Ams. for Prosperity Found. v. Harris
| Citation | 809 F.3d 536 |
| Decision Date | 29 December 2015 |
| Docket Number | 15–55911.,Nos. 15–55446,s. 15–55446 |
| Parties | AMERICANS FOR PROSPERITY FOUNDATION, Plaintiff–Appellee, v. Kamala D. HARRIS, Attorney General, in her Official Capacity as Attorney General of California, Defendant–Appellant. Thomas More Law Center, Plaintiff–Appellee, v. Kamala D. Harris, Attorney General, in her Official Capacity, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
AMERICANS FOR PROSPERITY FOUNDATION, Plaintiff–Appellee,
v.
Kamala D. HARRIS, Attorney General, in her Official Capacity as Attorney General of California, Defendant–Appellant.
Thomas More Law Center, Plaintiff–Appellee,
v.
Kamala D. Harris, Attorney General, in her Official Capacity, Defendant–Appellant.
Nos. 15–55446
15–55911.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 9, 2015.
Filed Dec. 29, 2015.
Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Sacramento, CA; Tamar Pachter, Supervising Deputy Attorney General, Emmanuelle S. Soichet, Deputy Attorney General, Alexandra Robert Gordon (argued), Deputy Attorney General, San Francisco, CA; Kim L. Nguyen (argued), Deputy Attorney General, Los Angeles, CA, for defendant-appellant.
Harold A. Barza and Carolyn Homer Thomas, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA; Derek L. Shaffer (argued), William A. Burck, Jonathan G. Cooper and Crystal R. Nwaneri, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, D.C., for plaintiff-appellee Americans for Prosperity Foundation.
Louis H. Castoria (argued) and Sheila M. Pham, Kaufman Dolowich & Voluck, LLP, San Francisco, CA, for plaintiff-appellee Thomas More Law Center.
Appeals from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. Nos. 2:14–cv–09448–R–FFM, 2:15–cv–03048–R–FFM.
Before: STEPHEN REINHARDT, RAYMOND C. FISHER and JACQUELINE H. NGUYEN, Circuit Judges.
OPINION
PER CURIAM:
Nonprofit organizations Americans for Prosperity Foundation and Thomas More
Law Center challenge the Attorney General of California's collection of Internal Revenue Service (IRS) Form 990 Schedule B, which contains identifying information for their major donors. They argue the nonpublic disclosure requirement is unconstitutional as applied to them because it impermissibly burdens First Amendment rights to free speech and association by deterring individuals from financially supporting them. The district court entered preliminary injunctions preventing the Attorney General from demanding the plaintiffs' Schedule B forms pending a trial on the merits. We have jurisdiction under 28 U.S.C. § 1292, and we vacate the injunctions with instructions to enter new orders preliminarily enjoining the Attorney General from publicly disclosing, but not from collecting, the plaintiffs' Schedule B forms.
I.
California's Supervision of Trustees and Fundraisers for Charitable Purposes Act (Charitable Purposes Act) requires the Attorney General to maintain a Registry of Charitable Trusts and authorizes her to obtain "whatever information, copies of instruments, reports, and records are needed for the establishment and maintenance of the [Registry]." Cal. Gov't Code § 12584. An organization must maintain membership in the Registry to solicit tax-deductible donations from California residents, see id. § 12585, and as one condition of membership, the Attorney General requires each organization to annually submit the complete IRS Form 990 Schedule B, see Cal.Code Regs. tit. 11, § 301. Schedule B, which a charitable organization files with the IRS, lists the names and addresses of persons who have given $5,000 or more to the organization during the preceding year.
The Attorney General's Schedule B disclosure requirement seeks only nonpublic disclosure of these forms, and she seeks them solely to assist her in enforcing charitable organization laws and ensuring that charities in the Registry are not engaging in unfair business practices. See Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1311 (9th Cir.2015). The Attorney General does not assert any state interest in public disclosure of Schedule B forms. To the contrary, her longstanding policy of treating Schedule B forms as confidential, as well as her proposed regulation formalizing that policy, confirm that the state has no interest in public disclosure.1 This regime is readily distinguishable from state requirements mandating public disclosure—such as those often found in the regulation of elections—that are intended to inform the public and promote transparency. See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186, 197, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) ; Buckley v. Valeo, 424 U.S. 1, 66–67, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ; Family PAC v. McKenna, 685 F.3d 800, 806 (9th Cir.2012).
We are bound by our holding in Center for Competitive Politics, 784 F.3d at 1317, that the Attorney General's nonpublic Schedule B disclosure regime is facially constitutional. Compelled disclosure requirements are evaluated under exacting scrutiny, which requires the strength of the governmental interest to reflect the seriousness of the actual burden on a plaintiff's First Amendment rights. See id. at 1312. In that case, brought as a facial challenge, we held the Attorney General's authority to demand and collect
charitable organizations' Schedule B forms falls within "her general subpoena power" and furthers California's compelling interest in enforcing its laws. Id. at 1317. Applying exacting scrutiny, we rejected the facial challenge to the disclosure requirement because the plaintiff failed to show it placed an actual burden on First Amendment rights. See id. at 1314–15, 1317. We left open the possibility, however, that a future litigant might "show a reasonable probability that the compelled disclosure of its contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties that would warrant relief on an as-applied challenge." Id. at 1317 (alteration and internal quotation marks omitted).
The plaintiffs here, two charitable organizations engaged in advocacy some may consider controversial, argue they have made such a showing. They contend disclosure to the state will infringe First Amendment rights by deterring donors from associating with and financially supporting them, and therefore that the Attorney General should be enjoined from collecting their Schedule B forms, even for nonpublic use in enforcing the law.
The district court preliminarily enjoined the Attorney General from demanding and enforcing her demand for IRS Form 990 Schedule B from the plaintiffs.2 The Attorney General has appealed these orders.
II.
We review the district court's grant of a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo. See id. at 1311. Reversal for clear error is warranted when the district court's factual determination is illogical, implausible or lacks support in inferences that may be drawn from facts in the record. See United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc). A court may grant a preliminary injunction when a party shows "serious questions" going to the merits of its claim, a balance of hardships that tips sharply in its favor, a likelihood of irreparable harm and that an injunction is in the public interest. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011).
The plaintiffs argue the Attorney General must be enjoined from demanding and collecting their Schedule B forms on two theories. First, they argue confidential disclosure to her office itself chills protected conduct or would lead to persecution and harassment of their donors by the state or the public. Second, they argue that, notwithstanding her voluntary policy against disclosing Schedule B forms to the public, the Attorney General may change her policy or be compelled to release...
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