Judge’s ruling against judicial reform group Clear The Bench Colorado undermines transparency, accountability in judicial retention vote

Judge’s ruling favors entrenched incumbents and big-money special interests

Late last Friday afternoon, Clear The Bench Colorado was stunned by the news that Administrative Law Judge Robert Spencer (as an executive branch employee, answerable to the governor and not subject to a retention vote himself) set aside the documentary evidence, testimony by Clear The Bench Colorado Director Matt Arnold along with the Elections Division director at the Colorado Secretary of State’s office AND the clear letter of the law to rule in favor of “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) in what the same judge had earlier characterized as a “frivolous, groundless, & vexatious” attack (er, “campaign finance complaint”).

Despite reliance on over a year’s worth of guidance issued by the office of Secretary of State (as confirmed in numerous documents and in witness testimony provided in hearings on 15 September) reached after “numerous” internal policy meetings and much research that Clear The Bench Colorado was, is, and ought to be properly characterized as an “Issue Committee” under campaign finance rules; CTBC’s scrupulous compliance with all rules, regulations, and reporting requirements for over a year; and dismissal of CEW’s earlier complaint as “frivolous, groundless, and vexatious” – the judge changed course and found for CEW in their latest round of attacks, changing the rules in the final quarter of play.

Changing the rules at such a late date – mail ballots go out at the same time Clear The Bench Colorado has been directed to re-file as a political committee – and in direct contravention of the guidance upon which CTBC has relied for well over a year makes a mockery of the process of citizen civic engagement.  As noted by Clear The Bench Colorado lead attorney Scott Gessler,

“That’s just crazy, that ruling,” said Gessler. “What kind of crazy system is that, when you can’t trust what the Secretary of State tells you? [This ruling] means you have to hire a lawyer to do anything- to get involved at all in the political process.” (Colorado Independent, 9/25/2010)

From documentation provided by the office of Secretary of State:

Colorado campaign finance and Judicial retention

While judges are considered “candidates” for the purpose of campaign finance law in Art. XXVIII Sec. 2(2) of the Colorado Constitution, the question of the retention of a judge is a yes-or-no question.  Therefore, a committee organized for the purpose of advocating the retention or removal of a judge is advocating for a yes or no vote on that question, rather than advocating for the election or defeat of a candidate.  A committee organized for such a purpose is akin to a committee advocating for (or against) the recall of an elected official, which would register an issue committee under 1-45-108(6), C.R.S.  To that end, a committee established for the purpose of supporting or opposing the retention of a judge or judges is properly registered as an issue committee for campaign finance purposes.  Such an entity would not be considered a political committee, because political committees are established for the purpose of “support[ing] or oppos[ing] the nomination or election of one or more candidates” (Art. XXVII Sec. 2(12)(a)).  [emphasis added]

Adding insult to injury, the judge’s ruling is granting “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) more time to pay Clear The Bench Colorado what they’ve owed since July than time for Clear The Bench Colorado to re-file under “political committee” status or to appeal the ruling.

Naturally, Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) is trumpeting the ruling as a great victory, declaring in a press release Friday:

“The law does not permit a wealthy few to unduly influence the judicial retention process through large contributions against judges and justices whose rulings they don’t like.  Ethics Watch prevailed today in setting precedent to keep big money out of judicial elections…”

Ironically, the ruling “achieves” the exact opposite: big-money special interests will now be more prone to attempt to influence judicial retention elections behind the scenes, using vehicles other than the open and accountable “Issue Committee” organization types such as Clear The Bench Colorado.

In fact, big-money legal establishment special-interest groups are already active this year in promoting a “retain” vote for judicial incumbents (including, prominently, the three Colorado Supreme Court justices appearing on the ballot this year).  They’re just significantly less honest about their intentions…

In a campaign that has been conspicuous for its LACK of big-money interests and “large contributions” (Toro is whining about two – TWO! – contributions exceeding $500), acting with complete transparency and absolute accountability to educate voters as to their right to hold judicial incumbents accountable for their performance in office, and to shed light on the records of judicial incumbents at the highest levels in order to provide substantive information on which voters can base an informed decision, CEW’s attacks (and the judge’s ruling in this case) do the Colorado electorate a great disservice.

CEW’s Toro is right about one thing: “Judges are… subject to corruption” via the influence of big-money special interests keeping them in office.

The expenditure of tens of thousands (if not hundreds of thousands) by legal establishment special-interest groups comprised of the very lawyers appearing before the judges they are supporting in office is much more likely to exert “undue influence” and raise the potential for “quid pro quo” corruption.

The Colorado Bar Association (COBAR) has already spent over $50,000 this last month (by their own admission) joining three other legal establishment special-interest groups (likely spending a similar amount, although the exact figures have not been made publicly available) in mounting an “education” campaign (electioneering without using the “magic words” of “vote yes” or “vote NO“) to prop up incumbent judges and justices.  In one month alone, they’ve spent more than CTBC has in a year. Combined, these special interests are spending hundreds of thousands of dollars in television, radio, and print ads providing “nonpartisan information about the performance of judges seeking retention” that, curiously, ALL supports a “retain” vote.

Another effort, sponsored by prominent Democrat attorney Mark Grueskin and other partisan attorneys (the “Colorado Judiciary Project”) is also spending large amounts (again, because this group formed as a “social welfare organization” their expenditures are NOT publicly available) supporting the judicial incumbents before whom they argue cases.  Conflict of interest?  Nah!

Ironically, these legal special-interest efforts come on top of hundreds of thousands of taxpayer dollars used to produce and distribute the one-sided and shallow “reviews” perpetrated by the (taxpayer-funded) commissions on judicial performance evaluation – which, again, advocate 100% of the time to “retain” Colorado Supreme Court justices in office.

NONE of these expenditures – hundreds of thousands of dollars to promote the retention of judicial incumbents in office – are transparent and accountable to the public.

Did Friday’s ruling really succeed in “setting precedent to keep big money out of judicial elections…”?

Hardly.   It just provided cover for the big money that’s already comfortably ensconced in the process – erecting additional roadblocks to shedding light on the fact, and restoring accountability to the judiciary.

Clear The Bench Colorado has been consistently open, honest, and above-board in educating the public, and has scrupulously followed the rules under Colorado campaign finance law for over a year.  Forcing CTBC to re-file under a different set of rules – changed in the final quarter – is a mockery of justice.

Yet another reason that now more than ever – it’s time to Clear The Bench, Colorado!

The legal establishment and the political ruling class don’t want you to get informed; they prefer to keep you in the dark, or failing that, convince you NOT to exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and soon-to-be-minus 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 against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions – and vote “NO” on giving these unjust justices another 10-year term!

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