Monstrous Ruling in CA Case Challenging Top Two

SLAPP activities are alive and well.

In 2010, California voters approved Proposition 14, an initiative to put in place California's new top-two primary system. The measure was backed by business interests and rich benefactors, such as Charles T. Munger Jr.

In July 2010, six plaintiffs -- Mona Field, Richard Winger, Stephen A. Chessin, Jennifer Wozniak, Jeff Mackler, and Rodney Martin -- challenged two particular aspects of top-two in court, seeking to overturn the law.  To see a complete listing of motions in the case, check out the public access page here (Superior Court of California, San Francisco County).

The lawsuit had a great deal of merit.   Two specific areas were challenged:  (1) independent candidates couldn't have "independent" on the ballot for Congress and state office, and registered members of unqualified parties couldn't have their party label on the ballot; (2) at the time, write-in space remained on the ballot but no write-ins could ever be counted, even though the ballot did not warn voters that any write-ins would not be counted.

On the ballot label issue, 45 states permit "independent" on the ballot for independent candidates, and even California continues to permit "independent" on the ballot for presidential independents.  California allowed the use of that label ever since government-printed ballots started (in 1891) through 2010.  Three independent candidates for US House were on the November ballot in 2010 with "independent" next to their names.

Two state supreme courts, Massachusetts and Minnesota, had previously ruled the word "independent" for independent candidates cannot be banned.

Winger interviewed most of the independent California candidates for Congress and state legislature just before the June 2012 primary.  Almost all of them said they wish they could have "independent" on the ballot, since they were campaigning as independents.  Winger's interviews included Linda Parks in Ventura County and Chad Condit in the San Joaquin Valley, the two independent candidates who got the most publicity.

On the write-in half of the case, Plaintiffs' position was vindicated this year when AB 1413 passed, removing write-in space from November ballots for Congress and state legislature.  Winger wrote in opposition to that idea.  Winger called for leaving write-in space on the ballot and for requiring that write-ins for declared write-in candidates should be counted.  With AB 1413, at least the legislature acknowledged its agreement with the Plaintiffs that it was wrong to tempt voters to cast a write-in vote and then not count it.

No court precedent, until Field v Bowen, had ever upheld a state's refusing to print "independent" on the ballot.

In this author's view, it seems absurd to say the lawsuit was frivolous or against the public interest.  Yet the case law for civil rights plaintiffs protects civil rights plaintiffs unless the lawsuit has no merit whatsoever.

Wealthy supporters of the law (Munger, Abel Maldonado, David Takashima, the California Independent Voter Project, and Californians to Defend the Open Primary, etc) were worried the Secretary of State would not defend top-two vigorously enough, and were permitted to intervene in the case.

On September 24, 2010, Superior Court Judge Charlotte Woolard – in Field v. Bowen – upheld Proposition 14, a decision sustained by the State Court of Appeals almost a year later, on September 19, 2011.

Gautam Dutta, attorney for the plaintiffs,  decided not to appeal the case to the California Supreme Court.

On March 27, 2012, the intervenors, represented by the Nielsen Merksamer firm of San Rafael, California, moved for attorneys fees. In an astonishing, and monstrous decision on August 1, San Francisco Superior Court Judge Curtis Karnow, a Schwarzenegger appointee, ruled in favor of the intervenors and ordered the plaintiffs to pay $243,279.50 in attorneys fees to the attorneys for Abel Maldonado and the group supporting top-two in the 2010 campaign.

Under California law, this is not supposed to happen.  Courts aren't supposed to award attorneys' fees against plaintiffs unless the lawsuit is utterly without merit.

The attorney for the plaintiffs, Gautam Dutta, is young and he and his wife just had their first baby.  He is a sole practitioner and lives in Fremont and works at home.  He will ask for rehearing; but if that fails, an appeal is likely.  However, Dutta can't appeal without putting up a 10% bond.

One of the Plaintiffs, Richard Winger, had income last year of $6,000.   He has no pension, and his social security, after the medicare SMIB is deducted, is only $180 per month.  He is currently living on his savings, which are gradually being eaten up.

This judgment will cause him great harm.  What little money Winger has will go into the pockets of Charlie Munger, one of the richest men in California.  What sense does this make?

Charlie Munger is a multi-millionaire who is the chairman of the Santa Clara County Republican Central Committee.  He is a prominent activist in California ballot proposition politics, including in 2010, when he successfully sponsored Proposition 20, after having supported Proposition 11 in 2008.

Munger is one of eight children of Charles Munger, the billionaire vice-chairman of Berkshire Hathaway.  He has a Ph.D. in physics from Stanford University and is an experimental physicist at the Stanford Linear Accelerator Center (SLAC). The Center is operated by Stanford University for the U.S. Dept. of Energy Office of Science.  In other words, as a government-crony physicist, his earnings from government have helped him fund initiatives for fatter government (perhaps he could be described as a Taxpayer-Funded Lobbyist?).  Ironically, “Die Luft der Freiheit weht” is Stanford’s unofficial motto and translates as “the wind of freedom blows.” Apparently it doesn't blow in the direction of third parties, independent candidates, or the 43% of Califonia voters in the June election who voted against Top Two.

In 2006, Munger was a member of California's Curriculum Commission, an advisory commission of the California State Board of Education; and was married to Charlotte Lowell in 1989.  Lowell, a graduate of Harvard Law School, is an attorney with the law firm, Skadden, Arps, Slate, Meagher and Flom.

Munger's sister is Molly Munger, an attorney in Pasadena, who is leading the charge on a possible 2012 ballot initiative, the "Our Schools, Our Future" initiative, which would raise taxes to provide additional money to the state's public school districts. Ms. Munger has indicated that she is willing to fund the approximately $2 million cost of gathering the signatures to qualify the measure for the ballot.

Further Reading:

• Drew Spencer & Rob Richie @ FairVote: Are Top Two Backers Seeking to Crush Dissent in California?
• Michael Feinstein: AB1413 “Gut and Amend” Abuse Would Gut Voter Voice
• Joe Mathews:  The Cost of Taking on California "Reformers"
• Russell Mokhiber: Winger Munger and Loser Pays

So, I'm left wondering: The judge ordered attorney's fees on the basis that the case was frivolous.  If that's the case, then why did the intervenors even need to intervene.

If the lawsuit was so weak that the Plaintiffs must be sanctioned, obviously California's very capable Assistant Attorneys General would have defended it without the need for intervention.