[EL] Chilling Election Law Challenges in California

[Richard Winger]

Thanks, Scott.  The only slight error in your post is the amount.  It is $243,500, not $600,000.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147

--- On Wed, 10/24/12, Scott Rafferty <rafferty at gmail.com> wrote:

From: Scott Rafferty <rafferty at gmail.com>
Subject: [EL] Chilling Election Law Challenges in California
To: law-election at uci.edu
Date: Wednesday, October 24, 2012, 10:48 AM

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 CtWalnut Creek CA
 mobile 202-380-5525





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