SOS Answer-Reply Brief - Ethics Watch v. Gessler CO Court of Appeals

7/28/2019 SOS Answer-Reply Brief - Ethics Watch v. Gessler CO Court of Appeals

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COLORADO COURT OF APPEALS

2 East 14th Avenue

Denver, CO 80203

District Court, City and County of Denver

Honorable J. Eric Elliff, Judge

Case No. 2012 CV 2133

(consolidated with 2012 CV 2153)

Defendant/Appellant/Cross-Appellee: SCOTT

GESSLER, in his official capacity as Secretary of

State for the State of Colorado,

v.

Plaintiffs/Appellees/Cross-Appellants:

COLORADO ETHICS WATCH and COLORADO

COMMON CAUSE

and

Plaintiffs/Appellees: DAVID PALADINO;

MICHAEL CERBO; PRO-CHOICE COLORADO

PAC; PPRM BALLOT ISSUE COMMITTEE; and

CITIZENS FOR INTEGRITY, INC.

COURT USE ONLY

Case No. 12 CA 1712

JOHN W. SUTHERS, Attorney GeneralLEEANN MORRILL, First Assistant Attorney

General

FREDERICK R. YARGER, Assistant Solicitor

General, Reg. No. 39479*

MATTHEW D. GROVE, Assistant Attorney

General, Reg. No. 34269*

1300 Broadway, 10th Floor

Denver, Colorado 80203

Telephone: (720) 508-6551

E-Mail: [email protected];

[email protected]*Counsel of Record

Answer-Reply Brief of Appellant / Cross-Appellee

Colorado Secretary of State


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Certificate of Compliance

This brief complies with the requirements of C.A.R. 28 and C.A.R. 32,including all formatting requirements. Specifically, I certify that

The brief complies with C.A.R. 28(g) because

It contains 7,292 words.o It does not exceed 30 pages.o The brief does not comply with CAR 28(g) because it exceeds

the word and/or page limit. A motion to accept the over length

brief has been filed contemporaneously with the brief.

The brief complies with C.A.R. 28(k) because,

For the party raising the issue: It contains under a separate

heading (1) a concise statement of the applicable standard of

appellate review with citation to authority; and (2) a citation to

the precise location in the record (R. __, p. __), not to an entire

document, where the issue was raised and ruled on.

For the party responding to the issue (CROSS-APPEAL):It contains, under a separate heading, a statement of whether

such party agrees with the opponents statements concerning

the standard of review and preservation for appeal, and if not,

why not.

/s/ Frederick R. Yarger

Frederick R. Yarger


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TABLE OF CONTENTS

PAGE

ii

3. Rules 1.10 and 7.2.1 clarify when a politicalorganization must report all of its activities. ....................... 23

4. Plaintiffs flawed reading of Citizens United illustratesthe value of the Secretarys rules. ......................................... 25

D.Plaintiffs objections to Rule 18.1.8 are based on amisreading of the rule. ....................................................................28

ANSWER TO CEW AND CCCs CROSS-APPEAL: Rule 1.7 ................ 30I. Summary of Argument. ................................................................... 30II. Standard of Review. ........................................................................ 30III.Argument. ........................................................................................ 32

A. Rule 1.7 is drawn directly from binding Colorado case law,as modified by U.S. Supreme Court jurisprudence. .....................32

B. The functional equivalent test is still relevant toColorados regulation of electioneering. .........................................35

C. Rule 1.7 is identical to its predecessor and makes nochanges to Colorado law. ................................................................37

Conclusion ................................................................................................. 40


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TABLE OF AUTHORITIES

PAGE

iii

CASESAlliance for Colo.s Families v. Gilbert, 172 P.3d 964 (Colo. App.

2007) ................................................................................... 6, 9, 10, 11, 12

Buckley v. Valeo, 424 U.S. 1 (1976) ..................... 12, 20, 21, 22, 23, 25, 33

Center for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C.

Cir. 2012) ................................................................................................. 7

Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495 (Colo. App. 2010) .... 14, 21

Citizens for Free Enter. v. Dept of Revenue, 649 P.2d 1054 (Colo.

1982) ....................................................................................................... 17

Citizens United v. Federal Election Commission, 130 S. Ct. 876

(2010) .......................................................................... 7, 21, 25, 26, 35, 37

Colo. Citizens for Ethics in Govt v. Comm. For the Am. Dream,

187 P.3d 1207 (Colo. App. 2008) ....................................................... 7, 31

Colo. Ethics Watch v. Senate Majority Fund, 269 P.3d 1248 (Colo.

2012) ................................................................................................. 21, 34

Colo. Ground Water Commn v. Eagle Peak Farms, 919 P.2d 212

(Colo. 1996) ........................................................................................ 4, 30

Colo. League of Taxpayers, No. OS 2009-0001, at 2 n.2 (Apr. 24,

2009) ....................................................................................................... 40

Fed. Election Commn v. Mass. Citizens for Life, 479 U.S. 238

(1986) ...................................................................................................... 11

Fed. Election Commn v. Wis. Right to Life, Inc. (WRTL II), 551

U.S. 449 (2007) .......................................................... 7, 33, 34, 35, 38, 39

Harwood v. Senate Majority Fund, LLC, 141 P.3d 962 (Colo. App.2006) ................................................................... 32, 33, 34, 35, 36, 37, 39

In re Interrogatories, 227 P.3d 892 (Colo. 2010) ............................... 36, 37

Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App.

2008) ................................................................................. 6, 11, 13, 14, 18


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PAGE

iv

Janssen v. Indus. Claim Appeals Office, 40 P.3d 1 (Colo. App.

2001) ....................................................................................................... 16League of Women Voters of Colo. v. Davidson, 23 P.3d 1266 (Colo.

App. 2001) .............................................................................................. 20

Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th

Cir. 2012) ............................................................................................... 22

Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545

U.S. 967 (2005) ........................................................................................ 3

National Organization for Marriage v. McKee, 649 F.3d 34 (1st

Cir. 2011) ................................................................................... 11, 12, 23

OQuinn v. Baca, 250 P.3d 629 (Colo. App. 2010) ..................................... 2

People v. Durapau, 2012 COA 67 .............................................................. 1

People v. Lowrie, 761 P.2d 778 (Colo. 1988) .............................................. 4

Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) ..................... 18, 22

Sanger v. Dennis, 148 P.3d 404 (Colo. App 2006) ..................................... 4

Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) .............. 10

Timothy C. Wirt, M.D., P.C. v. Prout, 754 P.2d 429 (Colo. App.

1988) ....................................................................................................... 10

Vaughan v. McMinn, 945 P.2d 404 (Colo. 1997) ..................................... 19

Wine & Spirits Wholesalers of Colo., Inc. v. Colo. Dept of

Revenue, 919 P.2d 894 (Colo. App. 1996) ............................................. 14

CONSTITUTIONSColo. Const. Art. XXXVII, 3(4) .............................................................. 37

Colo. Const. Art. XXXVII, 6(2) .............................................................. 37

Colo. Const. Art. XXVIII, 9(1)(b) ............................................................. 3


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PAGE

v

STATUTES 1-45-103(12), C.R.S. (2012) ...................................................................... 6

1-45-103(12)(b), C.R.S (2012). ......................................................... 14, 15

1-45-103.7(2.5), C.R.S. (2012) ................................................................ 25

1-45-108(1)(a)(I), C.R.S. (2012) ....................................................... 12, 24

1-45-108(1)(a)(III), C.R.S. (2012) ..................................................... 24, 27

1-45-108.5(1), C.R.S. (2012) ................................................................... 25

RULESC.A.R. 28(k) ............................................................................................. 1, 2

Rule 1.7 ............................................................................................. passim

Rule 1.10 ................................................................................. 19, 23, 25, 40

Rule 1.12.3 ........................................................................................ passim

Rule 1.18.2 ........................................................................................ passim

Rule 7.2.1 ................................................................................ 19, 22, 25, 40

Rule 9.4 ................................................................................... 30, 34, 37, 39Rule 18.1.8(a) ............................................................................................ 40

OTHER AUTHORITIESWebsters Third New International Dictionary (1986) ........................... 32


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ARGUMENT IN REPLY:

Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a)

I. Standard of Review.A. The Secretary did not violate C.A.R. 28(k) by

trimming words from his briefand neither did

CEW and CCC.

The Paladino Plaintiffs1 argue that the Opening Brief violates

C.A.R. 28(k) and should be struck because it sets forth the standard of

review under a single heading rather than five duplicative headings

(i.e., one for each rule). (Paladino Ans. Br. at 45.) This argument is a

distraction. Had the Secretarys Opening Brief been procedurally

deficient, this Court would have struck the brief on its own and

directed [the Secretary] to file a complying brief. See People v.

Durapau, 2012 COA 67, 45.

In any event, each rule at issue in this appeal is governed by the

same administrative review standards, and each issue in this appeal

1 There are two groups of plaintiffs in this case: (1) Colorado Ethics

Watch and Colorado Common Cause (CEW and CCC) and (2) the

group that includes David Paladino (the Paladino Plaintiffs).


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was resolved in a single order by the district court. Only one standard-

of-review heading was necessary. CEW and CCC followed that very

approach in their own Opening-Answer brief: they included only a

single standard-of-review section for the five rules at issue in the

appealpresumably in the interest of brevity and concisionand they

included a separate standard-of-review section for the portion of their

brief related to the cross-appeal. (CEW/CCC Op.-Ans. Br. at 1315, 31.)

Yet, transparently, the Paladino Plaintiffs do not argue that the brief

filed by CEW and CCC should be struck.

The Secretary is aware of the purposes of C.A.R. 28(k). For

convenience, he attached a full copy of the district courts order to the

Opening Brief as well as an addendum containing the full text of all of

the challenged rules, ensuring that this Court would not have to search

[the] record[] to determine whether (and, if so, how) issues had been

raised and resolved in the trial court[]. OQuinn v. Baca, 250 P.3d 629

(Colo. App. 2010). The Colorado Appellate Rules are meant to facilitate

efficient case administration; the Paladino Plaintiffs selective quibbling

over collateral issues serves the opposite purpose.


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B. The Secretary, the only official empowered toadminister and enforce Colorados campaign

finance laws, has discretion to enact rules toprovide guidance to the public.

CEW and CCC assert that the Secretary is not a judge . . . , nor a

legislative body . . . . He is merely an administrator of the laws enacted

by the General Assembly or the People . . . . CEW/CCC Op.-Ans. Br. at

13. The Secretary has never argued otherwise. But the Secretarys role

as administrator of the laws is crucial, no matter how hard Plaintiffs

try to minimize it. He is the only official in Colorado authorized to

promulgate rules to administer and enforce the states campaign

finance laws, and he has a constitutional duty to do so. Colo. Const. Art.

XXVIII, 9(1)(b).

Like every public official with rulemaking authority, the Secretary

must interpret the law, often in light of judicial decisions, and provide

guidance to the public about how the law may be implemented. This is

the very essence of administration. See, e.g., Natl Cable & Telecomms.

Assn v. Brand X Internet Servs., 545 U.S. 967, 98082 (2005)

(explaining that an agencys role is to fill . . . statutory gap[s] in [a]


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reasonable fashion, which entails making interpretations and

constructions of statutory language). It follows that the Secretary

must have discretion to promulgate campaign finance regulations, as

long as those regulations do not add [to], [] modify, and [] conflict with

governing law. Sanger v. Dennis, 148 P.3d 404, 413 (Colo. App 2006).

Although Plaintiffs appear to contend otherwise, there are many

ways to implement a statute or constitutional provision. SeePeople v.

Lowrie, 761 P.2d 778, 781 (Colo. 1988) ([I]t will often be impracticable

for the General Assembly to fix rigid standards . . . without destroying

the flexibility necessary to effectuate obvious legislative goals . . . .).

Plaintiffs may disagree with the Secretarys rules or his legal

interpretations, but if the Secretarys rules are permissiblethat is, if

they are consistent with governing law, including judicial opinions

they must be upheld against Plaintiffs challenges. See Colo. Ground

Water Commn v. Eagle Peak Farms, 919 P.2d 212, 217 (Colo. 1996)

(explaining that a plaintiff bears the burden of demonstrating that a

rule-maker violated constitutional or statutory law).


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The Paladino Plaintiffs, in an attempt to deflect their burden to

rebut the presumed validity of the Secretarys rules, distort the

Secretarys rulemaking efforts. They claim the Secretary is arguing

that validly enacted statutes and validly adopted constitutional

amendments are unconstitutional. (Paladino Ans. Br. at 910.) They

further assert that the Secretary must establish[] that constitutional

and statutory [provisions are] unconstitutional beyond a reasonable

doubt. (Id.)

The Secretary, however, is not arguing that various provisions of

Colorados campaign finance laws are unconstitutional. His rules

provide guidance as to how valid laws may be validly implemented,

consistent with judicial precedent.Courts routinely explain how to

apply what Plaintiffs call validly enacted statutes and validly adopted

constitutional amendments. (Id.) In doing so, courts do not declare the

laws to be invalid, as the Paladino Plaintiffs assumeeven if the

resulting judicial opinions narrow the circumstances in which the laws

may be applied. For example, when this Court held that the major

purpose test must be applied to political committees in Colorado, it was


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not invalidating a Colorado constitutional provision but was

explaining how the provisionwhich was necessarily validcouldbe

enforced.Alliance for Colo.s Families v. Gilbert, 172 P.3d 964, 97273

(Colo. App. 2007).

Even the Paladino Plaintiffs admit that guidance is sometimes

necessary to clarif[y] the law . . . in light of judicial decisions.

(Paladino Ans. Br. at 1415.) They explain that the General Assembly

amended C.R.S. 1-45-103(12), the statute that defines issue

committees, to comply with this courts decision in Independence

Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008). They further

acknowledge that this legislative amendment did not make a

substantive change to the statute. (Paladino Ans. Br. at 15.) Yet, in the

view of the Paladino Plaintiffs, the Secretarys own attempts to clarify

the law in light of judicial precedent equates to arguing that validly

enacted statutes and validly adopted constitutional amendments are

unconstitutional. (Id. at 9.) This view bucks common sense. As the D.C.

Circuit recently observed, significant developments in case law often

create the occasion for rulemaking. Center for Individual Freedom v.


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Van Hollen, 694 F.3d 108, 110 (D.C. Cir. 2012) (remanding the case for

rulemaking and noting that [t]he statute is anything but clear,

especially when viewed in the light of the Supreme Courts decisions in

Citizens United . . . and WRTL II). An ostrich-like approach that

requires public officials to ignore case law serves no purpose but to

confuse members of the public who consult administrative rules to

answer legal questions.

Aside from their disagreement with the rules they have

challenged, Plaintiffs provide no reason why the Secretary or other

officials, in exercising their constitutional duty to promulgate

administrative rules, must ignore judicial precedent. Nor can they

explain why the Secretary is prevented from clarifying the law by

answering specific questions not answered by existing statutes and

constitutional provisions. Plaintiffs disagreement with the Secretarys

rules does not relieve them of the burden to prove that each of the

challenged rules is invalid beyond a reasonable doubt. Colo. Citizens for

Ethics in Govt v. Comm. For the Am. Dream, 187 P.3d 1207, 1217 (Colo.

App. 2008).


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II. Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a) are validexercises of the Secretarys constitutional authority.

A. Rule 1.18.2 codifies the major purposerequirement for political committees.

1. Rule 1.18.2 is necessary to avoidregulating political committees

through post-hoc litigation.

Both Plaintiffs and the district court recognized below that under

Colorado law, a group cannot be regulated as a political committee

unless it meets the major purpose requirement. (See E-File R. at 240,

391.2) But as it stands now, with Rule 1.18.2 invalidated, the only way

for an entity to determine whether this requirement has been met is

through litigation. The entity will not know with certainty whether it is

subject to regulation as a political committee until it has been sued,

appears before an ALJ, receives a decision, and perhaps endures an

2 E-File R. refers to documents compiled in the compact disk e-filed

by the district court clerk (for these citations, page numbers refer to

PDF pages 1508). Admin. R. Vol. 1 refers to the eight documents in

the official rulemaking record. Admin. R. Vol. 2 refers to writtencomments submitted by the public as part of the rulemaking hearing in

December 2011. Tr. refers to pages of the transcript of the rulemaking

hearing.


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appeal. See, e.g.,Alliance for Colo.s Families v. Gilbert, 172 P.3d 964

(Colo. App. 2007).

Plaintiffs apparently prefer the existing regime of regulation-

through-litigation, pointing to cases in which application of the

existing definition [of political committee] . . . have not violated the

First Amendment. (Paladino Ans. Br. at 27.) But Plaintiffs preferred

litigation-based regime creates serious problems: well-funded members

of the political community can hire counsel to advise them and defend

against (or prosecute) lawsuits involving the major purpose

requirement. Meanwhile, unsophisticated parties with fewer resources

must, without the aid of counsel, digest not only constitutional

provisions, statutes, and administrative rules, but forty years of judicial

precedent as well. As the record demonstrates, some of these parties

will be discouraged from exercising their First Amendment rights. (See

Tr. at 57:11016; Admin. R. Vol. 2, Tab 14 at 4.) Rule 1.18.2 codifies the

major purpose test in a way that addresses the imbalance between

sophisticated political groups and small grassroots organizations.


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2. The Secretary properly based Rule1.18.2 on applicable judicial precedent.

It cannot be true, as Plaintiffs argue, that because [t]he voters

did not include a major purpose requirement in the constitutional

definition of political committee, the Secretary is prevented from

recognizing the requirement through rulemaking. (CEW and CCC Op.-

Ans. Br. at 27; see also Paladino Ans. Br. at 2526.) If this were so, this

Court could not have instructed the ALJ inAlliance for Colorados

Families to apply the major purpose test. Instead, the Court would have

been required to declare the definition of political committee

unenforceable. Courts, like administrative officials, cannot add new

requirements to existing legal definitions. Cf. Timothy C. Wirt, M.D.,

P.C. v. Prout, 754 P.2d 429, 430 (Colo. App. 1988) (refusing to judicially

amend a clearly stated . . . legislative policy . . . and impermissibly

invade the province of the General Assembly); Smith v. Midland

Brake, Inc., 180 F.3d 1154, 116768 (10th Cir. 1999) (refusing to

judicially amend a statutory definition and holding our duty is to

enforce Congress definition).


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Yet Plaintiffs assert that Rule 1.18.2 is arbitrary and capricious

because its two criteria are based on guidance from the Supreme Court

and the Tenth Circuit. (Paladino Ans. Br. at 30 (citing Fed. Election

Commn v. Mass. Citizens for Life, 479 U.S. 238 (1986)); CEW and CCC

Op.-Ans. Br. at 2627 (citing Colo. Right to Life Comm. v. Coffman, 498

F.3d 1137 (10th Cir. 2007)).) The the major purpose requirement is an

acknowledged fact in Colorado, and, as Plaintiffs recognize, [t]he issue

is how the political committee definition is applied without violating

the Constitution. (Paladino Ans. Br. at 28.) It was not arbitrary and

capricious for the Secretary to explain the major purpose test using

judicial guidance that this Court itself has described as relevant

authority.Alliance for Colo.s Families, 172 P. 3d at 973 (citing Colo.

Right to Life Comm. v. Coffman).

3. Despite Plaintiffs arguments, themajor purpose test is part of Colorados

definition of political committee.

In a final attempt to invalidate Rule 1.18.2, the Paladino Plaintiffs

misread National Organization for Marriage v. McKee, 649 F.3d 34 (1st

Cir. 2011), suggesting that because the First Circuit upheld a Maine


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statute regulating non-major purpose political committees, Rule

1.18.2 is necessarily invalid. (Paladino Ans. Br. at 26.) That argument is

wrong for at least two reasons.

First, it defies this Courts holding that the major purpose test is

required byBuckley and is, unambiguously, a part of Colorado law.

See Alliance for Colo.s Families, 172 P.3d at 972.

Second, the non-major purpose provisions of the law at issue in

National Organization for Marriage were tailored to Maines

informational interest, requiring disclosure only of the candidates or

campaigns the non-major-purpose PAC supports or opposes, its

expenditures made to support or oppose the same, and identifying

information for any contributors who have given more than $50 to the

PAC to support or oppose a candidate or campaign. 649 F.3d at 58

(emphasis added). The same is not true in Colorado, where political

committees are required to report all donations, all expenditures, and

all obligations [they] enter[] into. C.R.S. 1-48-108(1)(a)(I) (emphasis

added). The Paladino Plaintiffs attempt to equate Colorado law with

another states vastly different regulatory scheme underscores their


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misunderstanding of the major purpose test and Rule 1.18.2. Because

the rule simply codifies an existing requirement of Colorado law and

clarifies how that requirement is met, it was within the Secretarys

discretion to promulgate.

B. Rule 1.12.3 explains how to apply the a majorpurpose requirement for issue committees.

1. Rule 1.12.3 is an exercise ofadministrative discretion to fill a gap

in current law.

Plaintiffs arguments against Rule 1.12.3 reveal that they

misunderstand the circumstances under which administrative officials

may promulgate rules. In Plaintiffs viewwhich echoes the district

courts faulty analysis below (see Secy Op. Br. at 3639)a rule is valid

only if the statute under which it was promulgated is either

unconstitutional or has already spoken to the precise question the rule

answers. This makes no senseif Plaintiffs are correct, a rule is valid

only if it is unenforceable or unnecessary.

Plaintiffs argue that two court decisionsIndependence Institute

v. Coffman, 209 P.3d 1130 (Colo. App. 2009)and Cerbo v. Protect Colo.


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Jobs, Inc., 240 P.3d 495 (Colo. App. 2010)foreclose Rule 1.12.3

because in both of them, this Court concluded that the phrase a major

purpose is not unconstitutionally ambiguous, vague, or overbroad. (See

Paladino Ans. Br. at 16, 18; CEW and CCC Op.-Ans. Br. at 24.) The fact

that the phrase a major purpose is constitutionally enforceable,

however, sheds no light on the real question: whether the definition of

a major purpose leaves any gap to be filled through rulemaking.

Plaintiffs do not dispute that when a relevant statute or

constitutional provision has not spoken on [a] precise question, an

administrator is empowered to make rules. Wine & Spirits Wholesalers

of Colo., Inc. v. Colo. Dept of Revenue, 919 P.2d 894, 98999 (Colo. App.

1996). Here, for example, the statutory definition of a major purpose

provides a set of criteria but fails to explain how those criteria apply.

C.R.S. 1-45-103(12)(b). The Secretary promulgated Rule 1.12.3 to fill

this gap. In arguing that Independence Institute and Cerbo left no gap to

fill, Plaintiffs confuse the distinction between an unconstitutional,

unenforceable law and one that is subject to rulemaking. This Court,


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however, did not confuse that distinction. Neither Independence

Institute nor Cerbo forecloses Rule 1.12.3.

Plaintiffs also assert that because [t]he General Assembly . . . did

not . . . use the 30% figure adopted by the Secretary, it left no room for

the Secretarys 30% idea. (Paladino Ans. Br. at 1415; see also CEW

and CCC Op.-Ans. Br. at 25.) Plaintiffs believe that, under 1-45-

103(12)(b), a case-specific inquiry into an organizations pattern of

conduct [is] the appropriate test. (CEW and CCC Op.-Ans. Br. at 25.)

The statutory definition of a major purpose, however, says nothing

about a case-specific inquiryjust as it does not mandate the bright-

line approach of Rule 1.12.3. See 1-45-103(12)(b). This silence does not

mean that only one option is the appropriate test. (CEW and CCC Op.-

Ans. Br. at 25.) Instead, it means either approach is permissible.

Moreover, Plaintiffs viewthat because 1-45-103(12)(b) does not

specify a bright-line test, this type of test must be prohibitedturns

administrative rulemaking on its head. The lack of specificity in the

statute is what empowers the Secretary to make rules; the legislative


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silence does not preclude him from doing so. See Janssen v. Indus.

Claim Appeals Office, 40 P.3d 1, 4 (Colo. App. 2001).

2. Rule 1.12.3 is based on a carefulconsideration of the record and the

Secretarys discretionary authority.

Plaintiffs further argue that the 30% threshold of Rule 1.12.3 is

arbitrary and was adopted with no factual basis in the rulemaking

record. (CEW and CCC Op.-Ans. Br. at 26; see also Paladino Ans. Br. at

19.) This is simply untruethe record demonstrates the need for an

easy-to-apply test explaining whether an entity satisfies the a major

purpose requirement. For example:

One written comment stated, [t]he adoption of a 30-percent-expenditure threshold . . . provides another much-needed

bright-line test. Colorados a major purpose language . . . has

been a source of confusion and an object of litigation. (Admin.

R. Vol. 2, Tab 39 at 23.)

Another commenter, who had unwittingly formed an issuecommittee in a previous election cycle, testified, I do like the

idea that theres a clear rule here. There hasnt been a test at

all. Who knows what a major purpose would mean? . . . [I]f you

decide not to file, youre running the risk that youre going to bedragged into court . . . . And you just dont . . . know whether

youre complying with the rules or not. [Rule 1.12.3] would at

least have a bright-line test . . . . (Tr. at 114:413.)


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Another commenter testified that under the old rules, theaverage citizen would have to hire an attorney . . . . The result

is that citizen activists are going to shut up, go home, do whattheyre told, and not have a voice in the system. . . . That is why

the rules matter. (Tr. at 56:1957:4.)

The record also demonstrates that the Secretary consideredother options for clarifying a major purpose, including, as an

opponent of Rule 1.12.3 suggested, a dollar limit rather than a

percentage-based threshold. (Tr. at 86:1219, 88:57.)

In evaluating this record, the Court must display sensitivity to

the range and nature of determinations that must be made by an

administrative agency. Citizens for Free Enter. v. Dept of Revenue, 649

P.2d 1054, 1064 (Colo. 1982). It must be mindful that [its] task is not to

substitute [its] judgment for that of the administrative agency; rather,

it is to assure that the regulation is the product of reasoned decision-

making fairly defensible in light of the material before the agency and

its latitude in the resolution of policy matters. Id. at 1065. Here,

whether to employ a bright-line test or the case-specific inquiry that

Plaintiffs prefer is a matter that demands agency discretion. The record

makes clear that the Secretary carefully considered all the testimony

and written comments, and made a reasoned decision that this Court

cannot second-guess.


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Plaintiffs assert that the 30% line was drawn in the wrong place

and foster[s] non-disclosure. (Paladino Ans. Br. at 16; see also CEW

and CCC Op.-Ans. Br. at 27.) But the a major purpose requirement

itself was designed to decrease disclosure, at least when the burdens of

regulation outweigh the publics interest in such information. That is

the whole point of the a major purpose test: to balance the need for

disclosure against the concern that not everyone who engages in

protected speech must report his or her expressive activity.

Independence Institute, 209 P.3d at 1139 ([T]he electorates intent in

adopting article XXVIII [was] to require disclosure of contributions

made to entities that exist to influence election outcomes as to ballot

issues, and not to require disclosure of contributions to entities that do

not have such influence as a major purpose. (emphasis added)); cf.

Sampson v. Buescher, 625 F.3d 1247, 1261 (10th Cir. 2010)(Here, the

financial burden of state regulation on Plaintiffs freedom of association

approaches or exceeds the value of their financial contributions to their

political effort . . . .). Rule 1.12.3s 30% threshold simply makes the

requirement easier to administer and understand.


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And, as the record suggests, the rule will likely cause more groups

to engage in ballot-issue advocacy, therefore increasingdisclosure above

the current level. If nascent issue committees are easily able to

determine when they will trigger reporting requirements, they will be

more likely to comply with them rather than shut[ting] up, go[ing]

home, . . . and not hav[ing] a voice in the system. (Tr. at 56:1957:4.)

C. Rules 7.2.1 and 1.10 clarify the definition ofpolitical organization.

1. The Courtand the Secretarymustheed preexisting law in construing

legislative language.

The Secretarys Opening Brief explains in detail that Rules 7.2.1

and 1.10 clarify the definition of political organization based on

existing legal requirements. (Secy Op. Br. at 4147.) The General

Assembly, when enacting the definition, was legislating in an area

laden with years of judicial interpretation. This Court must presume

the General Assembly knew of this precedent and adopt[ed] the

construction which prior judicial decisions have placed on particular

language. Vaughan v. McMinn, 945 P.2d 404, 407 (Colo. 1997). This is


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especially true in the realm of campaign finance law. See, e.g., League of

Women Voters of Colo. v. Davidson, 23 P.3d 1266, 1278 (Colo. App.

2001) ([N]one of [the] advertisements was express advocacy, as that

term is construed and applied inBuckley [v. Valeo, 424 U.S. 1

(1976)] . . . .).

Plaintiffs trivialize this legal background, and they urge the Court

to presume that the General Assembly was unaware of it or, perhaps,

chose to ignore it. (See Paladino Ans. Br. at 3841.) CEW and CCC even

suggest that the General Assembly deliberately chose to avoid the

legally significant terms expenditure or express advocacy. (CEW and

CCC Op.-Ans. Br. at 1617.) At the same time, CEW and CCC

disregard the legal significance of the terms the General Assembly did

deliberately choose to use, including the phrase influencing or

attempting to influence. That phrase, according toBuckley, is

overbroad and requires a limiting construction. (See Secy Op. Br. at 44

47.) And becauseBuckley is the bedrock of all campaign finance

political speech jurisprudence, Colo. Ethics Watch v. Senate Majority


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Fund, 269 P.3d 1248, 1258 (Colo. 2012), the Secretary is not free to

disregard it.

2. Buckley applies to disclosure-only laws.But Plaintiffs not only ignore the law; they also misconstrue it.

They assert that theBuckley analysis is simply not relevant to

Colorados political organization statute, which creates only disclosure

obligations. (CEW and CCC Op.-Ans. Br. at 19; see also Paladino Ans.

Br. at 39.) In their view, disclosure-only laws do not raise the First

Amendment concerns thatBuckley identified. 3 The precedent, however,

says otherwise. Cerbo v. Protect Colo. Jobs, Inc., 240 P.3d 495, 500

(Colo. App. 2010) ([R]egistration and reporting requirements . . .

3 Plaintiffs pluck a single passage from Citizens United v. Federal

Election Commission, 130 S. Ct. 876 (2010), to argue that disclosure-

only laws are free fromBuckleys requirements. (CEW and CCC Op.-

Ans. Br. at 1920; Paladino Ans. Br. at 39.)Citizens United, however,

dealt with a specific regulatory area: electioneering communications. As

the Colorado Supreme Court recognizes, electioneering is narrowly

defined by objective and bright-line criteria, making broader

limitations on electioneering tolerable. Senate Majority Fund, 269P.3d at 1258. Outside the electioneering context, however, regulations

like those governing political organizations implicate the vagueness

and overbreadth concerns fromBuckley. See id.


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implicate the First Amendment . . . .); Sampson, 625 F.3d at 1255

(Reporting and disclosure requirements . . . can infringe on the right of

association.).

As the Eight Circuit recently recognized, simply placing a

disclosure label on laws imposing the substantial and ongoing burdens

typically reserved for PACs does not exempt those laws from existing

judicial precedent. Minn. Citizens Concerned for Life v. Swanson, 692

F.3d 864 (8th Cir. 2012). There, the court analyzed a law that d[id] not

prohibit corporate speech. Id. at 871. Although it was a disclosure-only

law, the court found it problematic under the First Amendment because

it required ongoing reporting requirements from associations not

otherwise qualifying as PACs and yet did not employ theBuckley

major purpose test to determine what entities would or would not be

faced with this type of regulation. Id. at 877, 87172. For the same

reasons, Rule 7.2.1 properly incorporates the major purpose test into

Colorados definition of political organization.

Another case also found a deficiency in a disclosure-only statute,

but this time the issue was the problematic phrase influencing or


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attempting to influence. Natl Org. for Marriage, 649 F.3d at 6447.

There, the First Circuit considered pure disclosure laws that

impose[ed] no limitation on the amount of money PACs [could] raise

. . . [or] spend. Id. at 4142. Yet the court recognized that the laws use

of the phrase influencing present[ed] some vagueness problems. Id.

at 65. In the courts view,Buckley dictated that the term be given a

narrow[ing] formulation that would be considerably more precise

than the original. Id. at 67. This is precisely what Rule 1.10 does in

similarly construing the phrase influencing or attempting to influence.

3. Rules 1.10 and 7.2.1 clarify when apolitical organization must report all

of its activities.

Plaintiffs claim that Rules 1.10 and 7.2.1 collapse[] the

distinction between political committees and political organizations.

(CEW and CCC Op.-Ans. Br. at 15.) And they argue that a 527 group

could avoid regulation so long as they avoid the magic words of

express advocacy or continue to spend in other states. (CEW and CCC

Op.-Ans. Br. at 18.) But Plaintiffs ignore that Colorado law


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comprehensively regulates many types of election-related activity, often

in overlapping ways.

All individuals and entitiesno matter what form they take

must report each independent expenditure in excess of one-thousand

dollars, if those expenditures are not reported elsewhere. Colo. Const.

Art. XXVIII, Sec. 5(1). And for every contribution of over $20 to a

candidate committee, political committee, issue committee, small donor

committee, or political party, a disclosure must be made that includes

the name and address of the contributor. C.R.S. 1-45-108(1)(a)(I). Any

expenditure that is coordinated with a political candidate is treated as a

contribution subject to these disclosure rules. Colo. Const. Art. XXVIII,

9. Separately, any electioneering communication over $1,000 must be

reported, as well as the name, address, occupation, and employer of

anyone donating $250 or more to the communication. C.R.S. 1-45-

108(1)(a)(III). This intricate system often blurs the lines that separate

distinct campaign activity. For example, in 2010 the General Assembly

was required to pass a law ensuring that independent expenditure

committees would not be regulated as political committees; this law was


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necessary because organizations could easily fall under both definitions.

See C.R.S. 1-45-103.7(2.5).

Within this framework, Rules 1.10 and 7.2.1 clarify the point at

which a 527 organization must report all of its activityboth in

Colorado and around the countryto the Colorado Secretary of State.

In Colorado, a political organization must report any contributions it

receives and any spending . . . that exceeds twenty dollars. C.R.S. 1-

45-108.5(1) (emphasis added). This type of regulatory regime, which

imposes comprehensive reporting and disclosure requirements on

everything an entity does, must comply withBuckley to ensure it is not

overbroad. See Minn. Right to Life, 692 F.3d at 872 (Minnesota has, in

effect, substantially extended the reach of PAC-like regulation to all

associations that ever make independent expenditures. (emphasis in

original)).

4. Plaintiffs flawed reading of CitizensUnited illustrates the value of theSecretarys rules.

Finally, Plaintiffs resort to unfounded hyperbole in an attempt to

argue that Rules 7.2.1 and 1.10 are invalid.


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The Paladino Plaintiffs declare that the very spending that was

at the heart ofCitizens United would not be disclosed under Rule 7.2.1

and 1.10. . . . [T]here would be no disclosure at all if [Hillary: The

Movie] were shown in Colorado. (Paladino Ans. Br. at 4142.) This

argument does nothing to support Plaintiffs objections to Rule 1.10 and

7.2.1. It merely reveals that the Paladino Plaintiffs do not understand

Citizens United or Colorados rules regarding electioneering

communications.

The movie at issue in Citizens United was to be made available

through video-on-demand within 30 days of the 2008 primary elections.

130 S. Ct. at 888. Because the movie repeatedly mentioned a political

candidate by name and urge[d] viewers to vote against Senator Clinton

for President, it was the functional equivalent of express advocacy.

Id. at 890. With these attributes, the movie was an electioneering

communication under Colorados definition (and under the federal

definition), and it would therefore have been subject to various

reporting and disclosure requirements. Colo. Const. Art. XXVIII 7(a);

see also Rule 1.7. Indeed, the status of the movie as electioneering


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underfederal law was the very reason the Supreme Court was required

to answer the broader question presented in Citizens United:whether

corporations have a First Amendment right to engage in political

speech. Citizens United, 130 S. Ct. at 892 (As the foregoing analysis

confirms, the Court cannot resolve this case on a narrower ground

. . . .)

Thus, ifHillaryor, more accurately, a similar movie that

disparaged a candidate for state office4were broadcast in Colorado, the

creators of the movie would be required to make various disclosures:

the amount expended on the communication[], the name and address of any person that contribut[ed] more

than two hundred fifty dollars, and

the [donors] occupation and employer if the donor was anatural person.

C.R.S. 1-45-108(1)(a)(III).

The Paladino Plaintiffs exaggerations therefore fall flat. Indeed,

their arguments merely illustrate why campaign finance rules like

4 Colorado campaign finance law does not regulate electioneering

related to candidates for national office.


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those at issue in this case are necessary. Even parties represented by

counsel can misunderstand how campaign finance laws interact with

judicial precedent. Concise, accurate rules can help clear up this sort of

confusion.

D. Plaintiffs objections to Rule 18.1.8 are based on amisreading of the rule.

CEW and CCC5 simply misread Rule 18.1.8. They claim that the

rule dispenses with any good cause requirement and effectively

waives fines in advance and that the rule obviate[s] the need for any

particular committee to request a waiver. (CEW and CCC Op.-Ans. Br.

at 30.) This is incorrect. A person seeking a fee waiver under Rule

18.1.8 for failure to file a major contributor report must still submit a

request for waiver to the Secretary under Rule 18.1.1. This is made

clear by the structure of the rules: Rule 18.1.8 is a sub-rule within Rule

18.1, which is entitled, Requests for waiver or reduction of campaign

finance penalties. (Emphasis added.)

5 The Paladino Plaintiffs did not challenge Rule 18.1.8 in this

litigation.


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Rule 18.1.8 operates identically to the other good-cause scenarios,

codified in Rule 18.1.2, to which CEW and CCC do not object. Those

scenarios, as CEW and CCC admit, govern the Secretarys exercise of

discretion when presented with waiver requests that do demonstrate

good cause. (CEW and CCC Op.-Ans. Br. at 30.) Rule 18.1.8 merely

describes one additional scenario under which good cause exists to

excuse a campaign finance penalty.

In any event, the arguments CEW and CCC make on appeal do

not challenge the substance of Rule 18.1.8. Instead, their only concern

appears to be that a person or group seeking a fee waiver under Rule

18.1.8 should be required to submit a request for waiver to the

Secretary. Since this is already true, their objections are off the mark.

Rule 18.1.8 merely implements the Secretarys constitutional authority

to set aside or reduce the penalty [for failure to file a report] upon a

showing of good cause. Colo. Const. Art. XXVIII, 10(2)(c). CEW and

CCC have failed to identify any reason why this particular exercise of

that power is improper.


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ANSWER TO CEW AND CCCs CROSS-APPEAL:

Rule 1.7

I. Summary of Argument.Rule 1.7 does nothing more than clarify the definition of a term of

artelectioneering communicationbased on case law from Colorado

and the United States Supreme Court. Indeed, the substance of Rule

1.7 was in effect before the current Secretary took office: former Rule

9.4, Rule 1.7s predecessor, is identical to the new rule. As the district

court held, [t]he new rule adds no substantive additional terms and

imposes no additional restrictions over the old rule. (E-File R. at 389.)

The arguments CEW and CCC make against Rule 1.7 misread the

relevant precedent and the rule itself. When weighed against the proper

authoritiesthe decisions of this Court and the Colorado Supreme

CourtRule 1.7 must be upheld.

II. Standard of Review.The Court must presume that Rule 1.7, like the other rules at

issue in this case, is valid. Colo. Ground Water Commn v. Eagle Peak

Farms, 919 P.2d 212, 217 (Colo. 1996). Plaintiffs are required to prove


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the invalidity of the rule beyond a reasonable doubt. Colo. Citizens for

Ethics in Govt v. Comm. for the Am. Dream, 187 P.3d 1207, 1217 (Colo.

App. 2008). To do so, they bear the heavy burden of demonstrating that

the rule violated constitutional or statutory law, exceeded [the

Secretarys] authority, or lacked a basis in the record. Eagle Peak

Farms, 919 P.2d at 217.

Contrary to Plaintiffs arguments, the district court below did not

improperly conduct[] [its] de novo review by comparing Rule 1.7 to its

predecessor. (CEW and CCC Op.-Ans. Br. at 31.) The court properly

consulted recent case law from the Colorado Supreme Court, which

reaffirm[ed] the validity of Rule 1.7 and its reliance on the U.S.

Supreme Courts decision in Wisconsin Right to Life. (E. File. R. at 389.)

In recognizing that [t]he new rule adds no substantive additional terms

and imposes no additional restrictions over the old rule, the district

court was merely observing that Rule 1.7 reflects Colorados

longstanding approach to determining whether a communication

amounts to electioneering. (Id.) This Court, likewise, may consider

this fact in reviewing the validity of the rule.


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III. Argument.A.

Rule 1.7 is drawn directly from binding Coloradocase law, as modified by U.S. Supreme Court

jurisprudence.

Rule 1.7 clarifies the definition of electioneering communications

based on a line of case law that includes opinions from this Court, the

Colorado Supreme Court, and the U.S. Supreme Court.

In Harwood v. Senate Majority Fund, 141 P.3d 962 (Colo. App.

2006), this Court construed the term electioneering communication to

mean electoral advocacy. Id. at 966. To arrive at this construction,

the Court examined the intent of the voters who enacted the

constitutions electioneering provisions, concluding that the

electorate was concerned with regulating . . . speech designed to

influence the outcome of Colorado elections. The Court also examined

the plain meaning of the term electioneering, finding it to mean

try[ing] to sway public opinion especially by the use of propaganda.

Id. at 96566 (quoting Websters Third New International Dictionary

731 (1986)). Harwood then adopted an intent and effect test, holding


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that a communication is electioneering if the speaker intends or

tries or seeks to influence voters. 141 P.3d at 966.

After Harwood was decided, however, the United States Supreme

Court held that this type of intent-based test is too vague. Fed. Election

Commn v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449, 468

(2007). Under an intent-and-effect test, identical communications could

be treated differently. Speakers wishing to influence an election could

be regulated, while speakers using the same words, but wishing only to

voice opinions on public issues, could not. Regulating speech based on

the intent of the speaker would therefore blanket[] with uncertainty

whatever may be said, and offer[] no security for free discussion; in

other words, intent-based regulation chill[s] core political speech. Id.

(quotingBuckley, 424 U.S. at 43).

Because of these problems, the Court held that intent-based

standards must give way to an objective approach, under which a

communication amounts to electioneering only if it is the functional

equivalent of express advocacythat is, only if it is susceptible of no

reasonable interpretation other than as an appeal to vote for or against


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a specific candidate. Id. at 470. The Court also provided a negative

definition, under which a communication is not electioneering if it

(1) merely take[s] a position on [an] issue and asks others to do the

same; (2) does not mention an election, candidacy, political party, or

challenger; and (3) does not take a position on a candidates character,

qualifications, or fitness for office. Id.

WRTL IIs holding therefore provided a roadmap for applying

Harwoods definition of electioneering. The Secretary, seeking to make

Colorado campaign finance law clear and understandable, explicitly

included that road map in Rule 1.7just as its predecessor, former Rule

9.4 did.6

Indeed, Rule 1.7 mirrors the language of the U.S. Supreme

Court and, just like former Rule 9.4, cites WRTL IIitself.

The Colorado Supreme Court recently made clear that Rule 1.7s

underpinnings remain sound. In Colorado Ethics Watch v. Senate

Majority Fund, the Court analyzed WRTLIIs formulation of the

6 The full text of Rule 1.7 and former Rule 9.4 is included in

Addendum A to the Secretarys Opening Brief.


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functional equivalent test. 269 P.3d at 125758 (quoting WRTL II, 551

U.S. at 470). The Court recognized that an intent-based test like the

one adopted in Harwood would serve as a deterrent and chill core

political speech and would open the door to burdensome litigation

about the subjective motivations of the speaker. Id. at 1257. The

functional equivalent test is therefore required in lieu of an intent-

based approach. Id.

Rule 1.7 is consistent with the Colorado Supreme Courts analysis.

It begins with Harwoods definition of electioneering but recognizes

that an intent-based approach cannot be used to determine whether

speech triggers campaign finance regulations. It therefore incorporates

recent case law, which, as the Colorado Supreme Court recognizes, is

designed to avoid burdensome litigation that chill[s] protected

political speech. Id.

B. The functional equivalent test is still relevantto Colorados regulation of electioneering.

CEW and CCC argue that Citizens United undermined the

significance ofWRTL IIand made the functional equivalent standard


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[] not applicable in Colorado. (CEW and CCC Op.-Ans. Br. at 34.) They

point to cases from various federal courts to suggest that the functional

equivalent test need not be grafted onto disclosure-only regimes. (Id.

at 4142.) They also claim that a Colorado Supreme Court case, which

applies the holding ofCitizens United to Colorados former ban on

corporate electioneering communications, makes WRTL IIirrelevant.

(Id. at 34 (citing In re Interrogatories, 227 P.3d 892 (Colo. 2010).)

This argument misses the point of Rule 1.7. The rule is based on

the accepted definition of electioneering in Colorado, which Harwood

established. Harwood, however, adopted an intent-based test, and both

the Colorado Supreme Court and the United States Supreme Court

acknowledge that this type of test creates constitutional problems. Rule

1.7 therefore incorporates recent precedent to explain how the definition

of electioneering in Colorado is applied. Other states, of course, may

use different definitions of electioneering with different constitutional

implications. But the question Rule 1.7 answers is one of Colorado law,

and cases interpreting other states laws do not address that question.


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In re Interrogatories does not alter this analysis. There, the

Colorado Supreme Court applied Citizens United to two specific

provisions of Colorado campaign finance law, Sections 3(4) and 6(2) of

Article XXVIII. In re Interrogatories, 227 P.3d at 894. The court

invalidated these provisions to the extent they banned speech by

corporations and unions. But the court said nothing about Colorados

definition of electioneering communications as interpreted by

Harwood. Indeed, that opinion said nothing at all about the functional

equivalent testeven though, at the time, former Rule 9.4 used that

test to define electioneering.

C. Rule 1.7 is identical to its predecessor and makesno changes to Colorado law.In an attempt to avoid the flaws in their arguments against Rule

1.7, CEW and CCC adopt a strained, erroneous reading of the rule.

They claim that the rule uses a term not found in former Rule 9.4the

functional equivalent of express advocacy . . . [and] provides a get-out-

of-reporting-free card. (CEW and CCC Op.-Ans. Br. at 4041.) They are

correct that the old rule did not use the label functional equivalent.


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But they are wrong on substance. Former Rule 9.4 and current Rule 1.7

both cite WRTL IIand explain that a communication is not

electioneering unless it is subject to no reasonable interpretation

other than an appeal to vote for or against a specific candidate. (Secy

Op. Br. at A-1.) The rules are substantively identical, as the district

court recognized below.

CEW and CCC also assert that the specific safe harbors in Rule

1.7.3 create regulatory exemptions and arbitrarily carve[] out

numerous types of advertisements. (CEW and CCC Op-Ans. Br. at 37.)

Those exemptions, however, come straight out ofWRTL II. And they

are not, in fact, safe harbors or exemptions at all7

they are merely

elements of the definition employed by the Supreme Court. Compare

7 Below, the Secretary referred to the negative definition of

electioneering as a safe harbor, but he never implied that the negative

definition is any broader than the functional equivalent test. (E-File

R. at 291.) Neither did the Supreme Court. WRTL II, 551 U.S. at 470.

Rule 1.7 merely clarifies which communications are, and which are not,subject to requirements imposed for electioneering communications.

(Admin. R. Vol. 1, Tab 1,Proposed Statement of Basis, Purpose, and

Specific Statutory Authority at 2.)


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Rule 1.7.3 with WRTL II, 551 U.S. at 470 (holding that communications

are not electioneering when they merely take a position on [an] issue

and ask others to do the same; when they do not mention an election,

candidacy, political party, or challenger; and when they do not take a

position on a candidates character, qualifications, or fitness for office)

Plaintiffs attempt to brush aside the fact that Rule 1.7 is

substantively identical to former Rule 9.4, hyperbolically arguing that

[d]uring the 2012 election, voters were left in the dark about [political]

ads thanks to the district courts erroneous ruling. (CEW and CCC Op.-

Ans. Br. at 35.) Yet they point to no 2012 political advertisement about

which Colorado voters were left in the dark, and the Secretary

certainly is not aware of one.

In any event, their argument assumes that Rule 1.7 somehow

changed Colorado law, when it did nothing of the sort. Rule 9.4, the

predecessor to Rule 1.7, explicitly adopted the HarwoodWRTL II

functional equivalent test. (Secy Op. Br. at A-1.) And administrative

law judges have been routinely applying that testin electioneering

disputes for years. SeeColo. League of Taxpayers, No. OS 2009-0001, at


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2 n.2 (Apr. 24, 2009) (ALJ Decision). Plaintiffs fail to explain how Rule

1.7 leaves voters in the dark when it is based on the very same case

law, and the same legal principles, as its predecessor.

Conclusion

The Secretary respectfully requests that the Court reverse the

district courts order as to Rules 1.18.2, 1.12.3, 7.2.1, 1.10, and 18.1.8(a)

and conclude that each of these rules is valid and enforceable. The

Secretary further requests that the Court affirm the district courts

order as to Rule 1.7.


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Respectfully submitted on April 25, 2013.

JOHN W. SUTHERS

Attorney General


LEEANN MORRILL

First Assistant Attorney General

Public Officials Unit

State Services Section

FREDERICK YARGER, 39479*

Assistant Solicitor General

MATTHEW GROVE, 34269*

Assistant Attorney General

Public Officials Unit

State Services Section

Attorneys for Secretary Gessler

*Counsel of Record


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CERTIFICATE OF SERVICE

This is to certify that I have served this ANSWER-REPLY

BRIEF OF APPELLANT / CROSS-APPELLEE COLORADO

SECRETARY OF STATE on all parties by LexisNexis File & Serve at

Denver, Colorado, on April 25, 2013, addressed as follows:

Mark Grueskin

Heizer Paul Grueskin LLP2401 15th Street, Suite 300


Luis Toro

Margaret Perl

1630 Welton Street


Jennifer H. HuntHill & Robbins, P.C.

1441 18th Street, Suite 100

Denver, Colorado 80202-1256


Frederick R. Yarger

SOS Answer-Reply Brief - Ethics Watch v. Gessler CO Court of Appeals

Documents

Transcript of SOS Answer-Reply Brief - Ethics Watch v. Gessler CO Court of Appeals