STATE OF COLORADO

OFFICE OF ADMINISTRATIVE COURTS

1525 Sherman Street, 4th Floor, Denver, Colorado 80203

CAMPAIGN INTEGRITY WATCHDOG

Complainant,
COURT USE ONLY
vs.
CASE NUMBER:
COLORADO OFFICE OF JUDICIAL PERFORMANCE OS 20160026
EVALUATION,
Respondent.
ORDER GRANTING MOTION TO DISMISS AND DECISION
This matter is a complaint pursuant to the Fair Campaign Practices Act (FCPA),
Section 1-45-101, C.R.S., et seq. and Colo. Const. art. XXVIII, sec. 9. On November 23,
2016 the Respondent (Office) moved to dismiss. The Office is referred to as COJPE
in the submissions by the parties. On December 13, 2016, the Complainant responded
in opposition. On December 19, 2016 the Office moved to file a reply and submitted a
reply with its motion. The ALJ grants the motion to submit a reply and has considered it.
On December 23, 2016 the Complainant submitted a response containing substantive
argument. The ALJ has considered that response as well.
The Office asserts that the complaint fails to state a claim and relies on C.R.C.P.
12(b)(5) for its motion to dismiss. The Colorado Rules of Civil Procedure, the rules of
procedure in the district courts, apply to the extent practicable in administrative hearings.
Section 24-4-105(4), C.R.S. A complaint must contain sufficient factual matter, accepted
as true, stating a claim plausible on its face. Warne v. Hall, 373 P.3d 588, 589-590 (Colo.
2016). This is a more vigorous standard of review for complaints than the no set of facts
standard it replaced. Id. The ALJ grants the motion to dismiss. This case is therefore a
decision per Colo. Const. art. XXVIII, sec. 9(2)(a).1
The Office is established in the state judicial department per Section 13-5.5-101.5,
C.R.S. One of its duties is to conduct public education efforts concerning the judicial
performance evaluation process and recommendations for the retention of the judges in
elections. Section 13-5.5-101.5(3)(d). The recommendations to retain or not are made
by the state and district commissions on judicial performance as these are described in
Sections 13-5.5-102 and 104, C.R.S. Sections 13-5.5-102 and 103 describe the state
commission and its duties. Its role is to evaluate appellate justices and judges using the
1

Some of the issues in this case were also determined in, Peter Coulter v. Colorado Judiciary, et al.,
OAC case no. OS 20160024, decided November 28, 2016. That case may be searched for at the
Colorado Secretary of States TRACER website at
http://tracer.sos.colorado.gov/PublicSite/SearchPages/ComplaintSearch.aspx, or compressed to:
http://bit.ly/2hsxOGx.

criteria at Section 13-5.5-105.5(1), C.R.S. The state commission supervises the Office.
Section 13-5.5-101.5(3), C.R.S.
District commissions evaluate county and district judges using the criteria at
Section 13-5.5-105.5(2), C.R.S. They then forward their recommendations to the state
commission. Sections 13-5.5-104 and 105. The state commission issues a narrative and
makes one of only three recommendations for each appellate justice or judge it reviews:
retain, do not retain or no opinion. Section 13-5.5-106(1)(b), C.R.S. The state
commission also releases the narrative and the recommendation of the district
commissions, using the same three descriptors. Section 13-5.5-106(2)(c). The parties
agree that in the November 2016 election, the state and district commissions
recommended the retention of 107 judges or justices and the non-retention of two.
The complaint alleges that the Office spent $50,000 to publicize a government
website where recommendations as to the retention or non-retention of judges in the
November 2016 election were posted. Per the complaint, the money spent by the Office
is a contribution in the campaigns for those justices and judges for whom a retain
recommendation was made. The Office does not dispute that it spent money to promote
the website. It asserts that this was part of its official duties.
First Claim for Relief
The complaints first claim for relief is that the spending by the Office was prohibited
by Section 1-45-117(1)(a)(I), C.R.S., which provides:
(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:
(A) Statewide ballot issue that has been submitted for the
purpose of having a title designated and fixed pursuant to
section 1-40-106 (1) or that has had a title designated and
fixed pursuant to that section;
(B) Local ballot issue that has been submitted for the purpose
of having a title fixed pursuant to section 31-11-111 or that
has had a title fixed pursuant to that section;
(C) Referred measure, as defined in section 1-1-104 (34.5);
(D) Measure for the recall of any officer that has been certified
by the appropriate election official for submission to the
electors for their approval or rejection. [Italics added.]
It is only the italicized language that is at issue in this case. The retention of judges
is not a statewide ballot issue, a local ballot issue, a referred measure, or a measure for
2

the recall of any officer as described in subparts (1)(a)(I)(A) through (D). The Complainant
also has not alleged a donation for the purpose of making an independent expenditure.
The parties agree, as does the ALJ, that it is the definition of contribution that is
key. Section 1-45-103(6)(a) references the definition of contribution in section 2(5) of
article XXVIII of the state constitution.2 That definition provides:
(5)(a) Contribution means:
(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;
(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;
(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;
(IV) Anything of value given, directly or indirectly, to a
candidate for the purpose of promoting the candidates
nomination, retention, recall, or election. [Italics added.]
Only subsection (IV) is at issue; there is no allegation of a contribution to any
candidate committee, issue committee, political committee, small donor committee, or
political party. The allegation is that the retain judges were provided a thing of value for
the purpose of promoting their retention. A candidate includes a judge. Colo. Const.
art. XXVIII, sec. 2(2).
The complaint sets up a conflict between two statutes: Section 13-5.5-101.5(3)
and Section 1-45-117(1)(a)(I). The first sets out the duties of the Office, including at
subsection 101.5(3)(d), its duty to conduct public education efforts concerning the judicial
performance evaluation process and recommendations for the retention of the judges in
elections. Again, Section 1-45-117(1)(a)(I) prohibits state agencies from making
contributions in elections. The duties of the Office at Section 13-5.5-101.5 are set out in
a special provision, while Section 1-45-117(1)(a)(I) is a general provision applicable to all
state and political subdivisions of the state. While Section 1-45-117 references definitions
in the constitution, both it and Section 13-5.5-101.5 are statutory provisions. When a
special provision conflicts with a general one, they are to be construed, if possible, so that
effect is given to both. Section 2-4-205, C.R.S.
Employing this rule of statutory construction, the ALJ concludes that the activities
of the Office do not promote by publicizing the recommendations of the state and district
commissions. Some judges receive recommendations for retention, others do not. There
is no allegation that the recommendations by the state and district commissions failed to
The submissions by the parties dispute whether this definition of contribution requires control or
coordination by the candidate. The ALJ has not found it necessary to resolve this dispute in granting the
motion to dismiss.
2

comply with the process for judicial performance evaluation set out at Section 13-5.5105.5. Statutes should be harmonized in their interpretation. People in Interest of E.,
645 P.2d 271 (Colo. 1982). Employing this rule of construction, a recommendation to
retain certain judges made per the process at article 5.5 of title 13 is not for the purpose
of promoting the candidates retention at art. XXVIII, sec. (5)(a)(IV).
Section 2-4-205 provides further that if the conflicting provisions cannot be
reconciled, the special provision prevails as an exception to the general provision, unless
the general provision is the later adoption and the manifest intent is that the general
provision prevail. Section 13-5.5-101.5 is the later provision. The FCPA was repealed
and reenacted upon proclamation of the Governor January 15, 1997. Section 1-45-101,
C.R.S. The Office was created in 2008. 2008 Colo. Sess. Laws 1271. Also, article 5.5
of title 13 was extensively modified by legislative changes in 2008. 2008 Colo. Sess.
Laws, pp. 1272-7 and pp. 1280-1284. Section 1-45-117(1)(a)(I) has not been altered
since its repeal and reenactment in 1997. Nor is there any indication of an intent on the
part of the General Assembly that the general provision, Section 1-45-117(1)(a)(I), prevail
over the activities of the state and district commissions and the Office. Such an indication
would effectively eliminate the state and district commissions, something the General
Assembly clearly does not intend. The intent of the legislature will prevail over a literal
interpretation that leads to an absurd result. AviComm, Inc. v. Colorado PUC, 955 P.2d
1023 (Colo. 1998).
Second Claim for Relief
The complaints second claim is that the Offices actions were electioneering
communications for which the Office failed to make appropriate reports. The Office does
not dispute that it has made no such reports. For the obligation to report, Complainant
relies on art. XXVIII, sec. 2(7)(a)(I) and the Secretary of States Rule 11, 8 CCR 1505-16.
Although not cited in the complaint, Rule 11 has as its source Colo. Const. art. XXVIII,
section 6. Both Rule 11 and Section 6 require any person who spends $1,000 on
electioneering communications to report to the Secretary of State.
The ALJ will assume without deciding that the Offices actions of promoting a
website containing statements as to the retention of judges meets the definition of
electioneering communication at art. XXVIII, sec. 2(7)(a). The ALJ will assume that this
conduct unambiguously refers to a candidate and that the information was distributed 60
days prior to a general election to an audience that included members of the electorate.
(See art. XXVIII, sec. 2(7)(a)(I), (II) and (III)). But the Office is not a person to whom the
requirements of Rule 11 and Section 6 apply.
The constitution defines a person as any natural person, partnership, committee,
association, corporation, labor organization, political party, or other organization or group
of persons. Art. XXVIII, sec. 2(11). Conspicuously absent from this list is any
governmental organization. The prohibition on governmental entities spending money on
elections appears at Section 1-45-117(1), C.R.S., discussed above in the first claim for
relief.
But even if, for some reason, the Office was deemed a person, it would meet the
exception at Colo. Const. art. XXVIII, Section (7)(b)(III): a communication by persons
made in the regular course and scope of their business . It is the business of the Office
4

to conduct public education efforts concerning the judicial performance evaluation

process and recommendations for the retention of the judges in elections. Section 135.5-101.5(3)(d). The Complainant asserts that the question of whether the Offices
activities fit within this statutory authority is a dispute of material fact, a term associated
with a motion for summary judgment. The Offices motion is for failure to state a claim
per C.R.C.P. 12(b)(5) and so matters outside of the pleadings are not considered. See
Yadon v. Lowry, 126 P.3d 332 (Colo. App. 2005).
The ALJ concludes that the Offices conduct alleged in the complaint fits its
statutory responsibilities and is not prohibited by Section 1-45-117(1)(a)(I). Based on the
foregoing, the Offices motion to dismiss is granted and the ALJ issues this decision.
DONE AND SIGNED
January 3, 2017.
/s/ Matthew E. Norwood_____________
MATTHEW E. NORWOOD
Administrative Law Judge

CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above ORDER GRANTING MOTION TO
DISMISS AND DECISION sent via electronic mail to:
Matt Arnold
campaignintegritywatchdog@gmail.com
Christopher M. Jackson, Assistant Attorney General
Christopher.jackson@coag.gov

On January 3, 2017.

Office of Administrative Courts