Ballot-access crew hit with huge legal fees

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Six activists are being hit with overwhelming legal fees after their attempt to reverse California's new election process was blocked by a wealthy Republican.

Richard Winger, the San Francisco-based editor of Ballot Access News, and five others went to court in 2010 to block the open-primary system, which mandates that the top two finishers in any primary battle move on to the November election. The plaintiffs argued that the provisions were bad for third parties.

The lawsuit named Secretary of State Debra Bowen, but Charles Munger Jr., the chairman of the Santa Clara County Republican Central Committee, won the right to intervene in the case on behalf of the top-two system. He hired the powerhouse law firm Nielsen Merksamer, and Winger’s case, Field v. Bowen, went down to defeat.

Now Munger has convinced the court to award his law firm $243,000 in fees -- money that the small band of activists can’t possibly pay. 

"The fees are contrary to law and precedent,"  Winger told us.

Winger, whose annual income was $6,000 for the last two years in a row, says he lives mostly off his savings, doesn't have a pension and only receives $180 in social security each month.

Since $240,000 is an impossible sum that would wipe out the public-spirited activists -- and means nothing to Munger -- you have to wonder: What is this really about?

"Sometimes lawyers are really competitive. It's like a sport to them. They just want to win," says Winger.

From the outside, the fee request seems like a classic case of schoolyard bullying. In fact, it’s a prime example of what the legal community appropriately calls a S.L.A.P.P. lawsuit (strategic lawsuit against public participation).  Such cases are meant to intimidate one party with legal fees until they abandon the case, something the plaintiffs haven't done quite yet.

Political insiders are wondering why Secretary of State Debra Bowen hasn't done more on behalf of the plaintiffs. "She's leaving these people hanging out to dry," says Steven Hill, the former director of the Political Reform Program of the New American Foundation. "The ironic thing is that you have a secretary of state who calls herself a progressive, but her name is on a lawsuit that's being used by Nielsen Merksamer to slap down a public interest lawsuit brought by her own supporters."

Adding to the irony of Bowen's lack of involvement is that the very political process that Winger and others were trying to stop is what drove her out of her 2011 congressional bid in California's 36th district.

That special election -- forced after incumbent Jane Harman resigned -- was also a test run of the new top-two open primary system.

Bowen's opponent, liberal centrist Janice Hahn, saw a way to squeeze her out of the race by leveraging the potential candidacy of another leftist liberal, Marcy Winograd. Hahn's tactics succeeded as Bowen and Winograd essentially split the left-liberal vote, allowing Hahn to reap the primary benefits and move into the general election where she won with ease against Republican Craig Huey.

Nonetheless, Bowen is failing to speak up on the matter.  After multiple requests for an interview, Bowen's press secretary, Shannan Velayas said in an email: "The Secretary of State's office does not comment on pending litigation."

 

Comments

accept the risk that they may have to pay costs. That provision specifically exists to deter frivolous lawsuits.

If they believe in their cause, they should wear this debt as a badge of courage and commitment.

Posted by Guest on Sep. 25, 2012 @ 2:32 pm

I'm sympathetic to wanting a risk/penalty for frivolous lawsuits, but this lawsuit was brought in good faith. The crux of the argument they were making in the lawsuit is that having a write-in slot on a general election ballot where anything entered would get thrown away (because of top two) abridges the right of the voter to have their vote counted. California *changed the law on ballots* to eliminate the write-in slot; which isn't what the plaintiffs wanted, but is a strong recognition of the legal problem that they were suing about.

Posted by diabolical_mdog on Sep. 25, 2012 @ 7:12 pm

the lawsuit is not frivolous and the judge never said it was frivolous. It said it harmed the public interest, but he didn't say how. And if it had been a frivolous lawsuit, then the attorneys for the Secretary of State were perfectly free to defend the state law from a frivolous lawsuit, and the intervenors should have just relaxed.

Posted by Richard Winger on Sep. 26, 2012 @ 11:39 am

The contention that Munger's defense of the system was a S.L.A.P.P. lawsuit makes no sense. SLAPP lawsuits are brought by plaintiffs and anti-SLAPP statutes are meant to terminate such suits early since the SLAPP lawsuit is meant to stifle participation in the process, or silence or censor an opponent.

Here, Winger and the other five were the plaintiffs. They are probably having to pay fees because the Court found THEM to have filed a SLAPP suit.

Posted by The Commish on Sep. 25, 2012 @ 3:06 pm

Actually, I just read the court order and fees were awarded under CCP 1021.5. The order note that the plaintiffs were seeking nearly $2 million in fees themselves even though they lost the lawsuit.

Posted by The Commish on Sep. 25, 2012 @ 3:28 pm

The plaintiffs did not ask for attorney fees from Munger. While the plaintiffs lost, no one said that their lawsuit was frivolous. Munger and the Nielsen Merksamer firm are asking for huge fees to intimidate others from challenging the top-two system (there are other lawsuits underway against it), and anything else they decide to support.

Posted by Guest on Sep. 25, 2012 @ 7:29 pm

I read the court order denying the plaintiff's request for attorneys' fees and granting the intervenor-defendants' request for fees. The court stated in that order: "Here, the lawsuit had no merit."

Posted by The Commish on Sep. 26, 2012 @ 8:17 am

A lawsuit is only frivolous if you know it has no merit. The plaintiffs and their counsel honestly believed that their case had merit, and no one has alleged otherwise. Therefore it was not frivolous, and the intervenors should not have been awarded legal fees.

Posted by Guest on Oct. 05, 2012 @ 6:32 pm

It was pathetic that the winning side went for legal fees, but this is the sort of thing that one might expect from Nielsen Merksamer -- arrogance and viciousness. It is pathetic, but ultimately not that surprising.

What *is* shocking is that the first judge went along with them. Awarding legal fees is simply not done when a reasonable case is brought in good faith. So why would he do it? I can only speculate that it was because (a) He is a brutal, arrogant, and vicious jerk like Nielsen Merksamer attorneys, or (b) he plans to work for Nielsen Merksamer himself in a couple of years.

At any rate, this *must* be overturned, and it appears quite possible that it will be overturned, now that a new judge is looking at the case.

Posted by Guest on Sep. 25, 2012 @ 8:35 pm

It was pathetic that the winning side went for legal fees, but this is the sort of thing that one might expect from Nielsen Merksamer -- arrogance and viciousness. It is pathetic, but ultimately not that surprising.

What *is* shocking is that the first judge went along with them. Awarding legal fees is simply not done when a reasonable case is brought in good faith. So why would he do it? I can only speculate that it was because (a) He is a brutal, arrogant, and vicious jerk like Nielsen Merksamer attorneys, or (b) he plans to work for Nielsen Merksamer himself in a couple of years.

At any rate, this *must* be overturned, and it appears quite possible that it will be overturned, now that a new judge is looking at the case.

Posted by Guest on Sep. 25, 2012 @ 8:36 pm

But the court order says that the plaintiffs were seeking nearly $2 million in fees. The intervening defendants (represented by this Nielsen Merksamer firm, about which I know nothing) were asking for a fraction of that -- about $243,000.

Posted by The Commish on Sep. 26, 2012 @ 8:19 am

It's good to see the Bay Guardian pitch a Libertarian for once, when all the Guardian usually does is slovenly worship at the feet of so called "liberals".

Posted by MATLOCK on Sep. 25, 2012 @ 8:51 pm

The awarding of attorney fees to the intervenors was uncalled for, especially since the legislature corrected the problem that the plaintiffs were suing about. If anything, the state should be paying attorney fees to the plaintiffs.

Allowing the award of attorney fees to stand will only serve to intimidate those who file legitimate public interest lawsuits and more specifically to this case, intimidate minor parties from seeking fair election laws.

Posted by Guest on Sep. 25, 2012 @ 9:15 pm

If their intention wasn't to suppress debate and intimidate others from challenging unfair election laws, why did the intervenors' attorneys go after the plaintiffs and not the defendants? Their justification for intervening in the case was presumably that they couldn't rely on the Secretary of State and her attorneys to defend the election law provisions they had sponsored.

If their intervention was actually necessary to prevent the plaintiffs from winning, then the case wasn't frivolous and it is the state government's failure to properly defend the case that made that intervention necessary. In that case, it would seem to be Debra Bowen and the Attorney General who provided her attorneys who should be responsible for paying their fees, not the plaintiffs. Even with all of the budget problems, the state could certainly pay a quarter million dollars much more easily than the plaintiffs.

On the other hand, if their intervention wasn't actually necessary to prevent the plaintiffs from winning, because the case was so weak or the state's attorneys were handling it, why should they get paid by someone else for jumping in and doing unnecessary work?

Posted by Dave Kadlecek on Sep. 25, 2012 @ 10:39 pm

The lawsuit had two points. The point not mentioned in the story, nor in any content so far, is that the existing law lets some candidates use their party label, but does not let others use theirs. Also the existing law doesn't permit independent candidates to have "independent" on the ballot; they can only have "no party preference." I phoned almost all the independent candidates this year for Congress and state legislature, and almost all of them said that when they campaign they do refer to themselves as independent candidates, and they wish they could have the word "independent" on the ballot next to their names. California allowed "independent" as a label from the beginning of government-printed ballots in 1891 through 2010, but now the backers of Prop. 14 have eliminated it (except for President). And they claim to like independent candidates.

Posted by Richard Winger on Sep. 26, 2012 @ 6:43 am

The awarding of attorney fees in this case is on top of the other very serious injustice the courts blessed: allowing ballots to have a space for a write-in candidate but preventing any write-in votes from being counted. Such an arrangement should have been called what it is: a system that has the effect of misleading and defrauding voters.

It is sad that the judges who heard this case were too weak to even acknowledge this problem, never mind doing their job and imposing some kind of solution for it.

It is another failure that illustrates that our system of justice too often doesn't deliver.

Posted by Guest on Sep. 26, 2012 @ 8:11 am

This article is really bad. First, a SLAPP can't be awarded to a defendant. The ironic thing is that the Secretary of State was the "defendant" and Munger had to intervene. You are not evenly legally allowed to intervene unless you bring up claims/defenses that the named party has not asserted ... basically, the Sec of State wasn't properly defending the lawsuit.

Winger, well intentioned or not, continues to file lawsuit after lawsuit with little or no merit. Munger intervened because the State was not going to put up a fight and won attorney fees from a judge that was tired of the tactics. This is very costly.

Has anyone done any investigation to see get the full story?

Posted by Fact Check on Sep. 26, 2012 @ 2:02 pm

This was a bad ruling on the Law and if allowed to stand will allow every Tom, Dick, and Harry to intervene for the purpose of harvesting Atty Fees, which in this case are bloated. Munger did NOT have to intervene, he gambled and now wants his losses or fees covered. The Case as I read it as a Civil Rights issue between those who brought it and the State of Ca, Munger intervened, thus he should be responsible for his own costs. No one MADE him poke his rather long nose in other's litigation.

Posted by Guest Charles Holmes on Sep. 27, 2012 @ 11:53 am

Munger and Nielsen Merksamer team of attorneys are considered as strong and influential groups of people. That is why the judge has let the $243,000 worth of legal fees to be awarded. It is really pathetic though to simply use that legal fee sum as a form of intimidation to force the plaintiffs to drop their case. Taking advantage of one's status is not in any way, notable and does not reflect one's level of credibility.

Posted by Simon on Feb. 18, 2013 @ 11:53 pm

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