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March 03, 2012 08:14 PM UTC

Gessler Goes "Rogue Attorney"--On Attorney General Suthers?

  • 20 Comments
  • by: Colorado Pols

In the little over one year that Colorado Secretary of State Scott Gessler has been in office, we’ve heard a few times–strictly in anecdotes, or on background–about real tension between Gessler and other Republicans at high levels in state government. You might remember, for example, that Gessler abandoned his plans to “moonlight” at the Hackstaff Law Group (formerly Hackstaff Gessler) just after he received an opinion on the matter from Attorney General John Suthers. That opinion, as privileged advice, hasn’t been disclosed.

It’s not a secret that, following Gessler’s fairly unexpected win in 2010, there was some concern even among Republicans that Gessler would not be able to set aside his partisan election lawyer past, and might discredit the office (and the party) by going hog-wild in his official capacity stacking the election-law deck for the GOP a la 2006’s Secretary of State Gigi Dennis. If you recall, Dennis went so appallingly over the line in last-minute rulemaking against Democrats that it embarrassed the GOP, and blown out of the water in court–all on Scott Gessler’s advice.

So yes, folks, Gessler is a potential worry for more than Democrats. And check this out:

This is a notice filed by Gessler yesterday in his case against Colorado Common Cause and Colorado Ethics Watch, requesting that he be added as recipient of filings. This is the case over whether Gessler has the authority to raise the disclosure threshold for political issue committees from $200 to $5,000, presently on appeal after Gessler’s loss.

Now, your first logical question is going to be, “why is this necessary? Isn’t he the defendant?”

And of course, yes, Scott Gessler is already the defendant in this case. But Gessler is represented in this case, as with others, by the Colorado Attorney General’s office. Gessler has access to all the filings in these cases, but they are communicated to him through Attorney General John Suthers’ office. And that’s what makes this filing very curious to us.

There are several possibilities, and we want to be absolutely clear that some are benign–and some are not. Gessler may simply want to see the filings made in this case in real-time. But that could mean Gessler doesn’t think he’s getting information fast enough through Attorney General Suthers’ office. And if Gessler were to decide he doesn’t like how the AG is representing him? Well, he’s the GOP’s crack election lawyer, remember?

This is something you would logically do if you’re going to represent yourself, isn’t it?

There’s nothing we can say beyond presenting this range of possibilities explaining what everyone we’ve talked to agrees is an unusual move by Gessler–obviously, we’re not mind readers, and we’re not going to jump to any possible conclusions without evidence. But if this does become more significant, we’ll be reminding you that you heard it here first.

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20 thoughts on “Gessler Goes “Rogue Attorney”–On Attorney General Suthers?”

    1. Gessler has access to all the filings in these cases, but they are communicated to him through Attorney General John Suthers’ office.

      Reading…

    2. It’s standard operating procedure for the AG’s office to represent Colorado officials.

      It’s bizarre that Gessler would use the fact that he happens to be a lawyer to file something like this, citing his own bar number. I don’t think there’s any “benign” explanation for this.

  3. would this allow Gessler to personally bill his time (for the “work” that he does on this case) to some fund within the SOS’s budget?

  4. Gessler and Suthers would have to be on pretty bad terms IMHO for him to want to do this.  I mean, how far away are their offices?  It couldn’t normally take the two more than a half hour to communicate if Gessler expressed some urgency in being copied on these legal postings.

    Whether it’s bad relations, or Gessler wanting to represent himself, or Dio’s suggestion above, I just can’t figure this out in any way that’s nice to Gessler.

  5. If the AG is constitutionally required to represent state officials, absent a personal litigation where the official is named personally rather than as the office, can the official actually represent himself as the official?

    Can the AG actually withdraw from representing the office?  I’m not sure how this is different than if Gessler decided to blow off the AG and hire an attorney outside that system – the JBC has established a financing scheme that applies to all agencies that provides for the AG’s office.

    Isn’t that why inside legal counsel are very rare in the Colorado system?

    2. Based on previous cases, I believe the AG can withdraw.

      Ken Salazar, when he was AG, refused to defend Bill Owens in a lawsuit filed against Owens, as governor, over executive orders he wrote regarding state employee union dues. The executive order ended the ability of employees to pay their AFSCME, CAPE and CFPE dues through payroll deduction. Salazar believed Owens’ order (written by then-legal counsel Troy Eid) was unconstitutional and refused to defend the lawsuit.

      I believe there is at least one other more recent case when the AG refused to defend the governor, but it’s not coming to my aging brain.

      1. The Attorney General can withdraw. What I find interesting is SOS Gessler entered his “appearance” in the case. When a lawyer enters his appearance that means he or she is representing one of the parties in the case. The SOS has entered this case in the capacity of a practicing lawyer. I don’t know whay but this should be interesting to watch.

        1. I don’t find Gessler’s appearance all that odd — an appearance is just that; I disagree that it constitutes a statement of representation.  Do you guys know how much it costs on LexisNexis to view a document in a case in which you have not made an appearance?  It’s ridiculously expensive (about $10/view).  The Secretary of State is named as a defendant in a complaint raising ethics issues; I know I would want direct access to the filings in such a case if I were the Secretary of State. We’ll wait and see if Gessler steps on the AG’s toes, but for now, I don’t see anything wrong with this.

          1. but I do know that when you enter an appearance you are eihter an attorney representing a party to the lawsuit or you are representing yourself pro se.  

          2. How hard is it really for Gessler to get his communication through the AG’s office, especially since the AG is supposed to be the one doing the representation?

            How many times have you heard of a plaintiff filing for an appearance alongside their legal counsel?

            1. This is an appeal of a trial court decision. The party appealling the decision (in this case Mr. Gessler) will file the opening brief and after that the other side files their brief and Mr. Gessler will probably file what is known as a reply brief. After that, the Colorado Court of Appeals will hear oral argument. This is a slow process and Mr. Gessler will have plenty of time to seek advice (or give it) from his attorneys at the the AG’s office. Plus, as the client, he is entitled to make the ultimate decisions about how the case is argued and presented without ever entering his appearance. My guess is he is going to represent himself.

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