Gates Upheld in Pamphlet Dispute : High Court Bars Allegedly False Statements by Opponent

Sheriff Brad Gates won a major victory Thursday when the state Supreme Court upheld a lower court decision that barred allegedly false statements about Gates by one of his opponents in the June 3 election from appearing in a handbook mailed to all county voters.

Supreme Court clerks relayed the decision to lawyers for Gates and his opponent, Sheriff’s Sgt. Linda Lea Calligan, at 6 p.m., six hours after the official deadline by which materials for the voters’ pamphlet had to get to the printers.

The registrar of voters, Al Olson, said Thursday night that after checking with county counsel he contacted the printer “and told them to just stop whatever they’re doing.”

“Tomorrow first thing we’ll get together with the printer on new copy which deletes certain parts of Calligan’s (ballot) statement,” Olson said.

The dispute over the controversial language in the voters’ pamphlet has sparked political fireworks between Gates and Calligan. But it also raised complex issues of government censorship and free speech, according to constitutional law experts.

Gates claimed that he had the right to challenge Calligan’s ballot statement according to a 1983 state law permitting courts to remove “false and misleading” language from voter handbooks. But Calligan’s attorneys said the law was unconstitutional because it denied her the right of freedom of speech.

Lawyers for both sides said they are unsure what the Supreme Court’s ruling actually means, but Olson said he is going to give the county’s Northern California printing firm the order to put out an amended Calligan statement.

The issue surfaced on April 8 when Superior Court Judge Judith M. Ryan, after hearing Gates’ legal challenge, ruled that some of Calligan’s statements about Gates were “false and misleading” and could not be contained in the voters’ pamphlet.

The statements dealt with Gates’ contempt conviction for having too many prisoners in the County Jail and his ownership of property that, Gates said, became a bar and restaurant only after he sold his interest in the establishment.

However, the tables turned when an appeals court blocked Ryan’s order, at the request of Calligan’s attorneys. The decision meant that Calligan’s original statements could be mailed to voters, and the court would hold a June 18 hearing on the matter.

Late Thursday, the Supreme Court ordered the appeals court to hear the case but reinstated the lower court’s ruling, once again barring the printing of Calligan’s statements.

John DiCaro, one of Gates’ attorneys, said the high court implied that the appellate court should not be too concerned with constitutional issues--which prevented that court from reaching a speedy decision earlier this week--but “should just decide the case.”

Uncharted Legal Waters

However, Calligan’s attorney, William Yacobozzi Jr., vowed to fight the latest ruling and said he will ask the appellate court today to temporarily halt the printing until a hearing can be held on the matter, possibly Monday.

Both sides agreed that the case had brought them into uncharted legal waters.

At issue is a law that requires the voters’ pamphlets to be open to public view 10 days before being sent to the printers. It also allows a judge to force material “to be amended or deleted” from the pamphlet if it is found to be “false, misleading or inconsistent” with the law.

The 8 1/2-by-11-inch pamphlet is mailed to each registered voter in the county, listing the names of candidates and the offices they seek. For a fee--which is determined after the printing--an office seeker can also include a statement of 200 to 400 words.

In arguing against Gates’ legal challenge, Yacobozzi and his colleague, Leland D. Sterling, contended that the 1983 state law was unconstitutional. They said it was “preposterous” to have a law allowing a candidate’s statements about a public official erased from a pamphlet sent to the voters when the First Amendment guarantees free speech.

System of Licensing

“In 1986, we should be far removed from the licensing system of 17th-Century England, when nothing to be published was published without prior approval of either the crown or the church,” her lawyers said.

” . . . Should the statement be censored, should it not go out to be properly heard and tested and debated by the voters,” the court will have stopped a process that would have “engendered debate, produced knowledge and contributed to the public welfare by producing an informed electorate,” the attorneys said in court papers.

However, some legal experts think that some government censorship of ballot language is permissible.

Robert H. Cole, a specialist in First Amendment issues and professor at the UC Berkeley Law School, noted that there is no rule barring an injunction against speech.

“Here what you’ve got is the state publishing the pamphlet itself,” Cole said. “I would suspect that the state has an interest in seeing that the pamphlet is within the bounds of accuracy.”

‘Strong Enough Interest’

Although Cole said he is not familiar with the specific election law or the Gates-Calligan battle, his reasoning on the issue reflected arguments used by Gates’ lawyers.

“The general drift is that the government can get an injunction when it has a strong enough interest and if the injunction zeroes in on what is . . . harmful,” Cole said. In this case, because the law says “any voter” can seek an injunction, it was Gates who brought the lawsuit.

“I would think when government sponsors a pamphlet and people rely on it, and it has (erroneous information) that is harmful unless you can rebut it, then you must have a chance to reply, or you have some kind of censorship, and the latter is less desirable,” Cole said.

Gates’ lawyers stressed that they were not focusing on “Calligan’s right to disseminate false and misleading information in her campaign, by whatever other means she can find--mail, newspapers or from the rooftops.”

But they said that they did protest the inclusion of allegedly erroneous claims in an official document--mailed with postage paid by the taxpayers--that would violate the constitutional guarantee of a free and fair election.

Instituted 10-Day Period

The author of the 1983 law, Assemblyman Dominic L. Cortese (D-San Jose), said Thursday that the measure replaced a previous law struck down by the California Supreme Court.

He said the new law instituted the 10-day examination period but also forced a voter to provide “clear and convincing” proof that the statements were false, rather than leaving it up to the registrar of voters to determine if language was obscene, profane or libelous.

Without the 10-day period, Cortese said, a candidate had no way to reply to an opponent’s statement in a voters’ pamphlet and would “be hit by it” when it was mailed to voters.

“I mean it’s just common knowledge that this thing takes place,” that candidates make charges of dubious merit about opponents, “and there had been in the past numerous lawsuits filed as a result of this problem,” Cortese said.

He said the law “probably eliminated most of that. This (the Orange County case) is the first case that I’ve heard of since the bill became law.”