Fiedler’s Lawyers Say State Statute Is Not Applicable

Citing the opinion of a congressional counsel, attorneys for Rep. Bobbi Fiedler and her top political aide contended Tuesday that the pair should not have been indicted by the Los Angeles County Grand Jury because the state election statute under which they were charged does not apply to federal elections.

The federal “preemption” argument--bolstered by a 12-page memo from Steven R. Ross, general counsel to the clerk of the U.S. House of Representatives--is one of several defenses contained in legal briefs that were filed in Los Angeles Superior Court by defense lawyers. They urge that Judge Robert T. Altman dismiss the January indictment against the Northridge Republican and her aide and fiance, Paul Clarke. A pretrial hearing, at which time Altman could rule on the dismissal motions, is scheduled for Friday.

The district attorney’s office, scheduled to respond in writing to the defense arguments by Thursday, had little reaction Tuesday. But Deputy Dist. Atty. Steven A. Sowders, who is prosecuting the Fiedler case, did note that the prosecutor’s office believes that federal preemption may not apply in this case.

‘This Is California’

“My gut reaction is that (Ross) is just an attorney in Washington and this is California and we’ll take care of our elections,” Sowders said.

Fiedler, 48, and Clarke, 39, are charged with offering state Sen. Ed Davis a $100,000 campaign contribution to lure him out of the Republican U.S. Senate primary. The charge stems from an obscure state Election Code law--for which there is no federal counterpart--that makes it illegal to pay or offer money to a candidate to secure his withdrawal from an election.

In the Fiedler legal brief, defense counsels Harland Braun and Daniel Lowenstein contend that no evidence can be found on secret tape recordings--made at the behest of the district attorney’s office by Davis’ campaign manager, Martha Zilm--that Fiedler ever offered Davis money or any other consideration to drop out of the race.

Claim of Innocence

“No matter what outlandishly broad interpretation of (the state Election Code statute) the district attorney may wish to offer, Bobbi Fiedler is innocent,” they wrote. “The district attorney recognizes this fact, and therefore, correctly recommended to the grand jury that Fiedler not be prosecuted.”

(Indeed, the district attorney’s office did recommend against the indictment of Fiedler, while recommending in favor of Clarke’s indictment. Although the grand jury did not follow the advice on Fiedler, top prosecutors say they are moving forward with the case against the congresswoman because they believe she is guilty--despite weaknesses in the evidence.)

The defense attorneys also contend that even if strong evidence existed against Fiedler, “state laws regulating federal campaigns clearly and emphatically have been preempted by Congress.” In their brief, they cite a memo prepared last week by congressional counsel Ross at Fiedler’s request, which states “it is my conclusion and legal opinion that federal law prohibits the application of (the California statute).”

In a telephone interview Tuesday, Ross said, “The opinion carries no special weight--other than the weight of its correctness.”

“My opinion does not render absolution on anybody--I’m not the Federal Election Commission nor a judge,” added Ross, a Democrat who once served as a counsel for the Congressional Democratic Campaign Committee. “ . . . But in this case, I don’t think it’s a particularly close question . . . . It leads to one inescapable conclusion.”

House Report Cited

Ross, who said his job entails nonpartisan rendering of legal opinions at the request of House members, specifically cited a House committee report concerning the enactment of the Federal Election Campaign Act Amendments of 1974. It reads: “ . . . The federal law is intended to be the sole source of criminal sanctions for offenses involving political activities in connection with federal elections.”

Herb Steinberg, an attorney for Clarke, said his client would be covered too because “preemption would apply to everybody regardless--there’s no question there.”

In response, Sowders, head of the district attorney’s Special Investigations Division, said that “there are no surprises” in the issues the defense raised.

“Suffice to say that we were aware of the issue of federal preemption when we initiated our investigation,” Sowders said, “and we felt that we should go forward.”

Sowders said federal preemption “is limited to the area of political contributions to and expenditures by federal candidates--not in the regulation of who is a candidate or who is going to be a candidate. It’s our position that is a matter of state law. It’s California interest whether we’re going to permit buy-outs in federal elections or not.”

Matter of Litigation

“It’s not quite as cut and dry as the defense . . . indicates,” Sowders added. “We’re going to have to litigate in front of Judge Altman just how broad this federal preemption is.”

Dist. Atty. Ira Reiner, who returned to his office Tuesday after a three-week vacation in Europe, had no immediate comment. Aides said, however, that Reiner would discuss the issue at a press conference this morning.

Steve White, the state’s chief assistant attorney general, said preemption is an “uncommon” defense and “unless it’s pretty clear . . . courts will not generally find preemption.”

White, who refused comment on the specific issues concerning the Fiedler case, said that preemption issues could be raised either during pretrial hearings or during an appeal.

In its 48-page Fiedler brief, the defense also argues that the D.A.’s office did not properly instruct the grand jury on how to interpret the state statute. Moreover, prosecutors were derelict, the defense contends, for making no effort to prevent grand jury member Richard Ferraro--who once served on the Los Angeles school board with Fiedler--from taking part in the panel’s deliberations and votes.

“We assume that Ira Reiner who personally supervised this prosecution along with his chief aide, Gil Garcetti, knew that one of the members of the grand jury was a political enemy of Fiedler and Clarke,” the defense wrote, asking Altman to dismiss the indictment in part based on “outrageous misconduct” by the prosecution.

The prosecution’s “incompetence” and “outrageous misconduct” could fortify “the very reputation of California for bizarre conduct,” the defense continued. “ . . . An investigation and prosecution as intrusive and interfering as this one is more in the spirit of recent tragic events in the Philippines than in the spirit of justice to which we are accustomed in the United States of America.”

Unless Altman dismisses the indictment, Fiedler and Clarke are scheduled to go on trial March 3.