Calligan v. Superior Court (Gates)

• Decision Date: 18 September 1986
• Citation: 185 Cal.App.3d 734,230 Cal.Rptr. 388
• Court: California Court of Appeals
• Parties: Previously published at 185 Cal.App.3d 734 185 Cal.App.3d 734 Linda Lee CALLIGAN, Petitioner, v. SUPERIOR COURT of the State of California for the County of Orange, Honorable Judith Ryan, Judge Presiding, Respondent; Brad GATES; and A.E. Olson, Registrar of Voters of the County of Orange, Real Parties in Interest. G003959.

Page 388

230 Cal.Rptr. 388

Previously published at 185 Cal.App.3d 734

185 Cal.App.3d 734

Linda Lee CALLIGAN, Petitioner, v. SUPERIOR COURT of the State of California for the County of Orange, Honorable Judith Ryan, Judge Presiding, Respondent Brad GATES; and A.E. Olson, Registrar of Voters of the County of Orange, Real Parties in Interest.

G003959.

Court of Appeal, Fourth District, Division 3, California.

Sept. 18, 1986.

Review Granted Dec. 31, 1986.

Yacobozzi and Sterling, William Yacobozzi, Jr., Newport Beach, and Leland D. Sterling, for petitioner.

No appearance for respondent.

Darryl R. Wold, Newport Beach, Beam DiCaro, D'Anthony & Brobeck, and John R. DiCaro, Santa Ana, for real party in interest Brad Gates.

Adrian Kuyper, County Counsel, and David G. Epstein, Deputy County Counsel, Santa Ana, for real party in interest A.E. Olson.

OPINION

TROTTER, Presiding Justice.

We are asked to determine whether speech in the form of a candidate's statement may be restrained in the interest of providing accurate information to prospective voters in a nonpartisan county election.

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Pursuant to Elections Code section 10012, ¹ the Orange County Registrar prepares a Voter Information Pamphlet which is sent with a sample ballot to each registered voter in Orange County. Each candidate for nonpartisan office may submit a 200 word statement for inclusion in the pamphlet. The candidate is billed their pro-rata share of the cost of printing; however, the candidate does not pay any cost for mailing the pamphlets. The county pays the entire mailing cost for the pamphlet and the sample ballot package.

Petitioner ("Calligan") and Real Party Gates ("Gates") were candidates for the office of Orange County Sheriff, a nonpartisan position. Calligan submitted her candidate statement to the Orange County Registrar of Voters for inclusion in the Voter Information Pamphlet. Gates filed a petition for a writ of mandate and a complaint for an injunction pursuant to section 10013.5. ² Gates alleged portions of Calligan's statement were "false and misleading" and should be deleted from her pamphlet statement. ³

The superior court found section 10013.5 to be constitutional, and that some of the challenged statements were false and misleading. The court determined the statements, "[h]e's been convicted of a Federal crime and fined $100,000 which taxpayers paid. He owned a bar, a state law violation and covered up a Felony Drunk Driving arrest.... He's charged the taxpayers $5,100,000 for low security tents to house violent criminals...." were both false and misleading. It further found Gates had not met his burden of proving the statement " ... we've more lawsuits than any California jail" was false and misleading.

Calligan then sought a writ of prohibition in this court on April 3, 1986. The Registrar, in his response, indicated that April 3 was the last day on which changes could be made to the contents of the pamphlet without risking delays in printing and mailing. He indicated printing of the pamphlets must begin no later than April 7 to insure timely delivery.

In light of severe time restrictions, we issued a stay order immediately and on April 7, we directed the stay remain in effect and issued an alternative writ of mandate. We recognized our action would result in the distribution to the public of the unexpurgated version of Calligan's statement. Unable to fully brief and study the issue presented, our action was intended to protect whatever First Amendment rights were involved. A hearing to show cause was calendared for June 18, 1986, to allow the parties an opportunity to be fully heard in this court on a matter of constitutional impact.

On April 9, Gates petitioned the California Supreme Court for an extraordinary writ of mandate directing us to vacate our stay order. On April 10, the Supreme Court vacated our stay order and transferred the proceeding to us for consideration of the cause on the merits. As a result, the Registrar began printing the expurgated version instead of the original version. We denied Calligan's subsequent petition for advancement of the hearing date for the same reason we set the hearing date in the first place. The Supreme Court also denied her petition for an expedited hearing.

Calligan then sought relief from the United States District Court, Central District of California, under Title 42, U.S.C. section 1983. The court declined to grant Calligan her requested preliminary injunction, but did retain jurisdiction in order to act if the state courts did not.

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The issues are joined. They are of constitutional magnitude and great importance. Calligan argues section 10013.5 effects a prior restraint, and is therefore unconstitutional. Gates counters the state's interest in providing accurate information to potential voters is so significant it may restrain false and misleading statements in candidate statement pamphlets which it produces and partially subsidizes.

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Calligan's right as a candidate to openly debate and frame the issues concerning the election is certainly protected by the First Amendment. She has the right, if not the duty, to vigorously discuss issues and strenuously advocate her election. (Buckley v. Valeo (1976) 424 U.S. 1, 52-53, 96 S.Ct. 612, 651, 46 L.Ed.2d 659.) "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' (New York Times Co. v. Sullivan [ (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686.) ]" (Garrison v. Louisiana (1964) 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-216, 13 L.Ed.2d 125.)

Gates is also correct that in order to advance a significant and legitimate state interest certain speech may be restrained. "[I]t has been clear since this Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest. [Citation.]" (City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772.) In addressing this issue, Justice Rehnquist noted in his concurring opinion in Smith v. Daily Mail Publication Co. (1979) 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399, that protecting freedom of speech "has not meant that the public interest in free speech and free press has always prevailed over competing interests of the public. 'Freedom of speech thus does not comprehend the right to speak on any subject at any time,' [Citation], ... While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented. [Citations.]" (Id., at pp 106-107, 99 S.Ct. at 2672-2673 (conc. opn. of Rehnquist, J.).)

In weighing the conflicting interests presented, we find Gates has demonstrated a significant state interest in providing the electorate with accurate information concerning candidates in less publicized nonpartisan elections. "Preserving the integrity of the electoral process, preventing corruption, and 'sustain[ing] the active alert responsibility of the individual citizen in a democracy for the wise conduct of government' are interests of the highest importance. [Citations.]" (Fn. omitted.) (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 788-789 [98 S.Ct. 1407, 1422, 55 L.Ed.2d 707].)

We also observe Calligan's right to freely debate the issues is virtually without limitation when the debate is truthful. However, such discourse is subject to limitation when a candidate's statements are false. Though innocent or negligent falsehoods are constitutionally protected speech under the New York Times standard, "[t]he use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.... That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government.... Calculated falsehood falls into that class of utterances which 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality....' [Citation.] Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection." (Garrison v. Louisiana (1964) 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125.)

Further, Calligan's argument that New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 guarantees her right to publish the deleted statements in a privately financed medium, while correct, misses the mark. The question is, in utilizing a medium which is at least partially subsidized ⁴ and designed to neither promote nor restrict debate, but to instead give honest, reliable factual information to the voters, is restraint constitutionally proscribed? We think not.

Section 10013.5, by permitting restraint of innocent falsehoods, extends the reach of New York Times v. Sullivan. New York Times and its progeny require that a party know of or recklessly disregard a statement's likely untruth. This rule reflects the Supreme Court...