[EL] Allison Hayward has issues.

[David A. Holtzman]

Well, your issues are troubling, very troubling.

Your staff appears to be wrong about the statutory issue.

But at this point, the constitutional issues are not your problem.
You may have taken an oath to uphold the Constitution, but the 
Constitution says you can’t decide what it means to uphold the Constitution.


Here is Section 3.5 of Article III of the California Constitution:

SEC. 3.5.
An administrative agency, including an administrative agency created by 
the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, 
on the basis of it being unconstitutional unless an appellate court has 
made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a 
statute on the basis that federal law or federal regulations prohibit 
the enforcement of such statute unless an appellate court has made a 
determination that the enforcement of such statute is prohibited by 
federal law or federal regulations.
(Sec. 3.5 added June 6, 1978, by Prop. 5. Res.Ch. 48, 1977.)


Litigation might resolve the issues.
But litigants might settle before they reach an appeals court.
Over and over?
Who knows?

- dah

On 5/1/2017 10:23 AM, Allison Hayward wrote:
>
> People of the List (warning - long read):
>
> I want to reach out to you for help and insight on an issue in 
> California campaign finance.  As you may or may not know, I am now on 
> the Fair Political Practices Commission, and, yes, this is an issue 
> that has come before us though as far as I know is not part of a 
> specific matter before us, because I haven’t seen the agenda documents 
> for the next meeting yet.  It is an issue on every agenda I have seen 
> in my brief service, however, and it troubles me.
>
> You may ask yourselves – why is she going to the Listserv with this?  
> After reflection it seemed the best diverse quasi-public audience for 
> the questions I raise, and it would also seem to avoid issues I 
> otherwise face under California’s open meeting law.  So – if you are a 
> fellow Commissioner, don’t reply!
>
> In 2012, the Legislature enacted (in SB 1001 - by a two-thirds vote as 
> required for amendments to the Political Reform Act) a $50 annual 
> registration fee for all political committees – that is, if you are 
> something that files a Statement of Organization in California, you 
> must pay this fee.  The law also specifies that failure to pay the fee 
> results in a penalty of three times the fee (i.e. $150).  Cal. Gov’t 
> Code 84101.5.  Finally, “the Commission shall enforce the requirements 
> of this section.”  84101.5(d)(2).  The money from the fee and the 
> penalty is dedicated to fixing the Secretary of State’s online 
> disclosure database, CalAccess. See 84613.
>
> This fee was added notwithstanding Section 81006, which was part of 
> the original Proposition 9 (1974), which prohibits filing fees.  The 
> statute specifies it is an exception to this general rule.
>
> In practice, the Secretary of State collects these fees and the 
> penalties.  If the filer does not pay, the SOS refers the matter to 
> the FPPC.  Many of these matters are then settled (via stipulation) 
> for $200-$400 per violation.  These penalties are in addition to 
> whatever the SOS can get, and are levied under the authority of the 
> Act’s general civil penalty provision, Section 91005.5, which states 
> that it applies to any violation (with some exceptions not relevant 
> here) “for which no specific civil penalty is provided.”
>
> But wait – there’s more.  Civil penalties under 91005.5 can be up to 
> $5,000 per count.  How can this be?  According to staff, the 
> “Commission shall enforce” clause kicks these matters out of 84101.5 
> and its limits on penalties (which are collected by SOS and go into 
> the CalAccess fund), into the general enforcement track followed by 
> the Commission, and its penalty provisions (which go into the General 
> Fund).
>
> I have issues.
>
> For starters, there are constitutional limits (I’m thinking First and 
> Eighth Amendments) on things like filing fees for political 
> committees.  I believe that a $5,000 ticket for failing to pay the 
> fee/penalty (remember this is separate from a failure to file) would 
> trigger constitutional problems.  (The highest fees would only be 
> imposed on defaulting respondents, since it is the practice at the 
> FPPC to discourage defaults by imposing higher fines.) The more common 
> $200-$400 per count?  Maybe not so unconstitutional.
>
> Apart from that, as a matter of California constitutional law, I am 
> not sure the fee statute is legal.  Legislative amendments to the 
> Political Reform Act require a two-thirds vote, but also must be in 
> furtherance of the Act.  Otherwise they need to be in a ballot 
> measure.  The PRA originally prohibited filing fees.  So it is unclear 
> to me the statute is a proper amendment to the PRA.  The Assembly 
> Committee analysis of SB 1001 raised this issue, too.
>
> Then there’s just the plain reading. Section 91005.5 penalties only 
> apply when no other penalty is specified.  It seems pretty clear to me 
> that when Section 84101.5 states that the penalty “shall” be $150, it 
> means what it says.  The fact this fee is an exception to a general 
> prohibition on filing fees also suggests to me that it should be read 
> narrowly.  If you like your analysis spiced with a little legislative 
> history, you should know that the original language imposed a $10/day 
> fee, but the author changed that to $150 (presumably in response to 
> someone’s constructive criticism – who knows).
>
> Admittedly, my reading would make the FPPC’s role in these matters 
> little more than a collection arm of the SOS.  That doesn’t seem quite 
> right either.
>
> So, hive mind – thoughts?
>
> Allison Hayward
>
>
>
>
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-- 
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com

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