Case 1:14-cv-02850-REB-KLM Document 48 Filed 01/15/15 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-02850-REB-KLM
ROCKY MOUNTAIN GUN OWNERS, et al.,
Plaintiffs,
v.
SCOTT GESSLER, et al.,
Defendants.
PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION TO DEFER
CONSIDERING DEFENDANTS RULE 12(B)(1) MOTION TO DISMISS TO PERMIT
ADEQUATE DISCOVERY REGARDING SUBJECT MATTER JURISDICTION

Courts in the Tenth Circuit are required to decline Younger abstention if the party
opposing abstention demonstrates that retaliation for the exercise of constitutional
freedoms or bad faith was a major motivating factor in the decision to file an underlying
state case. Phelps v. Hamilton, 59. F.3d 1058, 1066 (10th Cir. 1995). Plaintiffs, Rocky
Mountain Gun Owners (RMGO) and Colorado Campaign for Life (CCFL), have
provided this Court with significant statistical evidence of Defendant Colorado Ethics
Watchs (CEW)1 disproportionate targeting of conservative groups to demonstrate the
subjective bad faith, animus, and desire to retaliate for expression of undesired political
viewpoint in its filing of the underlying state case against RMGO and CCFL.
1

Defendant Citizens for Responsibility and Ethics in Washington t/a Colorado Ethics Watch is
registered to operate as a foreign corporation with the Colorado Secretary of State under the trade name
Colorado Ethics Watch. The private enforcement action was initiated under CEWs name. Therefore, for
the purposes of this memorandum, Plaintiffs will refer to this defendant as CEW

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If this Court is not satisfied that Plaintiffs have produced sufficient evidence to
overcome Younger abstention based upon the bad faith exception, this Court should
permit jurisdictional discovery solely on the issue of CEWs bad faith prior to ruling on
the pending dispositive motion. It is premature to rule on such a motion until evidence
of CEWs subjective bad faith can be elicited. In particular, only CEW is in possession
of evidence regarding how it discovered alleged electioneering violations by RMGO and
CCFL, as well as evidence regarding how it selected RMGO and CCFL as adversaries.
No party will be unfairly prejudiced by the short period of discovery proposed in this
motion. RMGO and CCFL, however, would be prejudiced if not given the opportunity to
conduct this jurisdictional discovery. Thus, a denial of discovery would be an abuse of
this Courts discretion under applicable Tenth Circuit precedent.
FACTUAL BACKGROUND
On September 9, 2014, CEW filed a private enforcement action against RMGO
and CCFL. Compl. 37. CEW alleges that Plaintiffs mailings fall within the definition
of an electioneering communication and that Plaintiffs failed to file the appropriate
reports and disclosure of contributors. Compl. 38; Compl. Ex. D. CEW demanded
that Plaintiffs be fined for each day they failed to file reports. Compl. 39.
CEW describes its mission on its website as a nonpartisan, nonprofit 501(c)(3)
watchdog group that holds public officials legally accountable for unethical activities that
undermine the integrity of government in Colorado. See Ex. A, Declaration of David A.
Warrington. Directly contradicting CEWs claim to be a nonpartisan watchdog,
however, is its record of retaliating against conservatives and groups supporting

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conservative causes. CEW has brought 41 prosecutions against conservatives since its
inception and 1 prosecution against a liberal. See, Exh. C to Declaration of David A.
Warrington. The single prosecution against a liberal was aimed at initiating an
investigation against a conservative State Senator. Id.
Defendant, Scott Gessler (Gessler), filed a Rule 12(b)(1) Motion to Dismiss on
Younger Abstention Grounds [#40] on December 22, 2014. The basis for this motion is
the Courts December 16, 2014 Order [#39] that invoked Younger abstention to defer to
state court adjudication in this matter. Neither the Courts decision [#39], nor Gesslers
Motion [#40], addressed the subjective bad faith of CEW in filing the state lawsuit
against Plaintiffs.
Because Younger abstention is inappropriate in the presence of bad faith by
CEW, Plaintiffs have argued in their Opposition to Gesslers motion that this Court
should intervene in this dispute. Underlying the Plaintiffs argument, in part, is the
requirement to prove bad faith with factual evidence. If the Court does not believe that
sufficient evidence exists to deny Gesslers motion at this time, and thus requires a
more satisfactory showing of the evidence, discovery on this issue should be permitted
prior to a final ruling.
STANDARD
When a defendant moves to dismiss for lack of jurisdiction, either party should
be allowed discovery on the factual issues raised by that motion. Budde v. Ling
Temco Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975). Although a district court has
discretion in the manner by which it resolves an issue of subject matter jurisdiction

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under Rule 12(b)(1), a refusal to grant discovery constitutes an abuse of discretion if the
denial results in prejudice to a litigant. Sizova v. Nat. Inst. of Standards and Tech., 282
F.3d 1320, 1326 (10th Cir. 2002) (citing First City, TexasHouston, N.A. v. Rafidain
Bank, 150 F.3d 172, 17677 (2d Cir. 1998)); Filus v. Lot Polish Airlines, 907 F.2d 1328,
1332 (2d Cir. 1990); MajdPour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903
(11th Cir. 1984); Canavan v. Beneficial Fin. Corp., 553 F.2d 860, 865 (3d Cir. 1977)).
Prejudice is present where pertinent facts bearing on the question of jurisdiction are
controverted . . . or where a more satisfactory showing of the facts is necessary. Id. at
1326 (quoting Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n. 24
(9th Cir. 1977)); see also Ernest v. Lockheed Martin Corp., No. 07-cv-02038-WYD-KLM,
2008 WL 927665, at *3 (D. Colo. Apr. 4, 2008) (granting discovery on disputed facts
underlying subject matter jurisdiction).
ARGUMENT
I.

Evidence of CEWs Bad Faith is Necessary to Adjudicate Whether

Younger Abstentions Bad Faith Exception Applies to This Case.
Younger abstention is not applicable in cases of proven harassment or

prosecutions undertaken . . . in bad faith. Weitzel v. Div. of Occupational & Prof'l

Licensing of Dep't of Commerce of State of Utah, 240 F.3d 871, 876 (10th Cir. 2001).
Under this bad faith exception, this court must examine whether CEWs state court
complaint was: (1) frivolous or undertaken with no reasonably objective hope of
success; (2) motivated by defendant's suspect class or in retaliation for the defendant's
exercise of constitutional rights; or (3) conducted in such a way as to constitute
harassment and an abuse of prosecutorial discretion. Id. at 877. To avoid Younger
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abstention, Plaintiffs must make a preliminary showing through articulable facts that
CEW intended to bring its state court case in bad faith, with animus, or in retaliation for
their exercise of political speech freedoms. Phelps, 59 F.3d at 1067.
In their Opposition to Gesslers Motion to Dismiss, the Plaintiffs provided detailed
statistical evidence of CEWs animus towards conservative groups and selective bad
faith prosecution of such groups under Colorados statutory scheme. Plaintiffs also
provided evidence that CEWs complaint was filed after RMGO and CCFL exercised
their First Amendment rights to issue-driven political speech, and that this complaint
was filed in retaliation for Plaintiffs expression of viewpoints that CEW did not support.
This type of pretextual targeting of conservative political speech as a means to chill
such speech has been sufficient in other jurisdictions to apply the bad faith exception to
Younger. OKeefe v. Schmitz, No. 14-C-139, 2014 WL 1379934, at *3 (E.D. Wis. April
8, 2014) (revd on other grounds OKeefe v. Chisholm, 769 F.3d 936 (7th Cir. 2014)).
While Plaintiffs maintain that they have already demonstrated CEWs bad faith,
Plaintiffs anticipate that limited jurisdictional discovery will provide even stronger
evidence of CEWs subjective bad faith in initiating its lawsuit against RMGO and CCFL.
Plaintiffs specifically intend to depose Luis Toro, Director of CEW, to obtain his
testimony as to why CEW began to investigate RMGO and CCFL and how CEW came
to learn of RMGO and CCFLs mailings. Plaintiffs will also obtain testimony regarding
the process by which CEW selected RMGO and CCFL to be a subject of CEWs
Complaint. Plaintiffs also intend to seek production of non-privileged documents from
CEW discussing RMGO and CCFL prior to the filing of the state administrative lawsuit,

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including the identity of any tip leading to the prosecution of RMGO and CCFL. Other
individuals that may be deposed include Doug Staggs, Research Director for CEW, and
Allison McGee Johnson, Communications Director for CEW. Plaintiffs do not seek
discovery outside of what is relevant to adjudicate the bad faith allegations at this time.
Plaintiffs anticipate that this discovery will demonstrate CEWs targeting of
RMGO and CCFL based upon their conservative positions on certain political issues
and their viewpoints expressed in the issue-based speech at issue in this case.
Plaintiffs represent that this discovery will also prove that CEW has employed a pattern
of pretextual targeting of conservatives and conservative groups. Plaintiffs anticipate
that such discovery will demonstrate CEWs animus towards their organizations, their
bad faith motives in bringing the state court case, and their intent to retaliate for political
speech based upon disfavored viewpoints.
II.

Plaintiffs Will Be Prejudiced Without an Opportunity to Conduct

Discovery on Controverted Pertinent Facts Bearing on CEWs Bad Faith
or to Make a More Satisfactory Showing of Facts Demonstrating CEWs
Bad Faith.
By requesting that this Court dismiss Plaintiffs case based upon Younger

abstention, the Defendants impliedly argue that CEWs state court action was not
brought in bad faith. It is axiomatic that a state does not have an interest in federal
abstention when an action has been brought in bad faith to discourage the exercise of
constitutional rights. Cullen v. Flienger, 18 F.3d 96, 103-04 (2d Cir. 1994). Thus, the
existence of bad faith is (a) pertinent to the courts subject matter jurisdiction, and (b)
controverted in this case. Ernest v. Lockheed Martin Corp., No. 07-cv-02038-WYDKLM, 2008 WL 927665, at *3 (D. Colo. Apr. 4, 2008).
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The Tenth Circuit authorizes courts to permit limited jurisdictional discovery

where the courts subject matter jurisdiction depends on a disputed fact. Id. at *3 (citing
Sizova, 282 F.3d at 1326). Here, the courts ruling on Younger abstention relies upon
CEWs lack of bad faith. Additionally, it is necessary to grant discovery to make a more
satisfactory showing of CEWs bad faith if the court is not satisfied by the facts set forth
in Plaintiffs Opposition to the Motion to Dismiss. Id. at *3.
Although a district court has discretion in the manner by which it resolves an
issue of subject matter jurisdiction under Rule 12(b)(1), a refusal to grant discovery
constitutes an abuse of discretion if the denial results in prejudice to a litigant. Sizova,
282 F.3d at 1320. Prejudice is present where pertinent facts bearing on the question of
jurisdiction are controverted . . . or where a more satisfactory showing of facts is
necessary. Id. at 1320. In this matter, Plaintiffs will be prejudiced if not permitted to
conduct discovery regarding CEWs bad faith, and a refusal to grant such discovery
would be an abuse of discretion. Id. at 1320.
CONCLUSION
For the foregoing reasons, the Court should defer ruling upon Defendants
Motion to Dismiss for a period of 60 days in order to permit time for limited jurisdictional
discovery on the issue of subject matter jurisdiction.

Dated: January 15, 2015

Respectfully submitted,
/s/ David A. Warrington
David A. Warrington
Laurin H. Mills
Andrew J. Narod
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Paris R. Sorrell
LeClairRyan, A Professional Corporation
2318 Mill Road, Suite 1100
Alexandria, Virginia 22314
Telephone: (703) 684-8007
Facsimile: (703) 647-5999
david.warrington@leclairryan.com
laurin.mills@leclairryan.com
andrew.narod@leclairryan.com
paris.sorrell@leclairryan.com

James O. Bardwell
Rocky Mountain Gun Owners
501 Main Street, Suite 200
Windsor, CO 80550
Telephone: (877) 405-4570
Facsimile: (202) 351-0528
jb@nagrhq.org
Counsel for Plaintiffs Rocky Mountain Gun
Owners and Colorado Campaign for Life

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CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2015, I electronically filed the foregoing
document with the Clerk of Court using the CM/ECF system, which will send notice of
such filing to counsel of record who are registered with CM/ECF.
/s/ David A. Warrington