Civil Rights, Complaint Filed By Plaintiff
Sandoval, Gerardo
As To Defendant
Direct, Clymer
Baughman, Duane
The Baughman Company
Sutton, James R. As Its Treasurer, No On F
Heneghan, Kevin As Its Assistant Treasure
Trade Lithography, A Business Entity Form Unknown
Loompa, John Its Principal
Kirk Briggs Signs, Inc., A Corporation
Does 1 -500, Inclusive
Summons Issued, Judicial Council Civil Case Cover Sheet Filed
Case Management Conference Scheduled For Mar-25-2005
Proof Of Service Due On Dec-27-2004
Case Management Statement Due On Mar-10-2005
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GERARDO SANDOVAL VS. CLYMER DIRECT et al
001001066219
Instructions:
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Paul H. Melbostad SB¥# 9995]
San Francisco, CA 94109-5494
415/673-5600 FAX:415/673-5606
148 Suctte, Ff, Sunclece
AUY(o
AnunSh for bP ier
Fite DD
San Francisco Secoty < eter curt
OCT 25 2004
SUPERVISOR GERARDO SANDOVAL A Bags 16 otek
CASE MANAC EMENT cos NE ty Sa Berk
saa 2, 5 2005 22h SUMMONS ISSUED
suPERWR couRT OF THE STATE OF CALIFORNIA
CITY AND COUNERROES AN ERANCISCO — UNLIMITED JURISDICTION
GERARDO SANDOVAL,
Plaintiff,
Vv.
CLYMER DIRECT, DUANE BAUGHMAN,
THE BAUGHMAN COMPANY, YESON_
CITIZENSHIP, NO ON F JAMES R. SUTTON,
as its Treasurer, KEVIN HENEGHAN, as its
Assistant Treasurer, TRADE LITHOGRAPHY, a
business entity, form unknown, JOHN LOOMPA,
its principal, KIRK BRIGGS SIGNS, Inc., a
corporation, and DOES 1-500, inclusive,
Defendants.
Plaintiff alleges:
Case No. ie ° -
2
COMPLAINT TO ENJOIN SAturory
VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES
TO OPPOSE OR SUPPORT CANDIDATES,
SAN FRANCISCO CAMPAIGN FINANCE
REFORM AND LOBBYIST ORDINANCES,
AND FOR PENALTIES AND DAMAGES
[Campaign and Governmental Conduct Code
Sections 1.114(c)(1),(3), 1.168(b); 2.10 et. seq.]
1. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendant CLYMER DIRECT, is a business entity, form unknown, doing business in the City and
County of San Francisco, California, as a mail house.
2. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendant DUANE BAUGHMAN is an individual who resides in and is registered, for the current
period, as a Campaign Consultant in the City and County of San Francisco for the SF Republican
Party and Republicans United for SF.
3. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
l.
COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
VAMPAIGN FINANCE REFORM 6 LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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defendant THE BAUGHMAN COMPANY is a business entity, form unknown, doing business in the
City and County of San Francisco, California, that provides graphic design and other services to
produce campaign materials, specifically the materials that are the subject of this action. Defendant
THE BAUGHMAN COMPANY is listed as a creditor of Defendant YES ON CITIZENSHIP, NO
ON F, on its California Form 460 filed with the Ethics Commission. Plaintiff is informed and
believes that Defendants DUANE BAUGHMAN and THE BAUGHMAN COMPANY designed and
prepared the subject mailers with the address “4 Dorman Ave., San Francisco, CA 94124” and a
mailing “Permit No. 11397.”
4. Defendant YES ON CITIZENSHIP, NO ON F isa Committee formed for the purpose of
opposing candidate GERARDO SANDOVAL for District 11 Supervisor and supporting candidate
MYRNA LIM, although the Committee falsely and fraudulently states on its Form 460 that it was
“Primarily Formed” as a “Ballot Measure Committee”. Plaintiff is informed and believes and on that
belief alleges that all of the signs posted and all of the materials distributed by the Committee
including the handout which states that candidate SANDOVAL is similar to right wing Attorney
General John Ashcroft, and the handout which refers to candidate SANDOVAL as an “extremist
Supervisor”, were only posted and distributed in Supervisorial District 11, rather than citywide as
would be expected if the true purpose was to oppose a ballot measure voted on by voters in all eleven
Districts citywide.
5. Plaintiff is informed and believes and on that belief alleges that at all times relevant,
defendant JAMES R. SUTTON (“SUTTON”), is an individual doing business in the City and County
of San Francisco, California, as a Campaign Treasurer. Defendant SUTTON is completely
knowledgeable of all applicable Local and State Statutes governing the subjects of signs, mailers and
literature distributed by hand in opposition to and in support of candidates, as he teaches political law
at Hastings Law School and practices as an attorney specializing in advising candidates and
contributors on how to attempt to evade the applicable laws. SUTTON is listed as the Treasurer on
Form 460 filed with the Ethics Commission on October 21, 2004, for the Committee entitled YES
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ON CITIZENSHIP, NO ON F. Even though SUTTON knows that the Committee was formed with
the primary purpose of supporting and opposing candidates, particularly to urge voters in District 11]
not to vote for GERARDO SANDOVAL for Supervisor in the November 2, 2004, election, and to
vote for candidate MYRNA LIM, he willfully and intentionally checked the box and circle on the
Form for a Committee Primarily formed to oppose a ballot measure, to attempt to avoid compliance
with the $500 contribution limit and other requirements governing committees formed to support or
oppose a candidate. Even though SUTTON is licensed as an attorney in the State of California, when
taking all the relevant actions alleged in this Complaint he was not acting in the capacity of an
attorney, but rather as a Campaign Treasurer or other capacity.
6. Plaintiff is informed and believes and on that belief alleges that at all times relevant,
defendant KEVIN HENEGHAN (“HENEGHAN”), is an individual doing business in the City and
County of San Francisco, California, as an Assistant Campaign Treasurer. HENEGHAN is listed on
Form 460 as the Assistant Treasurer of YES ON CITIZENSHIP, NO ON F. Even though
HENEGHAN is licensed as an attorney in the State of California, when taking all the relevant actions
alleged in this Complaint he was not acting in the capacity of an attorney, but rather as a Campaign
Treasurer or other capacity.
7. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendants JOHN LOOMPA and TRADE LITHOGRAPHY are, respectively, an individual, and
business entity, form unknown, were doing business in the City and County of San Francisco,
California, as a printer. Plaintiff is informed and believes and on that belief alleges that such
defendants printed all of the subject handouts and mailers. The Form 460 of YES ON
CITIZENSHIP, NO ON F lists TRADE LITHOGRAPHY as a payee of the illegal contributions.
Plaintiff is informed and believes and on that belief alleges that, at all times relevant, defendant
JOHN LOOMPA was the principal officer or owner of TRADE LITHOGRAPHY.
8. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendant KIRK BRIGGS SIGNS, Inc. business entity, form unknown, doing business in the City
3.
28114b.doc: COMPLAINT TO ENIJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGESPage 5 10
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and County of San F rancisco, California, as a sign maker. Plaintiff is informed and believes and on
that belief alleges that such defendants printed and posted of subject signs on utility poles displaying
the name of candidate MYRNA LIM. The F orm 460 of YES ON CITIZENSHIP, NO ON F lists the
company as having been paid $18,711.25 out of the illegal contributions.
9. Plaintiff is ignorant of the true names and capacities of the defendants sued herein as
DOES | through 500, and therefore sue these defendants by such fictitious names. Plaintiffs will
amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed
and believe and thereon allege that each of the fictitiously named defendants is responsible in some
manner for the occurrences herein alleged, and that plaintiffs’ injuries as herein alleged were
proximately caused by their conduct.
10. At all times herein mentioned, defendants, and each of them, were the agents and
employees of their co-defendants, and in doing those things hereinafter alleged were acting within the
course and scope of the agency and with the permission and consent of their co-defendants.
11. Plaintiff is informed and believe and thereon allege that each of the named defendants
is responsible in some manner for the occurrences herein alleged, and that each of the defendants has
combined and conspired with the others in committing the violations set forth below and has
proximately caused damage to plaintiff as herein stated.
12. __ Plaintiff'is informed and believe and thereon alleges that each of the defendants has
been and is attempting to corrupt the political process in the City and County of San Francisco by
committing the violations set forth below, particularly to improperly influence public policy decisions
by local officials by threatening those officials with the contribution and expenditure of far greater
amounts, more than ten times, than the laws allow to defeat candidates that do not accede to their
threats, and support candidates who agree to do so.
13. The alleged actions by defendants constitute an illegal scheme by defendants to
deprive both Plaintiff and the citizens of the City and County of San Francisco of their democratic
and First Amendment Rights. Defendants actions are, and if not enjoined immediately, will render
4.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGESPage 6 10
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meaningless the efforts of those citizens of District 11 who volunteer their time on campaigns for
candidates and make contributions in amounts within the legal limits, thus depriving them of their
democratic and First Amendment Rights. If not enjoined immediately defendants will also deprive
the voters of District 11 of the opportunity to have a Supervisor who is not forced to concede to
threats of those capable of making large contributions in excess of the legal contribution limits and
those who solicit such illegal contributions for independent expenditures.
FIRST CAUSE OF ACTION
(VIOLATIONS OF SAN FRANCISCO CAMPAIGN AND GOVERNMENTAL CONDUCT
CODE MULTIPLE VIOLATIONS OF CAMPAIGN FINANCE ORDINANCE $500 PER
COMMITTEE AND AGGREGATE CONTRIBUTION LIMITS OF PROPOSITION O
GOVERNING COMMITTEES PRIMARILY FORMED TO MAKE INDEPENDENT
EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES.)
[$§1.114(c)(1),(3), 1.168(b)]
14. _ Plaintiffs reallege and incorporate the allegations of the above paragraphs to the extent
relevant to this cause of action.
15. San Francisco Campaign and Governmental Conduct Code Sections
1.114(c)(1),(3)state:
(c) LIMITS ON CONTRIBUTIONS TO COMMITTEES.
(1) Per Committee Limit. No person shall make, and no committee treasurer shall
solicit or accept, any contribution which will cause the total amount contributed by such
person to the committee to exceed $500 per calendar year.
(2) Overall Limit. No person shall make, and no committee treasurer shall solicit
or accept, any contribution which will cause the total amount contributed by such person to all
committees to exceed $3000 per calendar year.
(3) Definitions. For purposes of this subsection, "committee" shall mean any
committee making expenditures to support or oppose a candidate, but shall not include
candidates' campaign committees.
SEC. 1.162.entitled INDEPENDENT EXPENDITURES FOR MASS MAILINGS requires
5.
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as follows:
Any person who makes independent expenditures for a mass mailing which support or oppose
any candidate for City elective office shall place the following statement on the mailing in
typeface no smaller than 14 points:Notice to Voters
(Required by City and County of San Francisco)
This mailing is not authorized or approved by any candidate for City and County office or by
any election official.
It is paid for by (name and committee identification number). (address, city, state).
Total cost of this mailing is (amount). (Added by Ord. 71-00, File No. 000358, App.
4/28/2000; renumbered by Proposition O, 1 1/7/2000; amended by Ord. 141-03, File No.
030034, App. 6/27/2003) (Derivation: Former Administrative Code Section 16.510-7; added
by Proposition N, 11/7/95)
16. Each of the alleged expenditures by the Committees and each of the alleged mailers and
handbills was for the purpose of supporting or opposing a candidate, so they were all subject to the
limit of Sections 1.114(c)(1),(3). Each of the alleged mailers was an independent expenditure to
oppose a candidate.
17. Commencing in October 2004, and continuing to the present, each of defendants
caused to be distributed by hand to voters in District 11 written communications/handbills/literature
that expressly advocate the defeat of candidate Supervisor Gerardo Sandoval, to oppose candidate
Supervisor Gerardo Sandoval. The handouts are of the type commonly referred to as “hit pieces”.
Commencing in October 2004, and continuing to the present, defendants DUANE BAUGHMAN,
THE BAUGHMAN COMPANY, YES ON CITIZENSHIP, NO ON F, JAMES R. SUTTON, KEVIN
HENEGHAN, TRADE LITHOGRAPHY, JOHN LOOMPA, KIRK BRIGGS SIGNS,
Inc.(“collectively hereafter referred to as BAUGHMAN Defendants”), caused to be posted signs that
expressly advocate the election of candidate MYRNA LIM, to support candidate MYRNA LIM.
Each of the alleged pieces of literature was paid for by contributions solicited and received by
6.
28114b.doc: ‘ COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGESPage 8 10
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defendants in excess of both the above-referenced $500 and aggregate contribution the above-
referenced contribution limits applying to any committee making expenditures to support or oppose a
candidate.
18. Commencing on or about October 20, 2004, and continuing to the present, on a daily
basis, defendants CLYMER DIRECT, DUANE BAUGHMAN, THE BAUGHMAN COMPANY,
TRADE LITHOGRAPHY, JOHN LOOMPA (“collectively hereafter referred to as the CLYMER
Defendants”),caused to be mailed to voters in District 11 written communications that expressly
advocate the defeat of candidate Supervisor Gerardo Sandoval, to oppose candidate Supervisor
Gerardo Sandoval. The handouts are of the type commonly referred to as “hit pieces”. The mailers
fail to include the required disclaimers of the source of funds for the mailers and were paid for with
contributions in excess of $500. Furthermore, the CLYMER Defendants did not even register as any
type of Committee.
19. In making the expenditures to produce and distributed the alleged literature
defendants, and each of them, wrongfully made expenditures in violation of the San Francisco
Campaign and Governmental Conduct Code, as well as other local and State laws, including the
California Political Reform Acct.
20. As a proximate result of said defendants’ wrongful expenditures and actions plaintiff
has suffered and is continuing to suffer irreparable harm, including, but not limited to, deprivation of
his right to run for office, specifically District 11 Supervisor, without being subjected to literature
opposing his candidacy paid for with illegal contributions and expenditures.
21. As a proximate result of said defendants’ wrongful expenditures and actions plaintiff has
also suffered and is continuing also to suffer both special, out of pocket, and general damages, an
amount to be proven at trial.
22. Defendants’ illegal expenditures and actions were and are oppressive and malicious
with the meaning of Section 3294 of the Civil Code in that they were made and undertaken in
conscious disregard of plaintiff's rights and safety, thereby entitling plaintiff to an award of punitive
7.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
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damages, in an amount to be determined by the court as necessary, commensurate with the size of
defendants assets, in order to punish and make an example of defendants to deter similar wrongful
conduct by others,
WHEREFORE, plaintiffs pray for relief as hereinafter set forth.
SECOND CAUSE OF ACTION
(Violations of Lobbyist Ordinance by failure to register and report expenditures and actions to
influence local legislative action.)
[Campaign and Governmental Conduct Code §§2.110, et. seq.]
23. Plaintiffs reallege and incorporate the allegations of the above paragraphs to the extent
relevant to this cause of action.
24. Alternatively, or in addition, Defendants, CLYMER DIRECT, DUANE
BAUGHMAN, THE BAUGHMAN COMPANY, LOOMPA, and TRADE LITHOGRAPHY, and
each of them, are engaging in lobbying activity as “expenditure lobbyists” within the definition of
the San Francisco Lobbyist Ordinance.
25. Campaign and Governmental Conduct Code Sections 2.100 et. seq., referred to as the
Lobbyist Ordinance, states, in part, as follows:
(j) “Lobbyist services” means services rendered for the purpose of influencing or
attempting to influence local legislative or administrative action, including but not limited to
contacts with officers of the City and County of San Francisco. “Lobbyist services” shall not
include activities described in Subsection (d)(1) of Section 2.105, other than Subsection
(d)(1)(C) of Section 2.105.”
(k) “Local legislative or administrative action” includes, but is not limited to, the drafting,
introduction, consideration, modification, enactment, defeat, approval, veto, granting or denial
by any officer of the City and County of any resolution, motion, appeal, application, petition,
nomination, ordinance, amendment, approval, referral, permit, license or entitlement to use.
“Local legislative or administrative action” does not include by any officer of the City and
County which adjudicates the rights and/or duties of a single person or group of persons, other
8.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGESPage 10 than a proceeding described in Subsection (d)(1)(K) of Section 2.105.”
SEC. 2.110. REGISTRATION OF LOBBYISTS REQUIRED; REGISTRATION,
REREGISTRATION, QUARTERLY REPORTS; FEES; CLIENT AUTHORIZATION;
TERMINATION.
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(a) REGISTRATION OF LOBBYISTS REQUIRED. No person who qualifies as a
contract or business or organization lobbyist shall contact any officer of the City and County,
and no person who qualifies as an expenditure lobbyist shall make payments to influence local
legislative or administrative action, without first registering with the Ethics Commission and
complying with the disclosure requirements imposed by this Chapter.
(b) REGISTRATION REPORTS. At the time of initial registration each filer shall report to
the Ethics Commission the following information:
(1) The name, business address and business phone number of the filer;
(2) Ifthe filer is a contract lobbyist, the filer shall also report the following:
(A) _ Ifthe filer is an entity, the name of each individual who is an owner, partner or officer
of the filer as follows:
(i) If the filer is a sole proprietorship, list the name of the sole proprietor;
(ii) If the filer is a corporation, however organized, list the name of each officer;
(iii) If the filer is a partnership, however organized, and if the partnership has 10 or more
(c) FICTITIOUS PERSONS. No lobbyist shall contact any officer of the City and County
in the name of any fictitious person or in the name of any real person, except with the consent
of such real person.
(d) | EVASION OF OBLIGATIONS. No lobbyist shall attempt to evade the obligations
imposed by this Chapter through indirect efforts or through the use of agents, associates or
employees. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000) (Derivation: Former
Administrative Code Section 16.523; added by Ord. 19-99, App. 2/19/99)
SEC. 2.117. LOBBYING BY CAMPAIGN CONSULTANTS.
9.
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(a) Prohibition. No campaign consultant, individual who has an ownership interest in the
campaign consultant, or an employee of the campaign consultant shall communicate with any
officer of the City and County who is a current or former client of the campaign consultant on
behalf of another person or entity (other than the City and County) in exchange for economic
consideration for the purpose of influencing local legislative or administrative action.
26. In making the expenditures to produce and distributed the alleged literature,
defendants, and each of them, wrongfully made expenditures in excess of $3500 within a three month
period to influence local legislative action in violation of the San Francisco Campaign and
Governmental Conduct Code, as well as other local and State laws, including the California Political
Reform Act.
27. Asa proximate result of said defendants’ wrongful expenditures and actions plaintiff
has suffered and is continuing to suffer irreparable harm, including, but not limited to, deprivation of
his right to run for office, specifically District 11 Supervisor, without being subjected to literature
opposing his candidacy paid for with illegal and unreported expenditures for lobbying activity.
28. As a proximate result of said defendants’ wrongful expenditures and actions plaintiff has
also suffered and is continuing also to suffer both special, out of pocket, and general damages, an
amount to be proven at trial.
29. Defendants’ illegal expenditures and actions were and are oppressive and malicious
with the meaning of Section 3294 of the Civil Code in that they were made and undertaken in
conscious disregard of plaintiff’s rights and safety, thereby entitling plaintiff to an award of punitive
damages, in an amount to be determined by the court as necessary, Commensurate with the size of
defendants assets, in order to punish and make an example of defendants to deter similar wrongful
conduct by others,.
WHEREFORE, plaintiffs pray for relief as hereinafter set forth.
1. For an Order Requiring the Clymer Defendants to register and report as a Committee
primarily formed to oppose a candidate and disclose the source of funding for the mailers.
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2. For an Order Enjoining all Defendants to Cease and Desist soliciting and accepting
contributions in excess of $500.
3. For an Order Enjoining the Clymer Defendants from mailing out any additional such
mailers with the disclaimer required by Section 1.162.
4. Fora temporary, preliminary, and permanent order prohibiting each of DEFENDANTS
from in any way disseminating any materials of any kind, in any way, either mentioning the names of
either candidate Supervisor GERARDO SANDOVAL, or mentioning any other candidate listed on
the ballot for the position of Supervisor of District 11 of the City and County of San Francisco, or
including any image of GERARDO SANDOVAL, or in any other way expressing support for or
opposition to a candidate for an office of the City and County of San Francisco in the November 2,
2004, election.
5. For an Order Enjoining Defendants to comply with the requirements of the Lobbyist
Ordinance;
6. For compensatory damages in an amount to be determined at the time of trial;
7. For forfeiture to the City and County of San Francisco of any remaining amount on
deposit of the contributions in violation of the Ordinance;
8. For attorneys’ fees by statute;
9. For punitive and exemplary damages in an amount to be determined at the time of
trial;
10. For prejudgment and postjudgment interest at the legal rate on these damages;
11, For costs of suit; and,
12. _ For such other and further relief as the court may deem just and proper.
DATED: October 25, 2004.
LMU? 1 ogee”
e
Paul H. Melbostad
Attorney for Plaintiff
GERARDO SANDOVAL
11.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
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CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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CALI
San Francisco Superior Courts
Information Technology Group
Document Scanning Lead Sheet
Oct-25-2004 10:38 am
Case Number: CGC-04-435748
Filing Date: Oct-25-2004 10:28
Juke Box: 001 Image: 01066219
COMPLAINT
GERARDO SANDOVAL VS. CLYMER DIRECT et al
001001066219
Instructions:
Please place this sheet on top of the document to be scanned.
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Paul H. Melbostad SB¥# 9995]
San Francisco, CA 94109-5494
415/673-5600 FAX:415/673-5606
148 Suctte, Ff, Sunclece
AUY(o
AnunSh for bP ier
Fite DD
San Francisco Secoty < eter curt
OCT 25 2004
SUPERVISOR GERARDO SANDOVAL A Bags 16 otek
CASE MANAC EMENT cos NE ty Sa Berk
saa 2, 5 2005 22h SUMMONS ISSUED
suPERWR couRT OF THE STATE OF CALIFORNIA
CITY AND COUNERROES AN ERANCISCO — UNLIMITED JURISDICTION
GERARDO SANDOVAL,
Plaintiff,
Vv.
CLYMER DIRECT, DUANE BAUGHMAN,
THE BAUGHMAN COMPANY, YESON_
CITIZENSHIP, NO ON F JAMES R. SUTTON,
as its Treasurer, KEVIN HENEGHAN, as its
Assistant Treasurer, TRADE LITHOGRAPHY, a
business entity, form unknown, JOHN LOOMPA,
its principal, KIRK BRIGGS SIGNS, Inc., a
corporation, and DOES 1-500, inclusive,
Defendants.
Plaintiff alleges:
Case No. ie ° -
2
COMPLAINT TO ENJOIN SAturory
VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES
TO OPPOSE OR SUPPORT CANDIDATES,
SAN FRANCISCO CAMPAIGN FINANCE
REFORM AND LOBBYIST ORDINANCES,
AND FOR PENALTIES AND DAMAGES
[Campaign and Governmental Conduct Code
Sections 1.114(c)(1),(3), 1.168(b); 2.10 et. seq.]
1. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendant CLYMER DIRECT, is a business entity, form unknown, doing business in the City and
County of San Francisco, California, as a mail house.
2. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendant DUANE BAUGHMAN is an individual who resides in and is registered, for the current
period, as a Campaign Consultant in the City and County of San Francisco for the SF Republican
Party and Republicans United for SF.
3. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
l.
COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
VAMPAIGN FINANCE REFORM 6 LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
28114b.doc:
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defendant THE BAUGHMAN COMPANY is a business entity, form unknown, doing business in the
City and County of San Francisco, California, that provides graphic design and other services to
produce campaign materials, specifically the materials that are the subject of this action. Defendant
THE BAUGHMAN COMPANY is listed as a creditor of Defendant YES ON CITIZENSHIP, NO
ON F, on its California Form 460 filed with the Ethics Commission. Plaintiff is informed and
believes that Defendants DUANE BAUGHMAN and THE BAUGHMAN COMPANY designed and
prepared the subject mailers with the address “4 Dorman Ave., San Francisco, CA 94124” and a
mailing “Permit No. 11397.”
4. Defendant YES ON CITIZENSHIP, NO ON F isa Committee formed for the purpose of
opposing candidate GERARDO SANDOVAL for District 11 Supervisor and supporting candidate
MYRNA LIM, although the Committee falsely and fraudulently states on its Form 460 that it was
“Primarily Formed” as a “Ballot Measure Committee”. Plaintiff is informed and believes and on that
belief alleges that all of the signs posted and all of the materials distributed by the Committee
including the handout which states that candidate SANDOVAL is similar to right wing Attorney
General John Ashcroft, and the handout which refers to candidate SANDOVAL as an “extremist
Supervisor”, were only posted and distributed in Supervisorial District 11, rather than citywide as
would be expected if the true purpose was to oppose a ballot measure voted on by voters in all eleven
Districts citywide.
5. Plaintiff is informed and believes and on that belief alleges that at all times relevant,
defendant JAMES R. SUTTON (“SUTTON”), is an individual doing business in the City and County
of San Francisco, California, as a Campaign Treasurer. Defendant SUTTON is completely
knowledgeable of all applicable Local and State Statutes governing the subjects of signs, mailers and
literature distributed by hand in opposition to and in support of candidates, as he teaches political law
at Hastings Law School and practices as an attorney specializing in advising candidates and
contributors on how to attempt to evade the applicable laws. SUTTON is listed as the Treasurer on
Form 460 filed with the Ethics Commission on October 21, 2004, for the Committee entitled YES
2.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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ON CITIZENSHIP, NO ON F. Even though SUTTON knows that the Committee was formed with
the primary purpose of supporting and opposing candidates, particularly to urge voters in District 11]
not to vote for GERARDO SANDOVAL for Supervisor in the November 2, 2004, election, and to
vote for candidate MYRNA LIM, he willfully and intentionally checked the box and circle on the
Form for a Committee Primarily formed to oppose a ballot measure, to attempt to avoid compliance
with the $500 contribution limit and other requirements governing committees formed to support or
oppose a candidate. Even though SUTTON is licensed as an attorney in the State of California, when
taking all the relevant actions alleged in this Complaint he was not acting in the capacity of an
attorney, but rather as a Campaign Treasurer or other capacity.
6. Plaintiff is informed and believes and on that belief alleges that at all times relevant,
defendant KEVIN HENEGHAN (“HENEGHAN”), is an individual doing business in the City and
County of San Francisco, California, as an Assistant Campaign Treasurer. HENEGHAN is listed on
Form 460 as the Assistant Treasurer of YES ON CITIZENSHIP, NO ON F. Even though
HENEGHAN is licensed as an attorney in the State of California, when taking all the relevant actions
alleged in this Complaint he was not acting in the capacity of an attorney, but rather as a Campaign
Treasurer or other capacity.
7. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendants JOHN LOOMPA and TRADE LITHOGRAPHY are, respectively, an individual, and
business entity, form unknown, were doing business in the City and County of San Francisco,
California, as a printer. Plaintiff is informed and believes and on that belief alleges that such
defendants printed all of the subject handouts and mailers. The Form 460 of YES ON
CITIZENSHIP, NO ON F lists TRADE LITHOGRAPHY as a payee of the illegal contributions.
Plaintiff is informed and believes and on that belief alleges that, at all times relevant, defendant
JOHN LOOMPA was the principal officer or owner of TRADE LITHOGRAPHY.
8. Plaintiff is informed and believes and on that belief alleges that, at all times relevant,
defendant KIRK BRIGGS SIGNS, Inc. business entity, form unknown, doing business in the City
3.
28114b.doc: COMPLAINT TO ENIJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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and County of San F rancisco, California, as a sign maker. Plaintiff is informed and believes and on
that belief alleges that such defendants printed and posted of subject signs on utility poles displaying
the name of candidate MYRNA LIM. The F orm 460 of YES ON CITIZENSHIP, NO ON F lists the
company as having been paid $18,711.25 out of the illegal contributions.
9. Plaintiff is ignorant of the true names and capacities of the defendants sued herein as
DOES | through 500, and therefore sue these defendants by such fictitious names. Plaintiffs will
amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed
and believe and thereon allege that each of the fictitiously named defendants is responsible in some
manner for the occurrences herein alleged, and that plaintiffs’ injuries as herein alleged were
proximately caused by their conduct.
10. At all times herein mentioned, defendants, and each of them, were the agents and
employees of their co-defendants, and in doing those things hereinafter alleged were acting within the
course and scope of the agency and with the permission and consent of their co-defendants.
11. Plaintiff is informed and believe and thereon allege that each of the named defendants
is responsible in some manner for the occurrences herein alleged, and that each of the defendants has
combined and conspired with the others in committing the violations set forth below and has
proximately caused damage to plaintiff as herein stated.
12. __ Plaintiff'is informed and believe and thereon alleges that each of the defendants has
been and is attempting to corrupt the political process in the City and County of San Francisco by
committing the violations set forth below, particularly to improperly influence public policy decisions
by local officials by threatening those officials with the contribution and expenditure of far greater
amounts, more than ten times, than the laws allow to defeat candidates that do not accede to their
threats, and support candidates who agree to do so.
13. The alleged actions by defendants constitute an illegal scheme by defendants to
deprive both Plaintiff and the citizens of the City and County of San Francisco of their democratic
and First Amendment Rights. Defendants actions are, and if not enjoined immediately, will render
4.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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meaningless the efforts of those citizens of District 11 who volunteer their time on campaigns for
candidates and make contributions in amounts within the legal limits, thus depriving them of their
democratic and First Amendment Rights. If not enjoined immediately defendants will also deprive
the voters of District 11 of the opportunity to have a Supervisor who is not forced to concede to
threats of those capable of making large contributions in excess of the legal contribution limits and
those who solicit such illegal contributions for independent expenditures.
FIRST CAUSE OF ACTION
(VIOLATIONS OF SAN FRANCISCO CAMPAIGN AND GOVERNMENTAL CONDUCT
CODE MULTIPLE VIOLATIONS OF CAMPAIGN FINANCE ORDINANCE $500 PER
COMMITTEE AND AGGREGATE CONTRIBUTION LIMITS OF PROPOSITION O
GOVERNING COMMITTEES PRIMARILY FORMED TO MAKE INDEPENDENT
EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES.)
[$§1.114(c)(1),(3), 1.168(b)]
14. _ Plaintiffs reallege and incorporate the allegations of the above paragraphs to the extent
relevant to this cause of action.
15. San Francisco Campaign and Governmental Conduct Code Sections
1.114(c)(1),(3)state:
(c) LIMITS ON CONTRIBUTIONS TO COMMITTEES.
(1) Per Committee Limit. No person shall make, and no committee treasurer shall
solicit or accept, any contribution which will cause the total amount contributed by such
person to the committee to exceed $500 per calendar year.
(2) Overall Limit. No person shall make, and no committee treasurer shall solicit
or accept, any contribution which will cause the total amount contributed by such person to all
committees to exceed $3000 per calendar year.
(3) Definitions. For purposes of this subsection, "committee" shall mean any
committee making expenditures to support or oppose a candidate, but shall not include
candidates' campaign committees.
SEC. 1.162.entitled INDEPENDENT EXPENDITURES FOR MASS MAILINGS requires
5.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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as follows:
Any person who makes independent expenditures for a mass mailing which support or oppose
any candidate for City elective office shall place the following statement on the mailing in
typeface no smaller than 14 points:Notice to Voters
(Required by City and County of San Francisco)
This mailing is not authorized or approved by any candidate for City and County office or by
any election official.
It is paid for by (name and committee identification number). (address, city, state).
Total cost of this mailing is (amount). (Added by Ord. 71-00, File No. 000358, App.
4/28/2000; renumbered by Proposition O, 1 1/7/2000; amended by Ord. 141-03, File No.
030034, App. 6/27/2003) (Derivation: Former Administrative Code Section 16.510-7; added
by Proposition N, 11/7/95)
16. Each of the alleged expenditures by the Committees and each of the alleged mailers and
handbills was for the purpose of supporting or opposing a candidate, so they were all subject to the
limit of Sections 1.114(c)(1),(3). Each of the alleged mailers was an independent expenditure to
oppose a candidate.
17. Commencing in October 2004, and continuing to the present, each of defendants
caused to be distributed by hand to voters in District 11 written communications/handbills/literature
that expressly advocate the defeat of candidate Supervisor Gerardo Sandoval, to oppose candidate
Supervisor Gerardo Sandoval. The handouts are of the type commonly referred to as “hit pieces”.
Commencing in October 2004, and continuing to the present, defendants DUANE BAUGHMAN,
THE BAUGHMAN COMPANY, YES ON CITIZENSHIP, NO ON F, JAMES R. SUTTON, KEVIN
HENEGHAN, TRADE LITHOGRAPHY, JOHN LOOMPA, KIRK BRIGGS SIGNS,
Inc.(“collectively hereafter referred to as BAUGHMAN Defendants”), caused to be posted signs that
expressly advocate the election of candidate MYRNA LIM, to support candidate MYRNA LIM.
Each of the alleged pieces of literature was paid for by contributions solicited and received by
6.
28114b.doc: ‘ COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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defendants in excess of both the above-referenced $500 and aggregate contribution the above-
referenced contribution limits applying to any committee making expenditures to support or oppose a
candidate.
18. Commencing on or about October 20, 2004, and continuing to the present, on a daily
basis, defendants CLYMER DIRECT, DUANE BAUGHMAN, THE BAUGHMAN COMPANY,
TRADE LITHOGRAPHY, JOHN LOOMPA (“collectively hereafter referred to as the CLYMER
Defendants”),caused to be mailed to voters in District 11 written communications that expressly
advocate the defeat of candidate Supervisor Gerardo Sandoval, to oppose candidate Supervisor
Gerardo Sandoval. The handouts are of the type commonly referred to as “hit pieces”. The mailers
fail to include the required disclaimers of the source of funds for the mailers and were paid for with
contributions in excess of $500. Furthermore, the CLYMER Defendants did not even register as any
type of Committee.
19. In making the expenditures to produce and distributed the alleged literature
defendants, and each of them, wrongfully made expenditures in violation of the San Francisco
Campaign and Governmental Conduct Code, as well as other local and State laws, including the
California Political Reform Acct.
20. As a proximate result of said defendants’ wrongful expenditures and actions plaintiff
has suffered and is continuing to suffer irreparable harm, including, but not limited to, deprivation of
his right to run for office, specifically District 11 Supervisor, without being subjected to literature
opposing his candidacy paid for with illegal contributions and expenditures.
21. As a proximate result of said defendants’ wrongful expenditures and actions plaintiff has
also suffered and is continuing also to suffer both special, out of pocket, and general damages, an
amount to be proven at trial.
22. Defendants’ illegal expenditures and actions were and are oppressive and malicious
with the meaning of Section 3294 of the Civil Code in that they were made and undertaken in
conscious disregard of plaintiff's rights and safety, thereby entitling plaintiff to an award of punitive
7.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES) & FOR PENALTIES & DAMAVEN
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damages, in an amount to be determined by the court as necessary, commensurate with the size of
defendants assets, in order to punish and make an example of defendants to deter similar wrongful
conduct by others,
WHEREFORE, plaintiffs pray for relief as hereinafter set forth.
SECOND CAUSE OF ACTION
(Violations of Lobbyist Ordinance by failure to register and report expenditures and actions to
influence local legislative action.)
[Campaign and Governmental Conduct Code §§2.110, et. seq.]
23. Plaintiffs reallege and incorporate the allegations of the above paragraphs to the extent
relevant to this cause of action.
24. Alternatively, or in addition, Defendants, CLYMER DIRECT, DUANE
BAUGHMAN, THE BAUGHMAN COMPANY, LOOMPA, and TRADE LITHOGRAPHY, and
each of them, are engaging in lobbying activity as “expenditure lobbyists” within the definition of
the San Francisco Lobbyist Ordinance.
25. Campaign and Governmental Conduct Code Sections 2.100 et. seq., referred to as the
Lobbyist Ordinance, states, in part, as follows:
(j) “Lobbyist services” means services rendered for the purpose of influencing or
attempting to influence local legislative or administrative action, including but not limited to
contacts with officers of the City and County of San Francisco. “Lobbyist services” shall not
include activities described in Subsection (d)(1) of Section 2.105, other than Subsection
(d)(1)(C) of Section 2.105.”
(k) “Local legislative or administrative action” includes, but is not limited to, the drafting,
introduction, consideration, modification, enactment, defeat, approval, veto, granting or denial
by any officer of the City and County of any resolution, motion, appeal, application, petition,
nomination, ordinance, amendment, approval, referral, permit, license or entitlement to use.
“Local legislative or administrative action” does not include by any officer of the City and
County which adjudicates the rights and/or duties of a single person or group of persons, other
8.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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than a proceeding described in Subsection (d)(1)(K) of Section 2.105.”
SEC. 2.110. REGISTRATION OF LOBBYISTS REQUIRED; REGISTRATION,
REREGISTRATION, QUARTERLY REPORTS; FEES; CLIENT AUTHORIZATION;
TERMINATION.
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(a) REGISTRATION OF LOBBYISTS REQUIRED. No person who qualifies as a
contract or business or organization lobbyist shall contact any officer of the City and County,
and no person who qualifies as an expenditure lobbyist shall make payments to influence local
legislative or administrative action, without first registering with the Ethics Commission and
complying with the disclosure requirements imposed by this Chapter.
(b) REGISTRATION REPORTS. At the time of initial registration each filer shall report to
the Ethics Commission the following information:
(1) The name, business address and business phone number of the filer;
(2) Ifthe filer is a contract lobbyist, the filer shall also report the following:
(A) _ Ifthe filer is an entity, the name of each individual who is an owner, partner or officer
of the filer as follows:
(i) If the filer is a sole proprietorship, list the name of the sole proprietor;
(ii) If the filer is a corporation, however organized, list the name of each officer;
(iii) If the filer is a partnership, however organized, and if the partnership has 10 or more
(c) FICTITIOUS PERSONS. No lobbyist shall contact any officer of the City and County
in the name of any fictitious person or in the name of any real person, except with the consent
of such real person.
(d) | EVASION OF OBLIGATIONS. No lobbyist shall attempt to evade the obligations
imposed by this Chapter through indirect efforts or through the use of agents, associates or
employees. (Added by Ord. 71-00, File No. 000358, App. 4/28/2000) (Derivation: Former
Administrative Code Section 16.523; added by Ord. 19-99, App. 2/19/99)
SEC. 2.117. LOBBYING BY CAMPAIGN CONSULTANTS.
9.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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(a) Prohibition. No campaign consultant, individual who has an ownership interest in the
campaign consultant, or an employee of the campaign consultant shall communicate with any
officer of the City and County who is a current or former client of the campaign consultant on
behalf of another person or entity (other than the City and County) in exchange for economic
consideration for the purpose of influencing local legislative or administrative action.
26. In making the expenditures to produce and distributed the alleged literature,
defendants, and each of them, wrongfully made expenditures in excess of $3500 within a three month
period to influence local legislative action in violation of the San Francisco Campaign and
Governmental Conduct Code, as well as other local and State laws, including the California Political
Reform Act.
27. Asa proximate result of said defendants’ wrongful expenditures and actions plaintiff
has suffered and is continuing to suffer irreparable harm, including, but not limited to, deprivation of
his right to run for office, specifically District 11 Supervisor, without being subjected to literature
opposing his candidacy paid for with illegal and unreported expenditures for lobbying activity.
28. As a proximate result of said defendants’ wrongful expenditures and actions plaintiff has
also suffered and is continuing also to suffer both special, out of pocket, and general damages, an
amount to be proven at trial.
29. Defendants’ illegal expenditures and actions were and are oppressive and malicious
with the meaning of Section 3294 of the Civil Code in that they were made and undertaken in
conscious disregard of plaintiff’s rights and safety, thereby entitling plaintiff to an award of punitive
damages, in an amount to be determined by the court as necessary, Commensurate with the size of
defendants assets, in order to punish and make an example of defendants to deter similar wrongful
conduct by others,.
WHEREFORE, plaintiffs pray for relief as hereinafter set forth.
1. For an Order Requiring the Clymer Defendants to register and report as a Committee
primarily formed to oppose a candidate and disclose the source of funding for the mailers.
10.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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2. For an Order Enjoining all Defendants to Cease and Desist soliciting and accepting
contributions in excess of $500.
3. For an Order Enjoining the Clymer Defendants from mailing out any additional such
mailers with the disclaimer required by Section 1.162.
4. Fora temporary, preliminary, and permanent order prohibiting each of DEFENDANTS
from in any way disseminating any materials of any kind, in any way, either mentioning the names of
either candidate Supervisor GERARDO SANDOVAL, or mentioning any other candidate listed on
the ballot for the position of Supervisor of District 11 of the City and County of San Francisco, or
including any image of GERARDO SANDOVAL, or in any other way expressing support for or
opposition to a candidate for an office of the City and County of San Francisco in the November 2,
2004, election.
5. For an Order Enjoining Defendants to comply with the requirements of the Lobbyist
Ordinance;
6. For compensatory damages in an amount to be determined at the time of trial;
7. For forfeiture to the City and County of San Francisco of any remaining amount on
deposit of the contributions in violation of the Ordinance;
8. For attorneys’ fees by statute;
9. For punitive and exemplary damages in an amount to be determined at the time of
trial;
10. For prejudgment and postjudgment interest at the legal rate on these damages;
11, For costs of suit; and,
12. _ For such other and further relief as the court may deem just and proper.
DATED: October 25, 2004.
LMU? 1 ogee”
e
Paul H. Melbostad
Attorney for Plaintiff
GERARDO SANDOVAL
11.
28114b.doc: COMPLAINT TO ENJOIN STATUTORY VIOLATIONS OF STATUTES LIMITING
CONTRIBUTIONS FOR EXPENDITURES TO OPPOSE OR SUPPORT CANDIDATES, SF
CAMPAIGN FINANCE REFORM & LOBBYIST ORDINANCES, & FOR PENALTIES & DAMAGES
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