the Disclosure Ordinance.
Id. pp 125:8–9.
Denver does not dispute that the Disclosure Ordinance will apply to
Appellants the minute they exceed the spending thresholds and communicate with
voters about a Denver ballot measure. When Appellants do this, they will either
28
become an “issue committee” (if they take a position) or a group engaged in
11 In either case, they will be required to file reports disclosing the names and
Appellants have provided testimony that they will refrain from speaking
about Denver ballot measures in the future, because of the Disclosure Ordinance.
Indeed, TABOR has already instructed its board members not to speak about
Denver ballot measures at all, for fear of triggering the disclosure requirements.
Id. p 83:9–12. This is precisely the kind of chilling effect that courts are concerned
for Cmty. Colleges & Occupational Educ. v. Olson, 687 P.2d 429, 436 (Colo.
1984). Such a chilling effect was shown through uncontroverted testimony at trial.
that Appellants regularly engage in the kind of speech the Disclosure Ordinance
targets; that they would speak about Denver ballot measures but-for the existence
law’s disclosure requirements. The Trial Court committed reversible error when it
29
3. Independence Institute v. Coffman does not prevent a finding
of standing here.
Because Appellee relied on it so heavily at trial, and is likely to do so again
Independence Institute v. Coffman, 209 P.3d 1130, 1136 (Colo. App. 2008).
Coffman does not prevent a finding of standing in this case for at least two reasons.
First, Coffman involved a highly unique procedural posture that does not speak to
the facts of this case. Second, Coffman cannot prevent a finding of standing here
because it relied on predictions about what federal courts would do, based on U.S.
Supreme Court dicta, and those predictions have proven incorrect in subsequent
cases.
Coffman had an unusual procedural posture entirely different from the posture of
reporting requirements in the Colorado Fair Campaign Practices Act. Unlike this
case, that case was not brought as a pre-enforcement challenge, but was instead
filed while state administrative proceedings were pending against the plaintiff. 209
P.3d at 1134. On appeal, this Court determined that the Independence Institute had
30
standing, at the time the case was filed, because of those pending administrative
proceedings. However, that did not end the inquiry. The government argued that
the case was “barred by an order of the trial court.” Id. at 1140. That order had
been entered because the Independence Institute had “recast its claim” on appeal.
Id. at 1141. Whereas the Institute had previously argued that the requirements
was now arguing that the requirements were burdensome because they applied to
According to this Court, that changed the claim from a facial challenge to an
as-applied challenge. Id. That was improper because the Trial Court had entered
an order saying it would only entertain facial challenges, and that order had not
been appealed by the appellants. Id. Thus, this Court concluded “that (1) the
argument, it may not be raised for the first time on appeal.” Id.
Putting aside the complex procedural posture, the holding in Coffman was
simply that appellants could not raise their as-applied argument for the first time on
appeal. This case does not involve such a question, and Coffman’s standing
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matter. The question of Appellants’ standing can instead be resolved based on the
judgment—despite the fact that Appellants made it clear from the start that they
were bringing both kinds of challenges. CF, p 437. But as the U.S. Supreme Court
does not have “some automatic effect” on the “disposition in every case involving
a constitutional challenge.” Citizens United v. FEC, 558 U.S. 310, 331 (2010).
The distinction is helpful only because “it goes to the breadth of the remedy
employed by the Court, not what must be pleaded in a complaint.” Id.; see also
City of L.A. v. Patel, 135 S. Ct. 2443, 2449 (2015) (“the Court has never held that
[facial] claims cannot be brought under any otherwise enforceable provision of the
Constitution”).
After this Court decided Coffman, the U.S. Supreme Court considered the
“facial validity” of the law challenged in Citizens United, even though the
plaintiffs presented “narrower arguments,” 558 U.S. at 333. The Tenth Circuit also
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rejected similar nitpicking between facial and as-applied challenges in Doe v. City
of Albuquerque, 667 F.3d 1111, 1122–28 (10th Cir. 2012). On the other hand,
challenges and is simply no longer on-point on that issue. Any dispute over
the future about Denver-specific issues. Injury to their legally protected interest is,
therefore, plain. Citizens for Responsible Gov’t State Political Action Comm. v.
Davidson, 236 F.3d 1174 (10th Cir. 2000), held that plaintiffs—like Appellants
overcome the chilling effect of the statute’s plain language.” Id. at 1192 (emphasis
added). So long as there is some relief that will redress a plaintiff’s injuries, such a
plaintiff has standing. The form of relief here is declaratory and injunctive relief,
fees, costs, and other legal and equitable relief. CF, p 13 ¶¶ 1–6. This relief would
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VIII. REMEDY SOUGHT
As shown above, the Trial Court erroneously found that Appellants lack
standing. Accordingly, Appellants request that the Trial Court’s entry of judgment
in favor of Appellee be reversed, and that this case be remanded to the Trial Court
IX. CONCLUSION
The trial court erred when it ignored the evidence introduced by Appellants
at trial and ruled that Appellants lacked standing. That decision should be reversed
and the case should be remanded for proceedings on the merits of Appellants’
constitutional claims.
X. ATTORNEY’S FEES
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/s/ James M. Manley
James M. Manley (CO Bar No. 40327)
Pacific Legal Foundation
3217 E. Shea Blvd. #108
Phoenix, AZ 85028
(916) 419-7111
Fax: (916) 419-7747
jmanley@pacificlegal.org
CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of July, 2019 a true and correct copy of
the foregoing was filed and served via Colorado Courts E-Filing to the following
parties:
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