PEOPLE v. SNYDER (1998)

Arthur K. Snyder, a lawyer whose primary practice was lobbying, pled guilty to eight counts of making political contributions in a false name (and one count of conspiring to do the same), all misdemeanors.  (Gov.Code, § 84301 [“No contribution shall be made, directly or indirectly, by any person in a name other than the name by which such person is identified for legal purposes”].) ¹  Snyder appeals, contending that, at the times relevant to his conviction, he was subject to administrative penalties but not criminal prosecution.   We agree.

DISCUSSION

A. The Act-In General

Section 84301 is part of the Political Reform Act of 1974 (§ 81000 et seq.), an initiative approved by the electorate in June 1974 for several stated purposes:  “(a) Receipts and expenditures in election campaigns should be fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited. [¶] (b) The activities of lobbyists should be regulated and their finances disclosed in order that improper influences will not be directed at public officials. [¶] (c) Assets and income of public officials which may be materially affected by their official actions should be disclosed and in appropriate circumstances the officials should be disqualified from acting in order that conflicts of interest may be avoided. [¶] (d) The state ballot pamphlet should be converted into a useful document so that voters will not be entirely dependent on paid advertising for information regarding state measures. [¶] (e) Laws and practices unfairly favoring incumbents should be abolished in order that elections may be conducted more fairly. [¶] (f) Adequate enforcement mechanisms should be provided to public officials and private citizens in order that this title will be vigorously enforced.”  (§ 81002.)

The Act consists of twelve chapters:  General (§ 81000 et seq.), Definitions (§ 82000 et seq.), Fair Political Practices Commission (the FPPC, § 83100 et seq.), Campaign Disclosure (§ 84100 et seq.), Limitations on Contributions (§ 85100 et seq.), Lobbyists (§ 86100 et seq.), Conflicts of Interest (§ 87100 et seq.), Ballot Pamphlet (§ 88000 et seq.), Incumbency (§ 89000 et seq.), Ethics (§ 89500 et seq.), Auditing (§ 90000 et seq.), and Enforcement (§ 91000 et seq.).

B. The Act-Enforcement

As originally adopted, section 83116.5 provided that “[a]ny person who violates any provision of this title, who purposely or negligently causes any other person to violate any provision of this title, or who aids and abets any other person in the violation of any provision of this title, shall be liable under the provisions of this chapter.[² ]  Provided, however, that this section shall apply only to persons who have filing or reporting obligations under this title, or who are compensated for services involving the planning, organizing, or directing any activity regulated or required by this title, and that a violation of this section shall not constitute an additional violation under Chapter 11.”  (§ 83116.5, added by Stats.1984, ch. 670, § 2, italics added.)   As amended by Proposition 208 in 1996 (after Snyder's conviction), section 83116.5 now provides thus:  “Any person who violates any provision of this title, who purposely or negligently causes any other person to violate any provision of this title, or who aids and abets any other person in the violation of any provision of this title, shall be liable under the provisions of this chapter and Chapter 11 (commencing with Section 91000).”  (§ 83116.5, as amended by Prop. 208, § 29, approved Nov. 5, 1996, eff.   Jan. 1, 1997, italics added.)

Additional penalties are covered by Chapter 11.  “Any person who knowingly or willfully violates any provision of this title is guilty of a misdemeanor.”  (§ 91000, subd. (a).)  In addition to “other penalties provided by law,” a fine may be imposed (up to $10,000 or three times the amount “the person failed to report properly or unlawfully contributed, expended, gave or received,” whichever is greater).  (§ 91000, subd. (b).)  Section 91001 makes the Attorney General responsible for enforcing the criminal provisions of the Act with regard to state agencies, lobbyists and state elections, and gives concurrent powers and responsibilities to the district attorney of the county in which a violation occurs.  (§ 91001, subd. (a).)  Generally speaking, the FPPC is primarily responsible for the enforcement of civil penalties.  (§ 91001, subd. (b).)  Section 91004 provides that “[a]ny person who intentionally or negligently violates any of the reporting requirements of this act shall be liable in a civil action brought by [the FPPC or a person residing in the jurisdiction].”

C. The Act-Campaign Disclosure

The section prohibiting contributions in a false name (§ 84301) is found in Chapter 4, “Campaign Disclosure.”  (§ 84100 et seq.)   Article 1 of Chapter 4 covers the “organization of committees,” specifically treasurers (§ 84100), statements of organization (§§ 84101-84103), accounts (§ 84104), notices and identification requirements (§§ 84105-84106.5), and slate mailer organizations (§ 84108).   Article 2 of Chapter 4 (§ 84200 et seq.) covers the “filing of campaign statements” by “elected officers, candidates, and committees.”  (§§ 84200, subd. (a), 84200.5, subd. (a), 84202.3, subd. (a).)  Article 3 of Chapter 4 (where we find section 84301) covers “ prohibitions.”   Section 84300 prohibits cash contributions and expenditures of $100 or more.  Section 84301, as we have said, provides that “[n]o contribution shall be made, directly or indirectly, by any person in a name other than the name by which such person is identified for legal purposes.”   Section 84302 prohibits contributions by an intermediary or agent.   Section 84303 prohibits certain expenditures by agents.   Section 84304 prohibits anonymous contributions.   Section 84305 prohibits mass mailings that fail to identify the sender.   Section 84305.5 prohibits slate mailers that fail to identify the slate mailer organization.   Section 84306 obligates persons acting as agents to “promptly” report all contributions to the committee's treasurer.   Section 84307 prohibits the commingling of contributions with personal funds.   Section 84308 restricts the contributions that can be solicited from or made to certain agencies and persons involved with those agencies.   Section 84309 prohibits the delivery and receipt of contributions in any state office building.

D. Prior to Proposition 208, A Lobbyist Who Violated Section 84301 Was Subject to Administrative Action But Not Criminal Liability

This is Snyder's syllogism:  Snyder is a lobbyist.  (§ 82039 [a lobbyist is one who is regularly employed for economic consideration to communicate directly or indirectly with any elected official for the purpose of influencing legislative or administrative action].)  One of the purposes of the Act is to regulate lobbyists.  (§ 81002, subd. (b).)  Lobbyists have reporting requirements under the Act. (§ 86100 et seq.)   It follows, says Snyder, that his pre-Proposition 208 violation of section 84301 was subject to administrative action but not criminal liability.³  (Former § 83116.5.)   As we will explain, Snyder's conclusion is unavoidable.⁴

1.

As originally adopted in 1974, the Act included section 84301 (“No contribution shall be made, directly or indirectly, by any person in a name other than the name by which such person is identified for legal purposes”) and section 91000, subdivision (a) (“Any person who knowingly or willfully violates any provision of this title is guilty of a misdemeanor”).   There was no section 83116.5.   From 1975 to 1984, therefore, “any person” who violated section 84301 was guilty of a misdemeanor.

2.

In 1984, the Legislature added section 83116.5 to provide that “[a]ny person who violates any provision of this title, who purposely or negligently causes any other person to violate any provision of this title, or who aids and abets any other person in the violation of any provision of this title, shall be liable under the provisions of this chapter.   Provided, however, that this section shall apply only to persons who have filing or reporting obligations under this title, or who are compensated for services involving the planning, organizing, or directing any activity regulated by this title, and that a violation of this section shall not constitute an additional violation under Chapter 11.”  (§ 83116.5, added by Stats.1984, ch. 670, § 2, eff.  Jan. 1, 1985, emphasis added.)   At the same time, the Legislature added section 91015 to Chapter 11:  “The provisions of this chapter shall not apply to violations of Section 83116.5.”  (Stats.1984, ch. 670, § 6.) Plainly, sections 83116.5 and 91015 said that anyone with “reporting obligations” under the Act was subject to administrative action by the FPPC but not subject to criminal prosecution.⁵

3.

Proposition 208 (effective as of January 1997) amended section 83116.5 so that it now provides:  “Any person who violates any provision of this title, who purposely or negligently causes any other person to violate any provision of this title, or who aids and abets any other person in the violation of any provision of this title, shall be liable under the provisions of this chapter and Chapter 11 (commencing with Section 91000).”  (§ 83116.5, as amended by Prop. 208, § 29, approved Nov. 5, 1996, eff.   Jan. 1, 1997, emphasis added.)   Proposition 208 also repealed section 91015 and added a new subdivision (d) to section 91000 to give the FPPC “concurrent jurisdiction in enforcing the criminal misdemeanor provisions” of the Act. (Prop. 208, §§ 30, 34, approved Nov. 5, 1996, eff.   Jan. 1, 1997.)   Finally, Proposition 208 amended section 91006 to add the following provision (before which it merely provided for joint and several liability):  “Any person who violates any provision of this title, who purposely or negligently causes any other person to violate any provision of this title, or who aids and abets any other person in the violation of any provision of this title, shall be liable under the provisions of this chapter and Chapter 3 (commencing with Section 83100) of this title.   If two or more persons are responsible for any violation, they shall be jointly and severally liable.”  (Prop. 208, § 33, approved Nov. 5, 1996, eff.   Jan. 1, 1997.)

4.

We agree with Snyder that, prior to Proposition 208, any person with reporting obligations under the Act (such as a lobbyist) was subject to administrative action for a violation of section 84301 but not to criminal liability under section 91000, subdivision (a).   We reject the People's contention that Proposition 208 did no more than “broaden” the scope of the Act's criminal sanctions.   Under the plain language of section 83116.5 as it existed at the time of Snyder's offenses and conviction, a lobbyist or any other person with reporting obligations was subject to administrative action for any violation of any provision of the Act, but expressly exempted from criminal prosecution under Chapter 11.   The People say this cannot be because it makes more sense to impose stiffer-not weaker-penalties on those with reporting obligations, and that Snyder's interpretation creates an absurd result.   The electorate obviously agreed with the People, as demonstrated by the adoption of Proposition 208 to correct this precise anomaly.  (People v. Loeun (1997) 17 Cal.4th 1, 9, 69 Cal.Rptr.2d 776, 947 P.2d 1313;  Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 277 Cal.Rptr. 1, 802 P.2d 317;  Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)

E.

At the time Snyder made contributions under a name other than his legal name, he was subject to administrative penalties but not to criminal prosecution.   It follows that the judgment must be reversed (and we therefore do not reach his other claim of error).

DISPOSITION

The judgment is reversed and the cause is remanded to the trial court with directions to vacate the guilty pleas and enter a judgment of dismissal.

FOOTNOTES

1.   All section references are to the Government Code. All references to Snyder include the Arthur K. Snyder Law Corporation, which also pled guilty to one count of making political contributions in a false name.

2.   “The chapter” is Chapter 3, which establishes the FPPC (§ 83100) and provides for the qualifications, appointment and compensation of its members and staff (§§ 83102-83109) and other administrative matters (§ 83110 et seq.).   Chapter 3 also establishes the FPPC's authority to investigate “possible violations of this title relating to any agency, official, election, lobbyist or legislative or administrative action” (§ 83115), and gives the FPPC jurisdiction to hold administrative hearings, after which it may (1) issue cease and desist orders, (2) orders to file documents required by the Act, and (3) impose monetary penalties payable to the General Fund. (§ 83116.)

3.   Snyder was indicted in 1995 for offenses that took place between 1989 and 1992.   He pled guilty in September 1996.

4.   The People misconstrue Snyder's argument as one suggesting that he is not criminally liable because he is not a public office holder, candidate or campaign committee treasurer.   The People have taken a phrase out of context and ignored the substance of Snyder's analysis.   Snyder's position is that he is a person obligated by the Act to file reports (because he is a lobbyist) and, therefore, a person who was expressly exempted from criminal liability prior to the adoption of Proposition 208.

5.   In McCauley v. BFC Direct Marketing (1993) 16 Cal.App.4th 1262, 1266-1269, 20 Cal.Rptr.2d 498, the court considered the 1984 amendment that added section 83116.5 in a different and non-analogous context.   To the extent McCauley can be read to suggest that “the statutory duty to report” is imposed only on those identified in section 84104 (elected officials, candidates and committees), we must disagree.   (McCauley v. BFC Direct Marketing, supra, 16 Cal.App.4th at p. 1268, fn. 5, 20 Cal.Rptr.2d 498.) While that may have been the only duty to report at issue in McCauley (where they were dealing with a campaign manager), the former language of section 83116.5 did not lend itself to such a narrow reading-without limitation, section 83116.5 exempted from criminal liability “persons who have filing or reporting obligations under this title, or who are compensated for services involving the planning, organizing, or directing any activity regulated or required by this title․”   The People concede that Snyder was a lobbyist at the times relevant to this case.   As Snyder contends (and as the People concede by their failure to contend otherwise), a lobbyist is a person with filing and reporting obligations under the Act, as well as a person who is compensated for an activity that is regulated by the Act. (§§ 82039 [lobbyists defined], 86113 [lobbyists' reporting requirements], 86114 [lobbying firms' reporting requirements].)

MIRIAM A. VOGEL, Associate Justice.

ORTEGA, Acting P.J., and DUNN, J.*, concur.