California Pro-Life Council, Inc. v. Randolph

• Decision Date: 14 November 2007
• Docket Number: No. 05-15507.,05-15507.
• Citation: 507 F.3d 1172
• Parties: CALIFORNIA PRO-LIFE COUNCIL, INC., Plaintiff-Appellant, v. Liane RANDOLPH, Chairman of the Fair Political Practices Commission; Philip Blair, FPP Commissioner; Sheridan Downey, III, FPP Commissioner; Eugene Huguenin, FPP Commissioner; Pamela Karlan, FPP Commissioner; Bill Lockyer, Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

507 F.3d 1172

CALIFORNIA PRO-LIFE COUNCIL, INC., Plaintiff-Appellant, v. Liane RANDOLPH, Chairman of the Fair Political Practices Commission; Philip Blair, FPP Commissioner; Sheridan Downey, III, FPP Commissioner; Eugene Huguenin, FPP Commissioner; Pamela Karlan, FPP Commissioner; Bill Lockyer, Attorney General, Defendants-Appellees.

No. 05-15507.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2007.

Filed November 14, 2007.

James Bopp, Jr. (briefed and argued), Richard E. Coleson (briefed), Terre Haute, IN, for the appellant.

Teri L. Block (argued), Luisa Menchaca (briefed), Lawrence T. Woodlock (briefed and argued), Fair Political Practices Commission General Counsel; Louis R. Mauro, Senior Assistant Attorney General, Catherine M. Van Aken, Supervising Deputy Attorney General, Robert E. Leidigh, Deputy Attorney General, Kathryn Gimple (briefed), Sacramento, CA, for the appellees.

Trevor Potter, J. Gerald Hebert, Paul S. Ryan, Washington, DC; Daniel R. Ortiz, Charlottesville, VA, for amicus curiae Campaign Legal Center.

Rob McKenna, Attorney General, Nancy Krier, Senior Counsel, Olympia, WA, for amici curiae States of Washington, Arizona, Hawaii, Iowa, Montana, Nevada, New Mexico and Oregon.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-00-01698-FCD.

Before: JOHN T. NOONAN, RONALD M. GOULD, and JOHNNIE B. RAWLINSON, Circuit Judges.

RAWLINSON, Circuit Judge:

California Pro-Life Council, Inc. (CPLC) challenges certain provisions of California's Political Reform Act (PRA), including the PRA's definition of "contribution" and the recipient committee requirements imposed on a multi-purpose organization, such as CPLC. On cross-motions for summary judgment, the district court granted summary judgment in favor of Appellees (collectively referred to as California) and denied CPLC's motion for summary judgment. Because strict scrutiny applies and CPLC conceded the existence of a compelling governmental interest in the disclosure of the information at issue, we focus on the narrow tailoring inquiry, concluding that the definition of contribution is narrowly tailored, and the additional recipient committee requirements are not.

I. BACKGROUND

CPLC, a non-profit corporation under 26 U.S.C. § 501(c)(4), is a nonpartisan, nonsectarian, educational organization dedicated to educating the public on abortion, infanticide, and euthanasia. CPLC is the state affiliate of the National Right to Life Committee (NRLC), one of the nation's most powerful lobbying and interests groups. According to CPLC, its major purpose is not the nomination or election of candidates or the passage or defeat of ballot measures, but rather to educate Californians regarding the value of life. In keeping with its expressed purpose, CPLC periodically generates mass mailings, ranging from 15,000 to in excess of 100,000 in number.

The purpose of the PRA is to inform voters of the identity of individuals and/or organizations who expend money in support of or in opposition to ballot measures. The information collected pursuant to PRA disclosure requirements is accessible to the public via the Secretary of State's website. In 2004, there were 18,243,899 documented hits on this site, in 2005 11,118,821 documented hits, and in 2006 20,049,141 documented hits.

CPLC filed a ten-count amended verified complaint for declaratory and injunctive relief, alleging that particular provisions of the PRA violate the First and Fourteenth Amendments. Because CPLC disseminated voter guides before the 1998 primary and general elections and the 2000 primary election, expending, in excess of $1,000, it would be deemed a recipient committee under the Act. Although it would like to provide similar information to the general public in the future, as long as the PRA remains in effect, CPLC asserts that it will refrain, due to the requirements imposed upon a recipient committee and the consequent penalties for failure to comply.

Counts 1 (overbreadth — candidate communications), 2 (overbreadth — ballot measures), 3 (overbreadth — advocacy regarding candidates), 4 (overbreadth — advocacy regarding ballot measures), and 6 (facial challenge) were dismissed by the district court. Counts 5 (vagueness) and 10 (vagueness) were also dismissed to the extent that they were directed at regulation of communications involving candidates and mere discussion of ballot measure initiatives. The counts were not dismissed to the extent they were directed at express ballot measure advocacy. Thereafter, the parties stipulated to the dismissal without prejudice of counts 7 (major purpose), 8 (major purpose), and 9 (major purpose), i.e., all claims relating to state regulation of groups as committees without regard to their major purpose.

In 2003, we remanded this case to the district court to "determine whether California's informational interest is sufficiently compelling to justify its regulation of groups like CPLC and, if so, whether the PRA regulations are closely tailored to advance this interest." California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1101 (9th Cir.2003). Although we noted a lack of clarity regarding the appropriate level of scrutiny, we applied strict scrutiny. Id. at 1101 n. 16.

Upon remand, the district court concluded that the regulatory scheme imposed on CPLC and groups like CPLC who engage in express ballot measure advocacy is the least restrictive means available for California to achieve its compelling interest in fully informing voters and preventing organizations from disguising their involvement in express ballot measure advocacy. CPLC filed a timely appeal.

Although we agree with the district court that strict scrutiny applies and that the definition of contribution is narrowly tailored, we hold that the additional recipient committee requirements are not.

II. STANDARD OF REVIEW

"The district court's grant of summary judgment is reviewed de novo." Qwest Communications, Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir.2006) (citation omitted). "We must determine, viewing the evidence in the light most favorable to ... the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applies the substantive law." Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004) (citation omitted).

III. DISCUSSION

A. For Purposes Of Summary Judgment, CPLC Cannot Rely On "Factual Presuppositions."

CPLC argued to the district court that "the factual framework for th[e] remand is that provided [by the panel's decision in Getman.]" This argument raised several issues: (1) whether CPLC was relieved of its duty to present evidence; (2) if not, whether CPLC presented sufficient admissible evidence to raise an issue of material fact; (3) if CPLC failed to present sufficient evidence, whether its failure to do so is fatal to its appeal; (4) whether a district court is bound by the remand instructions from an appellate court; and (5) in the context of a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP), whether the district court was bound by the factual underpinnings of the remand order.

1. CPLC Was Not Relieved Of Its Duty To Present Evidence.

1. Contrary to CPLC's position that it could rely on "factual presuppositions" of the prior panel decision, the Getman panel noted that "a more fully developed record" was needed to resolve the compelling interest and narrowly tailored inquiries. See 328 F.3d at 1107. The panel's decision in no way relieved CPLC of its duty to present evidence to support its summary judgment motion or to challenge California's motion.

2. CPLC Failed To Present Sufficient Admissible Evidence To Raise An Issue Of Material Fact.

CPLC contends that its amended verified complaint qualifies as an affidavit for summary judgment purposes.¹ We disagree.

"[A] verified complaint may serve as an affidavit for purposes of summary judgment if [1] it is based on personal knowledge and if [2] it sets forth the requisite facts with specificity." Moran v. Selig, 447 F.3d 748, 760 n. 16 (9th Cir.2006) (citation omitted) (emphasis added). The verified complaint in this case was signed by Brian Johnston, the Executive Director of CPLC. During his deposition, Johnston's lack of personal knowledge regarding CPLC was apparent. A series of questions was asked regarding CPLC's PACs and Johnston responded that he did not know to nearly every inquiry. His knowledge regarding how CPLC funds are spent was also scant. As could be expected in view of Johnston's lack of personal knowledge, the verified complaint was impermissibly heavy on legal conclusions and light on "facts relevant to the summary judgment motion." Lew v. Kona Hospital, 754 F.2d 1420, 1424 (9th Cir.1985), as amended.

3. CPLC's Failure To Present Sufficient Evidence To Raise An Issue Of Material Fact Is Not Fatal To Its Appeal.

Even though we conclude that CPLC failed to present sufficient admissible evidence in support of its motion for summary judgment or in opposition to California's motion for summary judgment to raise a material question of fact, this determination is not dispositive. We must still determine whether the undisputed facts entitle California to summary judgment as a matter of law. See Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir.1993). This leads us to an examination of the remand order.

4. A District Court Is Bound To Follow The Instructions Of An Appellate Court Upon Remand.

"A district court, on remand, has a duty to follow this court's instructions as to how the case is to proceed." United States v. Montgomery, 462 F.3d 1067, 1072 (9th Cir.2006) (citation omitted). "[C]lear direction to the district court on how to proceed continues to be binding precedent ..." Operating Engineers Pension Trust v. Charles Minor Equip. Rental, Inc., 766 F.2d 1301,...