Midweek update: more on Clear The Bench Colorado rebuttal of the frivolous, groundless, and vexatious attack (er, “complaint”) pursued by “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do)

The politically motivated attack (er, “complaint”) by leftist lawsuit machine “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) against Clear The Bench Colorado hit a snag this week when the administrative law judge refused to hear CEW’s motion for summary judgement in isolation (which was an underhanded move by CEW attempting to put only their side of the story before the judge).

Instead, both CEW’s motion and the Clear The Bench Colorado cross motion for summary judgement (used, as in this case, “where no genuine issues of material fact exist and the the moving party is entitled to judgement as a matter of law”) will be considered together, one argument set against the other.  (For those interested in the legalese, the competing motions – along with a brief synopsis – were published by Law Week Colorado Wednesday, “Clear The Bench Asks Judge To Dismiss Complaint“).

Caught flatfooted, CEW has asked for an additional 10 days to prepare their response, and has also requested to “depose” (basically, question or interview) Clear The Bench Colorado Director Matt Arnold as well.  Since the facts of the case are not in dispute, CEW’s request for deposition is obviously just a “fishing expedition” for more information and another attempt to waste my time – no problem, I’ll be sure to charge them my full billable rate for however much time they consume.

Yesterday’s Face The State profiled the case and provides an excellent overview and context of the complaint, our response, the perspective of the Secretary of State’s office, and the record of “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) of filing (and frequently losing) attacks disguised as “ethics” complaints.  The article (“Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“) notes that Clear The Bench Colorado has scrupulously followed all campaign finance rules, regulations, and guidance issued by the Secretary of State’s office, citing in our defense

memos dated over a year ago from the Secretary of State’s Office that advised the group to file as an issues committee. CEW alleges judges standing for retention are similar to candidates seeking elected office; but the Secretary of State and CTBC agreed since the voters are asked a yes or no question on keeping a judge, retention is a political issue, not a contested election involving candidates. The motion for dismissal says Ethics Watch pursued the complaint entirely for political gain and to gin up bad press, with a disregard for the law and the facts.

“[Ethics Watch] absolutely didn’t do any homework, and that’s why we’re asking for sanctions,” said attorney Mario Nicolais, who represents Clear The Bench. “There are very basic things you have to do as a lawyer before you file a complaint.”

As previously noted, the Secretary of State’s office slammed CEW’s complaint and CEW Director Luis Toro as “disingenuous” (basically, a polite way of saying “lying through your teeth”) since they were well aware of the fact that Clear The Bench Colorado had been ruled an Issue Committee (not, as CEW would prefer, a “political” committee subject to much more stringent fundraising limitations), confirming

Ethics Watch had a seat at the table throughout the summer, including at meetings where judicial retention committees were discussed. “Either Toro just plain forgot about this advisory panel meeting or he’s being disingenuous in his comments because Ethics Watch was represented at [the June 18, 2009] meeting and participated in this discussion.”

So why – when CEW clearly knows better that the law is not on their side – file the complaint at all?

“They’re using a lawsuit as an offensive weapon against Clear The Bench Colorado to drain their resources, to tie them up in court, to divert them,” [CTBC attorney] Nicolais said.

Hmmm… sounds pretty much ‘frivolous, groundless, and vexatious’ to me.  Will the judge agree?

Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing. Nicolais believes those criteria are met here.

If the administrative judge does order Ethics Watch to pay up, it wouldn’t be the first time: In 2007, CEW, then operating as Colorado Citizens for Ethics in Government, was ordered to pay attorneys fees to the Committee for the American Dream as a result of filing what the court called “groundless” litigation. In that case, as is alleged in the current complaint against Clear The Bench, the judge concluded CCEG “engaged in no other pre-filing investigation” than a cursory review of online records. The judge rebuked CCEG attorney Chantell Taylor for filing the bare-bones complaint in hopes she would uncover additional evidence in depositions and discovery. The fees were awarded “in the absence of any evidence to support CCEG’s key allegations.”

Will history repeat itself?  We think it might – stay tuned for breaking developments!

Meanwhile – Colorado voters can prepare to make their own history this November.  Inform yourself about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench).  Remember, they 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!

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