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March 11, 2014 04:12 AM UTC

Lessons Learned From HB1258 - Namely Due Process Less Important Than Political Expediency

  • by: ElliotFladen

So I attended and gave testimony on HB1258 yesterday afternoon, which was the bill that was designed to bring due process rights to IEC Respondents.  As expected, it died in committee on a party line vote.  What was not expected though was the following:

1) Overall Weakness of Opposition's Arguments

Throughout the hearing, the Opposition to HB1258 had a moving target of trying various arguments to cover their ultimate decision, which failed one after another.  Starting off, the Opposition argued that the bill was not necessary as due process was already protected under IEC procedure.  That argument failed though when documentary was presented showing that (a) in the Gessler case, Gessler was essentially convicted of violating State Fiscal Rule 5-1 under the final IEC Order; (b) that State Fiscal Rule 5-1 is a lengthy rule (version given to committee was 14 pages and version here is 10 due to formatting) ; (c) That this Prehearing Order was the notice that Gessler received of what he was ultimately to be charged with and its sole mention of the 14 or 10 Page Fiscal Rule 5-1 is one sentence in Part (2)(f); and (d) that that same Prehearing Order also reserved the right, in the beginning of Part 2 of the order reserved the right to convict Gessler of "additional standards of conduct and/or reporting requirements, depending on the evidence presented, and the arguments made at the hearing in this matter" (in other words, he could be convicted of legal offenses raised for the first time at his "trial").  To rebut the issue that this due process issue was just a one time occurrence and that this was a problem isolated to Gessler, the County Attorney for Eagle County came and gave testimony regarding this Complaint.  He initially pointed out that the commissioners he represents are Democrats (either majority or exclusively).  He next informed the Commission that the Complaint, as spelled out in the County's Response, was barely understandable yet the Commission initially agreed to proceed with it without giving notice what the IEC Respondent in that case would be charged with.  Instead, he testified that the IEC indicated willingness to proceed with charging the Commissioners with conduct that violated a "smell test" before ultimately backing down. 

The next large argument raised was that it was inappropriate to make the IEC commissioners liable for their willful and wanton actions that violate due process rights.   A quick proviso on this argument – the bill that was debated was amended from what had been previously posted.  Under the amended bill, liability would no longer attach to violations of "clearly established rights".  Instead, it would have attached only in the instances where the IEC Respondent failed to receive an attorney and/or failed to receive written and electronic notice of the elements of the charges against him, and even then, only when the violation was willful and wanton.  Struggling against these changes, members of the Committee sought to argue that this could still dissuade people from serving as IEC members.  Their argument fell apart when the amendments' additional provision was discussed: for liability to attach under the amended bill, the Respondent would have to provide written notice of the violation 14 days after it occurred, upon which the Commission would have 28 days to have a mulligan by vacating the hearing/decision and redoing it if it so chose.  Only if (a) the Commission failed to notify a respondent of right to attorney or provide elements of charges; (b) the Respondent complained in 14 days; and (c) the Commission refused to do anything to atone for the mistake would liability thus attach.  On this background, the anti-liability argument substantively fell apart.

The final large argument that was raised that this bill was "unfair" because it was IEC Complainants that needed more resources, not politicians and state employees through a publicly paid for attorney.  The Committee asked a series of questions inquiring as to when a government employee or official could obtain a public attorney to respond to an IEC complaint.  Ultimately, those questions were answered through public testimony: it is the decision of each agency/governmental entity as to whether they wished to defend their officials/employees from and IEC complaint.  And, unlike a complainant who has chosen to initiate the process and can walk away from it at any time, a Respondent has no choice but to either fight it out at great expense or sacrifice his/her good name.   Moreover, attorney Mario Nicolais pointed out that this provision was in the bill due to both the gift ban (officials and employees cannot accept gifts, including moneys for legal defenses).  While Nicolais acknowledged that there were limited instances in which the IEC has permitted legal defense funds, donations to such funds could still be viewed as "contributions" for campaign purposes and limited to several hundred dollars – or an hour or two of attorney time per donation.

2) Liability Was Not The Issue

Although some on the Committee tried to hide behind the position that they were going to kill the bill due to liability, Representative Amy Stephens removed that fig leaf when she offered to have liability removed as a "conceptual amendment" and simply have the Committee approve bill's due process protections.  The Committee Chair denied the attempt to amend the bill and the Democrat Committee members voted against it, repeatedly stating (without explanation) that it went "too far".  If liability were really the problem and not a fig leaf, the Committee Chair would have allowed the amendment to protect IEC Respondent rights to due process.

3) The Democrats Who Killed The Bill Felt Guilty For Doing So

Throughout the hearing, it was readily apparent that the Committee members who ultimately voted against the bill were struggling mightily with their upcoming decision.  Not only did their facial reactions and questions display an understanding of the serious due process issues with the IEC that the public testimony revealed, but multiple committee members opposed to the bill said their opposition was only for "today".  Several even stated on the record that they would be willing to consider a "late bill" on the topic as a bipartisan measure and would push their Democratic Party leadership to allow it.

So that is my report.  As should be clear, I am hardly unbiased in writing this – I have been a major proponent for this bill and consulted in its creation.  But despite today's vote, this issue isn't going anywhere.  The IEC continues to have major problems and use of it is continuing to spike as partisans on all sides see advantages in using it for political aims.  As such, we can expect that a form of this bill will be returning sometime in the near future.

This post originally appeared on the Colorado Independent – it is my own original work. 


37 thoughts on “Lessons Learned From HB1258 – Namely Due Process Less Important Than Political Expediency

    1. You still haven't edited your piece and finished the sentence.."~~was in the bill due to both the gift ban…"

      What was the other reason the provision was in the bill?

          1. On Twitter Twitty noted to the counselor this sounded like the Gessler Protection bill causing the apologist to get his drawyers in a bunch… and claim that denying such protections were akin to opposing 'civil rights' (Who can forget that old inspirational hymn: "Honey Badger Shall OVercome…") or the same as embracing police officers beating a subject to a bloody pulp.  ("Can't we all just get along…with a high public employee grafting public funds for partisan purposes?")

            Reading the diary, it reads like the…wait for it…Gessler Protection Act.  

            1. Only a partisan hack would defend not telling people legal (not just factual) basis of charges they publicly face.  Congrats on being outed!

              1. I hear that the charges listed were disguised as a…wait for it…14 page document!!! With different formatting!!!  Oh my! What is an attorney suppose to do with that?????  

                It may as well be the entire stack at DU!

                1. The charges listed a reference to a fourteen page document (amongst several other statutes and several other travel rules).  They did not specify which portion of the fourteen page document would be at issue.  You can see the amended May 6, 2013 charging document for your own eyes in the above link.  

                  Now are you going to stop being a partisan hack and acknowledge that this procedure offended basic due process?  Or are you going to keep on with you present course? 

  1. You gave it your best shot. "Wilfulness and wantonness" on the Commissioners' part was not proved, and would be extremely hard to prove.

    I think that the prehearing order item 5f was  clear enough in speficying the travel and fiscal rules violation. Gessler certainly was not handicapped in his legal defense.

    Liability really was the problem. You don't want to hamstring the watchdog. If you truly were concerned about a nonpartisan legacy for the IEC, the provision to sue any member of the IEC for vaguely conceived "wanton and willful" disregard of respondent's (cough-Gessler's-cough) rights would never have been in the bill. The last-minute move to amend it "conceptually" was seen as the transparent ruse that it was.

    If  you bring another bill to the table,as long as it clearly and specifically enumerates respondent's rights, leaves liability alone, and is free from the obvious vindictiveness and political maneuvering so evident in this one, it should pass without difficulty.



  2. If you think a one sentence line adequately describes what aspects of a 14 (or 10 pages depending on formatting) rule, then we have vastly different understandings of what constitutes due process MJ. 

    1. As for liability, if you don't tell somebody the elements of the charges, even after you have been warned that you have failed to do so and are given an opportunity to correct the error through a mulligan, and such failure is demonstrated to be willful and wanton, you will have been treating your position as a judge as an excuse to defame somebody.  In that situation liability is proper and claiming it is "vindictive" is simply unsupportable. 

      1. Also, MJ – you have been one of the big complainers about Gessler's legal bills.  My guess is you will find that of the $200,000 or so in legal expenses spent on his defense, over 80% of it was directly due to the IEC not telling him the legal basis of what he was charged with.   I encourage you to confirm this through one of your many CORAs to his office. 

        Not telling people what they are charged with drastically increases the expense of defending them, even if you know factual basis of charges.  It means you have to investigate just about EVERYTHING to see if there is a violation, as opposed to a single rule or statute.  Here, the above charging document specifically reserved the right to add additional legal violations at trial.  How, as legal counsel, can you defend against that in a cost-effective manner?  The simple answer is you cannot, and thus the Gessler legal bills will likely be found to be directly the result of the IEC's lack of professionalism that all sides at the hearing acknowledged yesterday. 

          1. Gessler is not my BFF.  In any event, do you think that informing somebody that their charges are contained somewhere in a 14 page document (10 with different formatting) constitutes due process?  Or that telling somebody that you reserve the right to charge them with different things at trial constitutes due process?

            For goodness sake, put your principles ahead of your desire for a political scalp for once.  For if you have even an ounce of principle, either of the above would be a clear no.  If you can't say that, you aren't a liberal or a conservative.  You are simply a fascist. 

            1. Now I'm a fascist, Elliot? Just for disagreeing with you? That was quick. I don't remember the charges being read – do I get to appeal?

              Gessler was told exactly where in the prehearing order to look for the charges against him. I'm no lawyer, but I do know how to find items in an alphabetical list. I found them at 2f, with a link to a site on fiscal rules for travel expenses. He spent $1300 on travel to an event which did not benefit his constituents, and was given the opportunity to correct that expense by paying it back. Instead, he chose to fight it for 2 years, at a total expense of over $223,000, paid for by businesses and organization fees to the Secretary of State's office. At any time, he could have admitted wrongdoing, paid the amount owed, and been done with it – but he wanted to clear his name, and that didn't work out for him.

              Gessler knew going into this exactly what the charge was – unless he was much stupider than he seems. He wanted to come out of this squeaky clean for the Governor's race, and instead, he made it much worse for himself. 

              I haven't filed any CORA document requests – but as you should know, any ethics proceeding documents are public, and are posted on the ethics commission site. or at the transparency online project

              Just cool down, son. This, too, shall pass.

              1. MJ 

                fascist was aimed at ct.  Here you are confused as to what adequate notice is.  It is not merely telling somebody the factual basis of the charges.  I will concede here that it largely like the IEC did that (but see Staiert's testimony at Kill Committee hearing for argument to contrary).

                Instead, adequate notice also includes telling somebody actual offense they are charged with.  The IEC simply did not do that.  The entire conviction of Gessler was based on several lines of travel rule 5-1, a double digit paged document.  Open it up.  Read it.  If you are not given advance notice as to what is at issue within it there is no real way to defend yourself.  And if you somehow think this is "adequate" notice then in future under an MJ as queen society, all indictments can simply tell alleged criminals that they violated Colorado Revised Statute Title 18.  After all, who needs to know pesky details like the Article, Section, and subsection when their reputation and future is at stake (very heavy sarcasm).

                But wait!  There is more!  If you actually bothered to read that charging document, you would have seen that the IEC reserved the right to add even more charges at conviction.  Not before the the hearing.  Not at the hearing's start.  At conviction.  Good luck defending that one.

                So now we come back full circle.  You have raised multiple posts MJ as to how much money Gessler wasted in his defense.  Well, if you aren't told what law you violated and you have to prepare to investigate/defend every possible law or regulation that might possibly exist, then your defense is obviously going to be exponentially more expensive than if you have to defend against a single, well defined, charge where the elements of the offense are clearly listed.  It is indisputable that the IEC failed to do that and I can provide you ample evidence that that failure was over the repeated (and expensive) protest of Gessler's legal team.  And that failure evinced a lack of professionalism at minimum, that directly caused the vast majority of Gessler's legal expenses in this case.  So if you were intellectually honest about the expense of the defense MJ, you would at minimum ask whether the IEC was the cause of such expenditure through their lack of professionalism

                but you seemingly are refusing to ask that.  Moreover, you are defending the use of a charging document that listed neither elements of the charge used to convict your political opponent or even could commit to convicting him on charges previously noticed prior to hearing.  In short, you believe that due process is not necessary for those who you politically oppose.  So while my fascism charge was levied against CT originally, unless you reexamine your beliefs here, you are falling down that same path as well

                i challenge you to instead embrace a different path: one where due process is not withheld from somebody just because you despise them politically.  One where you can be honest and call out a wrong when it occurs.  I have talked to you multiple times by phone MJ.  I know you have this in you.  

                1. A facist for finding it laughable that Mr. Gesselr's experience in front of the IEC is conceptually equal to a suspect in custody being beaten bloody by the police?  That this is fundementally a civil rights issue; that Dems are 'partisan hacks' for not realizing that forcing adults to use separate facilities, be denied a right to vote based on skin color, educated in separate and inferior schools, or made to ride in 'the back of the bus'  is the same issue as Mr. Gessler not being able to spend massive amounts of public monies to defend against charges of which he was eventually found guilty?  Ha ha ha ha ha ha ha ha ha.  Oh my.  

            2. Elliot, who defends liars, hatemongers, racists, and the corrupt, not as counsel, but simply in the name of currying favor…..and MJ is the one without an ounce of principle.  

              Life must be so much easier when you're blind to your own hypocrisy. 


              1. The ACLU defends far worse people than I defend. And unlike some on the right, I applaud them for that.  I suggest you read "to kill a mockingbird" sometime

                1. The ACLU defends people in a court of law, regardless of their views, because it's their job. Defending people online and in print for the sake of currying favor with them doesn't make you Atticus Finch.  It makes you a sychophant. 


                  1. See, here is the thing: you are blinded by your partisanship that you actually believe I am dong this to curry favor.  I will make it clear: I am not.  I do this because I strongly believe I am right.  


            3. It must be hard for a …what is he an …what's the word I'm looking for? read therough a 14 page FOURTEEN PAGES!!! MY GOD IT MAY AS WELL BE THE EFFING ENCYCLOPEDIA BRITTANICA document, with DIFFERENT FORMATTING!!!  

              1. At least you are open about your disdain for due process.  Hopefully you will not ever be in a position of power until you learn its importance

                1. OK. Bottom line. Leaving matters of principle aside this isn't going to make any difference to Gessler's chance to be Guv or for any R to defeat Hick. If that's what you're hoping to come out of this… forget it. I know, I know. Perish the thought. You're all about pure as the driven snow principle.

                  But for those in the far less than pure political arena, when it comes to the whole pearl clutching fest over whether or not Gessler was treated unfairly if (and I say "if" just as point from which to advance my argument) what Hick did was the same thing as what Gessler did but Hick is off the hook, where does it get Gessler if his team wins that argument? 

                  Let's say they win it. OK. Then either what he did was OK and therefore what Hick did was OK too or what Hick did was wrong so what he did was wrong too. Not many political points to score there either way. Do they have an "I'm no more unethical than Hick" bumper sticker in the works or what?

                  No need to answer. I'm sure your answer will be about the principle of the thing which is not the subject of my comment.

                  1. BC – I will make no secret that I want Gessler to win. But that isn't my primary motivation here.  I want plenty of candidates to win plenty of races.  When they screw up (like Owen Hill did on a few things) I can accept the situation and either stop pulling for them or simply account for their situation. 

                    Here, what is really driving me is that the IEC process, as it is constituted, is utterly offensive to due process.  This is America, not North Korea.  We believe in telling people the legal basis of the charges against them BEFORE they are convicted.  And the IEC simply did not do that in the Gessler case.  I don't want that to become a pattern going forward in the future in any complaint against a Democrat, Republican, Independent, or some third party.  Basic due process, no – basic decency – demands that we tell people what law or reg they are accused of violating before we convict them in court or the press.  

                    After talking to some connected people on Kill Committee's Dem side, I have reason to believe that these concerns have resonated and that your side of the aisle will put together an effort to reform things this year or next.  I eagerly await seeing the fruits of that effort and will do what I can to help out in any way I can.  Because due process should NOT be a partisan thing.  It should be something we all agree that everybody deserves – even our political opponents. 

                    1. That you have no substantive response to this and continue defending the denial of basic due process speaks volumes.  The true progressive I know, like PCG, would have nothing to do with your ilk. 

                    2. See I knew you wouldn't addres my point which, as I said, has nothing to do, for or agin, anythng in your reponse. Does it give you a warm fuzzy feeling to know how well I know you?wink

  3. My ilk.  How dare scoff at comparing Scott Gessler's travails in front of the IEC to being a subject of North Korea… the nerve of my faux progressivism.  If only PCG were here she'd show me how Mr. Gessler's experience is substantively similar to a totalitarian regime:

    does not allow organized political opposition, free media, functioning civil society, or religious freedom. Arbitrary arrest, detention, lack of due process, and torture and ill-treatment of detainees remain serious and pervasive problems. North Korea also practices collective punishment for various anti-state offenses, for which it enslaves hundreds of thousands of citizens in prison camps, including children. The government periodically publicly executes citizens for stealing state property, hoarding food, and other “anti-socialist” crimes, and maintains policies that have continually subjected North Koreans to food shortages and famine.

    1. You are the one who believes that due process and basic decency allows a hearing first, conviction second, notice of charges last.  Just sayin'

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