Prete v. Bradbury

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Bea
• Citation: Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006)
• Decision Date: 22 February 2006
• Docket Number: No. 04-35285.,04-35285.
• Parties: Barbara PRETE; Eugene Prete, Plaintiffs-Appellants, and Jason Donnell Williams, Plaintiff, v. Bill BRADBURY, Secretary of State of Oregon, Defendant-Appellee, Oregon AFL-CIO; Timothy J. Nesbitt, Esq., Defendant-Intervenors-Appellees.

438 F.3d 949

Barbara PRETE; Eugene Prete, Plaintiffs-Appellants, and Jason Donnell Williams, Plaintiff, v. Bill BRADBURY, Secretary of State of Oregon, Defendant-Appellee Oregon AFL-CIO; Timothy J. Nesbitt, Esq., Defendant-Intervenors-Appellees.

No. 04-35285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2005.

Filed February 22, 2006.

COPYRIGHT MATERIAL OMITTED

Ross A. Day, Tigard, OR, for the appellant.

David E. Leith, Office of the Oregon Attorney General, Salem, OR, for the appellees.

Margaret S. Olney, Portland, OR, for the intervenor-appellees.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding, D.C. No. CV-03-06357-ALA.

Before RAYMOND C. FISHER, RONALD M. GOULD, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge.

We are called upon to decide whether Oregon Ballot Measure 26's prohibition of payment to electoral petition signature gatherers on a piece-work or per signature basis unconstitutionally burdens core political speech. Because the district court did not clearly err in determining that the plaintiffs failed to establish that the challenged measure significantly burdens speech, we cannot hold the Measure imposes a severe burden under the First Amendment. Therefore, because the defendant has established an important regulatory interest in support of the Measure, the plaintiffs have failed to prove that the prohibition violates the First Amendment.

I.

In November 2002, Oregon voters approved Ballot Measure 26 ("Measure 26"), a voter initiative, by a margin of 75 percent to 25 percent. Measure 26 reads: 1863

To protect the integrity of initiative and referendum petitions, the People of Oregon add the following provisions to the Constitution of the State of Oregon: It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained.

Or. Const., art. IV, § 1b.¹

Barbara and Eugene Prete and Jason Williams (collectively "plaintiffs"), as chief petitioners,² later coordinated signature gathering to place various initiative measures on the February and November 2004 general election ballots. Oregon's Elections Division office sent inquiry letters to plaintiffs in November 2003, advising plaintiffs that the Elections Division had received complaints alleging plaintiffs had paid signature gatherers on the basis of the number of signatures collected, in violation of Measure 26. The inquiry letters requested additional information from plaintiffs.³

Plaintiffs responded by bringing an action in federal district court against defendant, alleging Measure 26 violated the First Amendment. Plaintiffs sought declaratory and injunctive relief. Six days later, Tim Nesbitt and the Oregon AFL-CIO (collectively "intervenor-defendants") brought a motion to intervene as of right under Fed.R.Civ.P. 24(a)(2), and alternatively, for permissive intervention under Fed.R.Civ.P. 24(b). Nesbitt, president of the Oregon AFL-CIO, was chief petitioner for Measure 26, and the Oregon AFL-CIO was a major supporter of Measure 26. Plaintiffs opposed the motion; Bill Bradbury, in his official capacity as the Secretary of State of Oregon (hereinafter "defendant") did not. The district court granted the motion to intervene as of right.

Plaintiffs then brought a motion for a preliminary injunction to enjoin defendant from enforcing Measure 26. After oral argument on the motion, the parties stipulated no further discovery was needed and the court could issue a final ruling on the merits pursuant to Fed.R.Civ.P. 65(a)(2).⁴

In its amended opinion and order, the district court found Measure 26 was targeted at electoral processes rather than at the communicative aspect of petition circulation. The court reasoned Measure 26 prohibited only one method of payment for petition circulators, "a matter entirely between the circulator, his or her employer, and the chief petitioner." Next, the court found Measure 26 imposed no severe or substantial burdens on the circulation of initiative or referendum petitions, and defendant's interest in protecting the integrity of the initiative process justified the lesser burdens imposed by the measure. The court, therefore, denied plaintiffs' motion for a preliminary injunction and entered judgment in favor of defendant and intervenor-defendants. Plaintiffs timely appealed.

On appeal, plaintiffs assert (1) the district court erred in granting intervenor-defendants' motion to intervene as of right, and (2) Measure 26 violates the First Amendment of the United States Constitution. We have jurisdiction under 28 U.S.C. § 1291 and we hold: (1) the district court erred in granting intervenor-defendants' motion to intervene but that error was harmless; and (2) the district court did not err in determining plaintiffs failed to establish Measure 26 violates the First Amendment.⁵ Accordingly, we AFFIRM the judgment of the district court.

II.

This court reviews de novo a district court's ruling on a motion to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2). United States v. Alisal Water Corp., 370 F.3d 915, 918 (9th Cir.2004).⁶

Under Fed.R.Civ.P. 24(a)(2),⁷ an applicant for intervention as of right must demonstrate that: (1) the intervention application is timely; (2) the applicant has a "significant protectable interest relating to the property or transaction that is the subject of the action"; (3) "the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest"; and (4) "the existing parties may not adequately represent the applicant's interest." Alisal Water Corp., 370 F.3d at 919 (internal quotation marks and citations omitted). Although the party seeking to intervene bears the burden of showing those four elements are met, "the requirements for intervention are broadly interpreted in favor of intervention." Id.

A. Timeliness, "Significant Protectable Interest," and Impairment

Here, plaintiffs wisely concede the intervenor-defendants' application was timely and the intervenor-defendants have a "significant protectable interest" relating to the subject of this action. First, intervenor-defendants brought the motion to intervene only six days after plaintiffs brought the action. Second, for purposes of intervention as of right, a public interest group that has supported a measure (such as an initiative) has a "significant protectable interest" in defending the legality of the measure. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir.1983). Third, an adverse court decision on such a measure may, as a practical matter, impair the interest held by the public interest group. Id.

In Sagebrush Rebellion, this court held that a public interest group may have a protectable interest in defending the legality of a measure it had supported. Id. at 527. There, a public interest group which had supported the creation of a conservation area in Idaho sought to intervene on behalf of the government in an action challenging the federal statute that created that conservation area. Id. at 526. The district court denied the motion to intervene. This court reversed, holding the group had a protectable interest in defending the creation of the conservation area. We stated in broad language that "a public interest group [is] entitled as a matter of right to intervene in an action challenging the legality of a measure which it had supported." Id. at 527. Further, an adverse decision against the conservation area "would impair the society's interest in the preservation of birds and their habitats," an interest the conservation area was designed to protect. Id. at 528. This court also held the government's representation of the group's interest "may be inadequate" (for reasons discussed infra); thus, this court reversed and remanded to the district court for it to grant the motion to intervene. Id. at 529.

Here, Nesbitt was chief petitioner for the measure, and the Oregon AFL-CIO was a main supporter of the measure. Under the rule from Sagebrush Rebellion, intervenor-defendants thus have a "significant protectable interest" related to this action, and an adverse judgment might impede or impair that interest.

Plaintiffs contend, however, that Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (hereinafter "AOE"), controls here and bars initiative sponsors from intervening in judicial challenges to the initiative. Plaintiffs misread AOE. There, the plaintiff (Yniguez), a state employee, brought an action against the State of Arizona alleging the adoption of an initiative which declared English "the official language of [Arizona]" violated the First Amendment. Id. at 49, 117 S.Ct. 1055. Yniguez complained she often spoke Spanish with Spanish-speaking persons as part of her state job, and the initiative's mandate for state employees to "act in English" could expose her to sanctions. Id. at 50, 117 S.Ct. 1055. After a bench trial, the district ruled the initiative was unconstitutional as overbroad. Id. at 54, 117 S.Ct. 1055. The Arizonans for Official English Committee ("AOE")—which was the principal sponsor of the initiative—then brought a motion to intervene, seeking to defend the constitutionality of the initiative on appeal. Id. at 56, 117 S.Ct. 1055. The district court denied the motion. Yniguez then resigned from her employment with the state. AOE appealed nonetheless, and this court determined AOE had Article III standing to pursue the appeal in defense of the initiative, and the action was not moot because of Yniguez's resignation. Id. at 58-60, 117 S.Ct. 1055. The U.S. Supreme Court reversed. The Court observed that AOE was not an elected representative, nor did any...