Free Response to Motion - District Court of Colorado - Colorado

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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. ______________________________________________________________________________ RESPONSE TO MOTION TO DISMISS ______________________________________________________________________________ Plaintiff Charles Koehler, through his counsel Hackstaff Gessler, LLC, responds to Secretary of State Donetta Davidson's Motion to Dismiss as follows: INTRODUCTION Koehler originally sought to enjoin the Secretary of State Donetta Davidson (the "Secretary") from discarding petition signatures Koehler had collected for Waldo Benavidez, his preferred candidate. Colorado law requires that a petition circulator live in the same voting district as a candidate,1 and the Secretary determined that Koehler did not live in the correct voting district. Accordingly, Koehler challenged Colorado's circulator residency requirement, The Secretary asked this court to abstain, because Benavidez had also brought suit in state court, claiming that the Secretary incorrectly determined Koehler's residency under Colorado law.2 Benavidez did not challenge the constitutionality of Colorado's residency requirements under 42 U.S.C. § 1983 and 42 U.S.C. § 1988. The state court reversed the Secretary's determination of residency before this court heard Koehler's constitutional claims, after which the Secretary brought her Motion to Dismiss.

1

Colo. Rev. Stat. § 1-4-905. Colo. Rev. Stat. § 1-2-201

2

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Koehler assumes in his response that the Secretary has brought this Motion to Dismiss under Fed. R.Civ. Proc. 12(b)(1) for her jurisdictional claims, and under 12(b)(6) for her res judicata claims. ARGUMENT I. This Court should not abstain from hearing Koehler's First Amendment challenges. A. Younger abstention does not apply to First Amendment challenges to election regulations.

Federal courts have consistently refused to apply Younger abstention to cases involving First Amendment challenges to restrictions on petition circulators, and several federal courts have soundly rejected the Secretary's position. In Johnson v. Cook County Officers Electoral Board, a federal district court rejected Younger abstention under almost identical facts ­ a candidate sought ballot access in state courts, while a circulator sought to "vindicate rights which apply to elections generally."3 Likewise, two other federal courts have summarily rejected Younger abstention challenges to First Amendment lawsuits brought by petition circulators. In Morrill v. Weaver, the court recognized that Younger abstention could not apply to a suit claiming that Pennsylvania unconstitutionally required petition nominators to be residents of the candidate's political district,4 and the court also rejected a Younger abstention challenge in Young v. Illinois State Board of Elections.5 This decisions recognize that "abstention should be applied in only the most extraordinary circumstances when fundamental rights such as voting rights are involved"6 and is "not appropriate if the federal plaintiff will suffer irreparable injury."7 Johnson v. Cook County Officers Electoral Board, 680 F.2d F.Supp. 1229, 1232 (N.D. Ill. 1988).
4 3

Morrill v. Weaver, 224 F.Supp. 2d 882, 895 N. 15 (E.D. Penn. 2002). Young v. Illinois State Board of Elections, 116 F.Supp. 2d 977, 977 n. 1 (N.D. Ill. 2000).

5

Benavidez v. Eu, 34 F.3d 825, 833 (9th Cir. 1995) (quoting O'Hair v. White, 675 F.2d 680, 694 (5th Cir. 1982)).
7

6

New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 366 -2-

(1989).

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In the instant case, Colorado's imposition of a residency requirement permanently deprives Koehler of his constitutional right to circulate petitions for the candidate of his choice. The Secretary relies on Hicks v. Miranda, but that case should be limited to its unique facts, because Hicks differs in several respects. First, it did not involve election regulations, but rather obscenity regulations. Second, the court found that the federal case would interfere with a state criminal case. Finally, the court found a close relationship between an employer its employees.8 Because of these differences, this court should follow established precedent and reject Younger abstention in Koehler's First Amendment challenge. In addition, the first and third prongs of the Younger test do not apply. First, there is no ongoing state court proceeding. On July 21, 2004, the Denver District Court issued a final ruling in the Benavidez case, and that ruling was not appealed. By its terms, Younger does not apply. Additionally, Koehler has challenged Colorado's residency requirement in Colo. Rev. Stat. § 1-4905, not Colorado's definition of residency under Colo. Rev. Stat. § 1-2-201, which was the subject of the state litigation. Furthermore, the United State Supreme Court has firmly stated that Younger does not bar a federal court from reviewing the constitutionality of a state statute.9 Second, Koehler did not have an adequate opportunity to litigate federal constitutional issues. As admitted by the Secretary, Koehler was not a party to the state court proceedings, which made it impossible for him to litigate his claims.10 Nonetheless, the Secretary argues that Younger should apply because the Koehler and Benevidez shared a"close political relationship."11 Although Koehler will address the Secretary's privity arguments below, for purposes of Younger abstention the Tenth Circuit has soundly rejected the Secretary's argument

8

Hicks v. Miranda, 422 U.S. 332, 348-351. New Orleans Public Service, 491 U.S. at 368. See Roe v. Alabama, 43 F.2d 574, 580 (1995).

9

10

Brief in Opposition to Motion for Emergency Preliminary Injunction, July 19, 2004, page 5, para. 2. -3-

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that a common political agenda is sufficient to invoke abstention.12 Furthermore, in Johnson the court refused to apply Younger, declaring that petition circulators (who brought the federal case) and their preferred candidate (who brought a state claim) were not sufficiently intertwined to invoke Younger.13 Otherwise, the Secretary's reasoning would permanently bar circulators from challenging the constitutionality of circulator restrictions in federal court. The Secretary seeks to avoid federal jurisdiction because of a "close political relationship," but that same "close political relationship" forms the very political association protected by the First Amendment. Finally, the Secretary raises issues not related to the Younger test. The Secretary claims that Koehler could have intervened or brought his claims in the state matter. Although discussed further below, for purposes of Younger this arguments is irrelevant, because "[n]othing in Younger or the cases following it suggests that persons claiming a violation of their federal rights have an obligation before turning to federal court to see whether there is some state court proceeding that they might join in order to present their federal claims."14 Likewise, the United States Supreme Court has rejected the Secretary's contention representation by the same attorney creates grounds for Younger abstention.15 B. Pullman deferral no longer applies because all state court action has been completed.

The Secretary has incorporated into her Motion to Dismiss the argument that this court should abstain under the Pullman doctrine, and she cites the Pullman doctrine as a basis to dismiss the case in its entirety. But Pullman does not authorize federal courts to dismiss a case. Rather, Pullman authorizes courts to defer adjudication pending the outcome of state action.16 In
12

Phelps v. Hamilton, 59 F.3d 1058, 1069 (10th Cir. 1995). Johnson, 680 F.Supp. at 1232. Hoover v. Wagner, 47 F.3d 845, 848 (7th Cir. 1995). Doran v. Salem Inn, 422 U.S. 922, 929-930 (1975).

13

14

15

American Trial Lawyers Assn. v. New Jersey Supreme Court, 409 U.S. 467, 467 (1973); Western Food Plan, Inc. v. MacFarlane, 588 F.2d 778, 781 (10th Cir. 1978); 17A Fed. -4-

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the instant case, this court cannot defer to any ongoing state action, for the simple reason that all state action has been completed. Accordingly, Pullman abstention cannot apply. Furthermore, federal courts have specifically rejected Pullman abstention involving First Amendment challenge to restrictions on petition circulators.17 Logically, Pullman abstention cannot apply in the instant case, because the state litigation has not obviated or substantially narrowed Koehler's claims. In Benavidez v. Davidson, the Denver District Court overturned the Secretary's application of Colorado's residency laws, declaring that although Koehler was homeless, he resided within Waldo Benavidez' district for purposes of voter registration.18 This decision did not, however, resolve whether Colorado's circulator residency requirements in Colo. Rev. Stat. § 1-4-905 violated the First Amendment. In short, the state court decision has not changed the legal issues facing this court. II. This case is not moot because Koehler presents a controversy capable of reptition. This case easily satisfies the exception to the mootness doctrine. First, the duration of the election law matter was too short for the completion of litigation. Courts readily recognize that the time between an election violation and the election itself is usually too short to allow adequate time to litigate this matter. Here, the Secretary disqualified Koehler's petitions 47 days before the election, and the Tenth Circuit has specifically stated that six months is a short enough duration to avoid mootness.19 Furthermore, this case itself demonstrates that Koehler was unlikely to receive permanent relief in 39 days after he filed his complaint. Nonetheless, the Secretary claims that this is not a short duration, speculating that Koehler had an opportunity to seek declaratory action before circulating petitions or to bring an Prac. & Proc. Juris.2d § 4243 (West 2005).
17

Morrill v. Weaver, 224 F. Supp. at 895. Supplemental Citation, July 21, 2004.

18

Grant v. Meyer, 848 F.2d 1446, 1449 (10th Cir. 1988), aff'd Meyer v. Grant, 486 U.S. 414 (1988); see also Merrits v. Graves, 702 F.Supp. 828, 829 (D.Kan. 1988). -5-

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independent state action. But these factors are simply not relevant and would likely swallow the entire exception to mootness, because one can always hypothetically argue that a plaintiff could have brought a declaratory judgment action well before the harm occurred, or that a state court could have quickly disposed of the complaint. The mootness standard looks to the likelihood of complete federal action, not the availability of alternative remedies. Second, Koehler has a reasonable expectation that he will be prevented from supporting a candidate outside his voting district. The determinative factor in this analysis is that Colorado continues to impose a residency requirement on petition circulators.20 Accordingly, Koehler is restricted from circulating petitions for the candidate of his choice. Nonetheless, the Secretary argues that "it is not known whether [Koehler] will wish to support a candidate in the 2005 election who resides outside H.D. 2."21 But the United States Supreme Court has rejected this reasoning; the mootness exception requires that an issue be "capable of repetition and not . . . whether the claimant had demonstrated that a recurrence of the dispute was more probable than not."22 In her mootness arguments, the Secretary relies on facts stipulated by Benavidez and the Secretary in a state court proceeding.23 These facts fall outside the complaint and are therefore inappropriate in a motion to dismiss. But even accepting as true the Secretary's facts, the harm is clearly capable of repetition: Koehler is a political activist who supports candidates. He has been homeless once before, and the Secretary has already determined his residency against his will. Furthermore, Koehler's self-identified neighborhood is split among more than one House District, meaning that he is likely to support a candidate who lives outside his voting district, but

20

Grant, 848 F.2d at 1449. Motion to Dismiss, ¶ 6. Honig v. Doe, 448 U.S. 305, 318 n. 6 (1988) (emphasis in original). Motion to Dismiss, ¶ 13. -6-

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22

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within his neighborhood. It is unreasonable to assume that Koehler will never again support a candidate who does not live in his specific voting district. III. Claim preclusion does not apply Although the Secretary has argues res judicata (specifically, claim preclusion) in her Motion to Dismiss, in fact res judicata is an affirmative defense under Fed. R.Civ. Proc. 8(c), and accordingly the Secretary has the burden of proof.24 The Secretary may raise claim preclusion before an answer if the defense appears on the face of the complaint, but "no matter how it [is] raised before trial it nevertheless [remains] an affirmative defense to be established by proof at trial."25 As noted above, the Secretary relies on facts complaint. Nonetheless, the Secretary cannot meet her burden of proving claim preclusion even if this court accepts as true all facts alleged by her. Claim preclusion fails, because the Secretary cannot show an identity of claims for relief or identity or privity between parties to the action. First, she readily admits that there was no identity of claims between the state action and the current federal action. Furthermore, she has not met her burden of proof to show that Benavidez could have brought Koehler's claims in state court. Benavidez brought his claim against the Secretary under the procedures in Colo. Rev. Stat. § 1-1-113. In the instant case, Koehler has brought Section 1983 and 1988 claims. Although the Secretary currently argues that Koehler's Section 1983 and 1988 claims could have been brought by Benavidez under Section 1-1-113, she also has vigorously opposed the ability of citizens to raise Section 1983 and 1988 claims in Section 1-1-113 proceedings. Specifically, the Secretary has taken this contradictory position in a pending case before the Colorado Court of Appeals.26 It remains and open question of law whether Benavidez could have brought Koehler's current

24

Hayles v. Randall Motor Co., 455 F.2d 169, 173 (10th Cir. 1972). Federal Ins. Co. v. U.S., 618 F.2d 661, 662 (10th Cir. 1980).

25

Appellee's Answer Brief at 11-13, Brown v. Davidson, Case No. 04 CA 2455 (Colo. Ct. App. 2004) (Exhibit 1). -7-

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claims in state court. Accordingly, the Secretary has not met her burden of proof for this element of claim preclusion. The Secretary also cannot show that Benavidez and Koehler were in privity with one another. Privity between Koehler and Benavidez requires "both a substantial identity of interests and a working or functional relationship in which the interests of the non-party are presented and protected by the party in the litigation."27 In order to determine whether these two elements are met, a court will look to the law governing the underlying relationship.28 First, there is no substantial identity of interests. The Secretary emphasizes that Benavidez and Koehler shared a common political agenda. In short, the Secretary asks that this court use the political association between Benavidez and Koehler as a basis for determining privity. But courts have consistently rejected this approach. For example, several district and circuit courts have held that for purposes of res judicata, the rights of voters are not identical in scope or form to a candidate's rights.29 Furthermore, courts have rejected the argument that a common political agenda ­ or close political relationship ­ creates privity. For example, the First Circuit rejected the claim that a political party and its members were in privity with one another.30 Indeed, Koehler's interests differ from Benavidez'. Whereas Benavidez strictly sought access to the ballot, Koehler seeks to vindicate constitutional rights, specifically the right to

Cruz v. Benine, 984 P.2d 1173, 1176 (Colo. 1999) (quoting S.O.V. v. People in Interest of M.C., 914 P.2d 355, 360 (Colo. 1996)). Cruz, 984 P.2d at 1176; see also Turkey Creek Limited Liability Company v. Anglo America Consolidated Corporation, 43 P.3d 701, 703 (Colo. App. 2002). Schulz v. Williams, 44 F.3d 48, 54 (2nd Cir. 1994); Griffin v. Burns, 570 F.2d 1065, 1072 (1st Cir. 1978); Tarpley v. Salerno, 803 F.2d 57, 60 (2nd Cir. 1986) ("Although the voters do have some community of interest with the candidates, the relationship is not close enough to be viewed as an authorization by the former to the latter to represent the voters in the legal proceedings in the state courts"); Kaloshi v. New York City Board of Elections, 2002 WL 31051530 (E.D.N.Y. 2002), vacated on other grounds Kaloshi v. Spitzer, 69 Fed.Appx. 17 (2nd Cir. 2003); Hoblock v. Albany County Board of Elections, 341 F.Supp.2d 169, 173 (N.D.N.Y 2004).
30 29 28

27

Perez-Guzman v. Gracia, 346 F.3d 229, 234-235 (1st Cir. 2003). -8-

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circulate petitions for the candidate of his choosing. This ruling comports with the Younger analysis outlined above, and it recognizes that political associational rights do not create a res judicata trap for voters seeking to vindicate their rights, but rather associational rights receive the highest protection possible. Even if the Secretary could show a commonality of interests, she cannot show a working or functional relationship. Colorado requires court to look at the law governing the underlying relationship. Accordingly, Cruz analyzed Colorado partnership law to identify a working or functional relationship,31 and S.O.V. reviewed Colorado law governing state representation of minors in paternity proceedings.32 In both cases, the Colorado Supreme Court took a highly restrictive view of privity. The underlying law governing the relationships between candidates and petition circulators shows that circulators at most assist candidates in collecting signatures.33 They do not represent candidates beyond that sole act of political support. Rather than focus on the underlying legal relations, the Secretary has instead focused on apparent trial tactics, arguing that privity applies because Benavidez and Koehler retained the same counsel. But at least one circuit has rejected the view that common attorney representation creates privity.34 Furthermore, the Secretary's position will severely chill client representation. It creates the real danger that private clients cannot hire the same attorney ­ one with expertise in election law matters, for example. It also will reduce the ability of attorneys to discuss strategy and tactics with litigants in other cases, for fear that an adversary will probe the attorney-client relationship and possibly prove res judicata through attorney collaboration.

31

Cruz, 984 P.2d at 1178. S.O.V., 914 P.2d at 360. See Colo. Rev. Stat. 1-4-905. Perez-Guzman v. Gracia, 346 F.3d 229, 234 (1st Cir. 2003). -9-

32

33

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The cases cited by the Secretary can easily be distinguished. In Ferris v. Cuevas, the court found privity because two attorneys appeared as named parties and brought claims on behalf of all initiative petition signers in the first state action. Accordingly, res judicata applied when the same attorneys proceeded to again represent petition signers in the second federal action.35 By contrast, Koehler's attorneys have never acted as parties, nor did they claim to represent Koehler's interests in the state litigation. In Dear v. Board of Elections, the court found substantially identical interests because the voters' attorneys helped the candidate litigate the same claims in both federal and state court.36 Here, the state and federal claims differ greatly. Furthermore, Dear should be limited to its unique circumstances, because the court recognized that it was a narrow exception to the majority view that the "interests and rights of voters as a class are not identical in scope or form to an individual's right to run for public office."37 CONCLUSION For the reasons stated above, Koehler requests that this Court deny the Motion to Dismiss and proceed to the merits of Koehler's civil rights claims under 42 U.S.C. §§ 1983 and 1988.

35

Ferris v. Cuevas, 118 F.3d 122, 127 (2nd Cir. 1997). Dear v. Board of Election, 2003 WL 2207767 *9 (E.D.N.Y. 2003). Id. at *8. -10-

36

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Respectfully submitted this 12th day of September, 2005. Hackstaff Gessler LLC,

By:___ s/ Scott E. Gessler____________ Scott E. Gessler Registration No. 28944 Hackstaff Gessler LLC 1228 15th Street Suite 409 Denver, CO 80202 Telephone: (303) 534-4317 FAX: (303) 534-4309 E-mail: [email protected] Attorney for Plaintiff Charles Koehler

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CERTIFICATE OF SERVICE I hereby certify that on September 12th 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address: [email protected]

s/ Scott E. Gessler Scott E. Gessler Attorney for Plaintiff Hackstaff Gessler LLC 1228 15th Street Suite 409 Denver, Colorado 80202 Telephone: (303) 534-4317 FAX: (303) 534-4309 E-mail: [email protected]

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