Dornan Can’t Demand Documents, Judge Says

A federal judge Friday revoked dozens of subpoenas recently issued by attorneys for former Rep. Robert K. Dornan, ruling that the ex-congressman does not have the legal authority to demand documents as he tries to prove he lost the last election because of voter fraud.

In his ruling, U.S. District Judge Gary L. Taylor agreed with attorneys for Rep. Loretta Sanchez (D-Garden Grove), who argued that in the case of contested elections, subpoenas can only be issued for depositions, or oral testimony, and not for documents alone.

Sanchez chief of staff Steve Jost hailed the decision as a major blow to Dornan, declaring, “At this point, his case does not have a prayer.”

However, Dornan attorney Bill Hart shrugged off the ruling’s significance and said he would simply rewrite the subpoenas on Monday to comply with the law by calling for individuals to come to his office for depositions with the documents in tow. “On Monday the whole process begins again,” Hart said. “This is nothing but a tempest in a teapot.”

Dornan’s attorneys issued about 40 subpoenas in the past two weeks, demanding documents dating back to 1994 from government agencies, schools, nonprofit organizations, Latino political groups and Sanchez supporters. Attorneys said they needed the records to prove to a congressional subcommittee that there was substantial voter fraud in the November election, which Dornan lost by 984 votes.

Sanchez supporters, however, said Dornan was engaging in a “witch hunt,” desperately trying to pull together enough bad votes to convince the House to call for a new election.

Dornan’s case is now being studied by a three-member congressional task force, made up of two Republicans and one Democrat, which has scheduled hearings on the matter in Orange County in late April. Under a federal statute, a failed candidate who has such a case pending before Congress can issue subpoenas through any local judge.

In mid-February, Dornan’s attorneys asked for and received 50 blank subpoenas from Magistrate Judge Elgin Edwards. They have issued about 40 so far, said Hart, all asking for documents.

In some cases, the requested documents reached back three years and involved thousands of names. They ranged from a list of people excluded from the welfare rolls in Orange County to students who took citizenship classes at Rancho Santiago College in Santa Ana. Many of the targeted groups represent Latinos.

Subpoenas went out to Sanchez, her husband, Steven Brixey III, and Michael Farber, a Democrat who ran unsuccessfully against Dornan in 1994.

Hermandad Mexicana Nacional, a Latino rights organization that helped thousands of immigrants become citizens last year and also ran an extensive voter registration drive, also received subpoenas. Hermandad is at the center of state and local investigations into allegations that noncitizens voted last November.

The Friday ruling took both parties by surprise, because they had expected the hearing to be delayed until next week. Taylor said he decided to push ahead because of the significance and timeliness of Dornan’s case before Congress.

After hearing arguments for nearly four hours, Taylor decided the subpoenas could only be issued for depositions, although the people being deposed could be asked to bring documents. In that case, however, attorneys for Sanchez could be on hand to ensure there was good cause to review each document.

Taylor ordered all the outstanding subpoenas “vacated,” or voided. Hart said he had not yet received any of the documents he asked for.

Taylor pointed out that the ruling was difficult and potentially precedent-setting because “there are basically no cases in this area. This is a relatively new rule in Congress.”

Taylor did not address a larger question raised by Mark Rosen, an attorney for Hermandad, about whether giving subpoena power to a private citizen such as Dornan was constitutional.

Both sides, characteristically, offered different interpretations of Friday’s ruling.

But Hart, who argued the case for Dornan, said the ruling only places more of a burden on the groups and individuals who are the targets of Dornan’s subpoenas. “Now there is a huge imposition on the custodians of records who will have to appear in person at my office,” he said.

However, William J. Kopeny, an attorney for Sanchez, said it was a significant change because now Sanchez and other involved parties could be represented by lawyers when the documents are requested and reviewed. “We have a right to be present at the production of any documents,” he said. “If there is abuse or harassment or wrong purpose, we can be there to create a record on a subject-by-subject basis.”