Postscript: State Supreme Court hears arguments on Brand, Nehrenheim legal fees question
by Garth Meyer
The Supreme Court of California heard oral arguments Dec. 7 about whether Redondo Beach Mayor Bill Brand, City Councilman Nils Nehrenheim and others are entitled to legal fees from a 2019 lower court victory.
The seven black-robed justices heard the case in an hour-long session in San Francisco.
Attorney Betty Schumener spoke first, representing plaintiffs Chris Voisey, Arnette Travis and Redondo Beach Waterfront, a CenterCal affiliate.
Voisey and Travis are local residents. CenterCal is the commercial developer which worked with the city on a proposed $400 million revamp of King Harbor.
Shumener told the court there was no element of self-gain in the case, such as in a copyright dispute.
The plaintiffs’ lawsuit had asserted that Brand and Nehrenheim misled voters about their involvement in a political action committee, Rescue Our Waterfront, LLC, in the leadup to 2017’s Measure C, which ultimately stopped the King Harbor project.
At the 2019 trial, it was revealed that CenterCal paid for the plaintiffs’ attorneys.
“It is false that the developer was behind the work,” Shumener told the state Supreme Court. “The developer was willing to fund the plaintiffs attorneys’ fees. That these people are shills because they didn’t have the money to pay attorney fees is simply wrong.”
Shumener said that who paid is “irrelevant,” describing her clients as two “conscientious citizens who had been politically active for years.”
She noted that L.A. County Superior Court had denied the defendants’ requests for a summary judgment – to throw out the case before it reached the trial stage.
She suggested that Brand and Nehrenheim coordinated with resident Wayne Craig in a hidden manner on Rescue Our Waterfront.
“… (There is) a reasonable basis to believe those disclosures were not made,” Shumener said.
Jeanne Zimmer, attorney for Nehrenheim, spoke next.
She received a fast inquiry from Justice Martin Jenkins.
“… We have to delve a little deeper, don’t we?” he said.
The justices sought to clarify whether Zimmer was arguing that because the previous judge had ruled in her client’s favor, that her client deserved attorney fees.
Steve Colin, the lawyer representing Mayor Brand and his volunteer treasurer Linda Moffatt, stated that Judge Mackey of the L.A. County Superior Court determined that “our clients acted in good faith.”
Colin cited the Political Reform Act of 1974.
“This is the will of the people,” he said. “It’s not good policy to allow the Political Reform Act to be weaponized against people exercising their First Amendment rights.”
Chief Justice Tani Gorre Cantil-Sakauye asked a question, and made a statement.
“The trial court made very few findings on frivolousness,” she said, adding that court decisions which
“help a lot of people” are often “brought by those who can’t afford to do it themselves.”
Colin stated that Judge Mackey evaluated the evidence.
“Did (he) find that it was frivolous?” asked Justice Carol A. Corrigan.
“Yes,” said Colin.
Shumener then had her turn at a rebuttal.
She contended the legislature has had decades to consider the application of the Political Reform Act.
“The simple fact that (Voisey and Travis) couldn’t pay attorney fees is (not) any evidence of frivolity,” she said.
Aftermath
A decision from the court is expected within 90 days.
“Then it becomes the law of the state,” said Shumener two days after the hearing.
What does she think the verdict may be?
“I’m afraid to think,” she said. “I don’t know, it’s now in the hands of the court. I hope they do what I believe is right.”
Each side was granted 30 minutes. Shumener chose to use 20 minutes to open, reserving 10 minutes for a rebuttal at the end.
“It sets guidelines for lower courts to follow,” she said of the eventual ruling. “That’s why the case is so important.”
Shumener talked further about the Political Reform Act of 1974.
“It made the requirements of disclosure more stringent,” she said. (These include information about financial backers, independent expenditures, etc.).
The Redondo Beach defendants approachesSan Francisco’s city hall, next to the California State Supreme Court building. The red carpet was for an unrelated film shoot. Photo by Hanno Nehrenheim
“It really is for disclosure. (The plaintiffs) were seeking to have the defendants to file more (required) forms. Why aren’t they filing forms disclosing this to voters?” Shumener said.
So if Mayor Brand, Councilmember Nehrenheim and the others would have filed the proper forms, none of this would have happened?
“That’s exactly what I’m saying,” Shumener said.
“That’s not true, because their own expert testified that there was nothing illegal,” Colin told Easy Reader in response, referring to the five-day 2019 Superior Court trial.
Colin acknowledged that the first document filled out by Wayne Craig and Martin Holmes for Rescue Our Waterfront, the statement of organization, was in error. Boxes checked for “General Purpose Committee” and “Primarily-Formed Committee” were both checked, when only one should have been.
“Everything else was 100 percent in compliance with the law,” Colin said.
A General Purpose Committee, which Rescue Our Waterfront (ROW) corrected its filing to be, means a PAC formed for an ongoing matter. “Primarily-focused” applies to a particular purpose, such as Measure C in this case.
ROW is a General Purpose Committee, Colin said.
Neither a General Purpose nor Primarily-Focused committee may be associated with a political figure.
“You cannot allow yourself to be controlled by a candidate,” said Colin.
Decisions
Plaintiff Voisey, a member of the Redondo Beach General Plan Advisory Committee, ran for mayor against Brand in 2021, when Brand was re-elected to a second term.
Plaintiff Travis is a longtime financial advisor turned “Activist/Advocate/Author,” according to her website.
“These people sincerely, sincerely believed in what they were doing,” said Shumener, about the lawsuit. “They may have been adversaries to Brand, and them but that is (irrelevant to the case).”
Why was CenterCal willing to pay for their attorneys?
“They believed in (Voisey and Travis’) cause,” Shumener said.
The State Supreme Court may now rule in one of three ways: they could affirm the previous court’s decision and award attorneys’ fees;, reverse the lower court’s decision, or send it back to the lower court for further action or clarification.
“It is truly an honor to go before the state Supreme Court,” said Shumener, who had not appeared before it previously. Neither had Colin, a former Redondo Beach city councilman.
“My impression is the decision has already been made, and already been written,” Colin said. “Our arguments were just for (making sure). How do you argue five and a half years of litigation and fact-finding in a half-hour per side?”
He noted that the state Supreme Court has had the case briefs for 14 months.
Chief Justice Cantil-Sakauye is set to retire at the end of December. ER