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OFFICE OF ADMINISTRATIVE COURTS,

STATE OF COLORADO
1525 Sherman Street, 4th Floor
Denver CO 80203
______________________________________________________________________________

Complainant:
CAMPAIGN INTEGRITY WATCHDOG (CIW)
v.
Respondent:
COLORADO OFFICE OF JUDICIAL PERFORMANCE
EVALUATION (COJPE)
Attorney or Party Without Attorney (Name and Address):
Matthew Arnold, Pro Se for Campaign Integrity Watchdog
P.O. Box 372464, Denver CO 80237
(303) 995-5533
Email: campaignintegritywatchdog@gmail.com

COURT USE ONLY

Case No.: OS 2016-0026

RESPONSE TO MOTION TO DISMISS


COMPLAINANT, Campaign Integrity Watchdog LLC, pro se, respectfully submits this
Response to Motion to Dismiss in case OS 2016-0026, Campaign Integrity Watchdog (CIW)
v. Colorado Office of Judicial Performance Evaluation (COJPE). In support thereof,
Campaign Integrity Watchdog states as follows:
SUMMARY OF ARGUMENTS
This Response sets forth multiple defects regarding Respondent COJPEs Motion to Dismiss
submitted in case OS 2016-0026, Campaign Integrity Watchdog (CIW) v. Colorado Office of
Judicial Performance Evaluation (COJPE).
First, Respondent misrepresents the irreconcilable conflict between C.R.S. 1-45-117 and
C.R.S. 13-5.5-101 et seq which conflict is not between conflicting statutes, but rather between
a statute and the state constitution which expressly states that statutes in conflict or inconsistent
with the article are inapplicable to the matters covered and provided for in this Article.
Second, Respondent fundamentally misrepresents the nature of contribution as defined
under Colorado law. There is no necessary element of control or coordination in defining
contribution in constitutional or statutory language, rendering Respondents attempt to engraft
additional conditions on defining contribution legally frivolous and groundless.
Third, Respondents broadcast advertisements coupled with the campaign website expressly
advocating retention votes indisputably qualify as electioneering communications by law.
Fourth and finally, Respondents assertion that a one-time extraordinary appropriation of
some $50,000 in public funds to purchase advertisements and a campaign website involving the
retention of any person in public office qualifies for regular course and scope of business
exemption from the electioneering communications definition is risibly devoid of legal merit.

INTRODUCTION AND OVERVIEW OF RELEVANT FACTS


If the government becomes a law-breaker, it breeds contempt for the law. It invites every
man to become a law unto himself. Supreme Court Justice Louis Brandeis
In 1988, the General Assembly passed a law declaring that it is in the public interest to
establish a system of evaluating judicial performance that would simultaneously provide voters
with fair, responsible, and constructive information about judicial performance. Decades later,
the citizens and voters of Colorado continue to wait in vain for that mandate to be fulfilled.1
Subsequent to the 1988 law establishing the judicial performance evaluation commissions,
the Colorado electorate passed a constitutional amendment (Amendment 27, now Art. XXVIII)
providing for full and timely disclosure of campaign contributions, independent expenditures,
and funding of electioneering communications, and strong enforcement of campaign finance
requirements.2 The constitutional amendment expressly established precedence in all matters
covered and provided for in the Article related to campaign finance law.3
A. Relevant Facts
Respondent does not dispute the fact that COJPE used public funds to run broadcast
TV/radio advertisements in the weeks leading up to the 2016 general election, and that the
advertisements directed the viewing/listening audience to the www.gettoknowyourjudge.com
website established exclusively as part of the [electioneering] communications campaign.4
Respondent does not dispute the fact that the broadcast advertisements contained language
exhorting the audience to vote for judges and each concluded with your vote matters.
Respondent does not dispute the fact that the website completing the communications led the
viewer to named candidates for judicial office and provided recommendations which expressly
advocated a retain or (in two instances in two different counties, only) a do not retain vote.
Respondent does not dispute the fact that funds were appropriated and disbursed for the
communications campaign subsequent to the registration and activity of a political committee
(Transparent Courts)5 advocating against retention of judges appearing on the 2016 ballot.
Respondent does not dispute the fact that COJPE has never before appropriated and spent
public funds for broadcast advertisements to push voting recommendations to the electorate.
See the extensive documentation of bias, violation of policy and governing rules, and failure to provide fair,
responsible, and constructive information about judicial performance in the campaign finance complaint filed by
Peter Coulter (OS 2016-0024, dismissed for failure to designate proper Respondents to the complaint).
2
See Colo. Const. Art. XXVIII, Section 1 Purpose and Findings
3
See Colo. Const. Art. XXVIII, Section 11 Conflicting provisions declared inapplicable
4
The www.gettoknowyourjudge.com website re-directs to the http://www.coloradojudicialperformance.gov/
website without any input or action from the viewer.
5
The Transparent Courts political committee registered 6 May 2016 and commenced advocacy thereafter
http://tracer.sos.colorado.gov/PublicSite/SearchPages/CommitteeDetail.aspx?OrgID=31330
1

STANDARD OF REVIEW
a. Respondents Motion to Dismiss is predicated on alleged failure to state a claim upon
which relief may be granted per C.R.C.P. Rule 12(b)(5). A section (b)(5) motion to dismiss
tests the sufficiency of the complaint. In assessing such a motion a court must accept all matters
of material fact in the complaint as true and view the allegations in the light most favorable to
the plaintiff and may grant the motion only if the plaintiff's factual allegations cannot support a
claim as a matter of law. Asphalt Specialties, Co. v. City of Commerce City, 218 P.3d 741 (Colo.
App. 2009); Verrier v. Colo. Dept. of Corr., 77 P.3d 873 (Colo. App. 2003); Sweeney v. United
Artists Theater Circuit, Inc., 119 P.3d 538 (Colo. App. 2005); Allen v. Steele, 252 P.3d 476
(Colo. 2011).
b. Motions to dismiss for failure to state a claim are viewed with disfavor and are rarely
granted under "notice pleadings. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Dunlap
v. Colo. Springs Cablevision, Inc., 829 P.2d 1286 (Colo. 1992); Story v. Bly, 217 P.3d 872 (Colo.
App. 2008), aff'd, 241 P.3d 529 (Colo. 2010); Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo.
2011).
c. In ruling on a motion to dismiss for failure to state a claim, the trial court must accept the
facts of the complaint as true and determine whether, under any theory of law, plaintiff is
entitled to relief. If relief could be granted under such circumstances, the complaint is sufficient.
Schlitters v. State, 787 P.2d 656 (Colo. App. 1989); Chidester v. Eastern Gas & Fuel Assoc., 859
P.2d 222 (Colo. App. 1992); Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095 (Colo.
1995); Flatiron Linen, Inc. v. First Amer. State Bank, 1 P.2d 244 (Colo. App. 1999), rev'd on
other grounds, 23 P.3d 1209 (Colo. 2001); W.O. Brisben Co., Inc. v. Krystkowiak, 66 P.3d 133
(Colo. App. 2002), aff'd on other grounds, 90 P.3d 859 (Colo. 2004); Dotson v. Dell L.
Bernstein, P.C., 207 P.3d 911 (Colo. App. 2009).
d. Respondents argument to dismiss CIWs First Claim for Relief is predicated on a faulty
reading of statutory precedence. Respondent misrepresents the irreconcilable conflict as being
between statutes, rather than (as is actually the case) between a statute and the state constitution.
Since constitutional provisions take precedence over statute (particularly where, as here, specific
constitutional language declaring [a]ny provisions in the statutes of this state in conflict or
inconsistent with this article are hereby declared to be inapplicable to the matters covered and
provided for in this Article exists), Respondents argument fails as a matter of fact and law.
e. Respondent also misrepresents the applicable definition of contribution and attempts to
encumber the constitutional definition with language from an entirely different (thus inapposite)
subsection (which, by its plain language, refers to expenditures rather than contributions).
f. Respondent misconstrues or misrepresents the nature of electioneering communications
at issue by focusing exclusively on part of the overall communication (the broadcast element),
while ignoring the necessary completing part of the communication (the online element) without
which the communication would either be rendered meaningless or (ironically) contains words
of express advocacy (vote for and your vote matters) sufficing to qualify as electioneering.
g. Finally, Respondent misrepresents the communications at issue as part of the regular
scope of COJPEs business a material fact vigorously disputed by Complainant and thus not
qualifying or valid as grounds for a 12(b)(5) motion to dismiss CIWs Second Claim for Relief.

ARGUMENT
I. The Court should deny Respondents Motion to Dismiss in its entirety, with prejudice,
for failing to meet the standards required of a 12(b)(5) motion, misrepresenting relevant
facts, and relying upon flawed interpretations of applicable law.
II. COJPE did violate C.R.S. 1-45-117 limiting electoral activity by state entities
The Court should deny Respondents Motion to Dismiss CIWs First Claim for Relief for
two reasons. First, COJPE misrepresents the irreconcilable conflict as between state statutes,
when the conflict in fact exists between a state statute and the state constitution, which not only
takes precedence as a matter of general application, but due to specific and express language
declaring conflicting provisions of state statute inapplicable to matters under the Article.
Second, COJPEs paid communications are contributions to judicial candidates as defined per
relevant provisions of the Colorado Constitution and per precedent set by this Court.
A. Article XXVIII and enabling statutes take precedence over Article 5.5
COJPE misrepresents the clearly irreconcilable conflict between C.R.S. 13-5.5-101 et seq
and C.R.S. 1-45-117 as one between two statutory provisions. However, such representation
omits the significant and relevant fact that C.R.S. 1-45-117 is simply part of the enabling statute
of a constitutional article (Art. XXVIII) and the article specifically and unambiguously addresses
the issue of precedence on the matters covered and provided for in this Article.
Specifically, Colo. Const. Art. XXVIII Section 11 states, in clear and unambiguous language:
Section 11. Conflicting provisions declared inapplicable.
Any provisions in the statutes of this state in conflict or inconsistent with this article are
hereby declared to be inapplicable to the matters covered and provided for in this Article.
[Emphasis added]
Consequently, Respondents entire line of argument regarding whether the special or local
provision prevails in reconciling statutory provisions in irreconcilable conflict6 is completely
inapposite to analysis of the issues before this Court since the conflict is not merely between
two statutes, but between a statutory provision and a provision of the state constitution.
In such instances, the constitutional provision is controlling not the statute.
It is indisputable that the manifest intent is that the constitutional language will prevail
particularly given the express language of the Constitutions Article XXVIII Section 11, which
was enacted by referendum subsequent to the creation of judicial performance commissions.
Later addenda or modifications of the statute creating the commissions cannot subvert or nullify
the precedential constitutional language.
Consequently, to the extent that Article 5.5 requires any COJPE activity in conflict or
inconsistent with this article, including appropriating and disbursing public funds to [c]onduct
public education efforts concerning retention recommendations that activity is prohibited and
unconstitutional, as applied; the Constitution takes precedence over statute, and controls here.
6

Even if it were only statutes in conflict, COJPE misrepresents the timing and precedence of the conflicting statutes,
since C.R.S. 1-45-117(1)(a)(I) was amended in 2010, after enacting 13-5.5-101.5, and is thus the later adoption with
manifest intent that the later provision prevails. See section 1 of chapter 269, Session laws of Colorado 2010.

The section, and prohibitions on the use of public funds to influence the outcome of elections
generally, has been extensively annotated, with a veritable plethora of applicable case law.
The purpose of this section is to prohibit the state government and its officials from
spending public funds to influence the outcome of campaigns for political [incl. judicial] office
or ballot issues. Colo. Common Cause v. Coffman, 85 P.3d 551 (Colo. App. 2003), affd, 102
P.3d 999 (Colo. 2004)
While the term public moneys is not defined, the allinclusive language from any source
indicates that the general assembly intended an expansive definition of the term. Thus, the term
public moneys may not be construed to refer only to sums realized from the imposition of
taxes. Denver Area Labor Fedn v. Buckley, 924 P.2d 524 (Colo. 1996).
This section prohibits the use of public moneys from any source, not just the use of public
funds. The general assembly thus selected a phrase not previously construed in seeking to limit
the expenditure of funds by various government entities for certain purposes. Denver Area
Labor Fedn v. Buckley, 924 P.2d 524 (Colo. 1996).
This section tends to promote public confidence in government by prohibiting the use of
moneys authorized for expenditure by political subdivisions for specified public purposes to
advance the viewpoint of one group over another. Denver Area Labor Fedn v. Buckley, 924
P.2d 524 (Colo. 1996).
This section allows an employee with policy-making responsibility to expend public funds up
to the $50.00 limit in expressing an opinion about a pending ballot issue. However, funds spent
in excess of the $50.00 limit violate the provisions of this section. Regents of the Univ. of Colo.
v. Meyer, 899 P. 2d 316 (Colo. App. 1995). See also Coffman v. Colo. Common Cause, 102 P.
3d 999 (Colo. 2004)
Press releases or educational efforts advocating a position on questions appearing on the
ballot violate this section. Press releases that are not balanced factual summaries violate the
provisions of this section. Colo. Common Cause v. Coffman, 85 P.3d 551 (Colo. App. 2003),
affd, 102 P.3d 999 (Colo. 2004)
A brochure mailed to voters that did not present arguments both for and against violates this
section. Taking a position exclusively in favor of one vote (for or against) is in violation.
Skruch v. Highlands Ranch Metro. Dists., 107 P. 3d 1140 (Colo. App. 2004)
As the previous case law citations and references make clear, the legislative intent, amended
and affirmed in 2010, was broadly intended to strictly limit and constrain any use of public funds
to influence the outcome of campaigns expressly including campaigns (either for or against)
involving the nomination, retention, or election of any person to any public office.
Particularly given the fact that COJPE was in direct competition with a citizen-led committee
advocating for the opposite outcome in statewide campaigns unambiguously involving retention
of any person to any public office, COJPEs (mis)appropriation of public funds stands in clear
violation of the express letter and clear intent of the law.

B. COJPEs advertisements and campaign website are contributions defined in law


As noted in CIWs Complaint (22), C.R.S. 1-45-117 (State and political subdivisions limitations on contributions) states in relevant part:
(1) (a) (I) No agency, department, board, division, bureau, commission, or council of the state
or any political subdivision of the state shall make any contribution in campaigns involving the
nomination, retention, or election of any person to any public office, nor shall any such entity
make any donation to any other person for the purpose of making an independent expenditure,
nor shall any such entity expend any moneys from any source, or make any contributions, to
urge electors to vote in favor of or against any (as amended in the 2010 legislative session)
Respondent urges the Court to focus narrowly on a single word (contribution) to the
exclusion of the context and meaning of the provision as a whole. However, in interpreting
statutory language, the Court must regard applicable statutory provisions as a whole in order to
accord consistent, harmonious, and sensible effect to all their parts. Francen v. Colo. Dept of
Revenue, 328 P.3d 111, 114 (Colo. 2014) citing People in the Interest of W.P., 295 P.3d 514, 519
(Colo. 2013); Moffett v. Life Care Cts. Of Am., 219 P.3d 1068, 1072 (Colo. 2009).
Taken as a whole, it is clear that the legislative intent of C.R.S. 1-45-117 et seq (enacting and
implementing Colo. Const. Art. XXVIII) is to prohibit any taxpayer-funded government entity
from competing with voters or citizen groups, using their own tax money, in political campaigns
(including, as expressly stated, campaigns involving the retention of persons in public office).
It is a fundamental principle of democratic institutions and representative government that
the citizens should not have to compete against their own government (with nearly inexhaustible
resources, taken from the citizens themselves) in any election, issue, or question on the ballot.
Particularly given the facts of the recently concluded election cycle in which a citizen, in
full compliance with the law, formed and registered a political committee to advocate for the
non-retention of judges appearing on the 2016 ballot, and only after said political committee was
formed, registered, and began electoral advocacy activities did COJPE (departing from business
as usual practice) appropriate and disburse public funds in opposition to this citizen committee
it cannot be disputed that COJPE acted in violation of both the letter and clear intent of the law.
The lack of merit in Respondents position is further exacerbated by its misrepresentation of
the constitutional definition of contribution which Respondent admits includes, inter alia,
[a]nything of value given, directly or indirectly, to a candidate for the purpose of promoting the
candidate's nomination, retention, recall, or election. Colo. Const. Art. XXVIII 2(5)(a)(IV).
Respondent misrepresents purported encumbrances on the definition of contribution
supposedly found in the definition of independent expenditure (Art. XXVIII 2(9) which
does not address the definition of contribution at all). By plain language reading of the
constitutional language, 2(9) applies solely to expenditures and does not (and cannot)
otherwise limit the term contribution as defined in an entirely separate constitutional provision,
Art. XXVIII 2(5).
It is simply false to state, or attempt to read into the definition, that a contribution must
be controlled by or coordinated with the candidate to count as such for disclosure purposes.
That wording is simply not contained in any constitutional, statutory, or regulatory language;
Respondent simply invents the supposed restriction from whole cloth.

Consequently, when COJPE paid for television and radio ads exhorting the audience to vote
for judges and directing them to recommendations expressly advocating retain or do not
retain votes for candidates seeking retention in judicial office, the advertisements (inclusive the
completing segment of the communication containing express advocacy to support or oppose
the retention of candidates by name reached via the www.gettoknowyourjudge.com website
established expressly for the campaign), it provided a thing of value to the candidates.
As this Court has found (see OS 2015-0015 Barela v. Liberty Common School), even absent
coordination with a candidate, such communications qualify as activity giving a thing of value
to the candidate, namely favorable publicity that was given indirectly for the purpose of
promoting the candidates [retention] election. OS 2015-0015 FAD at 1
It would be entirely inconsistent to find that a single Facebook link to a single article that
contained content favorable to a single candidate, absent any evidence or claim of coordination
with that candidate, constitutes a contribution as giving a thing of value to the candidate,
namely publicity and that said single Facebook posted link was given indirectly to [candidate]
for the purpose of promoting [candidates] election but conversely find that a massive campaign
involving multiple variants of broadcast advertisements disseminated to tens if not hundreds of
thousands of TV viewers and radio listeners on multiple TV/radio stations does not.
Such a finding would be even more inconsistent given that the finding of Liberty Commons
contribution noted that [n]o public money was otherwise spent to make these postings stands
in marked contrast to the undisputed fact that COJPE appropriated and spent some $50,000 in
public funds for their electoral advocacy campaign to vote for judges on the 2016 ballot.
It would be entirely inconsistent to reach any other finding but that COJPEs advertisements
and campaign website constituted favorable publicity to judges appearing on the 2016 ballot, and
thus benefited from a thing of value given indirectly by COJPE to judicial retention candidates
(particularly given the readily available calculation of the value from the $50,000 COJPE spent).
Similarly, the fact that the thing of value was given for the purpose of promoting retention
of judges appearing on the 2016 ballot can be readily ascertained both from the wording of the
advertisements (containing unambiguous vote for judges language arguably qualifying as
express advocacy pursuant to the Buckley v. Valeo magic words test) and the unambiguous
recommendations reached via the www.gettoknowyourjudge.com campaign website to either
retain (in nearly all cases) or do not retain (in the case of two judges in 2 different counties,
only) the judges appearing on the 2016 ballot.
Just as in the Liberty Common case, running advertisements posting the link to the COJPE
www.gettoknowyourjudge.com campaign website had the effect of giving predominantly
positive public exposure to judges seeking retention and closing the loop with unambiguous,
express advocacy to (mostly) retain or (in only 2 instances) do not retain named candidates.
The advertisements and campaign website indisputably had the effect of drumming up support
for the judicial candidates; the reach of broadcast media and the internet is very wide.

III. COJPE did conduct electioneering communications


Respondents bid to dismiss CIWs Second Claim for Relief should also be denied. COJPE
misrepresents the nature of the communications at issue, which (seen as a whole, not just in part)
unambiguously refer to candidates, meeting the electioneering communication definition per
Colo. Const. Art. XXVIII 2(7)(a). In addition, COJPE misrepresents material fact in dispute,
asserting (contrary to the record) that the advertisements and www.gettoknowyourjudge.com
campaign website were published in the regular course and scope of COJPEs business.
A. COJPEs communications unambiguously referred to candidate(s) on the ballot
Respondent admits that COJPEs advertisements and the www.gettoknowyourjudge.com
campaign website were disseminated within 60 days before a general election to an audience that
included members of the electorate (indeed, they were specifically intended and targeted to that
specific purpose). See Colo. Const. Art. XXVIII 2(7)(a)(II) and (III). Contra Respondents
tortured narrowing of the scope of COJPEs communications to include only the broadcast
element of the communication, however, the communications were only completed and imbued
with content once the voter closed the loop with the websites specific reference to candidates.
COJPEs electioneering communications were bifurcated between the TV/radio broadcasts
and completed by the www.gettoknowyourjudge.com campaign website both paid for by the
public funds specifically appropriated by COJPE for that purpose in Summer (August?) 2016.
The TV/radio broadcasts were simply the prefatory or prepositional phrase of the complete
communication; they were the windup to the pitch of COJPEs advocacy for judges.
Considered in isolation, the broadcasts exhorted the audience to vote for judges, and
directed voters (reminding them that your vote matters) to the www.gettoknowyourjudge.com
campaign website for specifics (including the near-universal recommendation to retain all of
the judges appearing on the 2016 general election ballot.
Specifically, the 15-second variant of the broadcast portion states, in relevant part:
Voting for judges is extremely important to all Coloradans. Find out more at get to know
your judge dot com. Concluding, your vote matters.
The 30-second variant of the broadcast portion states expands only slightly on the theme:
Everybody knows the presidential election is important.
But when has the president dismissed your traffic ticket or decided your child custody case?
Voting for judges is extremely important to all Coloradans. Come election day, you play an
important role. Its your job to retain (or dismiss) judges.
Find out more at get to know your judge dot com. Again concluding, your vote matters.

The 60-second ad variant stays consistent with the voting for judges messaging:
Everybody knows the presidential election is important.
But when has the president dismissed your traffic ticket or decided your child custody case?
Voting for judges is extremely important to all Coloradans. Come election day, you play an
important role. Its your job to retain (or dismiss) judges.
Find out more at get to know your judge dot com. Get the simple, impartial, nonpartisan facts.
You have the right to decide which of our state court judges should stay at their jobs (and which
shouldnt).
Your vote for judges ensures our courts uphold the highest standards of fairness and integrity.
The rights of all of us are at stake if our courts dont work.
Dont just guess about judges do your part.
Get the simple, impartial, nonpartisan facts. Visit get to know your judge dot com.
Election day is Tuesday November 8th. Know your judge; vote your judge.
Two elements are consistent across variants: the exhortation to vote for judges appearing
on the 2016 general election ballot, and the exhortation to visit www.gettoknowyourjudge.com
(COJPEs campaign website domain purchased exclusively for the advertising campaign) for the
specific simple facts about judges appearing on the 2016 general election ballot.
Applying the plain language of the Buckley magic words test to the broadcast portions of
the COJPE communications arguably suffices to meet the electioneering communications and
express advocacy definitions, given the use of the phrase vote for (among the magic words
listed in the Buckley ruling) and explicit reference to Election day and your vote matters.
Even absent such a finding, however, there can be no dispute that the communication is
incomplete without closing the loop via the www.gettoknowyourjudge.com campaign website
containing specific recommendations (expressly advocating a retain or do not retain vote).
Similar to the finding in OS 2010-0009 (Colorado Ethics Watch v. Clear The Bench Colorado,
Final Agency Decision at 3), the discussion of voter education [in the broadcast portion of the
communications] is simply the windup to the pitch that certain [judges] must be retained.
There is no evidence that the communications campaign had any independent purpose of voter
education disconnected from the November 2016 general election (since ads ceased post-vote).
Similarly, even if the broadcast portion of the communications (the windup to the pitch)
failed to list the different slate of candidates for each judicial district, the campaign website did
list each district (and county) slate of judges; unambiguously named each judicial candidate;
and expressly advocated a retain or (in 2 instances out of 109 judges) a do not retain vote.
There can be no dispute that the totality of COJPEs communications not only included the
vote for language listed in the Buckley magic words test for express advocacy, but also
unambiguously referenced the 8 November general election, named specific candidates on the
campaign website voters were exhorted to use, and expressly advocated votes for each candidate.

Respondent attempts to mislead the Court by citation to another campaign finance complaint
against a privately-funded organization that had launched a statewide effort urging voters to
Know Your Judge by running advertisements with some similarities to the COJPE broadcasts.
COJPEs Ex. A, OS 2010-0047 Order Granting Summary Judgment and Final Agency Decision.
However, the facts of that case (and the communications at issue) depart significantly and, CIW
asserts, dispositively from those in the instant case now before this Court.
First, the ALJ found that the Know Your Judge campaigns communications and website
were on their face neutral; Know Your Judge did not use magic words such as vote for or
vote against or substantially similar or synonymous words, and did not include an express
exhortation to take action (i.e. to vote). OS 2010-0047 FAD at 24.
In contrast, the COJPE broadcasts did include use of the magic words such as vote for
and specifically referenced the November general election (which Know Your Judge avoided)
and expressly encouraged voters to take action your vote matters.
Second, the ALJs decision in that case was predicated in part on the fact that the campaign
communications by the Know Your Judge consortium included a link to a website controlled,
operated, populated with content, and maintained by a distinctly separate entity. In contrast, the
COJPE communications were controlled soup to nuts by the same entity, which both designed,
produced, and disseminated the broadcast portions of the communications as well as purchasing,
operating, and maintaining the www.gettoknowyourjudge.com campaign website closing the
loop of the communications (taking it from the broadcast windup to the pitch to the websites
delivery to home plate) containing unambiguous reference to candidates and urging a vote.
Also in contrast to the Know Your Judge communications which the ALJ found merely
provided a link to the COJPE website without urging action, the COJPE broadcasts not only
referred voters to a website specifically purchased, operated, and maintained by COJPE itself,
but also urged voters to Know your judge vote your judge based on the websites retain
(or, in two instances, do not retain) recommendations while explicitly reminding them that
your vote matters.
Consequently, because the COJPE communications (consisting both of broadcast portions
and the campaign website content) (a) included use of the magic words to vote for (in the
broadcast portion) and retain (in the website portion); (b) included an express exhortation to
take action (Know Your Judge vote your judge) and your vote matters; and (c) controlled
the entirety of the communication chain from broadcast start (windup to the pitch) to website
finish (expressly advocating a retain or, in two instances, a do not retain vote); the COJPE
communications stream, viewed as a whole, qualifies as electioneering communications as
defined in Colo. Const. Art. XXVIII 2(7)(a) et seq, meeting each of the elements of the law.

B. The advertisements were NOT in the regular course and scope of COJPEs business
Finally, COJPEs advertisements were assuredly NOT in the regular course and scope of
[COJPEs] business and thus fail to qualify for the exemption under Colo. Const. Art. XXVIII
2(7)(a)(III) applying primarily to membership organizations which COJPE is assuredly not.
Respondents citation to the Court of Appeals holding that the course and scope exception
applies to persons whose business it is to broadcast, print, publicly display, directly mail, or
hand deliver candidate-specific communications as a service, rather than to influence elections
(Colo. Citizens for Ethics in Govt v. Commn for the Am. Dream, 198 P. 3d 1207, 1216 (Colo.
App. 2008) is risibly devoid of legal relevance, since COJPE is clearly not a service entity or
vendor, and its communications were clearly to influence elections with public funds, no less.
COJPE states that it is statutorily required to educate the public about the state and district
commissions work in evaluating judges pursuant to C.R.S. 13-5.5-101.5(3)(d). However, not
only do the communications at issue fail to educate the public about the commissions work,
the only reasonable interpretation of COJPEs failure to conduct such education during the ten
plus months of the year NOT directly preceding an election is that such communications were
intended to influence the election rather than educate the public about the commissions work.
CIW disputes the material fact of the course and scope of COJPEs education activity as a
regular part of the organizations activities. CIW propounded interrogatories asking COJPE to
identify any COJPE appropriations/disbursements for advertisements, educational efforts,
outreach, public service announcements or similar spending, including amount/source of
funds and medium of communications used, in any other election cycle or at any other time. For
COJPEs claim that the communications were part of its regular course and scope of business
to hold any water, it would have to substantiate that such communications were conducted at
some other time than in the weeks directly preceding this years general election. It cannot,
because the get to know your judge communications campaign was in fact unique to this year.
This fact is further substantiated by the fact that COJPE secured the appropriation of funds
(some $50,000) only this Summer (on information and belief, July or August of this year) and
such appropriation was outside the regular course and scope of the organizations activities.
Moreover, the fact that such appropriations were made only subsequent to the registration and
activity of a citizen-initiated political committee advocated against retention of judges appearing
on the 2016 ballot (the Transparent Courts political committee registered on 6 May 2016)
makes clear that the communications at issue were in reaction to outside events (existence and
activity of a group opposing judicial retention).
It is simply risible to assert, as Respondent argues, that COJPE is a service organization;
that its activity was not intended to influence elections; and that the extraordinary appropriation
of an extra $50,000 in public funds to launch broadcast advertisements and a campaign website
were in any way part of the organizations regular course and scope of business.

CONCLUSION
Respondents Motion to Dismiss fails in every regard to substantiate grounds for a 12(b)(5)
dismissal of CIWs allegations and Claims for Relief presented in its Complaint.
CIWs Complaint plausibly alleges that COJPE violated the C.R.S. 1-45-117 prohibition on
use of public funds to influence elections; CIWs Response decisively refuted COJPEs failed
argument that the statute establishing the review commissions and COJPE directors duties takes
precedence over the state constitution and enabling statutes specifically establishing primacy in
the matters covered and provided for in this Article [XXVIII]. CIWs Response similarly and
equally decisively refuted COJPEs argument that the constitutional definition of contribution
does not count for the purpose of assessing COJPEs use of $50,000 public funds appropriated
specifically to influence elections in counter to a citizen-led political committee espousing views
opposed to those advocated by COJPE involving retention of any person in public office.
CIWs Complaint also plausibly alleges that COJPEs communications combining broadcast
advertisements and campaign website qualify as electioneering communications as defined per
Colo. Const. Art. XXVIII 2(7)(a) et seq. CIWs Response demonstrates the communications,
viewed as a whole, meet each of the elements qualifying for electioneering communications
and decisively refuted COJPEs risibly meritless argument that its extraordinary appropriations
of $50,000 in public funds just before an election (and after registration of an opposing group)
could possibly be considered actions in the regular course and scope of business for COJPE.
Consequently, the Court should (indeed, must) deny Respondents Motion to Dismiss and
proceed with factual discovery (particularly given remaining material facts in dispute) and
consideration of the Complaint on its merits.
Respectfully submitted this 9th day of December, 2016.

___/signed/ Matt Arnold________________


MATTHEW ARNOLD, pro se for
Campaign Integrity Watchdog
P.O. Box 372464, Denver, Colorado 80237

CERTIFICATE OF SERVICE
The undersigned hereby certifies service of the foregoing RESPONSE TO MOTION TO
DISMISS by electronic filing (CaseConnect) or by electronic mail, as indicated on this 9th day of
December 2016, addressed to the following:

Office of Administrative Courts


1525 Sherman Street 4th Floor
Denver, CO 80202

Electronically filed via CaseConnect

Christopher M. Jackson, #49202


Assistant Solicitor General*
1300 Broadway, 6th Floor
Denver, CO 80203
Phone: (720) 508-6157
Email: christopher.jackson@coag.gov

E-mail

___/signed/ Matt Arnold________________


MATTHEW ARNOLD, pro se for
Campaign Integrity Watchdog
P.O. Box 372464
Denver, Colorado 80237