Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01377-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1377-WYD CHARLES KOEHLER, Plaintiff, v. DONETTA DAVIDSON, in her official capacity as Colorado Secretary of State, Defendant. DEFENDANT'S REPLY TO RESPONSE TO MOTION TO DISMISS

The Colorado Secretary of State, by and through undersigned counsel, hereby submits her Reply to Response to Motion to Dismiss. MOOTNESS Plaintiff Charles Koehler ("Koehler") argues that the case is not moot because the dispute is "capable of repetition, yet evading review." The court must reject Koehler's argument. To qualify for this exception, Koehler must show "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Johansen v. City of Bartlesville, Oklahoma, 862 P.2d 1423, 1426 (10th Cir. 1988) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975)). The party asserting the applicability of the exception must show "a reasonable

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expectation" or a "demonstrated probability" that the same controversy involving the same parties will recur. Taxpayers For the Animas-LaPlata Referendum v. Animas-LaPlata Water Conservancy District, 739 F. 2d 1472, 1479 (10th Cir. 1984) ("Taxpayers"). The expectation must be more than speculative or theoretical. Van Wie v. Pataki, 267 F.3d 109, 114 (2d Cir. 2001). The exception is not entitled to a broader interpretation in the election context. Taxpayers, at 1478. The challenged action at issue here was fully litigated prior to its cessation or expiration. The challenged action here is the rejection of signatures on petitions circulated by non-residents of a state representative district on the ground that the circulators were not residents of the district. Pursuant to § 1-4-911, C.R.S. (2004), petitions for review of adverse decisions with regard to candidate petitions must be made in accordance with the procedures set out in § 1-1-113(1), C.R.S. (2005). The hearing must be "forthwith", § 1-1-113(1), and the remedy is "summary", § 1-4-911. In short, the process is expedited. The expedited process is exemplified in the companion state case. Benavidez v. Cerbo 04 CV 5473. Koehler circulated petitions on behalf of Benavidez. On June 9, 2004, the Secretary of State declared Benavidez had submitted signatures sufficient to place him on the ballot at the primary election for the Democratic nomination for H.D. 2. His opponent, Michael Cerbo, filed a protest on June 14, 2004. On June 24, 2004, the Secretary concluded that 173 signatures that had initially been deemed valid were invalid, including signatures collected by Koehler. On July 2, 2004, Benavidez filed an appeal with the state district court. Benavidez asserted, among other issues, that Koehler was a resident of the district. 2

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The court conducted a hearing, and it issued its opinion on July 21, 2004. It concluded that Koehler was a resident of the district. It also found that Benavidez had collected enough signatures to qualify for the primary ballot. None of the parties appealed to the Supreme Court. Thus, the case was tried and a decision was issued in nineteen days after the initial petition was filed. (See Supplemental Citation) The time frame within which the Benavidez hearing was conducted is not unusual. Ray v. Mickelson, 584 P.2d 1215 (Colo. 1978). In Ray, the primary election was held on September 12, 1978. An action challenging the election was filed on September 18, 1978. The district court dismissed the challenge, and an appeal was filed in the Colorado Supreme Court. The Supreme Court issued its opinion on October 18, 1978, one month after the initial action was filed. Koehler next claims that time frame within which to argue the constitutional question was too short. This argument fails on two grounds. First, history discloses that constitutional challenges can be fully litigated in the context of an expedited proceeding brought pursuant to § 1-1-113. In National Prohibition Party v. State, 752 P.2d 80 (Colo. 1988), the Colorado Supreme Court considered the constitutional of a requirement that political organizations must circulate and submit separate petitions for each candidate. Similarly, in Libertarian Party v. Secretary of State, 817 P.2d 998 (Colo. 1991), the Supreme Court reviewed the constitutionality of a disaffiliation requirement. Second, Koehler may file an action under § 1-1-113 prior to circulating petitions if he can identify a candidate in another district for whom he wishes to circulate petitions. This 3

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section allows "any eligible elector" to file a verified petition alleging that an election official "has committed or is about to commit" a "wrongful act." Persons may declare their candidacy at any time. See, Colo. Const. article XXVIII, § 2(2). Petitions on behalf of candidates affiliated with a major political party may be circulated between the last Monday in March and the seventy-fifth day prior to the primary election. Section 1-4-801(5), C.R.S. (2005). Petitions on behalf of unaffiliated candidates may be circulated between one hundred and eighty-six days and one hundred-forty days prior to the general election. Section 1-4-802(1)(d)(I) and (f)(I), C.R.S. (2005). Petitions for minor party candidates may be circulated between the last Monday in March and seventy-five days prior to the primary election. Section 1-4-802(1)(d)(II) and (f)(II), C.R.S. (2005). Koehler, or the candidate he supports, may file a suit seeking a declaration that the Secretary wrongfully prevents him from circulating petitions as soon as the candidate identifies himself and determines that he will seek nomination by petition. In light of the expedited review, he likely will receive a decision from the court within days after he files the petition. In addition, Koehler has failed to show a "reasonable expectation" or a "demonstrated probability" that the same controversy will occur. The mere assertion that Koehler is a political activist who supports candidates outside his district is insufficient. Koehler must show that there is an announced candidate who lives outside his district and who seeks nomination through the petition process. In fact, Koehler has not identified any candidate outside his district who has declared an intention to seek office via petition and for whom he 4

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wishes to circulate a petition. At this stage of the election process, the identity of any candidate who fits this description is unknown. Given the fact that no candidate has declared an intention to seek ballot access through the petition process, any assertion that Koehler would seek to circulate petitions is pure speculation. RES JUDICATA Koehler contends that the Secretary has not established either identity of claims for relief or privity between Koehler and Benavidez. The court must reject Koehler's argument. Recent Colorado case law belies Koehler's conception of identity of claims for relief. In analyzing whether identity of claims for relief exists, the courts do not focus on the specific claim asserted or the name given to the claim. Argus Real Estate, Inc. v. E-470 Public Highway Authority, 109 P.3d 604, 608-09 (Colo. 2005). This prong of the res judicata analysis is defined by the injury for which relief is demanded and not by the legal theory asserted. Id. at 609. By using the injury as the point of reference, claim preclusion bars a litigant from splitting claims. Once judgment is entered, it "`extinguishes the plaintiff's claims....includ[ing] all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction or series of connected transactions, out of which the action arose'". Id. (Quoting Restatement (Second) of Judgments, § 24 (1982)). Thus, claim preclusion bars relitigation of all claims actually decided and all claims that could have been decided so long as they arise out of the same transaction. Id. See also, Gavrilis v. Gavrilis, 116 P.3d 1272, 1274 (Colo. App. 2005).

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In this case, the claims raised in both cases emanate from the same injury arising from the same transaction. The injury is the statutory prohibition against counting signatures collected by circulators who do not reside in the district which the candidate seeks to represent. The claims in the state and federal cases are related because they seek redress for the injury arising from the prohibition against counting signatures collected by a non-resident of the house district. Under similar circumstances, a federal court found identity of claims for relief. Hartke v. Chicago Board of Election Commissioners, 651 F. Supp. 86 (N.D. Ill. 1986). A civil rights action was filed in federal court challenging the constitutionality of the refusal to place more than three initiated or referred measures on the ballot. A companion state case was filed and decided prior to the completion of the federal action. The state case and the federal case raised different claims. The federal court found that the federal case was barred by res judicata. In analyzing the issue of identity of claims, the court noted: Under this test, the causes of action in the two cases are identical. The single core of operative fact common to both this case and the state action is the board's refusal to place the nonpartisan election referendum on the November 4 ballot. In both cases both sets of plaintiffs argue that this refusal violates their rights. In both cases, they pray for a court order requiring the board to put the referendum on the ballot. Although the legal theories for how this refusal violates the plaintiffs' rights was [sic] formulated somewhat differently in both cases, such differences do not detract from the identity of causes of action. This is because the causes of action are defined only by the facts which give the plaintiff a right to relief. Since the same facts are essential to both cases, the causes of action are identical.

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Id. at 89. The same analysis has been applied in the context of candidate election challenges bifurcated between state and federal courts. Towns v. Cowen, 786 F. Supp. 699 (N.D. Ill. 1992). The court concluded that the plaintiffs could have raised the federal constitutional issues in a state court proceeding in which a final judgment had been entered. Therefore, res judicata barred the federal action. Koehler asserts that the Secretary, in a brief in a case pending before the Colorado Court of Appeals, has argued that the federal claims cannot be brought in a proceeding under § 1-1-113. Actually, the brief argues the opposite position. The Secretary specifically noted that a person filing a petition under § 1-1-112 may seek a declaration or an injunction alleging a violation of federal constitutional right. (See pp. 12-13, exhibit 1 to Plaintiff's Response.) The Secretary argued only that § 1-1-113 does not allow the constitutional challenge to be brought through the vehicle of 42 U.S.C. § 1983. This limitation does not negate the identity of claims. 42 U.S. C. § 1983 is not a substantive claim, and standing alone, it provides no protection for civil rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 618, 99 S.Ct. 1905, 1916, 60 L.Ed. 2d 508 (1979). (See p. 11, exhibit 1 to Plaintiff's Response.) Koehler also claims that he and Benavidez are not in privity. Again, the court must reject this argument. Although the Secretary noted that Koehler claims a close political relationship with Benavidez, the political relationship was cited only to support the primary assertion that the petition circulator-candidate relationship establishes privity. 7

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The privity between petitioner circulator and proponent or candidate is wellrecognized. In Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed. 2d 599 (1998), the Supreme Court discussed the relationship between petition circulators and proponents of an initiative. It commented: Nothing in this opinion should be read to suggest that initiative ­petition circulators are agents of the State. Although circulators are subject to state regulation and are accountable to the State for compliance with legislative controls, see, e.g. Colo. Rev. Stat. § § 1-40-111, 1-40-130 (1998), circulators act on behalf of themselves or the proponents of ballot initiatives. Id. 525 U.S. at 192, n. 11, 119 S.Ct. at 642, n. 11. See also, Hartke v. Chicago Board of Election Commissioners, 651 F. Supp. at 89-90. The Seventh Circuit has acknowledged the close relationship between petition circulators and political parties. Citizens for John Moore Party v. Board of Election of the City of Chicago, 794 F. 2d 1254 (7th Cir. 1986). In holding constitutional a statute prohibiting circulators from circulating petitions for two different parties in the same election cycle, the court noted: Circulators are the cadre of any political movement. A party needs a cadre to exist. Once a circulator acts on a party's behalf to solicit signatures, he remains the party's agent (if he is active at all) for the electoral season. Id. at 1260.

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In the case at bar, there can be no doubt that Koehler and Benavidez are in privity. Koehler circulated petitions on behalf of Benavidez. This action alone makes him an agent of Benavidez. The privity is cemented by the acknowledged convergence of political interests and by the use of the same counsel. See, Conte v. Justice, 996 F.2d 1398, 1402 (2d Cir. 1993) ("the appearance of the same attorney in both actions creates the impression that the interests represented are identical") ABSTENTION Based upon events that have occurred since the filing of the Motion to Dismiss, the Secretary hereby withdraws her request for abstention. CONCLUSION For the reasons stated in the Motion to Dismiss and this Reply, the court is requested to grant the motion to dismiss.

JOHN W. SUTHERS Attorney General

s/Maurice G. Knaizer MAURICE G. KNAIZER Deputy Attorney General Public Officials State Services Section 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5380 9

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FAX: (303) 866-5671 E-mail: [email protected] Attorney for Defendant Secretary of State

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AG File:

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CERTIFICATE OF SERVICE
I hereby certify that on September 23, 2005, I electronically filed Defendant's Reply to Response to Motion to Dismiss with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Scott E. Gessler [email protected] and I hereby certify that I have mailed the document to the following individuals by U.S. mail as indicated below: n/a

s/Maurice G. Knaizer

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