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March 12, 2014 06:13 PM UTC
83 Comments
Game over. He should drop out and endorse Tancredo.
Somewhere in a smoky bar in eastern Colorado tonight Greg and Dudley are high-fiving each other over Rocky Mountain oysters and watermelon margaritas.
What a mockery. The opinion states that because this wasn't criminal less due process was needed than in an administrative setting. Then it states that Gessler somehow knew which aspect of the fiscal rules he was being charged under even though no subsection was cited.
This is why I told Rep. Salazar in committee on Monday that a Rule 106 motion might not be enough to guarantee due process in an IEC proceeding. A statutory change is needed
Gessler really must be your BFF or you wouldn't have so much trouble seeing the crystal clear unethical use of public funds for personal gain. It's an ethics commission. Unethical and criminal aren't necessarily the same thing so you may as well stop whining about the fact that ethical matters and criminal matters aren't going to be subject to identical standards or procedures.
Again, my issue here is that the ruling specifically authorizes the IEC to charge people without telling them what the legal basis is of what they are charged with. See ruling on pages 6-7.
oops – convict people without telling them what they are charged with.
Is someone in a civil case "convicted"?
Yeah, Elliott's point is that people facing civil death penalty cases can be convicted simply on the basis of a "preponderance of evidence". Think how many people are sitting on death row as a result!
I don't see what's wrong with it, Elliot. IANAL, but I can armchair it.
1) "less due process was needed than in an administrative setting" – but the judge found that the IEC explicitly followed administrative law in its proceeding (and cited examples of that law to rebut Gessler's complaints), so that can't be true.
2) Gessler knew which aspect of the rules he violated – he knew the particular instances and conduct which were being challenged well in advance of the hearing. I'm pretty sure I could figure out which particular sections of the CRS I might be violating given the challenged actions, a slide rule and an online search of the CRS (possibly without the slide rule…). And I think it says something that Gessler and his team provided defensive testimony that was directly on target to the accusations and the eventual charges. Again, it's an administrative proceeding, not a criminal court.
I don't know why you've been particularly supportive of attacks on the IEC recently, but the judge's ruling is fairly direct and full of direct citations of case law on administrative actions. Your opposition makes it appear that you have a vested (i.e. legal) interest in fighting the IEC – that you're acting, essentially, as an attorney might when attending a presser outside the courtroom.
Let's go back to the Order issued tonight. Thanks to the magic of OCR, I can copy and paste relevant language easily:
Order at 6-7.
So in other words, the APA does NOT require telling somebody the elements or even the statute that a defendant is accused of violating per this ruling, so long as the proceeding is a mere administrative proceeding. Which is the only way the Court could rule to sustain the travesty that is the IEC's original proceeding.
As for Gessler knowing the rules he allegeldy violated – here is the notice that was provided to him by the IEC. Note that Gessler was convicted of violating Rule 5-1, a very lengthy rule whose page count is in the double digits, yet the order only had a single sentence regarding that rule without reference to a subsection. Moreover, the same order not only mentioned a myriad of other rules that Gessler could have potentially been convicted of at the hearing (with same lack of specificity in elements in that Notice) but also reserved right to add new charges after trial (see Numbered Paragraph 2 of the notice).
EF IOW: "Wah." Don't they teach losing gratefully in shyster school?
…'gracefully,' you aren't expected to be grateful at being shown to be wrong. But grace goes some ways.
Those parts you left out – those would be existing case law, which is what a district court judge should be using in order to make his ruling, right?
Oh – and you also left out the part where he says that there is indeed due process: "Rather, [d]ue process is satisfied by providing adequate notice of opposing claims, a reasonable opportunity to defend against those claims, and a fair and impartial decision. Snyder v. Colorado Podiatry Bd. [adjudicated before the Colorado Court of Appeals, 2004]
Further, your first quote, "There are no specific requirements or rules of procedure to ensure that a defendant's due process rights are preserved, especially in an administrative hearing", comes from the Colorado Court of Appeals 1996 (Bourie v. Dep't of Higher Educ.).
So these rulings are long-standing and have been upheld multiple times over the course of two decades (soon to be three if Gessler appeals).
It is not disputed that Gessler never received notice of what portion if 5-1 he would be convicted under, or that 5-1 was one of a multiple of rules/statutes in charging document, or that IEC reserved right to add new charges to convict him under after trial.
Court simply made clear that that didn't, in its view, matter because this was an administrative and not a criminal proceeding.
I just quoted the responsive appeals ruling that the judge used and you omitted. The district court is bound by that ruling, I believe.
So if you think the opinion sucks, take it to the Colorado Court of Appeals and don't blame the judge for following settled case law.
Again, Court's opinion explicit depended on notion that one does not have any significant due process rights to know specifics of charges when proceeding is administrative under current law
That law is held to be constitutional under existing Court of Appeals rulings. You don't like that, but the state's court system has upheld it and then further cited it – because upon review they do find it adequate.
And you're misrepresenting it again. While Rule 5-1 is large, it is not so large that Gessler's defense team could not defend against it – and in fact the defense directly addressed the charges eventually leveled against him. Gessler's team was notified of the rule violation that was being investigated. I see no difference between this and some states who issue indictments on first degree murder, with all other levels of homicide down to negligent manslaughter on the table automatically.
You are missing fact that not only is 5-1 large by it was not only rule cited in charging document. That document cited a significant number of other rules/statutes and also reserved right to add additional charges based on evidence. In other words, any Colorado law, regulation, or doctrine was fair game.
But it
Yes, it is. And that's why they have an appeals process for an administrative investigation.
If this was your corporate HR department you'd receive no better, either. I suspect the problem lies less with the law than with the consequences.
I think Eliot's just trying to change the subject. He would do better going out for a walk around the block, getting some fresh air and untwisting his knickers.
North Korean facist partisan hacks just like Bull Connor and the LA cops that beat Rodney King!
In an administrative hearing less due process is required than in a criminal case. Besides, you're misreading the opinion. The IEC has both an investigative and administrative/judicial role. On the one hand it investigates the facts and if it believes it is warranted, it files charges and in this case Mr. Gessler was aware of the charges and the sections of state statutes and regulations the IEC asserted the charges under. His lawyers in the administrative case before the IEC briefed those issues so he was certainly aware of which statutes and regulations he was charged under.
R36 – I give credit where credit is due. EF isn't stupid, and he isn't misreading the opinion. The proper term is 'misrepresenting'. In his copying from the decision above, he left out parts that weren't helpful to his response.
The parts I left out actually are very damaging to the IEC's position when read correctly. It would just take me a while to explain why and I didn't trust this forum to read such a post carefully so I only included the portions that weren't dicta.
"when read correctly" Oh my! I hate to be the one that breaks it to you…oh never mind.
Then explain up, because the opinion is linked from the main diary and you're not the only one who can read.
He is the only one that can read "correctly" when looking at quasi-legal blather blah blah blah and such so forth. Facist.
But he did use the word "dicta" so I shouldn't you just surrender in the face of such obvious superiority?
There are several ways this could pose significant problems for the Court's opinion on direct appeal to the Supreme Court. First, Cendant is not on point because it dealt with whether a tax filer had sufficient notice of the best manner in which to file tax returns. It in no way indicated that an agency could haul somebody in front of it, claim that the person was in violation of a quasi-criminal statutory scheme, and then convict the person without telling him what the charges are. Second, Bourie was also purely civil as it dealt with whether a governmental employer had to give specific notice of an alleged statutory violation to discipline a police officer accused of using excessive force.
Gessler's case though was likely quasi-criminal. The IEC was not sitting in the posture of an employer who wanted to discipline its employee. It was not merely a revenue receipt agency determining whether the submission of a tax receipt was timely. It was sitting in the posture of an agency that was reviewing whether a governmental official had broken the law itself. The only things keeping it from being purely criminal was that (a) the fines it could order were relatively minor; and (b) it could not imprison Gessler.
This opinion's weakness is it acknowledges that even in an IEC administrative proceeding, that the matter of law at issue STILL must be asserted. (See Order at 6 citing C.R.S. 24-4-105(2)). Moreover, the opinion acknowledges that Gessler did not know what specific charges were going to be held against him. Order at 7. The Order equivocates on whether this was enough to satisfy 24-4-105 by at one point stating that merely sending the Fisclal Rule citation (without any page or paragraph citations within the multi-rule document) would be enough and at another point stating that no citation to the fiscal rule at all would be required. The Opinion can specifically be attacked on that point – namely that 24-4-105 will, in the quasi-criminal context, require that at a minimum you tell the accused what specific elements are of offense at issue in order to inform them what the specific matter of law at issue is being asserted.
Moreover, even if this complied with that section, reading that section as such would still be problmeatic as it is still subject to federal constitutional requirements under the due process clause of the U.S. Constitution and possibly at risk of being stricken. For a good analogy to this see In re Ruffalo 390 U S 544 (1968). In In Re Ruffalo, an attorney was before disbarment proceedings when a charge was added, after the attorney had testified, based on subsequent evidence. The attorney was subsequently disbarred. After a lengthy appellate track, the U.S. Supreme Court ultimately overruled this decision, stating "These are adversary proceedings of a quasi-criminal nature. Cf. In re Gault, 387 U.S. 1, 33. The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused."
I could go on and on, but unfortuantely, I am slammed today and must get to work. I apologize for leaving my thoughts half finished on that basis, but as you can see, this is a really complicated area. For that reason, I was hoping HB1258 would bring clarity to it and definitively affirm an IEC Respondent's right to know the element of the charges brought against him/her. Sadly, your party killed it in committee. Hopefully this issue will be revisited as a late bill because I would not want any Democrat or Progressive charged under a scheme that embarasses publicly held notions of due process to such an extent.
(as a side note – I think this is the sort of issue that the U.S. Supreme Court might consider if it got that far)
Stick a fork in him.
(and also – nothing I post here is legal advice)
That's the disclaimer I was waiting for.
In case anyone is interested in replicating a losing argument…
Apparently 'work' is tweeting to all the media types telling the court is wrong.
Twitter Brand Mention
@chuckplunkett Ct explicitly aff'd IEC's right to convict people w/o telling them what they are charged with. Order at 6-7 #copolitics
ElliotFladen 3 minutes ago, in Lone Tree, Colorado
Twitter Brand Mention
@COindependent Ct explicitly aff'd IEC's right to convict people w/o telling them what they are charged with. Order at 6-7 #copolitics
ElliotFladen 3 minutes ago, in Lone Tree, Colorado
I am on light rail reading reports. Taking a Minute break to cut and paste something I wrote previously takes no mental energy and is a good distraction at points where my eyes are glazing over.
In Re: Ruffalo…you mean the decision with the following notation in a concurrence?
The Court reverses petitioner's disbarment by the Court of Appeals for the Sixth Circuit because petitioner had inadequate notice prior to his earlier state disbarment proceeding of the charges which the Mahoning County Bar Association was bringing against him at that proceeding. The state disbarment, however, is not before us. We denied a petition for certiorari seeking review of it. Ruffalo v. Mahoning County Bar Assn., 379 U.S. 931 (1964). Our writ in the instant case extends only to petitioner's disbarment by the Court of Appeals for the Sixth Circuit. The question therefore [390 U.S. 544, 553] is whether the defective notice in petitioner's state disbarment proceeding so infected that federal proceeding that justice requires reversal of the federal determination.
How, again, does that apply to our state proceding?
Oh come on. Fladen used the word "dicta" and everything. Resistance is futile.
Thanks, BlueCat. I apologize to everyone for failing to see Elliot cite dicta. Hopefully someone will delete my prior post before the shame of my failure overwhelms me.
Hey, the rest of us are only human.
I do believe you're at least partially wrong about the IEC proceeding. According to the court's review of the facts, Sec. Gessler was informed prior to the hearing of the rules he was being investigated for (see above where Elliot mentions Rule 5-1), and his team definitely put on an accurate defense… But it is true that only after the hearing were the specific violations determined by the IEC – as a result of what was learned during that hearing.
This isn't a defect in the hearing process – it is a known process used elsewhere in an open and fair manner, and one that's been upheld by the courts as providing adequate due process. That it isn't the everyday criminal indictment methodology doesn't make it invalid or constitutionally unacceptable, though Elliot seems to insist that it does.
I haven't said it is definitively constitutionally unacceptable. I knew of the potential difference between the process required under administrative vs criminal hearing under current law which is why I answered Rep. Salazar's question in the hearing on HB1258 the way I did on this very point
I believe you compared it at various points to a cop beating bloody a person in custody, the inherent ethical underpinings of the Civil Rights movement, and the lack of due process under North Korea. Are you now back tracking counselor, if so I accept you apology for calling me a facist partisan hack.
CT, different context. I knew the right to know elements was unsettled in a quasi-criminal proceeding so I consulted on legislation to make it clearly established going forward for IEC proceedings.
I am so glad I am not an attorney.
…because having to be a pretzel looks uncomfortable.
Just not being Fladen should solve the pretzel problem.
It's actually easy to accomplish; you just have to have your spine removed.
So you think that if I had lack of a spine that I would be commenting here with all you ever-so-polite people? (/heavy sarcasm)
It takes a spine to post on an internet blog? What are you, a 14-year-old?
I guess that would explain the overfondness for Twitter, and the notebook covered with experimental "Elliot Gessler" and "Elliot Fladen-Gessler" experimental signatures…..
Really? It looks reasonably settled according to this opinion's citations.
You can find other citations to contrary if you look. You need to look federal as well.
In any event I need to go to sleep
Citations, please.
Not misreading it at all. Opinion depended on notion that no right to know elements of charges when proceeding is administrative
Yes, you are, because the opinion specifically references case law (which you omitted) that supports the opinion.
I continue to wonder what Fladen has against ethics in government.
I have nothing against ethics in government. I firmly believe though that if you are charged with an ethics offense you should be told the legal elements of what you did wrong along with the factual basis. That was not done, and the court here ruled it did not have to be done because it was a mere non-criminal administrative hearing.
I think that is wrong, and that it should be fixed by a statutory remedy if necessary.
of what rule/law/regulation you violated, not of what you did wrong.
Are you an attorney of record in this case? If not, your opinions are of no consequence.
Since you perceive that a legislative fix is required, are you conceding that the court might have got it right?
Scott Gessler the "money badger" tried to weasel out of the IEC decision. The honey badger don't care … and neither does Gessler!
http://www.huffingtonpost.com/2011/03/04/honey-badger-dont-care_n_831278.html
Good call by Judge Stern.
I want to thank Elliot Fladen for courageously standing up for Scott to the anonymous mob at Colorado Pols. I'm so grateful to have a clear headed, objective look at this ruling instead of the usual liberal gaggle repeating each other. Bravo!
I really need to get to work (now that I have arrived at office) and stop debating excessively, but thank you. That said, this isn't about Gessler. This is about making sure – going forward – the IEC has a fair process for GOP and Democratic (and other) officials alike.
Absolutely, Elliot. After all, Hick has an ethics complaint pending too.
to the anonymous mob AND a court.
Moderatus < is that a first or last name?
It's a wet dream
Let's be clear about the issues here. The IEC found, and the court confirmed, that Gessler used state money for political purposes and pocketed the unused portion of his expense budget. Is there really anyone who doesn't see a problem with an elected official doing that?
is Gessler planning on running on a plank of "I may be ethically-challenged, but in due course I'll get off on a technicality"?
Only if the "Well Hick is just as bad and no fair he isn't getting punished for it, too, waaaah" plank doesn't pan out.
But EF found a loophole and the judge isn't falling for it. But it's a loophole. And Gessler is a Repub and lying and stealing are just standard operating procedure for them. And loophole. And Elliot is just total sad panda about the whole thing. Waaah.
It just does not strike me that an elected official who doesn't know that stealing from his office funds is bad deserves a shot at his party's nomination. But then again, I'm not a Republican.
Why Judge Stern called it right, and why the appeal failed, and will fail again:
As Phoenix and others have noted, an IEC hearing begins as an investigative, not a charging, process. IEC followed the administrative rules for their hearing process, and followed their Constitutional mission of investigating ethics complaints by a public employee.
It seems that, if you want to correct due process "abuses" (Elliot's term), one must start with the Colorado Constitution. HB1258 was an attempt to do this, but bill drafters (including you, Elliot, I assume) got greedy and overreached by throwing in the "any respondent can sue any IEC commission member" provision, which would have essentially handicapped the IEC's mission going forward. It was so clearly a vindictive and political move by Gessler in an election year that it had no credibility on its own merits.
I would personally support a bill which would only amend administrative rules to clearly delineate which statutes and subsections are being investigated. Since it is an investigation, all parties should be aware that other charges could be brought in as the investigation proceeds. I would also be supportive of a provision that a public employee, whose department would not allow defensive legal costs, should have access to a public defender. Your political party (Republican) continually cuts budgets for public defenders, so it would be interesting to see how you justify setting aside public money for this expense.
I would never support the "sue the commission" provision, and told you so several times, when you had asked me to write a diary supportive of HB1258.
And, by the way, calling CT, instead of me, a "fascist" doesn't make that OK. We may be many things, including political opponents, but "fascist" isn't one of them.
Bingo, mamajama. Elliot wants to talk about technicalities, and not the ethics. He also substitutes charging for investigation. You are right on point here. If Gessler had said "Oops, my bad." at the beginning of all this, he might have survived this whole thing in far better shape. He has continued to have issues with money, honesty and in owning up to his own errors. This reflects directly on his character. Elliot would do well to consider how this reflects on his own sense of ethics.
I appreciate the views of ethical conservatives, sadly, we don't seem to have very many of them in the public eye any more. Politics is a messy business, but this is like New Jersey stuff. I want our real Republicans back.
Elliot likes to employ various heavy-handed applications of lawyerly and rhetorical debate tactics, in a way that is analogous to chasing lots of lagomorphs down various tunnels that never go where they purport to set out.
And although they are not rodents, a different expression that nonetheless serves a similar purpose here (and which does evoke members of the clan Rodentia), that also involves holes of a various sort: is “whack-a-mole.” Only with some law school Latin tossed in like seasoning.
I had to click on lagomorphs. I'd say your "lagomorphs" trumps all Elliot's little lawyerly words so… you win. Elliot may as well go home and pout.
Lagomorphs. I feel smarter now.
Not me, until now I thought dicta was a lagomorph . . .
. . . and here it was pika all along [face palm] !!
MJ,
We were not greedy. The liability was limited in the end to failure to notify the respondent the elements of the charges in writing and failure to provide an attorney. Both required willful and wanton conduct and both required the liable commissioners be notified within 14 days and subsequently fail to mulligan their offending actions in 28 days. There was never any right to personally sue the commissioners for issuing a decision that you disagreed wiith.
As for your point that the IEC has an investigative funciton, HB1258 acknowledged that as well. It simply required that the IEC notify the respondent in a timely fashion of any new charges' elements (21 days by recollection).
As for whether any appeal would fail, I don't think you can be that confident. This is a question of what process is "due" in a quasi-criminal proceeding and it is an issue that I think SCOTUS would have a very real possibility of taking should the Colorado Supreme Court rule against the Secretary of State.
And as for fascist, if you support the right of people to know the elements of the charges against them in an administrative hearing then the term would not apply to you. However, then you would also support reversing the IEC and the District Court as Gessler indisputably did NOT know such elements of the charges. Take your pick.
Water under the bridge, Elliot. Time and the next court hearing will tell.