GOP aims to stop Berkeley dean’s amicus brief in presidential tax returns case

An unusual side dispute has arisen in the state Republican Party's case seeking to stop a California law demanding presidential tax returns: an effort to prevent UC Berkeley School of Law Dean Erwin Chemerinsky from filing an amicus brief.

Chemerinsky's brief was filed Friday by a legal team led by David Boies, a partner at Boies Schiller Flexner LLP, in Patterson v. Padilla, S257302 (Cal. Sup. Ct., filed Aug. 8, 2019).

But according to attorneys for California Republican Party Chair Jessica Millan Patterson, the brief must be barred because these distinguished lawyers made a rookie mistake: They were late.

"It said noon," Thomas W. Hiltachk, a partner with the party's law firm, Bell, McAndrews & Hiltachk LLP in Sacramento. "I assume the court picked noon for a reason. Noon is noon, 1:30 is 1:30."

According to a reply and objection filed by Hiltachk on Monday, the brief "was not timely served." Not mentioned: The alleged mishap took place on a Friday the 13th.

Hiltachk's brief also said, "The applicant's legal argument is not different from respondent's." Indeed, Chemerinsky does restate some of the claims made by Attorney General Xavier Becerra's team in their brief filed this month on behalf of Secretary of State Alex Padilla.

At issue is a law Gov. Gavin Newsom signed in July. SB 27 demands a presidential candidate make five years of tax returns publicly available in order to appear on the primary ballot. The law does not mention President Donald Trump by name but was clearly written with him in mind. While SB 27 does not affect the general election and would likely make little difference in Trump's efforts to win his party's nomination again, Republicans have worried it could depress down-ballot turnout.

Chemerinsky's brief makes a three-part argument to undermine the petitioners' claims. First, that Section 5(c) of the California Constitution "does not limit, and in fact supports, the Legislature's ability to enact SB 27." Second, comparing the Constitution to other states' founding documents shows the state could have taken the relevant powers over elections from the Legislature and given them to the Secretary of State but chose not to do so.

Third, Chemerinsky argues that contrary to the petitioners' arguments, the law is consistent with voters' intent when they passed Proposition 4. The 1972 initiative restricted political parties' control over primaries in order to prevent "favorite son" candidates from keeping rivals off the ballot. He said the new law has nothing to do with that reason.

A Boies Schiller spokesman declined to comment on the record. The court's docket showed the amicus bried was accepted.

On Thursday, attorneys will meet in federal court in Sacramento for the first hearing on several consolidated cases challenging SB 27. Donald J. Trump for President v. Padilla, 19CV01501 (E.D. Cal., filed Aug. 6, 2019).