Lopez v. Griswold ( 2023 )

Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
February 13, 2023
FOR THE TENTH CIRCUIT
_______________________________________ Christopher M. Wolpert
Clerk of Court
GREG LOPEZ; RODNEY PELTON;
STEVEN HOUSE,
Plaintiffs - Appellants,
v. No. 22-1082
(D.C. No. 1:22-CV-00247-JLK)
JENA GRISWOLD, Colorado (D. Colo.)
Secretary of State, in her official
capacity; JUDD CHOATE, Director
of Election, Colorado Department of
State, in his official capacity,
Defendants - Appellees.
__________________________________________
ORDER AND JUDGMENT *
__________________________________________
Before BACHARACH, EID, and ROSSMAN, Circuit Judges.
___________________________________________
The Colorado Constitution is designed to encourage political
candidates to limit their expenditures. This design is based on statutory
limitations on contributions. If candidates agree to limit their expenditures,
supporters of these candidates can contribute up to twice the statutory
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 22-1082 Document: 010110812136 Date Filed: 02/13/2023 Page: 2
limits in some circumstances. Colo. Const. art. XXVIII, § 4(5). By
allowing supporters to double their contributions, the state constitutional
provision was intended to encourage candidates to limit their expenditures.
This appeal arises from a challenge to these provisions. Two
candidates and a contributor challenged these provisions during the 2022
election cycle. In confronting these challenges, the district court denied a
request for a preliminary injunction that would have suspended these
provisions during the pendency of the underlying suit. This appeal
challenges the denial of the preliminary injunction.
The defendants argue that the entire appeal is moot, noting that the
2022 election has passed. For this argument, the defendants bear the
burden. WildEarth Guardians v. Public Serv. Co. of Colo., 690 F.3d 1174,
1183 (10th Cir. 2012). We conclude that the defendants have satisfied their
burden.
1. The Colorado Constitution’s method of limiting spending
Colorado generally limits the amount that someone can contribute to
a candidate in primary and general elections. See 8 Colo. Code Regs.
§ 1505-6:10.17.1(i) (2019) (setting limits on spending for candidates
running for governor and state senate). But a candidate’s supporters can
make contributions that double the general limits if
 the candidate agrees to limit campaign spending to a specified
amount and
2
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 an opponent raises at least 10% of the applicable limit and
declines to cap expenses at the specified limit.
Colo. Const. art. XXVIII, § 4(5).
The challengers to this scheme included
 candidates running in 2022 for governor (Greg Lopez) and the
state senate (Rodney Pelton) and
 a contributor (Steven House).
2. Challenge by the gubernatorial candidate (Mr. Lopez)
Mr. Lopez lost in the 2022 primary, and he concedes that his appeal
is moot. Given Mr. Lopez’s concession, we dismiss his appeal as moot. See
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72–73 (2013)
(assuming without deciding that the claim was moot in light of the
claimant’s concession in earlier proceedings that an offer of judgment
would moot the claim).
3. Challenge by the senatorial candidate (Mr. Pelton)
The defendants argue that Mr. Pelton’s claim became constitutionally
moot when the 2022 election ended. But we need not address constitutional
mootness because Mr. Pelton’s appeal is at least prudentially moot. 1
1
We need not address constitutional mootness before prudential
mootness. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549
U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose among
threshold grounds for denying audience to a case on the merits.’” (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))); see also
Charles Allen Wright, Arthur R. Miller, and Edward H. Cooper, 13B Fed.
Prac. & Proc. Juris § 3533.1, at 763 (3d ed. 2008) (“It also is appropriate
3
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Under the doctrine of prudential mootness, we can treat an appeal as
moot when the potential injuries are remote enough for the district court to
withhold equitable relief. Jordan v. Sosa, 654 F.3d 1012, 1024, 1029,
1033–34 (10th Cir. 2011). This doctrine applies here.
Mr. Pelton opposes mootness, arguing that when he campaigns again,
he would again confront the same provisions that encourage spending
limits. 2 A future candidacy might ordinarily prevent mootness. See Citizen
Ctr. v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014) (concluding that a
claim for a prospective injunction wasn’t moot because the requested relief
could affect future elections). Here, though, an injury to Mr. Pelton’s
future candidacy would require us to indulge two layers of speculation.
First, it is unclear when the disputed spending provisions would
affect Mr. Pelton. These provisions would affect Mr. Pelton only when he
campaigns again. Colo. Rev. Stats. § 1-45-110(1); Colo. Const. art.
XXVIII, § 4(3). Mr. Pelton won the 2022 general election, 3 so he wouldn’t
to invoke a prudential principle without confronting the uncertain line
between Article III and prudential grounds . . . .”).
2
Mr. Pelton also argues that the spending limit hurts his ability to pay
off his campaign debts for the 2022 election. But the disputed spending
provision doesn’t restrict his ability to raise money. Given the absence of a
restriction on raising money, Mr. Pelton doesn’t explain how the disputed
spending provision impairs his ability to pay off his existing campaign
debts.
3
We take judicial notice of Mr. Pelton’s victory in the 2022 election
for state senate. See Senator Rodney Pelton, Colorado General Assembly
4
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face reelection until 2026. See Colo. Const. art. V, § 3(1) (“Senators shall
be elected for the term of four years.”). Although Mr. Pelton intends to run
for office in the future, he has not indicated which office he intends to
seek or when he would accept the spending limit.
He could conceivably start raising money now for a campaign four
years away. But Mr. Pelton doesn’t need to decide whether to limit
spending until he starts campaigning for a future election. See Colo. Rev.
Stats. § 1-45-110(1); Colo. Const. art. XXVIII, § 4(3).
Second, we can’t predict how long the preliminary injunction would
last, for it would end when the district court issues a final judgment.
United States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th Cir.
1988). And the district court has plowed ahead during the pendency of this
appeal. For example, the district court set deadlines
 in April 2023 for discovery and
 in May 2023 for dispositive motions.
In light of these deadlines, the district court will likely enter a final
judgment before Mr. Pelton could reach the spending limit.
Given the two layers of speculation, Mr. Pelton’s appeal is
prudentially moot because the possibility of an interim injury rests on
(last accessed Jan. 26, 2023), https://leg.colorado.gov/legislators/rod-
pelton; see also Mont. Green Party v. Jacobsen, 17 F.4th 919, 927 (9th Cir.
2021) (taking judicial notice of election results under Federal Rule of
Evidence 201(b)(2) based on the state’s public website).
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speculation. See Jordan v. Sosa, 654 F.3d 1012, 1024–25 (10th Cir. 2011)
(noting that a request for injunctive relief would become moot if continued
susceptibility to an injury was speculative).
4. Challenge by the contributor (Mr. House)
Mr. House challenges the provisions increasing the statutory caps on
contributions to candidates.
The disputed spending provisions don’t restrict the amount of money
that Mr. House can contribute. Granted, state law elsewhere caps
contributions. But Mr. House isn’t challenging those caps; he challenges
only the provision that allows an increase in those caps.
For this challenge, Mr. House argues that other contributors might be
able to contribute more than he can. But any complaint about this
difference would be prudentially moot for two reasons. First, no
contributor can contribute more to a particular candidate than he can.
Second, any possible injury to Mr. House would rest on too much
speculation to justify a preliminary injunction. We don’t know who Mr.
House will support in future elections, whether those candidates will
accept or decline the spending limit, whether those candidates will face
opponents, or whether those opponents would accept or decline the
spending limit. Without knowing these things, a court could just speculate
whether another contributor would be able to donate more than Mr. House.
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So his appeal is prudentially moot. See Jordan v. Sosa, 654 F.3d 1012,
1024–25 (10th Cir. 2011).
5. Conclusion
We lack appellate jurisdiction because
 Mr. Lopez concedes that his appeal is moot,
 Mr. Pelton’s appeal is prudentially moot because the
applicability of the disputed spending provision rests on
speculation, and
 Mr. House’s appeal is prudentially moot because the possibility
of an injury in future elections would rest on speculation.
So we dismiss the appeal as moot. 4
Entered for the Court
Robert E. Bacharach
Circuit Judge
4
Because we dismiss the appeal as moot, we don’t address the merits
of the plaintiffs’ appellate arguments.
7