[EL] Chilling Election Law Challenges in California

[Scott Rafferty]

As Richard has written, his attorneys are arguing in Superior Court this
morning seeking reconsideration of an order requiring that he and other
individual plaintiffs pay more than $600k to one of Charlie Munger's
organizations.   An award of fees in this case will chill, if not
eliminate, good-faith challenges to election laws under California's very
complex constitution.

When Richard referred to alleged "frivolity," I assumed that fees resulted
from the state equivalent of Rule 11.  Actually, it's under the "private
attorney general" provision to shift legal costs in public interest cases.
 There is no required element of frivolity or bad faith - and no defense of
good faith.

As such, I see it as a significant threat to California attorneys and any
party who would challenge the constitutionality of a referendum or other
law dealing with elections.   FairVote has made this point in a 2-page
amicus.   I haven't seen the whole docket, but I don't think there has been
a lot of other voices in support.

I very much dislike top-two, for different reasons than Richard, who
challenged details regarding the treatment of independent candidates.
Politically, I wouldn't like the changes he proposed, but I think the
constitutional merits of his case were strong.

Win or lose, there are some extraordinary factors here.

1) Fees are being awarded to a *defending* intervener, who cannot credibly
claim that the SoS and her AG attorney were not already defending the law.
 (They claim that some admissions - which they dispute - could have
prejudiced the prosecution, but apparently they did not.)   It is not
always the case that the state defends California laws, but they seemed to
be aggressive in this case.

2) The AG/SoS are silent on the fee issues.   They have opposed fee
claims *against
the state* even when the state does not defend a law.

3) Mr. Munger is chairman of a county political party and a
multimillionaire.   The fees are being sought from individual plaintiffs.

4) Richard et al. successfully moved to recuse the trial judge, but his
successor found that there was no basis to recuse, so they are back before
the original judge.   I do not know the basis for the recusal motion, but
this cannot be good.

I am concerned that the reasoning behind strict limits imposed on fees
under 42 USC 1988 and EAJA may not apply to the state statute.   The D.C.
Circuit, for example, refuses fees where the government had a good-faith
(but mistaken) belief that the challenged law did not violate the First
Amendment.   In any case, it would be very difficult for a defending
intervener to receive fees under EAJA, and they could never be paid by the
plaintiff.

The fee award also seems like an open invitation for all comers to get fees
simply for helping defend a statute that the AG and other constitutional
officers are already aggressively defending - (1) even when the
organization is closely affiliated with political party officials and (2)
without any claim of financial hardship.

Am I missing something?

Scott Rafferty
1913 Whitecliff Ct
Walnut Creek CA
 mobile 202-380-5525
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