Federal lawsuit attacks Colorado’s money-in-politics enforcement system

Want to know who's making sure Coloradans are obeying the state's campaign finance laws? Look in the mirror.

The Centennial State has long been unique in having a money-in-politics system watchdogged not by trained investigators or regulators, but by average citizens. It's called private-party enforcement, and under that system citizens here have to bring complaints themselves against those in power they feel might be violating the law.

Today, the nonprofit Institute for Justice, a public interest group based near Washington, DC, filed a federal lawsuit attacking Colorado's system of private party enforcement for regulating campaign finance laws.

The Institute is suing on behalf of Tammy Holland, a Colorado mother from Strasburg, who had taken out ads in her local newspaper about an upcoming school board election. (You can find more background on Holland's particular issue here.)

"Tammy did not endorse any particular candidate; she just wanted voters to know their options," the Institute wrote in a news release. "For the ads, Tammy found herself sued not once, but twice, by school board officials who sought to silence her speech."

Colorado's campaign finance system was created by the Colorado Constitution. The Institute for Justice is suing Colorado's Secretary of State in federal court, however, on grounds that the state's third-party enforcement system is a violation of the U.S. Constitution.

"Colorado has essentially outsourced the enforcement of its campaign-finance laws to every politico with an ax to grind," said Sherman, the group's senior attorney in a statement. "That’s not just bad policy, it’s unconstitutional. Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them.”

That's not just some outside group making wild accusations against Colorado. His characterization is a criticism observers here have leveled for years.

Deputy Secretary of State Suzanne Staiert told The Colorado Independent that her office has been expecting a lawsuit like this for about the past decade. She's heard plenty of complaints about the private enforcement aspect of campaign finance in Colorado.

"We'll be responding and defending the suit … we're certainly going to defend it," she said. "But from a policy perspective we certainly understand some of these concerns."

She said this session the Secretary of State's office is hoping to support a bill that would establish administrative law judges who specialize in the campaign finance.

"This is an issue that a lot of people on the left and the right agree on," Staiert says. "We need to have some speciality in the campaign finance world because we need some certainty."

Colorado's current system is one of the reasons the state earned a D+ in the latest State Integrity Investigation by the Center for Public Integrity that graded each state on its risk for corruption. (I'd spent the better part of last year working on that report.)

From the November 2015 State Integrity Investigation:

Colorado's reputation for clean government might have a lot to do with how difficult it can be to uncover examples of bad behavior. Money-in-politics reports and financial disclosures filled out by the state's politicians and judges aren't formally audited in ways that could detect problematic campaign finance issues.

So instead, rooting out ethics violations in Colorado falls mostly to the private sector. That can mean rival campaign operatives, nonprofits, political groups with agendas or the unlikely average citizen who just might have the time and resources to prove their case in court.

“Colorado is the only state where private citizens are expected to prosecute ethics complaints at their own expense while the state pays for the defense of officials accused of wrongdoing,” said Luis Toro, director of Colorado Ethics Watch, a nonprofit watchdog. His group, which doesn't disclose its donors, pursued the successful complaint against the former secretary of state for using state money to attend a political event. Ethics Watch had to pay to fight the case at its own expense.

In November, reporter Megan Schrader of The Colorado Springs Gazette quoted two out of the three people who work for organizations that have filed the most campaign finance complaints in Colorado. They both found the current system lacking.

"It's a real weakness of the system," said Matt Arnold of Campaign Integrity Watchdog, whose group has filed the most complaints in Colorado. "With any other law, the district attorney will prosecute the case and it's the state enforcing the state's laws."

Arnold tells The Independent he'll be following this case closely. He says he'd like to see a different system in place, but worries leaving enforcement up to the Secretary of State's office could be problematic because the Secretary of State is a partisan elected official.

"Maybe the way to go is an independent commission," he says. "The thing is: there are so many violations, and the enforcement is selective and it's based on who has the motivation and the ability to go look."

Defenders of Colorado's current system say it saves taxpayer money by not having a fully staffed government entity to handle complaints like other states.

Luis Toro, the director of Colorado Ethics Watch, a nonprofit group he believes is the third most frequent filer of complaints, says his group's view is that Colorado's private-party enforcement system might be bad policy but it isn't unconstitutional.

"I would expect conservatives to love Colorado's privatized campaign finance enforcement system," Toro had snarked on Twitter after reading a guest column about the lawsuit by the Institute's attorney that ran this morning in The Denver Post. "But if they want Big Government to take over enforcing campaign finance laws, that wouldn't be the worst result."

Ethics Watch points to the way Montana's campaign finance enforcement system operates as a potential model for Colorado. A commission in Montana has a staff of seven in a state much less populated than here.

"I’m not aware of any complainant in a Colorado campaign finance case that has anything close to that level of resources," Toro says.

Colorado does have an Independent Ethics Commission, but it's an understaffed and underfunded bureaucratic outpost that can't seem to retain an executive director and has been accused of having inherent conflicts of interest.

The State Integrity Investigation grave Colorado an ‘F' for the ethics enforcement category in 2015, just as it had in 2012.

Says Jane Feldman, a former director of Colorado's Independent Ethics Commission who now works in ethics compliance in the New York state legislature: "Citizen enforcement of laws is always going to be problematic whether it's for election laws, or campaign finance laws or ethics laws."

[Photo credit: TaxCredits.net via Flickr]

DA won’t prosecute deputies who killed Michael Lee Marshall. Video released to family

Denver District Attorney Mitch Morrissey's office will not prosecute the sheriff's deputies who fatally restrained Michael Lee Marshall, a homeless, mentally ill street preacher, at the Denver jail, according to a statement from the DA's office.

Video of the deadly encounter between the deputies and Marshall has been turned over to the family, who will watch it this afternoon. The Department of Public Safety will release it to the public within the next 24 hours.

"Denver today fulfilled its commitment to the Marshall family to view the video," Mayor Michael B. Hancock said in a statement. "This family deserves to know what occurred during this tragic event. I am confident this is the right thing to do, but I also know it makes this incident no less difficult for the family, the sheriff deputies and the community."

"I sympathize with Mr. Marshall’s family and express my condolences for their loss. Sadly, this situation is an example of how difficult it is for society as a whole, including deputies in a jail, to handle the complex issues presented by those suffering from severe mental illness," Morrissey wrote in a statement.

"To those calling for criminal charges in order to effect a change regarding use of force tactics or policies, I want to emphasize that criminal charges are appropriately used only to respond to criminal acts that can be proven beyond a reasonable doubt. Absent that certainty of proof, criminal charges are not appropriate and are not justice."

Morrissey justified his decision not press charges.

Based on the evidence in this investigation, I conclude that the physical force exerted against Mr. Marshall by the deputy sheriffs was for the lawful purpose of maintaining order in the jail as allowed by Colorado’s statute, and was applied by the deputies as part of their responsibility to provide safety and security. There is no evidence suggesting any force was used for the purpose of harming Mr. Marshall. It should be remembered that this incident began as an attempt to get help for Mr. Marshall who was behaving erratically and inappropriately. The event that required the deputies to physically control him was not of their choosing and their actions were in response to Mr. Marshall’s behavior. Indeed, their efforts to help him continued through the remarkable twenty minutes of CPR.

The Marshall family legal team, from Killmer, Lane and Newman, argues his death is one in a string of many at the hands of law enforcement officers that have walked free after killing on duty.

"Obviously we're extraordinarily disappointed but not one bit surprised," said Marshall's family attorney, Mari Newman,of Killmer, Lane and Newman, who had not received a copy of the District Attorney's decision until this reporter sent it to her. "Denver has never held its law enforcement accountable and this time is no different."

In Mitch Morrissey's 10 years as Denver's D.A., he has never prosecuted an on-duty excessive force or murder case against a law enforcement officer. That includes the killing of unarmed 17-year-old Jessica Hernandez, who was shot from the side while she sat in the driver's seat of a car, and another homeless, mentally ill, street preacher, Marvin Booker, who was also killed while being restrained by sheriff's deputies.

"It's really outrageous that DA Morrissey is not prosecuting for anything," said Darold Killmer, another family attorney. "He seems to think it's a first degree murder or nothing decision … They don't ever consider prosecuting. They start with the conclusion that they'll exonerate the officers, and then they work toward that conclusion.

"The reason they don't prosecute is this is the way Denver trains their deputies to act … It's really a system problem and culture problem in Denver's law enforcement. They will never change unless they're forced to change and nobody has forced them to change," said Killmer.

"The fact that there will be no prosecution is the obvious result when the city is responsible for investigating itself. It's like the fox watching the chicken coop," said Newsome.

"There was no doubt from the outset of this process what the result of this process will be," said Killmer. "We knew it. The family knew it. The city knew it. Nothing will be done to rein in law enforcement under this administration."

"I am not shocked. This is what this D.A. does," said Pastor Terrance Hughes of the Denver Ministerial Alliance, who has led roughly 300 people on a hunger strike for nearly two weeks, demanding the city hand over to Marshall's family video recordings of the killing. "It does sadden me. I am sad that we’re living in a state where human lives mean nothing, and there’s no accountability when a human’s life is taken."

The city has released video of the fatal incident to the Marshall family. "I'm extremely disappointed and upset that the sheriffs didn’t get charged," Marshall's niece Natalia Marshall told The Colorado Independent. "My little heart is broken, but I'm not surprised, not even one bit. Mitch Morrissey has never brought charges in any of the shootings. I don't know why I thought it would be different for my uncle."

Marshall and her family are told they'll view three different surveillance tapes at their attorneys' office this afternoon. The family will have the option to keep copies of the files.

"I'm very anxious and scared of what’s on this video," she says. "I know we have to watch it — watch my uncle in his last moments. It's going to be brutal."

"I don't know where we go from here, but I believe in God that something good has to come out of it."

With the release of the videos, the hunger strike that began nearly two weeks ago has come to an end.

The Colorado Independent filed a lawsuit yesterday against the City and County of Denver after the city refused to honor a Colorado Open Records Request for all recordings of the incident.

“The video and audio recordings of the confrontation between sheriff’s deputies and Michael Marshall is objective evidence of what occurred, and the public deserves to see the footage and decide for themselves," said attorney Elizabeth Wang, who is representing The Independent in the suit.

"I find it interesting that they released this DA decision to everybody but the family. Denver's lack of the compassion for the Marshall family has been consistent and still surprising every time," said Newman.

This is an evolving story and will be updated. 

Photo credit: Jeffrey Beall, Creative Commons, Flickr. 

Keefe: On New York values

For more from Mike Keefe, go here.

Who needs timeouts, anyway?

Valor Christian girls basketball coach Jessika Caldwell likes to be hands-on and very demonstrative during practice. That didn't change while she was pregnant. With the baby due in just days,

Massive leaks are an everyday occurrence in gas fields

This story first appeared on High Country News.

After one of the many attempts to plug the methane-leaking well at the Aliso Canyon natural gas storage facility in the Los Angeles suburbs, the thing erupted like a geyser, spewing not only natural gas, but also the muddy slurry that company technicians had pumped into the well. It reminded me of a phenomenon that disrupted small-town life in southwest Colorado in the 1990s, during a coalbed methane boom. An abandoned natural gas well, drilled decades earlier, would periodically erupt, shooting natural gas, water and debris some 200 feet into the air. Locals dubbed it Old Faithful.

Aliso Canyon is a bit like a gigantic, catastrophic version of the geyser gas well of yore. Since the leak was first noticed, in late October, some 4.6 billion cubic feet of natural gas have leaked into the atmosphere. Most of that is methane, a particularly potent greenhouse gas, along with smaller amounts of other compounds such as benzene, a known carcinogen, and mercaptan, a sulfur compound added as an odorant to the gas. The mercaptan, especially, has been hellish for nearby residents of Porter Ranch, and as many as 3,000 residents have evacuated.

Celebrity pollution activist Erin Brockovich and others have equated the Aliso Canyon leak to the BP oil spill, on land. Indeed, in infrared images, the methane plume does look like thick crude billowing into the sea. But the BP spill was a rare occurrence, while massive methane leaks are horribly common, happening in America’s oil and gas fields every day.

The aforementioned Old Faithful was in the San Juan Basin of Colorado and New Mexico, one of the most productive natural gas fields in the nation. Locals were more amused than alarmed by the gas geyser, even though it was within spitting distance of an old folks’ home. (Watching the earth projectile vomit was more entertaining than another Lawrence Welk re-run, apparently). People around here had bigger things to worry about back then. Dangerous levels of methane were showing up in crawlspaces and drinking water wells, with occasionally disastrous results, and vast swaths of vegetation were dying off due to methane displacing oxygen. Meanwhile, far more methane — and all those other nasties that accompany it in natural gas — were seeping out of the vast oil and gas infrastructure that is woven throughout the landscape.

Aliso Canyon’s leakage rate has averaged just under 1,000 metric tons per day (a rate which slows over time as pressure on the reservoir is relieved). That qualifies it as the largest point-source methane emitter in the nation, leaking at about twice the rate of the Walter Energy coal mine in Alabama, which tops the Environmental Protection Agency’s greenhouse gas inventory.

But add up all the oil- and gas-related methane point sources in one hydrocarbon-producing basin and the story changes. San Juan Basin oil and gas facilities emitted 291,162 metric tons of methane during 2014, according to the EPA inventory. But the inventory doesn’t account for smaller producers, geologic seeps that have been exacerbated by oil and gas development, abandoned wells or undetected leaks. So actual emissions from oil and gas facilities far exceed the EPA’s greenhouse gas inventory, as numerous studies have shown. Take all that into account, and the San Juan Basin’s total oil and gas emissions rate is probably closer to 500,000 metric tons per year, or 1,400 tons per day, a far higher rate than at Aliso Canyon.

The same sort of leakage is occurring in other hydrocarbon-producing basins, as well, from the Permian to the Piceance, impacting both the climate and the folks who live nearby. As atmospheric scientist Gabrielle Petron told me last spring: “Your air is being impacted. You live on the edge of the gas field.”

Which is not to say that the Aliso Canyon leak isn’t a big deal. It is. And a similar catastrophe could happen elsewhere, and probably already is, on a smaller scale. The Aliso Canyon storage facility is a huge, depleted oil field that enables Southern California Gas Company to store natural gas, much of it from the San Juan Basin and other gas fields in the Interior West, and then withdraw it when needed. Another 415 or so of these underground facilities are scattered across the country. Some are in depleted oil and gas reservoirs, others in aquifers or salt caverns, and many are on the edge of urban or suburban areas. With a storage capacity of 86 billion cubic feet, Aliso Canyon is among the largest, but a depleted field near Baker, Montana, can store up to 164 billion cubic feet of gas.

Major incidents, at least ones that directly impact nearby populations, at underground storage facilities have been few and far between. When they do happen, though, they tend to be spectacular. In 2004, ignited gas spewing from a failed valve in Moss Bluff, Texas, created a 1,000-foot column of flames, and in 2001, explosions resulting from gas migrating from an underground storage reservoir in Kansas killed two. Surely many more climate-damaging methane leaks go unnoticed. In depleted oil fields, old wells (the bad one at Aliso Canyon was drilled in 1953) are prone to fail. Meanwhile, a 2013 study published in the Hydrogeology Journal found that in aquifer storage units “gas loss is a possibility via … faults, inadequate caprock seals, or improperly completed wells.”

These facilities fall in a regulatory gray area. The Federal Energy Regulatory Commission has jurisdiction over units that are used for interstate commerce, but the agency regulates rates and storage levels, not operations or safety. Others, like Aliso Canyon, are regulated by respective states, often inadequately. (The lack of a safety valve on the leaky Aliso well apparently did not violate California rules, for example.)

New federal rules on oil and gas industry emissions from the EPA and the Bureau of Land Management may help the situation in the gas fields, but the rules will apply to few, if any, underground storage facilities. Colorado regulates oil and gas industry emissions, but not facilities “downstream” from processing plants, like underground storage. A pipeline safety bill introduced in Congress late last year would create minimum safety standards for all underground storage, but its chances of passing are limited.

As long as it is left unfettered, methane leakage, be it on a catastrophic Aliso Canyon-level or the everyday emissions from the gas fields, will continue to sully natural gas’s image as a climate-friendly fossil fuel. Still, it may take a while to catch up with coal, at least over the long term. The Aliso Canyon well is emitting methane at a rate equivalent to 32,000 metric tons of carbon dioxide each day*. The Navajo Generating Station in northern Arizona, meanwhile, spews carbon dioxide at a rate of 47,000 metric tons per day. That’s like the climate’s version of the BP oil spill, and it’s happening round-the-clock, with no end in sight.

*Calculation based on the Intergovernmental Panel on Climate Change’s fifth assessment, which finds that methane has a global warming potential 34 times that of carbon dioxide over a 100-year period. Methane’s GWP for a 20 year period is 87 times that of carbon dioxide.

High Country News is a nonprofit news organization that covers the important issues that define the American West. Subscribe, get the enewsletter, and follow HCN on Facebook and Twitter.

Jonathan Thompson is a senior editor at High Country News. Follow @jonnypeace

Photo credit: Earthworks, Creative Commons, Flickr.

Rocket Builder Bonus and Review – UPDATED

North Denver News - The Voice for the New North Denver

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The post Rocket Builder Bonus and Review – UPDATED was first published by North Denver News

Colorado law would make it easier for juries to sentence someone to death

A group of Republican lawmakers introduced a bill today that would make it easier for juries to put someone to death in Colorado. Currently, all 12 jurors in a death penalty case must unanimously decide to call in the Grim Reaper; the new law would make it so only 9 out of 12 would be enough.

State Sen. Kevin Lundberg of Berthoud, Colorado, revealed the bill today in the Senate. You can read the full text of it here. Lunberg and another of the sponsors are on the Senate Judiciary Committee in the upper chamber where Republicans hold control by one seat. Six Republicans and no Democrats so far support the bill, they've said is a direct result of a non-unanimous jury verdict that spared the life of the Aurora theater shooter this summer.

Critics of the proposed law were quick to point out one particular irony.

“I think what's most odd about this bill is that we require unanimous juries for a DUI conviction," says Stacy Anderson of the anti-death penalty Better Priorities Initiative. "So we're going to set a lower bar to send somebody to death? To actually send someone to death should be the highest bar that a jury has to reach and a prosecutor has to reach.”

Public defenders in Colorado have argued that in recent years the state has, in a way, de facto abolition of the death penalty. Juries haven't put someone to death here since 2008. There haven't been any executions in the state since 1997. Currently Colorado's death row rolls three deep.

In August, prosecutors were unsuccessful in convincing a jury to come to a unanimous decision to execute the convicted killer in the high-profile trial of the Aurora theater shooting in which 12 people were killed and 70 more injured.

Arapahoe County District Attorney George Brauchler, who prosecuted the case, has said he believes the decision came down to one juror who didn't want to send the killer to the grave. In an interview with The Colorado Independent last month, Brauchler said while he's spoken to several other jurors from the trial who were in favor of execution he hasn't yet heard from the one who opposed it.

"I keep waiting on that holdout juror to reach out to us — and I hope it happens — and sit down and say ‘Here's what went on, here's what got me, here's that point in the trial or here's that piece of evidence, or something when we were talking that got me,'" Brauchler said.

Brauchler could not immediately be reached for comment about the proposed new law.

At the start of this year's legislative session that began Jan. 13, Democratic Gov. John Hickenlooper said he would not push for a repeal of the death penalty this year, but hopes to within the next few years. Democratic Senate Minority leader Lucia Guzman said she would not carry a repeal bill this year, though she's in favor of repeal. 2016 is an election year when many lawmakers are up for re-election. Efforts to abolish the death penalty in Colorado have failed four times in the past, most recently in 2013.

Douglas County Republican Rep. Kim Ransom told The Independent before the session started that she was looking to carry a bill that would also help prosecutors secure a death sentence in a capital case. The proposed law would give prosecutors a second chance with a new jury if they weren't able to convince the first to send someone to death.

[Photo credit: Paige via Flifkr]