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The Los Angeles Daily Journal
Oct 23, 2002

by Katherine Gaidos, Daily Journal Staff Writer

Putting Political Reform to the Test

New Law Against Influence-Peddling Creates Legal Tangle
LOS ANGELES - In 1999, a political reform group looked around California and saw influence-peddling everywhere - from Irvine, where developers gave gifts to the politicians who approved their projects, to San Diego County, where builders who made campaign contributions got their projects hustled along.

So the Oaks Project, the grass-roots volunteer arm of activist Harvey Rosenfeld's Santa Monica-based Foundation for Taxpayer and Consumer Rights, drafted a law to stop municipal politicians from capitalizing on their relationships with the people who do business with the city.
        
Volunteers from the Oaks Project - whose name derives from organizers' goal that volunteers can be as "strong, sturdy and rooted in their communities" as California's native oaks, according to its director, Carmen Balber - gathered thousands of signatures and placed the measure on municipal ballots up and down the state.
        
By 2001, voters in Santa Monica, Pasadena, Claremont and San Francisco had approved the Oaks Initiative, also known as the Taxpayer Protection Amendment.
        
In San Francisco, the measure was implemented without incident.
        
But in Southern California, instead of political reform, what has ensued is a complicated two-year legal tangle that has yet to resolve the central issue of whether the measure is constitutional.
        
The Oaks measure prevents city officials from taking campaign contributions, large gifts or employment from people who receive city contracts worth more than $25,000 or $50,000. The ban takes effect when a politician assumes office, and it extends for five or six years after his or her term.

Two seminal U.S. Supreme Court decisions, Buckley v. Valeo, 424 U.S. 1 (1976), and Nixon v. Shrink Missouri Gov't PAC, 120 S.Ct. 897 (2000), have cleared the way for caps on contributions to politicians, but the decisions held that the restrictions need to be narrowly tailored and enacted for a good reason, lawyers on both sides of the issue say.
        
The Oaks Project says its measure, limited in scope and serving a compelling interest of keeping government clean, passes constitutional muster.
        
"This one is more narrowly tailored than any other restriction you can think of," said the measure's primary author, Robert C. Fellmeth, Price professor of public interest law at University of San Diego.
        
Fellmeth said the measure affects only a tiny percentage of the population - former and current officeholders - for a limited period.
       
But the law is not narrow in the right ways, said T. Peter Pierce of Richards Watson & Gershon, outside counsel for Pasadena, one of the cities seeking a review of the law.
        
One interpretation of the Supreme Court's Buckley decision is that a contribution ban, as opposed to a restriction, can be unconstitutional, Pierce said.
        
"I am not aware of any case law or of any federal statutory law that says you can entirely ban campaign contributions, and that's what the Oaks Initiative measure does," Pierce said. "It's the ban versus limitation that's the key here."
        
The law's prohibitions against city officials taking jobs with city contract-winners also may run afoul of state law on Californians' right to seek employment, Pierce said.
        
Oaks Project director Carmen Balber said the cities are using the constitutionality argument to protect the status quo - which needs to change.
        
"I think the problem that each of these cities has been having is simply that they're afraid that this measure will muck up the way things have been running, muck up that ... kind of insider way of running politics," Balber said.
        
Corruption in California local politics is rampant, Fellmeth said.
        
"There are 350 special districts in Los Angeles County alone," he said. "And all these local governments run around using the power of the state to benefit people who are benefiting them."
       
But officials say their local governments are not corrupt - and don't need the Oaks Project law.
       
"Between Brown acts and conflict laws, I think we're there. I don't think we need any more," Katz said. "This is a very conscious city, and we're very cognizant of conflicts."
        
Most city officials consider the measure Draconian.
        
"I think it was far too harsh, far too unrealistic," Santa Monica City Council member Herb Katz said. "I would never vote for it and didn't. It went so far that it was almost insanity."
        
City officials also complain that the regulations are complex, hard to follow, and unsuited for smaller cities where politicians have to work to avoid personal business dealings with city supplicants.
        
It makes no sense for a city to implement a law it suspects is unconstitutional, Pasadena Vice Mayor Paul Little, another critic, added.
       
"We don't want to spend a lot of money to implement something we have to undo," Little said.
        
The largest of the cities to adopt the law, by a whopping 82 percent in 2000, is San Francisco. The city by the bay has implemented the measure without a whimper, suggesting the other cities' objections are overblown, said supporters of the law.
        
Ginny Vida, executive director of the San Francisco ethics commission, said members had to clean up the language but put the law in place in July 2001. As far as the ethics commission knows, no politicians have run afoul of the measure, Vida added.
        
"This is something that was approved by the voters, and we take our responsibility very seriously to enforce it in the best way possible," Vida said. "We're not a court."
        
In Southern California, the cities and the foundation have faced off in a series of legal battles.
        
The foundation charges that these cities should be defending the law, not suing the foundation in hopes of having the law declared unconstitutional.
        
"What should happen, in any one of these lawsuits, is that a person who is subject to the statute, to the ordinance, who feels that their rights are being violated in some manner, sues the city and seeks to enjoin its implementation, says, 'Hey, this law is unconstitutional as applied to me or on its face,'" said Fredric Woocher of Santa Monica's Strumwasser & Woocher, attorney for the Foundation. "They pay, and the city defends it. For 200 years, that's the way we've done litigation in this country."
        
But the cities say that, since the foundation promoted the law, it should have to defend the measure.
        
"It's the foundation's law. The foundation is the one that promoted it, wrote it, spent money and got it passed," Little said.
        
Pasadena was one of the first to challenge the law, known locally as Measure B, after its 2001 adoption. After Rene Amy, a local government watchdog, sued the city for failing to implement the law, Pasadena fought back. The city filed a cross-complaint against the Pasadena resident, arguing the city shouldn't have to enforce the measure because the law was unconstitutional.
        
Concerned its law wouldn't get a fair shake, the foundation intervened in the suit, eventually replacing Amy as the plaintiff. Pasadena cross-complained against the foundation, as well.
        
"Of course, it looked much better for the city to be suing a Santa Monica grass-roots organization than it did to be suing a Pasadena resident," Balber said.
       
Both Pasadena City Attorney Michele Beal Bagneris and Pierce note that the foundation sued Pasadena first.
        
"They chose to sue the city, and we think that's an appropriate opportunity to ask the court to consider the merits," Bagneris said.
        
The city is not seeking damages, only a judicial determination, Bagneris said.
        
In May, Judge Michael Byrne ruled that Pasadena had to record and enforce the law. But shortly afterward, he ruled the law unconstitutional, putting the brakes on Pasadena's implementation efforts.
        
Fredric Woocher of Santa Monica-based Strumwasser & Woocher, attorney for the foundation, has filed two appeals of Byrne's ruling. Woocher argues that Byrne didn't have jurisdiction to decide whether the law was constitutional while the foundation was appealing the result of an anti-SLAPP motion in the case.
        
But unless the appeals court says the law is constitutional after all, Measure B is dead in Pasadena.
        
The law has been before an appellate court once before, during a litigation battle in the San Diego community of Vista.
        
Vista also had taken the law to court, arguing that the Oaks Initiative was unconstitutional. After the city's voters defeated the measure in favor of a weaker, competing provision, Vista officials tried to continue their litigation and have an appellate court decide whether the law was constitutional.
        
The 4th District Court of Appeal, however, ruled the issue moot because the measure lost, ending the law's adventure through the courts in San Diego County.
        
Santa Monica has had its own battle about the law. But now, the measure's fate in the seaside city may hinge on what the appeals court decides in the Pasadena matter.
        
The Santa Monica measure passed in 2000. In June 2001, Santa Monica sued its own city clerk, Maria Stewart, over her refusal to implement the reform measure.
        
Both the city and the clerk agreed the measure was unconstitutional. Election law specialist Stephen Kaufman of Los Angeles' Smith Kaufman, who has worked with the foundation on other matters, said it's not unusual for a city to sue itself over policy disputes.
        
"A city is essentially the majority of council members who control a city's actions. And when a majority of a city council disagree with the actions of someone else in city government, it's entirely feasible that a city council could sue itself, to seek judicial relief," Kaufman said.
        
Santa Monica hired David Pettit of Caldwell Leslie Newcombe & Pettit to represent the city and John Ramirez of Rutan & Tucker to represent its clerk.
        
As in the Pasadena suit, the foundation intervened.
        
It argued that, since the two sides agreed on the central legal question, the suit was improper.
        
Debra Yang, then a Superior Court judge and now U.S. attorney in Los Angeles, agreed in part and tossed the lawsuit in April, after finding "a lack of justiciable controversy."
        
Santa Monica has appealed Yang's ruling, hoping to make an appeals court declare the law unconstitutional. But the process is on hold while Santa Monica awaits the Pasadena decision, according to Jeanette Schachtner, appellate attorney with the Santa Monica city attorney's office.
        
"Since the Pasadena case has already addressed ... the issue of constitutionality, once that case gets resolved, obviously ours will be resolved, and we're optimistic that it will be resolved in our favor," Schachtner said.
       
Pettit charges that the foundation is trying to sidestep a constitutional determination.
        
"The Oaks Project strategy appears to have been to try to insulate this initiative from judicial review," Pettit said. "It's just curious to me that that's been their tactic. I thought the Santa Monica case provided a perfect opportunity for the Oaks Project to have the legality of this thing reviewed."
        
Balber says her group is ready to argue the question - in the right circumstances.
        
"All of the motions that we have filed have been in an effort to get these cities to enforce and defend the law as they're obligated to do," she said. "If a proper case were to come up, where a council member or a member of the community felt that their rights were being violated by this and challenged the law, and the city then put up a defense as it's required to do to defend any other law of the city, we would be more than happy to see this case go forward."

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