Signers Held Liable for Ballot Argument Errors

Signers of false and misleading ballot arguments in local initiative campaigns can be forced to pay attorneys’ fees to successful challengers of such statements, the state Court of Appeal held Friday.

The three-member appeal panel upheld a precedent-setting fee award made in a Berkeley election dispute, unanimously rejecting claims that the award violated First Amendment rights and would discourage free expression in the electoral process.

The court said fee awards were permissible as a way of encouraging private legal actions that uphold state policy and benefit a broad class of citizens.

“The Legislature has expressed the view that ballot arguments which are sent to voters at public expense should be factually accurate, and has explicitly invited individual voters to effectuate that public policy,” Appellate Justice James B. Scott wrote for the court.

The panel approved a $3,429.17 fee award made by an Alameda County Superior Court judge that attorneys believe was the first of its kind in the state.

A lawyer for the American Civil Liberties Union of Northern California, representing the backer of a ballot argument held liable for the award, said the ruling may be appealed to the state Supreme Court.

‘Chilling Effect’ Seen

“If this is upheld, every politician who disagrees with what an opponent says in a ballot argument can sue and then ask for attorneys’ fees,” said Amitai Schwartz of San Francisco. “It will have a chilling effect on participation in the political process by anyone who wants to sign a ballot argument.”

The case arose from a dispute between supporters of rival recycling measures on the ballot in Berkeley in November, 1984.

Andrea Washburn, a member of the Berkeley City Council at the time, and other backers of one measure brought suit against an opposing group led by Anna Rabkin, then city auditor, under a law that allows challenges to pending ballot arguments that may be “false and misleading.”

In a stipulated agreement between the two parties, Judge Ken Kawaichi removed several references to “illegal” activities that the Rabkin group had made in its ballot argument against the measure backed by the Washburn group. In a separate action, Judge Henry Ramsey Jr. ordered Rabkin to pay legal fees and court costs to Washburn and her group.

Partial Appeal Filed

In their subsequent appeal, Rabkin and the ACLU did not contest the judge’s power to revise a ballot argument but did claim that the fee award violated the rights to free speech and to petition the government for redress of grievances.

The appeal court, in a 22-page opinion by Scott that was joined by Appellate Justices Clinton W. White and Robert W. Merrill, rejected both contentions.

Rabkin overlooked the fact that defendants in such cases will be faced with their own legal expenses in any event, Scott said. She had not shown that the added potential for an award of attorneys’ fees to the other side “inhibits speech to a significantly greater degree.”

The court said that the Legislature had recognized the value of suits like the one at issue by authorizing the award of attorneys fees in privately initiated actions that serve the public interest.

“We conclude that there is no First Amendment infirmity” in the award, the court said.