STATE OF COLORADO

OFFICE OF ADMINISTRATIVE COURTS

1525 Sherman Street, 4th Floor
Denver, CO 80203
Peter Coulter,
Complainant,
v.
Colorado Judiciary et al.,
Respondents.
CYNTHIA H. COFFMAN, Attorney General
MATTHEW D. GROVE, Assistant Solicitor
General*
CHRISTOPHER M. JACKSON, Assistant Attorney
General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 6th Floor
Denver, CO 80203
Tel: (720) 508-6157/6178
Fax: (720) 508-6104
Email: matt.grove@coag.gov
christopher.jackson@coag.gov
Registration Nos.: 34269; 49202
*Counsel of Record

COURT USE ONLY

Case No. OS-2016-0024

MOTION TO DISMISS
The State Judicial Defendants 1 move to dismiss the above-captioned
complaint pursuant to C.R.C.P. 12(b)(5) for failure to state a claim upon which relief
may be granted.

The State Judicial Defendants are identified by name in undersigned counsels

entry of appearance. They include all named judges except those who serve on the
Denver County Court, all other employees of the Colorado Judicial Branch, and the
Director and Commissioners of the Colorado Judicial Performance Commission.

CERTIFICATE OF CONFERRAL
In accordance with C.R.C.P. 121, 1-15(8), undersigned counsel has
conferred with Complainant concerning the relief requested herein. This motion to
dismiss is opposed.
INTRODUCTION
Complainant Peter Coulter filed a campaign finance complaint arising out of
the work of the Office of Judicial Performance and Evaluation (OJPE), which is
home to the Colorado Commission on Judicial Performance (Commission). OJPE
and the Commission were established by state statute in 1988 to provide persons
voting on the retention of justices and judges with fair, responsible, and
constructive information about judicial performance and to provide justices and
judges with useful information concerning their own performances. 13-5.5-101(1),
C.R.S. (2016).
The particulars of Coulters complaint, including those individuals and/or
entities whom he intends to identify as Respondents, are not entirely clear. 2 But it
appears that Coulter takes issue with a contract between the OJPE and the
Colorado Broadcasters Association (CBA), under which the OJPE paid the CBA
$50,000 to assist with the creation and distribution of a campaign to publicize
Indeed, Coulters complaint ostensibly names every employee of Colorados
Judicial Branch as a Respondent. Even assuming that any of these individuals had
been properly named in and served with the complaint (which they were not),
Coulter fails to make any particularized claim or include any allegations about their
specific conduct. The unnamed Judicial Branch employees should be dismissed as
Respondents for that reason as well as all of those in the arguments below.
2

information about judicial retention recommendations in advance of the 2016

general election. By making this payment to the CBA, Coulter appears to argue,
the OJPE qualified as a political candidate committee 3 and was thus required to
register with the Secretary of State and make periodic campaign finance
disclosures. Complaint, 54-70.
Coulter names more than just the OJPE and its commissioners as
respondents, however. He also names 109 judges from across the state who are
currently standing for retention, and claims that they should be declared Political
Candidates. Complaint 53. He also contends that the CBA, various radio
stations that ran public service announcements, the Governor, and all 3,600
employees of the Colorado Judiciary qualify as political candidate committees and
have violated Colorados campaign finance laws by failing to register and report as
such. 4 Complaint 67.
As a consequence for these alleged violations of Colorado campaign finance
law, Coulter asserts that judges standing for retention should register with the
Secretary of State as political candidates, and that all other individuals and
entities named as respondents should register as political candidate committees.
Colorado Constitution art. XXVIII, 2 defines several different types of political
advocacy groups that must register with and periodically file reports with the
Colorado Secretary of State. The Constitution defines candidate committee,
2(3), and political committee, 12(a), but not political candidate committee.
Liberally construing the allegations in the complaint, however, it appears that
Coulter believes that the OJPE qualifies as a political committee and should
register as such.

He demands that respondents be fined $50 for each day that they have failed to do
so, and requests an award of costs and attorney fees incurred. 5
For the reasons below, none of Coulters claims state a claim upon which
relief may be granted. His complaint must therefore be dismissed.
ARGUMENT
I.

Standard of review.
A C.R.C.P. 12(b)(5) motion to dismiss tests the sufficiency of the complaint.

Asphalt Specialties, Co. v. Commerce City, 218 P.3d 741, 744 (Colo. App. 2009). A
Rule 12(b)(5) motion is properly granted where the allegations, viewed in the light
most favorable to the plaintiff and accepted as true, cannot support a claim for relief
as a matter of law. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1099
(Colo. 1995). Although factual allegations must be accepted as true, courts are not
required to accept a plaintiffs legal conclusions. Stauffer v. Stegemann, 165 P.3d
713, 716 (Colo. App. 2006). [O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss. Warne v. Hall, 2016 CO 50, 9.

No matter the outcome of this case, Coulter is ineligible for an award of attorney
fees because he is unrepresented and is not himself a licensed attorney. See Smith
v. Furlong, 976 P.2d 889, 890 (Colo. App. 1999).

II.

Judges standing for retention are not required to register

candidate committees.
A. Judges standing for retention are already candidates.
At the threshold, Coulter contends that the 109 Retention Judges identified

in his complaint should be declared Political Candidates. Any judge standing for
retention, however, is a candidate pursuant to Colo. Const. art. XXVIII, 2(2), and
has already declared that status by filing the candidate affidavit required by 1-45110(1), C.R.S. (2016). The form for the candidate affidavit is attached as Exhibit A.
This Court may take judicial notice of the fact that all judges standing for retention
have this document on file with the Secretary of State.
B. Respondent Judges do not need to register candidate committees.
To the extent that Coulter instead intends to assert that judges standing for
retention are required to register candidate committees as defined by Colo. Const.
art. XXVIII, 2(3), he is incorrect as a matter of law. A candidate committee is a
person, including the candidate, or persons with the common purpose of receiving
contributions or making expenditures under the authority of the candidate. Id.
Judicial officers in Colorado cannot form candidate committees because to do so
would be inconsistent with the Colorado Code of Judicial Conduct, which prohibits a
judge from personally soliciting funds in support of his or her retention or
personally accepting retention campaign contributions. Colo. Code of Judicial
Conduct, Rule 4.1(A)(8), cmt. 1. If a judge standing for retention is facing active
opposition to that retention, the judge may be supported by one or more
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nonpartisan citizens committees, which may raise funds for the judges
campaign. Id. Rule 4.3(3), (4).
But Coulter does not allege that any judge currently standing for retention
has organized, or had organized on his or her behalf, a nonpartisan citizens
committee. Nor, for the reasons outlined below has he plausibly alleged that the
OJPE, by fulfilling its statutory mandate, has made contributions in any amount to
any judges retention campaign, nor that any judge or a committee supporting him
or her somehow accepted them. Absent a showing that a group under the control
of a judge standing for retention has spent money on such electoral advocacy, any
claim by Coulter that the 109 judges standing for retention must register a
candidate committee and make periodic disclosures to the Colorado Secretary of
State must be dismissed.
III.

The OJPE is not a political committee.

Most of Coulters campaign finance complaint focuses on the OJPE, and

particularly on the OJPE contract with the CBA. 6 As described by Coulters second
claim for relief, the OJPE appropriated $50,000to promote the Retention and
Non-Retention of 109 Colorado Judges. Complaint 55. This appropriation,
Coulter contends, demonstrates that [e]ach Respondent has contributed more than
Coulter also devotes several pages of his complaint to criticizing the policies and
practices that the OJPE has adopted for the judicial review process. Complaint 2645. These allegations have no bearing on whether the OJPE should be required to
register with the Secretary as a political committee or any other type of campaign
finance reporting entity.
6

$200 in funding, services or products to the major purpose of Retention and NonRetention of said judges. 7 Id.
Coulters reference to a $200 threshold and the OJPEs alleged major
purpose indicate that despite his references to a political candidate committee
which does not existhe actually intends to allege that the OJPE should register as
a political committee. See COLO. CONST. art. XXVIII, 2(12)(a) (establishing $200
threshold for political committee); see also Alliance for Colorados Families v.
Gilbert, 172 P.3d 964, 972-73 (Colo. App. 2007) (applying major purpose test to
putative political committee).
Coulters complaint, however, fails to plausibly allege that OJPE qualifies for
political committee status. Political committee means any person, other than a
natural person, or any group of two or more persons, including natural persons that
have accepted or made contributions or expenditures in excess of $200 to support or
oppose the nomination or election or one or more candidates. COLO. CONST. art.
XXVIII, 2(12)(a). And layered onto that definition are implicit requirements
common to every political committee: 1) the major purpose test 8 and 2) the
presence of coordination between the political candidate and the group spending
Coulters third and fourth claims assert that the OJPE (and potentially other
members of the Judicial Branch) violated Colorado campaign finance law by failing
to file reports that are required of political committees. The success of these claims
depends entirely on whether the OJPE was required to register as a political
committee in the first place. If the OJPE is not a political committee, then no
reporting is required.
8 Although Respondents do not focus on the major purpose test in this motion to
dismiss, they reserve the right to raise that defense in future proceedings.
7

money on his or her behalf. Coulters complaint falls short of plausibly alleging
several of these elements. It must therefore be dismissed.
A. The complaint fails to plausibly allege that OJPEs spending on
its contract with CBA was a contribution or expenditure to
support or oppose judicial candidates.
Given that the only spending that Coulters complaint identifies is OJPEs
$50,000 contract with CBA, OJPE satisfies the explicit requirements of 2(12)(a)
only if that amount qualifies as a contribution or expenditure made to support or
oppose the nomination or election of one or more candidates. But this money fails
both tests.
First, the complaint does not plausibly allege that the $50,000 spent by OJPE
on the CBA contract was a contribution or expenditure. Subject to exceptions not
applicable here, contribution is defined as:
(I) The payment, loan, pledge, gift, or advance of money, or guarantee
of a loan, made to any candidate committee, issue committee, political
committee, small donor committee, or political party; Colo. Const. art.
XXVIII, 2(5)(a)(I)

This subsection does not apply because OJPE paid CBA, which
is not a committee of any type.

(II) Any payment made to a third party for the benefit of any candidate
committee, issue committee, political committee, small donor
committee, or political party; Colo. Const. art. XXVIII, 2(5)(a)(II)

This subsection does not apply because OJPEs payment was not
made for the benefit of any judge standing for retention (nor for
any such judges candidate committee, since no judge has one).
Rather, the payment was made so that the OJPE could publicize
its statutorily mandated mission of ensuring that the electorate
is informed about the judicial retention system.
8

(III) The fair market value of any gift or loan of property made to any
candidate committee, issue committee, political committee, small donor
committee or political party; Colo. Const. art. XXVIII, 2(5)(a)(III)

OJPE did not make a gift or loan of property to anyone, much

less any type of committee. This subsection thus does not apply.

(IV) Anything of value given, directly or indirectly, to a candidate for

the purpose of promoting the candidates nomination, retention, recall,
or election. Colo. Const. art. XXVIII, 2(5)(a)(IV)

OJPEs payment was not given directly or indirectly to any

judge standing for retention, and given that it funded a public
service announcement that did not itself advocate for the
retention or non-retention of any judge, it likewise was not given
for the purpose of promoting any judges retention.

Nor was the OJPEs $50,000 payment an expenditure which Article XXVIII
defines as any purchase, payment, distribution, loan, advance, deposit, or gift of
money by any person for the purpose of expressly advocating the election or defeat
of a candidate or supporting or opposing a ballot issue or ballot question. COLO.
CONST. art. XXVIII, 8(a). Coulter does not allege that the public service
announcements funded by OJPEs $50,000 payment contained any express
advocacy, nor did they because, rather than urging electors to cast their ballot one
way or another, they simply informed listeners that resources were available. See
Colorado Ethics Watch v. Senate Majority Fund, 2012 CO 12, 26 (defining
express advocacy).
Second, Coulter does not plausibly allege that OJPEs $50,000 disbursement
was made to support or oppose one or more candidates. As already noted, the
9

payment did not fund express advocacy, and this Court should decline to adopt a
construction of support or oppose that sweeps in activity that does not involve
express advocacy. Simply put, the term support as used in the definition of
political committee 2(12)(a) has a precise meaning in this contextone that
requires coordination between the group spending money and the candidate.
This narrow interpretation is necessary to maintain the overall coherence of
Colorados campaign finance system, because ascribing a broader meaning to the
term support would allow the definition of political committee to swallow a
number of other statutorily differentiated spending groups. Specifically, if the term
support is interpreted broadlythat is, as not requiring coordination between the
party spending money and the candidatethe definition of political committee
would sweep in, at a minimum, independent expenditure committees (IECs) and
groups spending money on certain electioneering communications. Independent
expenditures are, by definition, not coordinated with a candidate. See COLO. CONST.
art. XXVIII, 5; 1-45-107.5, C.R.S. (2016). At the same time, however, a colloquial
interpretation of the language in the definition of political committee would suggest
that by spending money urging voters to vote for or against a specifically identified
candidate, an IEC is spending money to support or oppose the nomination or
election of one or more candidates. COLO. CONST. art. XXVIII, 2(12)(a). Thus, if
support or oppose does not require coordination, then any group spending more
than $200 on independent expenditures would qualify as a political committee,
10

rather than (or in addition to) an IEC. This would render the constitutional and
statutory reporting requirements for independent expenditures superfluous.
It is well-settled that interpretations that render statutory provisions
redundant and superfluous should be avoided. Colo. Compensation Ins. Auth. v.
Jorgenson, 992 P.2d 1156, 1163 (Colo. 2000). Interpreting support or oppose
broadly would convert nearly any group spending more than $200 on independent
expenditures or electioneering communications into political committees. Consistent
with the rules of statutory interpretation, this Court should reject that
interpretation and instead acknowledge that support or oppose as that phrase is
used in the definition of political committee requires coordination between the
spender and the candidate. Under this interpretation, OJPE cannot be required to
register as a political committee based solely on the fact that it spent money to
publicize the availability of its statutorily mandated judicial retention
recommendations.
B. OJPE is not a person.
Political committee status applies only to any person, other than a natural
person, or any group of two or more persons. Article XXVIII, in turn, defines
person as any natural person, partnership, committee, association, corporation,
labor organization, political party, or other organization or group of persons. COLO.
CONST. art. XXVIII, 2(11). As a unit of the Colorado Judicial Branch, OJPE is
plainly not a partnership, committee, association, corporation, labor organization
11

[or] political party. And although Coulter may assert that OJPE could qualify as
an other organization or group of persons, adopting it would be inconsistent with
the canon of construction known as ejusdem generis. This canon provides that
where a general term follows a list of things in a statute the general terms are
applied only to those things of the same general kind or class as those specifically
mentioned. Winter v. People, 126 P.3d 192, 195 (Colo. 2006). Here, the phrase
other organization or group of persons should be construed to apply only to those
things that share the characteristics of the organizations specifically identified in
the statute. Id.
The OJPE shares virtually none of the key characteristics common to a
partnership, committee, association, corporation, labor organization [or] political
party. Most importantly, it is not a voluntary association, but is instead a
statutorily mandatedand government-funded 9unit of government. Because it
exists by statute, it cannot be voluntarily disbanded or unwound by its members,
and it cannot alter its mission or responsibilities absent an amendment to its
organic statute adopted by the General Assembly.
This argument finds further support in the fact that Colorados model of
judicial performance evaluation predates the adoption of Amendment 27 by more
than a decade. Article 5.5 of Title 13, which established the Colorado Commission

OJPEs budget is paid for from the state commission on judicial performance cash
fund. 13-5.5-101.5(4), C.R.S. (2016).

12

on Judicial Performance was adopted in 1988. 10 Neither the commissions

themselves nor the OJPE have ever been considered a political committee, either
before or after the 2002 incorporation of Article XXVIII into the state constitution.
The drafters of Article XXVIII, neither mentioned the judicial performance review
process nor, as already discussed, did they define key terms in a way that
encompassed the OJPEs unique role.
CONCLUSION
Coulters complaint should be dismissed. It does not plausibly allege that any
judge standing for retention was required to register any type of committee and
report contributions accepted and expenditures made. It also fails to establish that
OJPE qualifies as a political candidate committee, political committee, or any
other type of entity that would be subject to campaign finance reporting
requirements. To the contrary, because the complained-of spending was neither a
contribution nor an expenditure, did not contain express advocacy, and was not
made to support or oppose the nomination or election of one or more candidates,
OJPE cannot be classified as a political committee even if its unique statutory
origin did not otherwise preclude it from qualifying.
Respectfully submitted this 28th day of October, 2016.

10

The OJPE manages the administrative side of the judicial performance review.
13

CYNTHIA H. COFFMAN
Attorney General
/s/ Matthew D. Grove
MATTHEW D. GROVE, 34269*
Assistant Solicitor General
CHRISTOPHER M. JACKSON, 49202*
Assistant Attorney General
Public Officials Unit
*Counsel of Record

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CERTIFICATE OF SERVICE
This is to certify that I electronically served the foregoing MOTION TO
DISMISS upon the following parties through on October 28, 2016:
Peter Coulter
151 Summer Street, #654
Morrison, CO 80465
transparentcourts@gmail.com
Pro se Complainant
David Broadwell
Assistant City Attorney
City and County of Denver
david.broadwell@denvergov.org
Martha Tierney
Tierney Lawrence
225 E 16th Ave #350
Denver, CO 80203
mtierney@tierneylawrence.com

/s/ Matthew D. Grove

15