Colorado Ethics Watch

Colorado Ethics Watch finally pays Clear The Bench Colorado for frivolous, groundless, and vexatious complaint

Published April 25, 2013 | By CTBC Director

The wheels of justice grind slooooooooowly…

After almost three years (and after exhaustion of all appeals) since first winning the judgment against “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) for CEW’s “frivolous, groundless, and vexatious” campaign finance complaint against Clear The Bench Colorado (back in July 2010), as spelled out by court order in December 2010, CEW has finally paid what they have owed us for years.

Clear The Bench Colorado‘s victory against CEW, winning an award of attorney’s fees, is only the second time that CEW (with a near decade-long history of conducting harassing legal attacks) has been forced to pay.  It is rare (indeed, almost unheard of – though not totally unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier 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 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 slapping CEW with the bill (which, as noted, runs into the ‘tens of thousands’).

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…

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.

CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of 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 and 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’).

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.

Once in a while – the Underdog wins.

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 to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive 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.

Friday Funnies: …and a Leftist Judiciary! (reprise, again)

Published December 20, 2012 | By CTBC Director

Welcome to the 2012 Christmas edition of the Clear The Bench Colorado Friday Funnies!

Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.

Last year closed with Colorado courts deciding the boundaries for Congressional districts (after the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (following the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts over the summer), both of which played a prominent role in determining Colorado’s electoral destiny in 2012.

Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long - appeal to the Colorado Supreme Court.

The first stages of the court appeal seeking to preserve school choice concluded last month (Nov 2012) with oral arguments before the Colorado Court of Appeals (a ruling by the 3-judge panel isn’t expected until early next year, most likely late January or February).

Meanwhile, the ‘Lobato’ school funding lawsuit – called the “Super Bowl of school funding litigation” – continues to slog its way through the courts as well.

Earlier in the year, after two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

Another, wider-ranging challenge to TABOR is still being fought out in Federal court: the notorious “Fenster’s Folly” frivolous anti-TABOR lawsuit (which not only challenges TABOR in particular, but more generally citizens’ right to petition under a flawed reading of the “republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) which multiple U.S. Supreme Court cases have ruled non-justiciable (meaning, not subject to determination by the courts).

One major ruling by the Colorado Supreme Court DID uphold the law – and the rights of Colorado citizens – when striking down the University of Colorado’s illegal gun ban (March 2012).  Unfortunately,  the CU administration (backed by the CU Board of Regents) moved almost immediately to circumvent the court’s ruling and continue to violate state law by promulgating policies banning guns in certain areas (not authorized by statute) and additional gun ban legislation (unfortunately backed by many on the CU Board of Regents) to further restrict and roll back hard-fought self-defense rights is coming.

Finally, to close out the year, the Colorado Supreme Court and Court of Appeals moved into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt, without required voter approval) just one week before closing for the holidays.

All of these issues were comprehensively documented by Clear The Bench Colorado over the last year – while the “mass media” and the majority of the state’s “news” organizations gave them short shrift.

Clear The Bench Colorado also continued the public service of providing comprehensive, well-referenced evaluations of judicial performance in 2012 – again, in contrast to the “official” taxpayer-funded “Blue Book” rubberstamp “reviews” disseminated at great expense (and, when put out at polling locations, in violation of state law) by the Colorado Office of Judicial Performance Evaluation.

Although remaining mindful that what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.

Although still awaiting payment over two year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July 2010 found CEW’s complaint to be “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:

…and a Leftist Judiciary!

While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

Speaking Out on Reforming Colorado’s Campaign Finance Laws

Published December 19, 2011 | By CTBC Director

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Abridging the freedom of speech – particularly political speech – has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

In “modern” and “civilized” times, the tools of repressing political speech have “evolved” from the brute force of physically preventing anyone from speaking out to the more subtle and “sophisticated” methods of legislating limits, building bureaucratic barriers, and piling on paperwork for “permission” in order to exercise what is a fundamental right.

A confusing cloud of campaign finance laws in Colorado challenge the Constitution, chill free speech, and curtail civic participation.

On Thursday December 15th, the office of Colorado Secretary of State held open hearings to receive public testimony (chaired by Secretary of State Scott Gessler) on rules changes oriented towards clarifying and reforming Colorado’s unconstitutional campaign finance laws.

A number of people – both supporting and opposing specific rules changes, and/or speaking out more generally on the topic of the impact of campaign finance laws on political speech and civic participation – submitted written comments, showed up in person to testify, or both.

Curiously, the people supporting the reforms to campaign finance rules largely spoke as individuals or as representatives of small, grassroot organizations, while those opposing the rules reforms almost uniformly represented well-established politically-active special interest groups (see below for list).

A common theme emerged regarding the complexity of existing campaign laws, and the resultant cost, burden and difficulty of compliance.

Some people – such as Colorado state senator John Morse – think that’s just “the price of transparency”:

(Video courtesy of Ari Armstrong of Free Colorado)

Organizations opposing rules changes to reform campaign finance laws at the hearing:

Curiously, none of these politically active organizations – NOT ONE – is subject to the same reporting and disclosure requirements that they support imposing on others.
(NOTE: the state Democrat and Republican parties are subject to some campaign finance reporting and disclosure requirements, but differ in some details)

In fact, the Colorado Statesman profiled some of these groups in a pair of articles last year:

Testifying in favor of rules changes to reform campaign finance laws at the hearing:


Clear The Bench Colorado director Matt Arnold testifies in favor of reforming Colorado campaign laws

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.  Interested individuals or groups can still submit written comments to the Secretary of State’s office until Friday, 23 December.

Other videos on how Colorado campaign laws adversely impact free speech:

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 to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive 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.

Reforming Colorado’s Unconstitutional Campaign Finance Laws

Published December 14, 2011 | By CTBC Director

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Abridging the freedom of speech – particularly political speech – has a long and sordid history, as the ruling ‘Establishment’ or entrenched special interests seek to suppress criticism and competition.

Techniques have evolved from outright bans, gag orders, and brutal repression to a more subtle and “civilized” approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to engage in free speech on political issues is not banned - perish the thought! – although to practically and effectively exercise that right, by collecting and spending money to reach a mass audience, you’ll first need to fill out a few forms…

Actually, you’ll need to do far more than that.  Under Colorado’s campaign finance regime, if you wish to speak out on issues or questions that may appear on the ballot, you’ll need to form and register an “Issue Committee” – as defined in Colorado Constitution Article XXVIII, § 2(10)(a):

(10) (a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:
(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or
(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.
(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

Colorado’s ‘Campaign Finance Laws’ challenge the Constitution, chill free speech, and curtail civic participation

The amount of paperwork and resources (time and/or money) required in order to simply exercise a fundamental right (freedom of speech) is significant, and itself exerts a chilling effect on civic or political participation.  Individuals and small groups, particularly those becoming active for the first time, face a daunting amount of red tape: establishing and registering a committee, opening a separate bank account, keeping detailed financial records, filing frequent and detailed reports of contributions and expenditures – all under threat of fines and other legal sanctions for mistakes, no matter how minor.

Even if they DO follow the rules to the letter, committees may STILL be forced to defend their right of civic participation in court, thanks to the proliferation of legal attack groups (such as the grossly misnamed “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do) that exist solely for the purpose of harassing and diverting resources from ideologically opposed organizations.  The cost of defending against such attacks is another deterrent to participation.  Even a successful defense can cost tens of thousands, and even defeating an attack so completely without merit (in legalese, a “frivolous, groundless, and vexatious” complaint such as the CEW attack on Clear The Bench Colorado) that the judge takes the rare step of awarding attorneys fees to the defense can divert scarce resources (and take months, if not years, to collect). [Ed. to date, CEW still refuses to pay what they owe to CTBC, continuing to contest the judgment against them all the way to the Colorado Court of Appeals]

Origins of Colorado’s Campaign Finance Regime

Interestingly, many of these restrictions on freedom of (political) speech are a relatively recent development.  In 2002, as part of the wave of “campaign finance reform” measures that swept in the subsequently-found-unconstitutional McCain-Feingold law on the national scene, Colorado voters were persuaded to vote for Colorado Amendment 27 (which became Colorado Constitution Article XXVIII).

Many of these so-called “campaign finance reform” measures have since been found unconstitutional, as violating First Amendment rights of freedom of speech and freedom of association – in a word, censorship.  However, until challenged, many of the laws remain on the books – forcing individuals to fight for their fundamental constitutional rights in court.

Constitutional Challenges to Colorado’s Campaign Finance Regime

One such recent court case originating in Colorado, Sampson v. Buescher, resulted in a Federal court (10th Circuit) holding certain sections of Colorado Constitution Article XXVIII in violation of the United States Constitution.  Specifically, provisions of Article XXVIII were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.

The rationale behind Article XXVIII (as Amendment 27) was to reduce “disproportionate influence” over the political process by “large campaign contributions.”  The 10th Circuit held that Colorado’s $200 trigger for requiring committee registration and subsequent disclosure and reporting failed to meet the test of either “large contributions” or “disproportionate influence” that might justify public interest, and was therefore an unconstitutional  burden on the freedoms of speech and association protected under the First Amendment.

Rolling Back the Regime – Restoring Constitutional Protections

In response to the 10th Circuit’s ruling in Sampson v. Buescher, the office of Colorado Secretary of State (beginning under outgoing SOS Buescher, continued and successfully concluded under newly-elected Secretary of State Scott Gessler), pursuant to the Secretary’s constitutional rule-making authority under Article XXVIII, Section 9(1)b, proposed a rules change to raise the registration and reporting threshold for Issue Committees to $5,000 in order to bring Colorado’s requirements in line with the court’s ruling.

Last May, after soliciting and reviewing written comments and holding public hearings,  based on the overwhelming weight of public comment and testimony in favor of raising the registration and reporting threshold, the office of Secretary of State adopted the new rule on 13 May 2011.

Unsurprisingly, the rules change was challenged in court – by the perennial campaign finance attack group “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do), and advocacy group “Common Cause” which despite extensive political participation are not subject to the same financial disclosure and reporting regulations as the groups they attack.

Recently, Denver District Court Judge A. Bruce Jones ruled that Gessler “went beyond his authority” in adopting the rules change (Gessler is appealing).  Judge Jones (who is subject to a retention vote in 2012) had earlier “unloaded on Colorado Secretary of State Scott Gessler” at the initial hearing on the case – later admitting that he had not yet read the written briefs before issuing his critical remarks.

Pending the appeal, the office of Secretary of State is again holding public hearings (and accepting written comment) on these and other rules changes to Colorado’s campaign finance laws – most of which are oriented towards clarifying, simplifying, and/or reducing the burden on political participation.

The Revised Draft of Proposed Rules is posted on the Secretary of State’s website, along with written comments submitted in support or opposition.

Clear The Bench Colorado submitted a written brief in support of Proposed Rule 4 (clarifying requirements for Issue Committees) and Rule 20 (Redaction of Sensitive Information) and will offer verbal testimony at Thursday’s hearing as well.

(Hearing is scheduled for December 15, 2011 from 9:00AM to 12:00PM in the Blue Spruce Conference Room on the 2nd floor of the Secretary of State’s Office at 1700 Broadway, Denver CO 80290)

Written Comments

Additional commentary on Colorado’s campaign finance regime

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 to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive 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.

Midweek Update: Governor Hickenlooper, AG Suthers seek dismissal of ‘political’ anti-TABOR lawsuit (Fenster’s Folly)

Published August 17, 2011 | By CTBC Director

Predictably (indeed, Clear The Bench Colorado predicted both motion and grounds almost three months ago), Governor Hickenlooper and Attorney General John Suthers filed a Motion to Dismiss the anti-TABOR lawsuit (“Fenster’s Folly“) this week, noting that the lawsuit raises a ”political question” rather than a legal issue and is therefore (as the U. S. Supreme Court has previously ruled, several times) “non-justiciable” (meaning, a policy issue not to be decided by the courts).

The state’s Motion to Dismiss Plaintiffs’ Substitute Complaint echoes the same points and references raised in Clear The Bench Colorado‘s review of the lawsuit when it was filed back in May of this year (“TABOR, citizen initiatives targeted by frivolous Fenster lawsuit“):

I. All the claims asserted by Plaintiffs present political questions that the U.S. Supreme Court has long held to be nonjusticiable. The Plaintiffs ask this Court to do something the Supreme Court has consistently refused to do: overthrow a state law for being too democratic.  Not only has the Court never done such a thing, it has repeatedly held that claims of this sort may not be entertained by federal courts. [Motion to Dismiss, p.5-6]

The Motion proceeds to highlight the danger of judicial activism that would inevitably result:

Beyond the “lack of judicially discoverable and manageable standards,” the claims presented here would entangle the Court in policy determinations it must avoid. [Motion at 8]

Noting further the hypocrisy of the plaintiffs’ argument that “ some direct democracy should be upheld, so long as it results in their preferred policy” [Motion at p.8] the state concludes

It would be difficult to imagine a more glaring example of “a policy determination of a kind clearly for non-judicial discretion.”  Baker, 369 U.S. at 216.

Noting the “narrow and limited authority” of judges, the Motion cites an earlier Federal court ruling:

Our entire System of Government would suffer incalculable mischief should judges attempt to interpose the judicial will above that of the [coordinate branches], even were we so bold as to assume that we can make better decisions.”) [ Pauling v. McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963)]

Now where have we heard that before?

In fact, as the Motion further elucidates,

B. The Supreme Court has specifically held that claims like Plaintiffs’, based on citizen initiative power to tax, are nonjusticiable political questions [Motion at 11]

In a deliciously ironic twist, the Motion even cites the Colorado Supreme Court’s arrogation of legislative authority to the judicial branch in the Salazar v. Davidson redistricting case:

In Salazar, the court extended this rationale to include the courts.  79 P.3d at 1232-33, 1236-37.  Neither of these decisions has been disturbed.  See Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Lance v Coffman, 549 U.S. 437 (2007) (refusing to address challenges to Salazar).  So even if Plaintiffs were correct that only a state’s “legislature” can enact laws, these cases require inclusion of the people (not to mention the judiciary) within that concept.

The remainder of the Motion addresses issues of Standing (in brief, the Plaintiffs don’t have any) to bring the case – which, while important, will most likely induce acute MEGO (“My Eyes Glaze Over”) in the typical (lay) reader and will not be recounted here.

Clear The Bench Colorado‘s sole critique of the state’s Motion to Dismiss is that the state did not seek attorney’s fees from the plaintiffs under C.R.S. 13-17-101 (to offset costs to taxpayers) for filing what is clearly a ”frivolous, groundless, and vexatious” lawsuit.

Although an award of attorneys’ fees is rare (Clear The Bench Colorado won just such an award against “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do – one of only a few in the last decade) it can be done (although actually collecting on the judgement may take months, or years), when opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

Such abuse of the courts for political posturing can and should be discouraged…

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

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 to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive 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.

Colorado’s ‘Campaign Finance Laws’ challenge the Constitution, chill free speech, and curtail civic participation

Published May 17, 2011 | By CTBC Director

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1st Amendment to the United States Constitution, ratified 15 December 1791

Ruling elites – be they monarchs or oligarchs, dictators or demagogues, or even elective bodies purporting to represent the will of the people – have long sought to suppress criticism and competition through the use of laws or regulations restricting the right and ability of individuals and groups to organize and speak out effectively.

Techniques have evolved from outright bans and brutal repression to a more subtle approach: suppression by regulation and legal intimidation.

In today’s Colorado, for example, your right to free speech on political issues is not banned - perish the thought! – although to practically and effectively exercise that right, by collecting and spending money to reach a mass audience, you’ll need to fill out a few forms…

Actually, you’ll need to do far more than that.  Under Colorado’s campaign finance regime, if you wish to speak out on issues or questions that may appear on the ballot, you’ll need to form and register an “Issue Committee” – as defined in Colorado Constitution Article XXVIII, § 2(10)(a):

(10) (a) “Issue committee” means any person, other than a natural person, or any group of two or more persons, including natural persons:
(I) That has a major purpose of supporting or opposing any ballot issue or ballot question; or
(II) That has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.
(b) “Issue committee” does not include political parties, political committees, small donor committees, or candidate committees as otherwise defined in this section.

The amount of paperwork and resources (time and/or money) required in order to simply exercise a fundamental right (freedom of speech) is significant, and itself exerts a chilling effect on civic or political participation.  Individuals and small groups, particularly those becoming active for the first time, face a daunting amount of red tape: establishing and registering a committee, opening a separate bank account, keeping detailed financial records, filing frequent and detailed reports of contributions and expenditures – all under threat of fines and other legal sanctions for mistakes, no matter how minor.

Even if they DO follow the rules to the letter, committees may STILL be forced to defend their right of civic participation in court, thanks to the proliferation of legal attack groups (such as the grossly misnamed “Colorado Ethics Watch” – CEW, pronounced “sue”, it’s what they do) that exist solely for the purpose of harassing and diverting resources from ideologically opposed organizations.  The cost of defending against such attacks is another deterrent to participation.  Even a successful defense can cost tens of thousands, and even defeating an attack so completely without merit (in legalese, a “frivolous, groundless, and vexatious” complaint such as the CEW attack on Clear The Bench Colorado) that the judge takes the rare step of awarding attorneys fees to the defense can divert scarce resources (and take months, if not years, to collect). [Ed. to date, CEW still refuses to pay what they owe to CTBC, continuing to contest the judgment against them all the way to the Colorado Court of Appeals]

Origins of Colorado’s Campaign Finance Regime

Interestingly, many of these restrictions on freedom of (political) speech are a relatively recent development.  In 2002, as part of the wave of “campaign finance reform” measures that swept in the subsequently-found-unconstitutional McCain-Feingold law on the national scene, Colorado voters were persuaded to vote for Colorado Amendment 27 (which became Colorado Constitution Article XXVIII).

Many of these so-called “campaign finance reform” measures have since been found unconstitutional, as violating First Amendment rights of freedom of speech and freedom of association – in a word, censorship.  However, until challenged, many of the laws remain on the books – forcing individuals to fight for their fundamental constitutional rights in court.

Constitutional Challenges to Colorado’s Campaign Finance Regime

One such recent court case originating in Colorado, Sampson v. Buescher, resulted in a Federal court (10th Circuit) holding certain sections of Colorado Constitution Article XXVIII in violation of the United States Constitution.  Specifically, provisions of Article XXVIII were held to unduly burden the rights of free association and free speech protected under the 1st Amendment, among our most cherished rights.

The rationale behind Article XXVIII (as Amendment 27) was to reduce “disproportionate influence” over the political process by “large campaign contributions.”  The 10th Circuit held that Colorado’s $200 trigger for requiring committee registration and subsequent disclosure and reporting failed to meet the test of either “large contributions” or “disproportionate influence” that might justify public interest, and was therefore an unconstitutional  burden on the freedoms of speech and association protected under the First Amendment.

Rolling Back the Regime – Restoring Constitutional Protections

In response to the 10th Circuit’s ruling in Sampson v. Buescher, the office of Colorado Secretary of State (beginning under outgoing SOS Buescher, continued and successfully concluded under newly-elected Secretary of State Scott Gessler), pursuant to the Secretary’s constitutional rule-making authority under Article XXVIII, Section 9(1)b, proposed a rules change to raise the registration and reporting threshold for Issue Committees to $5,000 in order to bring Colorado’s requirements in line with the court’s ruling.

Following a period of soliciting and reviewing written comments on the draft proposed rule, the office of Secretary of State held public hearings to allow concerned citizens and groups to express comments, concerns, questions, and suggestions.

It is interesting to note that of those who submitted written comments, those in favor of the new rule (relaxing the threshold for registering and reporting committee activities) included over a dozen individual citizens, and no special interest groups.  Conversely, those submitting comments against the new rule (advocating for continued imposition of what has been ruled an unconstitutional infringement of free speech) were ALL representatives of special-interest groups and organizations, including:

(The full list of written comments submitted by interested individuals and groups before and after the hearing is available on the Secretary of State’s website)

Also of interest: NONE of the aforementioned special-interest groups, despite their professed zeal for “open, transparent, and accountable” practices including full disclosure and reporting of all contributions and expenditures, make their finances available for public view.  NONE.

Several individual citizens (but only a single representative of the above-listed special-interest groups, Jenny Flanagan of Colorado Common Cause) showed up in person to testify – almost exclusively (one exception) in favor of relaxing the threshold for Issue Committee registration and reporting).  Citizen activist Ari Armstrong (of Free Colorado) was on hand to testify, and also recorded testimony of others.

Clear The Bench Colorado Director Matt Arnold submitted written comments before the hearing, and also showed up in person to testify (video courtesy of Ari Armstrong, Free Colorado)

Both written comments and oral testimony conclude with what I consider the most powerful argument against Colorado’s campaign finance regime:

In summary: the attack dogs, firehoses and truncheons previously used to harass and intimidate citizens wishing to exercise their rights of free speech and association have been replaced as tools by the more ”civilized and sophisticated” use of lawyers and bureaucrats with the power to impose fines & penalties - even imprisonment – instead of mere physical beatings.

The overall effect – intimidation and abuse of power – remains remarkably similar.

Following the overwhelming weight of public comment and testimony in favor of raising the threshold for Issue Committee registration and reporting, in what must be considered a victory (albeit incremental) for free speech rights, the office of Secretary of State adopted the new rule on 13 May 2011.

Additional commentary on Colorado’s campaign finance regime (H/T Ari Armstrong):

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 to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive 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.

Monday Media Review: Clear The Bench Colorado in the news

Published April 25, 2011 | By CTBC Director

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Clear The Bench Colorado Director Matt Arnold interviewed on Rob McNealy Show

Published January 22, 2011 | By CTBC Director

Clear The Bench Colorado Director Matt Arnold discussed the Colorado judicial accountability effort in 2010 (and beyond) on the Rob McNealy show, Thursday 13 January 2011.

(Listen to the podcast here – the segment starts at the 47:00 minute mark)

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both endeavors, we would appreciate 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

Published December 15, 2010 | By CTBC Director

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.

Midweek Update – Clear The Bench Colorado makes national news (again!) as statewide judicial retention elections heat up

Published September 29, 2010 | By CTBC Director

Following the deluge of news coverage of Clear The Bench Colorado in both statewide and national media over the weekend (with, of course, the notable exception of the Denver Post, stuck in “hear no evil, see no evil, speak no evil” monkey-mode for the benefit of their $1.6M/year upstairs renters – when they’re not devolving into cartoonish name-calling), Clear The Bench Colorado has continued to attract coverage and comment from statewide and national press.

Locally, the Denver Daily News continued the coverage of Friday’s ruling against Clear The Bench Colorado in favor of the entrenched incumbents and big-money special interests represented by “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) in a cleverly (although strictly speaking, inaccurately) titled piece (“Clear The Bench benched“) in their Tuesday edition.  The article noted that the ruling “undermines transparency and accountability in judicial retention vote[s]” and concluded by quoting a CTBC statement:

“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,” wrote Arnold.

“In fact, big-money legal establishment special-interest groups are already active this year in promoting a ‘retain’ vote for judicial incumbents,” continued Arnold. “They’re just significantly less honest about their intentions…”

Meanwhile, on the national front…

The nationally influential Wall Street Journal Political Diary featured Clear The Bench Colorado as the lead story in this week’s edition on Tuesday (“Colorado’s Bench-Clearing Brawl“), beginning:

Usually judicial elections are rubber-stamp landslides for the incumbents, but maybe not this year in Colorado. A citizens movement called “Clear the Bench Colorado” is trying to evict a majority of the state’s Supreme Court in the November elections. For a decade and a half, the court has angered many Coloradoans by handing down anti-taxpayer rulings that grow government and thwart the state constitution.

…and concluding:

If Clear the Bench succeeds in knocking off even one or two Colorado Supremes this year, judges everywhere will be put on notice that they remain accountable to We the People.

My only gripes with the otherwise well-written piece: no mention of the Clear The Bench Colorado website, and (in an apparent search for prominent names to associate with the movement) naming Jon Caldara as an “instigator” of Clear The Bench Colorado (full disclosure: although I know Jon and certainly count him among the leading supporters of CTBC, he’s not an “instigator” – “not Independence nor Backbone nor either Jo(h)n – just little ol’ me – Underdog.”  Er, Matt Arnold – shoeshine boy).

Finally, for the second time in less than a week, Clear The Bench Colorado was written up in the New York Times (online Tuesday, and in the Wednesday print edition, page A30) in another editorial targeting the temerity of mere citizens who dare hold their judges accountable via the only means available (the ballot box).  The editorial (“Fair Courts in the Cross-Fire“) peddles the party line of how the pristine and apolitical courts are being sullied by crass mammon (cold hard cash) being spent on judicial races:

Now the lavish spending by interest groups and the politicization of state court judgeships is spreading from races between two or more judicial candidates to the “retention” ballots that were supposed to shield judges from the rough-and-tumble of the election cycle.

Of course, the editorial fails to mention the pesky fact that their source – the George Soros funded “Justice At Stake Campaign” – has spent over $45 Million promoting a program to disenfranchise voters across the country from having a say on how they are “ruled” from the bench.  Soros and his ilk are attempting to establish control over one-third of our government by removing the possibility for citizen checks and balances – assisted by the unwitting dupes of several well-intentioned (but naive) organizations promoting the “merit selection & retention” process without adequate accountability, transparency, and citizen safeguards.

The editorial also fails to mention the tens of thousands (if not hundreds of thousands) spent by legal establishment special-interest groups comprised of the very lawyers appearing before the judges they are supporting in office (posing an enormous potential for undue influence and quid pro quo corruption).

In Colorado, the state 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.

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.

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!

Search
Recent Posts
Recent Comments
Blogroll
Links & Resources
Archives