Judicial-reform group lashes back at 'frivolous, groundless' complaint

An administrative judge will hear arguments Thursday on a campaign finance complaint against Clear The Bench Colorado, the committee organized to oust three left-leaning Colorado Supreme Court justices in this November's election. The defendant's request for summary judgment filed this week alleges the complaint, brought by the liberal litigation group Colorado Ethics Watch, is "frivolous, groundless and vexatious" and demands attorneys fees in addition to dismissal.

CEW alleges Clear The Bench improperly filed as an issues committee, allowing it to accept unlimited contributions under state law, rather than as a political committee, a designation that is places strict limits on contributions and is reserved for candidate campaigns.

In its defense, CTBC points to 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." (Full disclosure: Nicolais also serves as counsel to Face The State.)

"All of that is absolutely false, and I don't think the judge is going to waste any of his time on the attorneys fees request," said Luis Toro, CEW executive director. "Obviously we did do our homework...I expect we'll win on the merits of the case."

"It's such a slapdash complaint," says Arnold. "It's not even good boilerplate, it's bad boilerplate. And they obviously spent a lot more time on the press release than the actual filing."

Colorado Ethics Watch

Luis Toro

The motion to dismiss claims Ethics Watch missed the 180-day statute of limitations on filing a complaint regarding the committee registration, and could have objected to the campaign's registration last year when the issue was still fresh. CTBC director Matt Arnold believes the complaint's timing was calculated to maximize any potential fine and generate negative press ahead of the election.

The state elections division meets regularly with a group called the Campaign Finance Advisory Panel, whose membership is comprised of Republican and Democratic attorneys, "not to mention groups like Ethics Watch," according to SoS spokesman Rich Coolidge. Toro says he never attended the meetings last year - but his boss at the time, former CEW chief Chantell Taylor, did.

In an e-mail to reporters this May, Coolidge says 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."

Toro says even though Clear The Bench was denied registration as a political committee last year - and thus freed from contribution limits - it should have acted as a political committee anyway. He says his group chose to complain this spring when CTBC began to take contributions in excess of the political committee limits.

Why isn't his complaint against Democratic Secretary of State Bernie Buescher, then, when his office gave the advice that allowed CTBC to do just that? "I just can't accept on the facts that are known to me that was a refusal. I don't see anything that says 'no they may not'" file as a political committee, Toro said. Coolidge says CTBC could have theoretically insisted on filing as a political committee, though he says his office issues advice with the intent of encouraging the greatest possible compliance with the law.

Could the secretary of state have done anything differently, in the view of Ethics Watch? "They're not the ones on trial, and I can't speak to that until I know what Mr. Arnold told them." Toro is hoping to depose Arnold in hopes of uncovering new details regarding the application. He declined to elaborate further, saying doing so would reveal his legal strategy.

"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," Nicolais said. Toro denies any suggestion his group targeted CTBC for political reasons, saying he agrees with Arnold's assertion the campaign is non-partisan.

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."