Judged to Chill

Written by: 
Aubrey Freedman

Most judges’ races are anything but exciting. Unless you know the judge personally, they’re all pretty much the same when it comes time to vote. However, what would you say about a judge who imposed punitive attorneys’ fees on plaintiffs working in the public interest to improve election laws? Punitive to the tune of $243,279.50.

Judge Curtis Karnow up for re-election this spring is the judge who imposed the outrageous fees on the six plaintiffs suing to overturn “The Top Two” law the voters approved in 2010. The Top Two, as you probably know, essentially banned closed primaries in California and made it open season for all candidates in the June election but allowed only the top two vote getters to advance to the November election. Concocted in the dark of a winter night in 2009, the Top Two was a concession by Democrats in the California legislature to State Senator Abel Maldonado in exchange for his support of a state budget package. The Top Two was supposed to discourage extreme partisanship “so they (legislators) can meet in the middle and get things done,” per Governor Schwarzenegger in 2010. Indeed, they have gotten “things done” like increasing the overreach of state government in California by increasing spending, giving the Democrats a super majority in the state legislature, expanding the amount of money spent on state elections, and cutting third parties out of the November election completely. The change to the Top Two allowed two Democrats only to advance to the November election in the 2016 US Senate race, which was the first single-party Senate election since California began direct election of its senators in 1914. Both Washington state and California have “The Top Two,” and not one single time has a third- party candidate ever made it to the general election when both major parties fielded candidates. Incredibly, the Top Two doesn’t even allow write-in candidates, so no wonder so many voters just left the office of US Senator blank when they voted in 2016. The Top Two has not worked out the way it was envisioned, and most political analysts and politicians (including Democrats) would be happy to scrap it and, if not go back completely to closed primaries, at least allow each political party to have one candidate in the November election. After eight years, the experiment has failed.

The plaintiffs who challenged the law were actually visionary and were acting in the public interest. It’s easier to see that now. Perhaps it wasn’t so apparent back in 2010 when the original lawsuit started, but was this a frivolous lawsuit that warranted a punitive fee of almost a quarter of a million dollars? No evidence was ever presented that the lawsuit harmed the public interest or was frivolous, yet incredibly Judge Karnow slapped the six plaintiffs with the unprecedented fine.

Here’s what some commentators had to say about Karnow’s punishment. Election law professor Rick Hassen called Karnow’s ruling “absolutely outrageous.” Russell Mokhiber wrote in his “Corporate Crime Reporter,” “Judge Karnow’s order misapplies the law and punishes the voters in this case for exercising their First Amendment right to petition.” Joe Mathews wrote, “One consequence of the judge’s decision is the message it sends to those who might challenge California’s community of wealthy reformers and good government groups: if you get in our way, we’ll make you pay.” Los Angeles Times business reporter Michael Hiltzik who wrote about the case noted that “Charles Munger Jr.’s fee claim may chill

public interest suits.” Election Administration Reports noted in its August 13, 2012 issue, “This unusual award was viewed by knowledgeable California lawyers as having an intimidating effect on those who would bring voting right suits.” And finally, Thomas D. Elias, a California political consultant who actually supported the Top Two wrote, “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 the end, the six plaintiffs did not pay the outrageous amount imposed on them. When the plaintiffs obtained a pro bono law firm to challenge the amount of the punishment, Charles Munger Jr’s law firm dropped the amount to $100,000 if the plaintiffs agreed to drop their appeal. One of the plaintiffs had deep pockets at the time, so he paid the $100,000 fee himself and that was that.

However, beyond the issue of the shortcomings of the Top Two or who paid the lawyers’ fees, the larger issue is a judge punishing public-interest plaintiffs with exorbitant attorneys’ fees for simply exercising a time-honored tradition of using the courts to redress a legitimate grievance. Karnow’s fine was in total disregard for federal and state laws and an extreme case of judicial overreach. The local media has been talking about the fact that four public defenders are now trying to unseat Karnow and three other incumbent judges because they were appointed by Republicans and are too conservative for progressive San Francisco. Establishment politicians are saying that’s nonsense because the four judges are all Democrats and the unusual run by the public defenders is politically motivated. We can’t speak for the other three judges, but they’re all missing the point when it comes to Karnow. He deserves to be “retired” from his job the old-fashioned way by being voted out of office and replaced with Maria Evangelista, one of the four San Francisco Public Defenders we expect to have more regard for the average person.

(A special thanks to Richard Winger, editor of Ballot Access News, and one of the six plaintiffs in the case, who provided the background information for this article.)

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