Two separate yet similar lawsuits against Calif. AG Harris: One wins, one loses

Kerrie Hatcher Jul. 5, 2016, 3:37pm


WASHINGTON (Legal Newsline) - Two Washington, D.C.-area organizations with separate lawsuits against California Attorney General and U.S. Senate-hopeful Kamala Harris over the same issue reached different outcomes.

The Center for Competitive Politics (CCP) and Americans for Prosperity (AFP) alleged that Harris' request to access each organization's donor information violated the First and Fourteenth Amendments of the U.S. Constitution.

But CCP never even made it to trial, while AFP not only went to court, but won its case.

"The California Attorney General has been requesting data from charitable organizations for years, including organizations’ federal tax forms (Form 990) and related schedules (at issue here, Schedule B). The request comes as a part of the AG’s oversight of not-for-profits that seek donations from California residents," Nicole Kardell, a government investigations lawyer with Ifrah Law, told Legal Newsline.

"CCP, AFP, and other charitable organizations have, for years, filed their tax forms with the state with donor information redacted. And in turn the AG has, for years, accepted this. But the AG recently changed course insisting on access to the full Schedule B donor information," Kardell said.

Under most circumstances, the First Amendment protects donor information against disclosure; an important right for nonprofits seeking to keep sensitive financial information confidential.

Likewise, the Fourteenth Amendment protects the right of individuals to be treated in the same way as other individuals in similar situations. This knowledge brings important questions to the public mind in reference to the boundaries of governmental control and why AG Harris would request protected information.

Kardell said AFP demonstrated at trial that the vitriol experienced by members who disagree with a group's message has ranged from physical assaults to death threats.

"The primary concern is that the Attorney General’s request will have a chilling effect on individuals’ free association with these groups," she said.

AFP was also able to show that other members or prospective members may fear that they will face the same if their association with the group is disclosed. 

"That fear may prevent them from exercising an otherwise Constitutionally-protected right," Kardell said. "Federal courts use a test to determine whether disclosure of information to a state authority would lead to a chilling effect in violation of freedom of association.

"In that test, a court will weigh the value of the information to an important government interest and then weigh that value against the threat of chilling individuals’ rights to freely associate."

Harris couldn't show that the donor information is used to further the state's enforcement efforts, and so the balance tips in favor of organizations, especially those that can show their members are subject to harassment.

"In both the CCP and AFP cases, the AG argued that reviewing donor information is important to its task of rooting out fraud and abuse, that reviewing the information will help the office flag irregularities. The problem is, no one from the Attorney General’s office has been able to substantiate this claim that donor information is important to enforcement," Kardell said.

"In fact, investigators and state attorneys who took the stand in the AFP case admitted that they didn’t use donor information in their investigations."

The outcomes of the lawsuits indicate that there was either a particular difference presented in the organization's cases or that the rights of the two companies were protected differently.

"In both the CCP and AFP cases, the AG argued that reviewing donor information is important to its task of rooting out fraud and abuse, that reviewing the information will help the office flag irregularities," Kardell said.

"The problem is, no one from the Attorney General’s Office has been able to substantiate this claim that donor information is important to enforcement. In fact, investigators and state attorneys who took the stand in the AFP case admitted that they didn’t use donor information in their investigations."

However, CCP "shot too high" in its argument, Kardell said. It sought a general declaration that Harris' actions were unconstitutional as to everyone, not just CCP.

"This meant that CCP had a higher threshold to meet in its case than did AFP," she said. "AFP only needed to show the detrimental impact of the disclosure on its organization. CCP needed to make a case for how the disclosure request was detrimental to most, if not all, organizations subject to the requirement."

So the ruling in the AFP case only applied to that organization, but it serves as legal precedent that other organizations could use to contest Harris' disclosure requests.

"A subsequent plaintiff’s case would be bolstered by the court’s ruling in AFP. Of course, CCP would still need to show at trial evidence of harassment and intimidation based upon association with the group, as AFP successfully did in its case," Kardell said.

"I should highlight, though, that the AFP ruling effectively debunked the Attorney General’s argument in support of the disclosure requests. A subsequent court – or a higher court – could conceivably factor in the findings from the AFP case and more broadly rule the disclosure requests unconstitutional. This is unlikely as courts are reluctant to make sweeping decisions. But there are blue moons."

Organizations in this Story

Center for Competitive Politics
124 South West Street
Alexandria, IN 46001

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