Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Kamala Harris’

Federal court slaps down Kamala Harris grab for donor lists

“Today a US District Court ruled in favor of Americans for Prosperity Foundation’s lawsuit against California Attorney General Kamala Harris, ruling that her demands for the Foundation to hand over its list of members and supporters is unconstitutional.” [AFP] We’ve repeatedly covered Harris’s unprecedented drive to demand disclosure of donor lists by nonprofits that carry on activities in California, a step likely to lead to private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes.

As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charity fraud, that (contrary to assurances) her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

An ally of the plaintiff’s bar and unions, Harris recently surfaced as an apparently key player in the alliance of state attorneys general intent on using criminal investigatory powers to probe so-called climate denial at non-profit research and advocacy groups as well as at energy companies like ExxonMobil. That makes at least two episodes in which Harris has signaled interest in unprecedented and aggressive steps to pry open the internal workings of private advocacy organizations that take positions adverse to hers. Harris is a leading contender in the Democratic Senate primary to succeed California Senator Barbara Boxer.

Update: Now expanded and adapted into a longer post at Cato.

Filed under: , , , ,

CEI subpoenaed over climate wrongthink

The campaign to attach legal consequences to supposed “climate denial” has now crossed a fateful line:

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore….

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

CEI General Counsel Sam Kazman said the group “will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association.” More coverage of the subpoena at the Washington Times and Daily Caller.

A few observations:

  • If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) groups conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. Like yours.
  • This article in the Observer details the current push to expand the probe of climate advocacy, which first enlisted New York AG Eric Schneiderman and then California’s Kamala Harris, into a broader coalition of AGs, with Massachusetts and the Virgin Islands just having signed on. More than a dozen others, such as Maryland Attorney General Brian Frosh, seem to be signaling support but have not formally jumped in. More: Peggy Little, Federalist Society.
  • CEI people, many of them longtime friends of this site, have been active critics of the Schneiderman effort, with Hans Bader, a senior attorney there, highly critical just a week ago.
  • In these working groups of attorneys general, legal efforts are commonly parceled out among the states in a deliberate and strategic way, with particular tasks being assigned to AGs who have comparative advantage in some respect (such as an unusually favorable state law to work with, or superior staff expertise or media access). Why would one of the most politically sensitive tasks of all — opening up a legal attack against CEI, a long-established nonprofit well known in Washington and in libertarian and conservative ideological circles — be assigned to the AG from a tiny and remote jurisdiction? Is it that a subpoena coming from the Virgin Islands is logistically inconvenient to fight in some way, or that local counsel capable of standing up to this AG are scarce on the ground there, or that a politician in the Caribbean is less exposed to political backlash from CEI’s friends and fans than one in a major media center? Or what?
  • I recommend checking out the new Free Speech and Science Project, which intends to fight back against criminalization of advocacy by, among other things, organizing legal defense and seeking to hold officials accountable for misusing the law to attack advocacy.
  • This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I note in a new piece at Cato, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.

[cross-posted at Cato at Liberty and reprinted at FEE; see also new Cato podcast with CEI’s Myron Ebell (“fishing expedition… threatens our future… designed to shut us up.”)]

Filed under: , , , , , ,

California AG wants nonprofits’ donor lists

“Do you donate to the Sierra Club or the National Rifle Association? California Attorney General Kamala Harris wants to know who you are, what your address is and how much you give….

“Every American has the right to support the causes we believe in without the fear of harassment and retaliation. Disclosure mandates undermine this basic freedom, dry up donations to charities and silence political speech.” [Jon Riches, Sacramento Bee]

Filed under: , , , ,

“A right to speak anonymously?”

Attorneys general in California and New York are demanding that 501 (c)(3) nonprofit organizations disclose their donor lists to the state. At the recent Federalist Society National Lawyers’ Convention, that issue and others were discussed by a panel consisting of Andrew Grossman (BakerHostetler), Stephen Klein (Pillar of Law Institute), Paul S. Ryan (Campaign Legal Center), Hans von Spakovsky (Heritage Foundation), with Michigan Supreme Court Chief Justice Robert P. Young, Jr. as the moderator. From the summary:

Supporters of mandated disclosure of the source of speech (or of money used to pay for speech) claim it can provide important information to the public and the legal system. But opponents say it violates privacy rights and can also deter the sources from speaking or contributing.

This debate also applies to reporters’ confidential sources. In both situations, disclosure (of who contributed or spent, or who a confidential source was) may provide useful information to voters, prosecutors, civil litigants, judges, or jurors. In both situations, requiring disclosure of the source may deter people from contributing to controversial campaigns or organizations, or from talking to journalists. Politically, people tend to react differently to these reactions – confidentiality of contributors tends to be more supported by conservatives, while confidentiality of journalists’ sources tends to be more supported by liberals. But structurally, are these issues similar? This panel will consider both these questions together.

A playlist of all the videos from the Federalist Society convention is here.

Filed under: , ,

California AG Kamala Harris demands donor list of a 501 (c) (3)

That raises the possibility of later disclosure of the information, retaliation against donors, or both; whether it’s unusual enough for the U.S. Supreme Court to step in to stop it remains to be seen. Harris’s target and adversary in the resulting suit, by coincidence or otherwise, is the “Center for Competitive Politics, a vigorous supporter of political free-speech rights that does not get involved in election campaigns” but does speak out strongly about the First Amendment implications of campaign regulation; we’ve often cited its work and that of its founder, Brad Smith. [Lyle Denniston, SCOTUSBlog; Instapundit, citing “Supreme Court’s 1958 decision in NAACP v. Alabama, in which the Court unanimously protected the NAACP’s membership lists against compelled disclosure to Alabama officials.”]

Filed under: , , ,

In California law enforcement news…

Authorities in southern California are doubtful about a private fraternal group’s claim of lawful right to wield police jurisdiction over 33 states and Mexico, even though one of its promoters happens to be a deputy director for community affairs in the office of real-life California Attorney General Kamala Harris. “A website claiming to represent their force cites connections to the Knights Templars that they say go back 3,000 years.” [Los Angeles Times] As I’ve often noted about the phenomenon I call “folk law,” just as fantasies about living in past ages never seem to involve being a serf oneself, but always being Cleopatra or a Viking raider, so fantasies about alternative orders of legal legitimacy tend toward giving you the right to arrest other people, rather than vice versa.

Filed under: , ,

Medical roundup

  • “Embattled Broward Health paid law firm $10.2 million; tab included a lawyer’s M&Ms” [Miami Herald]
  • “Journalists were not very interested in the areas of vaccine policy that are actually debatable. They just wanted to find fools and laugh at them.” [Matt Welch]
  • Wider access to pharmaceutically based drug rehabilitation may be sound policy. But is it compelled by the ADA? [Huffington Post via @sbagen]
  • Kamala Harris carries water for the SEIU in a hospital deal, and Californians are the losers [John Cochrane]
  • Drug case: “Hagens Berman argument ‘gives new meaning to frivolous,’ judge says; sanctions imposed” [ABA Journal]
  • California: Kaiser Permanente “ordered to pay woman more than $28 million” [L.A. Times]
  • “Bacteria can evolve. So can McDonald’s. Maybe federal policymakers can as well, before it’s too late.” [Steve Chapman]

Filed under: , , , , ,

Police and prosecution roundup

  • Judge chides Montgomery County, Md. police for “unlawful invasion” of family’s home [my new Free State Notes post]
  • As more offenses get redefined as “trafficking,” state extends its powers of surveillance and punishment [Alison Somin on pioneering Gail Heriot dissent in U.S. Commission for Civil Rights report; Elizabeth Nolan Brown/Reason on legislative proposals from Sens. Portman and Feinstein] Proposal in Washington legislature would empower police to seize/forfeit cars of those arrested for soliciting prostitutes, whether or not ever convicted [Seattle Times]
  • Progressives and the prison state: “most of the intellectual and legal scaffolding of the contemporary American carceral system was erected by Democrats.” [Thaddeus Russell reviewing new Naomi Murakawa book The First Civil Right: How Liberals Built Prison America]
  • Here comes the next verbal conflation with negative implications for defendants’ rights, “traffic violence” [Scott Greenfield]
  • Please don’t pay attention to what goes on inside Florida prisons, it would only spoil your day [Fred Grimm, Miami Herald via Radley Balko]
  • Trouble in California: “U.S. judges see ‘epidemic’ of prosecutorial misconduct in state” [L.A. Times, Ronald Collins/Concurring Opinions, video from Baca v. Adams with Judges Kozinski, Wardlaw, W. Fletcher, earlier on California Attorney General Kamala Harris and Moonlight Fire case] But will Ninth Circuit’s strong words change anything? [Scott Greenfield including updates]
  • “Plea Bargaining and the Innocent: It’s up to judges to restore balance” [U.S. District Judge John Kane]

Filed under: , , , , , , , , , ,

Kamala Harris and the Moonlight Fire case

The burgeoning Moonlight Fire litigation scandal, which has already tarnished government agencies that include the California fire and forestry agency, the U.S. Department of Justice, and the U.S. Forest Service, could also raise questions for California Attorney General and Senate hopeful Kamala Harris. John Fund:

“The misconduct in this case is so pervasive,” [California Superior Court judge Leslie] Nichols wrote, “that it would serve no purpose to attempt to recite it all here.”

Nichols also didn’t spare the office of California Attorney General Kamala Harris, now a candidate for Barbara Boxer’s U.S. Senate seat and a national Democratic star. Nichols wrote that he can recall “no instance in experience over 47 years as an advocate and a judge, in which the conduct of the Attorney General so thoroughly departed from the high standard it represents, and, in every other instance has exemplified.” Judge Nichols then ordered the state to pay Sierra Pacific a whopping $32 million in damages and expenses. Cal Fire denies any wrongdoing, while the offices of Harris and Governor Jerry Brown aren’t talking.

Filed under: , , ,