by Alan Pryor
Today in Yolo Superior Court, the attorneys for the citizens who wrote and signed the No on Measure H ballot statement, filed a motion for an award of legal fees and costs they incurred in their defense of a lawsuit filed by Davis City Councilmember Dan Carson. Carson had previously sued the ballot signers claiming their ballot statement was false or misleading.
The citizen Defendants (the “real parties”) named in the Carson lawsuit retained legal representation on a partially contingent basis which permitted the attorneys to seek an award of their legal fees if they were successful in defending the ballot language against Carson’s claims.
The Defendants’ filing states “The Court outright rejected three of Petitioner’s challenges and adopted Real Parties’ suggestions for the two modest edits it ordered.”
Alan Pryor, the Treasurer of the No on DiSC campaign and one of the Defendants stated “Carson’s lawsuit requested whole sentences in the ballot statement be stricken by the Judge. In his final ruling, however, made only two small changes that were suggested by authors of the 
statement.”
“In my experience, it is highly unusual for a sitting public official to sue their own citizens over ballot arguments,” said Beverly Grossman Palmer, an experienced election attorney and partner at Strumwasser & Woocher. “None of the attorneys in my firm can recall a similar situation in any of our collective years of practicing election law.”
Dan Ramos of Ramco, the DiSC developer and promoter of the project, admitted during Tuesday’s city council meeting that he was the previously unknown funder of the Carson lawsuit efforts.
The Defendants named in the lawsuit had only 4 days to find an attorney with the necessary expertise before they needed to file a response with the court opposing Carson’s claims. Of the nine firms contacted and interviewed in this very short window of time, only one had the legal expertise, agreed to cap their fee, and required just a portion of their reduced fee upfront.
According to Mr. Pryor, “The financial burden of going to court for a grassroots campaign like No on H, cannot be understated. The retainer deposit alone wiped out the group’s bank account. Yet the Defendants had no other choice if they wanted to exercise their speech rights and communicate their opinions about Measure H to the voters”.
The filing on behalf of the Real Parties states:
“Petitioner Carson’s lawsuit thus had a twin effect: it made campaign fodder against Measure H’s opponents, and it wiped out their resources to communicate with the voters and counter that message. The ballot argument was now their only hope of communicating with the voters”.
Todays filing also states:
“Real Parties’ defense of their Argument Against Measure H “enforced not only their constitutional right to communicate vital information about their views and positions to voters, but also [Davis] voters’ constitutional right to receive information essential to thoughtful decision making and democratic self-government. …Real Party’s defense enforced important statutory and constitutional rights for the benefit of the citizens of Davis”
Mr. Pryor further stated, “I regret these actions are necessary but it was the developer and Carson who initiated this lawsuit without any warning to the Defendants. Since the vast majority of their claims were rejected by the Court, we feel the developer and Carson should bear the great expense we incurred in defending against this meritless lawsuit.”
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The aspect of this whole legal filing situation that is important to emphasize is that the “No on DiSC” team clearly demonstrated that they were willing and able to listen, as evidenced by their arrival at court with the two alternative wording(s). On the other hand the “Yes on DiSC” team specifically chose confrontation rather than communication … actually it was confrontation by surprise … with their last minute legal filing of the writ (not a suit).
Can we please get over this last minute filing issue? Grow up. That is how the law works. There is a deadline. If you make the deadline you are compliant. If you don’t you lose your ability to go to court. They made the deadline. There is nothing out of the ordinary for a lawyer to use all the time allowed and filing right before the deadline. Oh, and despite the heavy lift involved No on H made the deadline too. The only remaining question is who will pay for the No campaigns legal costs? Time will tell.
Now this accusation against Carson suing his constituents by the no side forgets that Measure J creates many unusual circumstances. This can be one more example. Further, the last project, the one that failed, passed in Carson’s district. Therefore a counter argument can be made that Carson is representing a majority of the voters he represents when he supports Yes on H.
Ron, my point was much more about following a tactic of confrontation rather than a tactic of communication. Carson and the Yes team could have reached out to the No team and asked for the changes. We know from what happened in court that the No team came forward voluntarily as part of their filings with the two changes that were adopted by the court. I agree with you that “there is nothing out of the ordinary for a lawyer to use all the time allowed and filing right before the deadline,” but it is also indicative of the confrontational nature of the Yes team’s approach.
I reject your district argument. Council members represent all the citizens … just as USD Senators do when they vote on Supreme Court Justice appointments.
Alan Pryor has said that he would have considered the two changes the judge required them to make. But that wasn’t the totality of what Carson wanted. So how was he supposed to force all of the changes he wanted to be made?
You said something similar in a previous article and I replied to it.
But that’s how representative democracy works. People elect leaders to act on how they see fit. The elected leaders are not pass through conduits for the voters. If the voters don’t like the leader’s decisions, then they vote him/her out. If Carson was a purely anti-growth politician, I can understand how people could feel betrayed. But to my knowledge he isn’t. In Robb Davis’ own words (in a comment he made here last year); he represented what he believed was best for all of Davis and not just one part or the other. I’m assuming in Dan Carson’s case, he believes (right or wrong) he’s acting in the city of Davis’ best interests.
Yes… and a reasonable response to the confrontational nature of the No team’s approach.
No heroes, no villains here…
Now, going really radical… can we move on, and discuss merits/demerits of the actual proposal? Without the hyperbole, ad hominem stuff? I’d give that ~ < 4.8% confidence level… so, I won't even try… a wise person told me, "don't get in a p!$$!~g match with a skunk"…
But absent cogent, rational discussion, I'll vote YES, and will put an unseasoned, wet log in my fireplace one of these evenings soon, preferably when there is an inversion layer present… sometimes you respond to a skunk as a 'fellow skunk'… use your N-95 masks (preferably, two).
Will also insist on one-use plastic bags…
Carson and Gloria where elected at large. In theory they still represent the whole city. Since the switch to districts was staggered, i you wanted to recall Carson, you would need a percentage of voters in the entire city, not voters in District 1.
Of course Carson will stand for re-election in District 1 so maybe he doesn’t care about voters in the rest of the city as much now.
Yeah, great argument, RG.
Wow, this is all over the place. I’m all for the NO Campaign trying to get their legal costs back if it’s warranted. But otherwise it smacks of trying to curry favor with the voters by playing the victim card.
Since the vast majority of their claims were rejected by the Court, we feel the developer and Carson should bear the great expense we incurred in defending against this meritless lawsuit.”
“Carson’s lawsuit requested whole sentences in the ballot statement be stricken by the Judge. In his final ruling, however, made only small changes that were suggested by authors of the statement.”
That last part kind of invalidates the “meritless lawsuit” part.
I wasn’t aware that your opposition had to give you warning.
So if Carson and Ramos stepped over some boundary by suing Pryor and his grassroots gang personally, then yes I can understand push back and possibly some recompensation.
But what I wonder is if this is a case of poor structure and organization by the NO Campaign? Is the NO Campaign structured as a Non-Profit Corporation? If so, then it should act as a separate legal entity and be held responsible for the actions (like the printed voter material) the NO Campaign makes. If the No Campaign is just a collection of volunteers that pulled some money together….then yeah…they’re personally liable for whatever they put their name to. Now this subject of non-profit corporations goes beyond my area of expertise but here’s how I understand it: there’s a “corporate veil” for non-profit corporations that protect the executives, directors…etc… much like a for profit corporation. The only way to “pierce the corporate veil” is if any of the executives or directors commit any of the following: self dealing, unreasonable compensation transactions, personal loans…and “failure to act with due care”. “Due Care” is the effort of executives and directors to act reasonably on behalf of the non-profit corporation. I don’t believe any of the NO Campaign’s actions would be considered “failure to act with Due Care”. So the only way I would view Caron and Ramos’ legal move as a shady legal/political move is if they sued a non-profit No Campaign legal entity with the baseless threat to pierce the corporate veil (personally suing Alan Pryor and the No Campaign individuals).
The need for money to work the legal machine in politics is a bad thing. I don’t hold against anyone for playing by the rules. But the rules suck. There should be a feeless legal mechanism for opposing parties to quickly resolve differences during campaign races.
A campaign is not and cannot be structured as a non-profit corporation.
Then how are they structured? I get that a person running is not a non-profit legal entity. But isn’t this campaign support similar to a political action committee…which I believe are generally structured as non-profit corporations?
Most are not formally structured. On paper, they have a treasurer and a principal officer. That’s the campaign committee. They are governed by the Elections Code and campaign finance law. Beyond that, it is very informal. Candidates with resources may have paid staff. The No on H campaign probably has few resources and limited formal structure that is on paper in their initial filings and beyond that, nothing.
Here is some of the documentation and definitions: https://www.fppc.ca.gov/learn/campaign-rules.html
Interesting. Here’ what I found.
So it appears that by being the treasurer of the No Campaign, Alan Pryor put himself in the crosshairs. As a matter of campaign structure and personal liability; I have to say that once again: “the rules suck” because I can’t think of a reason that someone would want to risk being a treasurer for a campaign. Better (from a liability standpoint) to operate as a Political Action Committee and support the campaign from the outside.
This is part of the problem I have seen from Alan in this respect. He is using a legal term “meritless lawsuit” to connote a situation that by definition is not. A meritless lawsuit is subject to summary judgment, striking and dismissal. By definition a legal action that a judge upholds and the respondents acknowledge is not meritless.
This has been the problem all along. It’s one of the problems I pointed out to Alan with his public comment. They are not being careful enough in their use of language. This has been a problem for some time. You can get away with it on a campaign trail, but not in legal documents.
There is no “corporate veil”.
The results of their action (the removal of the word “only”, and the changing of the type of unit) demonstrates that their allegations and remedy sought were largely baseless.
Yes, the Real Parties (those who signed the ballot statement) were personally liable, including their own legal costs and potential costs from the Petitioner (Carson and his developer friends). Carson’s writ requests the following, on the last page (retyped, here):
Now, I don’t know what type of government you prefer, but I would agree with you regarding this (in terms of grass-roots efforts to challenge well-funded development proposals, backed by a council member):
I suspect that this whole thing will have a chilling effect on efforts to challenge development proposals going forward. I’m surprised that developers hadn’t thought of it, previously.
In the end the judge ruled one word changed and one number converted in to different units from a 300 word ballot statement. The attorneys for No On H took the case for a reduced cost with the contingency that they could seek fees if the outcome was successful. The outcome was successful. Carson has the developer funding all of his costs. The No On H has no such deep pockets.
I do think you guys are underestimating the impact of one word in this.
Observe:
I am a murderer
I am NOT a murderer
One word (left out) is sufficient to completely change the statement from inaccurate to accurate.
That was an over the top extreme example and a far cry from the word that was actually removed.
Observe:
I (only) promise to stop murdering children.
I promise to stop murdering.
(Actually, that’s two words eliminated – let me work on it some more.)
In any case, here’s the actual sentence that was modified:
For what it’s worth, I do agree with the change.
I will spend all day doing this one thing.
I will spend all day doing only this one thing.
For what it is worth, I also agree with the change that was suggested and accepted by the judge. Absolutes should generally be avoided. That’s a pretty big win for grammar alone.
Now…. where would we be without the lawsuit? Well, in the same place we would have been anyway, but without wasting court time and spending all that money on lawyers. The big win that is being comically celebrated by Dan Carson and Co. is that the resulting ballot statement is fundamentally unchanged. So much winning!
The problem with your analysis of the events is that it is focused on the results or outcome and not the PROCESS. How else was Carson and the developers supposed to force the list of changes to be made. It’s not like they set out to get just one minor change made. They tried to get a 10-12 changes (I think) made. Does it suck that the only way to force that change was to sue Alan Pryor and the other associates of the NO Campaign? Yes. But there’s no other legal mechanism to do so. IMO legal challenges to campaigns should have built in and feeless mechanisms to resolve these issues without incurring personal liability. But that’s not the case. The system sucks. So as the saying goes: “Don’t hate the player. Hate the game”
>> “Don’t hate the player. Hate the game”<
I will unequivocally state that I do indeed hate the game. One internet point for you!
However… I have noticed that when the same game is played by different people (I mean all the way up to the president of the united states!) that HOW the game is played, (and maybe even how defeat is accepted) can be pretty darn different. There are nuances. Morals. Dare I say it…. honesty?
You seem to be a bit more black-and-white on this stuff than I. I see nuances. And what of the times when the game is subverted with no consequences? Like for just a random example: when somebody uses their official position on city council to campaigns from behind the dais at a council meeting? Is this all an appropriate part of the game as well even when it violates the rules? I don’t think so.
But I will gladly circle all the way back around to state that the game sucks.
Here’s the entire paragraph, in which the word “only” was striken:
I’d argue that most people don’t even know what the “traffic demand management plan” is, or the scope of what it might or might not entail. As such, most people would figure that some kind of mitigation is in there, regardless.
The only ones “slicing and dicing” this are those who have already made up their minds, or have a direct stake in the outcome.
As such, I’d say that the inclusion (or deletion) of the word “only” isn’t very important.
I also suspect that the “No” side would have eliminated it on their own, if asked. But when they’re “approached” with eliminating vast sections of the rest of the ballot statement, of course they’d say “no” – as the judge did.
Indeed, the NO ballot statement that has now been through expensive, intense legal scrutiny will be printed up and distributed without a fundamental change in meaning.
For the developer and his helpers, this is considered a big win. Big enough to bloviate about it inappropriately at a city council meeting even.
Either way, is this a reference to getting drawn-into debates on the Vanguard? 🙂
At least, until the 5-comment limit appears.
I seriously appreciate that you noticed. 🙂 Enough to burn up one of my comments!