STATE OF COLORADO

OFFICE OF ADMINISTRATIVE COURTS

1525 Sherman Street, 4th Floor
Denver, CO 80203
Peter Coulter,
Complainant,
v.
Colorado Judiciary et al.,
COURT USE ONLY

Respondents.
Martha M. Tierney, Atty Reg. #27521
TIERNEY LAWRENCE LLC
225 E 16th Avenue, Suite 350
Denver, CO 80203
Telephone:
(720) 242-7577
E-mail: mtierney@tierneylawrence.com

Case No. OS-2016-0024

ATTORNEYS FOR RESPONDENTS COLORADO

BROADCASTERS ASSOCIATION, JUSTIN SASSO,
104.3FM THE FAN
MOTION TO DISMISS OF THE COLORADO BROADCASTERS ASSOCIATION,
JUSTIN SASSO AND 104.3FM THE FAN
The Colorado Broadcasters Association (CBA), Justin Sasso, and 104.3FM THE FAN
(the FAN), through counsel Tierney Lawrence LLC, 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.
COLO.R.CIV. P. 121 1-15(8)
The CBA, Mr. Sasso, and the FAN, through undersigned counsel, conferred with
Complainant, Peter Coulter, in advance of filing this Motion to Dismiss. Undersigned counsel is
authorized to state that Complainant opposes the motion.
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INTRODUCTION
Mr. Coulter filed a campaign finance complaint arising out of a contract between the
Office of Judicial Performance and Evaluation (OJPE), and the Colorado Broadcasters
Association (CBA). The OJPE, which houses the Colorado Commission on Judicial
Performance, was 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).
It is entirely unclear from Mr. Coulters complaint whom he intends to capture as
respondents, and what violations of law his complaint alleges against each of the various
possible respondents. Mr. Coulter apparently finds fault in the contract between the CBA and
the OJPE, wherein the OJPE paid the CBA $50,000 to create and distribute Know Your Judge
public service announcements to publicize the availability of information about judicial retention
recommendations for those judges up for retention in the 2016 election. Mr. Coulter apparently
contends that when it entered into the contract with OJPE, the CBA became a political
committee under Colorado law and was required to register with the Colorado Secretary of State
and make regular disclosures. Complaint, 54-70. Mr. Coulter also apparently believes that
Mr. Sasso, as president and CEO of the CBA, and the FAN, as a radio station that allegedly ran
the public service announcements, also became political committees requiring registration and
disclosure.

For the reasons set forth below, Coulters complaint fails to state a claim upon which
relief may be granted against the CBA, Mr. Sasso and the FAN.
ARGUMENT
I.

Standard of review.
A complaint may be dismissed under Colo.R.Civ.P. 12(b)(5) for failure to state a claim

where the factual allegations do not, as a matter of law, support the claim for relief. Western
Innovations Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008). While the
allegations must be accepted as true, it is inappropriate to accept as true any legal conclusions
that are couched as factual allegations. Id. Claims may be dismissed where the substantive law
does not support the claims asserted. Id.
II.

The CBA, Mr. Sasso, and the FAN Are Not Candidates.

The CBA, Mr. Sasso, and the FAN are not candidates as defined in Colo. Const., art. XXVIII
2 (2), and thus, are not required to register candidate committees with the Colorado Secretary of
State (SOS), or file any reports required by candidate committees. See Colo. Const., art.
XXVIII, 2 (3); Colo. Rev. Stat., 1-45-108 (2016).
III.

The CBA, Mr. Sasso, and the FAN Are Not Political Committees.

The CBA, Mr. Sasso, and the FAN are not political committees as defined in Colo. Const.,
art. XXVIII 2 (12) and controlling Colorado case law, and thus, are not required to register as
political committees with the SOS, nor file any reports required by political committees. See see
also Alliance for Colorados Families v. Gilbert, 172 P.3d 964, 972-73 (Colo. App. 2007)
(applying major purpose test to political committee).

The Colorado Constitution defines "Political Committee" to mean 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 of one or more candidates. Colo. Const., art. XXVIII 2 (12). In
addition, the Colorado Court of Appeals has confirmed that only groups controlled by candidates
or which have a major purpose of electing candidates meet the definition of political
committee. Id. The CBA, Mr. Sasso, and the FAN are not political committees under Colorado
law.
A.

Mr. Sasso Is a Natural Person, Not a Political Committee.

Mr. Sasso is a natural person, which is expressly excluded from the definition of political
committee. Colo. Const., art. XXVIII 2 (12). As a result, Mr. Sasso has no obligation to
register as a committee or report any activity to the SOS. All claims against Mr. Sasso should be
dismissed.
B.

The CBA and the FAN Do Not Meet the Definition of Political Committees.

1.
The Described Activity Is Not a Contribution or Expenditure to
Support or Oppose the Nomination or Election of One or More Candidates.
CBA, Mr. Sasso and the FAN incorporate by reference the arguments articulated by the
State Judicial Defendants that the $50,000 spending on the contract with the CBA was not a
contribution or expenditure to support or oppose judicial candidates under Colorado Law. See
State Judicial Defendants Motion to Dismiss, pp. 8-11. These arguments make clear that the
$50,000 contract was not a contribution or an expenditure, and the radio announcements did not
support or oppose the nomination or election or one or more candidates. As a result, the CBA
cannot be required to register as a political committee based solely on the fact that it received
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money to run public service announcements that did not support, oppose, or mention any
candidates for public office. Colo. Const., art. XXVIII 2 (12); Colo. Rev. Stat. 1-45-108.
Additionally, the FAN cannot be required to register as a political committee based on its
running of a public service announcement that did not support or oppose, or even mention, any
candidate for public office. Id.
2.
The CBA and the FAN Do Not Have as a Major Purpose the Election
or Nomination of Judges.
Mr. Coulters complaint against the CBA and the FAN also fails because he has not
alleged and cannot establish that the CBA and the FAN have a major purpose of electing or
nominating candidates. Mr. Coulters complaint contains no allegations that either the CBA or
the FAN have the election or nomination of judges (or any candidates) as a major purpose. The
Supreme Court, in the landmark Buckley v. Valeo case, established that campaign finance
regulation should be tied to groups controlled by candidates or which have a major purpose' of
electing candidates. Buckley v. Valeo, 424 U.S. 1, 79-80 (1976).
In Alliance for Colorados Families v. Gilbert, the Colorado Court of Appeals, relying on
Buckley, made clear that a threshold issue for deciding a complaint alleging a group has violated
Colorado campaign finance law for failing to register and report as a political committee is
whether the group has as its major purpose the nomination or election of candidates. See Gilbert,
172 P.3d at 972-973; citing Fed. Election Comm'n v. Akins, 524 U.S. 11, 18, 27 (1998)
(concluding a group is not a "political committee" unless its "major purpose" is the nomination
or election of candidates).
Here, the substantive law does not support Mr. Coulters claims against the CBA, Mr.
Sasso, and the FAN, and therefore, they must be dismissed. Mr. Coulter has not alleged and
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cannot establish that the CBA and the FAN have a major purpose of electing or nominating
candidates, as required by Colorado law.
CONCLUSION
Based on the foregoing, Mr. Coulters complaint should be dismissed. It fails to establish
that the CBA, Mr. Sasso or the FAN meet the definition of a political committee or any other
type of committee that would be subject to campaign finance reporting requirements in
Colorado. Instead, 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, the CBA and the FAN cannot be political
committees under Colorado law. Mr. Sasso is a natural person and he cannot be a political
committee under Colorado law. All claims against the CBA, Mr. Sasso and the FAN should be
dismissed.

Respectfully submitted this 1st day of November, 2016.

TIERNEY LAWRENCE LLC

/s/ Martha M. Tierney

MARTHA M. TIERNEY, 27521

CERTIFICATE OF SERVICE
This is to certify that I electronically served the foregoing MOTION TO DISMISS OF
THE COLORADO BROADCASTERS ASSOCIATION, JUSTIN SASSO AND 104.3FM
THE FAN upon the following parties on November 1, 2016:
Peter Coulter
151 Summer Street, #654
Morrison, CO 80465
transparentcourts@gmail.com
Pro se Complainant
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
Matt.grove@coag.gov
christopherjackson@coag.gov
Attorneys for Respondents Colorado Judiciary, et al
David W. Broadwell, Assistant City Attorney
Department of Law City and County of Denver
1437 Bannock St. Room #353
Denver, CO 80202
david.broadwell@denvergov.org
/s/ Martha M. Tierney