Chula Vista Citizens for Jobs & Fair Competition v. Norris

• Decision Date: 22 March 2012
• Docket Number: Case No. 09cv0897 BEN (JMA).
• Citation: 875 F.Supp.2d 1128
• Court: U.S. District Court — Southern District of California
• Parties: CHULA VISTA CITIZENS FOR JOBS AND FAIR COMPETITION, et al., Plaintiffs, v. Donna NORRIS, et al., Defendants, and State of California, Intervenor.

875 F.Supp.2d 1128

CHULA VISTA CITIZENS FOR JOBS AND FAIR COMPETITION, et al., Plaintiffs,
v.
Donna NORRIS, et al., Defendants,
and
State of California, Intervenor.

Case No. 09cv0897 BEN (JMA).

United States District Court,
S.D. California.

March 22, 2012.

[875 F.Supp.2d 1131]

Brian T. Hildreth, Charles H. Bell, Jr., Bell McAndrews & Hiltachk LLP, Sacramento, CA, Gary D. Leasure, Workman Leasure, LLP, San Diego, CA, James Bopp, Jr., Noel Henry Johnson, The Bopp Law Firm, Joseph E. La Rue, Bopp Coleson & Bostrom, Terra Haute, IN, for Plaintiffs.

Bart C. Miesfeld, Office of the City Attorney, Chula Vista, CA, Charles A. Bird, McKenna Long & Aldridge LLP, Edward P. Swan, Jr., Jones Day, San Diego, CA, for Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT and GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ROGER T. BENITEZ, District Judge.
I. INTRODUCTION

This case presents two questions of first impression. It asks whether the First Amendment grants a corporation or association the right to serve as the official proponent of a local ballot initiative. It also asks whether official proponents enjoy a First Amendment right to anonymity during the period when signatures are being gathered. Having considered the arguments and the evidence presented, this Court answers “no” to both questions. The plaintiffs also ask that certain statutory requirements governing ballot initiatives be declared void for vagueness. The Court finds those sections are sufficiently clear to pass constitutional muster.

[875 F.Supp.2d 1132]

II. BACKGROUND

The Plaintiffs are the Chula Vista Citizens for Jobs and Fair Competition (an unincorporated association), the Associated Builders & Contractors, Inc. (a corporation), Lori Kneebone and Larry Breitfelder (residents and registered voters of Chula Vista, California). The Defendants are Chula Vista city officials sued in their official capacities. The State of California has intervened to defend the constitutionality of California's elections laws.

Chula Vista Citizens and Associated Builders & Contractors, Inc., attempted to propose an initiative to be placed on the ballot in the City of Chula Vista, but it was rejected by the City Clerk. Then Kneebone and Breitfelder proposed an initiative and it was accepted and enough signatures collected to place the initiative on the ballot. The ballot measure, known as “Proposition G,” passed on June 8, 2010 by a margin of 55.75% to 44.25%.¹

Plaintiffs filed their Complaint challenging state and municipal election laws as violating the First Amendment: (a) by preventing corporations and associations from serving as official proponents of Proposition G; and (b) by requiring the official proponents of Proposition G to disclose their names during the time of circulating Proposition G for signature gathering. Plaintiffs also challenge as too vague various terms in the statutes governing ballot initiatives.

Plaintiffs and Defendants have filed cross-motions for summary judgment on all counts of the Complaint.² There are no genuine issues of material fact present and the motions are ripe for decision. Having reviewed the evidence and arguments, the Court denies Plaintiffs' motion and grants Defendants' motion.

III. DISCUSSION A. THE ELECTOR (OR NATURAL PERSON) REQUIREMENT
Only Electors May Be Official Proponents; Only Natural Persons May Be Electors

The California Constitution provides that its citizenry may propose laws for popular consideration. Likewise, the City of Chula Vista Charter also permits its citizenry to propose ordinances for the ballot. To begin the process, both Chula Vista and California require a ballot initiative be officially and formally proposed by an “elector.” See City of Chula Vista Charter § 903; Cal. Elec.Code § 342. Section 903 of the City Charter states in part,

There are hereby reserved to the electors of the City the powers of the initiative and referendum and of the recall of municipal elective officers.

(emphasis added). Chula Vista's Charter incorporates the California Elections Code. Under California Elections Code § 9202(a), to start the process a “proponent”

[875 F.Supp.2d 1133]

must sign and file a notice of intention with the text of the ballot initiative.³ For state-wide measures, California Elections Code § 342 defines an initiative proponent in terms of “electors,”

“Proponent or proponents of an initiative or referendum measure” means, for statewide initiative and referendum measures, the elector or electors who submit the text of a proposed initiative ...
(emphasis added). California Elections Code § 321 defines an “elector” to be a natural person and a resident,

“Elector” means any person who is a United States citizen 18 years of age or older and a resident of an election precinct at least 15 days prior to an election.

An “elector” may be a voter once he or she registers to vote. SeeCal. Elec.Code § 359. Consequently, only a natural person may be an official initiative proponent because the privilege is restricted to “electors.”

Plaintiffs do not disagree, but argue that the natural person requirement offends the First Amendment to the United States Constitution. Consequently, Plaintiffs ask this Court to declare California Elections Code §§ 342 and 9202 unconstitutional ⁴ to the extent that they exclude corporations and unincorporated associations from serving as official proponents of a municipal ballot initiative.

Though Corporations and Associations Have First Amendment Rights, They May Not Propose Legislation Through a California Ballot Initiative

Assuming that Plaintiffs have Article III standing,⁵ their arguments are unpersuasive.

[875 F.Supp.2d 1134]

The main contention advanced by the Plaintiffs is that corporations and associations have a First Amendment right to propose legislation in the form of a qualifying ballot initiative.⁶ Their argument relies upon the Supreme Court's recent decision that “First Amendment protection extends to corporations.” Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 899–900, 175 L.Ed.2d 753 (2010) (“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because associations are not ‘natural persons.’ ”).⁷ Plaintiffs' contention is both novel and breathtaking in its potential application. As the City Defendants correctly point out, there is “no record that anybody has ever attacked a state law similar to the elector requirement before.... None of the cases cited in plaintiffs' motion addresses the issue, even in dictum or by implication.” May a state or municipality constitutionally limit its law-making machinery to natural person citizen electors? Or, must it also allow associations and corporations to exercise law-making functions? Plaintiffs view the question in terms of a corporation's right to engage in protected political speech. Defendants, on the other hand, view the question in terms of the rights of citizens to self govern.

Plaintiffs contend that the elector requirement impermissibly prohibits associational speakers from speaking. The argument begins with the well-accepted position that advocating for an initiative petition is core political speech. It continues with the also well-accepted idea that the circulation of a ballot initiative involves core political speech. See Meyer v. Grant, 486 U.S. 414, 421–22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Plaintiffs then attempt to stretch the idea of advocation and circulation to include the mechanics of initiation. They argue that the act of proposing an initiative is also core political speech and that corporations and associations are

[875 F.Supp.2d 1135]

banned ⁸ from speaking in that way. But the acts of ballot initiation are qualitatively different than acts of engaging in the First Amendment dialog of circulation or advocation. Angle v. Miller, 673 F.3d 1122, 1133 & n. 5 (9th Cir.2012) (citing Meyer, 486 U.S. at 424–25, 108 S.Ct. 1886) (“There is no First Amendment right to place an initiative on the ballot.”)

The Power of the Initiative Is Reserved to the People of California

“The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California.” Perry v. Schwarzenegger, 628 F.3d 1191, 1197 (9th Cir.2011). Under California's constitutional form of government, “All political power is inherent in the people.” Cal. Const. art. II, § 1; Schwarzenegger, 628 F.3d at 1196. While the state legislature passes most laws, the people of California have retained for themselves the power to pass laws and amend their Constitution. Cal. Const. art. IV, § 1; Schwarzenegger, 628 F.3d at 1196 (“the sovereign people's initiative power is considered to be a fundamental right.”). The state constitution makes clear that this initiative power belongs to people. Neither corporations nor unincorporated associations are mentioned. Cf. Citizens United, 130 S.Ct. at 972 (Stevens, J., concurring and dissenting in part) (“Corporations ... are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”). “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt them or reject them.” Cal. Const. art. II, § 8 (emphasis added); Schwarzenegger, 628 F.3d at 1196. The Supreme Court of California describes the initiative power held by California citizens:

The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.

Assoc. Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 591–92, 135 Cal.Rptr. 41, 557 P.2d 473 (1976) (citations omitted); see also ...