Geary v. Renne

• Decision Date: 31 August 1990
• Docket Number: No. 88-2875,88-2875
• Citation: 911 F.2d 280
• Parties: Bob GEARY; Robert Silvestri; Dennis Mark; Melissa Gundrun; Wayne Johnson; David Soule; Max Woods; Peter Johnson; Robert Gebert; Election Action; Terence Faulkner; and Sudi Trippet, Plaintiffs-Appellees, v. Louise RENNE, San Francisco City Attorney; Dianne Feinstein, San Francisco Mayor; Board of Supervisors, City and County of San Francisco; City and County of San Francisco, and Jay Patterson, San Francisco Registrar of Voters, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 280

911 F.2d 280

59 USLW 2159

Bob GEARY; Robert Silvestri; Dennis Mark; Melissa Gundrun; Wayne Johnson; David Soule; Max Woods; Peter Johnson; Robert Gebert; Election Action; Terence Faulkner; and Sudi Trippet, Plaintiffs-Appellees, v. Louise RENNE, San Francisco City Attorney; Dianne Feinstein, San Francisco Mayor; Board of Supervisors, City and County of San Francisco; City and County of San Francisco, and Jay Patterson, San Francisco Registrar of Voters, Defendants-Appellants.

No. 88-2875.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 25, 1990.

Decided Aug. 14, 1990.

As Amended Aug. 31, 1990.

David Benjamin, Deputy City Atty. and Dennis Aftergut, Chief Asst. City Atty., San Francisco, Cal., for defendants-appellants.

Arlo Hale Smith, San Francisco, Cal., for plaintiffs-appellees.

Anthony Saul Alperin, Asst. City Atty., Los Angeles, Cal., for amicus curiae Tom Bradley, Mayor of the City of Los Angeles.

Cedric C. Chao, Morrison & Foerster, San Francisco, Cal., for amicus curiae California Democratic Party, et al.

Curtis M. Fitzpatrick, Asst. City Atty., San Diego, Cal., for amicus curiae City of San Diego, et al.

Ephraim Margolin, San Francisco, Cal., for amicus curiae San Francisco County Democratic Cent. Committee, et al.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, Chief Judge, WALLACE, TANG, SCHROEDER, ALARCON, REINHARDT, BRUNETTI, KOZINSKI, LEAVY, FERNANDEZ and RYMER, Circuit Judges.

GOODWIN, Chief Judge:

Since at least 1913, California by statute or state constitutional provision has made all city, county, school, and judicial offices nonpartisan. Political parties have no control over the nomination or election processes for those offices. Prior to 1986, however, no law prohibited political party endorsements of candidates running for such offices. Nevertheless, because the legal status of such endorsements was unclear, political parties did not endorse candidates in 75% of California counties. In 1986, the people of California voted overwhelmingly to adopt Proposition 49, which amended the state constitution to formalize the ban on political party endorsements: Article II, Sec. 6(b) provides that "[n]o political party or party central committee may endorse, support or oppose a candidate for nonpartisan office."

Plaintiffs-appellees in this case are ten registered voters of the City and County of San Francisco, an organization of registered voters, and one of that organization's officers. The basis of their complaint as it relates to this appeal was the refusal of the City and County of San Francisco and the San Francisco Registrar of Voters (appellants) to permit official political party and party central committee endorsements to be printed in the San Francisco Voter Pamphlet prepared for elections scheduled June 2 and November 3, 1987. Appellants based their refusal to print such endorsements on the language of Article II, Sec. 6(b).

On September 11, 1987, plaintiffs-appellees filed suit, and in their third cause of action challenged the constitutionality of Sec. 6(b) and sought injunctive and declaratory relief. They alleged that Sec. 6(b) violates the rights of political parties and their members to free speech and association under the first and fourteenth amendments of the Constitution ¹ and to equal protection under the fourteenth amendment.

On April 27, 1988, the district court granted the plaintiffs' motion for partial summary judgment with regard to their third cause of action 708 F.Supp. 278, relying in large part on the reasoning of state Supreme Court Justice Grodin's concurring opinion in Unger v. Superior Court, 37 Cal.3d 612, 209 Cal.Rptr. 474, 692 P.2d 238 (1984). ² On May 6, 1988, the city moved to vacate the district court's judgment and was unsuccessful. This appeal followed.

The original panel of this court reversed the judgment, holding that California's compelling interest in preserving its nonpartisan system of government for local and judicial offices justified the infringement of the plaintiffs' first amendment rights effected by Sec. 6(b). 880 F.2d 1062. We took this case en banc in order to reconsider the panel's decision. Upon reconsideration, we affirm the decision of the district court.

The broad authority of the states to prescribe the procedures governing local elections "does not extinguish the State's responsibility to observe the limits established by the first amendment rights of the State's citizens." Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 1019, 103 L.Ed.2d 271 (1989). In reviewing a challenge to a provision of a state's election laws, we first consider whether the provision burdens rights protected by the first and fourteenth amendments. Id. If the enactment at issue impairs the first amendment rights of political parties and their members, "it can survive constitutional scrutiny only if the State shows that it addresses a compelling state interest ... and is narrowly tailored to serve that interest." Id. 109 S.Ct. at 1019-20 (citations omitted); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978).

It is indisputable that the restrictions embodied in Sec. 6(b) implicate appellees' first amendment rights. The ban on endorsements directly affects political speech, "the inviolability of which rests at the core of the First Amendment." San Francisco Democratic Cent. Comm. v. Eu, 826 F.2d 814, 833 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). As the Supreme Court has made clear, "[a]dvocacy of the election or defeat of candidates ... is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy or defeat of legislation." Buckley v. Valeo, 424 U.S. 1, 48, 96 S.Ct. 612, 648, 46 L.Ed.2d 659 (1976). And because the exercise of these basic first amendment freedoms traditionally has been through the media of political associations, political parties as well as party adherents enjoy rights of political expression and association. Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957).

Because Sec. 6(b)'s prohibitions do impair appellees' first amendment rights, the burden is on the government to show a compelling state interest justifying the regulation. Eu, 826 F.2d at 833 (quoting Bellotti, 435 U.S. at 786, 98 S.Ct. at 1421). Appellants declare Sec. 6(b) essential to preserving the nonpartisan nature of California's system of electing local and judicial officials and assert that the State's interest in the "fair and impartial administration of government" is compelling enough to warrant Sec. 6(b)'s ban on partisan endorsements.

Attempting to avoid the constitutional minefield of claiming first amendment restrictions to be justified for the purpose of preventing "undue influence on voters" and guiding the electorate to make sensible choices, see, e.g., Bellotti, 435 U.S. at 789-91, 98 S.Ct. at 1422-24, appellants characterize their concern as an interest in the end product of Sec. 6(b)'s restrictions on political party speech: i.e., prevention of a return of political party domination of local government and diminished voter confidence in local public officials. See, e.g., Amicus Curiae Brief of Tom Bradley, Mayor of Los Angeles, at 3 (California's concern "does not relate to the impact that endorsements may have on voters' choices but rather to the indirect impact on elected officials' independence from partisan political pressures").

As support the State cites Supreme Court cases upholding limits on campaign contributions and spending, contending that political party endorsements create the same risks of corruption or the appearance of corruption that the Court previously has determined justify governmental regulation of election spending. The analogy is flawed. In its most recent pronouncement in this area, Austin v. Michigan Chamber of Commerce, --- U.S. ----, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), the Court upheld a provision of the Michigan Campaign Finance Act prohibiting corporations from using general treasury funds for independent expenditures in connection with state candidate elections. In its defense Michigan contended that the unique legal and economic characteristics of corporations necessitated some regulation of their political expenditures in order to avoid corruption or the appearance of corruption. Id. at 1397. Affirming that, in previous cases, "[w]e ... have recognized that 'the compelling governmental interest in preventing corruption support[s] the restriction of the influence of political war chests funneled through the corporate form,' " id. (quoting FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 500-01, 105 S.Ct. 1459, 1470, 84 L.Ed.2d 455 (1985) (NCPAC )), the Court found the Michigan statutory provision a legitimate check upon "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the [state-conferred] corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Id. at 1397.

The corruption the Court found properly addressed by the Michigan statute was not of the kind decried by California here. Under the definition applied in past cases, "[c]orruption is a subversion of the political process" whereby "[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns." NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468; see also Austin, 110 S.Ct. at 1421 (Kennedy, J., dissenting). "The hallmark of corruption is the financial quid pro quo: dollars for political favors." NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468.

By contrast, the Court explicitly has excluded from its definition the kind of conduct...