California Prolife Council v. Scully, CIV. S-96-1965LKK/DAD.

• Decision Date: 06 January 1998
• Docket Number: No. CIV. S-96-1965LKK/DAD.,CIV. S-96-1965LKK/DAD.
• Citation: 989 F.Supp. 1282
• Court: U.S. District Court — Eastern District of California
• Parties: CALIFORNIA PROLIFE COUNCIL POLITICAL ACTION COMMITTEE, Plaintiff, v. Jan SCULLY, et al., Defendants and Defendants in Intervention. And Consolidated Actions.

Page 1282

989 F.Supp. 1282

CALIFORNIA PROLIFE COUNCIL POLITICAL ACTION COMMITTEE, Plaintiff, v. Jan SCULLY, et al., Defendants and Defendants in Intervention And Consolidated Actions.

No. CIV. S-96-1965LKK/DAD.

United States District Court, E.D. California.

January 6, 1998.

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George Waters, Olson, Hagel, Leidigh, Waters & Fishburn, Sacramento, CA, for plaintiff California Democratic Party.

John E. Mueller, Nielsen, Merksamer, Parrinello, Mueller & Naylor, Mill Valley, CA, for plaintiffs California Republican Party, Schroeder, Swartz, Wolin, Steel & Leonard.

Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, CA, for the Union plaintiffs.

Thomas Kevin Hockel, Walnut Creek, CA, for plaintiff California Prolife Council Political Action Comm.

James Bopp, Jr., John K. Abegg, Bopp, Coleson & Bostrom, Terre Haute, IN, for plaintiff California Prolife Council Political Action Comm.

James V. Lacy, Lacy and Lacy, Laguna Niguel, CA, for plaintiffs Hoffenblum & Levine.

Lawrence Thomas Woodlock & Deborah Allison, Fair Political Practices Comm'n, Sacramento, CA, for defendant Fair Political Practices Commission.

Bradley S. Phillips, Steven Weisburd, Munger, Tolles & Olson, Los Angeles, CA, for Intervenors Miller & Holton.

Deborah Goldberg, Brennan Center for Justice, New York, NY, for Intervenors Miller & Holton.

OPINION¹

KARLTON, Chief Judge Emeritus.

A healthy scepticism on the part of the governed concerning those who govern is as much a mark of a vibrant democracy as a paranoid suspicion is a symptom of its decline. Whether California's voters entertain the former or suffer the latter is of some moment in the matter at bar. After a two-week trial the issue remains one upon which reasonable minds might disagree.² That some elected officials have subordinated the duties of their office to their personal greed and ambition is hardly news or new. It is also true, however, that many seek office to advance their political convictions, and if elected, discharge the duties of their office pursuant to their view of the public good, as that view is informed by their ideology.³ This case tests whether the evident disaffection from the prior political regimen of campaign financing exhibited by California's voters in adopting Proposition 208 is premised upon a proper concern or rests upon an exaggerated view, and whether in either event, the various provisions of the initiative abridge those constitutional rights which are central to preservation of the democratic process.⁴

Proposition 208 is an initiative adopted by California's voters. Its some fifty sections adding to and amending the California Government Code⁵ seek to regulate, inter alia, who may contribute to political campaigns, how much may be contributed, when contributions can be made, what purposes the contributions may be put to, the contents of various political advertisements and, indirectly, the extent of expenditures. Essentially the instant suit challenges each substantive provision asserting that it violates the strictures of the First Amendment to the United States Constitution.⁶ It is brought by a political action committee ("PAC") representing those who seek to limit abortions, various labor unions and their PACs, individual contributors to political campaigns, candidates and prospective candidates, officeholders, the Republican and Democratic parties, and two professional slate mailers. The initiative is defended by California's Fair Political Practices Commission ("FPPC"), the state agency responsible for its administration, and its official proponents, who were permitted to intervene.⁷

Before addressing the substantive provisions of Proposition 208, the court must first consider whether it should resolve this facial challenge to a state statute which has not been authoritatively construed by the state courts.

I. FEDERAL COURTS AND STATE STATUTES

Plaintiffs' decision to challenge in a federal forum a California statute that has not yet been authoritatively construed by the California Supreme Court raises questions about a federal court's role in such circumstances. Below, I first examine whether this court should reach the merits of the litigation.

A. Abstention, Certification or Resolution on the Merits

The Constitution of the United States provides for a federal judiciary. Its jurisdiction extends to "all cases, in law and equity, arising under this constitution and the laws of the United States." U.S. Const., Art. III.

Given the constitutional source of the federal courts' jurisdiction over cases arising under the fundamental document, it is hardly surprising that in federal question cases "federal courts have a `virtually unflagging obligation ... to exercise the jurisdiction given them.'" England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Nevertheless, where the resolution of a federal question case turns on the meaning of a state's statute, the Supreme Court has suggested a more cautious approach. It has been said that federal courts "normally ... ought not to consider the constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state court." Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1074, 137 L.Ed.2d 170 (1997).⁸

Arizonans' counsel of restraint appears premised, at least in part, upon the fact that a federal court, while it may speak decisively about federal law, lacks authority to definitively interpret a state statute. Id. at ___, 1073-74 (holding that federal courts lack competence to rule definitively on the meaning of state legislation); Moore v. Sims, 442 U.S. 415, 429, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state courts "are the principal expositors of state law"). The High Court has also opined that resort to the state courts serves to avoid "friction generating error" which a federal court risks when it "endeavors to construe a novel state act not yet reviewed by the State's highest court." Arizonans, 520 U.S. at ____, 117 S.Ct. at 1074.⁹ As I now explain, however, it is not always desirable or even feasible to decline resolution of a claim under the federal constitution because it implicates construction of a state statute which has not been reviewed by the state's highest court.

A federal court asked to determine the constitutionality of a state statute not yet considered by the state court has at least three options. First, the court may abstain under the principles first enunciated in Railroad Commission of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Second, in many states a federal court has the option of certification directly to the highest court of the state. Finally, the court may proceed to the merits of the constitutional question notwithstanding the absence of an authoritative state court construction. Below I consider each option in the matter at bar.

Pullman abstention derives from the general rule that constitutional issues should be avoided where a case can be disposed of on non-constitutional grounds.¹² The Court observed that a federal court's resolution of a state law issue could not "escape being a forecast rather than a determination" because the "last word" on the construction of the state statute belonged to the state's highest court. Pullman, 312 U.S. at 499-500. Thus, where state court construction may avoid resolution on constitutional grounds, Pullman suggests that a federal court may direct the plaintiff to bring a state court action on the state law question.¹³ But see Lehman Brothers v. Schein, 416 U.S. 386, 390, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974) ("mere difficulty in ascertaining local law is no excuse for remitting the parties to a state tribunal for the start of another lawsuit").

The High Court has made clear, however, that abstention is not warranted in every instance in which the state court has not passed on a particular state law question. See Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) ("where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim"); Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) ("federal courts need not abstain ... when a state statute is not `fairly subject to an interpretation which will render unnecessary adjudication of the federal constitutional question'"). Especially, where, as here, a statute is alleged to abridge free expression, federal courts have been reluctant to accept the delay attendant upon initiation and resolution of state court proceedings. See Houston v. Hill, 482 U.S. 451, 467, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (observing that "we have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment"); see also Dombrowski v. Pfister, 380 U.S. 479, 489-92, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (abstention not appropriate where statute was challenged as abridging First Amendment activities).¹⁴

The problem tendered here is similar to that considered in Bates v. Jones, 904 F.Supp. 1080, 1087 (N.D.Cal.1995). There, the intervenors moved for abstention, noting the existence of a pending state court case. The district court denied the motion. It first concluded that there was no reasonable chance that a California court would invalidate the enactment on state constitutional grounds. Moreover, given that the state opposed abstention, the court concluded that the interest in avoiding friction with state policies was not implicated. Finally, it concluded that proceeding to the merits was consistent with the state's interest because the delay resulting from abstention would impair state functions by causing chaos in the upcoming election. Many of the same considerations exist in the case...