DA Sets Up An Interesting Legal Battle If They Prosecute Grijalva
This week, the DA sent out a press release clarifying the prosecution of Maria Grijalva for campaign-related violations. As they spell out in their press release from earlier this week, they have set out to investigate allegations of violations of campaign law including, most specifically, campaign finance violations.
According to the release, the DA’s office is alleging that, in October 2018, Ms. Grijalva, as shown on her filings with the State Fair Political Practices Commission (FPPC), “contributed funds from her own candidate-controlled school board account to produce a mail piece, with a reported value of over six thousand dollars, supporting Joe DeAnda, a candidate for mayor in the City of West Sacramento.”
There is an ordinance in the City of West Sacramento that prohibits individual contributions of more than $250, which are increased to $500 in certain situations, to any candidate for local office.
The DA’s office alleges, “In addition to the violation of the West Sacramento City Ordinance, the complaint also alleges that state law was violated by the same conduct and for another expenditure on an earlier date.”
A conviction of this law could result in fines, jail time and a prohibition of being a candidate for public office for up to four years.
There was no evidence suggesting that mayoral candidate Joe DeAnda had any involvement with Grijalva, nor that his campaign violated any law.
According to a letter dated October 9, Ms. Grijalva is ordered to appear in Yolo Superior Court on October 25 at 9:30 am. A criminal complaint has been filed against her for two misdemeanor challenges for breaking Section 2.18.050 of the West Sacramento Municipal Code which prohibits individual contributions of more than $250, and breaking Section 85501 of the California Government Code for an illegal independent expenditure.
Under 85501, enacted on November 7, 2000, when the voters passed Prop. 34, “A controlled committee of a candidate may not make independent expenditures and may not contribute funds to another committee for the purpose of making independent expenditures to support or oppose other candidates.”
There remain a number of interesting issues involved in this case, including at least a perception that the DA’s involvement here has less to do with prosecuting a campaign violation and more to do with the fact that the target of the investigation happens to be a political opponent of the district attorney.
But leaving that issue aside leads to a very interesting legal question – which actually seems pretty clear cut and has already been ruled upon by at least a lower court.
Former San Jose Mayor Charles Reed formed a committee to support candidates and measures in San Jose. The FPPC had found that the committee violated Section 85501 of the Government Code by “using campaign committee funds to fund independent expenditures in support or opposition of other candidates.”
He filed a writ and at an administrative hearing in September of 2013, he was fined $1. Notice, by the way, the difference in the punishment – here in Yolo County, Maria Grijalva is being criminally charged with two misdemeanors, while at the state level, Mayor Reed, whose committee contributed $100,000 (rather than the $6000 or so contributed by Maria Grijalva) to the Herrera IE Committee, was fined $1.
One reason that the fine was nominal was “because FPPC concluded the violation was inadvertent, and Reed made a good faith attempt to comply with the law.” But keep this in mind, because it is not clear that Ms. Grijalva’s actions were intentional either.
The issue in the Reed case was whether Mr. Reed was a candidate since, by the time he contributed, he was going to be termed out of office and was not running for office again.
The Sacramento Superior Court ruled on this case. They found that he was indeed a candidate, but the bigger issue is the overall constitutionality of Section 85501.
Attorneys for Mr. Reed would argue that “to our knowledge, no other law in California at the state or local level bans independent expenditures, as such laws are patently unconstitutional under Citizens United.”
They also note that “the Los Angeles City Ethics Commission passed a resolution on February 9, 2010 indicating that it would not enforce the City’s ban on corporate independent expenditures – which, to our knowledge, was the only other law in California which completely banned independent expenditures – based on the Citizens United opinion.”
Here the Sacramento Superior Court agrees that Section 85501 violates the First Amendment’s prohibition against laws abridging freedom of speech. As they note, following the Supreme Court ruling, they found that “individuals do not give up their First Amendment rights when they seek public office.”
They write: “The question is whether government may ban those committees from then contributing to other committees which make independent expenditures. Following Citizens United, the answer is no.”
Thus, “the court finds section 85501 is unconstitutional on its face.”
This of course is not the end of the story and that is what will make this case interesting. The problem for Ms. Grijalva is that, while it would appear that Section 85501 does indeed violate the Citizens United decision, it does not appear that a court other than Sacramento Superior Court has reviewed the law. Therefore, it may be that her case will ultimately get 85501 knocked out, but it may well take several years to litigate it.
Finally, I think it bears repeating a few things here, which are of course sheer conjecture at this point. First, is there any evidence that Ms. Grijalva knowingly violated the law here? Second, why is there such a disparate response between the $1 civil fine issued to Mr. Reed after making a $100,000 contribution versus misdemeanor charges in Yolo County to Ms. Grijalva who simply mailed off a letter?
The FPPC decided that Mr. Reed was attempting to following the law, but what evidence is there that Ms. Grijalva was not? After all, she went so far as to consult attorneys prior to making the expenditure.
—David M. Greenwald reporting