ORDER CERTIFYING QUESTIONS UNDER RULE 21.1, Colo. R. App. P.

JOHN L. KANE, Senior District Judge.

In my September 6, 2012, Order staying briefing and ordering a status report (Doc. 25), I asked the parties to address whether the issues in this case are appropriate for certification to the Colorado Supreme Court under Colo. R. App. P. Rule 21.1. After reviewing the Joint Status Report and the parties' expedited briefs on the merits of the case, I conclude the statutory and rulemaking interpretations necessary to the First Amendment questions presented are uniquely matters of state law and act sua sponte to certify them now.

Colorado Appellate Rule 21.1 provides that a federal district court may certify a question to the state Supreme Court where an action involves "questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court." The instant lawsuit is such an action, in that it raises First Amendment challenges to several provisions of Colorado's campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII's implementing legislation, or the Colorado courts. Clear guidance from the Colorado Supreme Court as to the scope and meaning of these challenged provisions is likely determinative of most or all of the questions presented in this case.

Questions Certified.

Having reviewed the Joint Submission of Questions Proposed for Certification (Doc. 33), and incorporating by reference the statement of facts set forth therein, I CERTIFY the following questions to the Colorado Supreme Court:

The parties' Joint Submission is appended to this order for ease of reference by the Colorado Supreme Court.

JOINT SUBMISSION OF QUESTIONS PROPOSED FOR CERTIFICATION TO THE COLORADO SUPREME COURT

I. Relevant facts

In November 2002, Colorado voters passed Amendment 27, which amended Article XXVIII of the Colorado Constitution to include several new campaign financing provisions that apply to both candidate and ballot initiative elections. See, e.g., Colorado Right to Life Committee, Inc., v. Coffman, 498 F.3d 1137, 1139 (10th Cir. 2007). With respect to ballot initiatives, Amendment 27 sets campaign finance reporting and disclosure requirements for "issue committees," which include "any person, other than a natural person, or any group of two or more persons, including natural persons: (I) that has a major purpose of supporting or opposing any ballot issue or ballot question; [and]1 (II) that has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question." Colo. Const. art. XXVIII, § 2(10). Section 1-45-103(12)(b), C.R.S. (2012) provides a definition of "major purpose."

Plaintiff Coalition for Secular Government (CSG) is a Colorado non-profit corporation incorporated on July 17, 2008. Diana Hsieh, Ph.D., is the founder and president of CSG. She has also served as its registered agent, both for purposes of its corporate filings and for the issue committees established by CSG in 2008 and 2010. Consistent with Colorado law, CSG's corporate filings do not list any particular purpose. CSG's website, however, describes the organization as follows:

CSG is not connected with any political candidate or any political party.

CSG's organizational activities consist of: 1) a blog, 2) public advocacy including editorials and letters to newspaper editorial pages, and 3) publication and distribution of a "public policy paper" in the months leading up to the 2008 and 2010 general elections. The blog receives an approximate average of 5,000 hits per week and is updated, on average, 1-3 times per week with postings discussing philosophy, religion, current events, public policy issues and other topics. The blog features occasional YouTube videos covering a topic or series of topics in-depth. CSG also maintains a Facebook page with more than 200 "likes." The public policy paper was published for the first time shortly after CSG's incorporation in 2008. CSG updated and expanded the public policy paper in 2010. A copy of the 2010 paper is attached hereto.

Because it spends no money on the blog, all of CSG's budget has historically been devoted to publishing and distributing the public policy paper. In 2008 CSG collected $200 in monetary contributions and $229.25 in non-monetary contributions. In 2010, CSG received and spent $2951.16 in monetary and nonmonetary contributions. In both years, CSG registered as an issue committee and reported the contributions and expenditures associated with the public policy paper. CSG's 2008 issue committee was established July 29, 2008 and terminated November 30, 2008. CSG's 2010 issue committee was established September 27, 2010 and terminated April 1, 2011.

CSG plans to update, expand, advertise, and distribute the Public Policy Paper once again in 2012. CSG plans to raise less than $3,500 for these activities, but does not intend to file as a Colorado Issue Committee in 2012. Meanwhile, CSG has continued and will continue to operate its blog, Facebook page, and other electronic media. CSG intends to update and expand the Paper in future years, including years in which a Personhood amendment may appear on the Colorado ballot.2 These efforts will involve papers substantially similar to the paper published in 2010.

II. Standard for certification

Colorado Appellate Rule 21.1 permits the Colorado Supreme Court to answer a question of law certified to it by a United States District Court if the question "may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the [Colorado] Supreme Court." Colo. App. R. 21.1(a).

CSG's lawsuit raises First Amendment challenges to several provisions of Colorado campaign finance law that remain undefined by the Colorado Constitution, Article XXVIII's implementing legislation, or caselaw from Colorado courts. Specifically, this Court has not had an opportunity to clarify: 1) whether publications such as CSG's public policy paper qualify as "express advocacy;" 2) whether publications such as CSG's public policy paper qualify for the press exemption of Art. XXVIII, § 2(8)(b) or are "written or broadcast communications under § 1-45-103(12)(b)(II)(B); 3) the parameters of assessing what constitutes "a major purpose" of supporting a ballot issue or ballot question; and 4) the impact that the in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), had on monetary component of issue committee status under Art. XXVIII, § 2(10)(a)(II).

Clear guidance from the Colorado Supreme Court as to the scope and meaning of these challenged provisions is potentially determinative of several of the questions presented in CSG's federal lawsuit.

III. Questions to be certified:

The following questions shall be certified:

Article XXVIII § 2(10)(a)(II)?