Posted on November 16, 2009

Jackpot: Lawyers Earn Fees From Law They Wrote

Michael R. Blood, Comcast News, November 15, 2009

Every lawsuit filed or even threatened under a California law aimed at electing more minorities to local offices–and all of the roughly $4.3 million from settlements so far–can be traced to just two people: a pair of attorneys who worked together writing the statute, The Associated Press has found.

The law makes it easier for lawyers to sue and win financial judgments in cases arising from claims that minorities effectively were shut out of local elections, while shielding attorneys from liability if the claims are tossed out.

The law was drafted mainly by Seattle law professor Joaquin Avila, with advice from lawyers including Robert Rubin, legal director for the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. Avila, Rubin’s committee and lawyers working with them have collected or billed local governments about $4.3 million in three cases that settled, and could reap more from two pending lawsuits.

That’s only a fraction of what might come. Dozens of cities and school boards have been warned they could be sued under the 2002 California Voting Rights Act.

All the cases have been initiated by Rubin’s committee or Avila, who also is a member of the lawyers’ group, according to an Associated Press review of legal documents, correspondence and legislative records, and interviews with lawyers, school and government officials, current and former legislators and voting-rights experts.

There is nothing illegal about the lawyers profiting from a law they authored and state lawmakers approved. {snip}

Avila said the complexity of the litigation and the fact few attorneys are experts in voting rights have limited the number involved so far.


Avila and Rubin say their roles in crafting the law shouldn’t overshadow its importance and the need to use lawsuits and threats to end years of injustice at the polls. {snip}

“It’s a money grab,” charged John Stafford, superintendent of the Madera Unified School District that was slapped with a $1.2 million attorneys’ bill even though it never contested a lawsuit.

The California statute targets commonly used “at-large” elections–those in which candidates run citywide or across an entire school district. Avila said that method can result in discrimination because whatever group constitutes the majority of voters can dominate the ballot box and block minorities from winning representation. As a remedy, the law empowers state courts to create smaller election districts favoring minority candidates.

Officials in several California communities said they never heard complaints of voter discrimination until the lawyers stepped forward. In one case, the Tulare Local Healthcare District, now known as Tulare Regional Medical Center, was sued even though its five-member governing board is a rainbow of diversity–two emigres from India, a Hispanic, a black and a white. The lawsuit argues Hispanics, who make up about a third of local voters, have been shortchanged.

That case could go to trial as early as January and is being closely watched by communities around the state. If the law is upheld, it could lead to a massive recasting of local election district boundaries, or more lawsuits.

Critics like Stafford see themselves as railroaded by lawyers armed with a law that’s flawed and unnecessary. They say even if there’s no discrimination, cash-strapped communities see little choice but to settle, given the risks of costly litigation and unwelcome publicity that comes with it.


Attorney Marguerite Mary Leoni represented the Hanford Joint Union High School District in a lawsuit the community settled for about $100,000, which it saw as cheaper than a court fight.

“It’s a baffling law,” she said. “I’m not quite sure it does anything to remedy discrimination.”

Avila and Rubin dispute that, saying the law ensures minority voices are heard on election day.

Avila said the provision under which plaintiffs’ attorneys can collect fees, expenses and expert witness costs, but not pay them if they lose, is a needed incentive for lawyers to take on cases.

Avila, who bills at $725 an hour, wouldn’t disclose his earnings from the lawsuits. Though he drafted “probably the whole” law, “I don’t think that should preclude me from enforcement,” Avila said.

Rubin is paid a salary by the committee and can bill his legal work at $700 an hour.


But a study released by the Latino Issues Forum in 2007 that found dozens of school districts with a majority of Hispanic students had few, if any, Latino board members.

“When you look at the local elected leadership, most of it is still white,” said Avila, who teaches at Seattle University School of Law.


Rubin concedes breaking up at-large elections doesn’t guarantee more minorities immediately will be elected. What can be expected, he said, is a trend toward more diversity over time.

“Just because an African-American was elected president certainly doesn’t mean that racial discrimination has sunseted, just like Bill Cosby having his own TV show didn’t bring the end of racial discrimination,” Rubin said.

“There’s still much work to be done.”