California Democratic Council v. Arnebergh

• Decision Date: 05 April 1965
• Citation: 43 Cal.Rptr. 531,233 Cal.App.2d 425
• Court: California Court of Appeals Court of Appeals
• Parties: , 5 Rad. Reg. 2d (P & F) 2073 CALIFORNIA DEMOCRATIC COUNCIL, etc., et al., Plaintiffs and Appellants, v. Roger ARNEBERGH et al., Defendants and Respondents. Civ. 28396.

Page 531

43 Cal.Rptr. 531

233 Cal.App.2d 425, 5 Rad. Reg. 2d (P & F) 2073

CALIFORNIA DEMOCRATIC COUNCIL, etc., et al., Plaintiffs and Appellants, v. Roger ARNEBERGH et al., Defendants and Respondents.

Civ. 28396.

District Court of Appeal, Second District, Division 1, California.

April 5, 1965.

Rehearing Denied April 23, 1965.

Hearing Denied June 2, 1965.

Leon M. Cooper, Los Angeles, for appellants.

Thomas C. Lynch, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., Sanford N. Gruskin, Deputy Atty. Gen., Harold W. Kennedy, County Counsel, Edward H. Gaylord, Asst. County Counsel, Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., and Claude E. Hilker, Asst. City Atty., for respondents.

LILLIE, Justice.

By this action for declaratory relief and an injunction, plaintiffs have challenged the constitutionality of certain legislation enacted in 1963 and known as the 'Truth in Endorsements Law.' (Elec.Code, § 8600 et seq.) Specifically exempted from the above challenge are section 8601, subdivisions (1) and (2), and section 8602. Defendants had judgment on the pleadings; in addition to denying an injunction, the judgment declared that section 8600, section 8601, subdivisions (3) and (4), and sections 8603 through 8606 of the Elections Code are constitutional and may be constitutionally applied to all of the plaintiffs.

The legislation provides, in brief, that every advertisement which (1) makes reference to any candidate for nomination for partisan office in a direct primary and (2) contains a statement to the effect that the candidate has been endorsed by an organization using as a part of its name the name of a political party, shall (3) bear a notice that the organization is an unofficial political group. ¹ California Democratic Council is concededly a group of volunteer, unpaid party members not acting in any official party capacity; the individual plaintiffs are either members of the above organization or intend to seek its pre-primary endorsement for public office. It is alleged that neither the individual plaintiffs, nor plaintiff California Democratic Council, desire to print material relating to their pre-primary endorsements on the form of notice prescribed by one of the subject statutes, namely, that it be in type or lettering at least half as large as the type or lettering of the statement and set apart from any other printed matter in a drawn or printed box. It is further alleged that any attempt to print or distribute literature in violation thereof subjects plaintiffs to restraint by injunction and the possible application of penal sanctions, thus inhibiting them in the exercise of their political rights.

Plaintiffs first assert that the legislative measures in question infringe on freedom of speech and of the press as guaranteed by the federal and state Constitutions--this, in addition to the restraint said to be imposed on their right of free association in the electoral process, citing Fort v. Civil Service Commission, 61 Cal.2d 331, 334-335, 38 Cal.Rptr. 625, 392 P.2d 385. We find this contention untenable. While our state Constitution declares that 'All political power is inherent in the people' (Cal.Const., art. I, § 2), we are here concerned with laws enacted pursuant to a constitutional amendment which expressly empowers the Legislature to establish tests governing the right of political parties to participate in primary elections. (Cal.Const., art. II, §§ 2 1/2.) The broad regulatory power thus given includes authority 'to determine the tests and conditions upon which electors, political parties, or organizations of electors may participate in any such election.' Almost 50 years ago, in Heney v. Jordan, 179 Cal. 24, 27-28, 175 P. 402, 404, the court declared that 'the question as to what provisions are essential to attain the objects contemplated by section 2 1/2, article 2, of the Constitution, is one peculiarly within the domain of the legislative department, which is practically given plenary power in the matter; that the presumption is in favor of the validity of any provision made; and that, if there is any theory upon which the provision might reasonably have been concluded by the Legislature to be essential, the courts may not interfere.'

It may not fairly be argued that the statutes under attack do not serve to attain the legitimate objective of requiring, as was stated in Heney, supra, that 'all party nominations to be made directly by the members of the party at a primary election.' (p. 31, 175 P. p. 405.) Such nominations cannot intelligently be forthcoming when there is doubt and confusion as to whether pre-primary endorsements are those of an official governing body of a political party or otherwise. Indeed, section 8602 of the Elections Code (specifically exempted from challenge) prohibits even official governing bodies of political parties, formally listed in the statute, from endorsing any candidate for partisan office in the direct primary. In this connection, the Legislature went to the lengths of adopting certain findings (Elec.Code, § 8601); subdivision (3) thereof finds that 'Over the several years preceding the adoption of this section organizations of electors using as a part of their names the name of a political party qualified to participate in the direct primary election have endorsed candidates for nomination of that party * * * and have publicized and promulgated such endorsements in a manner which has resulted in considerable public doubt and confusion as to whether such endorsements are those of a private group of citizens or of an official governing body of a political party.' Not only must we assume that the Legislature has realistically and by reasonable means attempted to remedy, in the public interest, a situation which it found to be particularly prevalent (Lelande v. Lowery, 26 Cal.2d 224, 234, 157 P.2d 639, 175 A.L.R. 1109), but we are faced with the 'conclusive presumption' that 'the Governor and the Legislature have performed their duty, and ascertained the existence of the fact before enacting or approving the law * * *.' (Smith v. Mathews, 155 Cal. 752, 756, 103 P. 199, 201.)

There is also a finding by the Legislature (§ 8601, subd. (4)) that 'The voting public is entitled to protection by law from deception in political campaigns in the same manner and for the same reasons that it is entitled to protection from deception by advertisers of commercial products.' Over the years, of course, there has been considerable decisional law supporting the police power of legislative bodies to prohibit deceptive or misleading statements as they pertain to commercial advertising. See Serve Yourself Gas, etc., Ass'n v. Brock, 39 Cal.2d 813, 249 P.2d 545, and cases there cited. Even if literally true, the statements may be actually misleading and subject to regulation. (Donaldson v. Read Magazine, 333 U.S. 178, 68 S.Ct. 591, 92 L.Ed. 628.) Too, misleading statements may be prohibited even if published without any fraudulent intent. (Dodge Stationery Co. v. Dodge, 145 Cal. 380, 78 P. 879.) While cited by the parties to no statute or decision directly in point, we are not persuaded (as appellants urge us to hold) that the above analogy by the Legislature is an unreasonable one. True, 'votes are not oleomargarine,' but the analogy bears a reasonable relationship to the objectives to be attained by the legislation in question.

But, say appellants, under the guise of preventing the dissemination of misleading literature the present legislation constitutes a form of 'self-censorship.' They cite New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, which uses the terminology just quoted, for the claim that such censorship is to be avoided because it 'dampens the vigor and limits the variety of public debate.' The cited decision is also relied on by appellants for the contention that sections 8603-8606 cannot 'be justified in the interest of preventing even an implication of falsehood.' The Times case, however, which struck down an Alabama libel statute is distinguishable from our case. In the first place, it was concerned with the contents of a publication, not the identity or status of the author. A second distinction is pointed out in Canon v. Justice Court, 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428, where the court was confronted with another disclosure, namely, section 12047 of the Elections Code. ² After according recognition to the consideration noted in the Times case, supra, that it is 'of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages,' the court declared: 'There is a crucial difference, however, between the interests at stake in a libel case and those involved in the enforcement of a purity of elections statute. In the former, we juxtapose against free speech the risk of harm to the reputation of an individual. * * * However, the disclosure requirement of section 12047 does far more than protect the reputation of candidates. It furthers the very ends sought to be achieved through the right of free speech, to wit, 'that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.' [Citations.] This end is attained when the will of the people is an undeceived, well-informed will.' (p. 458, 39 Cal.Rptr. p. 235, 393 P.2d p. 435.) The statute was held to pass 'the freedom of speech barricade.' (p. 460, 39 Cal.Rptr. 228, 393 P.2d 428.)

Finally, with respect to the guarantees of free speech and of the press, if should be emphasized that the sections do not curtail the right to endorse any candidate; they merely require that the use of the name of a political party not mislead the voters. In other words, the use of the political party's name is not prohibited, but only the use of that name in a manner that might tend to create a misimpression, albeit wholly unintended. These...