Clark v. Burleigh

• Citation: 7 Cal.App.4th 162,279 Cal.Rptr. 333
• Decision Date: 28 March 1991
• Docket Number: No. H007141,H007141
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 228 Cal.App.3d 1369, 235 Cal.App.3d 215, 7 Cal.App.4th 162 228 Cal.App.3d 1369, 235 Cal.App.3d 215, 7 Cal.App.4th 162 Bradley J. CLARK, as Registrar of Voters, etc., Plaintiff and Respondent, v. William B. BURLEIGH, as Judge, etc., Defendant and Appellant; Richard M. Silver, as Judge, etc., Respondent.

Page 333

279 Cal.Rptr. 333

Previously published at 228 Cal.App.3d 1369, 235 Cal.App.3d 215, 7 Cal.App.4th 162

228 Cal.App.3d 1369, 235 Cal.App.3d 215, 7 Cal.App.4th 162

Bradley J. CLARK, as Registrar of Voters, etc., Plaintiff and Respondent, v. William B. BURLEIGH, as Judge, etc., Defendant and Appellant Richard M. Silver, as Judge, etc., Respondent.

No. H007141.

Court of Appeal, Sixth District, California.

March 28, 1991.

Review Granted July 11, 1991.

[228 Cal.App.3d 218] [7 Cal.App.4th 165] David W. Brown, Monterey, for respondent/appellant.

Ralph R. Kuchler, County Counsel, Albert H. Maldonado and Leroy W. Blankenship, Deputy County Counsel, County of Monterey, for petitioner/respondent.

No appearance by respondent.

ELIA, Associate Justice.

Respondent Bradley J. Clark filed an action for declaratory relief to determine whether Elections Code section 10012.1 ¹ violated either the First Amendment or the Fourteenth Amendment of the United States Constitution or Article I, section 2 of the California Constitution. Judge William B. Burleigh cross-petitioned for a writ of mandate to compel respondent to publish certain information in a voter's pamphlet. The trial court determined that section 10012.1 was constitutional.

We disagree. We conclude that section 10012.1 is overbroad and not narrowly tailored to effectuate a compelling interest. It is also a prior restraint of speech. Accordingly, section 10012.1 violates the First Amendment of the United States Constitution and must be stricken.

FACTS AND PROCEDURAL BACKGROUND

Appellant was a candidate for Superior Court Judge. In preparation for the election, he submitted a candidate's statement for publication in the voter's information pamphlet. The voter's information pamphlet is published by the county prior to the election. Its purpose is "to give the voters information concerning the measures on the ballot." (Hart v. Jordan (1939) 14 Cal.2d 288, 292, 94 P.2d 808; see also Ferrara v. Belanger (1976) 18 Cal.3d 253, 263, 133 Cal.Rptr. 849, 555 P.2d 1089.)

In his candidate's statement, appellant referred to his opponent, incumbent Judge Richard M. Silver. ² Appellant stated, among other things, that Judge Silver had been appointed by former California Governor Jerry Brown, and that appellant was "greatly disturbed by his [Silver's] decisions." Appellant claimed that "criminal activity is being dismissed," and that "Innocent citizens had their lives and businesses disrupted by court interference." Appellant listed examples of cases allegedly decided by Judge Silver. In conclusion, appellant stated "It's time to get tough with criminals ... time to end court interference and [sic] community affairs."

Section 10012.1 regulates the statements of candidates for judicial office. It limits judicial candidates' statements to "a recitation of the candidate's own personal background and qualifications." Section 10012.1 prohibits "reference to other candidates for judicial office or to another candidate's qualifications, character or activities." Statements which violate section 10012.1 will be deleted by the clerk. The statute provides, "[t]he clerk shall not cause to be printed or circulated any statement which the clerk determines is not so limited or which includes any such references." (Emphasis added.) ³

Respondent Bradley J. Clark is the Registrar of Voters for Monterey County. Clark filed a declaratory relief action to determine whether appellant's candidate statement was prohibited by section 10012.1. Clark also sought to determine whether section 10012.1 was constitutional.

Appellant filed a cross-petition for a writ of mandate asking that respondent be ordered to publish the candidate's statement as submitted.

The trial court ordered appellant to delete all references to Judge Silver from the candidate's statement. The court determined that section 10012.1 did not violate either the First or Fourteenth Amendments of the United States Constitution or violate Article I, section 2 of the California Constitution.

This appeal ensued.

DISCUSSION

I. MOOTNESS

Election disputes often present legal questions " 'capable of repetition, yet evading review.' " (Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 [citation omitted]; see also Ferrara v. Belanger, supra, 18 Cal.3d at p. 259, 133 Cal.Rptr. 849, 555 P.2d 1089.) This is because the election is usually over by the time the case reaches the appellate courts. Because such cases may raise issues of general public interest, they are frequently reviewed even though the relief sought may not be available. (Unger v. Superior Court (1984) 37 Cal.3d 612, 614, 209 Cal.Rptr. 474, 692 P.2d 238; Ferrara v. Belanger, supra, 18 Cal.3d at p. 259, 133 Cal.Rptr. 849, 555 P.2d 1089; Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872, 231 Cal.Rptr. 150; Patterson v. Board of Supervisors (1988) 202 Cal.App.3d 22, 26-27, 248 Cal.Rptr. 253.)

This is such a case. The election is over; appellant did not prevail. It is therefore too late to reinsert the deleted material into the voter's pamphlet. Nonetheless, the issues regarding the constitutionality of section 10012.1 are of great interest and are likely to reoccur in future elections. Accordingly, we will consider the arguments raised by the parties.

II. FIRST AMENDMENT

Is section 10012.1 constitutional? Appellant argues that it is not. He contends that section 10012.1, on its face, violates his rights under the First Amendment of the United States Constitution and under Article I, section 2 of the California Constitution. We agree.

Our analysis of the constitutionality of section 10012.1 will proceed as follows. First, we will decide whether the voter's pamphlet is a public forum, limited public forum, or nonpublic forum. Second, after concluding that the voter's pamphlet is a limited public forum, we will determine whether the pamphlet restricts judicial candidates' statements based upon content.

Third, we will apply the test applicable to content-based restrictions in limited public forums. The test is whether section 10012.1 is necessary to further a compelling interest and narrowly tailored to achieve that interest. In discussing this test, we will consider all of its components: whether section 10012.1 embodies a compelling interest, whether it furthers a compelling interest, whether it is necessary to further the interest, and whether it is narrowly tailored.

Finally, we shall consider whether section 10012.1 is a prior restraint of speech. Upon completing our analysis, we will conclude that section 10012.1 violates the First Amendment because it is not narrowly tailored and because it is a prior restraint of speech.

A. TYPE OF FORUM

We begin with the nature of the forum. We must determine whether the voter's pamphlet is a public forum, limited public forum or nonpublic forum. The question is important because the power of the state to regulate expressive activity varies according to where the speech takes place. (See e.g. Niemotko v. Maryland (1951) 340 U.S. 268, 282-283, 71 S.Ct. 325, 333, 95 L.Ed. 267 [Frankfurter, J., concurring]; Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 815, 105 S.Ct. 3439, 3455, 87 L.Ed.2d 567 [dis. opn. of Blackmun, J.]; Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794.) As we shall explain below, we conclude that the voter's pamphlet constitutes a limited public forum.

The Supreme Court has defined three different types of forums for speech activities. (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at pp. 45-46, 103 S.Ct. at pp. 954-955.) A public forum is one which traditionally has been used for assembly and debate or which has been created by government fiat. (Id. at p. 45, 103 S.Ct. at p. 954.) Examples of public forums include streets and parks. Such areas " 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " (Id. at p. 45, 103 S.Ct. at pp. 954-955; quoting Hague v. CIO (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.)

A limited public forum is public property which has been opened up for expressive use. (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37, 45, 103 S.Ct. 948, 954.) Although the state does not have to retain the forum indefinitely, as long as it does, "it is bound by the same standards as apply in a traditional public forum." (Id. at p. 46, 103 S.Ct. at p. 955.) Examples of limited public forums include university meeting facilities, school board meetings, and a municipal theater. (See Widmar v. Vincent (1981) 454 U.S. 263, 267-268, 102 S.Ct. 269, 273, 70 L.Ed.2d 440; Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm'n (1976) 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376; Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448.) A public forum may also be created for a limited purpose. For instance, it may be designated for use by a certain segment of the public or be opened for the discussion of certain subjects. (Perry, supra, 460 U.S. at p. 46, fn. 7, 103 S.Ct. at p. 955, fn. 7; citing Widmar v. Vincent, supra, 454 U.S. 263, 102 S.Ct. 269 [student groups] and Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm'n, supra, 429 U.S. 167, 97 S.Ct. 421 [school board business].)

A nonpublic forum is one which has not traditionally been used for communication or which has not been designated for public use. (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955.) Examples include a U.S. mailbox, school mail facilities, and a military base. (U.S. Postal Service v. Greenburgh Civic Assns. (1981) 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517; Perry, supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955; Greer v. Spock (1976) 424 U.S. 828, 838, 96...