Lessons Learned From HB1258 – Namely Due Process Less Important Than Political Expediency

So I attended and gave testimony on HB1258 yesterday afternoon, which was the bill that was designed to bring due process rights to IEC Respondents.  As expected, it died in committee on a party line vote.  What was not expected though was the following:

1) Overall Weakness of Opposition’s Arguments

Throughout the hearing, the Opposition to HB1258 had a moving target of trying various arguments to cover their ultimate decision, which failed one after another.  Starting off, the Opposition argued that the bill was not necessary as due process was already protected under IEC procedure.  That argument failed though when documentary was presented showing that (a) in the Gessler case, Gessler was essentially convicted of violating State Fiscal Rule 5-1 under the final IEC Order; (b) that State Fiscal Rule 5-1 is a lengthy rule (version given to committee was 14 pages and version here is 10 due to formatting) ; (c) That this Prehearing Order was the notice that Gessler received of what he was ultimately to be charged with and its sole mention of the 14 or 10 Page Fiscal Rule 5-1 is one sentence in Part (2)(f); and (d) that that same Prehearing Order also reserved the right, in the beginning of Part 2 of the order reserved the right to convict Gessler of “additional standards of conduct and/or reporting requirements, depending on the evidence presented, and the arguments made at the hearing in this matter” (in other words, he could be convicted of legal offenses raised for the first time at his “trial”).  To rebut the issue that this due process issue was just a one time occurrence and that this was a problem isolated to Gessler, the County Attorney for Eagle County came and gave testimony regarding this Complaint.  He initially pointed out that the commissioners he represents are Democrats (either majority or exclusively).  He next informed the Commission that the Complaint, as spelled out in the County’s Response, was barely understandable yet the Commission initially agreed to proceed with it without giving notice what the IEC Respondent in that case would be charged with.  Instead, he testified that the IEC indicated willingness to proceed with charging the Commissioners with conduct that violated a “smell test” before ultimately backing down.

The next large argument raised was that it was inappropriate to make the IEC commissioners liable for their willful and wanton actions that violate due process rights.   A quick proviso on this argument – the bill that was debated was amended from what had been previously posted.  Under the amended bill, liability would no longer attach to violations of “clearly established rights”.  Instead, it would have attached only in the instances where the IEC Respondent failed to receive an attorney and/or failed to receive written and electronic notice of the elements of the charges against him, and even then, only when the violation was willful and wanton.  Struggling against these changes, members of the Committee sought to argue that this could still dissuade people from serving as IEC members.  Their argument fell apart when the amendments’ additional provision was discussed: for liability to attach under the amended bill, the Respondent would have to provide written notice of the violation 14 days after it occurred, upon which the Commission would have 28 days to have a mulligan by vacating the hearing/decision and redoing it if it so chose.  Only if (a) the Commission failed to notify a respondent of right to attorney or provide elements of charges; (b) the Respondent complained in 14 days; and (c) the Commission refused to do anything to atone for the mistake would liability thus attach.  On this background, the anti-liability argument substantively fell apart.

The final large argument that was raised that this bill was “unfair” because it was IEC Complainants that needed more resources, not politicians and state employees through a publicly paid for attorney.  The Committee asked a series of questions inquiring as to when a government employee or official could obtain a public attorney to respond to an IEC complaint.  Ultimately, those questions were answered through public testimony: it is the decision of each agency/governmental entity as to whether they wished to defend their officials/employees from and IEC complaint.  And, unlike a complainant who has chosen to initiate the process and can walk away from it at any time, a Respondent has no choice but to either fight it out at great expense or sacrifice his/her good name.   Moreover, attorney Mario Nicolais pointed out that this provision was in the bill due to both the gift ban (officials and employees cannot accept gifts, including moneys for legal defenses).  While Nicolais acknowledged that there were limited instances in which the IEC has permitted legal defense funds, donations to such funds could still be viewed as “contributions” for campaign purposes and limited to several hundred dollars – or an hour or two of attorney time per donation.

2) Liability Was Not The Issue

Although some on the Committee tried to hide behind the position that they were going to kill the bill due to liability, Representative Amy Stephens removed that fig leaf when she offered to have liability removed as a “conceptual amendment” and simply have the Committee approve bill’s due process protections.  The Committee Chair denied the attempt to amend the bill and the Democrat Committee members voted against it, repeatedly stating (without explanation) that it went “too far”.  If liability were really the problem and not a fig leaf, the Committee Chair would have allowed the amendment to protect IEC Respondent rights to due process.

3) The Democrats Who Killed The Bill Felt Guilty For Doing So

Throughout the hearing, it was readily apparent that the Committee members who ultimately voted against the bill were struggling mightily with their upcoming decision.  Not only did their facial reactions and questions display an understanding of the serious due process issues with the IEC that the public testimony revealed, but multiple committee members opposed to the bill said their opposition was only for “today”.  Several even stated on the record that they would be willing to consider a “late bill” on the topic as a bipartisan measure and would push their Democratic Party leadership to allow it.

So that is my report.  As should be clear, I am hardly unbiased in writing this – I have been a major proponent for this bill and consulted in its creation.  But despite today’s vote, this issue isn’t going anywhere.  The IEC continues to have major problems and use of it is continuing to spike as partisans on all sides see advantages in using it for political aims.  As such, we can expect that a form of this bill will be returning sometime in the near future.

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About the Author

Elliot Fladen

He's the libertarian son of Modern Orthodox Jews, the Brother of Haredi Orthodox Rabbis who don't speak with him, the Husband to a beautiful Mexican wife with whom he has two hybrid daughters. His wife and daughters live with him in a cramped apartment where they frequently watch Disney musicals and other assorted cartoons.

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