Aaron Goldhammer
Monday Media Review: Clear The Bench Colorado in the news
The wheels of justice grind slooooooooowly…
Approaching the one-year anniversary of the initial “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) attack on Clear The Bench Colorado via filing a campaign finance complaint (a complaint which was later held to be “frivolous, groundless, and vexatious” – in other words, completely lacking legal merit – in court, although CEW tried again and got a judge to buy their argument a couple of months later), a final resolution on the many issues surrounding the case(s) – including the court’s award of legal fees payable by CEW to Clear The Bench Colorado, which they’ve so far refused to pay, despite owing us since July – drags on.
Several news articles last week picked up the story again when the Colorado Secretary of State – continuing his predecessor’s position that Clear The Bench Colorado rightfully relied on guidance to file as an Issue Committee, not a Political Committee as CEW alleged CTBC should have done instead, despite guidance to the contrary – filed an amicus brief in support of the appeal entered before the Colorado Court of Appeals.
Naturally, CEW cried foul – whining about the intervention and attempting to spin the story (with the aid of the Colorado not-so Independent media mouthpiece) to try to make Secretary of State Scott Gessler look bad. However, even the left-wing spin machine Colorado Pols admitted not only that “Buescher’s staffers advised Clear the Bench to register as an issue committee” but also that
- The Secretary of State’s office has an obligation to provide public interpretations of the campaign finance laws to the public, candidates, and committees. Here, the previous Secretary, Bernie Buescher, told Clear the Bench to register as an issues committee. The ALJ said he wasn’t bound by Secretary Buescher’s opinion, which the ALJ believed was wrong. The brief addresses only one issue, which is whether or not the ALJ was bound by the Secretary’s interpretation of the campaign finance laws.
- Bernie Buescher is the supervisor of the attorney who filed the brief. That attorney is without a doubt the best and most ethical attorney in the State of Colorado. If you can find anyone who has ever been involved in a case with Maurie who disagrees, I will eat my laptop. That’s easy to say, because you won’t find anyone.
- It’s common for an administrative agency or officer to file a brief defending the power and prerogative of that agency or officer. I don’t remember any cases where the officer previously represented the party that would benefit from the decision if the court decides the way the officer argued, though.
- If Clear the Bench came before Secretary Gessler and Gessler participated in a decision involving CtB, then I would be all over that in a heartbeat. That would be a clear conflict of interest. That’s not what’s going on here, though. This is just a brief telling the Court of Appeals that the ALJ should have done what the previous Secretary said.
All spin aside, it is clear that “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) is desperately on the defensive in all aspects of this case – losing the judgment on the issue of attorneys’ fees, losing the attorney who successfully argued CEW’s round 2 complaint (working pro bono for CEW, Aaron Goldhamer of Sherman & Howard, LLC – as he dropped CEW as a client), and now likely to lose even that transitory “win” on appeal. The organization has been discredited not only for transparently partisan bias, but for their lack of effectiveness in arguing cases (the former acceptable to their financial backers, but the latter – litigative and legal incompetence – the one inexcusable sin).
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s so-called “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Better Late Than Never: Judge orders Colorado Ethics Watch (CEW, pronounced “sue” – it’s what they do) to pay legal fees owed to Clear The Bench Colorado since July ruling
Better Late Than Never…
The latest chapter in the ongoing saga of the legal harassment of the grassroots judicial accountability organization Clear The Bench Colorado by ‘Colorado Ethics Watch’ (CEW, pronounced “sue” – it’s what they do) was wrapped up with this week’s ‘Order Awarding Attorney Fees and Costs‘ to CTBC resulting from CEW’s “frivolous, groundless, and vexatious” complaint filed against CTBC on 5 May 2010.
The court denied CEW’s latest attempt to weasel out of paying their debt to Clear The Bench Colorado pursuant to the judge’s 21 July 2010 ruling on CEW’s 5 May 2010 complaint. (CEW had earlier engaged in legal maneuvering to delay payment, which should have been forthcoming in October at the latest, in order to push resolution of the case past the elections).
The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:
Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous. The ALJ therefore granted CTBC’s request for attorney fees and costs…
Unfortunately – despite relevant case law that entitles CTBC to “all fees and costs incurred prior to the dismissal of the original complaint” – the ALJ reduced the amount of the award based on a subsequent complaint that CEW filed, because some of the defense against the original “frivolous, groundless, and vexatious” complaint supported defense of the later complaint as well.
As a result, the ALJ (Administrative Law Judge) ended up ‘splitting the baby,’ awarding CTBC “$12,987.20 in legal fees and $60 in costs” instead of the full amount necessary to defend against the original complaint (a total of $23,712.50 in fees and costs).
Confirmation of the award of legal fees and costs - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint – comes as both victory and vindication for Clear The Bench Colorado. As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.
In fact, the monumental nature of Clear The Bench Colorado‘s victory in this case – particularly the award of attorney’s fees – is difficult to overstate. It is rare (indeed, almost unheard of – though not totally unprecedented) for attorney’s fees to be awarded in this type of case, as noted in a previously-published article (“Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):
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.
The award of legal fees and costs to CTBC indicates that the judge not only thought that CEW’s case (or “complaint”) was bad – he thought it was SO bad that he took the unusual step of censuring CEW and ordering CEW to pay for their professionally unethical conduct.
However, the precedent set in granting only a partial award of incurred costs is troubling. By giving CEW an ‘out’ for part of the costs forced on CTBC because CEW came back for a second round, the intended deterrent effect of the award (intended to dissuade unethical ‘junk’ lawsuits and complaints) is minimized. Indeed, in a perverse way, by splitting out that portion of the costs incurred which might support defense against additional claims, the ALJ’s ruling in effect encourages additional harassing attacks by losers in such cases, as long as they have the resources to continue pressing a claim (continuously doubling down in the hopes – as occurred in this case – of eventually getting lucky).
Groups like CEW – with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes – abusing the legal system as a political weapon.
Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.
Clear The Bench Colorado‘s victory against the unethical ‘Colorado Ethics Watch’ – holding them accountable for their abuse of the legal system – is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.
Score another one for the underdog!
It should come as no surprise that the allies 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 – once again – the good guys fought back: effectively.
Fortunately, they can be stopped – by citizens with the courage to fight back. Show your support today – stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom. Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.