STATE OF COLORADO OFFICE OF ADMINISTRATIVE COURTS 1435 Sherman Street, 4" Floor Denver, CO 80203 Peter Coulter, Complainant ACOURT USE ONLY A Colorado Judiciary, et al., Case No. OS-2016-0024 Respondent: Attorney for the following Denver County Court Judges named in the Complaint; Hon. John M, Mareucci; Hon. Doris E. Burd; Hon, Beth A. Faragher; Hon. Gary M. Jackson; Hon, Nicole M. Rodarte; Hon. Andre L. Rudolph; Hon. Theresa A. Spahn DAVID W. BROADWELL, Assistant City Attomey for the City and County of Denver Atty. Reg, No. 12177 | 1437 Bannock St. Room #353, Denver, CO 80202 ‘Telephone: 720-865-8754 Facsimile: 720-865-8796 Email: david.broadwell@denvergov.org MOTION TO DISMISS DENVER COUNTY COURT JUDGES David W. Broadwell, Assistant City Attomey for the City and County of Denver, hereby joves pursuant to Rule 12 (b)(1), C.R.C.P. that the following Denver county court judges be issed due to a lack of subject matter jurisdiction: Hon. John M. Marcucei; Hon. Doris E. Burd; Hon. Beth A. Faragher; Hon. Gary M. Jackson; Hon. Nicole M. Rodarte; Hon. Andre L. Rudolph; Hon, Theresa A. Spahn. CERTIFICATE OF CONSULTATION The undersigned counsel certifies to the Court that in accord with C.R.C.P, Rule 121, § 1- 15(8) good faith, reasonable efforts to resolve the matters raised by this Motion have been made by consultation with the Complainant who indicates that he intends to oppose this Motion, ‘As grounds for this Motion, the Respondents who are Denver county court judges state:. The Complaint in this matter apparently names every judge in Colorado who is standing for retention at the November 2016 general election, including seven judges who serve in the Denver county court. Denver is a home rule city and county, organized and operating under the authority of its own home rule charter as provided in Article XX of the Colorado Constitution Section 26 of Article VI of the Colorado Constitution provides, in regard to Denver county judges: “The number, manner of selection, qualifications, term of office, tenure, and removal of such judges shall be as provided in the charter and ordinances of the City and County of Denver.” ‘The Colorado Supreme Court has observed: “Although it is not part of Article XX. the home rule” artielv of the Colorado Constitution, Section 26 is « home rule provision . . . its objective is to allocate authority over Denver county court judgeships to the City and County of Denver.” fa he Mutter of the tile, bullot ttle and submission clause jor 1997-1998 # 64.960 P.2d 1192, 1198 (Colo. 1999). (Internal citations omitted.) Section 26 of Article VI, Colo. Const, also specifically provides that Denver county court judges are exempt from the retention election requirements that are applicable to justices and judges elsewhere in Colorado, as set forth in Section 25 of Article VI, Colo. Const. To the extent Denver county court judges stand for retention every four years in a ‘manner similar to other judges throughout the state, it is because Denver's home rule charter § 4.4.5 subjects Denver county court judges to quadrennial retention elections. The retention procedures set forth in § 4.4.5 of the Denver Charter are similar to the provisions of Section 25 of Article VI, Colo. Const. Asahome rule city and county, Denver exercises plenary authority to regulate the lection of its own charter officers, including county court judges, under subsection (6)(a) and (d) of Article XX of the Colorado Constitution. ‘These constitutional provisions declare the “qualifications and term or tenure of municipal officers” as well a5 “all matters related to municipal elections” to be local and municipal matters over which Denver, as a home rule municipality, exercises the “full right of self- government.” Pursuant to the foregoing constitutional authority, Denver's home rule charter, §8.2.15, provides that the regulation of campaign contributions and expenditures for candidates for office in the City and County of Denver shall be as provided in city ordinance. ‘The City and County of Denver has in fact adopted a set ofcomprehensive campaign finance laws applicable to its home rule offivers, as codified in Article 11] of Chapter 15 of the Denver Revised Municipal Code. Denver's campaign finance laws expressly include within the definition of “candidate” any Denver county court judge standing for retention. Denver's laws also define what is or is not a deemed a reportable campaign contribution and regulate the circumstances under which campaign committees must register and report. 9. ‘The Complaint in this case invokes the jurisdiction of the Colorado Secretary of State and relies entirely on alleged violations of Article XXVIII of the Colorado Constitution and related provisions of the Fair Campaign Practices Act (FCPA), Article 45 of Title 1, C.R.S, However, these constitutional and statutory provisions do not apply to the election of officers in home rule municipalities that have adopted their own local campaign finances ordinances. 10. Shortly after the adoption of Article XXVIII by Colorado voters in 2002, the Colorado Attorney General formally opined, inter alia: “In election matters of local concern, neither Article XXVIII of the Colorado Constitution nor the FCPA applies to home rule counties and municipalities which have charters or ordinances that already address the matters covered by Article XXVIII and the statute.” Formal Opinion of Attorney General Ken Salazar No. 03-1, (January 13, 2003). 11, The FCPA itself states: “The requirements of Article XXVIII of the state constitution and this article shall not apply to home rule counties or home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by Article XXVIII and this article.” § 1-45-116, C.R. 12, The Colorado Court of Appeals has confirmed that Article XXVIII and the FCPA are not applicable to a home rule municipality that has adopted its own campaign finance laws. Therefore, an administrative law judge acting on behalf of the Secretary of State can and should dismiss an FCPA complaint against a home rule officer for lack of subject matter jurisdiction. In re the complaint filed by the City of Colorado Springs, 277 P.3d 937 (Colo. App., 2012). WHEREFORE, the Respondent Denver County Court judges respectfully request that the complaint against them be dismissed for lack of subject matter jurisdiction, RESPECTFULLY SUBMITTED this 27" day of October, 2016. By: /s! David Broadwell David W. Broadwell, 12177 Attomey for the Respondents, Denver County Court Judges 3CERTIFICATE OF SERVICE, Thereby certify that today, October 27, 2016, I electronically served the foregoing Entry of Appearance on the following parties. Peter Coulter 151 Summer Street, #654 Morrison, CO 80465 ‘transparenteourts@ gmail.com Prose Complainant Matthew D. Grove, Assistant Solicitor General Christopher M. Jackson, Assistant Attomey General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6" Floor Denver, CO 80203 Attorneys for Respondents Colorado Judiciary, et al (s/ David W. Broadwell. City and County of Denver