Proponent defends ‘3 Californias’ initiative against bid to remove it from the ballot

Venture capitalist Tim Draper is representing himself against an effort to persuade the state Supreme Court to throw his Three Californias initiative off the fall ballot.

The high court sought briefs concerning a lawsuit seeking to block the initiative. Justices will likely discuss scheduling the case at its regular Wednesday conference. Planning and Conservation League v. Padilla, S249859 (Cal. Sup. Ct., filed July 9, 2018).

"I am presently self-represented," Draper states on the second page of a 15-page letter dated July 13. The letter was submitted in response to the court's demand for a reply brief due on that date. Draper is not an attorney.

Neither the letter nor the California Supreme Court's web page on the case list an attorney of record for Draper's initiative.

According to campaign disclosures filed in April, Draper paid $2,542 last October to Bell, McAndrews & Hiltachk LLP, a Sacramento political law firm that generally works for Republicans.

A representative from the firm said the payments were for campaign compliance work. Campaign disclosures for the Citizens for Cal 3 -- Yes on Prop. 9 committee list an email address at the firm.

A representative of the 3 Cal campaign declined to comment for this story. Campaign disclosures also show the committee has received $1,220,000 in contributions, all of it from Draper.

"Obviously, he had a lawyer somewhere who helped him draft the initiative and has been giving him advice up until now," said Carlyle W. Hall Jr., the lead attorney for the Planning and Conservation League, which filed the complaint.

In his letter, Draper argues the court should dismiss the environmental group's demands to remove Proposition 9 from the fall ballot. He claims the timing of the case is unfair to his side and argues he was not properly served with the lawsuit.

"This lawsuit could have been brought weeks or even months ago," Draper wrote. "Instead, I have been given just a day or two to respond to a complex, multi-faceted attack on my constitutional right to initiative."

Draper went on to invoke the doctrine of laches, asserting the plaintiffs engaged in "unreasonable delay" before filing the case. He then claimed it was not clear Proposition 9 violates the state or federal constitutions and the initiative is not subject to pre-election review.

This is, in part, because passage of Proposition 9 "is just one step in a multi-step process that may or may not result" in the partitioning of the state, he added. "These claims are better left for resolution after the election if Proposition 9 passes."

He also rejected the idea that Proposition 9 should have been filed as a constitutional initiative, noting, "The result would be nullification of the California Constitution, not its 'revision.'"

Draper submitted about 600,000 signatures to the California Secretary of State's office on April 19. He then argues "petitioner dragged its feet" for up to two months before filing the complaint on July 9.

Hall, a partner with the Law Offices of Carlyle W. Hall Jr. in Los Angeles, filed his response brief to Draper's letter on Monday. "In his preliminary opposition, Proposition 9's proponent, Timothy Draper, describes Proposition 9 as a 'legislative battering ram' that, if passed, would 'nullify' the existing state Constitution and 'wind down the prior state's assets and provide for succession,'" Hall wrote. "Proponent thereby confirms petitioner's basic contention: this is a straightforward case about a vastly overreaching proposed initiative statute that should be stricken from the November 2018 ballot."

"The measure is clearly invalid on its face; there is no need to develop a record," he added.

Hall also argued the court had a similar window to decide Senate v. Jones, 21 Cal. 4th 1142 (1999). It opted to throw Proposition 24, an initiative that would have limited legislative salaries, off the ballot.

The secretary of state must send ballot materials to the printer by Aug. 13. Besides ruling for one side or the other, the court could opt to move Proposition 9 to the 2020 ballot in order to allow more time to rule on the merits.