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Verdict Is In on D.A.'s Use of 2 Standards

June 08, 1997|KENNETH L. KHACHIGIAN | Kenneth L. Khachigian is a veteran political strategist and former White House speech writer who practices law in Orange County. His column appears here every other week

Orange County's political trial opened last week, and its outcome will be determined by a jury. But no jury is needed to judge Dist. Atty. Michael R. Capizzi's atrocious double standard in indicting Rhonda Carmony and Scott Baugh in the first place.

Our D.A. suggests he's a prosecutorial Eliot Ness, fearlessly banishing the wicked and lawless from our community while facing down political machines and reigning powers. He claims consistency in his efforts to maintain the integrity of our elections and bristles at charges of selective prosecution. He blustered to one interviewer, "If we're to ignore blatant disregard for campaign laws . . . there would be chaos in the electoral process."

From personal experience I know--measured by the standards of his current prosecutions--Capizzi's office has indeed ignored "blatant disregard for campaign laws."

As campaign manager for Proposition 174, the 1993 school choice initiative, I received credible allegations of election law violations by the education establishment from citizens statewide. In the educrats' bug-eyed zeal to crush the introduction of choice and competition to our children's learning, many school districts misused public funds to oppose the initiative.

Our campaign forwarded dozens of complaints to Atty. Gen. Dan Lungren. In a preelection letter to the state's district attorneys (including Capizzi), Lungren expressed alarm "at the potential for corruption of our democratic process." Lungren specifically cited Orange County as a source of possible violations. He sternly admonished that "the use of public funds for campaign advocacy on behalf of any candidate or ballot measure is illegal"--violating Penal Code section 424 and Government Code section 8314.

We discovered especially egregious breaches at the Tustin Unified School District on school district stationery, produced by district personnel on district time. Tustin's then-superintendent informed one of his counterparts that "a county coalition to fight the voucher initiative is being organized. . . . I am the liaison between the coalition and you." He boastfully added, "You can sleep soundly since your 'leader' is at work."

Just weeks before the election, the same superintendent called an all-district meeting--a "duty day" which school employees are paid to attend. The meeting was devoted to handing out a one-sided attack on the initiative printed on district stationery, accompanied by harangues from anti-174 speakers.

I twice wrote to Capizzi prior to the election asking for an investigation. He did not reply. I tried again immediately after the election, asking why he did not act against the use of school funds for political activities. No response.

Two weeks after the election, Capizzi's deputy, Guy Ormes, lamely replied that his office had "spoken to the attorney for the Tustin School District about the potential problems with this type of conduct and [we] do not expect any similar activities in the future." He further opined that pursuing civil remedies "is more appropriate in this case."

I rather suspect that Capizzi's current political targets would have settled readily for civil penalties and a little schmoozing among lawyers.

Are the allegations against Baugh and Carmony more serious? The D.A. doesn't know the answer to that question because he didn't apply the same massive resources against arrogant school activists that he applied against Baugh and Carmony.

Capizzi devoted four full-time prosecutors and investigators--and many more part time--to the Baugh investigation. Records were subpoenaed, dozens of witnesses were dragged before the grand jury, and more than a half-dozen armed officers descended on Baugh's home in a predawn, Christmas-season raid to seize materials. This Ahab-like pursuit has cost well over $1 million.

Whether or not to prosecute Republican wrongdoing isn't the issue. The issues here are fairness, evenhandedness and prosecutorial integrity. It's hard not to reach the conclusion that in the case of Baugh and Carmony there was a clear cave-in to headlines which relentlessly publicized one set of alleged misdeeds while ignoring others.

If there is a power to match Republicans in Orange County, it is the massive and rich education establishment with its ruthless unions and tightly disciplined administrators protecting their sinecures. Capizzi pulled out all the stops on Republicans but tucked tail and ran when confronted with the School T. Rex.

The county grand jury has a fact-finding and oversight function. The D.A.'s double standard is ripe for citizen inquiry.

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