Colorado Ethics Watch wins Clear the Bench case, but still may have to pay some legal fees

There's a strange, split resolution in the political pissing match between Colorado Ethics Watch and Clear the Bench Colorado, which aims to throw the bums off the state's supreme court. Administrative Law Judge Robert Spencer has ruled in CEW's favor. But the organization still owes legal fees to Colorado Ethics Watch over a previous filing. At this point, though, CEW director Luis Toro doesn't know how much.

Here are the basics of the dispute. Clear the Bench registered as an issues committee -- a designation that places no limit on donations, although such gifts aren't tax deductible. But CEW felt Clear the Bench should have filed as a political committee subject to donation limits, because "judges are defined as candidates in Amendment 27," Toro told us in May.

Nonsense, said Clear the Bench's Matt Arnold, who pointed out that Secretary of State's office representatives had recommended the issues committee filing in the first place. Last May, he dubbed the complaint CEW filed against his organization over the disagreement "a pathetic political ploy by Colorado Ethics Watch to scare off donors and intimidate us. But we're not going to run away from the legal hucksterism they're trying to do."

During the first hearing, Judge Spencer ruled that CEW had filed its complaint prematurely, before judges were required to declare their candidacy. For that reason, Ethics Watch was ordered to pay Clear the Bench's legal fees pertaining to the initial procedure, held in July. But CEW refiled the complaint on the meat of the matter -- and after a September 15 hearing, Toro says Spencer decided that Clear the Bench should have registered as a political committee, not an issues committee.

Clear the Bench won't be required to pay its own penalty, due in part to the informal -- and, in Spencer's view, incorrect -- advice from the Secretary of State's office. But the organization will have to refile as a political committee within the next twenty days, as well as follow the rules that pertain to such a designation.

Toro's take?

"Obviously, we're delighted, although not surprised, that the judge has accepted the legal analysis we've been arguing since the beginning," he says. "We have a long tradition of an independent judiciary in Colorado; it hasn't been nearly as politicized as in some other states. And this decision will help preserve that tradition. Now, one or two people with an agenda can't flood an election with money and send a message to judges that if they don't rule the way they want, they'll be facing a very well-funded opposition from them."

Spencer's ruling in CEW's favor doesn't wipe out its obligation to pay Clear the Bench's legal fees due to the early filing. But it's Toro's understanding that the fees CEW must pay will be limited to those pertaining specifically to the early filing, not the rest of the case -- the issues argued in September. "They're running around saying we owe them tens of thousands of dollars," Toro notes, who says Clear the Bench has until October 11 to come up with a new accounting. "And the judge's ruling made it clear they're not going to get that."

No doubt Arnold has an opinion about that, but he hasn't returned interview requests at this writing. After he does, we'll publish a followup.

In the meantime, Toro does his best to keep the focus on the determination that judges must be treated as candidates, not issues, rather than the legal-fee debt.

"This is enforcing what the voters enacted in 2002," he allows. "And we're proud to be the ones who fought this important fight. Ultimately, this is what the voters intended -- to keep big money out of judicial elections."

Page down to see Colorado Ethics Watch's release about the case, complete with a link to court materials:


DENVER -- Today, Administrative Law Judge Robert Spencer ruled that Clear the Bench Colorado, a committee targeting three Supreme Court justices for defeat in the 2010 general election, violated Colorado campaign law by registering and acting as an issue committee rather than a political committee subject to contribution limits. Clear the Bench will be required to register as a political committee within 20 days, placing important and necessary restrictions on their fundraising and reporting in the future.

Ethics Watch's suit alleged that Clear the Bench violated Amendment 27 by operating as an issue committee, the type of committee that is formed to advocate for or against a ballot initiative or referendum, rather than a political committee subject to contribution limits. Amendment 27 clearly states that judges being voted for retention on an election ballot shall be considered candidates. This means that outside groups formed to advocate for or against those candidates must register as political committees.

"This is a victory for Colorado voters who said in 2002 that judicial elections should be governed by the same rules that apply to other candidate elections," said Luis Toro, director of Colorado Ethics Watch. "The law does not permit a wealthy few to unduly influence the judicial retention process through large contributions against judges and justices whose rulings they don't like. Ethics Watch prevailed today in setting precedent to keep big money out of judicial elections, but today's decision is also a victory for an independent, nonpartisan, merit-based judicial system in Colorado."

The case was tried before Judge Spencer on September 15. In his decision, Judge Spencer rejected Clear the Bench's "strained construction" of the constitutional definition of "political committee" and agreed with Ethics Watch that "issue committees" are only those committees that support or oppose TABOR-mandated elections, ballot initiatives and referred measures. Because Clear the Bench is advocating the defeat of candidates for judicial office, Judge Spencer ordered the group to register as a political committee and abide by political committee restrictions, including contribution limits, within twenty days.

Claiming to be an issue committee, Clear the Bench accepted contributions over the $525 political committee limit and has actively sought large contributions. Ethics Watch argued that since Clear the Bench's primary purpose is to influence voters to vote against Supreme Court justices as candidates, they must be held to the same campaign finance restrictions as a political committee that opposes candidates for other offices.

For the complaint and all related documentation, or for more information on Colorado Ethics Watch, visit

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts