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Secretary of State Motion for Temporary Restraining Order or Preliminary Injunction

Secretary of State Motion for Temporary Restraining Order or Preliminary Injunction

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Published by: Michael_Lee_Roberts on Feb 01, 2013
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12/04/2013

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 1DISTRICT COURT, CITY AND COUNTY OF DENVER,STATE OF COLORADO1437 Bannock StreetDenver, Colorado 80202Plaintiff: SCOTT E. GESSLER, individually and in hiscapacity as the Secretary of State of the State of Coloradov.Defendants: DAN GROSSMAN, SALLY H. HOPPER,BILL PINKHAM, MATT SMITH and ROSEMARYMARSHALL in their official capacities as members of theIndependent Ethics Commission and the INDEPENDENTETHICS COMMISSION, an inferior tribunal of the Stateof Colorado______________________________________________Attorneys for Plaintiff:David A. Lane, #16422K
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LLPThe Odd Fellows Hall1543 Champa Street, Suite 400Denver, Colorado 80202Telephone: (303) 571-1000; Fax: (303) 571-1001dlane@kln-law.com Robert J. Bruce, #17742L
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LLC1875 Lawrence Street, Suite 750Denver, Colorado 80202Telephone: (303) 573-5498; Fax: (303) 573-5537robertbruce@lawlisbruce.com Michael R. Davis, #39788L
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LLC (MRDLaw)3301 West Clyde PlaceDenver, Colorado 80211Telephone: (303) 325-7843; Fax: (303) 723-8679mrd@mrdavislaw.com COURT USE ONLY _____________________________Case No.:Div:
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDERAND/OR PRELIMINARY INJUNCTION
DATE FILED: January 30, 2013 11:29 AMFILING ID: 685483C4
 
 2Plaintiff Scott E. Gessler, individually and in his capacity as Secretary of State for theState of Colorado (“the Secretary”), by and through his undersigned attorneys, hereby submitsthis Motion for Temporary Restraining Order and/or Preliminary Injunction. The ColoradoIndependent Ethics Commission (“the Commission” or “IEC”) has exceeded its jurisdictiongranted to it by Amendment 41 (Article XXIX) to the Colorado Constitution and C.R.S. § 24-18.5-101. The Commission has done this by asserting broad jurisdiction over an ethics complaintagainst the Secretary, which cites potential violations of three criminal statutes, and does notrelate to Amendment 41’s gift ban, lobbying bans, or influence peddling.The Secretary will suffer irreparable harm, as the Commission has hauled him in beforethe tribunal, subjected him to evolving and substandard procedures, and forced him to respond tocriminal (or some other unspecified legal) allegations over which the Commission clearly has no jurisdiction. This illegal assertion of jurisdiction also has harmed or will harm the Secretary’sreputation and his ability to carry out his official duties as he sees fit. Preliminary-injunctiverelief is appropriate, because monetary damages are likely unavailable, an injunction willpreserve the status quo pending a trial on the merits, and the public interest is served by reigningin agencies that act beyond their authority.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORYA. CREW submits ethics complaint to the Commission.
On October 15 and 22, 2012, Citizens for Responsibility and Ethics in Washington (d/b/aColorado Ethics Watch) (“CREW”) requested that the Denver Police Department and DenverDistrict Attorney launch a criminal investigation against the Secretary, related to his use of statefunds. The Secretary does not dispute that he utilized:
 
 31. $1.278.90 in fiscal year 2011-2012 statutory discretionary funds (C.R.S. §24-9-105(1)) to travel to Florida to attend a Continuing Legal Education(CLE) program sponsored by the Republican National LawyersAssociation and accredited by the Colorado Supreme Court;2. $422 in Department funds to return early from Florida, at his chief of staff’s request following discussions with Colorado law-enforcementauthorities, due to specific and violent threats against his wife anddaughter; and3. $117.99 in fiscal year 2011-2012 discretionary funds for end-of-yearreimbursement without providing receipts, but for which the Secretary hassubsequently provided a specific breakdown of $616 in unreimbursedexpenses.In utilizing state funds in this manner, CREW alleges that the Secretary “may” havecommitted three crimes: (1) misdemeanor first-degree official misconduct (C.R.S. § 18-8-404and 1 Colo. Code Regs. § 101-1:2-1.01); (2) felony embezzlement (C.R.S. § 18-8-407); and (3)misdemeanor abuse of public records (C.R.S. § 18-8-114).CREW submitted to the Commission the same requests for criminal investigation, askingthe Commission to open a separate ethics investigation against the Secretary, based upon thesame three criminal statutes.
See
Exhibit A (“the Complaint,” including the initial complaint andsupplemental complaint).
B. The Commission denies the Secretary’s motion to dismiss, illegally assertingbroad jurisdiction beyond Amendment 41’s gift and lobbying bans and overpotential violations of criminal statutes.1. The Commission orders the Secretary to respond to the Complaint.
The Commission is an agency and inferior tribunal of the State of Colorado, created byAmendment 41 (Article XXIX) to the Colorado Constitution and C.R.S. § 24-18.5-101. Itsmembers currently include Commissioners Dan Grossman (Chairman), Sally Hopper, BillPinkham, Matt Smith, and Rosemary Marshall.

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