Levine v. Fair Political Practices Com'n

• Decision Date: 23 September 2002
• Docket Number: No. Civ. S-02-199 LKK/DAD.,Civ. S-02-199 LKK/DAD.
• Citation: 222 F.Supp.2d 1182
• Parties: Larry LEVINE; Tom Kaptain; Scott Hart; and California Republican Assembly, Plaintiffs, v. FAIR POLITICAL PRACTICES COMMISSION, Defendant.
• Court: U.S. District Court — Eastern District of California

222 F.Supp.2d 1182

Larry LEVINE; Tom Kaptain; Scott Hart; and California Republican Assembly, Plaintiffs, v. FAIR POLITICAL PRACTICES COMMISSION, Defendant.

No. Civ. S-02-199 LKK/DAD.

United States District Court, E.D. California.

September 23, 2002.

James V. Lacy, James V. Lacy Attorney at Law, Laguna Niguel, CA, for Plaintiff.

Lawrence Thomas Woodlock, Fair Political Practices Commission, Geoffrey Lloyd Graybill, Sacramento, CA, for Defendant.

ORDER

KARLTON, Senior District Judge.

Plaintiffs seek a preliminary injunction barring enforcement of both Cal. Gov't Code section 84305.6 and subsection (a)(6) of Cal. Gov't Code section 84305.5, as it stood before it was amended by Proposition 208. They assert that the disclosure requirements of these provisions violate their right to free speech protected by the First Amendment to the Constitution of the United States. I resolve their motion on the pleadings and evidence filed herein and after oral argument.

I. BACKGROUND

Over a number of years, the California Legislature has imposed various disclosure requirements on so-called slate mailers.¹ Prior to the passage of Proposition 208 in 1996, slate mail organizations were required to print the following disclosure in at least 8-point roman boldface type on each slate mailer:

NOTICE TO VOTERS

THIS DOCUMENT WAS PREPARED BY (name of slate mail organization), NOT AN OFFICIAL PARTY ORGANIZATION. Appearance in this mailer does not necessarily imply endorsement of others appearing in this mailer, nor does it imply endorsement of, or opposition to, any issues set forth in this mailer. Appearance is paid for and authorized by each candidate and ballot measure which is designated by an *.

See Cal. Gov't Code § 84305.5(a)(2)(prior to amendment by Proposition 208). In addition, Cal. Gov't Code § 84305.5(a)(6), as it stood before Proposition 208, prohibited sending a slate mailer unless:

Any candidate endorsement appearing in the slate mailer that differs from the official endorsement of the political party which the mailer appears by representation or indicia to represent is accompanied, immediately below the endorsement, in no less than 9-point roman boldface type which shall be in a color or print that contrasts with the background so as to be easily legible, the following notice: THIS IS NOT THE POSITION OF THE (political party which the mailer appears by representation or indicia to represent) PARTY.

See id.

Proposition 208 amended Cal. Gov't Code § 84305.5. The above provisions were replaced by other slate mail disclosure provisions. The new provisions were ultimately found to be unconstitutional and their enforcement enjoined by this court. See California Prolife Council v. Scully, 96-1965, March 1, 2001 Order.

While Proposition 208 was being litigated, Proposition 34 was passed. Cal. Gov't Code § 84305.6, enacted by Proposition 34, reads, in pertinent part:

In addition to the requirements of Section 84305.5, a slate mailer organization ... may not send a slate mailer unless any recommendation in the slate mailer to support or oppose a ballot measure or support a candidate that is different from the official recommendation to support or oppose by the political party that the mailer appears by representation or indicia to represent is accompanied, immediately below the ballot measure or candidate recommendation in the slate mailer, in no less than nine-point roman boldface type in a color or print that contrasts with the background so as to be easily legible, the following notice: "THIS IS NOT THE OFFICIAL POSITION OF THE (political party that the mailer appears by representation or indicia to represent) PARTY."

See id.

The plaintiffs in this case have all published slate mailers as defined in Cal. Gov't Code § 82048.3.² As to all but the California Republican Assembly, it is uncontested that plaintiffs are slate mail organizations as defined by Cal. Gov't Code § 82048.5.³ Each of the plaintiffs publish slate mail that targets either Democratic or Republican voters, and their mailers include captions that contain the words "Democrat," "Democratic," or "Republican," along with other symbols or references typically associated with such parties.⁴ In their slate mail, plaintiffs have included, and represent that they will continue to include, the disclaimer set forth in Cal. Gov't Code § 84305.5(a)(2)(prior to amendment by Proposition 208).⁵ They take issue, however, with the requirements of Proposition 34, as codified in Cal. Gov't Code § 84305.6, contending that it violates their First Amendment rights. Similarly, to the extent that defendant intends to enforce Cal. Gov't Code § 84305.5(a)(6) as it stood before Proposition 208, plaintiffs contend that this provision also violates their First Amendment rights. Plaintiffs ask this court to preliminarily enjoin defendant from enforcing sections 84305.6 and 84305.5(a)(6) against them.

II. STANDARDS FOR ISSUING A PRELIMINARY INJUNCTION

The purpose of the preliminary injunction as provided by Fed.R.Civ.P. 65 is to preserve the relative positions of the parties—the status quo—until a full trial on the merits can be conducted. See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). The limited record usually available on such motions renders a final decision on the merits inappropriate. See Brown v. Chote, 411 U.S. 452, 456, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973).

"The [Supreme] Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). In the Ninth Circuit, two interrelated tests exist for determining the propriety of the issuance of a preliminary injunction. The moving party carries the burden of proof on each element of either test. See Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1203 (9th Cir.1980). Under the first "traditional" test, the court may not issue a preliminary injunction unless each of the following requirements is satisfied: (1) the moving party has demonstrated a likelihood of success on the merits, (2) the moving party will suffer irreparable injury and has no adequate remedy at law if injunctive relief is not granted, (3) in balancing the equities, the non-moving party will not be harmed more than the moving party is helped by the injunction, and (4) granting the injunction is in the public interest. See Martin v. International Olympic Committee, 740 F.2d 670, 674-75 (9th Cir. 1984).

Under the second "alternative" test, the court may not issue a preliminary injunction unless the moving party demonstrates either "probable success on the merits and irreparable injury ... or ... sufficiently serious questions going to the merits to make the case a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party requesting relief." Topanga Press Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir.1993) (citations omitted). The Ninth Circuit has explained that the two parts of the alternative test are not separate and unrelated, but are "extremes of a single continuum." Benda v. Grand Lodge of International Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). We are taught that the critical element within this alternative test is the relative hardship to the parties. See id. "[T]he required degree of irreparable harm increases as the probability of success decreases." United States v. Nutricology Inc., 982 F.2d 394, 397 (9th Cir. 1992) (citations and internal quotation marks omitted). Even if the balance tips sharply in favor of the moving party, however, "it must be shown as an irreducible minimum that there is a fair chance of success on the merits." International Olympic Committee, 740 F.2d at 674-75. (citation omitted).

III. ANALYSIS

A. JURISDICTION

The plaintiffs in this case sue the Fair Political Practices Commission, an arm of the State of California. It is established Eleventh Amendment jurisprudence, however, that this court lacks "federal jurisdiction over suits against unconsenting States." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Thus, before this action can proceed I must be satisfied that the State has consented.

To note that defendant has not objected to this court's jurisdiction on the basis of the Eleventh Amendment, while pertinent, is not the end of the matter. The test for determining whether a state has consented to this court's jurisdiction "is a stringent one." Mitchell v. Franchise Tax Bd. (In re Mitchell), 209 F.3d 1111, 1117 (9th Cir.2000). A state waives its immunity when it "voluntarily invokes [federal] jurisdiction or ... makes a `clear declaration' that it intends to submit itself to [federal] jurisdiction." Shulman v. California (In re Lazar), 237 F.3d 967, 976 (9th Cir. 2001). Such "clear declaration," however, need not be express. Rather, "a state `waive[s] its Eleventh Amendment immunity by conduct that is incompatible with an intent to preserve that immunity.'" Indus. Comm'n of Ariz. v. Bliemeister (In re Bliemeister), 296 F.3d 858, 861 (9th Cir. 2002) (quoting Hill v. Blind Indus. & Servs., 179 F.3d 754, 758 (9th Cir.1999)).

Here, while the defendant did not explicitly address the question of sovereign immunity, it did explicitly state that it did not dispute this court's jurisdiction. See Answer of Defendant Fair Political Practices Commission, filed February 13, 2002, at 2 ¶ 1; see also Defendant's Status Report filed April 19, 2002 at 2:18-19. These representations, along with the fact that the defendant has actively participated in this litigation, see Bliemeister, 296 F.3d at 861, are "incompatible with an intent to preserve immunity." Id. Accordingly, I find that defendant has...