Chula Vista Citizens for Jobs & Fair Competition v. Norris

• Decision Date: 03 April 2015
• Docket Number: No. 12–55726.,12–55726.
• Citation: 782 F.3d 520
• Parties: CHULA VISTA CITIZENS FOR JOBS AND FAIR COMPETITION; Lori Kneebone; Larry Breitfelder; Associated Builders and Contractors of San Diego, Inc., Plaintiffs–Appellants, v. Donna NORRIS; Mayor Cheryl Cox; Pamela Bensoussan ; Steve Castaneda; John McCann, in his official capacity as Member of the Chula Vista City Council ; Rudy Ramirez, Jr., in his official Capacity as Member of the Chula Vista City Council, Defendants–Appellees, State of California, Intervenor–Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

782 F.3d 520

CHULA VISTA CITIZENS FOR JOBS AND FAIR COMPETITION; Lori Kneebone; Larry Breitfelder; Associated Builders and Contractors of San Diego, Inc., Plaintiffs–Appellants

v. Donna NORRIS; Mayor Cheryl Cox; Pamela Bensoussan ; Steve Castaneda; John McCann, in his official capacity as Member of the Chula Vista City Council ; Rudy Ramirez, Jr., in his official Capacity as Member of the Chula Vista City Council, Defendants–AppelleesState of California, Intervenor–Defendant–Appellee.

No. 12–55726.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Dec. 16, 2014.

Filed April 3, 2015.

James Bopp, Jr. (argued), and Richard E. Coleson, Bopp Law Firm, Terre Haute, IN; Charles H. Bell, Jr., and Brian T. Hildreth, Bell, McAndrews & Hiltachk, Sacramento, CA; Gary D. Leasure, Workman Leasure, San Diego, CA, for Plaintiffs–Appellants.

Charles A. Bird (argued), McKenna Long & Aldridge, San Diego, CA, for Defendants–Appellees.

George Waters (argued), Deputy Attorney General; Kamala D. Harris, Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Peter A. Krause, Supervising Deputy Attorney General, Sacramento, CA, for Intervenor–Defendant–Appellee.

Dennis J. Herrera, City Attorney; Christine Van Aken, Chief of Appellate Litigation; Joshua S. White and Andrew Shen, Deputy City Attorneys, San Francisco City Attorney's Office, San Francisco, CA, for Amici Curiae League of California Cities.

Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:09–cv–00897–BEN–JMA.

Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT, BARRY G. SILVERMAN, SUSAN P. GRABER, M. MARGARET MCKEOWN, WILLIAM A. FLETCHER, RONALD M. GOULD, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, and N. RANDY SMITH, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

The plaintiffs in this case bring a First Amendment challenge to two requirements that the State of California and the City of Chula Vista, California, place on persons who wish to sponsor a local ballot measure: (1) the requirement that the official proponent of a ballot measure be an elector, thereby disqualifying corporations and associations from holding that position (“the elector requirement”); and (2) the requirement that the official proponent's name appear on each section of the initiative petition that is circulated to voters for their signature (“the petition disclosure requirement”). We hold, as did the district court, that both requirements are plainly constitutional.

I.

This case arises from the plaintiffs' efforts to place on the ballot what ultimately became Proposition G, an initiative prohibiting the City of Chula Vista from entering into Project Labor Agreements. Such agreements require that contractors hired by the city to build public works projects pay their employees a prevailing wage. The plaintiffs consist of Chula Vista residents Lori Kneebone and Larry Breitfelder; Chula Vista Citizens for Jobs and Fair Competition (“CVC”), an unincorporated association and a ballot measure committee; and Associated Builders and Contractors of San Diego, Inc. (“ABC”), an incorporated association of construction-related businesses. ABC is CVC's largest donor. CVC and ABC wished to serve as the official proponents of Proposition G, but because an official proponent must be an elector, they asked two CVC members—Kneebone and Breitfelder—to serve as proponents so that the measure might be accepted by the city clerk. Kneebone and Breitfelder agreed. CVC and ABC paid for all of the expenses associated with qualifying the initiative for the municipal ballot.

A brief overview of the laws governing the qualification of an initiative for the municipal ballot is in order. Section 903 of the Chula Vista City Charter provides that “[t]here are hereby reserved to the electors of the City the powers of the initiative and referendum and of the recall of municipal elective officers.” Section 903 then adopts the provisions of the California Elections Code governing municipal initiatives, referenda, and recall elections “so far as such provisions of the Elections Code are not in conflict with this Charter.” The California Elections Code in turn provides a three-step process that official proponents must follow in order to qualify an initiative for the municipal ballot.

First, an official proponent must file a notice of intent to circulate a petition with the city clerk. The notice must include the text of the proposed measure and the signature of at least one, but not more than three, official proponents. Cal. Elec.Code § 9202(a).¹ Within fifteen days of the filing of the notice, the city attorney must prepare a ballot title and brief summary of the initiative, which is provided to the official proponents. Id. § 9203.

Next, the official proponent must publish in a local newspaper of general circulation the notice of intent, accompanied by the title and summary prepared by the city attorney. Id. § 9205(a).² The effect of this requirement is that the official proponent's name—by way of the required signature on the notice of intent—is published. Proof of publication must be provided to the city clerk within ten days of publication. Id. § 9206.

Once publication occurs, the official proponent may begin circulating the initiative petitions and collecting signatures from registered voters. Id. § 9207. A petition typically is circulated in sections in order to facilitate signature gathering. Id. § 9201. “Each section of the petition shall bear a copy of the notice of intention and the title and summary prepared by the city attorney.” Id. § 9207. Thus, the official proponent's name must appear on the face of the circulated petitions, again by way of the signed notice of intent. The official proponent has 180 days from the date of receipt of the title and summary to file the signed petitions with the city clerk. Id. § 9208. The city clerk then verifies the signatures on the petitions and notifies the official proponent whether there are sufficient signatures to qualify the measure for the ballot. Id. §§ 9210, 9114, 9115. If there are enough valid signatures, the city council must either adopt the measure as is or place it on the ballot. Id. §§ 9214, 9215.³

Kneebone and Breitfelder made two attempts to place Proposition G on the municipal ballot, the first of which is the subject of the instant litigation. During the first attempt, Kneebone and Breitfelder properly filed a signed notice of intent and complied with the publication requirements. After circulating the petitions, they submitted to Chula Vista City Clerk Donna Norris petitions bearing 23,285 signatures. However, Norris rejected the petitions because Kneebone and Breitfelder had not included their names as the official proponents on the circulated petitions. Kneebone and Breitfelder objected that CVC and ABC were the true proponents of the initiative, and that they had accordingly printed CVC and ABC's names on the circulated petitions instead of their own names. When Norris responded that she could not process the signatures because the petitions did not comply with the Elections Code, Kneebone and Breitfelder restarted the process, this time in compliance with all of the statutory requirements. As a result of this second effort to qualify the measure, Proposition G appeared on the June 8, 2010 municipal election ballot and was approved by the Chula Vista voters.

The plaintiffs filed the instant suit under 42 U.S.C. § 1983 in the Southern District of California on April 28, 2009—after Norris refused to process the first initiative petition but while the efforts to qualify the second petition for the ballot were ongoing. The complaint alleged that the requirements that an official proponent be an elector and that his name appear on the face of the circulated petitions violate the First and Fourteenth Amendments, both facially and as applied.⁴ The plaintiffs sought declaratory and injunctive relief.

On June 4, 2009, the plaintiffs moved for a preliminary injunction and an expedited hearing. The State of California intervened as a defendant to defend the constitutionality of the state election laws adopted by Chula Vista's City Charter. The district court held a hearing on the motion for a preliminary injunction on August 19, 2009. The next day, it ordered supplemental briefing on whether state election law requires an official proponent to be a natural person. On March 8, 2010, the district court denied the preliminary injunction as moot in light of the fact that the plaintiffs' second attempt to qualify Proposition G for the ballot had succeeded. It also stayed the case pending the Supreme Court's decision in Doe v. Reed, 561 U.S. 186, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). When the stay was lifted, both sides filed cross-motions for summary judgment. On March 22, 2012, the district court denied the plaintiffs' motion and granted summary judgment to the defendants, upholding both the elector and disclosure requirements—requirements that it held were imposed by both the state elections code and the city's municipal charter. This appeal followed.

II.

The plaintiffs first assert that the requirement that an official proponent be an elector violates their rights to freedom of speech and association under the First Amendment by preventing non-natural persons—that is, corporations and associations—from serving as official proponents.⁵ We conclude that the State of California and the City of Chula Vista do not violate the First Amendment by requiring that an official proponent—a person seeking a unique position in a quintessentially legislative process—be an elector.

A.

As a preliminary matter, the plaintiffs dispute the source of the requirement that the official proponent of a municipal initiative be an elector and, therefore, a natural person. According to the plaintiffs, it is merely Chula Vista's “enforcement policy” that...