Kaplan v. County of Los Angeles

• Decision Date: 23 January 1990
• Docket Number: No. 87-6646,87-6646
• Citation: 894 F.2d 1076
• Parties: Leon S. KAPLAN, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1076

894 F.2d 1076

Leon S. KAPLAN, Plaintiff-Appellant, v. COUNTY OF LOS ANGELES, Defendant-Appellee.

No. 87-6646.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1988.

Decided Jan. 23, 1990.

Robert C. Moest and David Grosz, Fleishman, Fisher & Moest, Los Angeles, Cal., for plaintiff-appellant.

Philip H. Hickok, Principal Deputy County Counsel, Sp. Services Div., County of Los Angeles, Los Angeles, Cal., for defendant-appellee.

Robert C. Fellmeth, San Diego, Cal., Linda Sullivan, ACLU Foundation of Southern California, Los Angeles, Cal., for the amici.

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

Before HUG, POOLE and THOMPSON, Circuit Judges.

HUG, Circuit Judge:

Judge Leon S. Kaplan of the Los Angeles Superior Court appeals the district court's adverse judgment in his suit challenging the fees charged to candidates for political office by Los Angeles County for costs associated with the publication of election statements in the County's voter's pamphlet. Kaplan contends that the cost recovery system violates his First and Fourteenth Amendment rights. Because we find no constitutional infirmity in the cost recovery system, we affirm the district court's judgment.

I.

The California Elections Code allows candidates for nonpartisan city or county offices to prepare a statement for publication in a voter's pamphlet put out by the local government agency. Cal.Elec.Code Sec. 10012 (West Supp.1989). The pamphlet is mailed with a sample ballot to all registered voters prior to the election. The statements of judicial candidates must be "limited to a recitation of the candidate's own personal background and qualifications and shall not in any way make reference to other candidates for judicial office or to another candidate's qualifications, character, or activities." Id. Sec. 10012.1. The Code provides for a procedure by which the public and the county clerks may examine the candidate's statement prior to publication and seek an injunction or writ of mandate to enforce appropriate emendation should the statement not meet these conditions. Id. Sec. 10013.5.

To defray the cost of publishing the voter's pamphlet, "[t]he local agency may estimate the total cost of printing, handling, translating, ¹ and mailing the candidate's statements ... and may require each candidate filing a statement to pay in advance to the local agency his or her estimated pro rata share as a condition of having his or her statement included in the voter's pamphlet." Id. Sec. 10012. The amount paid by the candidate will be adjusted if necessary after the actual publication costs are known. The local agency neither profits from these payments nor uses them to finance the costs of the election itself. See id.

The statute provides that, if a determination is made that the candidate is indigent, he or she is not required to pay the costs in advance. Id. Sec. 10012.3. To declare indigency, the candidate must file a statement of financial worth with the local agency. The statement form may inquire into the candidate's income, personal and real property holdings, and financial obligations. The candidate must release to the local agency his or her most recent federal income tax report. If the local agency deems the candidate indigent, the agency is obligated to print and mail the statement without charge. The agency may, however, bill the candidate his or her actual pro rata share of the cost after the election. Id.

In 1986, Kaplan, then sitting as a judge of the Municipal Court for the Los Angeles Judicial District, decided to run in a nonpartisan election for an open seat on the Los Angeles Superior Court. Los Angeles County had estimated that, for the 1986 election, the English-only voter's pamphlet publishing costs would amount to $52,000 for the June 3, 1986, primary election and $27,500 for the November 4, 1986, general election. Kaplan originally tendered $24,024.53 to the County to cover what he personally calculated to be the amount needed to finance his share of the publication costs for the primary election. The County Registrar refused this amount and would not accept Kaplan's statement. On March 7, 1986, Kaplan resubmitted his statement along with a check for $52,000. Six days later he withdrew his statement and eventually received a full refund.

Kaplan filed this action in the district court also on March 7, 1986, seeking an injunction against enforcement of the County's requirement for advance payment of the publication costs and a declaratory judgment that it violated the First and Fourteenth Amendments. He sought a temporary restraining order and preliminary injunction pending trial, which were denied. Kaplan appealed the denial of the preliminary injunction to this court. We affirmed the denial of the preliminary injunction on March 27, 1986, stating that although Kaplan had demonstrated the existence of serious questions of law, neither the balance of hardships nor the possible injury to Kaplan justified the relief of a preliminary injunction. We noted that Kaplan had already tendered the $52,000, concluding that it was apparent that the cost was not a bar to his candidacy and that a renewed tender and a suit for refund would provide adequate relief if he prevailed.

Kaplan won in the primary election despite the absence of his statement in the voter's pamphlet. For the general election, he paid the prescribed advance cost of $27,500 and had his statement published. He then filed an amendment to his complaint for a declaratory judgment and a refund of the $27,500.

The case was submitted on stipulated facts with accompanying exhibits. The district court found no constitutional error in the cost recovery system and entered judgment for the County.

II.

Kaplan presents two issues on appeal: (1) whether the cost recovery system infringes on his First Amendment rights; and (2) whether the system violates equal protection by distinguishing between candidates on the basis of financial resources. We review de novo these purely legal questions, United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), and consider each claim in turn.

A. First Amendment

The dimension of Kaplan's First Amendment claim is outlined by what he does not contend. Kaplan does not challenge the statute on traditional freedom of expression grounds. He does not allege content or viewpoint discrimination by the state, overbreadth, or outright suppression of a specific type of speech. He claims, instead, that the cost recovery system erects a barrier to the expression of protected speech in the limited public forum of the voter's pamphlet. Invoking strict scrutiny, he contends that the recovery system is unconstitutional because it fails to serve a compelling state interest in a narrowly drawn fashion. We agree that the voter's pamphlet constitutes a limited public forum but find that a lower level of scrutiny attaches to this classification and that the statute survives review.

There is no doubt that the candidates' statements are protected speech. Political speech lies at the core of the First Amendment's protections. "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression...." Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (per curiam); see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625-26, 28 L.Ed.2d 35 (1971) ("[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."). The candidate's statement clearly occupies a privileged place in the domain of First Amendment protections.

The question then becomes whether access to expression of these statements in the voter's pamphlet can be restricted by the advance payment of costs. In recent years, the Supreme Court has developed the public forum doctrine to address First Amendment concerns in relation to public channels of communication. State ownership of the means or place of communication does not automatically entail unlimited public access. The "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981). The now-familiar forum doctrine provides for three categories of access according to the type of public property involved. The first category, the traditional public forum, consists of streets, sidewalks, and parks that, in Justice Roberts' frequently quoted words, "have immemorially been held in trust for the use of the public ... for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. Committee for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). Two levels of scrutiny apply to the traditional public forum. State restrictions based on content must pass a high level of review in which the restriction is shown "to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983); see also Police Dep't of Chicago v. Mosley, 408 U.S. 92, 98-99, 92 S.Ct. 2286, 2291-92, 33 L.Ed.2d 212 (1972). Other restrictions not tied to content--namely, time, place, and manner restrictions--must be shown to serve a significant state interest in a narrowly tailored fashion, and to leave open ample alternative communication channels. Perry, 460 U.S. at 45, 103 S.Ct. at 954-55; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068-69, 82...