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1. Hearing Time is Here
Today, Oct. 19, at 9:30 a.m., is when a Sacramento court will consider Steve Young’s complaint that his opponent in the 37th State Senate District race, Mimi Walters, does not live in that district and his demand that votes for her should therefore not be counted. Walters claims to live in a 570-square-foot apartment in a less affluent part of Irvine, rather than in her 14,000-square-foot mansion in Laguna Niguel (which is not part of the 37th district.)
(For relevant background, see the story where I introduced readers to this strange circumstances to the tune of the Zombies “She’s Not There” and my follow-up detailing Steve Young’s stinging legal complaint against Walters, which lovingly reviews the evidence that Mimi does not, no way, no how, reside in the modest apartment and why it is not, by any stretch of the imagination, her legal residence.)
I know that those stories may have whetted your appetite to expect something big — but if you’ve been looking forward to hearing Mimi Walters’s explanation of all of this, prepare yourself for a disappointment.
I have been given copies of Schemin’ Mimi’s response to Young’s complaint, which comes in the form of a special motion to strike it under California Code of Civil Procedure §§ 425.16 et seq. and consign it to the Island of Lost Causes. It gets a bit technical, but its a formidable and unexpected piece of work.
Regarding its likely fate, Dear Reader, I must confess my ignorance (which I have not attempted to cure) to you. It seems to me to be likely that Walters will win her motion, but it could come at a significant cost.
Walters’s relevant argument seems to be that if she says that she lives in the apartment rather than the mansion – and that ends the story. In other words, if she swears that it is true, then the court must accept it as true, and the proper venue to determine whether it is/was true is the State Senate itself, rather than the court.
Walters provides yet another sworn declaration stating that she did live in the apparently uninhabited apartment at the time of her swearing before the Registrar of Voters that she resided in the district and that she still does. In other words, if she committed perjury earlier this year, she’s doubling down on it — and given that this is not just Neal Kelley’s office but a freaking California Superior Court, maybe tripling or quadrupling down it — with (as Richard Alarcon is finding out in a case where he seems to have had a much more substantial claim of residency) potentially perilous consequences.
Here’s the part that I don’t know: whether the judge in this special and unusual hearing will engage in any fact-finding or not beyond the papers. My sources tell me that Young will not be there today; what he has had to say was already said in the complaint. My guess is that while Mimi’s lawyers (from Sacramento firm Bell, McAndrews, and Hiltachk) will be present, Mimi herself will not be — and that she will not be there expressly to make it harder for the court to engage in any further fact-finding.
I don’t know what a judge, in an urgent election-law case, does in that sort of situation. Walters’s statement to the court does not address any of the damning facts in Young’s complaint. Instead, it more or less says what I will paraphrase as this:
“I swore that this was true — and even if I was lying for the purposes of this hearing you are required to believe me.”
I think that I may have tried this gambit once with my mother in my late teens — and it did not work. But I, unlike Mimi, did not purport to have the explicit protection of the California Code of Civil Procedure.
[Note: I'm calling her "Mimi" rather than "Senator Walters" here because I just find "Schemin' Mimi" so very evocative -- and I hope that you do too.]
2. The Anti-SLAPP Argument
A SLAPP suit is a “Strategic Lawsuit Against Public Participation” (brought by powerful forces to stifle dissent — you know, “powerful forces” like an outnumbered Democrat in a wealthy conservative area.) Sections 425.16 et seq of the Code of Civil Procedure empower those unjustly targeted by SLAPP suits to squash them. And that is why the argument in Mimi’s “Memorandum on Points and Authorities” in support of her anti-SLAPP motion starts out, quite incredibly, with this quote:
“[I]t is difficult to conceive of principles more central to a political democracy than the free and untrammelled [sic] access of the public to the ballot box and the reciprocal right of candidates to seek the public’s suffrage.”
Stirring stuff! And, of course, persuasive until one recognizes that implicit in that statement is that the candidates in question only have the right to seek the vote of the public if they are eligible to run for the position (gosh darn it!) Once Mimi is termed out, she doesn’t get “untrammeled access” to the ballot box because she is in-freakin’-eligible. And she is also ineligible if she, oh, doesn’t live in the district. That nice language in the quote? Inapplicable to her in that case!
Mimi argues (through her attorneys — it’s shorthand, folks) that Young’s lawsuit is an “attempt to litigate a political claim in the press just a few weeks before the election” — apparently ignoring Young’s recognition that he couldn’t file the suit against her while the legislature was in session, so this was the first chance he had — and that it was “brought to intimidate and for purely political purposes.”
If you think that there’s any chance at all that Mimi is not truly domiciled in her Irvine apartment — as we discussed, making it rather than the mansion the permanent residence to which she plans to return — then you’ve pretty much conceded that Young’s suit was brought to enforce the law rather to intimidate. This argument depends entirely on the assumption that Mimi really does live in the district. If she doesn’t, then Young gets to complain about it!
The memorandum continues to say that Mimi is being denied her free speech right to run for office and to vote for herself — which, again, are rights restricted only to the FREAKIN’ ELIGIBLE TO HOLD A GIVEN OFFICE.
The Anti-SLAPP law says that the court must dismiss the motion unless Young can demonstrate a likelihood of success on the merits, which is says that can’t happen because of a jurisdictional issue. So let’s go there next — and speak of Canadians and corpses.
3. Is Mimi more like a Canadian citizen or a corpse?
The jurisdictional issue is a serious one. California holds that “only the State Legislature (in this case, the Senate) can judge the qualifications and elections of its members” including “the eligibility of candidates seeking election. Therefore, only the State Senate can declare Mimi ineligible to hold office.
Think about this for a moment.
If this were completely true, it would mean that the Democratic Party could eliminate term limits for Democrats. It could take someone like Sen. Lou Correa, who will be termed out in 2014, and say “well, we’re going to decide that he’s eligible to continue to serve in our body after all, regardless of what that stupid law and the laws of arithmetic say. Now, before Lou gets too excited, let me explain — NO, THEY CAN’T DO THIS! So, obviously it is not true that only the State Legislature can judge the qualifications of its members; at some point, the freakin’ law itself comes into play.
The question of whether one is eligible to serve once elected may indeed be left to the legislature. But there is — also by law — a prior step in the process: the determination of whether one is eligible to be on the ballot itself. A Canadian citizen, a termed-out legislator, a dead person, and a chihuahua are examples of potential candidates for office who might (some obviously with a little help) want to get onto the ballot. The Registrar of Voters is supposed to be able to screen them out at an early stage, before they get onto the ballot. You can have a ventriloquist make the corpse or chihuahua appear to say that they are qualified to serve in office, but that doesn’t cut the mustard. As for the living human being examples, the Canadian citizen and termed out legislature can swear until they’re blue in the face (something at which the corpse, depending, may have them beat) that they’re eligible, but if they’re not eligible they are not eligible from the beginning and until and unless that status or the law changes they never will be.
We have a Latin phrase in law called “ab initio,” or “from the beginning.” If you married your brother or sister ten years ago, your marriage will, if challenged, be declared void ab initio, as if legally it never took place. If Mimi was a Canadian resident and just flat-out lied about it to the County Registrar’s office when she was sworn in, then that action would be negated. She would have never taken the step required to be put onto the ballot in the first place! Her presence on the ballot would have been a mistake! In that case, she has no “free speech” right to run for the office; the mistake is to be corrected and legally the situation becomes one in which only Steve Young filed for office in Senate District 37.
The case isn’t decided before the State Senate because MIMI WALTERS’S NAME NEVER GETS TO THEM. Her presence on the ballot was an ERROR. They can no longer declare her eligible to serve in their body than they can declare Prince Charles eligible to serve.
(“Ab initio.” Try it sometime!)
To see how this works, imagine that Mimi Walters had in fact moved into, inhabited, and domiciled herself in the small Irvine apartment — and then, after being sworn in and qualified for the ballot, promptly died of complications stemming from having moved from a huge mansion into a tiny apartment. How would that play out?
Candidates do die in the midst of a campaign. The most significant recent example I know of within the region would be my old college friend, Jenny Oropeza, who died in the midst of her re-election campaign for State Senate. She was eligible, she died — and people could still vote for her. She won her last election posthumously — and it led to a special election being called, in which Ted Lieu was elected to the vacant seat.
If Oropeza had been ineligible to run ab initio, though — if instead of dying, say, she had given up her American citizenship prior to filing for office and instead became a citizen of Cameroon (something that would have been very unlike her) — then a very reasonable case could be make that it would have been as if her name had never appeared on the ballot at all. In the pre-Prop 14 days, the county Democratic parties in her district could have chosen a replacement candidate for her. Now — well, they can’t. The law doesn’t provide for it. The ballot spot would go unfilled. And, if Mimi is more like a Canadian or Cameroonian than a corpse, that’s what should happen here.
4. “Even if I’m lying, you have to accept it as true”
That’s my paraphrase of Mimi’s next argument: “Even if I’m lying about my intention to remain in that small apartment in Irvine and to return there whenever I leave on a temporary basis, despite my apparently never having even once spent the night there (at least before this lawsuit) — you are required to believe it!”
If this argument strikes you as pretty freaking brazen and bizarre — well, you’re not alone. I feel your pain. That is the argument though: that her having declared herself under penalty of perjury to be domiciled in Irvine ends the argument and only the State Senate can decide to evict her from her seat once she is elected.
Her memorandum continues: Utility bills in her name are sent to her address. (They probably, I suspect, do not show extremely high usage.) Her driver’s license shows that address. All of the documents about which one could possibly lie to clerks in order to obtain do speak in concert, saying that she lives in the long-unfurnished and desolate apartment. She’s registered to vote there (which means — hey, maybe we have finally found an instance of voter fraud!) She has a residence at her mansion in Laguna Niguel – but that’s not her legal domicile. (Why? Because so she swears. UNDER OATH!)
(She does admit one error: her State Senate website, in a change that Mimi had “not reviewed or authorized,” incorrectly noted that her family had also moved to Irvine. So she’s simply saying that she has no intention of necessarily returning to the place where her family lives. It’s sad, when you think about it.)
5. Mimi’s Pyrrhic Victory
There’s more, such as an argument about the timeliness of the suit, but it’s not very interesting, and as I publish this the hearing is but a couple of hours away. Let’s cut to the chase.
Steve Young’s complaint and its attached declarations, to my mind, demonstrated that there’s just no reasonable doubt that Mimi Walters showed no signs of actually being domiciled in the tiny Irvine apartment until Young’s complaint stirred the pot and forced her to deploy her barbecue to the new location. She can only rebut that by saying “I swore that this is my domicile and therefore you must agree that it is.”
In other words, so long as she’s willing to perjure herself (if that’s what she’s doing) — the court needs to keep its grubby paws off of the case, which is to be left to the Legislature..
That’s an ugly view of politics (and not just because, as I note, it could give Lou Correa hope of serving another term in the 34th Senate District.) It’s one that favors lying — and those who have the legal firepower to get away with it.
One thing that the anti-SLAPP motion and the legislative exclusivity provision don’t cover is the criminality that would have occurred if Mimi Walters stood in front of a clerk at the County Recorder’s Office early this year, raised her hand, and sworn to something which she knew to be a lie. That’s perjury — a felony — and if we’re to ask our everyday citizens to have any faith in our legal system at all, it should be prosecuted. If District Attorney Rackaukus doesn’t have the gumption to do so on his own, he should convene a grand jury and let them listen to the testimony of Steve Young, his investigators, and others who can help explain the law of domicile.
If Mimi knows that she blew it, her actions seem designed to ensure that, rather than Steve Young getting a default nod, a new special election would take place where one of the local Assembly members could run and ascend to the State Senate. (Mental note: someone make sure that Chuck DeVore stays in Texas.)
She can, of course do that — she can perjure herself and take one for her team. And, if she expects the punishment for such an action to be slight at worst, there’s little but her conscience that could deter her from doing so. That’s why, if Mimi Walters is found to have knowingly lied about her domicile and to have repeated that lie here (after being clearly made aware of the law), she should go to prison for a long enough time that the next person who might try to do the same would decide not to do so.