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Lawsuit against city moves forward with request to suspend laws

SAN DIEGO _ Former San Diego City Council candidate Phil Thalheimer’s attorney made his case at a hearing to temporarily suspend five local campaign laws until a decision is concluded in Thalheimer’s lawsuit against the City of San Diego.

The lawsuit — which was filed in December by Thalheimer, John Nienstedt and the San Diego chapters of Associated Builders & Contractors, the Lincoln Club and the Republican Party against the City of San Diego — claims that local laws have violated First Amendment rights and asks that a preliminary injunction be ordered until a decision is reached as to the validity of the laws.

After nearly two hours of debate over San Diego’s campaign laws, Federal Court Judge Irma E. Gonzalez said Monday the injunction would be considered and a written order would be made prior to Feb. 22 when the city intends to issue a motion to dismiss the case.

The five San Diego laws being questioned by the plaintiffs are: the $500 per individual limitation per candidate; the $500 individual contribution limit to committees; the prohibition on contributions from corporations, partnerships, unions and non profits; the prohibition on a candidate raising money more than 12 months before the election; and the ban on accepting contributions that are not drawn against a checking account or credit card belonging to an individual.

Joe La Rue — an associate with Bopp, Coleson and Bostrom and counsel with James Bopp Jr. — presented the plaintiffs’ arguments and contested that the case would likely succeed based on merit if three questions are answered successfully: Is there First Amendment activity that the plaintiffs want to engage in? Does the law keep the plaintiffs from engaging in First Amendment activity? Can the city justify those laws in a constitutionally permissible way?

“To be frank, it’s really hard to challenge these types of laws and most candidates will not challenge these laws because they don’t want to paint themselves as though they are trying pull a fast one on the government, when really they are just trying to exercise their First Amendment rights,” La Rue said.

However, La Rue said, because of such laws, Thalheimer cannot even spend his own money to publicly discuss that he is considering another run for council because the city prohibits him from doing so more than 12 months prior to the election date. Thalheimer has indicated in the complaint that he is “possibly” considering another run at office, although no time table for his election has been set.

Because of that argument though, attorneys representing the city claim that Thalheimer cannot file a lawsuit, and will ask the court to dismiss his case on Feb. 22 and also ask the court to strike certain allegations in the complaint.

“We believe that Thalheimer does not have standing as a plaintiff in the case, meaning that his desire to ‘maybe’ run doesn’t meet the legal standards,” said the Dick Semerdjian of Schwartz Semerdjian Haile Ballard & Cauley LLP who is defending the city, alongside Loyola Law professor Richard L. Hasen. “The lawsuit is essentially based on speculation, hypotheticals and theories.”

Semerdjian and his co-counselor went on to say that the laws in question abide by constitutional rights. The two went on to argue that the laws are enacted to “preserve voter confidence” and “prevent corruption or the appearance of corruption and to maintain the integrity of the electoral process.”

“The government has an interest in ensuring to the voters that there is not corruption,” Semerdjian said. “I’m optimistic that, based on the arguments, the plaintiffs did not meet the standards for the court to issue a preliminary injunction.”

Also, in the city’s defense, Hasen told Gonzalez that if a preliminary injunction were issued in 2010, it would disrupt this year’s elections.

Despite the possibility of Gonzalez dismissing the request, both Semerdjian and La Roe agree that the case will likely go to trial. La Rue said a timeframe of completion of the trial is up in the air as most “district court judges could do whatever they want to do in terms of a time table.”

According to Stacey Fulhorst, executive director of the Ethics Commission, two of the laws in question have changed since its inception in 2001. The contribution limit was $250 and the contributions from organizations had been prohibited since 1974.

Additionally, in 2004 and with the recommendation of the Ethics Commission, the City Council altered the aggregate contribution limit an individual can make to $500. The fourth law in question, regarding the time period a candidate can raise campaign money, was proposed by the Ethics Commission.

Thalheimer is a local businessman who ran in 2008 against now Councilmember Sherri Lightner for the District 1 seat.

Hoa Quach is the political editor for the San Diego News Network. Follow her on Twitter or add her on Facebook.