The Debate Mattered And Not Just In The Presidential Race

(Promoted by Colorado Pols)

Donald Trump.

Donald Trump.

Going into Monday’s debate with Donald Trump, the 538 election model “now cast” of who would prevail if the election was held on that day based averages of state surveys, gave Trump at 47.9% chance of winning the Presidency on September 26 (with new data on that day still reflecting surveys taken before the debate on the evening of September 25), if the election were held then. Post-debate polling have dropped his odds to 27.6% and falling, a 20.3 percentage point plunge in three days!

There has really been no news event in the relevant time period other than the debate that could explain this dramatic change in public opinion.

But, the pre-debate and post-debate media coverage does seem to also reflect greater media resolve to call out Trump’s failings. Multiple media outlets calling him a liar on the eve of the debate and the moderator in the debate also called him out on this score. USA Today “antiendorsed” Trump in its first Presidential endorsement in 34 years. An Arizona paper endorsed Clinton with the first Democratic Presidential endorsement in more than a century.  The Harvard Republicans club declined to endorse Trump, as did all of the still living former Republican Presidents and all 100 of the CEOs of the Fortune 100.

Some of this is in response to criticism from the left about the failure of the media to clearly explain how far off the reservation Trump’s conduct has been. But, a lot of the shift of intelligent conservatives in politics and the media come from pure disgust with Trump as a person.

Until the debate, lots of swing voters in Republican leaning areas had not really had to confront many of Trump’s failings as they considered their Presidential preferences.  But now, as a result of the debate and related media driven blitz, they are now hearing the unanimous chorus against him as they start to consider the matter more seriously and are seeing for the first time personally his shortcomings.

Clinton doesn’t have to hold the lead much longer, either.  Iowa’s in person early voting has already begun and voters in Colorado will get their ballots in less than three weeks.

Republican Senate Candidates Hurt Even More Than Trump

Even more striking is the shift in the odds of Republicans retaining control of the U.S. Senate, which, theoretically, from a high school civics perspective, should have nothing to do with Monday’s Presidential debate.

The Republicans had a 52.0% chance of retaining control of the U.S. Senate in the 538 election model peaked on September 25 (i.e. immediately before the debate).  This has dropped to 27.0%, a decline of 25.0 percentage points in the same four day time period based upon how a candidate in the same election who isn’t running for U.S. Senate performed in a debate.

Republican candidates for U.S. Senate have actually been hit more heavily by Trump’s poor debate performance on Monday night than Trump himself!

This powerfully proves the recent political science research that I mentioned in a blog post a couple of weeks ago, showing that the biggest factor in how voters vote in down ticket partisan races is their Presidential race preference.

At Least He’s Not Your President

(Promoted by Colorado Pols)

There is something to be said for the strategy of owning the names you are called to defuse the bite of what otherwise might be an insult. But, it is still a stunningly bad idea for a country’s highest elected official, Philippines President Rodrigo Duterte, to compare himself to Adolph Hitler, because as part of Duterte’s drug war, he wants to emulate the way Hitler carried out the Holocaust by killing several million of his own citizens.

Every now and then, someone compares himself to a Nazi leader to praise some of the arguably good things that allegedly happened during that regime: trains running on time, national pride and unity restored, or a hyperinflation driven economic collapse halted. But, Duterte want to emulate the part of the Nazi regime that is universally condemned. He said:

“Hitler massacred 3 million Jews. Now there is 3 million, what is it, 3 million drug addicts (in the Philippines), there are,” he said in a speech in his hometown of Davao City. “I’d be happy to slaughter them. At least if Germany had Hitler, the Philippines would have (me). You know my victims, I would like (them) to be all criminals, to finish the problem of my country and save the next generation from perdition.”

His numbers are several million too small, but his message is nonetheless atrocious. And, apparently, this comment is just one of a long line of controversies that overall paint Duterte as an unbalanced and corrupt leader.

He shot and killed two people accused of kidnapping while he was a Mayor, and has also made many other concerning comments:

He’s joked about not being able to join the gang rape of an Australian missionary, cursed out the Pope, called both US President Obama and the US Ambassador to the Philippines a “son of a bitch,” and told police they can kill drug dealers if they fight back.

It’s a tough call, but Duterte might even be worse than Trump, although the men are cut from the same cloth.

SCOCO Strikes Down DougCo’s Vouchers For Religious Schools Program

(Promoted by Colorado Pols)

POLS UPDATE: Statement from the ACLU of Colorado:

“Parents are free to send their children to private religious schools if they wish, but the Colorado Supreme Court affirmed today that taxpayers should not be forced to pay for it,” said ACLU of Colorado Legal Director Mark Silverstein.

Counsel for Petitioners, Matt Douglas, said that: “The court made clear that this type of program violates the plain language of the Colorado Constitution, and rejected the argument that temporarily passing the money through the hands of parents could avoid this specific prohibition.”

The program provided 500 students with vouchers worth about $4,600, which could be spent on tuition at religious and other private schools. In order to obtain per-pupil educational funds from the state, Douglas County classified these children as “public school students” who attended a charter school that did not actually exist.

In reality, the voucher money was spent at district-approved “Private School Partners,” a collection of private schools. According to the Court, 16 of the 23 approved Private School Partners were sectarian. The court found that this violated the “broad, unequivocal language forbidding the State from using public money to fund religious schools.”

“The Colorado Constitution provides very strong safeguards for the separation of church and state, and today’s decision preserves and honors those protections,” said Heather L. Weaver, senior staff attorney for the ACLU’s Program on Freedom of Religion and Belief.


The Colorado Supreme Court has determined that a Douglas County School District program that provided vouchers for district students to attend religious schools violates the State Constitution in a manner that is not pre-empted by federal law or the United States Constitution.  The trial court had come to the same conclusion, but was overruled by the Colorado Court of Appeals.  This decision reinstates the trial court’s permanent injunction of the practice.

Article IX (Education), Section 7 of Colorado’s state constitution, which has been effective since August 1, 1876, states:

Aid to private schools, churches, sectarian purpose, forbidden

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

The Douglas County School Board adopted the program after a partisan Republican takeover of the non-partisan school board, as part of a group of controversial reforms in the district.

Federal Suit Challenging TABOR Lives Another Day

(Promoted by Colorado Pols)

In the case of Kerr v. Hickenlooper, state legislators and others have sought to have Colorado's taxpayer's bill of rights (TABOR) declared unconstitutional because it deprives Colorado of a Republican form of government, under the federal constitutional guaranty clause and the act that authorized Colorado to become a state.

On Friday, the 10th Circuit Court of Appeals unanimously affirmed a decision of the U.S. District Court for the District of Colorado refusing to dismiss the lawsuit either on the ground that the Plaintiffs lacked standing to sue, or on the grounds that this was a "political question" beyond the jurisdiction of the courts to resolve.  An additional equal protection claim was dismissed by the trial court, but that dismissal was beyond the scope of the appeal decided with the permission of the trial court judge prior to a final ruling in the case.

As a result, the case will now go forward on the merits of whether or not TABOR deprives the citizens of the State of Colorado of a Republican form of government, unless an en banc panel of the 10th Circuit or the U.S. Supreme Court decide to stop the suit now (both of which are unlikely since this is not a final determination of the case of the merits).  Since the decision will now be on the merits of the case, the stakes are now much higher.  Realistically, however, this lawsuit is still a long shot that is unlikely to prevail.

The 10th Circuit ruling is available at:

Colorado Put Obama Over The Top

If you arrange the states that gave their electoral votes to President Obama in order of how close the race was in each state, and strip away states that he didn’t need to win a majority (as opposed to in order of the time of day when a race was called, in which case the prize goes to Ohio), it appears to me that Colorado where Obama won 51.2% to 46.5% (a margin of 4.7 percentage points, quite a bit more than state pollsters had predicted before the election) was the state that pushed President Obama over the 270 electoral vote threshold.

Florida (0.6 percentage points and 29 electoral votes), Ohio (1.9 and 18 electoral votes) and Virginia (3.0 and 13 electoral votes) all had closer races, but in hindsight, President Obama would have still won 272 electoral votes without them. President Obama won the other swing states, New Hampshire (5.7 percentage points), Wisconsin (6.7), Iowa (5.6) and Nevada (6.6), by wider margins than he did in Colorado.

The wide margin for President Obama in the marginal state makes a repeat of the 2000 election which was decided by the U.S. Supreme Court, in the case of Busn v. Gore, impossible.

Colorado Juvie Life Sentences Unconstitutional

( – promoted by Colorado Pols)

The U.S. Supreme Court’s ruling today in the Miller v. Alabama case has held that juvenile life without parole homicide sentences, which several dozen juveniles are currently serving in the state under a now repealed state criminal statute, are unconstitutional under the circumstances under which they were imposed in Colorado.

Realistically, the Colorado General Assembly will probably be given an opportunity to draft a new law to govern how these juveniles should be resentenced before a court orders a particular response.  The obvious option would be to reply the existing sentencing law for juvenile first degree murder convicts retroactively, something that Colorado prosecutors have fiercely resisted when this has been proposed in the Colorado General Assembly.

The existing law in new first degree murder cases with juvenile defendants imposes life sentences with a possibility of parole after forty years (barring any recent amendments of which I am not aware in the 2012 legislative session package of juvenile justice statutory amendments [UPDATE: there weren’t any amendments to Colorado Revised Statutes 18-1.3-401(4)(b) where the 40 years rule is found, in the 2012 legislative session.]).

Neither Governor Hickenloooper nor Governor Ritter before him, have used their pardon powers to address this issue comprehensively.

Sheriffs For Treason

(Wow – promoted by Colorado Pols)

Eight sheriffs from Colorado (one in eight of them) attended the the first convention of the Constitutional Sheriffs and Peace Officers Association in Las Vegas, which was sponsored by organizations including the John Birch Society.  The group basically argues that county sheriffs have a right and duty to take up arms against the United States government because they claim that the federal government doesn’t have the authority that it has exercised in fact, with court approval, from the very outset of our Republic.

Among those in attendance from Colorado were Weld County Sheriff John Cook, Montezuma County Sheriff Dennis Spruell, Montrose County Sheriff Rick Dunlap, El Paso County Sheriff Terry Maketa, and El Paso County Commissioner Peggy Littleton.  

The Colorado delegates, however, disavowed the use of force against federal agents or simply didn’t go there in public comments one way or the other.

The United States Constitution establishes the supremacy of federal law over state law, places the courts in the position of making binding interpretations of the constitution, and defines treason to include taking up arms against the government of the United States.

To be clear, I am not saying that it is treason merely to propose and discuss a political theory under which treason is legitimate, and maybe even a duty of a local official.  Treason is defined on the basis of acts and not words in the United States.  But, to be equally clear, the Constitutional Sheriffs and Peace Officers Association is an organization of elected and appointed high government officials sworn to uphold the United States Constitution that argues that Sheriffs have a right to engage in acts of treason, and several of the members of this organization have either come extremely close to crossing that line, or have done so.

The organization clamis that: “The sheriff’s position overrides any federal agents or even the arrogant FBI agents who attempt to assume jurisdiction in our cases.”

Elkhart County, Indiana, Sheriff Brad Rogers, Sheriff Tony DeMeo of Nye County, Nevada, and Sheriff Dave Mattis of Big Horn County, Wyoming recounted instances in which they threatened to arrest federal government officials for doing their jobs in their counties for reasons consistent with this organization’s ideology.

Today’s front page story in the Denver Post was an important source for this post, but except for one quotation which it quotes itself from the online materials of organization in question, none of the material in this post is quoted from the story.

Sheriffs For Treason

Eight sheriffs from Colorado (one in eight of them) attended the a convention of the Constitutional Sheriffs and Peace Officers Association’s inaugural in Las Vegas sponsored by organizations including the John Birch Society.  The group basically argues that county sheriffs have a right and duty to take up arms against the United States government because they claim that the federal government doesn’t have the authority that it has exercised in fact, with court approval, from the very outset of our Republic.

Among those in attendance from Colorado were Weld County Sheriff John Cook, Montezuma County Sheriff Dennis Spruell, Montrose County Sheriff Rick Dunlap, El Paso County Sheriff Terry Maketa, and El Paso County Commissioner Peggy Littleton.  

The Colorado delegates, however, disavowed the use of force against federal agents or simply didn’t go there in public comments one way or the other.

The United States Constitution establishes the supremacy of federal law over state law, places the courts in the position of making binding interpretations of the constitution, and defines treason to include taking up arms against the government of the United States.

To be clear, I am not saying that it is treason merely to propose and discuss a political theory under which treason is legitimate, and maybe even a duty of a local official.  Treason is defined on the basis of acts and not words in the United States.  But, to be equally clear, the Constitutional Sheriffs and Peace Officers Association is an organization of elected and appointed high government officials sworn to uphold the United States Constitution that argues that Sheriffs have a right to engage in acts of treason, and several of the members of this organization have either come extremely close to crossing that line, or have done so.

The organization clamis that: “The sheriff’s position overrides any federal agents or even the arrogant FBI agents who attempt to assume jurisdiction in our cases.”

Elkhart County, Indiana, Sheriff Brad Rogers, Sheriff Tony DeMeo of Nye County, Nevada, and Sheriff Dave Mattis of Big Horn County, Wyoming recounted instances in which they threatened to arrest federal government officials for doing their jobs in their counties for reasons consistent with this organization’s ideology.

Today’s front page story in the Denver Post was an important source for this post, but except for one quotation which it quotes itself from the online materials of organization in question, none of the material in this post is quoted from the story.

Righthaven Almost Gone

( – promoted by Colorado Pols)

“Nobody is playing a violin for these guys.”

– from Wired.

“The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

Judge Pro ruled in June that a Vietnam Veteran’s posting of an entire Las Vegas Review-Journal article was fair use, and ordered opposing legal fees. Righthaven is appealing the order, which it says would leave it insolvent.”

Well earned.

Righthaven Lambasted By Nevada Federal Judge

(What’s that? Righthaven might have to go out of business? Darn!

*Note: Righthaven was not involved in the “cease and desist” letter sent by The Denver Post last year. – promoted by Colorado Pols)

Righthaven, in a copyright suit against the Democratic Underground website, has been had its case dismissed by a Nevada federal judge on grounds that threaten the validity of every single one of its other pending lawsuits (specifically that it didn’t own the copyrights that it claimed to be suing on), faces punitive sanctions in this case and more than two hundred other lawsuits, and has been found to have probably engaged in frauds on the court and other serious litigation misconduct.  The June 14 ruling would put Righthaven out of business if not reversed on appeal.

Righthaven has also initiated litigation on behalf of the media group that owns the Denver Post and sent a cease and desist letter to Colorado Pols which has impacted its citation practices for many months.  Its litigation strategy has been remarkably aggresive towards bloggers and the subject of widespread criticism.  It has recently lost at least two significant cases on fair use grounds and been criticized for claiming greater scope for newpaper copyrights than is allowed by law.  

Thirty-five Colorado lawsuits have been stayed by U.S. District Court Judge Kane since late May pending allegations of similar misconduct in Colorado.

Obama’s DOMA Decision Affects Colorado

(Suthers loses his cover – promoted by Colorado Pols)

President Obama has decided to direct the Justice Department to stop defending Section 3 of the Defense of Marriage Act against challenges in federal courts, challenges in which Republican Colorado Attorney General John Suthers has controversially filed an amicus brief on behalf of the state defending the law despite the fact that Section 3 applies to the rights of same sex marriage couples only with respect to the federal government.

Before this, there was a symbolic difference, but no practical difference, between a civil unions bill, like one being considered in Colorado’s General Assembly this sesion (SB 11-172), and a same sex marriage bill (which Colorado’s constitution currently prohibits at Article II, Section 31: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.” added by Initiative in the 2006 election).  Now, legally married same sex couples will have far more rights under federal law that same sex couples with civil unions (at least until they are legally married in a state that grants same sex marriages to non-residents).

Learning a lesson from the decision of California’s leaders in the Prop 8 litigation, where the state refused to appeal a trial court finding that Prop 8 was unconstitutional (the standing of the ballot measure proponents to appeal in that case has been certified to the California Supreme Court), President Obama has directed the Department of Justice to stop defending the constitutionality of Section 3 of the Defense of Marriage Act. The Justice Department has said:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman: . . . The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. . . . [T]he Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ‘ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3. . . .

Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Section 3 of the Defense of Marriage Act states that the federal government, when applying federal law, shall disregard legal state law marriages that are not between one man and one woman.

The key parts of the Defense of Marriage Act state that:

Section 2. Powers reserved to the states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of “marriage” and “spouse”:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The decision does not by itself affect Section 2 of the Defense of Marriage Act which provides that the full faith and credit clause of the United States Constitution does not extend to same sex marriages. Thus, state, local, territorial and Indian tribe governments are not federally required to honor same sex marriages that are valid in other states.

Will President Obama’s Position Be Sustained In the Courts?

President Obama’s decision is likely to stick. Generally, the only parties with standing to participate in a case where a same sex couple alleges that their rights have been violated by Section 3 of DOMA are the federal government and the couple(s) bringing the lawsuit. The U.S. Supreme Court, particularly in recent years, has construed taxpayer standing (alleging the federal funds are used for an unconstitutional purpose) and citizen standing (alleging that the federal government is acting unconstitutionally) very narrowly.

I’ll have to look later at the standing of members of Congress to speak for the federal government in litigation or intervene in lawsuits attacking the constitutionality of a statute. The general rule is that the Justice Department is the sole representative of the U.S. position. But, federal courts have the authority, although not necessarily the obligation, to appoint a lawyer to argue for a position like that constitutionality of a law or the rights of pro se parties, that is not represented by a party in court.

To speak for Congress, per se, or even one house of Congress, would ordinarily require the passage of a resolution by Congress or at least a house of Congress. But, members of Congress who sponsored or voted for legislation might be viewed by a court as suitable intervenors to argue to a court for a position that no party to the suit is willing to advance.

On balance, it seems unlikely that Congressional advocacy will cause a Court to rule in favor of the Constitutionality of Section 3 of DOMA when the Justice Department and legally married same sex couples are both parties in the case and arguing that it is unconstitutional.

An IRS ruling last year holding that domestic partners in California were entiteld to split income for federal income tax purposes due to community property principles foreshadowed the changing position of the Obama administration on this issue.


From a practical perspective, some of the main consequences of the decision are that gay married couples can file tax returns with married filing jointly status (and receive all of the benefits of married couples for estate taxation purposes), that same sex married couples qualify for federal immigration law treatment of spouses, and that same sex married couples can receive Social Security survivors benefits and spousal Veteran’s benefits. The Veteran’s benefits issue looms large now that Congress has repealed the “Don’t Ask, Don’t Tell” law.

Also, while not quite spelled out by this ruling, the implication seems to be that a same sex couple that is legally married in any state will thereafter be treated as married by the federal government, even if the state in which they live does not recognize same sex marriage. Since some states do recognize same sex marriage (and allow non-residents to be married in their state), that means that same sex couples that go to those states to be married and then return to their home states can receive all of the federal government benefits of marriage.

Another tricky issue is the impact that the decision on Section 3 of DOMA will have on state administered programs that are funded by the federal government and governed by federal rules, such as Medicaid (where marriage matters because a spouse’s assets are relevant to eligibility for Medicaid financed nursing home care) and TANF (i.e. the main mean tested welfare program).

In addition to undermining the efforts of state governments to deny federal benefits of marriage to same sex couples in their own states, the determination also increases the stakes in the civil union v. gay marriage debate in the states. Until now, this has been a strictly symbolic debate. A civil union bill that creates as the legal rights and responsibilities of marriage under state law, but doesn’t call it marriage (such as one pending in the Colorado General Assembly right now) would not constitute marriage under federal law, while one that calls the relationship marriage would have that effect.

Thus, states are left with multiple options including: (1) disallow both civil unions and same sex marriages, but acknowledge that couples with legal sex sex marriages from other states may receive federal treatment as married, (2) allow civil unions but not same sex marriage, which gives copules state law marriage rights but denies couples federal treatment as married until they get legally married in another state, or (3) allow same sex marriage.

Also, while Section 2 of DOMA does not require states to recognize same sex marriages from other states, it also does not prohibit them from doing so out of comity. In many states, the issue of when comity should recognize other state’s legal acts when the full faith and credit clause of the United States Constitution does not require it has been left to the courts rather than being made a subject of legislation. Thus, judges could choose, influenced but not bound by the Section 3 of DOMA interpretation, to honor out of state same sex marriage even though the constitution and federal law do not require them to do so.

Civil unions have been a sensible legislative objective for same sex couples in many states, like Colorado, where the state constitution has been amended to prohibit same sex marriage, but not more broadly to prohibit civil unions or domestic partnerships of same sex couples as well. But, there will be increasing pressure to actually call this marriage legislatively, and as courts evaluate the issue.

Gessler Wants SOS Job He Doesn’t Believe In

(A bit of a long read, but worth taking a look in a race that has garnered little attention to this point. The large Denver newspaper has an interesting story on a half-million dollars in fines run up by a committee that Gessler is in charge of overseeing. – promoted by Colorado Pols)

This year, incumbent Democrat Bernie Buescher, formerly a state legislator who was re-elected repeatedly from a conservative district in Grand Junction on the strength of his moderation, fair mindedness and business background, before starting his current job faces Republican challenger Scott Gessler, a Denver area election lawyer. Alas, as an election lawyer, Scott Gessler seriously blew it. He flubbed his job in a way that contributed to a serious lapse of the campaign finance laws and also seriously hurt his client. And, in responding to that situation, he has made clear that he doesn’t take the laws he is is asking the people of Colorado to put him in charge of enforcing seriously.

The Colorado Secretary of State has a variety of jobs that include keeping corporate registration records, keeping the state’s personal property lien records, licensing notaries public, and administering bingo and raffle laws. But, only one of those jobs explains why we have an elected official, rather than a senior civil servant charged with carrying it out.

The Secretary of State is the chief elections officer for the state in the State of Colorado. Since the actual balloting is handled by county clerks and recorders, the main responsibility of the Colorado Secretary of State in elections is to administer the state’s campaign finance disclosure laws.

Scott Gessler was the registered agent and attorney for the Colorado Independent Auto Dealers Association political committee, from its inception in 2006 until September 20, 2010. During this period, the Colorado Independent Auto Dealers Association ran up $528,500 in fines for failing to file campaign finance reports. The Colorado Secretary of State dispatched 55 non-compliance and fine notices from the time that the trouble started. They went out every month, often multiple times, and in many cases by certified mail, starting January 25, 2008. All of the letters until he resigned as registered agent had Scott Gessler’s name in the address line.

Gessler had other choices. He could have resigned as the Committee’s registered agent because his firm wasn’t being paid for its services, which would have set off a red flag with the Committee. Or, he could have continued to do his job without resigning by calling attention to the mounting problem to his client. If he had, this could have dramatically mitigated the damages of the entire book keeper fraud mess that his client was experiencing that extended far beyond missed Secretary of State filings.

Instead, he did neither. He did nothing because his firm wasn’t getting paid. The trouble is that lawyers aren’t allowed to be passive-aggressive and simply stop working because they aren’t getting paid.

Lawyers Have To Quit Or Do Their Job

Lawyers are allowed to fire their clients if they aren’t getting paid, if it can be accomplished “without material adverse effect on the interests of the client,” if “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled,” and if “lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.” (Colorado Rule of Professional Conduct 1.16.)

But, when you are a lawyer, until the representation is over, you have a duty to “act with reasonable diligence and promptness in representing a client,” even if you aren’t getting paid. (Colorado Rule of Professional Conduct 1.3.) As the comment to the rule creating that duty explains: “Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.”

In this case, as long as Scott Gessler was the Registered Agent for the Committee he had a duty to let his client know that the Secretary of States was sending until until he resigned from the job. Resigning isn’t hard. They have a form for that at the Colorado Secretary of State website. But, despite being an election lawyer, he didn’t utilize that option.

This Was No Technicality

I’m no stranger to this process. I’ve served as a treasurer for a political candidate in Mesa County, for the Democratic Party of Denver, and as attorney and/or registered agent for other candidates and political organizations.

Small fines from a failure to meet a deadline by a day or two are not uncommon and can result from a simple clerical error. Even big fines can be technicalities. For example, I once represented an organization that had ceased operations and filed what it thought was its final report, but wasn’t closed out in the system because its final report has a clerical error that left it with a non-zero balance in its reported bank account that had to be cleared up.

But, the case that Secretary of State candidate Scott Gessler is embroiled in is no technicality. As the Denver Post story linked above explains:

A request for a fine waiver that the association sent to the secretary of state’s office doesn’t blame Gessler for the errors. Instead, the request describes internal chaos and alleged financial malfeasance by a bookkeeping contractor as the causes.

The request says the contractor stopped paying Gessler’s firm to be the registered agent in late 2006 or early 2007, though Gessler’s name remained on official paperwork.

The association rehired Gessler this year, and Mario Nicolais, an attorney at Gessler’s firm, has since taken over as the group’s official registered agent. . . .

Secretary of state officials sent dozens of letters and invoices to Gessler’s office since the start of 2008 notifying him of the overdue filings and fines. It wasn’t until last month that the committee, through Nicolais, filed its late reports.

Those reports show the committee collected more than $20,000 in contributions during the period. State records reveal that the committee made more than $12,000 in contributions during that time to candidates and other political groups.

Failing to report contributions and expenditures for an active political committee for a prolonged period and blowing off years of dire notices from the Secretary of State is not a mere technicality. We have campaign finance rules for a reason, and that reason is to inform the public about who is receiving donations and how they are being spent in the political system.

The Notices Should Have Made Gessler Pay Attention

As dry and polite as they seem, a fine notice from the Secretary of State’s office is almost as jarring to receive for a registered agent of a political committee as getting sued or receiving a notice of tax audit is for a business firm. It is a big deal. Ordinarily, it arouses a brief bout of panic followed by action to figure out what went wrong and why it happened.

In this case, the Committee formed “to support candidates including John Suthers” filed no reports from February 6, 2008 until September 20, 2010, when it filed a report for the first five months of 2008 (an easy, no activity report, because many candidates aren’t allowed to receive political contributions from political committees during the legislative session), and its next twenty-one required campaign finance reports (all overdue) on September 30, 2010 covering April 26, 2008 until September 15, 2010. Its first timely report in thirty months was filed on October 4, 2010.

What Happened?

A three page letter explaining the situation and asking for mercy was received by the Colorado Secretary of State on October 6, 2010.

A new Executive Director was hired in 2005, he outsourced financial compliance duties in 2006, and “Early in 2008 Contractor ceased submitting payroll withholding taxes, employee 401(k) contributions, and political committee reports.” The new Executive Director didn’t figure out what was going on until early 2010, however, after which he was replaced and his replacement was left to sort out the mess.

The Secretary of State, unlike the Colorado Independent Auto Dealers Political Committee, is very good a sending letters out on time. It sent 55 of them from the time that the Committee became delinquent to the present, many of them by certified mail. The book keeper was covering up past due notices, but Scott Gessler remained the registered agent until September 20, 2010.

We Should Care In This Political Race

Is a serious mistake in grossly mishandling one campaign finance case a deep moral flaw? No. I’m sure that Scott Gessler is a nice guy and a smart attorney. But, he isn’t applying for just any job. He is seeking a job as the person in charge of administering the campaign finance system in Colorado. Yet, when it was his job to do his part in the process, he seriously screwed it up in a way that hurt the public interest in campaign finance disclosure and also did serious harm to his client.

This incident casts real doubt on Scott Gessler’s qualifications to be Colorado’s next Secretary of State. So does his dismissive attitude towards the system he wants to make it his job to administer and enforce:

Gessler said the size of the fine reinforces his argument that the campaign-finance system is set up as a “gotcha” to overcharge groups for clerical lapses.

If he doesn’t get it now, he won’t when he is in office.Cross Posted at Wash Park Prophet.

Civil Rights Suit v. Greeley Deputy DA Moves Forward

( – promoted by Colorado Pols)

A federal court case against a Deputy District Attorney in Greeley who reviewed and approved a search warrant in a criminal libel case alleging that an online parody of a professor was illegal will move forward due to a ruling by the 10th Circuit Court of Appeals today.

The court held that prosecutors are liable for money damages if they are involved in issuing search warrants for criminal libel cases involving communications that are protected by a clearly established free speech right under the U.S. Constitution.  This includes a broad protection for parodies such as the one in question here.  (Colorado’s criminal libel statute remains constitutional in the proper circumstances, however.)

Calls to invoke Colorado’s criminal libel statute come up almost every election season and are usually ignored by prosecutors.  This decision gives prosecutors one more reason to say no to requests to bring these kinds of charges.

Veto Day Looms

( – promoted by Colorado Pols)

Governor Ritter has until Friday, June 11 to veto bills passed after May 2 in the 2010 legislative session which ended May 12.

The only post-adjournment veto so far has been his relatively uncontroversial veto of HB 1364, allowing sex offenders to choose their own treatment providers in addition to other non-controversial provisions, which was killed when it was revealed that the legislator involved in a late amendment to the bill had a family member affected by the bill.

Legislators being human, a significant share of the most controversial bills are passed at the end of the legislative session.  As more and more of those bills are signed, it becomes more and more likely that the Governor might veto those that are have not yet won his signature, the Governor being human, the close veto calls are also the last to be made.

The last week in which the Governor can veto bills often produces fireworks.  Stay tuned.


I don’t have a detailed tabulation of which bills were passed at the tail end of the session and which have been signed so far.

All bills passed before that date except HB 1011 (regarding procedures for DMV registration of farm vehicles), have become law, because they become law unless vetoed without ten days.  But, the Governor has thirty days from adjournment to veto laws passed at the end of the session.

Is anyone aware of controversial bills not yet signed into law from the end of the session?

CS Gazette’s Publisher Follows Denver Post’s Into Chapter 11

The Chapter 11 bankruptcy plan of the company that owns the Colorado Springs Gazette has been approved by a Delaware bankruptcy judge.

The holding company that owns the Denver Post and Boulder Daily Camera as well as other smaller Colorado newpspapers also recently went through a Chapter 11 bankruptcy.

The Rocky Mountain News, of course, ceased operations about a year ago.

This changes the people who call the shots at the institutions responsible for most of the newspaper based state house reporting in Colorado.

The former shareholders of these companies have lost their shares.  At the Post, Singleton and his chief deputy control the company, with equity owners of the reorganized company having only a non-controlling interest and under regulatory pressure to swiftly divest.  

While former debt holders at the Post have true ownership rather than mere debt now, their minority status and more importantly, the fact that the publisher of the Post doesn’t have to negotiate with creditors any more, actually reduces the influence that the banks that are its lenders could have on its decision making process.

It will take more research to determine who now controls the Colorado Springs Gazette.  The indirect influence of banks on the paper arising from its need to negotiate a favorable deal with creditors it can’t afford to pay as debts come due will now be gone.  But, I haven’t yet seen any reports describing who sort of equity structure or control rules will be present in the post-Chapter 11 company.

UPDATE: A story at Editor and Publisher says that a group of banks with secured loans led by JP Morgan will get most of the shares of the new company, and that  East Valley Tribune in Arizona and several other Phoenix-area publications will be sold to the publisher of the Telluride (Colo.) Daily Planet.

Is It Constitutional To Surtax Corporate Political Speech?

The U.S. Supreme Court’s held yesterday in the Citizens United case that it is unconstitutional to ban independent corporate campaign spending.  This raises serious doubts about the constitutionality of Internal Revenue Code Section 162(e), which in its current form denies businesses a tax deduction for any spending in connection with political campaigns and lobbying.  For a large profitable publicly held corporation operating exclusively in Colorado (which has a flat 4.63% income tax rate tied applied to a slightly modified version of federal taxable income), Section 162(e) is a de facto 65% surtax on political advertising, relative to advertising related to the business or in furtherance of a charitable cause.

The activities denied a deduction by Internal Revenue Code Section 162(e) include the very poltical speech that the U.S. Supreme Court held yesterday that corporations have a constitutional right to engage in under the First Amendment.  In the wake of Citizens United, can it be constitutional to impose a 65% surtax on an expenditure for a an independently produced, funded and aired television spot urging viewers to vote for John Doe, when no tax would be imposed on an otherwise identical television spot asking people to buy widgets or give to the United Way?

Generally speaking, free speech regulations that are not content neutral are subject to strict scrutiny and may only be upheld when necessary in light of a compelling governmental interest. The court in Citizens United expressly held that equalizing the resources of political candidates was not a compelling governmental interest.  A handful of cases provide precedent for the principle that taxes that make content based distinctions on constitutionally protected speech are unconstitutional under the First Amendment.  A tax case arising out of the Citizens United case may be the next precedent in that line of cass.  

Prior to Citizens United, the fact that Congress was believed to have the power to prohibit corporate political speech, at least in the context of partisan elections, made the related tax treatment based on content based distinctions about speech seem a fortiori also constitutional.  Now, each of the limitations on business expense deductions under Section 162(e) of the Internal Revenue Code need to be examined on a case by case basis to determine if they involve corporate free speech rights that are constitutionally protected.

The corruption justification used in Citizens United to refrain at that time from rendering an opinion so sweeping that it would invalidate the ban on direct contributions to candidates by corporations and unions might very well be extended to IRC 162(e)(1)(D) (direct lobbying of public officials), but it is easy to imagine that at least some of IRC 162(e) could be invalidated on the basis of Citizens United and the First Amendment tax cases.

More at Wash Park Prophet.

Is It Constitutional to Tax Corporate Campaign Spending?

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Buck Out?

The Denver Post is pushing the rumor that Ken Buck is getting out of the U.S. Senate race on Monday.  He follows Bob Beauprez in a race for the exits.  

Are Ryan Frazier and Clevel Tidwell just too imposing to consider facing off against?  Is Bennet, arguably the most vunerable incumbent in Colorado in decades, an insurmountable challenge?  I don’t think so.  The clearing field seems to make a Norton run a foregone conclusion.  The two GOP laggards in getting out just aren’t in the loop enough to notice, or are too narcissistic to care.

It’s time to start running the Bennet v. Romanoff primary race, and Bennet v. Norton and Romanoff v. Norton general election polls.  Nobody else matters in Colorado’s rapidly remodeling U.S. Senate race.  

Then again, maybe the Romanoff and Buck rumors are utter tripe.  It wouldn’t be the first time that the Denver Post was wrong and the blogs (as well as a lack of competition to punish it if its reputation is sullied by a misstep) have put pressure on it to put rumors on the wires quickly.  

Is Ken Buck out?

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Nacchio Wins Resentencing

Joseph Nacchio, former CEO of Qwest, has won an appeal of his sentence and of the forfeiture award against him, both for insider trading convictions, in the United States Court of Appeals for the 10th Circuit.

He is likely to see his six year sentence reduced by a couple of years, and to be allowed to keep about $7.4 million more of his assets than the trial court had allowed him to keep.  Mostly the difference flows from the trial courts failure to distinguish between gains from his crime and gains from general stock market activity, and from the fact that he wasn’t give full credit for the costs he paid to acquire and sell the stock that was traded on insider information.

Governor’s Office Cares About Blogs (Juvenile Clemency)

( – promoted by Colorado Pols)

Trey Rogers from Governor Bill Ritter’s office gave me a call today. We talked for half an hour about this post about a Colorado Public Radio spot on the progress being made by the Colorado Juvenile Clemency Board, which I understand from Mr. Rogers has been widely circulated by Mary Ellen Johnston, the advocate for the juveniles in the spot. Who knew? Most of my posts receive less attention.

It appears that the Governor’s office is paying rather close attention to the issue, at any rate, presumably under the belief that this has political importance. Suffice it to say that I’ve never received such a lengthy, personal and vehement defense of a Governor (or any other official’s) position on anything, either as a genuine paid journalist, for Colorado Confidential, or here. Whatever actions the Governor takes in these cases will not be political accidents or missteps. They will be deliberate.

I confirmed that he was on the record, so I first offer some factual points he made to me on that call, some of which were not previously reported upon in the press.

A Clarification

The Colorado abolition of LWOP bill was passed in 2006 legislative session, when Bill Ritter were merely the leading Democratic Party candidate for Governor. We have a Republican Governor, Bill Owens, then. Bill Ritter did not take a public position during the campaign on that issue. This said, he silence was not meaningless.

This debate came up as a hot issue while he was running and it is the prerogative of a candidate for Governor to take a position on issues like this one. Further, as District Attorney, he was an active supporter of the position of the District Attorney’s Association at the Capitol that the legislature should never retroactively reduce a criminal sentence, essentially on the grounds that this is a Governor’s privilege. If he had taken a position in support of retroactive repeal of LWOP he could have done so. If he had wanted to use his pardon power to do that across the board once elected, he could have done so.

There is no legal requirement that he make a record on a parole matter showing everything considered in his decision. There is no legal requirement that a request for clemency be received at all. There are precedents for unsolicited grants of clemency by both Governors and Presidents. Clemency is not an adversarial process. He can write it on a napkin if he wants, so long as he sends a brief follow up letter to the appropriate official in the Colorado General Assembly explaining his action to meet the minimal notice requirements of the state constitution.

Trey Rogers asserts that Governor Ritter was simply not a part of the LWOP debate. I’m not convinced that this was true in terms of messaging and behind the scenes influence. A candidate for Governor is always part of any high profile debate, even if that role is silence. But, to the extent that I implied that he was Governor when the bill abolishing LWOP was passed, I was wrong.

Also, when the Board was established in August 2007, it was spun as a way to address the issue of Juvenile LWOP sentences in the state that were not retroactively repealed. If he was not in the debate at that point, he inserted himself into the debate at that point, marking territory on the issue to discourage the legislature from passing a retroactive juvenile LWOP themselves.

The Colorado Juvenile Clemency Board Progress Report

My understanding form Trey Rogers is that the recommendations of the Colorado Juvenile Clemency Board are generally for the Governor’s eyes, and the Governor’s eyes only. He may take or leave their recommendations, and he will take responsibility for them. He said that there was no way anyone could know if the Board had recommend clemency or not in any cases, and that Jeanne Smith didn’t say that the Board hadn’t (her language, and his suggested that it had not, but wasn’t absolutely definitive).

He specific said that he wouldn’t say if they had made recommendations or not (with the exception I will note below). I understood that they would not be made public prior to a decision by the Governor on these cases.

His initial summary of the status of the applications was that there were “a handful of denials, low single digits, or recommendations that the Governor grants some clemency.” More detailed numbers followed, and I’m not entirely clear if this initial estimate was clarified by, or was in addition to the further detail I repeat below.

He notes that the Board was created from scratch in August 2007, a little less than two years ago, and that it took the Board time to develop threshold criteria, board rules, create a draft application and accept applications. He also stated that applications typically require staff to gather non-public, not easy to get information like comments from the victim’s family, the prosecutor and judge that are not public, that applications are typically not complete. These lengthy submissions, as supplemented by staff must then be considered by the Board.

I was told that 20 applications have been submitted. The first application was completed in June 2008. Four of the 20 applications were either incomplete or didn’t meet the basic criteria established by the Board that an inmate has served a third of a sentence or ten years in prison before an application will be considered. At this time, the Board has considered 11 of the remaining 16 applications and has 5 applications that will be considered in due course, for example waiting for a future meeting.

There were 3 applications of the 11 applications considered were of individuals were have parole eligibility within the next 3 years. I was told that the Board was “not going to look seriously at those.” This leaves 8 applications, of which 4 involved Life Without Parole (LWOP) and the other 4 were very long sentences. The LWOP sentences and very long sentences were the ones that the Board undertook to consider.

One of the four LWOP was rejected by the Board. This was the case described as a “hit and run” by Mary Ellen Johnston on the Colorado Public Radio spot. Trey Rogers disagreed. He asserted that the jury found that the killing was a premeditated and intentional gang initiation killing that used a motor vehicle as a weapon.

The overall point that Trey Rogers was making in bringing up these details was the delay was not unreasonable, a point that has some merit, and will discuss in a bit.

Discussion Of The Merits

Trey Rogers acknowledged that Jeanne Smith, who was interview by Colorado Public Radio, was not just a random board member. She is the chair of the Board, and was intentionally selected as the Board’s spokesperson to provide to Colorado Public Radio. Trey Rogers said that she was “speaking for the Board,” although in context, he meant that she was a board member who was authorized to speak when she spoke about what the Board had decided, but that she was also one member of a Board that was not unanimous on these issues (nor is Governor Ritter’s staff) and when she did not speak on behalf of the Board itself by her words that her statements reflect her view of the matter.

Neither he, nor I suggested that point, because it was understood. But, certainly to the extent that she was speaking for this advisory board, she was not speaking for the Governor himself, although she was hand picked by him to lead this Board and one assumes that he was familiar with her positions on these issues when she was appointed, and that he has accurately conveyed publicly or privately to her some of his feelings about what he wants from this Board which exists solely to provide him with non-binding advice.

Trey Rogers also indicates that his comments and other information provided by the Governor and the Board to Colorado Public Radio was left on the cutting room floor or not included in the story, because that was not the way that CPR wanted to tell the story. He raised his version of the “hit and run” case that was denied.

He also mentioned his statement to CPR, coming out of the Governor’s office, that it would be legitimate for the Board to reduce sentences to parole after 40 years (which is what it would have been if the legislature had made its Juvenile LWOP decision retroactive), a position seemingly at odds with the position taken by Jeanne Smith in the interview. He did not suggest, however, that the Governor actually intended to take that position.

He raised the possibility that a reduction of a sentence to possibility of parole after 40 years could put a person who turned out to be a dangerous violent offender back on the streets. I asked why the parole board couldn’t consider those issues in after the person who had been convicted of the crime committed as a juvenile after 40 years and deny parole if the inmate had shown himself to be dangerous in that time period. He didn’t have an answer to that question.

To suggest that a parole board in 40 years with better information couldn’t be trusted would require the Governor to agree with an exceedingly distrustful, conspiracy theory view of how parole boards work, of course, which isn’t what one would expect from a politically moderate sitting Governor. Common sense makes clear that parole boards don’t put people convicted of first degree murder back on the streets after a history of bad behavior in prison for forty years.

The simple fact is that the real risk to the public involved in not commuting juvenile LWOP sentences to the retroactive consideration of parole after 40 years determination in any of these cases is essentially zero. And, for crimes committed by juveniles it is simply impossible to know with certainty now that the inmate will be a threat to the public in 40 years — none of them have the track record of misconduct at this point in time to justify such certainty.

With regard to the suggestion that the media had spun the story in the wrong way, misinterpreted Jeanne Smith, incorrectly described the one case that the Board had rejected, or misconstrued the Governor’s position, I stated that the media would pick up any press release that the Governor made on the issue. He didn’t disagree with this assertion and didn’t offer any firm statements about why the Governor hadn’t done so. I guess that I’m the press release. I’m doing my best to accurately reflect the discussion, but I’m human and as a lawyer in compliance with ethical rules in Colorado, I don’t tape telephone calls without the consent of everyone on the call and didn’t this time. I’m human and I could convey wording that a press release wouldn’t convey.

On the timing issue, I raised the upcoming 2010 election. I noted that the Governor is goinig to be under intense political pressure when he is lagging in the polls and running as a moderate to refrain from issuing pardons or clemency in 2010. Also, the traditional time to grant pardons and clemency requests, although not the exclusive one, is from Thanksgiving to Christmas, in the holiday season, give or take a few days. (In hindsight, I didn’t discuss this, the second anniverary of the commission would also be a sensible time to announce a decision.) So, there is basically one narrow politically sensible window for the Governor to act, and it is coming up very soon.

Trey Rogers suggested that at this point in our discussion that I was just predicting the future. I directed him to the name of the blog.

He, of course, took umbrage at my description of the action to date as a broken promise in my original post, before there was much real information in the hopper. I noted that the CPR piece confirmed the prior supposition made in the Denver Post by Susan Greene (he claims without interviewing anyone in the administration about the facts), that the Board was just a smokescreen. But, for all the discussion of the timing, the real discussion was about the merits of Jeanne Smith’s statement about how the Colorado Juvenile Clemency Board was interpreting its mandate.

This interpretation was undoubtedly more crabbed that the way that the Board was spun when it was created, which was as a way to make middle ground between a retroactive legislative amnesty to current Juvenile LWOP inmates and no relief at all for Juvenile LWOP inmates.

A special Juvenile Clemency Board wasn’t created simply to consider compassionate release or extraordinary good behavior while incarcerated. It was created to provide some sort of relief from juvenile sentences that the legislature has since disavowed (in a very modest way — 40 years is still an extremely long time for a juvenile offender when the average adult sentence for murder in Colorado just a few decades ago was under ten years), and which are substantively unjust given the facts of the underlying cases even though they were legal at the time. By disavowing this part of the Board’s mandate, it has broken the implied promise to consider this issue that the Governor made when he created it.

Her statement isn’t binding precedent. The Board could vote her down in another case they find more suitable. The Governor could disagree with the Board’s recommendation. It is simply a relevant precedent, and the precedent is not just in the actual determination made on the facts, but in the reasoning used to justify that decision.

The real meat of the discussion, of course, was not delay. It was whether the Governor intended the Board to see reconsideration of legislative decisions that it has since changed in old cases to be beyond its mandate, and if not, why he hasn’t clarified that point or revised his executive order. If the Governor really agrees with the policy stated by Jeanne Smith on Colorado Public Radio, he has broken an implied promise. If the Governor didn’t intend that, then why wait for a flawed recommendation.

The even deeper subtext is whether the Governor is expanding the scope of issues upon which he is breaking with his political base in the Democratic Party. The bridges have been burnt with labor already, and no olive branches have been offered to mend them (apologies for the mixed metaphor). But, it still isn’t definitely established that the Governor will break with his political base on this criminal justice issue by refusing to make even a token effort to say that inmates imprisoned for crimes committed by juveniles should have at least some chance, long in the future, to tell a parole board that they are redeemed enough to be released.

Background: the Colorado Situation

It certainly looks like he has broken the implied promise he made when he created the Board by staking it with people who have a crabbed view of justice. But, Governor Ritter can change his mind and make peace with his fellow party members by showing just a little mercy to some of the 46 juveniles serving LWOP and more juveniles serving very long sentences in Colorado.

Who are those juveniles in prison for life without possibility of parole?

• 1 of the 46 is a female.

• 57 percent committed their crimes at age 17.

• 22 percent were 16 when they committed their crimes.

• 17 percent were 15 when they committed their crimes.

• 4 percent (two of the juveniles) were 14 years old.

• 26 percent of those serving life sentences are black.

• 29 percent are white.

• Two-thirds of the convictions were for murder, and one-third were for felony murder, in which the juvenile did not personally kill anyone but played a role in a robbery or other dangerous felony in which an accomplice killed someone.

Clemency has been rejected in one of the two-thirds of the cases where the convictions were for murder. Three more Juvenile LWOP cases are being, or are just about to be considered by the Juvenile Parole Board.

The other 43 inmates appear to be hanging back, waiting to see how cases are handled by the Board before they try to make their cases, and the Governor looks likely to refrain from granting clemency to any of them at this point, simply because they have not asked him for clemency at this point.

The felony murder cases, and the cases involving the 14 and 15 year old offenders, in particular, cry out for relief more generous than the possibility of parole after 40 years dispensation that was granted by the legislature. These are cases where the prosecutors clearly abused their discretion in bringing this cases as first degree murder cases in adult court at all. But, given the statements and lack of statements that we have seen to date, I am not optimistic at all that this kind of clemency will be forthcoming, even though that is what is just.

Pending SCOTUS Litigation — the Merits

In 2002, the U.S. Supreme Court prohibited the execution of retarded defendants, reversing its 1989 decision to the contrary. The opinion reaffirmed prior holdings that:

[W]e have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593-596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982).

The Colorado felony murder statute could, in theory, include offenses both within and beyond the scope of Enmund as restated in the 2002 opinion.

In 2005, the U.S. Supreme Court held that the constitution prohibited executions for against persons committed by juveniles, no matter how heinous. In 2008, the U.S. Supreme Court has also recent held that an adult may not be executed for raping a child, if no one is killed, in a broad ruling that included statute that required even more aggravated non-murder convictions.

The political balance of the U.S. Supreme Court is largely unchanged since these cases were decided, despite some changes in personnel, and the pending confirmation of Justice Sonia Sotomayor who was nominated by President Obama.

The U.S. Supreme Court is currently receiving merits briefs in two cases involving life without parole sentences imposed for non-triggerman murder offenses committed by juveniles under the 8th Amendment’s prohibition on cruel and unusual punishment, “one involving a 13-year-old sex offender [he has now served 20 years in prison], the other a 17-year-old probation violator present when a felony murder occurred.” The first is Sullivan v. Florida, the second is Graham v. Florida.

The questions upon which the U.S. Supreme Court granted cert. are as follows. I suspect that the phrase “freakishly rare” has never before appeared in a U.S. Supreme Court certiorari grant. The Court also didn’t have to grant certiorari using the wording “non-homicide” in the Graham case if it hadn’t wanted to do so. This has to be good news for the larger class of inmates impacted by these cases.

Graham v. Florida, 08-7412 (cert. granted 05/04/09)

(case below: 982 So.2d 43)

Questions presented:

Whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide?

Sullivan v. Florida, 08-7621 (cert. granted 05/04/09)

(case below: 1D07-6433)

Questions presented:

(1) Does imposition of a life-without parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?

(2) Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?

The Sullivan case, which is the case in which the U.S. Supreme Court is more likely to grant relief, would not necessarily impact any juvenile incarcerated in Florida. Colorado does not call for a life without possibility of parole sentence in cases other than first degree murder and first degree kidnapping (where the death of the victim could be only possible, rather than proven beyond a reasonable doubt), and has only murder and felony murder juvenile LWOP inmates right now. Colorado also has no cases where the crime was committed by an offender as young as thirteen years old.

The scope of the ruling in Sullivan could, however, to the extent that it talked about whether a very young offender can ever be culpable enough to qualify for a life without parole case without regard to the nature of the offense, impact some of the younger offenders (those who committed offenses at ages 14 and 15 who weren’t eligible for the death penalty even prior to the U.S. Supreme Court’s 2005 ruling).

The Graham, in contrast, could be resolved in multiple ways. If the State of Florida wins the case, it would ratify the constitutionality of juvenile life without parole sentences in felony murder cases involving bystander juveniles who are close in age to eighteen years old. It could also be used to more broadly affirm Florida law and allow life without parole sentences for any juvenile convicted of first degree murder.

On the other hand, Graham could be used to invalidate life without parole sentences for all juveniles, or for all juveniles who did not personally commit, attempt to commit or intend to commit a murder, deferring age issues to another day.

The Graham case could even be used to overrule its past precedents and hold that scuh felony murder cases do not necessary constitute homicides within the meaning of the Court’s 1982 Enmund decision and are hence not eligible for either juvenile life without parole or the adult death penalty. This would require reconsideration of each of the felony murder juvenile LWOP cases in Colorado, about a third of the total and the least culpable of the cases (and hence most plausible cases in which to grant clemency).

Of course, any defendant favorable ruling in Sullivan or Graham will require the U.S. Supreme Court to consider how to determine what does constitute a constitutional sentence in such cases. Two ways that this could be done would be either by fiat (perhaps following Colorado’s miserly example of parole consideration after 40 years), or with reference to the next most serious offense for which the juvenile could have been convicted in Florida.

The issue will be on center stage in the U.S. Supreme Court right around that holiday season this year and into the start off the Governor’s 2010 re-election campaign.

Pending SCOTUS Litigation – the Politics in Colorado

Looming over the decision of the Governor and the Board is pending U.S. Supreme Court litigation regarding juvenile life without parole.

If the Governor grants pardons, this adds more fuel to the criminal defendants’ cases in the U.S. Supreme Court that these sentences are unjust (the Colorado legislature will probably not have time to act further on the matter before these cases are decided). But, granting pardons also makes the Governor look foresightful and merciful if the U.S. Supreme Court agrees that the sentences would have been unconstitutional, but for his act of clemency. And, if he says no to anyone who applied for clemency, when the U.S. Supreme Court finds the sentence to be unconstitutional, he looks like his own judgment is “cruel and unusual” as officially determined by the U.S. Supreme Court.

But, if the U.S. Supreme Court rules in a way that would have upheld the constitutionality of the Colorado sentences, but the Governor pardoned defendants anyway, he will give his Republican opponents a fig leaf to argue that he is more lenient that the U.S. Constitution requires him to be. This will be a fairly weak argument, however, so long as there is a life with possibility of parole sentence with eligibility after any term of years, because a parole board must first approve the release based upon the inmate’s post-conviction conduct in prison.

We’ll see what happens next.

SD 31 Vacancy Election Redux

( – promoted by Colorado Pols)

There are nine people running for the vacancy in Colorado Senate District 31 (replacing Jennifer Veiga) at the Democracy Party vacancy committee meeting at Morey Middle School in Denver this evening starting at six and probably lasting until ten, if all three rounds of voting are necessary for one of the candidates to receive majority support.

I am on the fence, although I am not indifferent to the stream of campaigning that has taken place.  Crossposted from here (links in original omitted).

Last night, for example, found Pat Steadman and Alex Sanchez on my front porch, more calls on my telephone, and more literature from Patrick Byrne and others in my mailbox. A steady stream of personal visits, phone calls, and literature have bombarded me since the race began, and I’ve studied it.

I do care about how much effort a candidate is putting into the race, because it is a proxy for how hard that candidate will work to be re-elected. If you can’t work hard enough to make your case to an audience of less than a couple hundred voters who are actually interested in politics, how can you make your case to 110,000 people in the district in a general election.

For example, Elmer “Butch” Hicks and John Maslanik have made virtually no effort, which is apparent to me anyway, to seek my vote, at the same time that other candidates are making multiple contacts in person and by phone, having supporters call, and getting out multiple rounds of literature. I personally know that John Maslanik is a good guy and loyal democrat, and I’m sure that the same is true of Butch Hicks, although I’ve never met him in person. But, if you are going to be a candidate you have to be more dynamic than either of them have been, even though both have experience as candidates for local office and Hicks has held office as a city council person.

As I noted before, jumping into a campaign at the very last minute, like John S. Wren, while permitted by the rules, shows a lack of initiative and commitment. And, the way he conducts himself in his day job undermines my ability to trust him.

Campaign effort isn’t everything, of course. Patrick Byrne has mounted a reasonably vigorous campaign. But, as he himself highlights, he is young, he hasn’t been involved in the party for very long, he doesn’t have long standing connections to the district or Colorado, and he isn’t long on political connections. He thinks that TABOR and the state budget, issue with which he is familiar from his experience as a budget analyst, are the most important issues facing the state. And as he sums it up:

TABOR doesn’t care if you’ve been a community organizer, the Gallagher Amendment doesn’t care how many old-school politicians are endorsing you, and Colorado’s backwards urban renewal laws don’t care how long you’ve had a (D) next to your name. At this time, SD31 needs an honest, fair-dealing technocrat like myself to untie the knots.

This is a great pitch for his position at his current job as a budget analyst for the Governor. But, this doesn’t cut it in a run for State Senate. Staffers need to be technocrats. Legislating, particularly in the State Senate where a majority caucus of twenty men and women must cover every single issue facing the state, is a job for a generalist who is good with people. The problem is not an inability to find accounting tricks or to know that the state budget is broken. The problem is how to use your coalition building skills to build the political consensus to fix it. Expertise is a price of admission to meaningful budget discussions. But, once you have crossed that threshold, budgets document your values, something which has little to do with expertise or intelligence. Age and seniority aren’t everything, but voters need some provable way to know that your heart is in the right place and that you can be an effective team player in the ultimate cooperative game.

I’m also puzzled by Bryne’s decision to take up immigration as a key issue in a diary at Colorado Pols posted during his campaign, when running for state office. Once again, he doesn’t seem to have the right political instincts.

In contrast, Doug Williams, whose background is in political work and real estate development, got in late, although not at the last minute, but understands very well that the job calls for a coalition building generalist who knows how to run campaigns and persuade legislators to take action. He presents as an effective person who has mounted a solid campaign once he got started. His very strong ties to Texas are not a plus, but it is hard to know how deep his Texas values run. It is also hard to know how effective he would be at developing a rapport with the people of SD 31. He has twinkle in his eye maverick charm, but is not exactly salt of the earth that your average SD 31 voter can easily relate to either.

For a political old hand, Ann Ragsdale, a Colorado General Assembly veteran, has run a surprising low key campaign. She is clearly the top dog among the Adams County candidates, and she has proven that she can do the job. But, it isn’t entirely clear what issues she is running on this time around, and she doesn’t appear to be reaching out vigorously to Denver members of the vacancy committee. Her reputation while in the General Assembly was as a centerist, which is a great thing to be in a close district or when Democrats are having a hard time getting coalitions together on issues that can be made law, but isn’t as much as a virtue in a safely Democratic party controlled district when Democrats control the House, Senate and Governorship.

Pat Steadman and Alex Sanchez have both mounted extremely solid campaigns for this race that show their commitment to the seat. Both men have personal stories that make clear that they understand extremely well how average people in SD 31 see the world. Steadman’s progressive political credentials, and knowledge of the legislative process are unimpeachable, and I know him to be an intelligent man. Sanchez makes his living delivering carefully prepared public statements for the Denver Public Schools and it shows. Sanchez knows how to give a short, effective pitch.

As I think through the matter, perhaps the biggest concern about Steadman is whether he will be able to transition smoothly from fighting the power to being in power. Acting as a scrappy street fighter on particular issues is a different role than presuming the kind of entitlement that makes it possible for you to make an unwieldy state government bow to your will. Then again, at the rank and file level of the legislature being part of a base which reliably votes and encourages people to vote the right way has its value.

Sanchez has more experience acting from a position of authority, but is not terribly quick on his feet when asked unexpected hard questions. He doesn’t have much of a public policy paper trail either, so it is hard to know how his early life, corporate experience, and time as a member of the top administrative team for the Denver Public Schools will collectively impact his decision making when new economic issues come up. I trust him to make decisions in good faith while thinking carefully about the needs of ordinary people in his district. I’m not always sure what conclusions that internal dialog will lead him to in the end.

Jill Conrad has also mounted a vigorous campaign, although not the most relentless one and wins the prize for the flashiest campaign moment, distributing a DVD to every member of the vacancy committee in addition to her literature. She also wins props in the ability to campaign to diverse constituencies department for the fact that she is a sitting elected official who won office in an at large Denver seat on the Denver Public Schools Board, a race she won as the teacher’s union candidate in 2005 despite the fact that her opponent, Brad Buchanan, raised more money and was supported by most of the current school board and the Mayor’s wife, Helen Thorpe. Jill Conrad’s education policy expertise is clear. She is a liberal with an emphasis on bread and butter issues. She is remarkably coy about her roots and background, although she is well spoken and her obvious affluence belies her description of herself as a mere “PhD student.” Her life before getting her master’s degree at the University of Colorado at Boulder in 1997 is basically a blank slate. She is a competent politician with no obvious flaws, but also has no obvious connection to the district other than her home address.

I won’t reach conclusions here, and haven’t in my own mind. There are some candidates who will have a very high hurdle to win my vote in the vacancy committee election, and others who are front runners, but the process in this race with so many candidates and multiple rounds of voting in short succession means that I may end up voting for a backup choice in later rounds of voting in any case.  

Day of Remembrance

November 20 is a Day of Remembrance, when the nation and the world recall those who have been killed as a result of their transgender status.

Two transgender women residing in Colorado were murdered this year: Angie Zapata and Aimee Wilcoxson.

Please take a moment to mourn these young lives cut short and to consider how to make this repeated horror end.

If you are wondering what the heck a transgender identity is all about, as many decent people don’t understand it and have never encounted (or realized that they have encounted) someone who is transgendered, an introduction with a Colorado focus can be found here.

Who Wants To Be Colorado Secretary of State?

The Rocky says that seven people have applied for the Colorado Secretary of State post:

* Former House Speaker Andrew Romanoff

* State Rep Bernie Buescher

* Senate Majority Leader Ken Gordon

* U.S. Election Assistance Chair Rosemary Rodriquez

* Republican Gilpin County Clerk Jessica Lovingier

* TV show hoset Aaron Harber

* Democratic Party of Denver Secretary Dan Willis

A committee appointed by Governor Ritter will vet the candidates, and Ritter will make the final call.  Feel free to discuss who will get the job and what the decisions of the applicants to seek the job mean.

Federal Judge Shuts Down Coffman

( – promoted by Colorado Pols)

U.S. District Court Judge Kane wasted no time ordering Colorado Secretary of State Mike Coffman to stop removing names for the Colorado voter lists on the eve of the election, an act that violates federal law.

Coffman had openly continued to remove names from voter lists despite reaching a settlement with voter advocates earlier this week.  Coffman could be jailed or fined personally if he violates the order.

Colorado’s Swing House Districts

( – promoted by Colorado Pols)

The open seat in El Paso County’s House District 17 (formerly held by Republican Stella Garza Hicks) between Democrat Dennis Apuan and Republican primary winner Catherine “Kit” Roupe shows signs that it might swing from red to blue.  

Three incumbent Democrats running for re-election in Republican leaning House District 27 (Sara Gargliardi), House District 38 (Joe Rice), and House District 55 (Bernie Buescher) have strong fund raising edges and demonstrated abilities to win over unaffiliated voters and Republicans, but are in districts where early Republican turnout exceeds early Democratic turnout.

In the open seat in South suburban Denver’s House District 40, previous held by Republican turned Democrat Debbie Stafford, Democrat Karen Wilde has raised less money than Republican Cindy Acree, and also faces a stiff Republcan edge in early turnout.

But, none of these crossover races are open and shut for either party.  In all other house races in the state, a few of which are also close, the party that held the seat at the end of the last legislative session is leading in early and mail-in voter turnout.

There are sixty-five state house districts in Colorado. Every seat is up for re-election every two years, and there is virtually no public polling of these races available.

In the vast majority of cases, there are more early and mail-in ballots from Democrats than Republicans in seats that were held by Democrats at the end of the last legislative session, and the reverse is true in seats that were held by Republicans. There are exceptions, however.

Democratic Leaning Seats Previously Held By Republicans

Democrat have returned more ballots than Republicans in House District 17 (held by Republican Stella Garza Hicks in El Paso County), which is now an open seat. As of a few days ago, in House District 17, votes cast come from 1770 Democrats, 1549 Republicans, 948 unaffiliated voters, and 18 third party voters (an edge of 221 Democrats). This year’s race is between Democrat Dennis Apuan and Republican primary winner Catherine “Kit” Roupe.

Apuan had $15,623.72 of cash on hand as of the last campaign finance reporting period and raised $29,797.96 in the campaign. Roupe had $12,111.85 of cash on hand, has raised $35,775.64 (net of a returned contribution and including “other receipts”), and has also received a $2,000 loan which remains outstanding.

Republican Leaning Seats Previously Held By Democrats

Republicans have returned more ballots than Democrats in House District 27 (held by Democrat Sara Gagliardi in Jefferson County), House District 38 (held by Democrat Joe Rice in Arapahoe County), House District 40 (held by party changed Democrat Debbie Stafford in Arapahoe and Elbert counties), and House District 55 (held by Democrat Bernie Bueschar in Mesa County).

Incumbent Democrat Sara Gagliardi is facing off against Republican John Bodnar in House District 27. At this point, votes cast come from 5396 Democrats, 6063 Republicans, 3594 unaffiliated voters, and 55 third party voters (an edge of 667 Republicans). Gagliardi has $23,554.92 of cash on hand and has raised $93,022.77 (net of returns) in contributions in this election. Bodnar has $22,187.27 of cash on hand and has raised $30,024.31 in contributions, in addition to receiving a currently unrepaid $1,000 loan.

Incumbent Democrat Joe Rice faces Republican Dave Kerber in House District 38. At this point, votes cast come from 4500 Democrats, 5477 Republicans, 2550 unaffiliated voters, and 33 third party voters (an edge of 977 Republicans). Rice has $33,310.86 of cash on hand and has raised $107,054 of contributions (net of returned contributions and including “other receipts”). The records aren’t entirely clear, but it looks like a loan of $12,700 to Rice’s campaign is from a prior cycle and was repaid. Rice has also received $12,391.64 in “in kind” contributions. Kerber has $12,798.42 of cash on hand and has raised $44,590 (net of returned contributions) and has received $10,000 of unrepaid loans.

House District 40 is an open seat that pits Democrat Karen Wilde and Republican Cindy Acree against each other. At this point, votes cast come from 3942 Democrats, 5753 Republicans, 2770 unaffiliated voters, and 49 third party voters (an edge of 1811 Republicans). Wilde has $4,382.97 of cash on hand and has raised $8,664.00 of contributions (net of returned contributions). Acree has $10,879.31 of cash on hand and has raised $38,500 of contributions (net of returned contributions).

Incumbent Democrat Bernie Buescher in House District 55 is facing Republican Laura Bradford. At this point, votes cast come from 3785 Democrats, 6669 Republicans, 3211 unaffilated voters, and 55 third party voters (an edge of 2884 Republicans). Buescher has $35,482.17 of cash on hand and has raised $245,782.95 of contributions (net of returned contributions). Buescher has also received $3,287.74 in “in kind” contributions. Bradford has $4,267.07 of cash on hand and has raised $49,338.56 of contributions, and in addition has received $1,495 of “in kind” contributions.


These are not the only seats that are in play this election. A number of other seats previously held by Republicans or Democrats with early election returns matching the party affiliation of the previous incumbent are close. But, this is an important subgroup of close house races.

Each of these races has vigorous campaigns by bona fide credible candidates from each major party.

At least in the three seats where there are incumbents running, it is unwise to place too much emphasis on party affiliation. These individuals won previous races in precisely the same districts, at a time when there was less of a national trend to the left, on the basis of moderate positions and strong personal appeals to independent voters and affiliated voters who cross party lines.

Democrats can also offer prospective voters the lure of the power to represent their interests through membership in the majority party, and in the case of Bernie Buescher, a senior leadership position (he is currently the top house Democrat on the powerful joint budget committee).

None of these cross over races are so tight that they can’t be won entirely on the strength of support from members of their own party and unaffiliated voter support, although in reality, some members of each party almost always vote for the other’s party’s candidate.

The partisan mix of early turnout and campaign contributions are really the only publicly available, neutral facts that are available to see how these races are going. Money doesn’t translate directly into votes, but is often a reasonable proxy for grass roots support and campaign effectiveness.

By those measures, House District 17 is a very close race, with Democrat Dennis Apuan holding a slight turnout advantage and cash on hand advantage, and Republican Catherine “Kit” Roupe holding a modest edge in funds raised.

All three of the Democratic incumbents have raised far more money than their Republican opponents, have proven their appeal to their constituencies in prior elections.

Karen Wilde, in South suburban and ex-urban Denver has the most uphill fight of any Democrat in these five cross-over races. She lags in fund raising, although neither candidate has raised huge sums of money. The Republican early return edge is a large percentage of the unaffiliated voters in the district who have voted, so she needs a large share of all independent voters and significant Republican cross over voting. And, unlike candidates in the other races, voters in House District 40 haven’t previously voted for a Democrat in recent years, even though their Republican representative was a moderate.

Still, none of these races are out of either side’s reach and all five will be raised to watch Tuesday night.

Cross posted at Wash Park Prophet.