Hermandad Can Have Copies of Seized Records

At an unusual hearing framed by large constitutional issues rarely argued in Orange County Superior Court, a judge Friday said the Latino advocacy group raided last month by state and local investigators probing allegations of voter fraud is entitled to copies of the seized records.

But Judge William R. Froeberg refused the group’s request to prevent investigators from sharing those items with the congressional committee that subpoenaed them Thursday. However, he did order them sealed and not to be shared with the media.

“I won’t interfere with some federal subpoena that’s beyond my jurisdiction,” Froeberg said.

The House Oversight Committee, on behalf of the House Contested Election Task Force, served the subpoena Thursday on Dist. Atty. Michael R. Capizzi, ordering him to turn over documents taken Jan. 14 from the Santa Ana offices of Hermandad Mexicana Nacional.

The committee was acting on an appeal by defeated incumbent Robert K. Dornan to have his loss to Democrat Loretta Sanchez overturned because students who attended Hermandad citizenship classes may have voted illegally in the 46th Congressional District race.

In a preview of the sort of sweeping constitutional declarations that will likely follow if election fraud charges are eventually filed in the case, Hermandad lawyer Mark S. Rosen likened the seizures to government attempts in the 1950s to harass the NAACP civil rights activists by capriciously confiscating membership lists.

Several times the judge noted the larger issues at stake, from the “separation of powers” involved with the House subpoena, to case law that harkened back to governmental attempts to police “the evils of communism” 50 years ago.

Twice Froeberg likened the discussion of lofty legal principles during the hourlong hearing to the “constitutional law section on the state bar exam.”

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In court papers, Rosen accused the district attorney of “indiscriminately” taking Hermandad’s computers, files and other records, severely hampering its ability to function and then, “astonishingly,” being unable one month later to even identify the group’s membership lists from among the items seized.

“The district attorney acts as if he has the right of noblesse oblige to do whatever he wants to with the seized items,” Rosen argued in court papers. “He thus assumes that until charges are filed . . . he can operate without any controls whatsoever.”

But Senior Deputy Dist. Atty. E. Thomas Dunn Jr. said that in a letter on the day of the raid, his office asked Nativo Lopez, Hermandad’s executive director, to identify the documents and items the group needed most to continue its work and “we will make every effort . . . to return equipment to you or to make copies of critical items for you in a timely manner.”

Assistant Atty. Wallace J. Wade told the judge the district attorney had no desire “to unnecessarily disrupt” Hermandad’s activities.

“Our position [is] we’re not investigating Hermandad as an organization,” Wade said.

Several times the judge asked Wade, Dunn and James F. Sweeney, chief counsel to California Secretary of State Bill Jones, whose agency is investigating voter fraud allegations with the district attorney, why investigators needed Hermandad’s membership lists.

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Dunn said that a “confidential informant” told investigators that Hermandad may have assisted people to vote “who were not eligible to do so [and] we need to know who these people are.” Their names, he continued, may appear on the membership lists.

When the discussion turned to the House subpoena, Sweeney argued that the “supremacy clause” in the U.S. Constitution compelled the secretary of state to obey the higher federal authority and share the seized items with the House committee, the “separation of powers” between the legislative and judicial branches of government notwithstanding.

If Hermandad wants to prevent the sharing of items with Congress, it should have filed a motion to quash the subpoena in the federal district court in the District of Columbia, Sweeney said.

Asked if he had gotten what he wanted, Rosen said after the hearing “pretty much so.” He said he was still studying the matter and didn’t know if Hermandad would move to quash the House subpoena.

Dunn, meanwhile, called Hermandad’s motions and the resulting hearing an “unnecessary exercise in political hyperbole” and a “partisan attack” on the district attorney’s office.