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Colorado Ethics Watch MATTHEW ARNOLD 7/12/2010

1 3
1 BEFORE THE SECRETARY OF STATE 1 WHEREUPON, the following proceedings were
2 2 taken pursuant to the Colorado Rules of Civil
Case No. OS 2010-0009 3 Procedure.
3 ______________________________________________________
4 DEPOSITION OF: MATTHEW ARNOLD - July 12, 2010 4 * * * * *
______________________________________________________ 5 MATTHEW ARNOLD,
IN THE MATTER OF THE COMPLAINT FILED BY COLORADO 6 having been first duly sworn to state the whole truth,
8 9 BY MR. TORO:
PURSUANT TO NOTICE, the deposition of Q. Good morning, Mr. Arnold. I'm Luis Toro,
9 MATTHEW ARNOLD was taken on behalf of the Complainant
at 633 17th Street, Suite 3000, Denver, Colorado 11 representing Colorado Ethics Watch, and I've got Aaron
10 80202, on July 12, 2010, at 11:03 a.m., before Sharon
L. Szotak, Registered Professional Reporter, Certified 12 Goldhamer, my cocounsel, with me. Thank you for
11 Realtime Reporter, and Notary Public within Colorado. 13 coming in this morning.
12 A P P E A R A N C E S
13 For the Complainant: LUIS TORO, ESQ. 14 Could you state your name and address for
1630 Welton Street, #415
15 the record.
14 Denver, Colorado 80202
15 AARON GOLDHAMER, ESQ. 16 A. My name is Matthew Arnold. My home
Sherman & Howard L.L.C.
16 633 17th Street, Suite 3000 17 address is -- that's what you're asking for, I assume.
Denver, Colorado 80202 18 Q. Home or business. Somewhere you can be
For the Respondent: MARIO D. NICOLAIS, ESQ. 19 reached is fine with me.
18 Hackstaff Gessler LLC
20 A. Well, the business address is P.O. Box
1601 Blake Street, Suite 310
19 Denver, Colorado 80202 21 372388, Denver, Colorado 80237.
20 Also Present: Lauren Becker
Cory Kalanick 22 Q. And your home address, just to have a
21 23 street address.
23 24 A. Street address, 9441 East Mexico Avenue,
25 Denver, Colorado 80247.
2 4
1 I N D E X 1
Q. And I understand you're the executive
July 12, 2010 2 director of Clear the Bench Colorado.
3 3 A. That's correct.
By Mr. Toro 3, 98
4 4 Q. Are you currently employed?
By Mr. Nicolais 93, 104 5 A. My other job is working for the Colorado
INITIAL 6 Army National Guard, so I suppose that counts, yes.
6 DEPOSITION EXHIBITS: REFERENCE 7 It's not full-time, but it does pay the bills.
7 Exhibit 1 Affidavit of Matt Arnold 5
8 Exhibit 2 Letter to Arnold from Walegur, 13
8 Q. Are there other people besides yourself
5/4/09, Notice of Declined 9 who hold titles with Clear the Bench Colorado? A
9 Committee Registration 10
10 Exhibit 3 E-mail to Arnold from Schriner, 37
treasurer or secretary or anything like that?
5/6/10 11 A. There is another individual who, because
11 12 of the requirement to have two names, does have a
Exhibit 4 Letter to Arnold from Walegur, 51
12 6/9/09 13 title. However, he is not actively involved.
13 Exhibit 5 Printout from Clear the Bench 51 14 Q. Who is that person?
Colorado Website
14 15 A. TL James. I believe that's part of the
Exhibit 6 Report of Contributions and 58 16 record already.
15 Expenditures
16 Exhibit 7 Printout from Clear the Bench 60
17 Q. And could you describe in general terms
Colorado Website 18 what are the day-to-day activities of Clear the Bench
Exhibit 8 Printout from Clear the Bench 84
19 Colorado?
18 Colorado Website 20 A. It varies quite a bit. I give
19 21 presentations. I write articles. I wrote commentary.
21 22 I do research.
22 23 Q. And who makes decisions on behalf of
24 24 Clear the Bench Colorado?
25 25 A. I do.
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1 Q. Has that been true during the entire 1 Colorado.

2 length of clear bench's existence? 2 Approximately when -- I assume you don't
3 A. Absolutely. 3 remember the specific date -- did you retain Hackstaff
4 (Deposition Exhibit 1 was marked.) 4 Gessler in connection with Clear the Bench?
5 Q. I'm going to hand you what was previously 5 A. It was early April, I believe.
6 marked as Deposition Exhibit 1. There is a copy for 6 Q. Early April 2009?
7 counsel. 7 A. Yes.
8 Please take a moment to look at it, and 8 Q. Has Hackstaff Gessler represented you --
9 let me know if that's the affidavit you filed in 9 or represented Clear the Bench continuously since
10 connection with Clear the Bench's motion for summary 10 then?
11 judgment and opposition to Ethics Watch's motion for 11 A. Yes. They've at least been on retainer.
12 partial summary judgment. 12 I don't know if they've been continuously engaged in
13 A. Yes, it appears to be complete. 13 work for Clear the Bench Colorado, but --
14 Q. Before you got involved with Clear the 14 Q. In paragraph 6 of the affidavit you state
15 Bench, had you ever worked before on a political 15 that after receiving legal guidance, you attempted to
16 campaign of any kind? 16 register the organization as a political committee.
17 MR. NICOLAIS: Just let me clarify. 17 Did you do anything else besides receive
18 "Worked at." Volunteered or for pay? 18 legal guidance in connection with deciding to
19 MR. TORO: Any form. 19 initially request filing status as a political
20 A. I probably volunteered my time on some 20 committee?
21 campaigns in the past. I'm not -- I haven't been 21 A. No. Again, as I was not terribly
22 terribly active on campaigns. I've never held a paid 22 familiar with the process at that time, I just went to
23 position as a -- as a staffer for a candidate. 23 the Secretary of State's website, I filled out the
24 Q (BY MR. TORO) Have you ever been on a 24 form, and sent it in.
25 campaign committee either in a volunteer or paid 25 Q. Then that was after consulting with
6 8

1 capacity before Clear the Bench? 1 Hackstaff Gessler?

2 MR. NICOLAIS: Object to the relevance. 2 A. I'm not sure how much of that counsel
3 A. I'm trying to wonder where you're going 3 is -- is privileged communications.
4 with this. 4 Q. Well, I'm not asking what -- I'm not
5 MR. TORO: Of course, I'm not obligated 5 asking you to tell me what they said. But you did say
6 to say where I'm going with this, but since you've 6 in the affidavit that you sought counsel from them,
7 raised an estoppel defense, anything related to his 7 and that after receiving that guidance, you registered
8 sophistication and reliance is fair game. 8 as a political committee. So I just wanted to
9 Q (BY MR. TORO) So, anyway, have you worked 9 confirm, because of what you just said, that
10 on a committee, a political committee, before in any 10 consulting with Hackstaff Gessler was part of the
11 capacity? 11 process of preparing that initial political committee
12 A. Not to my knowledge. 12 registration form.
13 Q. Now, calling your attention to the 13 A. Yeah. Well, I did consult with them
14 affidavit, paragraph 4 states that your duties with 14 prior, too, I believe.
15 Clear the Bench include filing all required documents, 15 MR. NICOLAIS: Are you asking about the
16 registration applications, and reports with the 16 timing or --
17 Colorado Secretary of State. 17 MR. TORO: Yes.
18 Before you became involved with Clear the 18 MR. NICOLAIS: Just the timing. So after
19 Bench, had you had any prior experience with any of 19 he spoke to us. Okay.
20 those activities? 20 Q (BY MR. TORO) And that was part of the
21 A. No. 21 process of preparing the political committee form, was
22 Q. The next paragraph said that you sought 22 consulting with the law firm.
23 legal counsel from Hackstaff Gessler LLC to assist you 23 A. If you're asking about the time line, I
24 regarding organizational documentation and meeting all 24 believe that the filing was after consulting with
25 registration requirements imposed by the state of 25 them, yes. I still don't understand where you're
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1 trying to go with defining it as part of a process. 1 A. I heard about it after the fact. But I
2 Q. Have you ever had your deposition taken 2 was not aware specifically of that campaign, no.
3 before? 3 Q. Were you aware of it at the time you
4 A. No, I have not. 4 filed your political committee registration statement
5 Q. Did you have a chance to speak with 5 for Clear the Bench in April 2009?
6 Mr. Nicolais before this deposition about the process? 6 A. I don't believe so, no. It may have been
7 A. Briefly. 7 part of the general research I did, but it doesn't
8 Q. Well, let me -- I didn't do this 8 ring a bell.
9 initially, but I do want to go over a couple of ground 9 Q. Do you know, as you sit here today, how
10 rules. The first one, so far, so good. And I'm going 10 the committee to oppose Judge Marquez's retention was
11 to try to adhere to it, as well. But I need to finish 11 organized?
12 my question before you answer, and you need to finish 12 A. No.
13 answering before I ask the question. And so far, 13 Q. Now, let's go and take a look at that.
14 we've been doing that. But I feel like I should say 14 We'll just use Exhibit 1 to make things easier. The
15 that in every deposition. Can you work with me on 15 first -- Exhibit A to Exhibit 1. Could you take a
16 that? 16 look at that and let me know if that's the initial
17 A. Sure. 17 judicial retention committee registration form that
18 Q. And if at any point you need to consult 18 you filed on behalf of Clear the Bench.
19 with your attorney about a legal privilege, feel free 19 A. Yes, it is.
20 to do so. But otherwise, I'd like you to answer the 20 Q. I notice that the e-mail address is
21 questions that I've asked without having to consult 21 Do you see that?
22 with the attorney, because we're here to get your 22 A. Yes.
23 information. Do you understand that? 23 Q. Was up and
24 A. I understand that. 24 running as of April 20th, 2009?
25 Q. And if you need a break for comfort or 25 A. I think the date you're looking for is
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1 any other reason, just let us know and we'll 1 April 28th, 2009. And, yes, as of that time, it was
2 accommodate you on that. We only ask that there not 2 up and running.
3 be a pending question when we exit for a break. 3 Q. Well, I don't want to argue about dates
4 A. Fair enough. 4 too much, but I just see a handwritten note next to
5 Q. Great. Thanks. 5 your signature that looks to me like it says the 20th.
6 And also looking at the time period 6 A. Okay. I was looking at the received
7 before you filed the initial political committee 7 date. Yes, it was up and running. The e-mail was up
8 registration form, do you know -- or did you know how 8 and running as of 20 April.
9 committees of that nature had been registered with the 9 Q. And so you had the registered URL and the
10 Secretary of State in the past? 10 e-mail, but was the website up and running at that
11 A. No. Like I said, my experience with 11 point?
12 political committees began with Clear the Bench 12 A. Yes, it was.
13 Colorado. 13 Q. Do you know when the website launched?
14 Q. Did you have any experience -- 14 A. I believe it was April 4th, 2009.
15 A. Committees of any kind. 15 Q. I want to turn your attention to the next
16 Q. I'm sorry. 16 page, Exhibit B. What is Exhibit B to your affidavit?
17 Did you have any experience in any form, 17 A. Exhibit B was a denial in my request to
18 volunteer or otherwise, with any previous judicial 18 register as a political committee, as you well know.
19 retention campaign? 19 Q. Did you receive that on or about May 1,
20 A. No. 20 2009?
21 Q. So you weren't aware of the campaign to 21 A. Yes, I did.
22 oust Judge Marquez in the court of appeals in 2006? 22 Q. Was it a surprise to you?
23 A. I -- well, is it a question of awareness 23 A. Yes, it was.
24 or a question of was I involved? 24 Q. Had you had any conversations with staff
25 Q. Now I'm asking if you were aware. 25 from the Secretary of State's office between the date
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1 you filed your registration statement and the time 1 Q. So that was before you submitted
2 when you received this e-mail? 2 anything?
3 A. I think so. I confirmed -- I called them 3 A. Yes.
4 to confirm that they had received it. And that was 4 Q. Do you recall who that conversation was
5 it. I was very surprised that the application was 5 with?
6 rejected. I didn't think that was even possible. 6 A. I believe it was with Kristine Reynolds.
7 (Deposition Exhibit 2 was marked.) 7 Q. Were there any other conversations
8 Q. Mr. Arnold, you've been handed Deposition 8 between yourself and any Secretary of staff people
9 Exhibit 2. Can you take a moment to look at it, and 9 after the conversation --
10 let me know whether you received Exhibit 2 in May 10 A. Secretary of State staff people?
11 2009. 11 Q. Secretary of State staff people.
12 A. Yes, I did. 12 A. You said secretary of staff. I don't
13 Q. Did you receive it at the same time as 13 think we have one of those.
14 the e-mail we were just looking at? 14 Q. I may have misspoken, so let me start the
15 A. There was probably a delay of a day or 15 question over again.
16 two. 16 Do you recall any other conversations
17 Q. So to be clear on the timing, you 17 between the one you just told me about and the date
18 received the Exhibit B to Exhibit 1, the May 1 e-mail, 18 that you received Deposition Exhibit 2?
19 and then a couple of days later you received the 19 A. I don't recall specifically any
20 notice of declined committee registration that's 20 communications. They may have occurred. I was in
21 Deposition Exhibit 2? 21 contact with them frequently over the course of the
22 A. Correct. 22 month.
23 Q. Did you have any conversations with 23 Q. Did you have -- now I want to ask you
24 anyone at the Secretary of State's office between when 24 about the first conversation you had about the
25 you received the e-mail dated May 1 and when you 25 declined committee registration. Do you recall who
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1 received the notice of declined committee registration 1 that conversation was with?
2 that's Exhibit 2? 2 A. It was either with Kristine or Marc. I
3 A. I'm not sure -- I had conversations with 3 called following up and expressing my surprise it had
4 them around that time, but I'm not sure if it was 4 been rejected, asking them for guidance. And you also
5 between the e-mail and the reception of the letter. 5 might notice that the e-mail that I received said that
6 Q. So it may have been after the letter? 6 it might fall under the definition of an issue
7 A. It may have been. 7 committee, so I explored that possibility and asked
8 Q. Do you recall who you spoke with? 8 them for their guidance as to what kind of committee
9 A. I spoke with a number of people at the 9 to file.
10 Secretary of State's office. Marc Walegur, who is on 10 I explained in greater detail the purpose
11 here, was one of those. Kristine Reynolds I believe 11 of the organization. Again, the form did not provide
12 was another one. Someone else's names, I can't 12 a lot of space, so I didn't provide a lot of detail in
13 recall. I believe it was Marc and Kristine or Kristin 13 the first submission, again, not being familiar with
14 with whom I spoke most frequently. 14 the process. Being asked for more detail, I provided
15 Q. Okay. Do you recall the first 15 more detail, which included, I think, what is in
16 conversation you had with any of those people? 16 Exhibit -- I don't see it numbered here, but it is
17 A. The very first conversation? 17 part of Exhibit B. No. Part of Exhibit C.
18 Q. Yes. 18 Q. Okay. I think you're getting way ahead
19 A. Or the first conversation after receiving 19 of me. And I'm just asking about a conversation, a
20 this letter? 20 phone call or face-to-face, whatever it was, after you
21 Q. Well, let's go with the first that you 21 received Deposition Exhibit 2. Just what happened in
22 recall at all. 22 that particular conversation, if you recall.
23 A. Well, the first I recall at all was a 23 A. As I said, I called. I expressed my
24 question about the process of filing, how to submit it 24 surprise at being denied as a political committee. I
25 and what form to submit it, et cetera. 25 asked them for their guidance as to what form of
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1 committee to file under. And they issued me the 1 Q. Did you read that?
2 guidance to file as an issue committee. 2 A. I did. And I took that as guidance that
3 Q. That all happened in the first 3 I should not, in fact, be a political committee, and
4 conversation? 4 should instead look at a different alternative.
5 A. That happened over the course of several 5 Q. Why did you interpret it that way?
6 conversations. 6 A. Because that's what they told me.
7 Q. So you don't recall specifically what was 7 Q. Who told you?
8 told to you in the first conversation? 8 A. The Secretary of State's office.
9 A. It was over a year ago, so I don't recall 9 Q. Who at the Secretary of State's office?
10 the details of every specific conversation, no. 10 A. Again, frequent and repeated
11 Q. Okay. Could you take a moment to look 11 conversations with Kristine Reynolds, Marc Walegur,
12 over Exhibit 2, please. That's this letter. 12 and some other people. I don't recall the others.
13 A. Yes. 13 Q. I'm asking for specific conversations
14 Q. Did this letter say anything about the 14 that you had with any of those people on this issue of
15 possibility that Clear the Bench might actually be 15 political committee versus issue committee.
16 registered as an issue committee? 16 A. Again, as I said, it's been over a year.
17 A. No. That does not. That simply talked 17 I don't have a photographic memory. I did not tape
18 about the denial. I was following up on the e-mail, 18 the conversations. We had frequent conversations. I
19 which suggests the possibility of filing as an issue 19 requested their guidance repeatedly, and they issued
20 committee. So the conversations that I had with the 20 the guidance to file as an issue committee.
21 Secretary of State's office staffers were seeking 21 Q. Now, returning your attention to
22 guidance as to the nature of the committee under which 22 Exhibit 2 in that portion I just read to you. Are you
23 I had filed, and asking them for their guidance on 23 telling me that as of May 4th, 2009, you didn't know
24 that matter. 24 the specific candidates that Clear the Bench would be
25 Q. Just so I understand this, you received 25 supporting or opposing?
18 20

1 the e-mail, and says, "Purpose too vague. Also might 1 A. Clear the Bench --
2 fall under definition of issue committee." 2 MR. NICOLAIS: Objection. That's calling
3 A. Correct. 3 for a legal conclusion on what candidates is.
4 Q. And then you received the notice of 4 Q (BY MR. TORO) You can go ahead and answer
5 declined committee registration that says what it 5 the question.
6 says. And in response to that, you inquired about 6 MR. NICOLAIS: Go ahead.
7 what form of committee that Clear the Bench should be 7 A. Okay. I was aware of the possibility of
8 registered as? 8 certain judges standing for retention and the fact
9 A. I inquired as to their guidance as to how 9 that they would be up as a ballot question on the
10 to proceed. Their guidance including refiling as an 10 ballot. So, yes, I did know some names of those who
11 issue committee. 11 would be on the ballot as a ballot question, correct.
12 Q. Let's look at Exhibit 2. 12 Q (BY MR. TORO) And then looking to the
13 A. Yeah. If I were to be a political 13 next paragraph that's not indented in Exhibit 2, it
14 committee. But I asked them for their guidance. 14 says, "Please fill out and include in the committee's
15 Their guidance was otherwise. 15 purpose the specific judges you will either be
16 Q. Okay. Let me ask the question. It says 16 supporting or opposing the retention of." Do you see
17 in the indented portion of the letter, "The 17 that sentence?
18 committee's purpose is too vague. Per Rule 2.4 of the 18 A. I do see that sentence.
19 Secretary of State's rules concerning campaign and 19 Q. Why didn't you do that?
20 political finance, quote, a political committee or 20 A. Because they issued guidance to me to
21 small donor committee shall identify the types of 21 file as an issue committee instead.
22 candidates being supported or opposed, such as party 22 Q. Isn't this letter guidance that you
23 affiliation or public policy position, and, if known, 23 should identify the specific judges you'll be
24 the specific candidates being supported or opposed." 24 supporting or opposing the retention of?
25 A. Right. 25 A. That was guidance as to the rejection of
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1 being a political committee. And in requesting 1 Q. We could argue about that, but if you
2 guidance as to how to proceed, their guidance was to 2 want, we can pull that out and look at it. And we
3 shift gears, go away from being a political committee, 3 probably will later on. But right now, I'm just
4 and to be an issue committee instead. 4 asking you for what you recall.
5 Q. Did you ever tell them the judges and 5 Did you tell Mr. Walegur or Ms. Reynolds
6 justices that you were going to oppose? 6 or anyone at the Secretary of State's office that your
7 A. Yes, I did. I mentioned, as you can see 7 website had messages to the effect of vote no on the
8 again on Exhibit C, the specific purposes of Clear the 8 four justices in November 2010?
9 Bench Colorado, which includes purpose number 3, 9 A. Of course. That was part of the
10 "Advocate for the non-retention of justices statewide 10 committee registration. Again, I call your attention
11 who demonstrate a consistent pattern of deciding cases 11 to Exhibit C-1, "advocate for the non-retention of
12 in contravention of the Colorado Constitution, 12 justices statewide."
13 establish statutory law, legal precedent, and rule of 13 Q. So in your mind, that is telling people
14 law principles." Parenthetical, "Naming judges as 14 the specific four justices that you were naming on the
15 necessary to educate voters," close paren. 15 website.
16 Q. So just so the record is clear, you are 16 A. It may have included them. It could be
17 quoting from your issue committee registration form 17 some other ones. So it certainly would include those.
18 that was submitted in -- 18 Q. At the time you submitted -- let's go
19 A. Pursuant to the guidance of the Secretary 19 with the one you continue to refer to, which is the
20 of State's office, correct. 20 amended committee registration form.
21 Q. And you didn't name any names of judges 21 As of the date of the amended committee
22 or justices in that form, correct? 22 registration form, had Clear the Bench decided to
23 A. Correct. There's a limited amount of 23 oppose specifically the four justices on the Supreme
24 space on that. And they were not candidates at the 24 Court that we've been -- that are mentioned on your
25 time, as you are well aware. 25 website?
22 24

1 Q. Did you ever name any names to the staff 1 A. Clear the Bench Colorado did decide to
2 people at the Secretary of State's office that you 2 mention by name the four justices who repeatedly
3 were speaking to during this time period between the 3 violated the Constitution, yes.
4 May 4 letter and the date that you submitted that 4 Q. And that decision was made prior to the
5 registration form? 5 filing of the amended registration statement?
6 A. I can't recall specifically. I'm sure 6 A. I believe they were mentioned prior to
7 that the chief justice's name probably came up as one 7 that, yes.
8 example, but I don't recall specifically naming names. 8 Q. Okay. And other than in the statement
9 Q. Who did you name the chief justice to? 9 that's in Exhibit C to your affidavit, did you tell
10 A. Again, I cannot recall specifically which 10 Mr. Walegur, Ms. Reynolds, or anyone else at the
11 conversation. It would have been to either Marc 11 Secretary of State's office the names of the four
12 Walegur or Kristine Reynolds or their supervisor. 12 justices that you'd identified?
13 Q. Who was their supervisor? 13 A. As I have previously testified, I cannot
14 A. I don't know the name. 14 recall specifically if I mentioned by name in
15 Q. Was it a male or female? 15 conversation with the Secretary of State's office.
16 A. Female. 16 Our conversation had more to do with the process and
17 Q. Now, you mentioned that the website was 17 requesting their guidance.
18 already up and running during this time period. At 18 Q. So maybe you did, maybe you didn't? You
19 that time, did the website say anything to the effect 19 don't recall?
20 of vote no on these four justices in November 2010? 20 A. I don't recall the specifics.
21 A. I believe it may have, yes. I believe 21 Q. Did you take any notes of any of the
22 that your -- one of the documents you submitted has a 22 conversations you had with the Secretary of State's
23 copy, complete copy, of everything posted on the 23 office?
24 website, so you should be able to answer that 24 A. I probably jotted a few things down on
25 question. 25 napkins, yes. I'm not sure where they are at this
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1 point. 1 that off of your amended registration statement.

2 Q. Did you review any notes of any kind 2 A. That's correct.
3 before coming to this deposition today? 3 Q. Do you recall any other substance of the
4 A. I reviewed my affidavit. 4 communications you had verbally with Secretary of
5 Q. Any other documents? 5 State staff before you filed the amended registration
6 A. I've been a pretty busy individual, Mr. 6 statement? Well, let me get a little more specific.
7 Toro, as you are well aware. 7 Do you recall them giving you any reason
8 Q. So that's a no? 8 why they thought Clear the Bench might be better
9 A. No. 9 classified as an issue committee?
10 Q. No, you didn't review any other 10 A. Yes.
11 documents? 11 Q. What did they say?
12 A. Specific to this, I did not review any 12 A. They said, because it was similar to a
13 other documents. 13 recall election, and recall elections have always been
14 Q. Thanks. 14 considered to fall under the purview of an issue
15 Actually, before I move on to another 15 committee. Also because it is a ballot question and
16 document, has Clear the Bench made any final decision 16 not specific candidates, it is not a contested
17 about which judges and justices -- 17 election. And for those reasons and others, they
18 MR. NICOLAIS: Objection. That's 18 issued me the guidance to file as an issue commitee.
19 irrelevant. It's beyond the scope of what the judge 19 Q. Do you remember who told you that?
20 authorized us to talk about today. 20 A. I believe there was a memo to that
21 MR. TORO: I'm not even done asking the 21 effect. And again, that was in conversations --
22 question, so how can you say that? 22 repeated conversations with the Secretary of State's
23 MR. NICOLAIS: Because you asked for 23 office, with Kristine Reynolds, with Marc Walegur, and
24 future plans. 24 others. Those are the two principal contacts that I
25 MR. TORO: That's entirely relevant to 25 had.
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1 this discussion. 1 Q. Do you remember whether Ms. Reynolds,

2 MR. NICOLAIS: I object to that. And I 2 Mr. Walegur, or someone else gave you those rationales
3 think asking for what their political plans are -- 3 that you just explained to me?
4 MR. TORO: Actually, I'm not -- let me 4 A. Yes.
5 finish the question. 5 Q. Which one?
6 MR. NICOLAIS: Go ahead and finish. 6 A. Both. And I believe there was some
7 Q (BY MR. TORO) So just to be clear, you've 7 documentation to that effect somewhere.
8 identified the four justices that you wanted to 8 Q. Well, I wanted to ask you about that. As
9 oppose. Those four. Are there any other -- let me 9 long as we're on the subject, are you referring to
10 rephrase it. 10 Exhibit F of your affidavit?
11 Between then and now, have you decided to 11 A. Exhibit F refers to the conversations.
12 add any other judges and justices to your list? 12 It does not specifically document the substance of
13 A. There are, as you know, potentially three 13 those conversations.
14 justices on the ballot this November. There are also 14 Q. Do you have a memo that explains the
15 potentially five -- actually, now four appeals court 15 rationale?
16 judges. So far, we've been focusing on the top level. 16 A. I don't see it here in the affidavit. I
17 Q. So, no, you haven't decided to add anyone 17 do recall reading something to that effect.
18 else? 18 Q. Well, let's go through the exhibits of
19 A. I've not made any final decisions, no. 19 your affidavit and see. Perhaps it's Exhibit C. No.
20 We'll come back to whether or not we have judges or 20 That would be -- well, why don't you take a look at
21 justices who demonstrate a consistent pattern of 21 Exhibit C and let me know what it is.
22 deciding cases in contravention of the Colorado 22 A. Okay. Exhibit C is --
23 Constitution, established statutory law, legal 23 Q. Exhibit C to Exhibit 1.
24 precedent, and rule of law principles. 24 A. Exhibit C includes the e-mail that I
25 Q. And just to be clear, you were reading 25 sent. Again, this is following up on several
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1 conversations exploring the guidance of the Secretary 1 registration form at the Secretary of State's office
2 of State to file as an issue committee. 2 before you formally filed it, this amended committee
3 Again, pursuant to their guidance, I did, 3 registration form?
4 in fact, file as an issue committee. As per their 4 A. I think, as part of the filing, they
5 guidance, I did clarify and expand upon the purpose of 5 reviewed it. Again, as I said in this e-mail, with
6 the committee in the following documentation. The 6 the attachments, I've attached the amended form,
7 following exhibit is the committee registration form, 7 please review and let me know your decision.
8 the amended form. And following that is the response 8 Q. Okay. Something you said made me think
9 by the Secretary of State's office accepting my 9 that perhaps someone had looked at this before it was
10 application as an issue committee and granting Clear 10 formally filed. Did I understand you to say that?
11 the Bench Colorado issue committee status. 11 A. There were discussions we had on the
12 Q. Now, looking at your e-mail that's the 12 phone, but in terms of looking at the document, when I
13 first -- 13 sent this in, that was the first time probably they
14 A. That was Exhibit D. 14 saw it in writing.
15 Q. Looking at your e-mail, which is 15 Q. What do you recall was discussed about
16 Exhibit C to your affidavit, Exhibit 1, the statement 16 the issue of filling out the purpose, slash, office
17 "I've clarified and expanded upon the purpose of the 17 sought section of the form?
18 committee in support of the new filing." 18 A. Specifically that they needed more
19 Was that in response to something that 19 detail: Provided. Clarification of the purpose:
20 Mr. Walegur or Ms. Reynolds or anyone else at the 20 Provided. And again, pursuant to their guidance in
21 Secretary of State's office had said to you? 21 the discussions that had taken place in the interim
22 The question is complete. You can 22 concerning the issue of whether it was more like a
23 answer. 23 recall campaign or a recall election or a ballot
24 A. Okay. Well, again, the first e-mail 24 question.
25 communication I received of them rejecting the status 25 Q. And what did you understand ballot
30 32

1 of Clear the Bench Colorado as a political committee 1 question to mean?

2 and suggesting that I might file instead as an issue 2 A. A difference between a ballot question
3 committee was the thing that initiated that 3 and a contested election. Contested election would be
4 conversation. Pursuant to several conversations 4 one candidate opposing another candidate. A ballot
5 asking for a clarification and expansion of the 5 question, such as exists with judicial retention
6 purpose. So, yes. 6 votes, is a yes or no question. That would be a
7 Q. Okay. So that's in response -- so just 7 ballot question.
8 to be clear, it's in response to the written 8 Q. And that was what was being discussed
9 communications that we've already looked at? 9 between you and the Secretary of State's office
10 A. To the written, repeated telephonic, and 10 regarding whether you should properly be classified as
11 other communications, yes. 11 an issue committee?
12 Q. In any of the telephonic communications, 12 A. Yes. They also informed me that there
13 did the subject of naming the justices come up? By 13 were some discussions. There was an advisory
14 name? 14 committee meeting that discussed that topic, which I
15 A. I don't recall. Although -- well, 15 believe CEW was present in that advisory committee
16 certainly, I guess it would, because I did say naming 16 meeting. So you are aware of that. Your
17 judges as necessary. So I would assume that, yes, in 17 organization, at least, was aware of the fact that the
18 fact, it did come up in conversation. 18 discussion had taken place.
19 Q. Do you recall anything more than just 19 Q. And when did they tell you about the
20 your assumption based on what you did? 20 advisory board committee? Was it before you submitted
21 A. Well, we discussed the wording of the 21 the amended committee registration form?
22 purpose and office sought, so -- again, the section in 22 A. They said that there were scheduled
23 the committee registration form. 23 advisory board committee meetings, and that it was
24 Q. You discussed that? So let me understand 24 still being discussed. That I think there had been
25 what you did. Did anyone review this committee 25 one prior to the resubmitting, and there was one that
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1 occurred after it was resubmitted. 1 conversation where you were told that?
2 Q. So who told you that the issue of proper 2 A. I think there was a -- something after
3 registration had been discussed before you filed the 3 the committee which had occurred in -- what? --
4 amended registration form with the advisory committee? 4 mid-June of 2009, I believe.
5 A. That would have been either Marc Walegur 5 Q. So sometime in mid to late June of 2009,
6 or Kristine Reynolds. Again, I had frequent 6 you touched base with Secretary of State staff to find
7 conversations. Well over a year ago. I don't recall 7 out what the advisory committee had said?
8 the detail of every conversation. 8 A. I think I got some sort of notification.
9 Q. But it's your testimony under oath that 9 I'm not exactly sure what form it took.
10 you understood at the time that you filed the amended 10 Q. Was it written?
11 committee registration form that the advisory 11 A. I don't recall exactly.
12 committee to the Secretary of State's office had 12 Q. Please tell me, to the best of your
13 signed off on registration judicial retention 13 recollection, what you were told about the status of
14 committees as issue committees? 14 the advisory committee review of this subject in mid
15 A. No, I did not understand that they had 15 to late June 2009.
16 signed off on it. That's a leading statement, which 16 A. Again, that it was the consensus opinion
17 you're trying to put words in my mouth, and I reject 17 that Clear the Bench Colorado, for the reasons
18 that. That was not my understanding. 18 previously discussed, was an issue committee.
19 My understanding was that it had been 19 Q. The consensus opinion of the advisory
20 discussed, and the consensus opinion at that time was 20 committee or the Secretary of State's office?
21 to file as an issue committee. 21 A. I am not able to make that distinction
22 Q. And who told you that it was the 22 based on what I was told.
23 consensus opinion of the advisory committee that you 23 Q. Can you recall with any more specificity
24 should file as an issue committee? 24 the words you were told about this subject?
25 A. I didn't say it was the consensus opinion 25 A. Sir, I don't have a photographic memory
34 36

1 of the advisory committee. I said it was the 1 of every conversation I had over a year ago.
2 concensus opinion of the Secretary of State's office. 2 Q. Do you remember who you had this
3 Again you're putting words in my mouth, Mr. Toro, and 3 conversation with?
4 I object to that. 4 A. That would have been with either Marc
5 Q. What was your understanding about the 5 Walegur or Kristine Reynolds in all likelihood;
6 status of the advisory committee's views on this 6 possibly their supervisor. Again, I had many
7 subject at the time you filed the amended committee 7 conversations over the course of that time.
8 registration form? 8 Q. Now, I want to look back at Exhibit F to
9 A. That it had been discussed, and another 9 your affidavit. Now, just to be clear, you didn't
10 discussion was pending. 10 actually receive this e-mail in June 2009, correct?
11 Q. Do you know what was the ultimate result 11 A. I believe I did receive this in June
12 of those discussions? 12 2009. I don't recall the exact date that I received
13 A. The ultimate result of the discussions I 13 it, but it would have been shortly after it was sent,
14 understand -- and I -- well, I don't know. 14 I understand.
15 Q. Did you ever inquire to find out what had 15 Q. Well, I'm not trying to trick you, so
16 ultimately happened with the advisory committee? 16 let's go back to your --
17 A. I did ask and was informed that the 17 A. Again, it would have been sometime in
18 guidance was that because it was likely a recall 18 June. I'm sure it wasn't -- it may or may not have
19 election or a ballot question, that the consensus was 19 been on Tuesday, June 9th.
20 that Clear the Bench fell under the issue committee 20 Q. Well, I just want to go back to
21 appellation. 21 Exhibit -- excuse me -- to paragraph 13 of your
22 Q. The consensus of the advisory committee? 22 affidavit.
23 A. That's what I understood to be, in fact, 23 A. Okay. How is that relevant?
24 after the meeting, yes. 24 Q. Well, that's referring to Exhibit E,
25 Q. And about when did you have that 25 which is -- excuse me. Yeah, Exhibit -- paragraph 13
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1 says, on May 6, 2010, you received an e-mail from Ryan 1 A. Exhibit F I received on or about the time
2 Schriner that's attached as Exhibit E. 2 that it was originally sent out. This is simply a
3 A. I don't see Exhibit E in here. It goes 3 recap -- Exhibit E or your now Exhibit 3 was simply a
4 straight from D to F. 4 restatement or a compilation of all their documents.
5 Q. Yes. Let me double-check that. I think 5 As it says here, attached is all the documentation we
6 this is exactly as we got it. 6 have on file for your committee. So this is simply
7 MR. TORO: Let's go off the record for a 7 a -- a gathering up of all the documentation they had
8 moment. 8 after you filed your frivolous, groundless, and
9 MR. NICOLAIS: That's fine. 9 vexatious complaint.
10 (Discussion off the record.) 10 MR. TORO: Move to strike as
11 (Recess taken, 11:43 a.m. to 11:47 a.m., 11 nonresponsive.
12 after which time Ms. Becker and Mr. Kalanick were not 12 Q. So your testimony is that Exhibit F to
13 present.) 13 Exhibit 1 is something you received on or about
14 (Deposition Exhibit 3 was marked.) 14 June 9, 2009.
15 Q (BY MR. TORO) We are back on the record. 15 A. Yes. On or about June of 2009. I can't
16 Mr. Arnold, as a result of the break, is there any 16 testify as to the exact date without, you know,
17 answer to any question that you feel you need to 17 looking through my in box. But, yeah, it would have
18 revisit? 18 been June 2009, correct.
19 A. No. 19 Q. So is it your testimony that you received
20 Q. Thanks. 20 this by e-mail in June of 2009?
21 During the break, we marked Exhibit 3, 21 A. Yes. It was forwarded as an e-mail.
22 which I believe is the missing Exhibit E from your 22 Q. Who forwarded it to you?
23 affidavit. Is that what that is? 23 A. I'm sure it was Marc or Kristine.
24 A. Yes, it is. And the copy I had did 24 Q. Would you mind going through your e-mail
25 include that as Exhibit E. So somehow you guys lost a 25 and giving us a copy of the forwarded e-mail?
38 40

1 page it looks like. 1 MR. NICOLAIS: I'm going to just object

2 Q. So your Exhibit 1 does have it? 2 to -- currently, I don't know if -- honestly, he'd
3 MR. NICOLAIS: If I may, the copy that we 3 probably have to look. Would you mind if we kind of
4 brought with us. 4 look to see if he has it, and then --
5 MR. TORO: I see. Okay. 5 MR. TORO: Sure. We didn't subpoena any
6 MR. NICOLAIS: We got a copy of the same 6 documents for this deposition. And that's fine. I
7 affidavit with us, and he had had that underneath his. 7 just need to know whether I should subpoena it for the
8 MR. TORO: Okay. Sometimes things get -- 8 hearing. And that's a really short turnaround. So
9 MR. NICOLAIS: I'll move this over here, 9 one of the things we're doing here is finding out if
10 so we're not being confused anymore. 10 there's other documents.
11 Q (BY MR. TORO) Okay. So turning your 11 MR. NICOLAIS: We'd probably want to go
12 attention back to paragraph 13 of your affidavit. It 12 through that process.
13 seems to state that you received Exhibit E on May 6th, 13 MR. TORO: So let's do that. And we can
14 and then included in that e-mail was the e-mail from 14 be in touch.
15 Marc Walegur to Kristine Reynolds and Kathy Hill 15 MR. NICOLAIS: Yeah. And we'll waive
16 that's Exhibit F. 16 service and all that. We'll see if we can turn it
17 A. Again, May 6, 2010, a year after all of 17 around pretty quick.
18 these other discussions took place. So, yes. 18 MR. TORO: Great. I'll be in touch.
19 Q. Exactly. The point simply being that you 19 Thanks, Counsel.
20 didn't get Exhibit F around the time it was generated. 20 Q (BY MR. TORO) Around the time of this
21 You got it in May of 2010, correct? 21 June 9 e-mail, were you aware of the Secretary of
22 A. Let me look at Exhibit F. I don't 22 State's policy about giving legal advice to
23 believe that's correct. I think it was just a recap 23 registrants? You can answer the question.
24 that -- 24 A. I'm not aware that they have a policy of
25 Q. Why don't you take a look at it. 25 giving legal advice. They do give advice as to the
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1 type of committee to file. So if that's what you're 1 organization, since the organization had, in fact,
2 getting at. They did give me advice, but -- 2 been set up, and the committee status granted by the
3 Q. During this process of trying to 3 Secretary of State's office.
4 determine what the correct registration for Clear the 4 So I don't think there would have been
5 Bench should be, did you ever consult the Secretary of 5 any additional need for consultation on that matter.
6 State campaign finance manual? 6 Case closed. Done deal. Issue committee. Go
7 A. No. I relied on the guidance issued by 7 forward, do great things.
8 the Secretary of State's office professional staff. 8 Q. In any of the communications that you had
9 I'm sure they are very familiar with the campaign 9 with the Secretary of State staff before you filed the
10 finance manual. 10 amended committee registration form, was the issue of
11 Q. And did you keep your counsel apprised of 11 contribution limits discussed?
12 the conversations you were having with the Secretary 12 A. With whom?
13 of State staff? 13 Q. Between you and the Secretary of State
14 A. I'm guessing that's privileged. 14 staffers that you've told me you consulted with.
15 MR. NICOLAIS: I object. That's 15 A. Yeah, I really can't recall. I think it
16 privileged information. 16 was the discussion of really what -- what level -- I
17 MR. TORO: Well, you know, ordinarily I 17 don't know. I mean, I certainly looked up the
18 would agree with you, but in this case you've 18 difference. But I don't think that was part of the
19 submitted an affidavit that says that he sought legal 19 conversation in terms of their guidance. I think
20 counsel from Hackstaff Gessler, guidance regarding 20 their guidance had to do more with the issue.
21 organizational documentation. And the judge said I 21 Q. The issue meaning the -- that it's a
22 can inquire about the things in the affidavit. So 22 ballot question? That it's a yes/no question as
23 really -- 23 opposed to two candidates? Is that what what you mean
24 THE DEPONENT: That was when it was 24 when you say --
25 getting set up. 25 A. Two candidates?
42 44

1 MR. NICOLAIS: Matt, you know -- what I'm 1 Q. Well, when you say, regarding the issue,
2 objecting to is the content of what we discussed. I 2 and then your answer ended. I just want to know what
3 don't object to the fact that he had conversations 3 you meant by issue. Do you mean the issue of whether
4 with us and that we talked about it, but we're not 4 a judicial retention election is more like a recall
5 going to get into what we spoke about between him as 5 election versus a campaign that has multiple
6 my client and us as the attorney. 6 candidates?
7 MR. TORO: I can rephrase the question. 7 A. Right. Well, since there are no -- there
8 Q (BY MR. TORO) When you had the legal 8 were no declared candidates at the time, and there
9 counsel you sought from Hackstaff Gessler to assist 9 still were no declared candidates at the time that you
10 and provide guidance regarding organizational 10 filed, yeah, it revolved around whether or not the
11 documentation and meeting registration requirements, 11 proper form for Clear the Bench Colorado to take was
12 were any of those consultations in the time period 12 an issue committee versus a political committee which
13 between Exhibit 2, the May 4, 2009, letter, and your 13 would be engaged where you have contested elections.
14 submission of the amended committee registration form 14 So, yes.
15 in early June 2009? 15 Q. Is it your testimony under oath that your
16 A. I'm sure I did correspond with them 16 communications with the Secretary of State's office
17 during that period. 17 included discussion about the fact that none of the
18 Q. Were any of those communications in June 18 judges or justices had actually filed for retention at
19 or July of 2009 after you submitted the amended 19 that point?
20 committee registration form? 20 A. No. That was not part of that discussion
21 A. I don't recall. I think that after the 21 at that time.
22 amended committee registration form was filed and 22 Q. In fact, if you look at Exhibit 2, that
23 accepted by the Secretary of State's office pursuant 23 letter tells you that a political committee shall
24 to their guidance, there would have been no further 24 identify the types of candidates being supported or
25 need to consult them on the issue of setting up the 25 opposed, such as party affiliation, and if known, the
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1 specific candidates being supported or opposed. So 1 Q. Did you know in May or June of 2009 that
2 doesn't that suggest to you that you could be a 2 it was too early for judges and justices to file
3 political committee before you even know what specific 3 candidate affidavits?
4 candidates you're going to oppose? 4 A. I discovered that in the course of my
5 A. No. It suggests to me -- 5 research. I don't recall the exact date on which I
6 MR. NICOLAIS: Objection. That's calling 6 became aware of that fact. But, yes, I did become
7 for him to speculate, and as far as legal conclusions 7 aware of that fact.
8 for him to draw. 8 Q. Did you become aware of that fact in
9 MR. TORO: Counsel, I'd really recommend 9 2009?
10 that you not make speaking objections and just object 10 A. Yes.
11 to the form of the question or make an instruction not 11 Q. Do you know whether you became aware of
12 to answer. 12 that before or after you filed the amended committee
13 But it's clearly relevant to the estoppel 13 registration statement?
14 issue, since you've raised in the summary judgment 14 A. I don't recall specific dates, as I just
15 motion reasonable reliance on the Secretary of State's 15 testified.
16 office. So I am entitled to ask him how he 16 Q. Okay. I'm not asking for specific dates.
17 interpreted communications from the Secretary of 17 I'm just asking for this one landmark event of your
18 State. 18 issue committee registration. And can you tell me
19 MR. NICOLAIS: I appreciate your 19 whether your awareness of the time frame for judicial
20 suggestions on my objections, and I'll take my own 20 candidate affidavits was before or after that?
21 counsel. 21 A. It's not relevant. It was -- because it
22 MR. TORO: So could you please reread the 22 was an issue, a ballot question, similar to a recall
23 question. 23 election, again, according to the Secretary of State's
24 (The last question was read back as 24 guidance, making it very clear that a political
25 follows: "In fact, if you look at Exhibit 2, that 25 committee was not the proper format to follow.
46 48

1 letter tells you that a political committee shall 1 Q. Okay. I understand that you've testified
2 identify the types of candidates being supported or 2 to that, and I'm not trying to challenge your
3 opposed, such as party affiliation, and if known, the 3 testimony. I'm just asking about your -- and I
4 specific candidates being supported or opposed. So 4 understand you're telling me that it's irrelevant, and
5 doesn't that suggest to you that you could be a 5 I'm not going to agree or disagree. I'm just asking
6 political committee before you even know what specific 6 you, can you recall whether you knew about the window
7 candidates you're going to oppose?") 7 for judge and justice retention candidate affidavit
8 A. My answer to that is no, it does not 8 filing as of when you filed the amended committee
9 suggest to me that I should be a political committee. 9 registration statement?
10 It suggests very clearly that I should not be a 10 A. I cannot recall a specific date. Again,
11 political committee because of that fact. And relying 11 I have been learning throughout the entire course of
12 on additional guidance from the Secretary of State's 12 the process.
13 office, it was very clear that the proper form for 13 Q. Now, let's go back to this Exhibit F to
14 Clear the Bench Colorado was an issue committee. 14 Exhibit 1. So this is -- the e-mail says it's from
15 Q (BY MR. TORO) But you just told me that 15 Marc Walegur to Kristine Reynolds and Kathy Hill. By
16 the issue of whether or not any judges or justices had 16 the way, now that we see Kathy Hill in the re line,
17 at that time filed candidate affidavits was not 17 does that refresh your recollection as to who the
18 discussed between you and the Secretary of State's 18 supervisor was?
19 staff during this time period. 19 A. The name does sound familiar. Is that
20 A. Right. It wasn't relevant at that time. 20 the supervisor?
21 Q. Did you inquire as to whether any of the 21 Q. I'm asking you.
22 judges or justices that had filed candidate affidavits 22 A. Could be. It seems logical.
23 during this time period of May and June 2009? 23 Q. But other than that it seems logical, you
24 A. No, I did not, because that would be 24 don't recall if that's the person or not?
25 silly. You know very well that's not the process. 25 A. I don't recall specifically. Again, most
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1 of my conversations were with Marc or Kristine. They 1 the advisory committee met afterwards. But this
2 tend to answer the phone more than the supervisor, I 2 guidance was the internal policy of the Secretary of
3 would guess. 3 State's office.
4 Q. And do you know what Marc and Kristine's 4 (Deposition Exhibit 4 was marked.)
5 job titles or positions were? 5 Q. You've been handed Deposition Exhibit 4.
6 A. No. 6 Can you please take a look at it and let me know if
7 Q. Was Marc Kristine's supervisor or was 7 you recognize that document.
8 Kristine Marc's supervisor? Do you know that? 8 A. Yes. It appears to be the exact same
9 A. Like I say, I don't know their titles. I 9 document as submitted in my affidavit under Exhibit D,
10 know that they work on the elections side of the house 10 delta.
11 in the Secretary of State's office. They're the 11 Q. And what do you understand it to be?
12 primary points of contact for committees such as the 12 A. Acceptance of the issue committee
13 issue committee, Clear the Bench Colorado. 13 registration for Clear the Bench Colorado pursuant to
14 Q. Or just committees of any kind, right? 14 the Secretary of State's guidance and our amended
15 A. Yeah, probably. 15 filing.
16 Q. Is there anything else that you 16 (Deposition Exhibit 5 was marked.)
17 understood about Kristine Reynolds or Marc Walegur's 17 Q. Could you please take a look at
18 job positions, besides what you just told me? 18 Exhibit 5, and let me know if you recognize that as a
19 A. No. I didn't feel the need to inquire 19 printout of Clear the Bench's contribution page as of
20 into the specific title. 20 June 8, 2010.
21 Q. Now, looking at Exhibit F, it says, 21 A. It appears to be.
22 "After much discussion, our initial thought that they 22 Q. Now, I know it says on here published by
23 should register as an issue committee was agreed 23 webmaster on April 2, 2009, at 2:45 p.m. But that's
24 upon." 24 just something that's automatically generated by the
25 Do you know who it was that did the 25 software when you first create the page, right?
50 52

1 agreeing? 1 A. Yeah. April 2nd was before the page was

2 A. Again, according to not only this e-mail 2 even up and running. That was when I was internally
3 where it says, in our internal policy meeting, which I 3 just setting up the page. So what that refers to is
4 assume would include Marc, Kristine, Kathy, and 4 the fact that a contributions page was created on
5 probably other people in the professional staff of the 5 April 2nd, 2009. The contents of that page have
6 Secretary of State's office, that would seem to me to 6 changed.
7 be the "we." 7 Q. Now, about six paragraphs in, there's a
8 Q. Do you know who was on that internal 8 reference to Clear the Bench Colorado being registered
9 policy meeting? 9 as an issue committee with the Colorado Secretary of
10 MR. NICOLAIS: I'm going to object. 10 State. Obviously, that was added after your
11 Speculation. 11 registration was accepted?
12 MR. TORO: I'm just asking him if he 12 A. Yes.
13 knows. That's not speculation. 13 Q. The next sentence says, "As an issue
14 Q (BY MR. TORO) Do you know? 14 committee, there are no limits on the amount or source
15 A. I do not know. 15 of contributions, personal or corporate, but
16 Q. Do you know whether the Secretary of 16 contributions are not tax deductible."
17 State himself was part of that internal policy 17 Do you recall when you added that
18 discussion? 18 language to the page?
19 A. I just testified that I do not know. 19 A. It was after being accepted as an issue
20 Q. But it's not your testimony, is it, that 20 committee. Obviously, I could not have added that
21 the external advisory committee was part of that 21 information before being accepted as an issue
22 internal policy meeting? 22 committee; that would have been a violation. And I do
23 A. No, that's not my testimony. Again, as I 23 not violate campaign finance laws.
24 previously testified, I understood that the advisory 24 Q. Can you give me your best estimate of
25 committee had met prior, and I also understand that 25 about how long after your committee registration was
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1 accepted that you added that sentence to the website? 1 there's a packet -- well, there's a packet that I took
2 A. Probably within weeks. I'm guessing 2 home that explained the difference.
3 probably June 2009. I don't recall the exact date 3 So once my status as an issue committee
4 that I added that language, but it was after the issue 4 had been solidified and accepted by the Secretary of
5 committee registration had been filed, accepted. 5 State, said, okay, so what's the difference? I'll
6 Q. And not long after, it sounds like. Just 6 look it up. Oh, no limits. Great.
7 within a few weeks? 7 Q. Do you still have that packet?
8 A. Probably within a few weeks. 8 A. I may somewhere. I could probably get it
9 Q. But this issue of limits on the amount or 9 replaced at some point.
10 source of contributions was not something you had 10 Q. I don't understand what you mean by get
11 discussed with the Secretary of State staff; isn't 11 it replaced.
12 that correct? 12 A. Well, it's probably online at the
13 A. It was after having the filing accepted 13 Secretary of State's office. I assume that it's
14 that they informed me as to the difference between a 14 guidance they issue online to every committee.
15 political committee and an issue committee. That was 15 Q. Do you know whether it's the same
16 one of the differences. 16 document as the campaign finance manual?
17 Q. And who told you that? 17 A. I don't. It may be.
18 A. Again, I don't recall the exact 18 Q. Have you gone onto the Secretary of
19 conversation and the exact person with whom I had the 19 State's website to look for training materials or
20 conversation. It probably also was pursuant to my 20 manuals at any time since Clear the Bench was -- since
21 research into the difference between issues and 21 the initial filing for Clear the Bench?
22 political committees, so -- 22 A. I looked on the Secretary of State's
23 Q. Well, I just want to understand your 23 website for information on the forms and information
24 testimony. Is it your testimony that a Secretary of 24 on the process. Some of that may have included that.
25 State staff person told you, after your application 25 I'm not sure.
54 56

1 was accepted, that there's no limits on the amount or 1 Q. And is it fair to say that everything in
2 source of contributions to an issue committee? 2 that paragraph that starts out, "Clear the Bench
3 A. There was a -- a campaign finance 3 Colorado is registered as an issue committee" is based
4 training put on by the Secretary of State's office. 4 on information you received from that training
5 And I don't recall the exact date. It was -- I 5 session, whether it was the manual or verbally
6 believe it was in June of 2009. Where they clarified 6 communicated at the training?
7 the difference between the various forms of 7 A. No, it's not fair to say that everything
8 committees. 8 on that paragraph is directly derived from that. No.
9 So that information I took home and was 9 Q. What else?
10 able to refer to afterwards, after they informed me 10 A. It's fair to say that it's derived from
11 that my committee registration has been accepted as an 11 that, from conversations I've had with the Secretary
12 issue committee. I said, okay, so what's the 12 of State, from information published on the Secretary
13 difference? I don't know. 13 of State's website, and probably from a large variety
14 Q. So just to be -- just to summarize, 14 of sources.
15 because I think I understand what you're telling me, 15 Q. What other sources can you remember?
16 after your registration was accepted, at some point in 16 A. Those would be the ones that immediately
17 June or July -- we're not holding you to a specific 17 come to mind.
18 date -- you went to campaign finance training. And in 18 Q. And now -- I think I heard you say that
19 that training, the trainer, in discussing the types of 19 there were other conversations you had with the
20 committees, mentioned these lack of restrictions on 20 Secretary of State's office regarding this issue of no
21 issue committees? 21 limits on an issue committee other than at this
22 A. Yes. And again, I don't recall the exact 22 training session.
23 date of the campaign finance training. I believe it 23 Do you recall with whom you had those
24 was June, but I'm not sure. It may have been late 24 conversations?
25 May. I'm pretty sure it was June, though. And 25 A. It most likely would have been with
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1 Kristine Reynolds or Marc Walegur. Those were my 1 Litten, please.

2 primary points of contact when it comes to filing 2 A. Litten. Spell it, please.
3 reports or documentation with the Secretary of State's 3 Q. L-i-t-t-e-n.
4 office. 4 A. Split pages?
5 Q. But it was definitely after your amended 5 Q. Yes. If you look at the next page, it
6 committee registration was accepted, right? 6 says aggregate contribution amount is $545.
7 A. I don't recall for sure. It was most 7 A. Okay.
8 likely after it was accepted. It may have been in the 8 Q. And that was accepted in -- on
9 course of conversations -- 9 February 9th, 2010. Is that correct?
10 Q. Because I believe earlier in the 10 A. That's what the report says.
11 deposition you told me that the issue of contribution 11 Q. And the report's accurate, correct?
12 limits wasn't discussed between you and the Secretary 12 A. I would certainly assume so.
13 of State staff before your filing was -- 13 Q. I don't think anybody in this case is
14 A. I stated -- 14 claiming that there was an inaccuracy. So there was
15 Q. Please let me finish. 15 an acceptance of a $525 contribution that raised the
16 A. You're trying to put words in my mouth. 16 aggregate total from that gentleman to 545 on February
17 I'm objecting to your putting words in my mouth. 17 9th. That's what you reported.
18 Q. Your counsel can make objections. So let 18 A. Yes, I believe that's correct.
19 me start over and ask the question. 19 Q. And you believe it's correct.
20 Is it still your testimony that before 20 A. (Deponent nodded head up and down.)
21 the amended committee registration statement was 21 Q. And you are aware, are you not, that the
22 accepted, you did not have conversations with the 22 political contribution committee limit is $525?
23 Secretary of State staff regarding the issue of 23 A. I'm aware of that. It's not relevant to
24 contribution limits? 24 Clear the Bench Colorado.
25 A. I believe I stated that I did not recall 25 Q. Could you please turn to Michael J.
58 60

1 specifically discussing that issue. 1 Williams. That was a thousand dollar contribution
2 Q. And that's still your testimony? 2 accepted on March 7th, 2010?
3 A. The focus of our conversations, again, as 3 A. Correct.
4 I previously testified, was about the process and the 4 Q. And that's accurate, correct?
5 proper form of the committee. That was the focus. It 5 A. That is accurate. Again, pursuant to the
6 may have come up, but that was not the focus of the 6 law.
7 discussion. 7 Q. And so you have not refunded to either
8 I'm curious. Why -- why is this even 8 Mr. Litten or Mr. Williams any portion of their
9 relevant? 9 contributions, have you?
10 Q. In a deposition, one of the ground rules 10 A. No. Why should I? It's compliant with
11 is, I get to ask the questions. 11 the law.
12 (Deposition Exhibit 6 was marked.) 12 Q. So at some point in 2009, the website
13 A. No need to be snippy. I was just 13 started telling people, vote no on the four unjust
14 curious. 14 justices, correct?
15 Q. You've been handed Deposition Exhibit 6, 15 A. Correct.
16 and I'd just like you to take a moment to review it, 16 Q. Let me see if I can find that January --
17 and please confirm that this is the April 15, 2010, 17 (Deposition Exhibit 7 was marked.)
18 report of contributions and expenditures filed by 18 Q. You've been handed Deposition Exhibit 7.
19 Clear the Bench. 19 Could you please take a look at that and let me know
20 A. It appears to be. 20 if that's a printout of the main page of Clear the
21 Q. And unfortunately, they don't have page 21 Bench Colorado's website as of January 11, 2010.
22 numbers, but let's see if we can work backwards. 22 A. It appears to be, yes.
23 A. It's alphabetical. So if you're looking 23 Q. Now, let's --
24 for a particular name, you can probably -- 24 A. I cannot testify as to whether or not
25 Q. Thank you. Yes. Could you look at Wayne 25 anything has been deleted or added, but it appears to
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1 be a printout of the website. That is correct. 1 Q. Did you say, vote no on them in November
2 Q. Well, if you see anything in there that 2 2010?
3 looks wrong to you as we go through this, could you 3 A. I can't recall the specific language I
4 please let me know? 4 used at the time. I would have to look -- look at the
5 A. There's a lot of detail here, so -- 5 particular post.
6 Q. Sure. And we're not going to go through 6 Q. Turning to page 10 of 13, there's an item
7 every line of this, so -- 7 that's titled "Clear the Bench Colorado Director Matt
8 A. Good. That could take a while. My 8 Arnold presents the case for voting out four Colorado
9 billable rate is 125 an hour. 9 Supreme Court justices in November 2010 at Parker
10 Q. Looking at the -- let's go to the end and 10 Breakfast Club Monday."
11 work backwards. There's -- on page 11 of 13, there's 11 A. Correct.
12 something that says, "Published by director on 15 12 Q. Did you, in fact, go to the Parker
13 December 2009." And that appears to be the end of the 13 Breakfast Club in December 2009 and present the case
14 post that is called "Clear the Bench Colorado Director 14 for voting out four Colorado Supreme Court justices in
15 Matt Arnold discusses recent Colorado Supreme Court 15 November 2010?
16 rulings on Seng Center radio show." 16 A. I did.
17 A. On page 11 of 13? 17 Q. Why the focus on November 2010?
18 Q. Well, the post starts on 10 and continues 18 A. Because that's when they're up for a
19 on to 11. And I'm really just interested in the date 19 vote.
20 December 15, 2009. And I don't see any dates later in 20 Q. Did you understand that in order for the
21 the document than that. But I presume that's just a 21 justices to be voted on, there was some process to get
22 function of the archiving on the website, and that's 22 them on the ballots between December of 2009 and
23 not really the oldest post on the -- that Clear the 23 November of 2010?
24 Bench ever had? 24 A. Yes.
25 A. No. It looks to me like your intern went 25 Q. Is there any opportunity for Clear the
62 64

1 out and printed off some of the document -- or some of 1 Bench Colorado to get those justices off the bench
2 the posts that were on the page 8 January. There's an 2 other than through a no vote in November 2010?
3 archive of everything that's been posted on the 3 A. Clear the Bench Colorado is educating
4 website, as you are aware. 4 voters as to their rights under the existing process.
5 Q. And how do you access the archive? 5 I suppose there could be other avenues, but that's not
6 A. On the right side, there's a little thing 6 our focus.
7 that says -- by month, you can look at monthly 7 Q. Your focus is on the November 2010
8 postings. 8 election. Fair statement?
9 Q. Do you know when the earliest -- 9 A. Our focus is using the existing process
10 A. In fact, if you look at it conveniently 10 and educating people as to their rights under that
11 under archives, select month. 11 existing process. Correct.
12 Q. And you're pointing at page 13 of 13? 12 Q. Can you in summary describe the people's
13 A. Yes. 13 rights under that process?
14 Q. I see. So that's a dropdown menu. And 14 A. People have a right to vote when the
15 your testimony is, if you click on the dropdown menu, 15 ballot question of retaining a judge or justice in
16 there's a list of months? 16 office comes before them in general elections.
17 A. Yes. 17 Q. And the general election for these
18 Q. Do you know approximately when the first 18 justices that you've been -- that you're talking about
19 post went on Clear the Bench Colorado advocating a no 19 in Deposition Exhibit 7 is November 2010, correct?
20 vote on the four justices? 20 A. Correct.
21 A. I don't know. I'd have to look at the 21 Q. And you knew that even as early as when
22 specific language. Probably when we launched Clear 22 you initially filed the political committee
23 the Bench Colorado back in April of 2009, I discussed 23 registration, right?
24 the four justices. I discussed their violations of 24 A. I knew that they were -- they could be on
25 the Constitution. 25 the ballot, correct.
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1 Q. And the purpose of Clear the Bench 1 MR. NICOLAIS: I actually think you asked
2 Colorado was to educate people that they could vote no 2 what will make you change. And that implies a future
3 on these justices in November 2010, correct? 3 decision by Mr. Arnold.
4 A. Again, you're attempting to abbreviate 4 MR. TORO: I'll rephrase the question.
5 the purpose of Clear the Bench Colorado. Going back 5 Q (BY MR. TORO) As of the time you filed
6 to Exhibit F, the purpose of Clear the Bench 6 the committee registration statements in April and
7 Colorado -- I'm sorry. Exhibit C -- is spelled out. 7 June of 2009, was there anything the justices could
8 Purpose number one, educate Colorado voters on the 8 have done that would have made you change your
9 importance of judges observing principles of the rule 9 approach to their retention?
10 of law in deciding cases; two, educate Colorado voters 10 A. My assessment was on the entire record of
11 on their right to non-retain judges who do not follow 11 their jurisprudence. So again, talking about judges
12 these principles; three, advocate for the 12 who demonstrate a consistent pattern of deciding cases
13 non-retention of justices statewide who demonstrate a 13 in contravention of the Colorado Constitution.
14 consistent pattern of deciding cases in contravention 14 So the consistent pattern had been
15 of the Colorado Constitution, establish statutory law 15 established. The purpose was to educate voters as to
16 and legal precedent and rule of law principles, naming 16 that consistent pattern, as information on which they
17 judges as necessary to educate voters. 17 could base their decision.
18 That is the summary of the purpose of 18 Q. Would Clear the Bench's purpose be
19 Clear the Bench Colorado. 19 affected if a justice were to form their own committee
20 Q. And you understood, did you not, that the 20 to support their retention?
21 time for voters to exercise that right of 21 A. No.
22 non-retention with respect to these four justices was 22 Q. Would Clear the Bench's purpose be
23 November 2010, correct? 23 affected by how much money a justice raised in support
24 A. Correct. 24 of his or her retention?
25 Q. Did you expect any response from the 25 A. Would the purpose be affected? No.
66 68

1 justices you were targeting? 1 Q. I mean, what matters to you is the

2 A. I can't read their minds. They claim to 2 pattern that they've established over the years as
3 read the minds of people in deciding cases, but I 3 justices on the bench. Fair statement?
4 cannot read their minds. 4 A. Fair statement.
5 Q. Does what they do have any effect on how 5 Q. You're aware that Chief Justice Mullarkey
6 you are going forward in terms of their election 6 has announced that she will retire rather than stand
7 campaigns? 7 for retention, correct?
8 A. Not really. 8 A. I'm aware that she has announced her
9 Q. I mean, basically, other than a 9 intent to retire, yes.
10 conversion to your view of the correct adherence to 10 Q. And as far as you know, she hasn't filed
11 legal principles, there's really nothing that would 11 candidate papers to stand for retention?
12 make you change your approach to the justices in the 12 A. Correct.
13 November election, correct? 13 Q. Do you expect her to stand for retention,
14 MR. NICOLAIS: Objection. Asking for 14 as you sit here today?
15 what his plans are, political plans for the future. I 15 MR. NICOLAIS: Objection. Calls for
16 mean, this is beyond the scope of what we agreed to 16 speculation.
17 with the judge. If you've got an issue with that, we 17 MR. TORO: I'm just asking for his
18 can call the judge right now. 18 current expectation.
19 MR. TORO: Let's call him up. 19 A. I can't read her mind.
20 MR. NICOLAIS: Okay. 20 Q (BY MR. TORO) Okay. Would you consider
21 MR. TORO: But before we do that, though, 21 it a success for Clear the Bench Colorado if all four
22 I think that I'm asking about historical events, what 22 of the justices decided not to stand for retention?
23 his understanding was. So let me clarify the question 23 A. I'm not sure where you're going with
24 and go for what his understanding was at the time that 24 that.
25 he filed the registration statements. 25 Q. Well, let me break it down. Chief
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1 Justice Mullarkey's retirement, was that a victory for 1 MR. NICOLAIS: Okay.
2 Clear the Bench? 2 MR. TORO: Let's break.
3 MR. NICOLAIS: Objection. I fail to see 3 (Recess taken, 12:26 p.m. to 12:34 p.m.)
4 the relevance of this line of questioning. 4 Q (BY MR. TORO) We're going to go back on
5 Q (BY MR. TORO) You can go ahead and 5 the record and try to finish up as much as we can
6 answer. 6 before we contact the judge on the issue that's
7 A. I also fail to see the relevance of this 7 currently pending, so we'll move on.
8 line of questioning. 8 Do you know whether any other justice,
9 Q. Well, I need you to answer the question. 9 besides Justice Mullarkey, has filed a candidate
10 Do you view it as a victory for Clear the Bench that 10 affidavit to stand for election in 2010?
11 Chief Justice Mullarkey has announced that she won't 11 A. It's been reported in the news that
12 stand for retention? 12 Justice Michael Bender has filed. I believe his
13 A. Sorry. Your needs are not my problem. 13 effective filing date was June 1st. I may be off a
14 Q. Well, actually, my needs are your 14 day or two, but -- it's been reported in the news.
15 problem, because this is a deposition where you're 15 MR. NICOLAIS: May I clarify? Just the
16 supposed to answer my question. So the question is, 16 full date of that.
17 do you view it as a victory for Clear the Bench that 17 THE DEPONENT: Oh, 2010.
18 Chief Justice Mullarkey has announced that she does 18 MR. TORO: Oh, fair enough. We weren't
19 not intend to stand for retention? 19 doing a memory test on when the date was. Thank you
20 A. I view it as a victory for the people of 20 for the clarification.
21 Colorado that will not have a justice legislating from 21 Q (BY MR. TORO) Now, we've looked at your
22 the bench. 22 website. And I know, of course, it's been updated
23 Q. And I believe you were quoted as saying, 23 since the January printout that we were examining.
24 in connection with her announcement, one down, three 24 But outside of the website, can you describe in
25 to go. Did you say that? 25 general terms -- I'm not asking for a blow-by-blow of
70 72

1 A. I have said that. Correct. 1 campaign experience or campaign efforts, but what
2 Q. Do you think your efforts -- Clear the 2 other efforts has Clear the Bench engaged in during
3 Bench's efforts had an effort on her decision? 3 2010?
4 A. That calls for speculation on my part. I 4 A. Again, I think this kind of gets to
5 can't read her mind. One might logically infer that 5 campaign strategy here.
6 to be the case. 6 Q. I'm not asking for going forward. But
7 Q. You've criticized media outlets that 7 what have you done between -- since the beginning of
8 reported on her decision without crediting Clear the 8 2010 till today?
9 Bench, have you not? 9 A. I've given speeches. I've spoken to
10 A. I have brought -- yeah. I've criticized 10 groups large and small throughout the state.
11 the fact that when they have mentioned something about 11 Q. Can you summarize the message?
12 a vigorous non-retention campaign, that they failed to 12 A. Yes. Summarizing the cases in which the
13 name that vigorous non-retention campaign. That would 13 Colorado Supreme Court violated the Constitution. I
14 certainly seem to be the proper role for media 14 specifically talk about the core four, of course, the
15 reporting news. 15 mill levy tax case.
16 Q. Do you think it's reasonable to believe 16 It would certainly take all day to list
17 that a justice might be affected by the presence of a 17 all of the transgressions of the state supreme court
18 vigorous anti-retention campaign in deciding whether 18 against the Constitution, so to simplify the message
19 or not to stand for retention? 19 for an audience, given a vital chunk, I focus. And
20 MR. NICOLAIS: I'm going to object to the 20 the core four being, of course, the mill levy tax
21 scope of this. We're just getting way beyond what has 21 freeze ruling, which violated the rights of Colorado
22 to do -- 22 citizens under article 10, section 20 of our
23 MR. TORO: This is incredibly directly on 23 Constitution, to weigh in with a vote before any tax
24 point. If he's not going to answer this question, we 24 policy change resulting in a net tax revenue gain
25 need to get the judge on the phone. 25 would be put into effect by whatever means.
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1 The second case, of course, being the 1 your own comments (Sound Off!), your contributions and
2 Braber versus Ritter case, which allowed -- by which 2 your 'No' vote on retaining these unjust justices in
3 the Colorado Supreme Court allowed a circumvention of 3 2010."
4 article 10, section 20. Again, that same pesky 4 A. Yes.
5 requirement to ask the voters first before taking 5 Q. Obviously, you sent that message out by
6 their money by simply renaming taxes as fees. 6 website on January 6, 2010, correct?
7 The Telluride land grab case, which is a 7 A. That looks to be published on actually
8 gross expansion of the abuse of eminent domain for 8 January 10th. I think, published by director on 6
9 taking of people's property. 9 January would be the "Sacre Bleu" case.
10 And the Salazar versus Davidson case back 10 Q. Oh, I see. So the published byline date
11 in 2003 in which the Colorado Supreme Court usurped 11 actually refers to the post below and not the post
12 the constitutional authority of the Colorado 12 above?
13 legislature in order to drop congressional districts. 13 A. It looks that way. Because otherwise,
14 So those are the core four cases that I 14 this would be referring -- the very first page you
15 most frequently discuss. Sometimes we discuss other 15 have talks about what happened on -- what was
16 cases as they come up. 16 published on the 8th. It looks to me that that's the
17 Q. And do you ask your audiences to do 17 case -- or the post to which you are referring. That
18 anything? 18 continues onto page 3.
19 A. I ask them first to educate themselves. 19 Q. Okay.
20 I ask them to educate others by helping to spread the 20 A. Minor detail, but I do believe in being
21 word. And I ask them to get involved and help support 21 accurate.
22 what I'm doing. 22 Q. Well, thank you. I appreciate the
23 Q. Do you ask them to vote no in November 23 clarification.
24 2010 on the justices? 24 The website is paid for by contributions
25 A. I advise them of their right to do so. 25 received to Clear the Bench Colorado, correct?
74 76

1 Q. Let's look at -- let's go back to 1 A. The website was set up with -- largely
2 Exhibit 7, please. 2 with my own contribution. My activities are sustained
3 A. Sometimes it takes the form of saying, 3 and the message is, in part, sustained by
4 exercise your right to vote no, but -- which one is 7? 4 contributions, yeah. I wouldn't say the website is
5 I'm getting lost with all the exhibits here. 5 paid for by.
6 Q. It may be in your pile there. 6 Q. And is it part of the message to say,
7 A. That would be the printout of the 7 support Clear the Bench Colorado with comments,
8 website. 8 contributions, and your no vote?
9 Q. Correct. Could you turn to page 3 of 13, 9 A. That is a tag line that I put in a lot of
10 please. 10 posts, yes.
11 A. Yes. There's a "Weird Wednesday News - 11 Q. Do you also in these campaign events that
12 Colorado Supreme Court schooled" -- in quotes -- "by 12 you're presumably -- your travel expenses are paid for
13 France? Sacre Bleu." Is that the one you're 13 by the contributions -- well, let me ask that first.
14 referring to? 14 When you travel to these events, that's a campaign
15 Q. No. 15 expense that's paid for by contributions to the
16 A. No. Okay. That would be the post on 16 committee, correct?
17 page 3, so I thought that's what you were talking 17 A. It is a campaign expense. Contributions
18 about. 18 to the committee do pay for mileage, as you know from
19 Q. Actually, about halfway through the 19 my filings.
20 page 3, there's a paragraph that starts out, "Don't 20 Q. Sure. And like I said, no one's
21 let the Mullarkey Majority take another bite out of 21 questioning the validity of -- or correctness of the
22 your rights." Do you see that? 22 filing. So I just want to be clear that when you go
23 A. Yes, I do. 23 around and travel and Clear the Bench Colorado is
24 Q. And then the last sentence of that says, 24 paying, part of the message is this message of vote no
25 "Please help support Clear the Bench Colorado with 25 on these unjust justices in November 2010.
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1 A. It would fall under the third purpose -- 1 pitch is.

2 again, getting back to that Exhibit F -- advocating, 2 Q (BY MR. TORO) I think that's hair
3 as necessary -- naming judges, as necessary, to 3 splitting, but I'll go ahead and ask a different
4 educate voters. So, yes. 4 question.
5 Q. And you've been going around the state 5 When you fundraise, do you tell
6 telling people to vote no on these four specific 6 prospective contributors to Clear the Bench Colorado
7 justices on the ballot in November 2010? 7 that if they contribute, it will help get a no vote on
8 A. I have mentioned their role in the core 8 the justices that will be standing for retention in
9 four cases. And the logical conclusion from that is 9 November of 2010?
10 to vote no on justices who -- again, that pesky 10 A. I tell contributors it helps to spread
11 Exhibit F -- who consistently demonstrate a pattern -- 11 the word about what these justices are doing and help
12 or Exhibit C. Sorry. Consistently demonstrate a 12 to educate voters. And that includes as to the right
13 pattern of deciding cases in contravention of the 13 to vote no. And I do advocate for a no vote, based on
14 Colorado Constitution, established statutory law, 14 the consistent pattern of contravening the Colorado
15 legal precedent, and rule of law principles. So, yes. 15 Constitution.
16 Q. But it isn't just a logical conclusion. 16 Q. So you advocate for a no vote to
17 You say, vote no, right? 17 audiences that you're spreading Clear the Bench's
18 A. Sometimes. Probably a lot of the time I 18 message to, correct?
19 will say, you can exercise your right to vote no on 19 A. Correct.
20 these unjust justices, based on the information that 20 Q. And when you fundraise, you advise
21 I've presented. And again, pursuant to the committee 21 potential donors that their money is going to be used
22 registration and the guidance issued by the Secretary 22 to help spread that advocacy of voting no, correct?
23 of State's office. 23 A. I tell them it includes the three
24 Q. Do you also engage in fundraising for 24 purposes of educating voters about the issue of
25 Clear the Bench? 25 non-retention elections, educating voters as to the
78 80

1 A. Yes. 1 issues at stake, educating voters as to their right to

2 Q. What has been your fundraising pitch to 2 vote no on the ballot question of whether or not the
3 Clear the Bench? Can you summarize it for me? 3 justices should be retained in office. Correct.
4 A. Again, that gets into campaign strategy, 4 You're trying to put words in my mouth.
5 and I don't file obligated to answer that question. 5 Clarity is very important.
6 Q. I'm not asking what it will be in the 6 Q. Is there anyone else who has been
7 future. I'm asking you what it has been. 7 authorized during 2010 to speak on behalf of Clear the
8 A. Again, that's campaign strategy. How is 8 Bench besides yourself?
9 that relevant to the line of questioning? 9 A. Authorized by whom?
10 MR. TORO: All right. I guess we'll just 10 Q. Well, you're the executive director of
11 have to put that one down as one to ask the judge 11 Clear the Bench, right?
12 about, as well. 12 A. So you're asking do I occasionally have
13 Although, I would ask counsel to 13 surrogate speakers?
14 reconsider on that one or urge his client to 14 Q. I don't want to put words in your mouth.
15 reconsider, because I thought that you all weren't 15 A. That's why I'm asking what your specific
16 disputing that the money's being spent -- or the funds 16 question is.
17 are being raised for the purpose of telling people to 17 Q. Have you authorized anyone else to give
18 vote no. And that's what I'm getting at here. I 18 speeches or otherwise speak on behalf of Clear the
19 didn't think that was campaign strategy that was 19 Bench during 2010?
20 being -- 20 A. On those occasions where my duties
21 A. No. You asked me for what my pitch is. 21 require me to be elsewhere, sometimes people will
22 That is campaign strategy. That's a different 22 speak on my behalf. That's correct.
23 question. Now, if you ask -- and you did ask -- do I 23 Q. Can you tell me who those persons have
24 do fundraising for the purpose of spreading the 24 been?
25 message, the answer is yes. But you asked me what my 25 A. There have been other volunteer speakers
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1 at -- 1 Q. Okay. But we won't -- I'm not going to

2 Q. Do you remember any of the names? 2 ask you about call-ins, because I know that that
3 A. Are the names relevant? 3 doesn't involve driving.
4 Q. Of course, the names are relevant to the 4 A. I've never been in the studio with John
5 convention of discovery of admissible evidence, so -- 5 Caldara on his radio show.
6 A. Okay. Well, one person who has spoken on 6 Q. You have not. Okay.
7 my behalf is a gentleman by the name of William 7 A. There was a single studio appearance on
8 Eigles, spelled E-i-g-l-e-s. 8 the Independent Thinking television show. That was
9 Q. Anyone else? 9 back in July or August, I think, of 2009. That's on
10 A. That's the only person that specifically 10 the website, as well.
11 comes to mind that I have asked to speak on my behalf, 11 Q. And the mileage to that event was paid by
12 again, primarily when I have had other duties. Again, 12 campaign funds?
13 primarily when I've had military duties that have 13 A. I think so. I -- I'd have to look to see
14 first claim on my time. 14 if I charged for that one or not. I think, in that
15 Q. Do you have any conversation with 15 early stage that I wasn't as good at paying myself
16 Mr. Eigles about what he should say when representing 16 back for a lot of these appearances, so it may not
17 Clear the Bench? 17 have been.
18 A. I give him an example of some speeches 18 Q. Are there any other media appearances
19 that I've given, yes. 19 that you can think of that you had mileage or other
20 Q. And is there any specific speech that you 20 charges to the campaign for?
21 have in mind that you gave as an example? 21 A. For the most part, mileage is personal
22 A. There are a number of speeches that I've 22 appearances.
23 given. I mean, he's seen transcripts of some of them. 23 Q. You mean in person, like speaking to a
24 Some are posted on the website. 24 Rotary Club or something?
25 Q. I think you just answered my next 25 A. Right. Good example. I've spoken to
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1 question. Do you have transcripts of the speeches 1 Rotary Clubs.

2 that you've given posted on the website? 2 MR. TORO: Let's take a short break,
3 A. Some speeches are on the website, yes. 3 because I think we may be pretty much done except for
4 Some speeches can also be viewed in video form on the 4 what we need to get to the judge with.
5 website. 5 (Recess taken, 12:49 p.m. to 12:52 p.m.)
6 Q. And you've also been interviewed by 6 (Deposition Exhibit 8 was marked.)
7 television and radio about Clear the Bench and its 7 Q (BY MR. TORO) Mr. Arnold, I've handed you
8 message; is that correct? 8 Deposition Exhibit 8, which is a printout dated June
9 A. That's correct. 9 8th, 2010. And I would just like you to go through
10 Q. And mileage to those appearances is paid 10 there and let me know if that appears to be an
11 for by Clear the Bench campaign funds, correct? 11 accurate printout of the content of the Clear the
12 A. Yes. If it's a campaign appearance, yes. 12 Bench website on that date.
13 Q. When you've been on Mr. Caldara's radio 13 MR. TORO: I apologize, Counsel. I only
14 show, was that a campaign appearance that was -- or 14 have the one copy. So I don't have one, either.
15 those campaign appearances paid for by Clear the 15 MR. NICOLAIS: Okay.
16 Bench? The mileage? 16 A. As I looked through this, I also just
17 A. Well, when I call into the show, I don't 17 wanted to clarify something. You repeatedly used the
18 think that there's a lot of mileage involved. 18 language "campaign," and I just want to clarify some
19 Q. Fair enough. I didn't know you called 19 of that terminology, because I think that one could
20 in. So assuming you're not just engaging on his show 20 read into that various meanings.
21 as a caller, but you've also been interviewed on that 21 When you say that mileage expenses are
22 show as a guest. Isn't that true? 22 campaign expenses, that could imply one thing or infer
23 A. I've been interviewed on a number of 23 one thing that goes beyond --
24 shows as a guest. For the most part, it's been a 24 Q (BY MR. TORO) Well, let me see if I can
25 call-in. 25 help you out.
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1 A. Just in terms of my filing under the 1 three to go.

2 issue committee structures under the campaign finance 2 MR. NICOLAIS: You know, I guess -- see,
3 law, are they operating expenses which apply to Clear 3 I think he had a broader purpose, and I think we've
4 the Bench Colorado? Yes. 4 set that forth.
5 Q. That's how I meant it. 5 MR. TORO: It's fine if the purpose is
6 A. Okay. Just wanted to clarify the 6 broader. I'm just trying to find out if this is part
7 language. 7 of it.
8 Q. So getting back to my question, could you 8 Q (BY MR. TORO) So getting back to the
9 take a look at Exhibit 8 and let me know if that 9 subject at hand, how do you think the media should
10 appears to be a correct printout of the website 10 have reported on Clear the Bench's role in connection
11 content as of June 8, 2010. 11 with Justice Mullarkey's announcements?
12 A. It does appear to be, yes. Okay. 12 A. Again, the "should have" is sort of a --
13 Q. And if you could turn to page 3 of 10. 13 that would require some supposition on my part.
14 Excuse me. Page 3 of 18. 14 Q. Well, you've criticized the media on the
15 A. Yes. The Kiwanis Club? 15 website.
16 Q. No. The post called, "Surveying the 16 A. Certainly. I've criticized the media
17 Media on Mullarkey retirement. Was Colorado Supreme 17 plenty of times for failing to do their job of
18 Court Chief Justice ousted by Clear the Bench 18 reporting the news.
19 Colorado." 19 Q. So what do you think they should have
20 Could you summarize what message Clear 20 done to have done a better job on this point?
21 the Bench Colorado was trying to get out regarding 21 A. I think they should have looked at the
22 Chief Justice Mullarkey's retirement? 22 totality of Chief Justice Mullarkey's rulings over the
23 A. Yes. It was surveying the media and 23 course of her career. I think they should have
24 their interpretation of what might be the proximate 24 certainly put it in better context than many of the
25 causes of Justice Mullarkey's decision to retire 25 articles did. I think some of them did a very good
86 88

1 rather than face the voters and be held accountable 1 job, actually, of putting it in context.
2 for her various transgressions against the Colorado 2 Q. Do you think Clear the Bench was shorted
3 Constitution over her term of service. 3 by some media as far as credit?
4 And there were a number of articles 4 A. I'm sure that some media probably could
5 surveyed in this post from various media outlets, 5 have gone into greater detail in providing context. I
6 including newspapers, a number of newspapers, other 6 think some media did a very good job of providing
7 print media, some online media, and quite a few -- 7 context.
8 quite a bit of radio shows. Some stations discussed 8 Q. Could you give me an example of media
9 that. And television news, as well. So it's 9 that did a good job of providing context with respect
10 basically a survey of the media evaluation of what 10 to Clear the Bench's role, if any, in Justice
11 might have been influencing her decision to retire at 11 Mullarkey's decision?
12 this somewhat unusual time. 12 A. Well, I thought the -- as I mentioned
13 Q. What do you think the media should have 13 here, the Westword article by Michael Roberts was a
14 reported with respect to her retirement in Clear the 14 pretty good piece.
15 Bench Colorado? 15 Q. And what was good about it?
16 MR. NICOLAIS: I'm going to object to the 16 A. I thought it did a very good job of
17 relevance and scope. 17 looking at what was happening and providing context
18 MR. TORO: Discussing what the campaign 18 for her decision to retire.
19 website statements say. 19 Q. And that context, including the role of
20 MR. NICOLAIS: Well, I guess I'm also 20 Clear the Bench?
21 saying this is something that's not -- this is after 21 A. Among other things, yes.
22 you filed your lawsuit certainly, and -- plus it's not 22 Q. And turning to page 5 of 18, this portion
23 really to the purposes of the committee. And, I mean, 23 says, "Continue to support Clear the Bench Colorado
24 you know -- 24 with your comments (Sound off!) and your contributions
25 MR. TORO: Of course, it is. One down, 25 and vote no on giving these unjust justices another
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1 10-year term." 1 fact that Chief Justice Mullarkey was retiring under
2 That's something you posted on the 2 the context of the likelihood of going down in history
3 website? 3 as the first chief justice of the Supreme Court to be
4 A. It is. And that includes that third 4 voted out by the citizens of the state.
5 purpose of Clear the Bench Colorado, which does 5 Q. And that's what you were attempting to
6 include -- I don't need to rehash it, do I? 6 accomplish through Clear the Bench Colorado, correct?
7 Q. Definitely not. In your view, though, 7 A. It is -- again, the three purposes of
8 that statement is consistent with your statement of 8 Clear the Bench Colorado are educate people as to
9 purpose in the June amended committee registration 9 their right -- as to the process of judicial retention
10 filing? 10 election. Do I really need to keep bringing that back
11 A. Certainly. Naming, as necessary, those 11 up?
12 justices or judges who consistently demonstrate a 12 Q. Well, that's your decision to answer the
13 pattern of contravening the Colorado Constitution. 13 question by continually referring to that exhibit.
14 Q. And Clear the Bench has continued to urge 14 But my question is, you were attempting to accomplish
15 a no vote in November 2010 through June of 2010, as 15 the non-retention of Justice Mullarkey, correct?
16 reflected on this exhibit, correct? 16 A. One of the purposes of Clear the Bench
17 A. Your question is a little convoluted. 17 Colorado is to advocate for the non-retention of
18 Q. Sure. Let me rephrase that. The message 18 justices statewide who demonstrate a consistent
19 of vote no on the unjust justices was still being 19 pattern of deciding cases in contravention --
20 given in June of 2010, correct? 20 et cetera. Justice Mullarkey certainly falls under
21 A. Yes. 21 that definition of a justice who has demonstrated a
22 Q. On the website and in public appearances 22 consistent pattern of deciding cases in contravention
23 by you -- 23 of the Colorado Constitution, established statutory
24 A. Yes. 24 law, legal precedent, and rule of law principles. So,
25 Q. -- and by surrogates, if any. 25 yes.
90 92

1 A. I don't believe there were any surrogates 1 Q. On page 8 of 18 of Exhibit 8, the words
2 in June. 2 "lead to the retirement under pressure of the Colorado
3 MR. TORO: Let's go off the record again 3 Supreme Court's chief justice." Did you write those
4 and see if we need to get the judge, in view of these 4 words?
5 answers. 5 A. Yes, I did.
6 (Recess taken, 1:00 p.m. to 1:07 p.m.) 6 Q. What did you mean by retirement under
7 Q (BY MR. TORO) Mr. Arnold, could you 7 pressure?
8 please turn to page 8 of 18 in Exhibit 8. And I guess 8 A. The fact that, again, as I believe I just
9 the post actually starts on page 7 of 18. 9 explained, Chief Justice Mullarkey was a very smart
10 A. Right. 10 individual, read the writing on the wall, and inferred
11 Q. You discuss the Supreme Court, retention 11 that given the fact that Colorado voters were becoming
12 elections, and Chief Justice Mullarkey's retirement at 12 educated as to her transgressions against the Colorado
13 the Denver Optimist Club. And then it says, "Only the 13 Constitution, as to their right to weigh in on her
14 wildest of optimists would have given any chance for 14 performance as a chief justice of the Supreme Court in
15 Clear the Bench Colorado to have much impact at all, 15 violating their constitutional rights and their
16 much less lead to the retirement under pressure of the 16 ability to do something about it, that they would draw
17 Colorado Supreme Court's Chief Justice." Do you see 17 the logical conclusion that the proper answer was to
18 that? 18 vote her out of office.
19 A. Uh-huh. 19 Q. And who was doing that educating?
20 Q. Do you recall if that underlined portion 20 A. I -- Clear the Bench Colorado was part of
21 is a link to another website, or is that just an 21 that education process.
22 underlining for emphasis? 22 Q. Anyone else?
23 A. It's a link. I don't underline for 23 A. I think a lot of people are starting to
24 emphasis. And that, I believe, linked back to some of 24 pay attention. I don't think there's any other
25 the discussion in various media that talked about the 25 organized effort. But obviously, people are paying
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1 attention and communicating through various means. 1 of information. I certainly point people to -- you
2 Q. But as far as you know, Clear the Bench 2 know, to look it up in the news. And I advise them,
3 Colorado is the only organized effort with respect to 3 please, do get informed about your local judges. It's
4 non-retaining the Supreme Court justices in November? 4 very important.
5 A. As far as I know, Clear the Bench 5 Q. In regard to Chief Justice Mullarkey,
6 Colorado is -- yes, is the only organization that is 6 have you spoken with Chief Justice Mullarkey directly?
7 educating voters as to their rights under the Colorado 7 A. No. I don't think I'm on her Christmas
8 Constitution to weigh in on retention elections. 8 card list.
9 Correct. 9 Q. Have you ever written any e-mails or
10 MR. TORO: Thanks. We're done. Thank 10 letters directly back and forth?
11 you for coming today. 11 A. No.
12 MR. NICOLAIS: Do you mind if I have a 12 Q. Do you know for certain what her reasons
13 couple of follow-up questions? 13 for choosing not to seek retention are?
14 MR. TORO: Oh, I apologize. Of course, 14 A. No.
15 you have the opportunity. 15 Q. Could she, in fact --
16 EXAMINATION 16 A. I can't read her mind.
17 BY MR. NICOLAIS: 17 Q. Could she, in fact, still file for
18 Q. I have a couple of questions just so we 18 retention?
19 can make sure that we clarify. 19 A. She could.
20 Regarding the purposes of the issue 20 Q. Under your understanding.
21 committee of Clear the Bench Colorado, were you -- 21 A. My understanding is that she has until
22 when you formed Clear the Bench, did you view it as 22 August 2nd to file her decision to stand or not stand
23 limited to any certain number of judges or certain 23 for retention.
24 election cycles? 24 Q. Regarding the specifics of this
25 A. No. I looked at it -- like I said, it 25 complaint, and kind of your -- the reasons why you
94 96

1 has to do with the general principles. The fact that 1 filed as an issue committee, you discussed the policy
2 for so long, Colorado voters have really been 2 discussions between, it seems, two different groups:
3 underinformed about the process, been underinformed 3 The internal policy group at the Secretary of State's
4 about their rights. Many people go to the voting 4 office and the advisory committee, the campaign
5 booth not even knowing that they have a vote. So 5 finance advisory committee.
6 that's a huge part of what I'm doing, is bringing up 6 Could you maybe just clarify a little bit
7 that point. 7 about where you thought the advice was coming from and
8 Q. Does Clear the Bench -- when you formed 8 who you thought primarily was guiding you in your
9 it, did you see Clear the Bench discussing multiple -- 9 decision?
10 different judges at multiple different levels? 10 MR. TORO: Objection to form.
11 A. Yes. Obviously, the focus and the 11 THE DEPONENT: Objection to form?
12 attention grabbing part is at the top, but doesn't 12 MR. TORO: Go ahead and answer.
13 necessarily restrict itself to just the Supreme Court 13 THE DEPONENT: Okay.
14 justices. 14 MR. NICOLAIS: It's to form of my
15 Q. When you go around the state discussing 15 question.
16 these matters, have you ever talked about any other 16 THE DEPONENT: Oh, get it.
17 judges or justices besides -- 17 MR. NICOLAIS: If you'd like, I can
18 A. It's actually the most frequent question 18 restate.
19 that I get. People ask me about all of the other 19 MR. TORO: It's up to you.
20 judges at all of the other levels. And I tell them 20 Q (BY MR. NICOLAIS) I'll restate. Would
21 my bandwidth is limited. But clearly there's a crying 21 you please clarify the difference, you believe,
22 thirst for this knowledge. I get that question all 22 between the Secretary of State's internal policy group
23 the time. It's probably the most frequent question I 23 and the campaign finance advisory committee?
24 get. 24 A. Sure. My understanding of the internal
25 So I try to point people to other sources 25 policy group or whatever name they give it, those are
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1 the professional staffers of the Secretary of State's 1 A. Right. There was clearly a crying need
2 office. And it was on their guidance and their advice 2 and a thirst for this information. I mean, people
3 and, quite frankly, their instructions that I relied 3 are -- going around the state talking to people, the
4 in filing -- or in filing the amended filing as an 4 questions I get, the enthusiasm with which I am
5 issue committee, again, based on what they pretty much 5 received, the thirst for knowledge is palpable. It is
6 told me to do. 6 absolutely palpable. Clearly there has been a gap in
7 My understanding of the advisory 7 what has existed prior to the existence of Clear the
8 committee is, that brings in outside groups, including 8 Bench Colorado.
9 CEW, including Colorado Common Cause and a number of 9 And we also talk about a variety of
10 groups, I guess, that sort of discuss issues and rules 10 issues. In your Exhibit 8 here, on page 12 of 18, one
11 and things of that nature. 11 of the posts I published on June 1st talks about the
12 So I understand that their role is not -- 12 role of what makes a good judge, a rule of law or rule
13 I mean, they don't make the decision. They just talk 13 about restraint. Talking about kind of in the context
14 about decisions being made. Is that kind of a good 14 of these various, you know, discussions, talking in
15 summation? 15 the context of what's happening at the Colorado
16 Q. I mean, I can't really answer that 16 Supreme Court and the context of obviously people
17 question for you, but -- 17 paying attention to what's happening on the U.S.
18 A. I mean, my understanding is that the 18 Supreme Court. Looking at educating people on what
19 instructions come from the professional staffers at 19 makes a good judge, looking at that and providing a
20 the Secretary of State's office, that internal policy 20 standard for judging the judges. Citing the American
21 group. They're the ones that make the call. And 21 Bar Association, for example, the model code of
22 they're the ones that made the call and instructed me 22 judicial conduct. Providing that information to
23 to file as an issue committee. That's, I think, is 23 people that -- they're just starving for information.
24 what you're getting at. 24 Q. But you testified that due to your
25 Q. Let's see. Actually, getting back to the 25 limited bandwidth, you made a decision to focus on
98 100

1 forms that you filed, when you filed as a -- your 1 the Supreme Court justices? Is that a fair
2 original form as a political committee, can you tell 2 summary?
3 me how that -- if it was a blank form, how that form 3 A. In the military, when you're clearing a
4 differs from the blank form you would file for an 4 building you start from the top down. So obviously,
5 issue committee? 5 with the limited amount of time on my hands, a limited
6 A. The form doesn't differ at all. It's a 6 number of hours in the day to focus, I always stay
7 different checked box. 7 focused on the top first. And as I have the
8 Q. So they're the same form? 8 opportunity to do more research, as other people
9 A. Exact same form. I mean, I can look at 9 become more aware and involved and begin to contribute
10 it. 10 research, obviously, I can continue to look at other
11 Q. There's no need to, I think. 11 levels, as well.
12 MR. NICOLAIS: I believe that's all. 12 But clearly, the attention grabbing thing
13 Thank you. 13 is to focus on the top.
14 THE DEPONENT: The form is exactly 14 Q. When did you make the decision to
15 identical. 15 focus your limited bandwidth on the Supreme Court
16 EXAMINATION 16 justices?
17 BY MR. TORO: 17 A. When I launched Clear the Bench Colorado
18 Q. Well, I do have a little follow-up based 18 prioritizing -- again, military term: prioritization
19 on your counsel's questions. 19 of effort. You focus on the biggest issues first, and
20 I want to follow up on this point of 20 then you drill down. So clear the biggest issues.
21 limited bandwidth. As I understood your testimony 21 Start at the top.
22 just now, when you filed, you had it in your mind that 22 But it certainly -- it never has excluded
23 Clear the Bench might be around for a number of 23 the possibility of looking at various levels. And as
24 election cycles and focus on different judges or 24 I mentioned previously in testimony, that is one of
25 justices as circumstances warrant. 25 the most frequent questions that I get. What about
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1 all the other judges? 1 mention some of those numbers. I don't recall if
2 Q. Now, you were also asked, have you had a 2 anyone from Hackstaff Gessler was specifically listed
3 conversation with Chief Justice Mullarkey. And 3 there or not.
4 obviously, you have not. And when you testified under 4 Q. Well, I'm not asking about that
5 questions from me that -- about a reasonable 5 communication. I'm asking about what do you know
6 assumption, that was just a reasonable assumption 6 about whether Hackstaff Gessler has been represented
7 based on the facts known to you, correct? 7 on the advisory committee in 2009 and 2010.
8 A. Which -- 8 THE DEPONENT: Did Scott come in?
9 Q. The handwriting on the wall, that she saw 9 MR. NICOLAIS: I can't --
10 the handwriting on the wall, that testimony. That was 10 A. I'm sorry. I don't know for sure.
11 just your reasonable extrapolation of the facts known 11 Q. I'm asking for what you know, and not
12 to you, right? You weren't basing it on anything 12 what your counsel knows. That's part of the --
13 Chief Justice Mullarkey said to you? 13 A. Okay. I don't know for sure. I'm
14 A. Well, Chief Justice Mullarkey is not on 14 guessing, from your line of questioning, that he may
15 speaking terms with me, so obviously not. 15 be, but I --
16 Q. So you just extrapolated from the facts 16 Q. Well, I don't want you to guess. I want
17 that are known to you, to conclude that she saw the 17 to ask you, do you know one way or the other whether
18 handwriting on the wall and that that's a reason why 18 Hackstaff Gessler has been on the advisory committee
19 she retired. 19 during 2009, 2010?
20 A. I certainly think it's a reasonable 20 A. I don't know for sure.
21 inference that that is a factor which probably 21 Q. Would it surprise you to learn that they
22 influenced her decision. However, that's speculation 22 were?
23 on my part. I cannot read her mind. 23 A. No. I'm guessing -- well, no, it
24 Q. Now, about the issue of internal policy 24 wouldn't surprise me. I'm sure Scott is very active
25 group versus advisory committee, so your testimony is 25 in campaign finance issues. So it wouldn't surprise
102 104

1 that the internal advisory -- excuse me. This 1 me.

2 internal policy committee, whatever it's called, is 2 MR. TORO: I think we're done, unless you
3 the professionals, and that's your understanding of 3 have more questions based on what I just asked.
4 who kicked this around and came back to you and said 4 MR. NICOLAIS: Just one question.
5 you should file it as an issue committee. Fair 5 EXAMINATION
6 statement? 6 BY MR. NICOLAIS:
7 A. Yes. Fair statement. And I believe that 7 Q. Matt, you talked about your limited
8 they've communicated that to you, as well. 8 bandwidth as far as Clear the Bench Colorado. Given
9 Q. And the advisory committee is not part of 9 additional resources, when you started Clear the Bench
10 that process? Or what do you understand the 10 Colorado, would you have been talking about a greater
11 relationship of the two processes to be, if any? 11 number of judges?
12 A. I really don't know much about the two 12 A. Absolutely. Absolutely. Because clearly
13 processes. 13 the need is there. If I had additional resources --
14 Q. And you spoke to some extent about the 14 and obviously, that's part of why I'm asking for
15 makeup of the advisory committee. Do you know whether 15 contributions to get those additional resources, which
16 attorneys from Hackstaff Gessler LLC are part of the 16 will include resources to do research and to be able
17 advisory committee? 17 to document that. Yeah, absolutely.
18 A. I don't know for sure. 18 That's part of why I ask for support,
19 Q. Do you have a reasonable understanding 19 both material in terms of contributions and in terms
20 one way or the other? 20 of information. So, yes, absolutely. Additional
21 A. No. I think there was a communication 21 resources would allow me to expand the base of
22 to -- and you had the -- you didn't provide it, but I 22 knowledge and the education that I could provide to
23 believe I linked to a response by the Secretary of 23 the voters of Colorado.
24 State's office characterizing your complaint and 24 MR. NICOLAIS: I'm done. Thank you.
25 statements on the complaint as disingenuous that 25 MR. TORO: We're finished. Thank you so
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2 WHEREUPON, the within proceedings were ) ss.
3 concluded at the approximate hour of 1:25 p.m. on the I, SHARON L. SZOTAK, Registered
4 12th day of July, 2010. Professional Reporter, Certified Realtime Reporter,
and Notary Public, State of Colorado, do hereby
5 * * * * * * certify that previous to the commencement of the
6 examination, the said MATTHEW ARNOLD was duly sworn by
me to testify to the truth in relation to the matters
7 in controversy between the parties hereto; that the
8 said deposition was taken in machine shorthand by me
at the time and place aforesaid and was thereafter
9 reduced to typewritten form; that the foregoing is a
10 true transcript of the questions asked, testimony
given, and proceedings had.
12 I further certify that I am not employed
by, related to, nor counsel for any of the parties
13 herein, nor otherwise interested in the outcome of
14 this litigation.
IN WITNESS WHEREOF, I have affixed my
15 signature this 13th day of July, 2010.
16 My commission expires June 10, 2012.

17 __X__ Reading and Signing was requested.

_____ Reading and Signing was waived.
20 _____ Reading and Signing is not required.

July 13, 2010
1 I, MATTHEW ARNOLD, do hereby certify that
2 I have read the above and foregoing deposition and Mario D. Nicolais, Esq.
3 that the same is a true and accurate transcription of Hackstaff Gessler LLC
1601 Blake Street, Suite 310
4 my testimony, except for attached amendments, if any.
Denver, Colorado 80202
5 Amendments attached ( ) Yes ( ) No
6 Re: In the Matter of the Complaint Filed by Colorado
7 _____________________________ Ethics Watch Regarding Alleged Campaign and
Political Finance Violations by Clear the
8 Deposition of: Matthew Arnold
Dear Mr. Nicolais:
11 The signature above of MATTHEW ARNOLD was Enclosed are the original signature pages(s) of the
12 subscribed and sworn to before me in the county of above-named deposition(s). It was agreed that you would
arrange for signature of same by means of your copy
13 ______________, state of Colorado, this ______ day of transcript(s) and the enclosed signature page(s).
14 ________________, 2010. Also enclosed are amendment sheets for changes if necessary.
15 Please return the signed and notarized signature page(s) and
amendment sheet(s), if any, to our office prior to trial,
_____________________________ furnishing copies to all counsel of record.
16 Notary Public
My commission expires Thank you for your attention to this matter.

17 Sincerely,
20 Kathy Azcuenaga, Filing Assistant
22 Registered Professional Reporters
23 Colorado Ethics Watch 7/12/10 (sz) c: Luis Toro, Esq.
24 Aaron Goldhamer, Esq.
27 (Pages 105 to 108) HUNTER + GEIST, INC. Exhibit 3

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