Thomas D. Elias: Attorney fee demand is out of line
By the second week of November, most Californians will probably believe they were correct when they set up the "top two" primary election system used for the first time this year.
In more than 20 legislative and congressional districts, candidates from the same party are now facing off in general election campaigns, with the strong possibility that at least some will moderate hard-line views in an effort to win votes from members of the other party who have never had a voice in districts dominated by one major party or the other.
But that doesn't mean opponents of the new system aren't entitled to object to some aspects of it, and they have. A lawsuit filed by longtime election analyst Richard Winger, operator of a newsletter called Ballot Access News, and several others associated with minor parties claimed the new primary setup is flawed because it almost always excludes minor parties from runoff elections, because it doesn't allow for write-in votes in runoffs and because it doesn't allow candidates to call themselves Independent, but lists those without party affiliation as "no party preference." Write-ins are still counted in primaries.
Those plaintiffs may have been wrong in some of their assertions — minor parties, for instance, get a place on runoff ballots if one of their candidates is among the top two vote-getters in the primary — but they made a valid point on write-ins.
Those votes are usually inconsequential, but there have been cases where they accomplished a lot. One example: In 2010, after losing in the Alaska Republican primary, where no top two system exists, US Sen. Lisa Murkowski ran as a write-in during the general election and won. She was the first senator elected that way since South Carolina's Strom Thurmond in 1954.
Of course, had she been in a top two primary, Murkowski's write-in drive appealing to many Democrats would not have been needed, as her name would have been on the ballot to start with. But no similar write-in effort can now occur in California.
The lawsuit by Winger and friends was filed against the state of California, which defended it and won. When the case landed in San Francisco Superior Court, others intervened. These included billionaire Charles Munger, chief financier of the 2010 Prop. 14 that set up top-two, and moderate Republican congressional candidate Abel Maldonado, the former appointed lieutenant governor who pushed hard for top-two. Both billed themselves as reformers and both claimed Attorney General Kamala Harris could not or would not defend the new primary system as well as they would like.
And so, while Winger and his fellow plaintiffs await a related hearing in federal appeals court, they've been hit with a state court order demanding they pay the wealthy interveners in the case $243,000 because they lost. Winger, for one, is liable for one-sixth of that sum, which he says would represent more than 10 percent of all his assets.
Other plaintiffs have not said anything definite, but some could be pushed into bankruptcy by the attorney fee claim.
This is just plain wrong. First, it serves to intimidate the not-so-wealthy from even attempting to challenge rich folks like Munger and Maldonado (whose family farm employs about 250 people). And second, it is probably illegal. In a 1983 case called Christiansburg Garment Co. vs. EEOC, the U.S. Supreme Court held that attorney fees like those charged to Winger and his fellow plaintiffs can only be assessed if a case is "frivolous." This lawsuit may have been wrong in some ways, and it may have lost — so far — but it raised legitimate questions that are anything but frivolous.
Neither Munger nor Maldonado has said why they went after Winger & Co., knowing full well the plaintiffs have few resources and used an attorney who works from his home. Neither Maldonado nor Munger/Maldonado attorney Chris Skinell of the San Rafael office of the large law firm Nielsen Merksamer Parrinello Gross & Leoni nor named partner Steve Merksamer, a former top aide to ex-Gov. George Deukmejian, responded to telephone and email inquiries about the case.
Their refusal to provide any other explanation leads to the obvious conclusion that their intent is to intimidate Winger and the other plaintiffs from proceeding with their federal appeal, for fear of an even larger fee assessment. Should they win out, they could also intimidate other not-so-wealthy potential plaintiffs from filing many kinds of lawsuits.
So far, the plaintiffs are not backing off. And no matter whether they are right or wrong on some of the points they've made in their intervention, the fee assessment sought by Munger and Maldonado is just plain wrongheaded.