Geary v. Renne

Citation880 F.2d 1062
Decision Date24 July 1989
Docket NumberNo. 88-2875,88-2875
PartiesBob GEARY, Robert Silvestri, Dennis Mark, Melissa Gundrun, Wayne Johnson, David Soule, Max Woods, Peter Johnson, Robert Gebert, Election Action, Terence Faulkner, and Sudi Trippet, Plaintiffs-Appellees, v. Louise RENNE, San Francisco City Attorney, Dianne Feinstein, San Francisco Mayor, Board of Supervisors, City and County of San Francisco, City and County of San Francisco, and Jay Patterson, San Francisco Registrar of Voters, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Dennis Aftergut, San Francisco, Cal., for defendants-appellants.

Arlo H. Smith, San Francisco, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SNEED, CANBY and TROTT, Circuit Judges.

TROTT, Circuit Judge:

On June 3, 1986, the people of California amended their constitution to add the following provision as article II, Sec. 6(b):

No political party or party central committee may endorse, support or oppose a candidate for nonpartisan office. 1

In this appeal, we are asked to decide (1) whether this provision is compatible with First Amendment rights of free speech and association, and (2) whether it deprives the individuals and political entities to which it applies of equal protection of the laws as guaranteed by the Fourteenth Amendment. We hold on both counts that the provision is consonant with the United States Constitution, and in so doing we reverse the judgment of the district court.

I

Plaintiffs-appellees in this case are ten registered voters of the City and County of San Francisco, an organization of registered voters, and an officer of that organization. The basis of their complaint as it relates to this appeal was the refusal of defendants-appellants, the City and County of San Francisco and the San Francisco Registrar of Voters, to permit official political party and party central committee endorsements of candidates for nonpartisan offices to be printed in the San Francisco Voter Pamphlet in connection with elections scheduled for June 2 and November 3, 1987. Defendants-appellants based their refusal to print party endorsements on the language of article II, Sec. 6(b).

Plaintiffs-appellees alleged that article II, Sec. 6(b) violates the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. Secs. 1983 and 1985. In particular, they claimed that this provision of California's Constitution abridges their individual and collective rights of free speech and association and denies them equal protection under the law. The district court partially granted plaintiffs' motion for summary judgment and entered judgment on their behalf. 2 708 F.Supp. 278.

The City of San Francisco then moved to vacate the court's judgment. 3 On June 9, 1988, the district court denied the motion, and this expedited appeal followed. We have jurisdiction under 28 U.S.C. Sec. 1291, and we review de novo the grant of summary judgment. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

II

Subsection (b) of article II, Sec. 6 represents a direct response of the people of In 1986, Assemblyman Richard Mountjoy, a member of the California Assembly since 1978, sought to reverse the effect of Unger by introducing Assembly Constitutional Amendment 7. This amendment proposed adding subsection (b) to article II, Sec. 6. After successfully wending its way through the legislative process as provided in article XVIII, Secs. 1 and 4 of California's Constitution, this remedial proposal was submitted to the people as Proposition 49 on the June 1986 ballot. The voters approved it by a vote of 2,292,678 to 1,805,305. 7

                California to a 1984 decision of their Supreme Court, Unger v. Superior Court, 37 Cal.3d 612, 692 P.2d 238, 209 Cal.Rptr. 474 (1984).  (Unger ).  At the time Unger was decided, article II, Sec. 6 read simply:  "Judicial, school, county and city offices shall be nonpartisan." 4   "Nonpartisan offices" were--and still are--defined as "office[s] for which no party may nominate a candidate."    Cal. Elections Code Sec. 37.  The issue before the court in Unger was whether this provision barred the Republican Party from endorsing the "nonconfirmation" of the three justices in the 1982 General Election. 5   In an opinion in which four justices, including the current Chief Justice, wrote separately, a divided Unger Court held that article II, Sec. 6, as it then read, did not prohibit a political party or its governing body from "endorsing, supporting, or opposing candidates for nonpartisan office."    Unger, 37 Cal.3d at 615, 692 P.2d at 240, 209 Cal.Rptr. at 476. 6   Justice Sims, in dissent, wrote a lengthy opinion in which he meticulously surveyed the historical background of California's nonpartisan political traditions.  He also discussed at length the First Amendment implications of this issue, as did Acting Chief Justice Grodin in a separate concurrence
                
III

To evaluate a constitutional challenge to an election law, we must first consider the character and magnitude of the injury to First Amendment rights allegedly presented by the law. Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983) (Anderson ). We then determine whether or not the interests cited by the state to justify this injury are compelling and the "extent to which [they make] it necessary to burden the plaintiff's rights." Anderson, 460 U.S. at 789, 103 S.Ct. at 1570, Eu v. San Francisco County Democratic Central Committee, --- U.S. ----, 109 S.Ct. 1013, 1019, 103 L.Ed.2d 271 (1989), aff'g 826 F.2d 814 (9th Cir.1987) (citations omitted) (Eu). Finally, we must establish whether the law in question is narrowly tailored to serve the specified interest. Id.

This method of analyzing the proper judicial response to a constitutional challenge to an election law is useful in helping us to identify the constitutional and policy considerations that compete in such cases. Application of this method does not, however, automatically produce a decision. In the end, there is " 'no substitute for the hard judgments that must be made.' " Anderson, 460 U.S. at 789, 103 S.Ct. at 1570 (citation omitted). We do not wish to

pretend that our common sense and experience have no influence on our attempt to balance First Amendment and state interest considerations in the context of section 6(b).

IV

There can be no doubt that article II, Sec. 6(b) constitutes a substantial limitation on the First Amendment rights of party members both to associate and to speak publicly and collectively regarding the qualifications of persons running for significant public offices. Political expression, in general, and speech uttered during a campaign for political office, in particular, enjoy the broadest protection of the First Amendment. See Eu, 109 S.Ct. at 1020; Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (Buckley). Moreover, "any interference with the freedom of a [political] party is simultaneously an interference with the freedom of its adherents." Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957) (Sweezy); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 215, 107 S.Ct. 544, 549, 93 L.Ed.2d 514 (1986) (Tashjian); Eu, 109 S.Ct. at 1016; see also NAACP v. Button, 371 U.S. 415, 438-39, 83 S.Ct. 328, 340-41, 9 L.Ed.2d 405 (1963). These rulings apply to state laws through the Fourteenth Amendment. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958)("It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.").

Section 6(b)'s prohibition against party support for or opposition to a nonpartisan candidate also raises First Amendment concerns. The Court has held that conduct and communication are essentially indistinguishable in this context. See Buckley, 424 U.S. at 19, 96 S.Ct. at 634 ("[A] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quality of expression by restructuring the number of issues discussed, the depth of their exploration, and the size of the audience reached.").

Insofar as article II, Sec. 6(b) limits political expression and association, it imposes a type of restriction whose constitutionality is suspect. We must therefore examine Section 6(b) with exacting scrutiny as we seek to determine whether on balance it is compatible with First Amendment values. Eu, 109 S.Ct. at 1020-21; Brown v. Hartlage, 456 U.S. 45, 52-53, 102 S.Ct. 1523, 1528-29, 71 L.Ed.2d 732 (1982) (Brown).

Despite the fact that section 6(b) limits highly protected expression, four factors mitigate its offensiveness to the Constitution. These redeeming features of section 6(b) are as follows:

(1) It expands rather than constricts the political process, avoiding a concentration of power in the dominant political parties.

(2) It applies only to a limited number of organizations, leaving individuals and an unlimited number of other groups, ad hoc or otherwise, to speak, endorse, or support as they please.

(3) It pertains to carefully selected intrastate nonpartisan offices, not offices of national scope.

(4) Its limitation on First Amendment activities compares favorably with other similar restrictions previously approved by the Supreme Court.

We discuss each of these features in turn.

1. Section 6(b) Expands the Political Process

We take the view that a restriction on political speech such as section 6(b), whose dominant effect is to open the process to more diverse interests, groups, and individuals, or to prevent the political process from becoming clogged and unworkable, inflicts a...

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7 cases
  • Geary v. Renne
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 31, 1990
    ...of government for local and judicial offices justified the infringement of the plaintiffs' first amendment rights effected by Sec. 6(b). 880 F.2d 1062. We took this case en banc in order to reconsider the panel's decision. Upon reconsideration, we affirm the decision of the district The bro......
  • Renne v. Geary
    • United States
    • U.S. Supreme Court
    • June 17, 1991
    ...judgment on this claim pursuant to Federal Rule of Civil Procedure 54(b), and petitioners appealed. A Ninth Circuit panel reversed, 880 F.2d 1062 (1989), but the en banc Court of Appeals affirmed the District Court's decision, 911 F.2d 280 (CA9 1990) (en We granted certiorari, 498 U.S. ----......
  • California Democratic Party v. Lungren
    • United States
    • U.S. District Court — Northern District of California
    • March 15, 1996
    ...Section 6(b) was challenged once before in this Court.1 Geary v. Renne, 708 F.Supp. 278 (N.D.Cal.1988) ("Geary I"), rev'd, 880 F.2d 1062 (9th Cir.1989) ("Geary II"), rev'd on reh'g en banc, 911 F.2d 280 (9th Cir.1990) ("Geary III"), vacated on other grounds sub nom. Renne v. Geary, 501 U.S.......
  • Fasi v. Cayetano
    • United States
    • U.S. District Court — District of Hawaii
    • July 9, 1990
    ...Erum, the Ninth Circuit Court of Appeals applied both Anderson balancing and Eu strict scrutiny in the same case. See Geary v. Renne, 880 F.2d 1062, 1064 (9th Cir.1989) (upholding constitutionality of California's ban on political party endorsements of nonpartisan 4 Under Texas law, to be e......
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