“If you can’t argue the message, attack the messenger…” (Anonymous)

Political allies of the incumbent Colorado Supreme Court justices subject to a (non) retention vote this November are increasingly showing frustration at their inability to counter the message (and growing momentum) of the judicial accountability movement spearheaded by Clear The Bench Colorado.  Therefore - in the fashion used since time immemorial by those lacking a good counterargument  - they’ve resorted to attacking the messenger.

Most recently, the Denver Post facilitated an attack on the concept of citizen-led judicial accountability by publishing a guest commentary (written by a career politician) called “Criticism of retiring Judge (sic) Mullarkey unfair” which characterized any critique or assessment of judicial performance outside of the lawyer-and-political-insider-dominated Judicial Performance Review Commission as “attacks” and “over-the-top charges.”   Fortunately - although the Post has refused to publish a rebuttal piece submitted by Clear The Bench Colorado (possibly they remain committed to defending the interests of their largest renters - yes, the Colorado Supreme Court rents office space from the Denver Post - over the public interest in fairly reporting the news) numerous citizens lambasted this view as antithetical to the ideals of our democratic republic, where citizens reign supreme (not politicians) and have the right to criticize.

An even more direct attack on Clear The Bench Colorado (and the notion of citizens holding our state Supreme Court justices accountable to their oath to uphold the Constitution) was launched last month (May 5th) when the notoriously mis-named “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) filed a spurious “campaign finance complaint” in a politically motivated and baseless attack.  CEW’s attack - particularly since they obviously spent more time in crafting the press release than in researching and drafting the complaint - showcased the hollowness and desperation of the incumbent justices’ political allies.

CEW’s attack against Clear The Bench Colorado fits an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

Now - after several underhanded attempts by CEW to badger and harass Clear The Bench Colorado (although I had to laugh when being “served”) and a last-minute attempt to sneak in a motion for summary judgement to categorize CTBC as a “political” committee, the CEW complaint received a strong rebuttal in a cross motion for summary judgement & request for attorney’s fees filed Monday afternoon.

Based on the facts (undisputed by both parties), CEW’s complaint “could not prevail” as a matter of law.  CTBC registered in a timely manner, fulfilling all reporting requirements, in accordance with the Secretary of State’s guidance and established campaign finance regulations and procedures.  As noted in the rebuttal,

CEW self-consciously chose to file a complaint againstClear the Bench without alleging all the elements necessary to establish that CEW was a political committee. (As argued below, CEW’s approach is grounds for sanctions.)

Additionally, the guidance of the Secretary of State’s office was completely clear:

Here, the Secretary knew the facts underlying Clear the Bench’s registration… it knew Clear the Bench’s purpose included advocating against the retention of justices. Furthermore, the Secretary not onlyintended that Clear the Bench act in a certain manner, but it also required Clear the Bench to act in a certain manner. Specifically, the Secretary prohibited Clear the Bench from registering as a political committee and notified Clear the Bench to register as an issue committee.

As previously noted, “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was aware of the facts, but chose to proceed with an attack anyway - just the kind of unethical, underhanded behavior that gives lawyers a bad name.  This time, it may end up being an expensive mistake for CEW:

CEW is liable for attorney fees, because the complaint is frivolous, groundless, and vexatious. Under C.R.S. § 1-45-111.5, an administrative court may impose sanctions for a frivolous, groundless, or vexatious claim. “A claim is frivolous if the proponent can present no rational argument based on the evidence or law in support of the claim. A claim is groundless if the allegations in the complaint, while sufficient to survive a motion to dismiss for failure to state a claim, are not supported by any credible evidence.” Finally, a vexatious claim “is one brought or maintained in bad faith to annoy or harass, and may include conduct that is arbitrary, abusive, stubbornly litigious, or disrespectful of truth.”

Granted, the bar is set high for recovery of attorney’s fees - in this case, CEW’s behavior was so low that it’s a realistic (even likely) prospect.

It should come as no surprise that the defenders of those on the courts abusing the constitutional rights of Colorado citizens would themselves attempt to abuse the courts to achieve their goals.  What may have come as a surprise to CEW is that this time, the good guys fought back - effectively.

Stand with Clear The Bench Colorado in defense of your constitutional rights - hold the rulers of our highest courts accountable to the law.  Exercise your right to vote “NO” on the 4 (er, now 3) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business from against eminent domain abuse, your right to fair representation in government, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and exercise your right to vote “NO” on retaining these unjust justices on the bench for another 10-year term!

Tags: Alex Martinez, CEW (pronounced "sue" it's what they do), Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Ethics Watch, Colorado Judges, Colorado Politics, Colorado Secretary of State, Colorado Supreme Court, judical activism, judicial accountability, judicial evaluation, judicial performance, judicial redistricting, judicial retention, judicial usurpation, Know Your Judge, Luis Toro, Mary Mullarkey, Michael Bender, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, unjust justices