DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO 1437 Bannock Street Denver, Colorado 80202 Plaintiff:

SCOTT E. GESSLER, individually and in his capacity as the Secretary of State of the State of Colorado v.

DATE FILED: January 30, 2013 11:29 AM FILING ID: 685483C4

Defendants: DAN GROSSMAN, SALLY H. HOPPER, BILL PINKHAM, MATT SMITH and ROSEMARY MARSHALL in their official capacities as members of the COURT USE ONLY Independent Ethics Commission and the INDEPENDENT ETHICS COMMISSION, an inferior tribunal of the State _____________________________ of Colorado ______________________________________________ Case No.: Attorneys for Plaintiff: David A. Lane, #16422 KILLMER, LANE & NEWMAN, LLP The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 Telephone: (303) 571-1000; Fax: (303) 571-1001 dlane@kln-law.com Robert J. Bruce, #17742 LAWLIS & BRUCE, LLC 1875 Lawrence Street, Suite 750 Denver, Colorado 80202 Telephone: (303) 573-5498; Fax: (303) 573-5537 robertbruce@lawlisbruce.com Michael R. Davis, #39788 LAW OFFICE OF MICHAEL R. DAVIS, LLC (MRDLaw) 3301 West Clyde Place Denver, Colorado 80211 Telephone: (303) 325-7843; Fax: (303) 723-8679 mrd@mrdavislaw.com Div:

PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Plaintiff Scott E. Gessler, individually and in his capacity as Secretary of State for the State of Colorado (the Secretary), by and through his undersigned attorneys, hereby submits this Motion for Temporary Restraining Order and/or Preliminary Injunction. The Colorado Independent Ethics Commission (the Commission or IEC) has exceeded its jurisdiction granted to it by Amendment 41 (Article XXIX) to the Colorado Constitution and C.R.S. 2418.5-101. The Commission has done this by asserting broad jurisdiction over an ethics complaint against the Secretary, which cites potential violations of three criminal statutes, and does not relate to Amendment 41s gift ban, lobbying bans, or influence peddling. The Secretary will suffer irreparable harm, as the Commission has hauled him in before the tribunal, subjected him to evolving and substandard procedures, and forced him to respond to criminal (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 Secretarys reputation and his ability to carry out his official duties as he sees fit. Preliminary-injunctive relief is appropriate, because monetary damages are likely unavailable, an injunction will preserve the status quo pending a trial on the merits, and the public interest is served by reigning in agencies that act beyond their authority. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. CREW submits ethics complaint to the Commission.

On October 15 and 22, 2012, Citizens for Responsibility and Ethics in Washington (d/b/a Colorado Ethics Watch) (CREW) requested that the Denver Police Department and Denver District Attorney launch a criminal investigation against the Secretary, related to his use of state funds. The Secretary does not dispute that he utilized:

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$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 Lawyers Association and accredited by the Colorado Supreme Court; $422 in Department funds to return early from Florida, at his chief of staffs request following discussions with Colorado law-enforcement authorities, due to specific and violent threats against his wife and daughter; and $117.99 in fiscal year 2011-2012 discretionary funds for end-of-year reimbursement without providing receipts, but for which the Secretary has subsequently provided a specific breakdown of $616 in unreimbursed expenses.

2.

3.

In utilizing state funds in this manner, CREW alleges that the Secretary may have committed three crimes: (1) misdemeanor first-degree official misconduct (C.R.S. 18-8-404 and 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, asking the Commission to open a separate ethics investigation against the Secretary, based upon the same three criminal statutes. See Exhibit A (the Complaint, including the initial complaint and supplemental complaint). B. The Commission denies the Secretarys motion to dismiss, illegally asserting broad jurisdiction beyond Amendment 41s gift and lobbying bans and over potential 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 by Amendment 41 (Article XXIX) to the Colorado Constitution and C.R.S. 24-18.5-101. Its members currently include Commissioners Dan Grossman (Chairman), Sally Hopper, Bill Pinkham, Matt Smith, and Rosemary Marshall.

On November 5, 2012, the Commission voted that the Complaint, which it labeled Case No. 12-07, was not frivolous and ordered a response from the Secretary. At the Commission hearing on December 7, 2012, the Chairman invited the Secretary to submit a motion following a constitutional objection by the Secretarys counsel. 2. The Secretary submitted to the Commission his motion to dismiss.

On December 20, 2012, the Secretary submitted to the Commission, along with a substantive response, his motion to dismiss, arguing that the Commission lacked jurisdiction over CREWs complaint because: a. Amendment 41 and C.R.S. 24-18.5-101(5) limit the Commissions jurisdiction to enforcing the gift and lobbying bans and influence peddling, which the allegations against the Secretary do not involve. The Commission is not constitutionally equipped or permitted to assert criminal jurisdiction, and three criminal allegations are the only allegations before the Commission. To the extent that the ethics complaint makes non-criminal allegations, it is unconstitutionally vague and denies the Secretary a right to a fair hearing.

b.

c.

See Exhibit B (the Secretarys motion to dismiss). 3. The Commission heard oral argument, deliberated, and fully denied the Secretarys motion to dismiss.

On January 7, 2013, the Commission heard oral argument, deliberated on, and fully denied the Secretarys motion to dismiss. See Exhibit D (Transcript, at 57-97). Commissioner Smith stated about CREWs Complaint that he appreciate[d] the fact of how confusing this is based upon the bulk of the documents, and how it was filed. Id. 61:10-12. The Commissions investigator Jane Feldman suggested that a violation of the fiscal rules certainly could be seen

as evidence of violations of statutes, as whether something was used for official business. Id. 64:11-14. She also stated: There is also another statute, which I dont have with me, which states that state funds that the use of state funds should be its actually one of the articles of the State Constitution, that all disbursement of state funds should be supported by documentation. Id. 64:19-24. It is unclear what fiscal rules, statute, or constitutional provision to which the investigator refers, nor is it clear how the Commission would even have jurisdiction, as generally discussed in more detail below. CREWs complaint never cited to any such fiscal rule, statute, or constitutional provision, nor has the Commission subsequently provided it to the Secretary. In fact, the standard against which the Secretary must now defend himself remains unclear more than three months after CREW submitted its Complaint and more than a month after the December 20, 2012 Commission deadline for the Secretarys response. At the January 7, 2013 hearing, Commissioner Smith stated: I regret at this point that there is not clarity within either position to clearly know what these issues are that are in front of us. I regret that we are not at that point. However, now that we have received such a massive material, it is clear that we are slowly grinding down to a point that is clarifying those issues. Id. 66:23-67:5. The Commissions counsel, Colorado First Assistant Attorney General Lisa Brenner Freimann, advised the Commission that it could make a decision that you do not have jurisdiction over violations of criminal statutes, but the facts alleged that may be a violation of criminal statutes may also be a violation of the standard of conduct . . . . Id. 68:10-16. As discussed in more detail below, the Commission rejected this advice of counsel and maintained jurisdiction over criminal statutes. The Chairman was explicit in his rejection:

I think that my thinking is that, based on the factual allegations of the complaint, my mind has not changed. There are sufficient allegations to state a claim for a violation of the standard of conduct, over which we have jurisdiction. So Im inclined to deny the motion to dismiss. To the extent you want to put caveats in there that we are not looking at the criminal statutes, it makes me a little bit nervous, because of the issue that you flagged, because there is a standard of conduct in a criminal prosecution for us not to be involved in a prosecution; but there may be a standard of conduct over which the Commission does have jurisdiction. Its a question we have not answered. Id. 69:3-18 (emphasis added). The Chairman later stated, related to one of the Commissions rules: [N]otice that that is silent as to whether or not we have jurisdiction over criminal statutes. Id. 80:20-22; see generally Exhibit E (IEC Rules). Other than three criminal statutes cited by CREWs Complaint and an unclear fiscal rule, statute, or constitutional provision cited by the Commissions investigator, the standard of conduct to which the Chairman refers is unclear. The Commissions investigator later stated: Can I just in the first case that the Commission considered, you may recall that there were criminal allegations as well, or allegations of violations of criminal statutes. And the Commission actually said that you were not looking at criminal violations. You were looking at standards of conduct that might be ethical violations, and might also be criminal violations, in the previous case. Id. 70:9-16. Commissioner Smith stated: I hear a concern being raised that the Ethics Commission might pursue criminal action under a criminal statute. Id. 71:6-8. The Commissions counsel suggested the following: You know what you could agree to, though, if you wanted to, is that this Commission doesnt have authority to impose criminal sanctions. I dont know if you want to go to that extent. Thats one way you might approach this.

Id. 71:9-14. As noted in its subsequent written order and as discussed in more detail below, the Commission followed its counsels advice (but limited its ruling to just IEC Case No. 12-07). See Exhibit F (IEC 1/23/2013 written order denying the Secretarys motion to dismiss). The Commission maintains that it has very broad jurisdiction, beyond the gift and lobbying bans contained in Amendment 41 (Article XXIX) or the statutory definition of influence peddling. In fact, it its written order, the Commission asserts jurisdiction over any potential violation of the Constitution or other standards of conduct or reporting requirements. Id. Moreover, for example, Commissioner Smith stated: I dont believe that Amendment 41 bans just gifts. I think the clear language of that goes beyond that. I think its been the practice with the Commission, and I think theres been quite a lot of jurisdiction. See Exhibit D (Transcript, at 65:25-66:4). The Commissions counsel concurred: And I would just like to give the legal advice, after reviewing Developmental Pathways and the decision of the Court, that the Court absolutely did not limit this tribunals jurisdiction to the Constitution itself. Any conversation about it was limited to the gift ban. But the Court was pretty clear that certainly nowhere in the decision does that say that. Id. 70:17-24. When later asked by Commissioner Hopper to read the relevant part of the decision, the Commissions counsel stated: There was no it was just in how they were discussing the issue. Its the absence of that discussion, which I cant really read to you. Id. 73:3-11. The Secretarys counsel then cited to and explained to the Commission the specific and relevant language in the Colorado Supreme Courts decision that discusses the limit of the Commissions jurisdiction to influence peddling, quoted and discussed in more detail below. See id. 74:4-75:5 (quoting Developmental Pathways v. Ritter, 178 P.3d 524, 528 (Colo. 2008)).

Following further deliberation and argument by counsel, the Commission voted to fully deny the Secretarys motion to dismiss. See id. 80:3-108:7. As discussed below, the Secretary maintains that the Commission acted arbitrarily and contrary to the law in denying the Secretarys motion to dismiss. The Secretarys counsel asked the Commission when the Secretary will learn the specific legal allegations against him. See id. 105:11-18. The Chairman stated that the Commission will conduct an investigation and issue a report and potentially a prehearing order. See id. 105:19-106:4. He continued: The only thing that I can commit to at this point, Mr. Davis, is we will conduct an investigation, and that investigation will probably shed a lot of light on the questions that youve been asking. It will give us an opportunity to figure out what the facts and contentions are and what the legal issues are. Id. 106:5-11 (emphasis added). 4. The Colorado Attorney General recently reaffirms to the Commission in a legal opinion that the Commissions jurisdiction is limited to influence peddling.

The next day, on January 8, 2013, the Colorado Attorney General submitted to the Commission a legal opinion related to the Secretarys separate request to the Commission to establish a legal-defense fund. See Exhibit G (1/8/2013 AG Opinion to Commission). Of note, the Colorado Attorney General reaffirmed the same position he took with this Court nearly six years ago: that the Commissions jurisdiction under Amendment 41 (Article XXIX) is limited to influence peddling, as defined by C.R.S. 24-18.5-101(5). See id.; see also Colo. Atty Gen.s Br. in Oppn to Pls. Mot. for Prelim. Inj., Developmental Pathways v. Ritter, Case No. 07CV1353, 2007 WL 5794312 (Denver District Court, filed April 26, 2007). The Commissions investigator, in public comments to the media, stated that she was disappointed by the legal opinion. See Scott Gessler investigation: John Suthers offers

support, accused of conflict-of-interest, The Westword, Jan. 14, 2013, available at http://blogs.westword.com/latestword/2013/01/scott_gessler_investigation_john_suthers_conflict _of_interest.php (last visited Jan. 28, 2013). She continued: The commission obviously has reviewed [the letter], but because it doesnt have any analysis, I don't think it will sway them . . . or really have much effect. Id. As discussed next, the Commission failed to follow its jurisdictional limitation under Amendment 41 (Article XXIX), in C.R.S. 24-18.5-101(5), as represented by the Colorado Attorney General to this Court nearly six years ago, and as advised by the Colorado Attorney Generals recent legal opinion to the Commission. 5. The Commission issues written order, denying motion to dismiss and maintaining broad and vague jurisdiction over all potential violations of the Constitution or other standards of conduct or reporting requirements.

On January 23, 2013, following a Commission hearing on the same day, the Commission issued a written order denying the Secretarys motion to dismiss for the Commissions lack of jurisdiction. See Exhibit F. Commissioner Marshall, who had just joined the Commission and was participating in her first hearing, joined in on the written order. The Commissions written order does not state what specific provisions of the law that the Secretary may have violated. Its discussion of the denial of the Secretarys motion to dismiss does not mention Amendment 41 (Article XXIX) or C.R.S. 24-18.5-101(5), the sources of the Commissions jurisdiction. It does not cite the position the Attorney General took with this Court nearly six years ago and it does not mention the Attorney Generals recent legal opinion, both of which state that the Commissions jurisdiction is limited to allegations of influence peddling. The written order offers virtually no legal analysis on its denial of the Secretarys motion to dismiss; instead, the Commission simply refers broadly, vaguely, and arbitrarily, in three

different variations, to potential violations of the Constitution or other standards of conduct or reporting requirements. See id., at 2-4. In other words, the Secretary still does not know the specific legal standard against which he must defend. Rather than clarifying the issue, the Commissions written order actually creates more confusion and is more vague than CREWs Complaint. The Commission maintains that there is not any confusion with the Complaint. It wrote that the factual allegations in the Complaint are sufficiently specific to provide notice to the Respondent of the case against him, as evidenced by the detailed Response submitted by the Respondent. Exhibit F, at 4 (emphasis added). This argument misses the mark. In his motion to dismiss, the Secretary did not argue that the factual allegations against him are vague (i.e., what CREW alleged that he did); the Secretary argued that the legal allegations against him are vague (i.e., what specific law he allegedly violated). Finally, the Commissions written order notes that it does not have the authority to enforce criminal sanctions in this case. Id., at 2 (emphasis added). The Commission is maintaining that it can use criminal statutes as the legal standard under Amendment 41's other standards of conduct. And the Commission is maintaining that it may enforce criminal sanctions in other cases.

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II.

THIS COURTS IMMEDIATE ACTION IS REQUIRED. A. Colorado law permits preliminary-injunctive relief, as requested by the Secretary in this case.

The general rule in Colorado is courts will not grant interlocutory relief of ongoing agency action. See Envirotest Sys., Corp. v. Colo. Dept. of Revenue, 109 P.3d 142, 144 (Colo. 2005). The exception to this rule is stated in [C.R.S. ] 244106(8). Id.; see also City and County of Denver v. Crandall, 161 P.3d 627, 633 (Colo. 2007) (interlocutory relief available due to lack of subject-matter jurisdiction). That statutory provision states: Upon a showing of irreparable injury, any court of competent jurisdiction may enjoin at any time the conduct of any agency proceeding in which the proceeding itself or the action proposed to be taken therein is clearly beyond the constitutional or statutory jurisdiction or authority of the agency. C.R.S. 24-4-106(8). In other words, [f]or a district court to intervene, the agency proceeding or action must clearly exceed the constitutional or statutory jurisdiction or authority of the agency and the party seeking to enjoin the proceedings must show that the agency action will cause irreparable injury. Envirotest Sys., Corp., 109 P.3d at 144. The Colorado Rules also permit injunctive relief, such as prohibition, [w]here any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law. C.R.C.P. 106(a)(4). Moreover, C.R.C.P. 65 permits temporary restraining orders and preliminary injunctions, when there is (1) a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; (3) a lack of a

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plain, speedy, and adequate remedy at law; (4) no disservice to the public interest; (5) a showing that the balance of equities favor the injunction; and (6) a showing that the injunction will preserve the status quo pending a trial on the merits. Rathke v. MacFarlane, 648 P.2d 648, 65354 (Colo. 1982); City of Golden v. Simpson, 83 P.3d 87, 96 (Colo. 2004). The Secretary may seek a prohibition or other injunctive relief in this Court, because the Commission is acting clearly beyond the constitutional or statutory jurisdiction or authority of the agency. C.R.S. 24-4-106(8). Moreover, the Commission has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law. C.R.C.P. 106(a)(4). Moreover, as discussed in more detail below, the Secretary has met all of the Rule 65 Rathke factors. Thus, pursuant to C.R.S. 24-4-106(8), C.R.C.P. 106(a)(4), and C.R.C.P. 65, the Secretary respectfully requests that this Court grant this motion for temporary restraining and/or preliminary injunction. B. The Secretary is likely to succeed on the merits in this case, because the Commission is clearly acting outside of its jurisdiction.

There is a reasonable likelihood of success on the merits that the Commission exceeded its jurisdiction over the allegations in IEC Case No. 12-07, because: (A) Amendment 41 bans gifts offered to influence a public official and does not apply to expenditures under the state fiscal rules; and (B) The Commission does not have authority over criminal allegations.

The Commission clearly exceeded its constitutional (under Amendment 41 or Article XXIX) and statutory (under C.R.S. 24-18.5-101(5)) authority in this matter, when it failed to limit its jurisdiction to the gift and lobby bans or influence peddling. See Exhibit F. In other

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words, the Commission is acting outside of its statutory and constitutional framework. Envirotest Sys., Corp., 109 P.3d at 145. To conserve judicial resources, the Secretary incorporates by reference his concurrently filed legal brief in support of this motion, which makes this legal argument in greater detail. C. The Secretary faces the danger of real, immediate, and irreparable injury.

The Commissions assertion of virtually limitless jurisdiction has caused and will continue to cause immediate and irreparable harm to the Secretary, as the Commission has hauled him in before the tribunal, subjected him to evolving and substandard procedures, and forced him to respond to criminal (or some other unspecified legal) allegations over which the Commission clearly has no jurisdiction. See Hicks v. Bush, 397 F. Supp. 2d 36, 41-42 (D.D.C. 2005) (finding irreparable harm when a petitioner faces the clear and imminent risk of being subjected to a military commission which has not been ultimately determined by the Supreme Court to have jurisdiction). [S]etting aside the judgment after trial and conviction insufficiently redresses [Petitioners] right not to be tried by a tribunal that has no jurisdiction. Id. at 42 (internal citations omitted). Further injury is imminent, as the Commission plans to take further action against the Secretary in IEC Case No. 12-07 as early as February 4, 2013. See Exhibit H (agenda for 2/4/2013 IEC Meeting). The Secretary also faces the loss of goodwill and reputation associated with a highprofile, yet illegal, investigation and potential adverse finding by the Commission. See, e.g., Otter Products, LLC v. FreeCo, Inc., No. 10-CV-02028-LTB, 2011 WL 1542150 *3 (D. Colo. Apr. 25, 2011) (The loss of customer goodwill often amounts to irreparable injury because the damages flowing from such losses are difficult to compute.); Mercury Companies, Inc. v. First Am. Corp., No. CIVA 08CV00911WYDCBS, 2008 WL 4861950 *8 (D. Colo. Nov. 10, 2008)

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(citing Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 726 (3rd Cir. 2004) and Basicomputer Corp. v. Scott, 973 F.2d 507, 51112 (6th Cir. 1992)) (Further, loss of good will may support a finding of irreparable injury.); Bestland v. Smith, No. 06CV00466WYDPAC, 2006 WL 3218893 *5 (D. Colo. Nov. 6, 2006) (finding irreparable harm due to injury to reputation). Moreover, the Commissions illegal proceedings chills the Secretarys ability to fully carry out his functions as he sees fit, if he constantly faces the threat of legal actions from the Commission for any potential violation of undefined other standards of conduct or any other potential violation of the Constitution or other standards of conduct or reporting requirements. In fact, one of the issues in IEC Case No. 12-07 is whether the Secretary properly administered his duties when he spent money from his discretionary fund, pursuant to C.R.S. 24-9-105 (for expenditure in pursuance of official business as each elected official sees fit). The Commission is asserting jurisdiction to determine whether the Secretary appropriately exercises his duties, which causes the irreparable injury of loss of management rights. See Gitlitz v. Bellock, 171 P.3d 1274, 1280 (Colo. App. 2007). Colorado law supports this Courts enjoinment of the Commissions continued illegal actions in excess of its jurisdiction. For example, in Byrd v. Stavely, 113 P.3d 1273 (Colo. App. 2005), the Colorado Court of Appeals affirmed the District Courts injunction associated with a claim under C.R.C.P. 106(a)(4), after two judges of the Boulder County Court proceeded in excess of their jurisdictional authority. At issue in that case was the right to a jury trial under certain circumstances. The Court concluded that forcing the parties to go through the expense of trial, at which they would reveal their trial strategy and witness testimony, and then seek appellate review, causes irreparable harm. See id. at 1276 (citing Shore v. District Court, 258

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P.2d 485 (1955) and People ex rel. Lackey v. District Court, 69 P. 597 (1902)). The same analysis is applicable here. Prospective injunctive relief, as the Secretary seeks here, is likely the Secretarys sole remedy. This is so, because the Commission and the commissioners may enjoy quasi-judicial immunity from claims for monetary damages. See Churchill v. Regents of the University of Colorado, 285 P.3d 986, 1001 (Colo. 2012). The Secretary will suffer continuing irreparable injury, as described above, absent this Courts immediate injunction. Thus, pursuant to C.R.S. 24-4-106(8), C.R.C.P. 106(a)(4) and C.R.C.P. 65, the Secretary seeks immediate injunctive relief. D. The Secretary lacks a plain, speedy, and adequate remedy at law.

The Secretary lacks a plain, speedy, and adequate remedy at law, because again the Commission and the commissioners likely enjoy quasi-judicial immunity from claims for monetary damages. See Churchill, 285 P.3d at 1001. Prospective injunctive relief, as the Secretary seeks here, is likely the Secretarys sole remedy. Thus, the Secretarys request for injunctive relief is appropriate. E. The injunction will not disservice the public interest.

This Courts prohibition of the Commissions actions in excess of its jurisdiction will greatly serve the public interest. Enforcing constitutional and other jurisdictional limits protects liberty, strengthens confidence in government, and thus serves the public interest. After all, tribunals must have jurisdiction over the parties and the subject matter of the issue to be decided if its judgment is to be valid. Colo. Ins. Guaranty Assn v. Menor, 166 P.3d 205, 209 (Colo. App. 2007).

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Moreover, if the Commission can deny the Secretary a fair hearing by asserting virtually limitless jurisdiction against him, hauling him before the tribunal, subjecting him to evolving and substandard procedures, and forcing him to respond to criminal (or some other unspecified legal) allegations over which the Commission clearly has no jurisdiction, the Commission can do it to others. An injunction in this case will reign in the Commissions actions in excess of jurisdiction. Thus, the public interest is served if this Court grants the preliminary injunction. F. The balance of equities favors the injunction.

The balance of equities strongly favors the preliminary relief the Secretary seeks. The Secretary does not seek to restrain the Commission from hearing cases involving the gift ban, the lobbying ban, or influence peddling, as the Commission is authorized to do. Nor does the Secretary seek to enjoin the Commission from issuing its advisory opinions. The Secretary simply seeks to enjoin the Commissions actions in excess of its jurisdiction. As discussed, it violates every notion of fairness for the Commission to haul in the Secretary before the tribunal, subject him to evolving and substandard procedures, chill his ability to carry out his official duties as he sees fit, and force him to respond to allegations over which the Commission lacks jurisdiction or to respond to wholly vague allegations of potential violation[s] of the Constitution or other standards of conduct or reporting requirements. The Secretary seeks to restore the proper constitutional order and balance. Criminal courts will continue to resolve criminal matters. The legislature will continue to control the power of the purse, including determining whether to appropriate and the oversight of discretionary funds. The State Controller will continue to issue fiscal rules. The State Auditor will continue to enforce those rules. The Commission will do what the voters intended for it to do, which is hear cases involving Amendment 41s gift and lobby bans, along with allegations of

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influence peddling. By ensuing an injunction, this Court will restore the proper constitutional order and balance and ensure public confidence in government. The injunction will also protect the Secretarys immediate liberty interests and ability to carry out his official duties as he sees fit. As such, the equities strongly favor the Secretarys requested preliminary relief. G. The injunction will preserve the status quo.

The Courts issuance of a preliminary injunction will preserve the status quo and protect [the Secretarys] rights pending the final determination of CREWs Complaint. Gitlitz, 171 P.3d at 1278. Here, the Commission has not conducted or even scheduled its formal hearing of Case No. 12-07; it has only made a finding that the Complaint is not frivolous and voted to deny the Secretarys motion to dismiss. The status quo is maintained by issuance of preliminary-injunctive relief, as it halts the Commissions proceedings until a trial on the merits before this Court resolves the jurisdictional issues presented. The Secretary denies all wrongdoing, and he is presumed innocent unless and until found otherwise through a hearing with jurisdictional and adequate procedural safeguards. That is the status quo. The Commissions assertion of excess jurisdiction and its failure to provide adequate procedural safeguards will illegally upset the status quo. Moreover, since the relief sought by CREW is a monetary penalty, CREW can continue to pursue that relief if the Secretary loses before this Court on the merits. In the meantime, the Secretary can continue to administer the Office of the Colorado Secretary of State, which the voters of Colorado elected him to do. H. Bond is not required.

Bond is not required in this case, because [n]o such security shall be required of the state or of any county or municipal corporation of this state or of any officer or agency thereof acting

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in official capacity. C.R.C.P. 65(c). CREWs Complaint challenges the operation of the Office of the Secretary of State and actions take by the Secretary in both his individual and official capacity. III. CONCLUSION The Secretary respectfully submits that the Commission exceeded its jurisdiction, in violation of Colorado law, when it denied the Secretarys motion to dismiss IEC Case No. 12-07, because: (A) Amendment 41 bans gifts offered to influence a public official and does not apply to expenditures under the state fiscal rules; and (B) The Commission does not have authority over criminal allegations.

WHEREFORE, the Secretary respectfully requests that this Court grant the Motion for Temporary Restraining Order and/or Preliminary Injunction, pursuant to C.R.S. 24-4-106(8), C.R.C.P. 106(a)(4), and C.R.C.P. 65, prohibiting the Commissions further action in IEC Case No. 12-07 pending the resolution of this case on the merits by this Court. The Secretary further requests that this Court grant such other and further relief as this Court deems just and proper.

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DATED this 30th day of January, 2013. Respectfully submitted, /s/ David A. Lane ____________________________ David A. Lane, #16422 KILLMER, LANE & NEWMAN, LLP The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 Telephone: (303) 571-1000 Fax: (303) 571-1001 dlane@kln-law.com /s/ Robert J. Bruce ____________________________ Robert J. Bruce, #17742 LAWLIS & BRUCE, LLC 1875 Lawrence Street, Suite 750 Denver, Colorado 80202 Telephone: (303) 573-5498 Fax: (303) 573-5537 robertbruce@lawlisbruce.com /s/ Michael R. Davis ____________________________ Michael R. Davis, #39788 LAW OFFICE OF MICHAEL R. DAVIS, LLC 3301 West Clyde Place Denver, Colorado 80211 Telephone: (303) 325-7843 Fax: (303) 723-8679 mrd@mrdavislaw.com Attorneys for the Plaintiff

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