L.A.'S GREAT DEBATE FOLLIES, ACT III: THE COURTROOM
by Robert Gelfand
American Reporter Correspondent
San Pedro, Calif
LOS ANGELES -- The exclusion of several candidates from two February mayoral debates has predictably spawned a lawsuit. The debates, sponsored by an organization that calls itself the Citywide Alliance of Neighborhood Councils, are to be run under rules which contrive to exclude the one decently-funded Republican candidate.
The Republican, attorney Walter Moore, has now filed a lawsuit in order to force his way into the debates.
There is a deep issue here. Reform-minded people have argued for ages that we need to fight the institutionalized corruption of political fundraising by providing free television airtime.
It sure isn't working that way this time around. As mentioned here previously, debates sponsored by the League of Women Voters and the Los Angeles League of Conservation Voters hosted only the five well-funded Democrats, the guys who have raised enough money to qualify for matching funds under the city's system of partial public financing.
Walter Moore, who some might consider as a less wealthy version of former mayor Richard Riordan, was kept out of those debates. He has appeared in several minor forums, but the big prize -- the chance to go head-to-head with the five better-funded candidates on television -- has been denied him.
Something is wrong here. You would think that the reformers would be outraged and outspoken about the current favoritism. You would be wrong. As one observer put it to me, if it had been five Republicans who were invited and one Democrat who was excluded, the ACLU would be all over the case in a shot. We have yet to hear from the ACLU on this. No, there doesn't seem to be any help coming from the liberal side of the fence this time around.
Instead, in the grand old American tradition, we have a lawsuit. The suit was filed in Superior Court by Moore, who appears to be acting both as plaintiff and as his own attorney.
Moore does not take the reformist line in his legal complaint. There is no argument that the television stations themselves have any obligations to offer him equal time. He just wants an invitation to the main event.
Looking at the text of the legal complaint (which has been available off-and-on at Moore's web site the past two days), it is apparent that Moore also doesn't seem to care much about whether the five other excluded candidates get into the debate.
The suit actually names two individuals, Noah Modisett and Greg Nelson, as defendents, rather than the Alliance or the television stations that will host the events physically. Noah Modisett is a member of the Alliance's Steering Committee. He is also a member of the Governing Board of the Coastal San Pedro Neighborhood Council. (Disclosure: I served on the Coastal San Pedro Neighborhood Council Governing Board with Noah Modisett at one time. I am currently the chair of that council's Issues Committee.)
Greg Nelson is the General Manager of the Department of Neighborhood Empowerment (DONE), a city agency that oversees and regulates the city's neighborhood council system. The suit alleges that DONE has used city resources to publicize the debates to the neighborhood councils it oversees, and that Nelson was directly involved in this activity.
My view is that this allegation has merit. The complaint cites emails sent by Nelson and by his staff that publicized the mayoral debates. The existence of these emails is well known to many neighborhood council members. It is a stretch, though, to argue that this minimal participation by Nelson, something which might be described as public education about the election, provides sufficient reason for a court to intervene in the debates.
The complaint cites an opinion by the City Attorney requiring neighborhood councils that hold candidate forums to make them available to all candidates without discrimination. So far, so good. If any neighborhood council or alliance of councils were actually holding a mayoral candidate forum, these rules would apply.
But Moore veers off the track by arguing that the Citywide Alliance of Neighborhood Councils is not composed of neighborhood councils. This assertion undercuts the main thrust of the other argument. If the Alliance is not really a governmental entity, what does it matter what rules apply to governmental entities? If the Alliance is the sponsor, then the plaintiff needs to show that there is some legal basis to compel the Alliance to do anything.
It's a little hard to justify such a position.
Far be it from me to offer legal advice to an attorney, but I suspect that Moore might have been better off stressing the legal ties between the Alliance and city government. By arguing that city government is at least in part the sponsor of the debate, there would be a legal basis to ask a court to compel the city government to play fair by inviting all candidates to participate without discriminating against any. It wouldn't be a great blow for political reform, but it might be a winning position.
This is a different sort of argument to be sure. Moore might have mentioned, if he knew, that Modisett was officially appointed by his neighborhood council to be its representative to the Citywide Alliance. This is not quite the same thing as the neighborhood council officially declaring its membership in the Alliance, but it does demonstrate the intent to participate.
Moore might have done a little more research to find out if any neighborhood councils have joined the Alliance. I reported that members of the Alliance Steering Committee were uncertain as to how many neighborhood councils have officially joined. Some were very unsure. One member thought it was about five.
The legal distinction between having no members and some members may be the more important question. In the latter case, the Alliance is to some extent, however weakly, an adjunct of city government.
In claiming the contrary, Moore seems to be relying on the Alliance's web site, which declares that the Alliance has no members as yet. It is painfully obvious to someone more familiar with the Alliance that the web site has not been kept up to date in all regards. There is an inconsistency between the claims of current Steering Committee members and the Alliance web site which a careful litigant would have investigated.
The lawsuit does make clear that the upcoming debates are being presented to the public in a very misleading way. In my view, this complaint has merit. The question for the court is whether the misrepresentation of the debates is any of Moore's business. It may be insulting to the real neighborhood councils to be misrepresented, but isn't that an issue between the councils and the Alliance?
I suspect that the major benefit of the lawsuit will be to expose to city officials the fact that there is and has been a strong relationship between DONE and the Alliance, something that can get the city into legal trouble when the Alliance acts improperly. There is no disputing the fact that Nelson is a regular participant at Alliance meetings, that Board of Neighborhood Commissioners member Bill Christopher is a regular participant at Alliance meetings, and that public policy discussions that make their way into DONE positions are worked out at Alliance meetings.
These assertions go to support an argument that the Alliance has become a de facto part of the neighborhood council system, that it has become to some extent an arm of city government through the participation of government officials, and that it is therefore obliged to act in the same non-discriminatory fashion that the rest of government observes.
It would have been an interesting argument to see litigated. The complaint filed by Walter Moore seems to take a different approach and it will be interesting to see how Moore argues the case if and when it goes to a hearing.
So far, no information has been forthcoming as to when, if ever, the case will get into a courtroom. Time is passing, and the first debate is scheduled for Feb. 7. There will be more time before the second scheduled debate, which is set for Feb. 28.