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Koch-linked group scores legal victory over California AG

A federal judge in Los Angeles has again shut down California Attorney General Kamala Harris' drive to obtain the donor list for Americans for Prosperity, an influential political group funded by Charles and David Koch.

U.S. District Court Judge Manuel Real issued a permanent injunction Thursday barring Harris' office from requiring AFP to submit the donor list. And AFP may not be considered deficient or delinquent in its filings because it won't turn over the form, the judge said.

In his ruling, Real said the California attorney general's claims that she needed the information for investigative purposes were dubious since officials "virtually never" looked at donor information when investigating nonprofit groups. The judge also said the Kochs and other donors faced a real threat of harm because of nearly 1,800 instances where the state inadvertently disclosed donor lists, also known as "Schedule B" filings, on a public website designed to host other registration forms filed by charities and other nonprofit organizations.

"The pervasive, recurring pattern of uncontained Schedule B disclosures — a pattern that has persisted even during this trial — is irreconcilable with the Attorney General’s assurances and contentions as to the confidentiality of Schedule Bs collected by the Registry," Real wrote. "While the Attorney General will have this Court believe that proper procedures are now in place to prevent negligent disclosures of Schedule Bs, the Court is unconvinced."

Harris' office quickly said it plans to appeal the ruling.

"We are disappointed in Judge Real's ruling and intend to appeal to the Ninth Circuit Court of Appeals," said Kristen Ford, a spokeswoman for the attorney general. "The filing of the Schedule B is a long-standing requirement that has helped Attorneys General for more than a decade protect taxpayers against fraud.”

The requirement for non-profit groups to submit their donor lists to the state, just as they do to the Internal Revenue Service, has been on the books for years.

However, Real said it had not been consistently enforced. The judge also said that during a six-day bench trial held in February and March he heard extensive testimony about threats of violence against the Kochs, their families and others associated with AFP — threats the judge said would be fueled by collection and release of the donor information.

"The Court ... heard from Mark Holden, General Counsel for Koch Industries, who testified that Charles and David Koch, two of AFP’s most high-profile associates, have faced threats, attacks, and harassment, including death threats. ... Not only have these threats been made to the Koch brothers because of their ties with AFP, but death threats have also been made against their families, including their grandchildren," the judge wrote. "Although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from that era, this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members."



Real's ruling comes about four months after a federal appeals court overturned earlier, preliminary injunctions in the case. A three-judge panel of the 9th Circuit Court of Appeals said the judge was correct to have issued a preliminary order barring disclosure of the donor information by the state, but should not have barred the state from collecting the information in the first place. The appeals court ruling technically applied only to Real's preliminary orders, so it did not directly prohibit him from issuing the order he released Thursday.

Real said that decision and an earlier one from the 9th Circuit let stand the general policy requiring submission of donor lists, but left the door open to challenges from individual groups able to show that their donors would be intimidated or chilled by the process. The judge said AFP had done just that.

Real was nominated to the bench by President Lyndon Johnson in 1966 and confirmed that year.

UPDATE (Thursday, 5:39 P.M.): This post has been updated with comment from the AG's office and more background on the California filing requirements.