ROCKY MOUNTAIN GUN OWNERS, a Colorado non-profit corporation; COLORADO CAMPAIGN FOR LIFE, a Colorado non-profit corporation, Plaintiffs-Appellants,
WAYNE W. WILLIAMS, in his official capacity as Secretary for the State of Colorado; CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, a Delaware non-profit corporation, trading as Colorado Ethics Watch, Defendants-Appellees.
No. 1:14-CV-02850-REB-KLM, D. Colo.
KELLY, BRISCOE and GORSUCH, Circuit Judges.
ORDER AND JUDGMENT [*]
Beck Briscoe Circuit Judge.
Mountain Gun Owners and Colorado Campaign for Life
(Plaintiffs) initiated this lawsuit to enjoin a then-ongoing
state administrative proceeding initiated by Colorado Ethics
Watch (CEW) and to declare unconstitutional state election
disclosure laws. The district court denied this relief and
dismissed the case, citing the Younger v. Harris
abstention doctrine. Plaintiffs appeal, arguing the district
court applied an improper abstention standard. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Because there
were no ongoing state proceedings when the district court
ruled, we reverse and remand for the district court to
determine in the first instance whether any of
Plaintiffs' claims remain viable.
Colorado Constitution, Article XXVIII, and parallel statutory
provisions require that any person who spends $1, 000 or more
in a year on "electioneering communications" must
file a disclosure report with the Colorado Secretary of State
including, among other details, donor information. Colo.
Const. art. XXVIII, § 6(1). Failing to file triggers
civil penalties and a daily fine. Id. §
10(1)-(2). Although Colorado's Secretary of State
enforces these laws, the statute's private enforcement
provision allows "[a]ny person" to file a complaint
with the Secretary, who must then refer the case to an
administrative law judge (ALJ) in the Office of
Administrative Courts (OAC). Id. § 9(1),
(2)(a). A party dissatisfied with the ALJ's ruling may
appeal to the Colorado Court of Appeals within forty-nine
days of service of the agency's final decision.
Id.; Colo. Rev. Stat. § 24-4-106(11)(b) (2016).
are two Colorado non-profit organizations that lobby for
specific political causes. Rocky Mountain Gun Owners advocate
for Second Amendment rights. Aplt. Br. at 3. Colorado
Campaign for Life advocates for the right to life.
Id. They often send election mailings to Colorado
voters concerning these two issues and plan to do so in the
future. Aplt. Reply Br. at 7; Aplt. App. at 18. Defendants
are Colorado Ethics Watch (CEW) and Colorado Secretary of
State Wayne Williams. CEW is a non-profit organization that
advocates for government accountability and transparency.
Aplee. Br. at 3. As mentioned above, the Secretary is charged
with enforcing Colorado's election disclosure laws and
passing private complaints on to the OAC.
Plaintiffs sent mailings in mid- and early June of 2014,
respectively, which all parties agree fit the definition of
"electioneering communications." Aplt. App. at
17-18, 37-47. Both Plaintiffs failed to file the required
disclosure reports. Id. at 18. CEW filed a private
complaint with then Secretary Scott Gessler (predecessor to
Appellee Secretary Wayne Williams) on September 9, 2014.
Id. at 18-19. The Secretary passed the complaint on
to the OAC for a hearing. Id. at 19-20. Before the
OAC hearing, Plaintiffs filed this action in the United
States District Court for the District of Colorado
challenging the constitutionality of the state's election
disclosure scheme under both the United States and Colorado
Constitutions. Id. at 10-70. Plaintiffs also
requested a preliminary injunction and temporary restraining
order (TRO) to prevent enforcement of the disclosure scheme
either generally or as applied to them, and also to halt the
then-upcoming OAC hearing. Id. at 71, 155. The
district court denied Plaintiffs' requests for a
preliminary injunction and TRO, finding that "[t]he
administrative proceedings pending against [Plaintiffs] are
the type of proceedings entitled to abstention under
Younger v. Harris, 401 U.S. 37 (1971)."
Id. at 164.
Secretary then moved to dismiss Plaintiffs'
constitutional claims on Younger abstention grounds
on December 22, 2014. Id. at 166-74. The next day,
the ALJ in the Colorado state proceedings issued his Final
Agency Decision finding that Plaintiffs violated Colorado
state law and rejecting their "as applied"
constitutional challenges to the state law, which they had
raised as a defense. Id. at 277. Plaintiffs could
have appealed this decision to the Colorado Court of Appeals
within forty-nine days after service of the Final Agency
Decision, but chose not to do so. Aplee. Br. at 5; Colo. Rev.
Stat. § 24-4-106(11). Although unclear from the record,
service seems to have taken place shortly after December 23,
2014, meaning the time for appeal expired as late as
mid-February of 2015. Aplt. App. at 277-78. Thus, the
Colorado state proceedings ended in mid-February of 2015.
Neither party contests that the state proceedings have ended.
months later, on August 12, 2015, the district court granted
the Secretary's motion to dismiss, again finding
abstention proper. Id. at 279-90. In doing so, the
district court stated that "the parties to this case
are involved in a parallel state proceeding."
Id. at 286 (emphasis added). This was a clear
misstatement of fact, as both parties had previously alerted
the district court to the fact that the OAC proceedings had
terminated. In particular, Plaintiffs stated in their brief
in opposition to the motion to dismiss that "[o]n
December 23, 2014, the [OAC] ruled that Plaintiffs failed to
report electioneering communications and ordered them to each
pay a civil penalty of $8, 450." Id. at 177.
Likewise, the Secretary acknowledged in his reply in support
of the motion to dismiss that "the underlying
administrative court action ended with a final
adjudication" on December 23, 2014, and attached a copy
of the OAC's order to his reply. Id. at 265. In
addition, the Secretary stated that Plaintiffs "ha[d]
until February 16, 2015, to appeal." Id.
Notwithstanding the district court's misstatement
regarding the continued pendency of the state proceedings,
however, neither party alerted the district court to its
appeal, Plaintiffs now argue that the district court applied
the incorrect abstention standard, citing the Supreme
Court's most recent abstention case, Sprint
Communications, Inc. v. Jacobs, ___ U.S. ___, 134 S.Ct.
584 (2013). Aplt. Br. at 2. Plaintiffs would have this court
conclude that the private enforcement action CEW brought is
not a type of state proceeding from which federal courts must
abstain. Id. at 15-35. Defendants contest this
characterization and also argue that the entire case is moot.
Aplee. Br. at 1; Aplee. Reply Br. at 8-22.
the issues before us are whether the district court properly
abstained and whether the underlying constitutional claims
Standard of Review
review de novo a district court's decision to
abstain based on Younger. Yellowbear v. Wyo.
Atty. Gen., 525 F.3d 921, 923 (10th Cir. 2008). However,
we review findings of fact for clear error. Highmark Inc.
v. Allcare ...