We always knew that State Assemblyman and former Alameda City Councilman Rob Bonta was a grandstander, but we hoped and expected that, given his education (Yale College, Oxford University, and Yale Law School) and professional experience (law clerk, litigation associate, and San Francisco Deputy City Attorney), he’d still behave like a careful lawyer: he wouldn’t bandy about accusations of criminal conduct without getting the facts straight or fire off demands for drastic action without getting the law right.
It turns out we were too optimistic.
On July 5, Mr. Bonta sent a letter to the Mayor, Council, the City Manager, the City Attorney, and the City Clerk in which he alleged that “numerous violations of California Elections Code section 18600” – a criminal statute – had occurred during the signature-gathering for the referendum to repeal Council’s ordinance banning no-cause evictions. “Dozens of affidavits” submitted to the City supported this allegation, Mr. Bonta wrote. Indeed, he found “the evidence of fraud contained in this documentation” to be “extremely concerning.”
Mr. Bonta demanded that City officials “submit this evidence” to the Alameda County District Attorney “for possible prosecution.” But he didn’t stop there. In addition to recommending a criminal referral, Mr. Bonta “strongly urged” Council to “pursue legal action” to “disqualify the referendum.” Indeed, the City had “a duty to request that the election official [in this case, the Alameda County Registrar of Voters] refuse to certify the sufficiency of the referendum petitions” based upon the “allegations of serious violations of the Elections Code.”
Now, we don’t know whether Mr. Bonta (or a member of his staff, like District Director and Councilman Jim Oddie) read the documents that the Alameda Renters’ Coalition delivered to City Attorney Janet Kern’s office on July 3 and that she forwarded to Police Chief Paul Rolleri. But we did. We also don’t know whether Mr. Bonta or his staff reviewed the statute he claims was violated or the cases interpreting it. But we have. And we are compelled to conclude that Mr. Bonta has committed two cardinal sins for a trial lawyer (or any legal advocate): he has exaggerated the evidence beyond what it actually shows, and he has stretched the law beyond what it actually supports.
We’ll start with an overview:
- ARC delivered a total of 42 signed statements to the City Attorney, of which 39 were signed under penalty of perjury and thus could be considered an “affidavit” (although a California lawyer would refer to the document as a “declaration”).
- ARC also gave the City Attorney a thumb drive containing 11 additional statements, most of which consisted of a single paragraph and none of which was signed or sworn. Indeed, nine of them did not even identify the person making the report. None of these statements qualifies as an “affidavit” or “declaration.”
- Of the 37 persons who signed declarations (two declarants submitted two separate statements apiece), 22 used a pre-printed form enabling them to fill in by hand what they were “told/saw/heard/witnessed.”
- Of the 22 declarations using the pre-printed form, 12 were signed by tenants at 470 Central Avenue and described the same conduct occurring on the afternoon of June 20: a “young white male” with long hair and a beard asking people to sign a petition “for rent control.” (One declarant stated that the young white male with long hair and a beard actually had asked for “my signature to repeal rent control.”)
The statute that Mr. Bonta contends was violated, Elections Code section 18600, makes it a misdemeanor to “intentionally misrepresent” or “intentionally make a false statement” about the “contents, purport, or effect” of a referendum petition. So we looked at the 42 signed and 11 unsigned statements delivered to the City Attorney to see what the signature-gatherers for the referendum petition were alleged to have said.
Two declarants reported that the solicitors had lied about their affiliation: one, having been told that the author would sign a petition only if it was sponsored by ARC, stated he represented ARC; another, having been asked if he was on the landlords’ or tenants’ side, said it was the tenants’. In addition, one declarant swore that, when she threatened to call the police, the signature-gatherer replied, “I’m Homeland Security.”
One renter submitted separate declarations relating a blatant lie: an “old lady with grey hair” driving a BMW with a vanity license plate reading “Selenee” told her and a neighbor she was simply registering people to vote. The tenant relayed this incident to another person, who submitted her own declaration.
Of the other declarations, six did not contain statements of any sort attributed to signature-gatherers. Another 11 declarants (including most of the 470 Central tenants) quoted the solicitor as saying only that he or she was gathering signatures “for rent control.” Two others rendered the phrase as “for fair rents” or “for reasonable rents.” And one declarant, as noted above, reported that the solicitor stated he was gathering signatures “to repeal rent control.”
We found a total of 12 declarations that could be construed as alleging, in varying degrees of specificity, one or more untrue statements by signature-gatherers about the purpose or effect of the petition. Legally speaking, an untrue statement is not the same as an intentional misrepresentation – but without the former the predicate for the latter doesn’t exist.
The untrue statements fell into two categories. The first involved signature-gatherers pitching the petition as pro-tenant. Five declarations related broad misstatements by solicitors about the petition’s benefits for tenants, such as that it would “safeguard tenants’ rights” or “protect rent control.” Three other declarants reported solicitors falsely portraying the petition as restricting evictions: it would “bring back” or “implement” the ban on no-cause evictions or “help [the tenant] not be evicted.”
The other category involved signature-gatherers hyping the petition’s effects. Two declarants reported untrue claims by solicitors that, without the petition, landlords would be unable to evict criminals, prostitutes, or drug dealers (in one case, the declarant said, the solicitor added, “like you”). Three other declarants told of false assertions by solicitors that, absent the petition, landlords would have to pay either four-months rent or $20,000 to be able to evict a tenant.
The 11 unsigned statements furnished no additional potentially incriminating information. Indeed, one of them reported the solicitor accurately stating that Council “had overturned elements of L1 and the petition was to stop them.” Another statement quoted the solicitor as “asking for signatures to stop rent control.”
Thus far the “evidence of fraud.” Chief Rolleri forwarded the statements to the Alameda County District Attorney’s office, where, he told us, an A.D.A. specializing in election law would review them. If a real prosecutor concludes that, based on testimony from the people who submitted declarations, he could prove “numerous violations” of Election Code section 18600 beyond a reasonable doubt, Mr. Bonta will have been justified in levying the charges he made in his letter. We’ll see.
Just as a jury would hold against him Mr. Bonta’s exaggeration of the evidence, a judge would shake her head at his suggestion that the Registrar should reject the referendum petition because of the alleged misrepresentations by signature-gatherers. In fact, the First District Court of Appeal (whose decisions are binding in Alameda County) has made it quite clear that the Registrar lacks the legal authority to take such an action. The Elections Code does not authorize a local elections official to “evaluate the credibility of unidentified third parties, consider extrinsic evidence, and make an adjudicative decision concerning whether the election laws have been violated,” the court held. To the contrary, “an elections official’s role in certifying an initiative petition is confined to the ministerial task of examining the four corners of the petition for compliance with submission requirements.”
Theoretically, the City could file suit against the Registrar and ask a court to order him not to certify the referendum petition. Indeed, Mr. Bonta suggests that there is precedent for such an order. But again he reaches too far. In the “narrow and hopefully rare instance” where the initiative petition itself – an “official election document” – contains “misleading assertions of fact that are false beyond dispute,” a court may prohibit an elections official from qualifying an initiative. (So says the First District case cited by Mr. Bonta.) But the referendum petition handed to Alameda voters is not alleged to contain any misrepresentations; indeed, it doesn’t offer any legal or factual argument at all. As far as we’re aware, no court has ever directed an elections official to keep a referendum off the ballot because of alleged misrepresentations made by those who circulated the petitions supporting it. Instead, the remedy for intentional misrepresentations by signature-gatherers is criminal prosecution.
This only makes sense: Suppose, as here, the petition got far more signatures than were needed to qualify the referendum for the ballot. Suppose, as in the best (or worst) case here, that the prosecutor could prove, beyond a reasonable doubt, that 53 people signed the petition based on an intentional misrepresentation. In that case, should a court assume that all of the signatures were obtained by fraud? If not, how should it determine how many signatures to throw out?
Very recently, Mr. Bonta’s penchant for grandstanding has come back to bite him. In May he introduced a bill to repeal what he admitted was an “old and archaic” California statute permitting public employees to be fired because they were members of the Communist Party. Why bother? Because, Mr. Bonta told the Los Angeles Times, he wanted to “remove that reference to a label that could be misused or abused, and frankly, has been in the past, in some of the darker chapters of our history in this country.”
Mr. Bonta undoubtedly expected that his move would elevate his standing among self-described “progressives.” And maybe it did. But it also aroused the ire of veterans’ groups, and, more importantly from a political standpoint, Vietnamese-Americans. Indeed, the city council in Westminister, located in what is known as “Little Saigon” in Orange County, passed an emergency resolution condemning the measure. Within days, Mr. Bonta apologized for “caus[ing] real distress and hurt for proud and honorable people” and withdrew the bill, even though he had gotten enough votes in the Assembly to pass it.
If Mr. Bonta’s grandstanding on the referendum fails, too, the political consequences will be nowhere near as severe. In fact, we could argue that it would demonstrate why voters should keep Mr. Bonta in the Legislature – so that he stays away from the courtroom. Let him impress his colleagues in the Assembly and his boosters in the blogosphere with his concoctions about facts and law; no judge or jury will ever have to listen to him.
Our usual practice is not to identify public speakers at City meetings by name unless they say they are representing an organization. All of the signed statements delivered to the City Attorney contain names and addresses of Alameda residents, and, although they are public documents, we’re going to adhere to the policy underlying our usual practice and not reproduce them.
Rob Bonta letter: 2017-07-05 Bonta Letter
Elections Code section 18600: Elections Code section 18600