Recent Clear the Bench court loss highlights both-ways legal strategy

Clear the Bench Colorado founder Matt Arnold this week lost another court case, the second case in the last half year, but not for lack of trying. Arnold appealed the ruling in the first case even as he leaned on that ruling to file the complaint in the second case. “I got out-lawyered,” Arnold told Westword, conceding, even if unwittingly, that perhaps the both-ways legal strategy he took toward campaign finance laws over the last few months was less about winning than it was about sending messages.

As head of the Clear the Bench issue committee last year Arnold railed at Tea Party gatherings across the state against the liberal leanings of the state’s Supreme Court justices. Government watchdog group Colorado Ethics Watch filed a suit, arguing that Arnold’s clear advocacy against the judges as candidates for office meant Clear the Bench was a political committee and should be subject to contribution limitations. Judge Robert Spencer agreed.

Arnold appealed that ruling. He said the secretary of state’s office told him to file as an issue committee so how could he be wrong to have done so? During the trial, Spencer was sympathetic to that line of argument but said the secretary of state’s office was merely making a recommendation and that, ultimately, Arnold had to act on the advice of counsel. Arnold’s counsel was new Secretary of State Scott Gessler. Judge Spencer ruled Gessler got it wrong.

Arnold then aimed Spencer’s reasoning at Know Your Judge, a campaign run by a coalition of legal groups that included the Colorado Bar Association, the Institute for the Advancement of the American Legal System, the Colorado Judicial Institute and the League of Women Voters. Arnold said if Clear the Bench was a political committee then so was Know Your Judge. He thought Know Your Judge was advocating in favor of the liberal justices and should have been subject to the same contribution limitations and court costs and judicial sanctioning to which not-liberal Clear the Bench had been subjected.

Judge Judith Schulman didn’t think so and tossed the case. She agreed with the Know Your Judge coalition that its campaign was not about advocating for or against individual justices as candidates but about encouraging voters to consider the judicial candidacies with the same level of seriousness they consider candidates for other offices, a conclusion independently arrived at by Colorado Ethics Watch, which was looking at Know Your Judge through the same watchdog lens it was looking at Clear the Bench, according to Ethics Watch Director Luis Toro.

“That’s a main point for us in this latest ruling,” he told the Colorado Independent. “[Ethics Watch] is accused of bias in the cases we choose to file. We were accused of being in league with the [Know Your Judge] campaign. But here Clear the Bench put its money where its mouth was and we were proven right.”

Toro said the two cases have established strong precedent.

“It’s clear that if you oppose justices, then you’re a political committee,” Toro said.

He said the rulings support the will the people of Colorado expressed when they passed campaign finance Amendment 27 in 2002. The amendment caps contributions for political races in an effort to limit the power of special interests.

Arnold said Know Your Judge was simply more crafty in its advocacy. The group’s site linked to other sites that recommended candidates.

“We can mark down March 8, 2011, as the day when the campaign finance law in Colorado was eviscerated because the method they used will be used by other people going forward,” he told Westword.

The Know Your Judge site linked to the Colorado Office of Judicial Performance website among others, which lists the recommendations of its Commissions, created by the state legislature. The site explains the origin of the Commissions and the Commissions methodolgy in ranking judges.

Commissions on Judicial Performance were created in 1988 by the Colorado General Assembly to provide fair, responsible and constructive evaluations of trial and appellate judges and justices. The evaluations enable voters to make informed decisions in judicial retention elections, and also provide judges with information that can be used to improve their professional skills.

The State Commission on Judicial Performance developed evaluation techniques for district and county judges, justices of the Supreme Court, and judges of the court of appeals. According to statute, those criteria include the following: integrity; legal knowledge; communication skills; judicial temperament; administrative performance; and service to the legal profession and the public.

Arnold is now running to head the Colorado Republican Party. The new party chair will be selected the last week of March.

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