Sec of State Gessler draws fire from watchdogs in latest chapter of Clear the Bench case

In the face of criticism that he is improperly meddling in a campaign finance case on behalf of a former private-practice client, Secretary of State Scott Gessler says he doesn’t believe Coloradans should have to hire lawyers to steer clear of penalties when they simply want to participate in the political process.

“The fact is this case could have a chilling effect on candidates and registered agents seeking guidance from the secretary of state’s office,” said Communications Director Rich Coolidge. Gessler, said Coolidge, is seeking to shore up the authority of the secretary of state’s election division so that candidates and their citizen supporters, untrained in legal complexities, can act with confidence on the division’s advice.

“Gessler wants to encourage more participation and comfort for registered agents acting on behalf of their friends who may be running for office or neighbors collecting money as part of a small donor committee. Gessler believes that these individuals shouldn’t have to hire [attorneys]… If they have questions, they should be able to seek and trust the guidance from the secretary of state’s office.”

Friend to the court or bad messenger

In April, Gessler petitioned the state court of appeals to allow him to act as an unbiased “amicus curiae” or “friend of the court,” who wished to submit an argument in a case brought by Clear the Bench Colorado, a committee formed in 2009 to urge Coloradans to vote against retaining four supreme court justices.

Clear the Bench is appealing a ruling handed down last September by Administrative Law Judge Robert Spencer based on a complaint filed by government watchdog group Colorado Ethics Watch.

Gessler, an attorney at the time with high-profile conservative-politics firm Hackstaff-Gesssler LLC, defended Clear the Bench in Spencer’s court and was shocked to lose the case. He called the circumstances navigated by his client “Kafkaesque” and told the Colorado Independent that he thought Spencer’s ruling was “crazy.”

In his decision, Spencer agreed with arguments presented by Ethics Watch. He ruled that Clear the Bench had incorrectly filed with the state as an issues committee when it was in fact acting as a political committee by advocating against the justices as candidates for office. That’s exactly what political committees do, Spencer said, whereas issue committees advocate for or against citizen-initiated petitions or legislatively-referred measures. The categorization matters because political committees are subject to donation limits and higher campaign finance reporting standards.

“What kind of crazy system is that, when you can’t trust what the Secretary of State tells you?” Gessler told the Independent after Spencer announced his decision. “[This ruling] means you have to hire a lawyer to do anything–- to get involved at all in the political process.”

Six months after the ruling and in the wake of an election that made Gessler secretary of state, Ethics Watch believes that, in petitioning the appeals court in the case with an ostensibly unbiased “amicus brief,” Gessler is in fact seeking to obtain a second chance for his former client and that he is using state funds and the authority of his office to do so.

Ethics Watch Director Luis Toro told the Independent that Gessler is the wrong messenger and that the message he is pushing is all wrong, too.

“Amicus briefs are not often controversial,” he said, explaining that they are filed by non-litigants and meant either to add different perspectives than those presented by the parties to the case or to make arguments for an unrepresented party. None of that truly applies here, he said.

“I never expected to argue against an amicus brief in my career but I never thought I’d be presented with a situation like this,” he said, referring to the fact that his former courtroom opponent in the Clear the Bench case is now head of elections and unabashed about asserting himself into the same case. Toro said Gessler is mounting the same defense of Clear the Bench in his amicus brief that he made as Clear the Bench’s attorney last fall, only this time from a posture in which he is supposed to be acting as a mere “friend to the court” not as a “friend” to either of the parties to the litigation.

Amicus brief meet appellee opposition

Ethics Watch filed an opposition to Gessler’s amicus brief Monday (pdf), making just these arguments.

First, Gessler in essence files on behalf of a party and, thus, his brief cannot qualify as an appropriate amicus submission. Second, Gessler’s brief, even if not a thinly disguised brief on behalf of Clear the Bench, does not properly serve the purpose of an amicus curiae. Third, Gessler’s submission constitutes an improper attempt to use state resources for the gain of a private entity. Accordingly, Ethics Watch respectfully requests that Gessler’s motion for leave to file an amicus brief be denied.

In his brief (pdf), Gessler argues that administrative law judges like Spencer lack the authority to override election-rule decisions made by the secretary of state’s office. He argues that the secretary of state “determined that Clear the Bench Colorado was an issue committee” and so Spencer was “bound by the secretary’s ruling and did not have the power to hold otherwise.”

In this brief, as in court last fall, Gessler pointed out that secretary of state staff advised Clear the Bench to register as an issue committee and that Clear the Bench was, in effect, punished for heeding that advice.

Even though the Independent has reported that to be the case in the past, the facts paint a more complex picture.

As Spencer outlined at length in his decision, secretary of state staff waffled on the question and made plain to Clear the Bench that, although some of them believed the group should file as an issue committee, the question was unsettled and that Clear the Bench must rely upon the advice of its counsel, which, of course, was Gessler.

When Clear the Bench, under pressure from Ethics Watch and looking for clarity, asked Secretary of State Bernie Buescher to make a rule on the matter, Buescher declined, specifically stating that the question remained open and that “the Office of Administrative Courts will adjudicate the matter more quickly and with greater authority than is possible in emergency rulemaking.”

Toro said that if Secretary Buescher had handed down an emergency rule in favor of classifying Clear the Bench as an issue committee, Ethics Watch would have opposed that rule and the matter may well have ended up in an administrative court anyway.

The Colorado court of appeals will decide on whether to accept Gessler as a friend to the court and to allow his brief in support of Clear the Bench in the coming days.

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