Understand Your Rights. Solve Your Legal Problems
Political & Election Law in California
An Interview with Bradley W. Hertz of Law Offices of Bradley W. Hertz
Having specialized in political and election law and litigation throughout California for the past 35 years, I am extremely excited to have opened my own firm, the Law Offices of Bradley W. Hertz. My law practice focuses on campaigns, elections, governmental ethics, lobbying, and litigation, and I am committed to helping my clients achieve their political, legislative, and other goals.
I represent clients in connection with their efforts to navigate the web of legal requirements that apply to those involved in the political and election process. I also represent clients in state and federal trial and appellate courts in matters involving initiatives, referenda, recalls, ballot access, election contests, voter pamphlets, campaign finance, and First Amendment issues.
I have been a Partner at the Sutton Law Firm, Of Counsel to Reed & Davidson, and an Associate at Buchalter. I represent clients in Federal Election Commission, Fair Political Practices Commission and local enforcement agency actions. I taught Election Law and Civil Procedure courses at Chapman University School of Law and served as a member of the Los Angeles County Superior Court mediation panel.
I received my undergraduate degrees in Political Science and U.S. History from Brown University and my law degree from Georgetown University Law Center. Before practicing law, I worked as a political consultant, served as a delegate to a national Presidential Convention, and was a statewide communications director for a Presidential campaign.
I also served as an aide to a United States Senator in Washington, D.C. and Los Angeles, and was President of the California Political Attorneys Association. I am a frequent lecturer and author in the areas of political and election law and a member of several non-profit boards. My wife Laura is a mortgage banker, we have three adult children, and we live in Woodland Hills, California.
What is political and election law, and what is the role of an attorney who practices this kind of law?
Political and election law involves Compliance (in which I help clients comply with the complex array of laws and regulations governing politics and elections), and Litigation (in which I take others to task for violating applicable laws in this arena, or defend those being accused of violating the law).
The Compliance piece involves Campaign and Election Law (advising clients in connection with PACs, ballot measures, campaign contributions, independent expenditures, campaign finance, and more); Governmental Ethics Law (advising government officials and employees, and those who interact with them, in connection with conflicts of interest, Government Code sections 1090 & 84308, revolving door and gift restrictions, and other ethics law matters; and Lobbying Law (advising clients in connection with lobbying registration and reporting on the local, state and federal levels).
The Litigation piece involves representing voters, candidates, committees, citizens’ groups, government agencies, and others in political and election-related litigation and administrative law matters. Litigation can involve initiatives, referenda, recalls, ballot access, ballot designations, candidate statements, ballot questions, election contests, ethics agency enforcement, and related matters. Some of these matters are “quick and dirty,” as they must be resolved in a matter of weeks due to a rapidly-approaching election. Others are more traditional litigation, with motions, discovery, trials, and appeals.
In short, political and election lawyers work to keep (or get) our clients out of trouble. Or, if our clients’ opponents have broken the law, we work to hold them accountable. This often takes the form of lawsuits seeking writs of mandate, injunctions and/or declaratory relief, or serving as a “private attorney general” to pursue wrongdoers as the state might do.
What are some of the more interesting matters you’ve worked on?
I have been extremely fortunate to have been able to work on matters that I believe have made positive differences in people’s lives throughout California and beyond. These legal projects have included securing economic viability for Indian Tribes; seeking to remove the Confederate Seal from the Mississippi State Flag; working to secure rights for terminally ill patients to be able to have death with dignity; religious freedom; and reforming workers’ compensation laws. My cases have also addressed responsible real estate development and housing; term limits; public health; lower prescription drug prices; merit-based education; transportation; marriage equality; compensation for public officials; the building of professional football and soccer stadiums and basketball arenas; cannabis; the gig economy; securing funds for public parks and libraries; and so much more.
I have also protected voters from being subjected to false and misleading information on initiative, referendum, and recall petitions; protected voters from being misled about candidates; secured ballot access for candidates who otherwise would not have been on the ballot; and held government accountable to the people. I have worked to enforce the Federal Election Campaign Act, Political Reform Act, Public Records Act, Ralph M. Brown Act, the Anti-SLAPP statute, and other political and election laws. Many of the matters I have handled have ended up being the law of the land via the legislative or judicial process. I am particularly proud that many of my litigation matters have created new law in California and are embodied in the published decisions of the California Supreme Court and Courts of Appeal.
What guidance would you give to those seeking to involve themselves in the worlds of politics and elections?
First, I would say “Look before you leap.”
There are innumerable traps for the unwary, and even with the wide latitude afforded to First Amendment speech, politics is one of the most heavily regulated fields around.
Clients who jump into the process without retaining an experienced lawyer, hiring a knowledgeable treasurer, and finding a good political consultant often live to regret it. “You don’t know what you don’t know,” and many of the applicable laws are counterintuitive. For example, a person might not think of himself as a lobbyist, but the definitions and rules are much broader than one might expect, and he can get in trouble for failing to register as a lobbyist and file various disclosure forms.
Other traps for the unwary are whether and when one must officially form a political committee by filing the necessary paperwork, opening a bank account, etc. And others don’t realize that advancing or reimbursing payments for political contributions can constitute illegal political “money laundering.” Even more particular are the detailed disclaimers required on campaign communications or the frequent financial disclosures required by those involving themselves in the flow of money in the political process. And avoiding conflicts of interest is important, and sometimes more challenging than one might expect. In these contexts, “an ounce of prevention is worth a pound of cure” is not just a tired cliché; it’s really something to abide by.
What are some of the cutting edge issues in the world of politics and elections?
Artificial intelligence is certainly top of mind, as AI-generated content is having a huge impact on the electoral process. With “deepfakes” and generative AI, it is becoming increasingly difficult to determine what is real. If AI can literally put words in candidates’ mouths and exploit their likenesses in social media and beyond, this presents a real threat to the democratic process. Operating in an arena protected by the First Amendment, a delicate balance must be found to allow for free speech but also provide voters with the ability to separate fact from fiction.
The law is generally slow to respond to changes in technology, and so we all need to fasten our seatbelts because it’s going to be a bumpy ride.
Election integrity and trust in the democratic system are at a crucial stage right now. While close elections are not new (think Bush v. Gore in 2000), 2020 saw a new level of distrust and frustration that must be addressed. Protecting voters’ rights, increasing transparency in the process, ensuring that technology works for us and not against us, and guarding against foreign intervention in our elections are just a few of the issues that we are facing as the 2024 elections are taking place. Vote-by-mail elections, “ballot harvesting” (third parties’ submission of voted ballots), voter identification laws, voter intimidation, the electoral college, and so many other issues need to be addressed as the process moves forward.
The balance of power between our three branches of government is also in a precarious position.
Our Constitution envisions a delicate interplay between the Legislative, Executive, and Judicial branches, and with divisive issues such as abortion, gun control, Presidential ballot access and immunity from prosecution, and transgender rights – to name a few – our chosen form of national governance is going through a major stress test. Even so, I don’t believe it’s time to proclaim that “the sky is falling.” The democratic process is a messy one but it has served us well. As Winston Churchill is to have said – Democracy is the worst form of government, except for all the others.
What caused you to become interested in politics and to work in this area of the law?
I was born just three weeks before President John F. Kennedy was assassinated, and my parents always encouraged me to be involved in my community and to value and participate in our democratic process. They took very seriously President Kennedy’s Inaugural Address in which he said “Ask not what your country can do for you – Ask what you can do for your country.” My mother, who was an artist and photographer, and my father, who was a surgeon, sculptor, and author, imbued in my brother and me a philosophy of “noblesse oblige,” or giving back.
As early as I can remember, my parents took me to the polls with them to watch them vote and brought me to various political rallies. They took me to City Hall, the State Capitol, and Washington, D.C., and I always remember following politics, being involved in student government, and dealing with public policy issues. After law school, I found a way to combine my love of politics with my interest in the law by developing an expertise in political and election law. And I’ve never regretted it for one moment.
What do you like most about your job?
I enjoy making a positive difference in my clients’ lives and having an impact on important public policy issues. Whether it’s writing an initiative that becomes law, litigating an important constitutional issue, or helping clients achieve their public policy goals, I feel very fortunate to be able to do what I do. No two days are ever the same, and my clients are interesting and involved citizens who want to improve their communities and make the world a better place.
My colleagues are great as well. Those who practice in this area of the law (many of whom are members of the “California Political Attorneys Association”) have a thirst for truth, justice, and the American Way (as Superman put it). We can be zealous advocates for our clients and engage in spirited litigation against each other, but when the case is over, we can also unwind and enjoy a beer together. I am thankful to the many attorneys who paved the way and helped create the legal field in which I am blessed to be able to practice.
Bradley W. Hertz
Law Offices of Bradley W. Hertz
22815 Ventura Blvd., # 405, Los Angeles, CA 91364
Tel: 818/593-2949
Email: brad@bradleyhertzlaw.com
Published by: Lawyer Monthly - 1st May, 2024
The United States, with one of the highest lawyers per capita in the world, is known for a culture of litigiousness. In this article, we use the US as a backdrop to discuss the ways in which reckless litigation can backfire, and ask whether the balance of risk can ever truly be said to favour the defendant over the plaintiff.
There are a number of ways in which an organisation that aggressively pursues litigation can ultimately damage its own interests.
The first and most obvious form this fallout may take is harm to the plaintiff’s reputation. This is a risk for any organisation whose business model relies on a friendly image, as legal action that they take (particularly against smaller entities) may be represented by media as excessively heavy-handed. One recent high-profile case has come from video game giant Nintendo, whose suit against console ‘hacker’ Gary Bowser led to a 40-month prison sentence and $14.5 million in damages being awarded to the company. This has led to widespread condemnation among the press and Nintendo’s customer base as it emerged that Bowser would be paying damages in installments worth 25-30% of his monthly salary, likely for the rest of his life.
For a prime example of similar reputational damage occurring to an individual, we need only look at 1994’s Liebeck vs McDonald’s Restaurants, which became widely known as the McDonald’s coffee-spilling case. When plaintiff Stella Liebeck was badly burned by a cup of McDonald’s coffee that spilled in her lap, eventually culminating in her being awarded $160,000 in compensatory damages and $2.7 million in punitive damages, the case became a byword for willful victimhood and a poster child of the American culture of litigiousness.
In reality, the details of the case do not support this perception of events, but the opposite. The 81-year-old Liebeck’s third-degree burn wounds were far more severe than might have been expected from a typical coffee spill, and the apparently excessive punitive damages awarded were only greater than the $20,000 Liebeck had initially sought to cover her medical expenses because McDonald’s had refused to settle (and were ultimately reduced to $480,000 by the trial judge in any case). Yet the popular perception of the lawsuit as an example of get-rich-quick opportunism on the victim’s part has never disappeared, and McDonald’s own reputation has certainly not fared the worse for it.
Beyond the reputational damage they stand to receive, plaintiffs whose actions appear overly litigious may also incur concrete financial penalties. Rule 11 of the Federal Rules of Civil Procedures enables a fair amount of leeway for likely frivolous cases to be aired in court. However, should a court deem a suit groundless or “presented for any improper purpose”, heavy sanctions may be levied against the party at fault.
Beyond the reputational damage they stand to receive, plaintiffs whose actions appear overly litigious may also incur concrete financial penalties.
There are several prominent examples of such a strategy proving costly. In March 2022, for example, former president Donald Trump sued Hillary Clinton for $24 million in damages, claiming that she had unfairly framed him as a willing recipient of Russian assistance during the 2016 presidential race. As observers noted at the time, the suit was filed five years after Trump won the election upon which it was based, and three years after special counsel Robert Mueller concluded that Trump had been “receptive” to Russian aid during that time.
As a consequence, in January 2023 a federal judge found the lawsuit to be frivolous, remarking in the judgment that its “inadequacy as a legal claim was evident from the start” and that a reasonable lawyer would not have filed it. Trump and his legal counsel were ordered to pay $66,000 in court penalties and legal fees as well as $937,989.39 in sanctions, an amount noted by the judge to be substantial. Legal experts have also suggested that Trump’s more recent $500 million lawsuit against longtime lawyer Michael Cohen is likely to end in a similar fashion.
Both reputational and monetary damages can clearly be a deterrent to reckless litigation. But on balance, is the risk the same for both parties involved?
At the end of the day, as much as an ill-received lawsuit can harm a company, the cost of being the target of legal action is generally far higher than it is to pursue it. This is borne out in every metric for how litigants may be adversely affected by a lawsuit, whether material or immaterial.
In general, larger organisations – the kind that are most likely to resort to litigation in the first place – are generally much better-placed to do so, having the resources and connections necessary to retain effective attorneys. For smaller organisations, whose best hope for success in a lawsuit is to avoid becoming involved in it, the fees accrued from defending themselves against legal action pose much more of a financial threat. This is obviously exacerbated if the lawsuit is unforeseen, while the plaintiff has the benefit of advance preparation.
Even reputational harm is often less of an issue for the litigating party, as many examples demonstrate. When Ford Motor Company infamously responded to concerns about the safety of its Pinto model by defending itself against incoming lawsuits rather than improving the design, it suffered reputational damage that is still used as a study in corporate recklessness to this day. There are far fewer historical cases in which the ‘aggressors’ in litigation fared as poorly.
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For the largest companies, legal disputes need not even be a barrier to future cooperation; Nokia’s 2016 patent infringement claim against Apple, for which the Finnish telecom company received $2 billion when Apple agreed to settle, did not prevent the two giants from agreeing to collaborate on further R&D projects that same year.
This paints a rather intimidating picture for companies that do not have the resources to match corporate giants when it comes to pursuing or settling legal cases. With the balance of risk evidently leaning towards plaintiffs in most cases, even smaller organisations and individuals are better served looking to their defences far in advance of any such trouble arising. Hence, the need for SMEs to avoid neglecting their legal counsel remains as strong as ever.
Dominion had accused Fox and its parent company, Fox Corp, of damaging its business by airing baseless claims that its voting machines were used to rig the 2020 presidential election in favour of then-candidate Joe Biden and against former President Donald Trump, a Republican. Dominion was seeking $1.6 billion in damages relating to these false statements.
The settlement was reached ahead of a looming six-week trial in Delaware. In a major pretrial ruling on 31 March, Superior Court Judge Eric Davis ruled that Dominion had successfully proven that all 20 statements mentioned in its lawsuit against Fox were false.
Fox acknowledged the outcome in a statement on 18 April following the settlement: “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.”
Though this case is now settled, Fox News faces another defamation lawsuit from voting technology company Smartmatic for $2.7 billion. Legal experts speculate that Smartmatic may intend to use the Dominion settlement as ammunition during negotiations, proving Fox's willingness to settle for large sums.
The falsification of business records is usually treated as a lesser misdemeanour, but Trump is accused of having committed felony offences, denoting a more serious crime that could result in upwards of a year in prison upon conviction.
The charges relate to Trump's involvement in hush money payments made through former Trump lawyer Michael Cohen to former porn star Stormy Daniels ahead of the 2016 presidential election. The hush money payments were allegedly disguised as payments for legal services.
Manhattan District Attorney Alvin Bragg has been investigating these payments for five years. "Why did Donald Trump repeatedly make these false statements?" Bragg asked reporters. "The evidence will show he did so to cover up crimes relating to the 2016 election."
Trump returned to his Florida home within hours of his court appearance. “This fake case was brought only to interfere with the upcoming 2024 election and it should be dropped immediately," he said in a statement.
Family law attorney and mediator Tenny Amin explores this new phenomenon and what it means for the US social landscape.
One of the most frequent questions family law attorneys get asked is “What is the number one reason why people divorce?”
While impossible to pin down one root cause, in my experience as a family law attorney, I have found that the main culprit is often a growing divide when it comes to lifestyle choices. Lifestyle choices can encompass everything from parenting styles to financial spending. In recent years, though, a new divisive factor has come to the surface – one that, prior to 2016, we as family law attorneys rarely encountered: differing political beliefs and ideologies.
America has grown more and more polarised as a nation; our homes are no exception. It is rare to find an individual who does not have firmly rooted political beliefs these days, and it is equally rare to find someone who has not butted heads with a close friend or family member regarding these beliefs.
This has spilled over into our marriages. In fact, new data from Wakefield Research has found that one in ten couples, married and not, have ended their relationships in a battle over political differences; for younger millennials, it is 22%.
But how do differences in political ideology translate into a reason to divorce?
Well, take the issue of COVID-19 vaccination, for instance. Prior to 2020, individuals with strong opinions when it came to vaccinating their children tended to marry other like-minded individuals. However, the number of parents who chose not to vaccinate their children was relatively small in comparison to those who did, hence this issue was not a huge source of marital problems between spouses.
America has grown more and more polarised as a nation; our homes are no exception.
COVID vaccination, however, has been different. A recent study conducted by the Kaiser Family Foundation (KFF), published in Forbes magazine, found that more than 50% of parents of children aged 12-17 are still opposed to their children getting a COVID-19 vaccine or plan to “wait and see” before they decide.
The poll also found that Republicans and younger parents were among the most likely to be against their child getting the shot. According to the poll, Republican parents were the largest demographic to refuse the vaccine for their child, with 48% against the shot or opposed unless it was required.
While vaccine hesitancy has been a significant issue in the US for quite some time, it has now become a significant issue in homes across America. Many spouses are facing disagreements over this issue, which often end in court battles and divorce.
Aside from vaccines, what other sources of conflict within a marriage can be attributed to political ideology? A recent finding according to the Journal of Social and Personal Relationships found that one in four US adults said it would be “impossible” to be married to someone who did not share their views on abortion (24%), religious freedom (20%), LGBTQ rights (19%), gun control (16%) or climate change (15%).
As a practicing attorney and certified mediator who has worked in the field of family law exclusively for the better part of two decades, in the last few years I can say that couples come into my office seeking a divorce over issues I had never encountered previously.
A recent couple sought a divorce citing irreconcilable differences stemming from political differences pertaining to race relations in the United States. Their differences had come to a head over the death of George Floyd. Their strong and differing opinions on the Floyd case became too big of a burden to bear in their marriage, ultimately resulting in their divorce.
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Another couple recently sought a divorce based on their political differences when it came to immigration. And yet another had strong differing opinions as it pertained to fiscal spending and taxes. Finances have always played a big role in the dissolution of marriages, but this particular couple had ideological differences when it came to taxes on a more national level, ultimately leading to strong opinions that could not be reconciled and a marriage that could not be saved.
Marriages end for a multitude of reasons. Spouses grow apart. Differences arise. For those of us in family law, there is not much we have not seen or heard. It is without a doubt that politics and political ideology have now found their way into our homes and into the sanctity of our marriages.
The issues facing our cities, our states, and our country are real and significant. But as important as political candidates, parties and issues can be, they are nothing compared to the critical importance of your marriage. Remember that it is not our differences that divide us, but our inability to recognise and accept and celebrate them.
Tenny Amin, Partner
2211 Michelson Drive, Suite 1170, Irvine, CA 92301, USA
Tel: +1 949-502-7715
Fax: +1 949-266-8406
Tenny Amin is co-owner and partner in The Amin Law Group’s Irvine California office. She focuses her practice exclusively on family law and family mediation. Well-known for her effective and assertive representation, Tenny has extensive experience in handling all aspects of family law cases, ranging from mediation to trials involving child custody and child support, spousal support, and division of property.
Rebecca Torrey, founder of The Torrey Firm, examines the shocking decision, reactions within the country and what knock-on effects it may have on other legal issues.
The Supreme Court of the United States decided on 24 June, 2022, that women do not have a right under the federal Constitution to choose to terminate a pregnancy by abortion. The case, Dobbs v Jackson Women’s Health Organization, involved a legal challenge to a law enacted by the state of Mississippi, the “Gestational Age Act”, prohibiting the termination of a pregnancy under any situation after the 15th week of pregnancy except in a medical emergency or a severe fetal abnormality. A health clinic in Jackson, Mississippi and a physician associated with it had filed a case challenging the constitutionality of that state law, enacted in 2018 by the Mississippi state legislature, on grounds that it violates fundamental human rights established in the federal Constitution.
A 5-4 majority of the Supreme Court Justices held that the federal Constitution contains no right to an abortion and no general right of privacy, reversing two prior Supreme Court decisions from the past 50 years, Roe v Wade (1973) and Casey v Planned Parenthood of Southeastern Pennsylvania (1992), and upholding the law restricting the right to choose to terminate pregnancy after 15 weeks except under the circumstances noted.
The Dodd decision has broader implications than the Mississippi law at issue. In overturning the cases of Roe v Wade and Casey, the Supreme Court expressly rejected its own precedent recognising a constitutional right to privacy, the basis for the federal right to choose to terminate a pregnancy. Roe and Casey and their progeny had reinforced an implicit right to privacy from the language found in several amendments to the federal Constitution, namely the Fourteenth Amendment’s due process basis for civil liberties. Although American culture has embraced the sense of a fundamental right to privacy, the Court in Dodd tossed out the legal grounding for individual rights in the context of access to an abortion.
In overturning the cases of Roe v Wade and Casey, the Supreme Court expressly rejected its own precedent recognising a constitutional right to privacy
In contrast to other constitutions of today, our federal one included no express right to individual privacy. It appears unlikely at this time that the Constitution would be amended to address that shortcoming in the context of an individual’s right to make childbearing choices. The amendment process, dictated by the Constitution itself, requires either a two thirds vote of both Houses of Congress plus ratification by 38 state legislatures or ratification by constitutional conventions held in three quarters of the states.
The Constitution has been amended infrequently over the past 250 years, most often in response to widely shared views resulting from societal changes. Consider, by way of example, the abolition of slavery or legal access to alcoholic beverages. While individual privacy rights have global support, given the divide on abortion in the US based primarily on religious perspectives, it is hard to imagine attaining the consensus needed to amend the Constitution in that regard anytime soon.
The implications are also broader than the issue of access to abortion. Other rights based on the same Fourteenth Amendment doctrine include a person’s access to birth control, the right to be intimate with a partner of choice, and the right to marriage equality. The Court’s overruling of Roe and Casey is believed to jeopardise those rights too, leading to an immediate response by lawmakers to shore them up through legislation.
The intention of the Supreme Court in Dodds was to return the regulation of access to abortion to each of the 50 states. Following Dodds, a number of state “trigger” laws took effect. Those laws were written and adopted in anticipation of the overruling of Roe and Casey to go into effect automatically or with specified official actions if overturned. Over the next months and years, states will continue to adopt regulations governing access to abortion and setting legal consequences for medical personnel and others involved in abortions. Those regulations will be challenged in the state courts on a variety of grounds, including whether they abridge individual freedoms contained in state constitutions.
For the past 50 years, Roe gave women the assurance of a right to control one’s body and make the personal decisions impacting the rest of their lives. The change that occurred in June has been described as “seismic” by at least one constitutional scholar. Particularly because responsibility falls on women to give birth and more often than not to raise children, the notion that a slim majority of Justices or legislators who are overwhelmingly male can dictate when and how many children a woman will have is fundamentally offensive to people who grew up believing they held that right.
For the past 50 years, Roe gave women the assurance of a right to control one’s body and make the personal decisions impacting the rest of their lives.
Frank conversations among friends anecdotally support the conclusion that one’s ability to choose when to bear children has resulted in dramatic improvements in the education and achievements of the women we know. Innumerable personal stories reveal the profound impact an unwanted pregnancy would have otherwise had in people’s lives. Men who cannot bear children do not confront this life-determining dilemma, one that frequently occurs alone or from circumstances outside a woman’s control at a pivotal point when pursuing work, education or even a healthy relationship.
Most students of constitutional law would agree that the analysis of Roe is uneven and creative, a bold statement about what occurred historically in the years leading to the 1970s. The result of that decision seemed right, though, based on paradigm shifts occurring since the Constitution was adopted during the Enlightenment period of the 18th century. As Justice Ruth Bader Ginsburg noted, legislative initiative could have supported that outcome by aligning the right that Roe recognised with mainstream values of the American public. A “breathtaking decision” in effect replaced the legislative process.
Throughout history there are numerous examples of dramatic shifts in the Court’s constitutional interpretations, as well as amendments made to patch up shortcomings of the Constitution as written. While some tout the primacy of the American democracy, the archaic nature of this Constitution could be a serious shortcoming impacting the agility of the country to move forward. Individuals protected by more recent constitutions and treaties, including states and other republics for instance, are better situated to address complex contemporary challenges – and magical thinking does not turn clocks back to colonial times.
The action taken by the Supreme Court in June, abandoning longstanding precedent, has caused widespread disruption and international criticism, as well as deep scepticism about the legitimacy of this Court. It is no wonder that the Justices most outspoken against Roe are those with a pattern of disrespectful, inappropriate and even unlawful conduct towards women.
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The Court’s course is unlikely to alter anytime soon. Members of Congress and state legislators cannot dodge controversial issues but instead must demonstrate leadership by filling the void where the Court has indicated it will not. Through the thoughtful, diligent and proactive strength of its citizens, the American democracy must function to reestablish by advocacy, voting and legislation the most fundamental individual rights. It is time for our lawmakers to read the room and represent the people they serve through legislation, a powerful and legitimate process to overturn unwanted judicial precedent.
Rebecca Torrey, Founding Partner
1626 Montana Avenue, Suite 647, Santa Monica, California 90403
Tel: +1 310-310-2992
Fax: +1 424-414-1712
Rebecca Torrey is an across-the-board employment lawyer with significant trial experience representing management in bet-the-company cases involving wage and hour and fair credit class actions, trade secret misappropriation, wrongful termination, discrimination and fair pay claims. She provides advice to companies aiming to align their personnel practices with company culture, values and priorities and minimise legal risk.
The Torrey Firm represents employers in litigation and advises management on a broad range of employment matters. The firm assists businesses in looking ahead strategically and collaboratively to improve human resource practices and reduce unnecessary risk.
In this article we hear one such proposal from Mehmet Gün, international lawyer and founder of the Better Justice Association, an independent think tank focused on democracy and rule of law.
The relationship between judges, political leaders and voters is becoming increasingly fraught around the world. In the UK, the recent Queen’s Speech promised to “restore the balance of power between the legislature and the courts” – a move that was promptly branded a “power grab by the state” by some commentators. In the US, public anger against the Supreme Court’s leaked draft of an abortion ruling to overturn a landmark 1973 jurisprudence in the Rove v Wade decision – and President Biden recommending that the Court should not do so – also underlined this year how much the judiciaries have become politicised and how important it is that judges are made properly accountable.
The US Supreme Court has become divided along party lines. Former President Trump went so far as to call judges “so-called” judges and “Obama judges”. In the UK, judges have been accused of being “enemies of the people”. In France, the notorious Outreau Case was described as a “judicial disaster” with the French judiciary accused of shattering lives. In Poland and Hungary, the ruling parties have attempted to remove unfavoured judges and install their loyalists.
In my home country, Turkey, the judiciary has been widely criticised for becoming an instrument in political cases and for hindering dissent with thousands of prosecutions for slandering the president. Similar stories are frequently reported.
The World Justice Project Rule of Law Index recently highlighted that amid attacks from interventionist politicians and populist media, portraying themselves as champions of “the people” against privileged elites, the rule of law around the world is weakening.
As the judiciary is the most vital institution to ensure the survival of a democratic society, it must be continuously protected and nurtured. Judges must be treated appropriately, and it must be ensured that they in turn fulfil their duties efficiently. They must serve society with a top-quality judicial service that is proportionate to the importance of their role as well as the great powers and exceptional privileges provided to them.
As the judiciary is the most vital institution to ensure the survival of a democratic society, it must be continuously protected and nurtured.
Judges are supposed to rule impartially and independently, free from prejudices and outside influence – particularly from politicians. When their rulings are perceived to be politically driven, the judiciary is attacked, with attackers claiming in essence that the judges would rather rule against the will and interests of the society than protect the public. Given that judges are selected and appointed by politicians for their political lenience, is it not natural for their rulings to be or perceived to be politically motivated? When politicians appoint judges, how can the public be sure that the judiciary is independent? Can the public in the US, for example, be expected to be fully satisfied with the ruling of a Republican-majority Supreme Court? A further difficulty here is that human beings are intrinsically political and cannot be expected to be apolitical in all things, with judges being no different.
In addition to politicians’ involvement in the appointment of the judges, there is also a tendency in nations all around the world to allow politicians to interfere with the judiciary. In France, the executive branch is involved in the judicial council (the CSM); in the UK, the Lord Chancellor appoints judges on recommendations by the JAC, and the Venice Commission considers it acceptable for the executive branch to have representatives in the judicial councils. It is obvious that any political involvement in the judiciary will inevitably lead the judiciary to be politicised.
Consequently, the question is: How do we deal with his paradox? Why do the public complain about the political lenience of the judiciary while politicians are mandated to keep the judiciary on a leash?
Public trust in the judiciary is generally higher in better-functioning societies, whereas in societies with less sophisticated and robust civic institutions there are often more complaints about judges. Lower quality of service and accountability leads to the lessening of the public trust in the judiciary and judges. It is obvious that the public are either confused about or have lost trust in their judiciaries.
It is the accountability of the judges that is the main factor which distinguishes judiciaries as being better or worse service providers. It is only natural for the judiciary to be scrutinised, and the combination of free speech and a free press can result in the judiciary serving the people better. In jurisdictions where the judicial office is taken for granted and an opinion holding that accountability compromises judicial independence prevails, it is not surprising that the judicial services lack elements of essential quality. Avoiding accountability for failing to serve the people by hiding behind judicial tenure and purported judicial independence creates a perfect environment for distrust in judiciaries. It is also a perfect environment for justices to rule according to their political agenda, led by loyalty to their appointer.
It is the accountability of the judges that is the main factor which distinguishes judiciaries as being better or worse service providers.
Therefore, it appears that the loss of trust in judiciaries stems from the lack of accountability, and I am convinced that the root of the problem is mainly the lack of accountability combined with a lack of quality of judicial services. It is because of the accountability issues that the people mandate politicians to stand up to judges. Only if the judiciary serves the public properly and is truly accountable will the people support the judiciary and defend it against the politicians. Therefore, to earn and protect its independence, the judiciary must deliver quality services to people and be held accountable for its performance.
The judiciary must be truly accountable to the society that is legitimately entitled to expect its services, not to ruling politicians. Conflating the accountability of the judges with the politicians will seriously compromise the accountability of both, to the extent of conspiring against the very people they serve.
Instead of creating political masters for the judiciary, a unique system of accountability needs to be devised. The judiciary should be regulated by an autonomous regulatory body dealing with all aspects of the judicial service: policy, principles, planning and operations, etc. It should be watertight against even a hint of influence by any individual, group or coalition. It should ensure that the promotion of judges and other service providers is based on their performance in providing quality judicial services, and judicial appointments should be open to all suitable candidates in open transparent competition, which should involve public debate.
Having analysed the issue in depth, we at the Better Justice Association feel that the optimum approach is to establish a Supreme Authority of Justice (“SAoJ”), an independent judicial regulator for quality judicial services. We propose to ensure full accountability of the SAoJ and propose an efficient judicial review of any of its decisions that could be initiated by any member of the public and at no cost. The BJA proposes to establish the Supreme Court of Justice (“SCoJ”) for this purpose.
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In summary, the key to protecting judicial independence is focusing on gaining the trust of the people by providing quality judicial service whilst being truly accountable. Securing quality service provision and proper accountability will ensure the judiciary is seen as a friend of the people, rather than a group helping serving themselves – or, even worse, an “enemy” intent on meddling with serious political or social issues. Only then can the public grant full independence to the judiciary – and defend it when it comes under attack.
Mehmet Gün, Founder
Kore Şehitleri Cad. 17, Zincirlikuyu 34394, İstanbul, Turkey
Tel: +90 212 354 00 12
About Mehmet Gün
In a professional career of almost 40 years, Mehmet Gün has developed expertise in commercial and corporate law, life sciences and pharmaceuticals, intellectual property and litigation in Turkey. He has been counted among the pioneers of the development, regulation, promotion and enforcement of modern Turkish IP laws. Most notably, he is committed to promoting greater understanding of the state of the rule of law, in Turkey, the boundaries of the Turkish Judiciary and their effects on the business and social environment. To this end, he has established both the Better Justice Association and Istanbul Arbitration Association NGOs and written a book criticising the abusive use of court-appointed experts by the Turkish judiciary. He is also the author of the book ‘Turkey’s Middle Democracy Issues and How to Solve Them’ and co-author of ‘Turkish Judicial Reform A-Z’.
[ymal]George Orwell once said that political language is “designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind”, and he wasn’t wrong. It seems like over the past decade, with the rise of tech and social media, that politicians and influential figures are finding it harder to hide behind their lies as the laymen call them out and demand answers when things go wrong. But how often are they reprimanded?
Sidney Powell - an appellate lawyer from Texas who joined former President Trump’s legal team – reportedly blamed Cuba, Venezuela, the Clinton Foundation, the billionaire George Soros and Antifa, a loosely defined left-wing movement, for somehow making votes for Trump in his presidential campaign late last year, disappear. She is now defending herself against a billion-dollar defamation lawsuit by arguing that “no reasonable person” could have mistaken her wild claims about election fraud as statements of fact.
Lawyers are not allowed to lie — to clients, courts or third parties. But once you get beyond deliberate false statements, the scope of the obligations to truth and integrity become less clear. If caught misleading others, legal professionals can be struck off, but “there are hard questions about when you must be forthcoming and when is it okay to engage in a little trickery”, as said by Bruce A. Green, director of the Louis Stein Center for Law and Ethics at Fordham Law School, to the ABA[1]. What lies ahead for Powell is yet to be determined but looking at the connection between politics and mistruths, it is often found like politicians get the easy way out.
More recently, leaders of six opposing parties in the UK are accusing Boris Johnson of “a consistent failure to be honest”. They refer to two codes of conduct that UK politicians are supposed to follow: the Nolan principles and the Ministerial Code. Both stress the importance of being truthful[2], but much of the British political system rests on the assumption that politicians will choose to behave ‘honourably’, leaving fewer sanctions in place for those who defy such conventions.
Johnson has also recently been put against the wall after it was found out that he had been exchanging texts with businessman James Dyson about UK tax laws; this followed the Greensill scandal, where former prime minister David Cameron texted government ministers on behalf of the financial firm that was employing him. Some may have smelt potential fraud or the essence of friendly favours for the well-off, but nonetheless, Johnson stated he will “make no apology”, leaving the nation questioning fairness and transparency throughout the government. But in this case, no one broke the law.
Should lying be against the law?
Dr Alice Lilley from the Institute of Government told Channel4: “Misleading Parliament is a serious matter. The convention has always been that ministers who mislead Parliament are expected to resign, and this is set out in the Ministerial Code. But enforcing this convention is more complicated.
“It is ultimately up to the prime minister to decide what happens to ministers judged to have broken the Code.
“And Parliament has very few powers to punish a minister for misleading it.”
In the U.S., there are laws against making false and misleading claims, and against practices aimed at taking advantage of people.
Those laws, however, are intended to protect consumers from potentially dishonest businesses, not to protect voters from potentially dishonest politicians[3].
As reported in the LA Times, “Political speech receives greater protection because it may be difficult to ascertain if a politician is deliberately lying, whereas businesses are expected to know if they’re making false claims”.
So what can be done? We speak to Sailesh Mehta, a Criminal Barrister at Red Lion Chambers on the matter.
“A lying virus has spread across the body politic. It has always been there, but a new, more toxic variant is threatening democratic life. It’s spread by sections of the media that have given up on fair reporting and a social media which fuels it”, says Mehta.
“Some supporters of our Prime Minister are concerned about his increasing use of lying as a political tool, honed during his days as a journalist – he was sacked on one occasion as a result (remember his misrepresentations about the Hillsborough disaster or about the European ban on bent bananas?). Step forward the Brexit Bus lies as Exhibit A", he expands.
Mehta explains how an infamous Russian propaganda technique known as “the firehose of falsehood”, relentlessly and rapidly fires off falsehoods in the knowledge that they will find a place in the subconscious of fear and prejudice, “…and it works”, he said.
Nonetheless, Mehta believes this torrent of political misinformation can be controlled with simple steps. “It is not beyond the wit of lawyers to produce a workable set of laws to protect democracy from the flood. If a teacher or a doctor lies to us, there are consequences. Any product brought to the market must comply with a raft of legislation ensuring the seller tells the truth about it – the more potent the product, the greater the duty. The same should apply to politicians”, he shares.
The first step would be to make it a criminal offence for a politician to make a public pronouncement which, at the time it was made, the politician knew or believed to be untrue (as proposed by “Compassion in Politics”). “Initially, this could apply in the lead up to a local or national election and any referendum. But then it should be widened.
“Another step would be to “give teeth” to the electoral Commission to prosecute, punish, ban and curtail individuals and parties who persist in demonstrably provable dishonesty”, expands Mehta.
A third measure should make social media giants such as Facebook and Twitter more personally liable for allowing political lies to be disseminated on their platforms. “Again, it is fairly easy to draft legislation in this area, but few in Parliament have the stomach to take on such powerful behemoths.
“And fourthly, immunise the public against lies by teaching them to spot them – this is a long term, but necessary, education project”, explains Mehta.
The law has the potential to rule out political lies, but research has shown that it is only when people feel disenfranchised and excluded from a political system that they accept lies from a politician who claims to be a champion of the “people” against the “establishment” or “elite”[4]. So, I leave you with this question, would the law be enough?
[1] https://www.americanbar.org/news/abanews/publications/youraba/2018/december-2018/when-is-it-okay-for-a-lawyer-to-lie--/
[2] https://www.channel4.com/news/factcheck/factcheck-what-are-the-consequences-for-politicians-who-lie
[3] https://www.latimes.com/business/story/2021-01-05/column-trump-election-fraud-laws
[4] https://theconversation.com/why-people-vote-for-politicians-they-know-are-liars-128953
Sarosh Zaiwalla, Senior Partner at Zaiwalla & Co, discusses Zaghari-Ratcliffe's imprisonment and shares his thoughts on how the UK government ought to respond based on past dealings with Iran.
It is now more than five years since Nazanin Zaghari-Ratcliffe was put in jail for "working against the Iranian state". Ever since her secret trial, the 42-year-old British-Iranian mother has been arbitrarily detained as a prisoner of the Iranian regime. Regrettably, she has also become something of a pawn between Britain and Iran in relation to a diplomatic row relating to a longstanding dispute over arms payments.
The British prime minister, Boris Johnson, had a phone call last month with his Iranian counterpart, President Rouhani, and demanded her immediate release. The Times reported that Johnson called “her continued confinement completely unacceptable”, according to Downing Street.
An Iranian-British dual citizen, Zaghari-Ratcliffe was initially convicted after being found guilty of "plotting to topple the Iranian government". Her employer, Thomson Reuters Foundation, later released a statement making it clear that when arrested, she was not working in Iran as a journalist, but was on holiday in the country so that her daughter, Gabriella, could meet her grandparents.
In 2017, Zaghari-Ratcliffe faced fresh charges and this year faces another new charge of propaganda against the regime in the Iranian courts. Regrettably, it appears that the Iranian government may continue to use her as a bargaining chip in order to recover a long overdue debt of £400 million from the UK concerning the non-delivery of Chieftain tanks.
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In 2008, an international arbitration court ruled that the UK did owe this money, and last year the British government acknowledged the debt. Nevertheless, there has been an extended dispute over the exact amount that will be paid and what interest is due. In light of current sanctions that are applied against Iran, achieving repayment may still prove difficult.
Notably, the defence secretary Ben Wallace told Times Radio in a recent interview that Britain should clear the debt and that it was “absolutely right” that “we should honour that debt”. He added: “What we’ve said very clearly is that we comply with law and the rule of law . . . we should honour that debt and we should find ways to return it to Iran.”
Despite the obvious diplomatic problems, there have been circumstances, historically, where significant debts between the two countries have been honoured.
In 2013, one of Iran’s largest private banks, Bank Mellat, was held entitled to claim damages for a breach of human rights law by the UK government. More recently, the assessment of those damages came before the English courts. This action was stayed by a Tomlin Order, which attached a confidential settlement agreement. I am aware of its contents in a professional capacity.
The Times reported that the quantum of the settlement involved very material payment obligations by the UK government. Having been personally involved in the payment issues, I am aware that the UK government fully and properly honoured those obligations. This clearly demonstrates that payment to Iranian interests can be made when it proves convenient to do so.
Despite the obvious diplomatic problems, there have been circumstances, historically, where significant debts between the two countries have been honoured.
Accordingly, it would be disgraceful if the UK government were now to rely on a purported inability to make payment which further imperilled Mrs Zaghari-Ratcliffe, prolonging her suffering and that of her family, who have campaigned so hard for her release. Ultimately, this has nothing to do with paying a ‘ransom’, which no government can ever begin to contemplate, but has everything to do with the simple discharge of a commercial debt that has potential humanitarian consequences.
The White House issued an executive order on Thursday morning imposing a range of new sanctions against Russian individuals and companies in response to the SolarWinds hack.
Penalties were levied against six Russian tech companies under contract with government intelligence or assisting Moscow’s cyber warfare programme.
The order also placed significant new restrictions on Russia’s sovereign debt, limiting its ability to raise money and support its currency. From 14 June, US financial services will be prohibited from taking part in the primary market for rouble-denominated Russian sovereign bonds.
“The President signed this sweeping new authority to confront Russia’s continued and growing malign behaviour,” said Treasury Secretary Janet Yellen. “Treasury is leveraging this new authority to impose costs on the Russian government for its unacceptable conduct, including by limiting Russia’s ability to finance its activities and by targeting Russia’s malicious and disruptive cyber capabilities.”
Last December, a successful hacking operation against US network security company SolarWinds was uncovered. The hack, which compromised more than 250 federal agencies and businesses in addition to 18,000 unrelated organisations, was stated by the US intelligence community to have been carried out by Russia’s Foreign Intelligence Service.
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The new US sanctions also targeted 32 individuals believed to have participated in state-backed efforts to influence the 2020 US presidential election. One individual named by the Treasury Department was Alexei Gromov, a deputy chief of staff in Russian President Vladimir Putin’s office, who allegedly led a government effort “to exacerbate tensions in the United States by discrediting the 2020 US election process”.
As the sanctions dealt with a broad range of activities, O’Melveny & Myers LLP data security and privacy counsel John Dermody commented that the order appeared to be "less about deterring a specific behavior and more about resetting and redefining the Biden administration's relationship with Russia”.
