Scott Gessler, a former Colorado secretary of state who lost his most recent fight with the Colorado Independent Ethics Commission over travel spending, has appealed the Colorado Supreme Court’s ruling to the U.S. Supreme Court.
Gessler is seeking what’s known as a writ of certorari, basically a request for the nation’s high court to review the lower court rulings.
Gessler, an attorney who served as secretary of state from 2011 to 2015, was slapped with an ethics complaint filed by Colorado Ethics Watch in 2012, tied to travel he made to Sarasota, Fla., in August 2012, for a meeting of the Republican National Lawyers Association.
The day after the two-day seminar ended, Gessler went to the Republican National Convention in Tampa. According to court documents, the cost of Gessler’s airfare and lodging to the seminar was $1,278.90. Gessler paid for it out of a discretionary fund within the Secretary of State’s Office. He also directed his staff to give him any left over money in the discretionary account, about $117.99. He did not provide receipts for those funds.
The Ethics Commission ruled in January 2013 that Gessler’s trip was for partisan political purposes and that his acceptance of the remaining discretionary money without providing receipts was for personal use. It levied a fine against Gessler for $1,514.88, which has not been paid, pending a 2013 court order that put the fine on hold until the legal case was resolved.
Gessler appealed the commission’s ruling to the Denver District Court, which ruled against him. He then went to the Colorado Court of Appeals, which ruled against him unanimously. In June, the Colorado Supreme Court also ruled against him, 6-0.
Gessler’s legal appeals have all been based on challenging the Ethics Commission’s jurisdiction. He claimed that under Amendment 41, the state ethics amendment voters approved in 2006, the commission could only review “gifts, influence peddling, and standards of conduct and reporting requirements that expressly delegate enforcement” to the commission.
The Colorado Supreme Court in June rejected that jurisdictional issue. The justices also upheld the commission’s oversight on a related state law that says that the “holding of public office or employment is a public trust,” and that the public trust is a part of an ethical standard of conduct subject to commission review.
Colorado taxpayers have already shelled out more than $500,000 to cover the legal costs for the complaint. The Attorney General’s Office covered the cost for the Ethics Commission; the cost of Gessler’s attorneys, including outside firms, was covered by the Secretary of State’s Office.
Under a writ of certiorari, four of the nine justices of the U.S. Supreme Court must vote to accept the case.
In his petition to the nation’s high court, Gessler said the commission “employs unconstitutionally vague standards and flaunts due process notice in a way that should not escape this court’s attention.”
Colorado courts, his petition added, “allowed a sitting secretary of state to be personally penalized and censured for the perfectly legal and commendable choice to attend and lecture at an accredited national election law conference.”
Gessler said his attendance should have been viewed as “unremarkable,” given that he was then the state’s chief election officer. Instead, “political opponents brought charges before the constitutionally created Independent Ethics Commission,” the petition states.
The high court is scheduled to discuss the case in its weekly conference Oct. 26.
There’s another interesting wrinkle to the case. The team that reportedly helped prepare current Supreme Court Justice Neil Gorsuch of Colorado for his nomination to the high court in 2017 was led by Michael R. Davis, who clerked for Gorsuch in 2006 and 2007.
Davis has been among the lawyers representing Gessler in the ethics lawsuits, although the Supreme Court petition lists Michael Francisco of Colorado Springs as his attorney in that matter.
Gessler did not return a call seeking comment.