ELAM CONSTRUCTION, INC., a Colorado corporation; John T. Doolittle & Associates, Inc., a Connecticut corporation; Transit ‘97, Inc., a Colorado corporation and issue committee, Plaintiffs-Appellees, v. REGIONAL TRANSPORTATION DISTRICT, a statutory special district and political subdivision of the State of Colorado, Defendant-Appellant.
No. 97-1312.
United States Court of Appeals, Tenth Circuit.
Oct. 28, 1997.
129 F.3d 1343
III
Because Perez clearly did not “use” a firearm under Bailey, we REVERSE Perez‘s conviction under
Walter Gerash, of Gerash, Robinson & Miranda, P.C., and John S. Pfeiffer and Meghan W. Martinez, of Fairfield and Woods, P.C., Denver, CO, for Defendant-Appellant.
Before EBEL, KELLY, and BRISCOE, Circuit Judges.
PER CURIAM.
Defendant-Appellant Regional Transportation District (RTD) appeals from the district court‘s order granting preliminary injunctive relief to plaintiffs. This court previously denied RTD‘s motion for stay pending appeal and ordered expedited briefing on the merits. We now affirm the order of the district court.1
RTD is a statutory special district which provides public transportation services in the Denver regional area. See generally
At its regular meeting on August 19, 1997, RTD‘s board of directors adopted Resolution No. 15, Series of 1997, entitled “‘Guide the Ride’ is Not for Sale.” Resolution No. 15‘s stated purpose was to avoid “the influence of special interests and financially concerned forces” on the referendum election. The resolution provided that in the event the sales tax referendum was successful, RTD would not enter into any financial or contractual relationship, until the year 2015, with any individual or entity which had donated more than $100.00 to any campaign seeking to affect the outcome of the referendum. Existing contracts were exempted, as were donations made on or prior to August 1, 1997.
Plaintiffs Elam Construction, Inc. and John T. Doolittle & Associates, Inc., claim
In its opening brief in this court, RTD argued that it was an arm of the state of Colorado, and therefore not a “person” subject to suit under
The Eleventh Amendment immunizes states from suits in law or equity, including injunctive actions. See Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694 (1982). Under the arm-of-the-state doctrine, this immunity extends to entities created by state governments which operate as their alter egos or instrumentalities. See Mascheroni v. Board of Regents, 28 F.3d 1554, 1559 (10th Cir.1994). It does not, however, extend to political subdivisions of the state, such as counties or municipalities. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979).
In determining whether a particular entity such as RTD is an “arm of the state” or a “political subdivision” of Colorado, we examine such elements as “the state law characterization of the entity, the guidance and control that the state exercises over the entity, the degree of state funding the entity receives, and whether the state has empowered the entity to issue bonds and levy taxes.” Mascheroni, 28 F.3d at 1559. Historically, the most important consideration is whether a judgment against the entity would be paid from the state treasury. See Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 48, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994). The state‘s potential legal liability is of central importance. See Regents of the University of Cal. v. Doe, — U.S. —, —, 117 S.Ct. 900, 904, 137 L.Ed.2d 55 (1997). For our most current and comprehensive discussion of the various Eleventh Amendment factors that should be considered in deciding whether an entity is an “arm of the state” or a “political subdivision of the state,” see Duke v. Grady Municipal Schools, 127 F.3d 972 (10th Cir.1997) (concluding that a local school district in New Mexico was not an “arm of the state” of New Mexico, and therefore not entitled to Eleventh Amendment immunity, and overturning our previous decision of Martinez v. Board ofEducation, 748 F.2d 1393 (10th Cir.1984) pursuant to unanimous en banc authority).
The Colorado Statutes provide that RTD shall have “the duties, privileges, immunities, rights, liabilities and disabilities of a public body politic and corporate,” and that it “shall be a political subdivision of the state.”
The state of Colorado exercises very little oversight over the day-to-day operations of RTD. RTD is required to make recommendations to the state highway legislative review committee, see
By statute, RTD is required to pay all judgments recoverable against it from its own reserves, appropriated or unappropriated funds, or to levy its own tax for that purpose. See
Applying the factors outlined above, we conclude (1) that the state of Colorado has explicitly characterized RTD as a “body corporate” and a “political subdivision” of the state; (2) that the guidance and control exercised by the state over RTD‘s operations are minimal in comparison with the operational powers conferred upon the district by statute; (3) that RTD has been vested with nearly total responsibility for its own funding; and (4) that the public fisc of the state of Colorado is not responsible for judgments entered against RTD. RTD, then, is a “political subdivision” of the state of Colorado, and not an “arm of the state.” As such it does not participate in Colorado‘s Eleventh Amendment immunity.
RTD‘s argument that it is not a “person” under
Having concluded that the district court had jurisdiction over this action, we turn to the merits. We review the district court‘s order granting a preliminary injunction for abuse of discretion. See Walmer v. United States Dep‘t of Defense, 52 F.3d 851, 854 (10th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 474, 133 L.Ed.2d 403 (1995). In order to establish their entitlement to preliminary injunctive relief, plaintiffs must show that they will suffer irreparable injury unless the injunction issues; that the threatened injury to them outweighs the damage
In Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981), the Supreme Court considered the constitutionality of a municipal ordinance placing a dollar limitation on contributions to committees formed to support or oppose ballot referenda. The California Supreme Court had found the ordinance constitutional “because it ensured that special interest groups could not ‘corrupt’ the initiative process by spending large amounts to support or oppose a ballot measure.” Id. at 293, 102 S.Ct. at 436. The Supreme Court reversed. It drew a distinction between limitations on contributions to candidates for political office and their committees, which are permitted in order to avoid corruption, see Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and limitations on contributions to committees seeking to support or oppose a ballot measure. In contrast with the restrictions permitted for contributions to candidates, the Court held, “there is no significant state or public interest in curtailing debate and discussion of a ballot measure.” Citizens Against Rent Control/Coalition for Fair Housing, 454 U.S. at 299, 102 S.Ct. at 439; see also First Nat‘l Bank of Boston v. Bellotti, 435 U.S. 765, 790, 98 S.Ct. 1407, 1423, 55 L.Ed.2d 707 (1978) (“Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections ... simply is not present in a popular vote on a public issue.“).
RTD concedes the force of these precedents, but asserts that they are inapplicable here. This referendum election, RTD argues, is more like a “candidate” election than a typical “ballot issue” election. RTD contends that after the election, its board will function like a successful political candidate, distributing revenue in response to requests for proposals and bids, and contracts for projects purchased with the additional sales tax revenues. Therefore, it argues, this election presents a very real danger of corruption, or perceived corruption, not ordinarily present in a referendum election.
We cannot accept RTD‘s contention that monies spent advocating or opposing the increased sales tax is the equivalent of a “contribution” to the RTD board. The effect of contributions here differs radically from that of the typical contribution designed to further the election of a political candidate. At its most basic, the outcome of the referendum will not directly affect the composition of the RTD board, or the compensation of its members, which is fixed by statute. See
We conclude that plaintiffs have amply shown that they are likely to succeed on the merits of their challenge to Resolution No. 15. We also agree with the district court that allowing Resolution No. 15 to remain in effect will result in a chilling effect on plaintiffs’ First Amendment rights, constituting an irreparable harm to their interests. RTD‘s asserted interest in preventing corruption, in light of its use of an impermissible restriction on speech, does not outweigh the harm asserted by plaintiffs. The public interest also favors plaintiffs’ assertion of their First Amendment rights. For the foregoing reasons, the district court did not abuse its discretion, either in enjoining enforcement of Resolution No. 15, or in requiring RTD to provide notice of the injunction to persons whose First Amendment rights may have
The order of the United States District Court for the District of Colorado granting a preliminary injunction to plaintiffs, entered October 16, 1997, nunc pro tunc, September 5, 1997, is AFFIRMED.