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Home My WebLink About08 - Subpoenas to Investigate Alleged Voter Fraud - CorrespondenceRECEIVED AFTER AGENDA PRINTED FEBRUARY 13, 2018 AGENDA ITEM NO. 8 MAxi,c S. ]RoSE�T ATTORNEY AT LAW CIVIC CENTEt7 PLAZA TOWERS 600 W SANTA ANA S00t_EVAR❑ SUITE 814 SANTA ANA. CALIFORNIA :92701 TELEPH-I )NE {714) 285-9638 FAX [7141 28S-GS40 February 12, 2018 Mayor Duffy Duffield Members of the City Council City Attorney Aaron Harp, Esq. Newport Beach City Attorney 100 Civic Center Drive, Bay 2E Newport Beach, California 92660 Emailed to: lbuzby@;newportbeachca.gov dduffield(a:newportbeachca. gov ddixonL?newportbeach ca. gov b avery({i, n e wp ort be ac h c a. gov kmu ldoonL?n ewportbeavchca. gov j 13erdin an(cr,newportbeach ca.gov speotterCd newportbeachc a. gov wonei llC&newportbeachca.gov Re: Item NoX Subpoenas Dear Mayor Duffield, Members of the City Council, and Mr. Harp: I am writing on behalf of Desnoo & Desnoo ("Desnoo") with regard to Item No. 8 on your February 13, 2018, agenda, entitled "ISsuance of City Council Subpoenas to investigate Alleged Voter Fraud in the Unsuccessilil Recall Signature Gathering Effort". Desnoo strenuously objects to the issuance of subpoenas to investigate alleged election fraud. This is a natter that the Orange County District Attorney is already investigating. That investigation has legally established safeguards, including procedures for interrogation of witnesses within legal standards, privacy and protection from disclosure through leaks, and supervision by a superior court judge. Your ad hoc would-be "investigation" has no such legal safeguards, and no assurance that it will not turn into an effort to persecute Councilmember Poetter's political enemies. Mayor Duffield, Members of the City Council, Mr. Harp February 12, 2018 Page Two We view any attempt by the Newport Beach City Council or its legal staff to investigate a particular election as another attempt by the politicians in the city to use taxpayer funds to pursue personal political vendattas. Newport Beach has a recent history of abusing its authority in order to try to restrict and intimidate the election activities of those who are in the majority's political disfavor. Recent events include the city council voting to require that the proponents of a referendum against the museum high rise tower include in their referendum petition documents in excess of 4,000 pages, and the failed effort by city officials, including Mr. Harp, to try to exclude Jeff Herdman from running for city council in 2016. This city council does not play fair, and there is no reason to believe that any "investigation" of alleged voter fraud will not turn into a political witchhunt to intimidate opponents. Desnoo is a political consultant. It advises candidates and ballot measure campaigns. Any communications it had with regard to Newport Beach political activity are privileged under the First Amendment of the federal Constitution and Article I of tile California Constitution. The right of individuals to associate for the advancement of political beliefs is a fundamental First Amendment right. Tashjian v. Republican Party of Connecticul, 107 S.Ct. 544 (1986); Williams v Rhocles, 393 U.S. 23 (1968). The freedom of association protected by the First and Fourteenth Amendments includes partisan political organizations. Tashjian at 548. Most directly on point is Perry iy Schwarzenegger, 591 F.3d 1126, 1132 (9th Cir. 2009). The plaintiffs in that case sought all documents containing internal campaign communications concerning strategy and messaging. In a lengthy opinion, the court rejected this effort. The court said in part: "The compelled disclosure of political associations can have just such a chilling effect. See id ("f W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment."); AFL—CIC] v. FEC, 333 F.3d 168, 175 (D.C.Cir.2003) ("The Supreme Court has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation."). Disclosures of political affiliations and activities that have a "deterrent effect on the exercise of First Amendment rights" are therefore subject to this same "exacting scrutiny." Buckley, 424 U.S. at 64-65, 96 S.Ct. 612. A party who objects to a discovery request as an infringement of the party's First Amendment. rights is in essence assel ting a First Amendment privilege. There is no question that participation in campaigns is a protected activity." ..."[DJisclosure of internal campaign information can have a deterrent effect on the free flow of information within campaigns. Implicit in the right to associate with others to advance one's shared political beliefs is the right to exchange ideas and formulate strategy and messages, and to do so in private. Compelling Mayor Duffield, Members of the City Council, Mr. Harp .February 12, 2018 Page Three disclosure of internal campaign communications can chill the exercise of these rights." In NAACP v. Alciban?a, 357 U.S. 449 (1958), the state sought to compel the NAACP to disclose its membership lists. The court rejected this attempt: "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations... Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank -and -file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." 1n addition to the above cases, see, for example, Brill v. Superior Court (1978) 20 Cal.3d 844 (in an airport noise case, the defendant government attempted to use discovery to investigate the plaintiffs' political activities with regard to the airport; the court held the government needed a compelling state interest, which it did not have); Citizens United L' F -ed. flection Commission, 558 U.S. 310 (2010)(Supreme Court struck federal ban on corporate contributions on the basis of the First Amendment). It is particularly unseemly for the council to investigate an attempted recall of one of its own members. Many members of the city council actively supported Councilmember Peotter. The conflict of interest is apparent. We strongly suggest that the city council would be better to refrain from involvement and allow the District Attorney to pursue his investigation in a forum where safeguards are in place. Very Wd yo r' ROSEN LAW OFFICES OF PHILLIP B GREER 130o Bristol Street North suite loo Newport Beach, California 9266o (949) 64o-8911 (949) 955-9069 (fax) phil0philli_pgreerlaw.com February 12, 2018 Mayor Duffy Duffield Members of the City Council Aaron Harp Esq Newport Beach City Attorney ioo Civic Center Drive Newport Beach, California 9266o Re: Item No. 8, Subpoenas Dear Mayor Duffield, Members of the City Council and Mr. Harp: This office represents the Committee to Recall Scott Peotter, PCI Consultants and Campaign Compliance Group. On behalf of my clients, I join with attorney Mark Rosen in objecting to the issuance of subpoenas to investigate alleged election fraud. Mr. Rosen has very eloquently laid out the legal basis for all parties' objections to this intrusive attempt by members of the City Council to extract political vengeance in retaliation for the citizens of Newport Beach simply expressing their political opposition to a city councilman who is supported by the council majority and their handlers. As such, there is no need for me to reiterate the dangers you face in entering into this political quagmire. I will, however, attempt to provide some factual context to further reinforce the recklessness of your proposed endeavor. Subsequent to the submission of petitions and a review of those petitions by the Orange County Registrar of Voters, it was determined that the effort to recall Councilman Peotter had fallen 1o6 signatures shy of the requisite number needed to qualify the petition. LAW OFFICES OF PHILLIP GREER Hon D Duffield et al Re: Item No 8, Subpoenas February 12, 2o18 The committee asked for, and received, permission to review the disqualified petitions. Arrangements were made and within a short period of time, representatives from the Recall Committee, their political consultant and a representative from PCI consultants met at the Registrar's office to review the disqualified petitions.. It was at that time, for the very first time, that the committee, and its representatives, were informed that there might be a problem with some of the signatures on some of the petitions. The suspect petitions were reviewed by the representatives of the committee and it became clear that a potential problem existed with one of the paid signature gatherers The Registrar of Voters reinforced his belief that none of the volunteer members of the recall committee had, in any manner, violated the law. The problem was with a specific individual who was a third party contract employee with one of the committee's vendors. Upon identifying the individual, the third party vendor immediately provide that individuaI's contact and related information to both the Registrar of Voters and the District Attorney. Furthermore, this office has been in contact with the District Attorney's office to provide and facilitate any assistance it can to resolve the issue. Everybody has cooperated. The point, as Mr. Rosen has already has already articulated, is that there is no need or purpose, other than political intimidation and retaliation, for the City of Newport Beach to engage in any type of "investigation." The City should allow the process to move forward without interference and support the District Attorney in doing his job. n r ly, r er 2