May 02, 2011 10:10 PM UTC

Ethics Watch to Gessler: Your "Amicus Brief" Is Showing

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• by: Colorado Pols

According to a release we just received from Colorado Ethics Watch, they are objecting to the filing of an amicus brief from Secretary of State Scott Gessler, in effect on behalf of one of his former election law clients Clear the Bench. As we noted a couple of weeks ago, Gessler’s moves to assist Clear the Bench in its case of committee spending disclosure violations immediately raised eyebrows due to his relationship to the case before his election to office. Although, as we were careful to point out before, Clear the Bench’s problem is not as clear-cut a matter of malfeasance as it is the advice they received, and courts have ruled that Gessler, as the group’s attorney, is the one who needed to be sure they were following the law.

But that former responsibility as the group’s attorney, asserts Ethics Watch today, does not give Gessler the freedom to continue to operate on their behalf as Secretary of State:

On Friday, Colorado Ethics Watch filed with the Colorado Court of Appeals its opposition to the attempt by Secretary of State Scott Gessler to file a brief, purportedly as an amicus curiae (friend of the court) in his official capacity.

Gessler represented Clear the Bench in its unsuccessful defense of a campaign finance complaint filed by Ethics Watch in 2010. Administrative Law Judge Robert Spencer agreed with Ethics Watch that Clear the Bench was required to register with the State of Colorado as a political committee, subject to contribution limits, and rejected Gessler’s argument for Clear the Bench that the group should be considered an issue committee not subject to any contribution limit. Now as Secretary of State, Gessler is using his official position to support his former client’s appeal.

Ethics Watch argues that Gessler’s proposed brief is not a true amicus curiae but rather “an improper attempt to obtain a second chance for a party, Clear The Bench, to argue an issue on which Clear The Bench previously lost.” Ethics Watch also objects to Gessler’s attempt to use “the Attorney General’s office and taxpayer funds to advocate on behalf of his former client, a private entity.”

From just a casual read of the response from Ethics Watch, it does seem like Gessler has no business filing an amicus brief in support of Clear the Bench–as they note from precedent, “a clear precondition of appearing as an amicus curiae or for such a brief being filed is that movant not be a party to the dispute in issue.” Which, as the group’s ex-attorney, he obviously is.

And then we get to the fact that Gessler is Colorado’s elected Secretary of State, which only makes his effort to advocate for his former client with an improper amicus brief, well, more so. Like we said previously, the circumstances might honestly add up to a hardship for Clear the Bench, and Matt Arnold might want to ask Gessler if it was in his group’s best interests for Gessler to represent them right before his election as Secretary of State.

But like these alleged violations, that’s their problem. Gessler is once again showing his vast ethical blind spot, and trying to game both sides of the process on behalf of a former client. It’s really quite audacious if you think about it, but you can’t say we didn’t warn you.