LAW WEEK COLORADO
DENVER — Judicial-ouster campaign Clear The Bench Colorado, in a move to preclude further litigation against the group, has filed a request for emergency rule-making with the Secretary of State’s office.
Clear The Bench wants the Secretary of State to adopt a rule that says “a committee whose purpose is the support or opposition of the retention of a judicial seat shall register as an issue committee…” The group, which opposes all state Supreme Court justices now up for retention, registered as an issue committee on the advice of the Secretary of State’s office. Its letter to the Secretary of State is found below.
Colorado Ethics Watch, a political watchdog group that files more complaints against Republicans than Democrats, brought a campaign finance complaint against Clear The Bench, claiming it should have registered as a political committee. The state constitution says committees that support or oppose a candidate must register as a political committee, Ethics Watch argued, and judges and justices are defined as candidates.
Issues committees have no contribution limits, while individual contributions to political committees are capped.
Administrative Law Judge Robert Spencer last week dismissed Ethics Watch’s complaint, finding it “substantially groundless and frivolous” because it was filed before any justices had officially declared their intent to seek retention. Clear The Bench was awarded attorneys fees.
Now that three justices have declared their intent to seek retention, Ethics Watch plans to file an amended complaint, most likely on Monday. Clear The Bench seeks to render the amended complaint moot by getting the Secretary of State to make an official rule that the committees opposing judges and justices should register as issues committees.
The Secretary of State’s elections division will consider the request at a meeting next week, said office spokesman Rich Coolidge.
The proposed rule change would improperly override the language of the constitution, said Luis Toro, Ethics Watch’s director.
“Our position has always been and remains that judges standing for retention are candidates and political committees are committees that support or oppose candidates,” Toro said. “We think the plain language of the constitution supports the conclusion that a committee like Clear The Bench be treated like a political committee.”
Clear The Bench is not arguing judges and justices are not candidates, said Mario Nicolais, an attorney with Hackstaff Gessler representing Clear The Bench.
“Rather, the definition of ‘candidate’ is bifurcated between individuals seeking ‘nomination or election’ to a public office and judges or justices seeking retention,” Nicolais said in an e-mail to Law Week Colorado. “Only organizations supporting or opposing candidates seeking nomination or election to public office are required to file as a political committee.”
10 07 23_Ltr to SOS Re Request for Emergency Rulemaking_FINAL-1
