Geary v. Renne

• Citation: 708 F. Supp. 278
• Decision Date: 27 April 1988
• Docket Number: No. C 87 4724 AJZ.,C 87 4724 AJZ.
• Court: U.S. District Court — Northern District of California
• 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, 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.

708 F. Supp. 278

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, 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.

No. C 87 4724 AJZ.

United States District Court, N.D. California.

April 27, 1988.

Arlo Hale Smith, San Francisco, Cal., for plaintiffs, Bob Geary, Robert Silvestri, Dennis Mark, Melissa Gundrun, Wayne Johnson, David Soule, Max Woods, Peter Johnson, Robert Gebert, and Election Action.

Terence Faulkner, San Francisco, Cal., in pro per.

Sudi Trippet, San Francisco, Cal., in pro per.

Louise H. Renne, City Atty., Burke E. Delventhal, and Thomas J. Owen, Deputy City Attys., San Francisco, Cal., for defendants.

ORDER PARTIALLY GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT

ZIRPOLI, District Judge.

Plaintiffs in this case are 10 registered voters of the City and County of San Francisco, and organization of registered voters of said city, and an officer of said organization. Plaintiffs Bob Geary, Robert Silvestri, Dennis Mark, Max Woods, and Terence Faulkner are all members of Democratic or Republican county central committees. Plaintiff Faulkner is Chairman of the San Francisco Republican County Central Committee.

Defendants herein are the City and County of San Francisco, and some officials of said city and county, including the registrar of voters.

In their Third Cause of Action, plaintiffs challenge the constitutionality of California Constitution, Article II, Section 6(b), which prohibits political parties, and their central committees, from endorsing, supporting, or opposing candidates in local, school, and judicial elections. Plaintiffs claim — and defendants admit — that defendants refuse to permit political party and political party central committee endorsements of candidates for such offices to be printed in the San Francisco voter's pamphlet on account of said state constitutional provision. Plaintiffs contend that the challenged state constitutional provision abridges their rights under the First and Fourteenth Amendments to the United States Constitution, as well as under 42 U.S.C. section 1983, and have moved for summary judgment on such claims.

Said summary judgment motion has been fully briefed and argued by the parties. Having carefully reviewed the record in this matter, the Court finds that no genuine issue exists as to any material fact with respect to plaintiffs' Third Cause of Action, and that plaintiffs are entitled to judgment as a matter of law.

In reaching this conclusion, the Court considers the concurring opinion of Justice Grodin in Unger v. Superior Court (1984) 37 Cal.3d 612, 620-625, 209 Cal.Rptr. 474, 692 P.2d 238, to be highly persuasive. In Unger, the California Supreme Court was asked to determine whether the language of California Constitution, Article II, Section 6, barred political party endorsements in judicial races prior to a 1986 amendment to said state constitutional provision which added an express endorsement ban. A majority of the California court ruled that the pre-1986 version of the state constitutional provision did not ban such endorsements. In his concurring decision, Justice Grodin opined that such an endorsement ban would violate the First and Fourteenth Amendments to the United States Constitution:

Under real parties in interest' interpretation, article II would flatly prohibit a qualified political party from expressing any views concerning a judicial candidate's qualifications, competence, or record. The tension between such an absolute prior restraint on pure political speech and traditional First Amendment principles is obvious and palpable.

There can be no doubt that such a prohibition strikes at the heart of the First Amendment. As the United States Supreme Court stated in Buckley v. Valeo (1976) 424 U.S. 1 96 S.Ct. 612, 46 L.Ed.2d 659 ...: "Although First Amendment protections are not confined to the `exposition of ideas,' `there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course including discussion of candidates.... This no more than reflects our `profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot v. Roy (1971) 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 ... `it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" (Id. 424 U.S. at pp. 14-15 96 S.Ct. at 632

Nor can there be any doubt that the First Amendment protects political association, including association through political parties ... and that `any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." ...

Because article II, if interpreted as real parties in interest urge, would

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