Campaign to replace state Supreme Court justices draws ethics complaint

Colorado Ethics Watch filed complaint Wednesday against Clear the Bench Colorado (CBC), alleging the group has been collecting uncapped donations only issues committees are allowed to receive while acting as a political action committee by campaigning against specific judicial candidates. Clear the Bench founder Matthew Arnold called the complaint a spurious attack and said he has been acting under guidelines developed for Clear the Bench by the Secretary of State.

“We want to bring this issue before an administrative law judge and get a ruling,” Luis Toro, Executive Director of Colorado Ethics Watch, said. “We believe that a committee that advocates for the non-retention of judges should be compared to a political committee in Colorado and there for subject to the $525 cap per donation.”

A political action committee is defined as one which advocates for or against candidates in the state, whereas an issues committee is designed to support ballot initiatives. Amendment 27 of the Colorado Constitution says that justices on the Supreme Court who are standing for retention are candidates according to Toro.

Amendment 27 section 2 reads in part: “Candidate also includes a judge or justice of any court of record who seeks to be retained in office pursuant to the provisions of section 25 of article VI. A person is a candidate for election if the person has publicly announced an intention to seek election to public office or retention of a judicial office and thereafter has received a contribution or made an expenditure in support of the candidacy.”

What is the issue Clear the Bench is really promoting? asked Toro rhetorically. Clear the Bench aims to replace four of Colorado’s Supreme Court justices. Toro said that seems a lot more like candidate election politics than issue politics.

“Clear the Bench says on their website that they consider themselves an issues committee that can accept contributions of any size. We think legally that is wrong. Their website says that their mission is to tell people to vote no on the judges. They are advocating that specific judges not be retained.”

The Clear the Bench campaign is asking Coloradans to vote no when asked to retain Chief Justice Mary Mullarkey and Justices Michael Bender, Alex Martinez and Nancy Rice of the Colorado Supreme Court. 

Arnold acknowledges that they advocate for the removal of those specific judges but he said the Ethics Watch complaint should be aimed at the state not at Clear the Bench.

“This is just a spurious assertion,” Arnold told the Colorado Independent. “[Ethics Watch] knows very well that Clear the Bench Colorado followed the Secretary of State’s guidance in filing as an issue committee.”

Arnold said that the Secretary of State Bernie Buescher‘s office decided that because there were no opposing candidates to the judges and because the ballot question was simply to retain or not to retain a judge, the appropriate designation for them to file under would be that of an issue committee. “It was the Secretaryb of State’s decision.”

“Ethics Watch is just taking more notice of us now because our movement is growing and as a result we are getting larger donations.”

Toro said the concern is that Clear the Bench represents a tear in the armor Coloradans have hammered together to protect the judicial system from special interests. He said through the kind of loophole Clear the Bench has in effect opened up, wealthy donors could disproportionately shape the courts. Promoting an issue, say abortion rights, is different than promoting a candidate or a judge, because the candidate can be obligated or, in effect, bought off to do the bidding of the interests that put them in office.

“An issues campaign can raise unlimited funds only because there is no danger of quid pro quo corruption. However, in the cases of judges, that danger is there.”

Toro pointed to a case in West Virginia where a person spent $3 million independently to make sure a certain judge was retained on the West Virginia Supreme Court. That judge turned around and participated on a ruling that was in favor of the individuals who had funded the campaign. Toro said that is the model they are hoping to avert through a ruling.

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