By CHRISTOPHER REYNOLDS
In late July 2012 San Francisco Superior Court Judge Curtis E.A. Karnow imposed $243,279.50 in punitive attorney fees against Socialist Action National Secretary Jeff Mackler and five other plaintiffs, who, two years earlier, had filed a law suit against the state of California challenging important provisions of Proposition 14, the new and infamous “Top Two” election law.
Top Two, the product of a bipartisan vote in the California State Legislature, was in significant part aimed at banning minority parties and candidates from fully participating in the electoral process. The law bans write-in campaigns outright and forces candidates who are not “ballot qualified” and who run in a now mandated “open primary” to identify themselves as “no party preference” despite the fact that they are members of political parties.
Mackler, who ran an effective 2006 Socialist Action write-in campaign for the U.S. Senate, joined the lawsuit to defend these elementary democratic rights and to avert the forced designation of “no party preference” in anticipated future electoral efforts when he is well known as a national leader of Socialist Action. The five other plaintiffs in the suit were similarly members of a number of political parties that ran candidates in California.
Other opponents of Top Two, like the ballot-certified Peace and Freedom Party, have challenged the initiative on the grounds that its passage all but eliminates the right to run in general elections, as Peace and Freedom has done since the 1960s. Since only the top two candidates in the mandated primary election can run in the general election, even if the top two are members of the same party, as is today the case in some eight California election districts, minor parties are for all practical purposes banned.
Proposition 14/Top Two was backed by multi-millionaire “liberal” Republican Charles Munger Jr., whose interest in the initiative, according to Ballot Access News editor Richard Winger, is to eliminate fringe or ultra-conservative parties or candidates from the ballot who might siphon off votes from “mainstream” California Republicans like former Governor Arnold Schwarzenegger. Munger, who is also chair of the Santa Clara County Republican Central Committee, is the son of Warren Buffett’s business partner in Berkshire Hathaway, Charlie Munger Sr.
When the six plaintiffs, including Mackler and Winger, filed suit against the state of California to challenge important aspects of the law, the presiding judge in the case allowed several “third party intervenors,” who had supported and helped finance Top Two, to join the state in defending it in court. The intervenors successfully argued, according to Winger, that “the California Secretary of State would not defend Top Two vigorously enough.”
The Republican law firm Nielsen Merksamer was hired for this purpose. The firm failed to state at the time that it intended to file for attorney fees. Its “defense” of Top Two, as it turns out, included the intention to collect massive and punitive legal fees, the amount to be determined by the firm itself—with the assistance of a friendly judge, one might presume.
Some two years of litigation followed, during which time California courts rejected the challenge filed by the six plaintiffs. The matter was dropped, but not until Judge Karnow, breaking with all legal precedents, awarded Nielsen Merksamer’s well-heeled clients $243,279.50 in attorney fees against Mackler and the other plaintiffs.
California law bans such awards unless a lawsuit has harmed the “public interest.” Similarly, federal law, which in this case trumps state law, prohibits the awarding of attorney fees unless a lawsuit is “frivolous.” But neither Nielsen Merksamer nor Judge Karnow alleged that the original lawsuit filed by the plaintiffs met either of these criteria.
Several observers saw Karnow’s decision as closer to a political act of Republican Party patronage than one in accord with an established principle—encouraging citizens to use the courts to redress legitimate grievances, in this instance the fundamental democratic right to participate in the electoral process.
The six plaintiffs immediately challenged the imposition of the punitive attorney fee award by filing a Motion for Reconsideration, in which they are asking the very court that rendered the decision to change its mind. Within a matter of weeks, a broad range of civil and democratic rights organizations filed amicus (friend of the court) briefs, which showed that the legal fees imposed on Mackler and the other five plaintiffs violated state and federal law in a number of ways. A total of five amicus briefs were submitted to the court on the plaintiffs’ behalf—an unprecedented number for any state trial court proceeding.
A joint brief was submitted by the National Lawyers Guild and the Center for Constitutional Rights by a top Los Angeles law firm (Hadsell & Stormer). The internationally prominent law firm of Orrick, Herrington and Sutcliffe submitted a brief from FairVote, a national voter rights advocacy group. The law firm of Jina Nam & Associates submitted a joint brief by Ralph Nader and the Center for Competitive Democracy and another by author, political reformer, and rank choice voting advocate Steven Hill. Finally, the law firm of Walter Riley, a prominent Oakland civil rights attorney, submitted a brief on behalf of the Alexander Meiklejohn Institute.
In a stunningly arrogant manner, Nielsen Merksamer demanded what amounted to an illegal “emergency” (ex parte) hearing before Judge Karnow—essentially insisting that he dismiss the plaintiff’s Motion for Reconsideration outright. Gautam Dutta, the plaintiff’s attorney, appeared the very next day before a packed courtroom of 50-plus plaintiff supporters and demanded that Judge Karnow recuse himself from the proceeding and that the court reject the Nielsen “emergency” demand to dismiss.
Karnow, who had the option to challenge the demand that he recuse himself, declined to do so. Nielsen’s motion to dismiss was rejected and a new court date of Oct. 22, instead of Oct. 3, was set to hear the plaintiff’s Motion to Reconsider. Such a motion is rarely granted in California courts. In this case, however, the action imposing the draconian and unprecedented attorney fee stands in such blatant violation of state and federal law that the punitive “SLAPP suit” might well be dismissed and the matter ended on Oct. 22.
Karnow’s decision to recuse himself could be an indication that he has no further interest in pursuing this matter in what began as a David and Goliath battle between the huge and moneyed Nielsen law firm and a single attorney representing six dedicated plaintiffs seeking justice.
With the unprecedented amicus briefs filed by other major law firms on behalf of nationally recognized civil and democratic organizations, the plaintiffs are justified in expecting a victory on Oct. 22. But in these troubled times when basic democratic rights and civil liberties, including the right to participate in the electoral process, are under attack across the country, nothing can be taken for granted.
Should this repressive and illegal fine be affirmed, the plaintiffs will have no alternative but to appeal to the California courts and then, if necessary, to the U.S. Supreme Court—a sobering prospect. Equally worrisome, the financial clock is ticking and the original punishing imposition of $243,279.50 can only be expected to mount with each appeal.
Needless to say, the chilling effect of this case could be considerable. Legally, the result not only undermines public policy but violates outright the protections afforded to public-interest plaintiffs under both federal and state law. Unless it is reversed, this unprecedented, unjust ruling could have sweeping consequences over a far broader range of issues and litigants than the underlying dispute (which addresses the merits of the Top Two Primary’s enabling legislation).
Supporters of Jeff Mackler and the other plaintiffs plan to attend the San Francisco Superior Court hearing at 9:30 a.m. on Oct. 22 at 400 McAllister Street at Polk. Please come 30 minutes early, as you have to clear security. All supporters of democratic rights are urged to join them.
Photo: Socialist Action National Secretary Jeff Mackler speaks at 2010 conference of the United National Antiwar Coalition. By Tony Savino / Socialist Action