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As lawyers in California’s historic gubernatorial recall case calculate their chances in front of today’s en banc panel, their supporters will work through some figures of their own — how to pay for all those billable hours. The parties involved — the state, the nonprofit ACLU and a pro-recall committee — each have different funding sources. But now they’re all dealing with the same reality. Appellate litigation is expensive, and it’s only going to get more so if the case moves from the 9th U.S. Circuit Court of Appeals to the U.S. Supreme Court. “The legal bills right now exceed income on this endeavor,” said Dave Gilliard, chief strategist with Rescue California … Recall Gray Davis. The group was granted intervenor status to help defend the case that the 9th Circuit en banc panel will hear, Southwest Voter Registration Education Project v. Shelley, 03-56498. The plaintiffs are represented by the American Civil Liberties Union and Heller Ehrman White & McAuliffe. The defendant, Secretary of State Kevin Shelley, has lawyers with the office of state Attorney General Bill Lockyer as well as private counsel. Of all the parties, Rescue California’s legal bills are the easiest to track. That’s because the group’s expenditures are public record, and donor money goes into a pot that pays for everything from TV ads to paperclips to legal bills. Gilliard estimated his group had racked up about $250,000 in legal bills, not including last week’s work, which had lawyers pulling at least one all-nighter to meet a court deadline. As of Aug. 28, Rescue California had paid its law firm, Sacramento’s Bell, McAndrews, Hiltachk & Davidian, about $70,000 and had only about $12,000 left in the bank. In the 9th Circuit case, Bell McAndrews is assisted by three lawyers from the Los Angeles office of O’Melveny & Myers — Charles Diamond, Robert Schwartz and Victor Jih — although the O’Melveny firm itself is not involved. Gilliard said the high legal bills were distracting the committee from its real purpose: urging people to vote yes on the recall. “It’s been a productive strategy on behalf of Davis’ people,” Gilliard said. “It’s kept us tied up in court.” The governor is not a party in the 9th Circuit litigation, although he did file a state Supreme Court case that was rejected. Donations to Rescue California increased after the 9th Circuit decision to delay the election — apparently prompted, Gilliard said, by anger at the court. But although a higher number of people gave in the days following the ruling, most of the donations remained small, averaging just $32 per contribution by Thursday. Even so, those added up to thousands of dollars, Gilliard said. But that still won’t be enough to cover the legal bills. Gilliard said his best hope rests with the recall candidates themselves. “We’re talking about one candidate, basically,” Gilliard said. So far, Republican front-runner Arnold Schwarzenegger has forked over $60,000 to help pay Rescues California’s legal bills, the most recent a $10,000 check at the beginning of September. While Gilliard is trolling for donations, the offices of the secretary of state and attorney general are watching their bottom lines, too. Both depend on the state budget, which this year had its worst deficit ever. According to spokesman Nathan Barankin, the AG’s office has a team of five lawyers devoted to recall litigation, and even more lawyers in the office collaborate on strategy. Because the recall was unexpected, the AG’s budget will take a hit, and Barankin said it won’t be easy to just shift around resources because of the state’s fiscal woes. “Because all the budget lines are so razor-thin close to the margin, [it's not easy] for us to move people and money around,” Barankin said. That means the AG may have to ask the Legislature for an emergency appropriation midway through the current budget year, Barankin said. Although the AG’s office can charge billable hours to other state agencies, Barankin said there’s been no decision yet whether it would do that for its recall work. Secretary of State Shelley has also hired private counsel to advise him on the recall, Jonathan Holtzman of Renne & Holtzman Public Law Group, a firm Holtzman founded with former longtime San Francisco City Attorney Louise Renne. As for Gilliard’s hope that the millionaire actor will come through for his committee, there’s another little twist. Schwarzenegger’s campaign treasurer is Bell McAndrews partner Colleen McAndrews. That means one firm partner has some say over whether to answer Gilliard’s call to pay the other partners, Charles Bell Jr. and Thomas Hiltachk, who have been working on the 9th Circuit case. It’s quite often that you have situations like that,” Gilliard said. “That’s just the way politics are.”

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