Appellate Cases - Election law

Election law tends to be a pretty specialized area. But Mr. Adelstein has handled one appeal involving an election law issue.

FPPC v. Californian Against Corruption

This case involved the largest fine the California Fair Political Practices Commission (FPPC) has ever imposed. And it did so on a small underfunded organization.

Mr. Adelstein represented Californians Against Corruption (CAC), a small grassroots organization that campaigned for a recall election in 1994. It raised a total of about $140,000l; however, it apparently failed to report several contributors and donations in violation of state election laws. The FPPC is the state agency that enforces these election laws, and it typically imposes a small fine — $2,500 at most — for these types of violations.

The FPPC filed an report accusing CAC of 406 violations of the election laws. The FPPC counted each omitted (1) donor occupation, (2) employer, (and 3) street address as separate violations. CAC had failed to include about 100 donors, and so this constituted about 300 violations. CAC also failed to include the street address of about 35 payees, and this counted as another 35 violations.

The FPPC convened a probable cause hearing to investigate this. However, CAC's treasurer did not attend the hearing. The FPPC found CAC liable for 404 or the 406 violations, and imposed the maximum fine — $2,000 per violation — for a total of $808,000 in fines. The FPPC imposed the fine jointly on CAC and its two treasurers individually.

CAC had two good arguments. First, fine was unconstitutionally excessive. As such, it violated the Excessive Fines clause of the Eighth Amendment and the California Constitution (Cal. Const., art. 1, § 17) and Due Process Clause of the 14th Amendment and of the California Constitution (Cal. Const. art. 1, § 7). It is also unconstitutional under the Judicial Powers Clause of the California Constitution: "The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts." (Cal. Const., art. 6, § 1.) Since the imposition of a huge fine is essentially a judicial act, California case law interpreting the Judicial Powers Clause precludes administrative agencies from imposed such huge punitive fines.

Second, the FPPC did not follow its statutory procedures in imposing this fine. The FPPC acting as a body must appoint an Executive Director (Gov Code, § 83107), and only the FPPC itself or the Executive Director can convene a probable cause hearing (Gov. Code, § 83116; Cal.Code Regs., tit. 2, § 18361, subd. (d)(4).). Here, the Chairman of the FPPC acting alone purported to delegate to other FPPC staff members the authority to conduct probable cause hearings.

However, CAC had a procedural problem: it did not attend the probable cause hearing, and so it did not raise these arguments. The FPPC brought an enforcement action to enforce the fine, and the trial court rejected CAC's claims, and entered judgment against CAC and its two treasurers.

On appeal, the Court of Appeal affirmed. It rejected CAC's argument that the FPPC hearing was improperly convened under the little known "de factor officer" doctrine. A 1964 case concisely summarized this doctrine:

“‘Persons claiming to be public officers while in possession of an office, ostensibly exercising their functions lawfully and with the acquiescence of the public, are de facto officers. . . . The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.’ [Citations.]” (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42.)

There are several limitations and exceptions to this doctrine, and despite quite intensive briefing, the Court of Appeal ultimately rejected all of these. The court also held that the excessive fines argument was waived because CAC had not raised it earlier.

Case Data

Court of Appeal Opinion.
Court: California Court of Appeal, Third Appellate District (Sacramento)
Case No. C038246
Published Citation: 109 Cal.App.4th 269 [134 Cal.Rptr.2d 659]
Author: Justice George Nicholson
Opinion Date: May 29, 2003