On 8, Renewal v. City of Montgomery

Decision Date20 May 2014
Docket NumberNo. 11–17884.,11–17884.
Citation752 F.3d 827
PartiesPROTECTMARRIAGE.COM–YES ON 8, A Project Of California Renewal; National Organization for Marriage California, Yes on 8, Sponsored by National Organization for Marriage; National Organization For Marriage California PAC; John Doe # 1, an individual, Plaintiffs–Appellants, v. Debra BOWEN; Ross Johnson; California Secretary of State; Kamala Harris, in her official capacity as Attorney General of the State of California; Eugene Huguenin, Jr.; Lynn Montgomery; Ronald Rotunda; Ann Miller Ravel, in her official capacity as Chair of the Fair Political Practices Commission; Sean Eskovitz, in his official capacity as Commissioner of the Fair Political Practices Commission; Department of Elections City And County of San Francisco; Dennis J. Herrera, City Attorney for the City and County of San Francisco; Dean C. Logan; Jan Scully, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


John C. Eastman (argued), Center for Constitutional Jurisprudence, Orange, CA; James Bopp, Jr. (argued) and Richard E. Coleson, The Bopp Law Firm, Terre Haute, IN; Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ; David J. Hacker, Alliance Defense Fund, Folsom, CA; Noel H. Johnson and Kaylan L. Phillips, ActRight Legal Foundation, Plainfield, IN, for PlaintiffsAppellants.

Mollie M. Lee (argued), Dennis J. Herrera, Therese M. Stewart, and Jon Givner, Office of the City Attorney, San Francisco, CA; Zackery P. Morazzini (argued) and Jack Woodside, Fair Political Practices Commission, Sacramento, CA; Kamala D. Harris, Tamar Pachter, and Daniel J. Powell, Office of the Attorney General, San Francisco, CA; Terence J. Cassidy and Kristina M. Hall, Porter Scott, Sacramento CA, for DefendantsAppellees.

Trevor Potter, J. Gerald Hebert, Paul S. Ryan, and Megan McAllen, The Campaign Legal Center, Washington, D.C., for Amicus Curiae The Campaign Legal Center.


Opinion by Judge MILAN D. SMITH, Jr.; Dissent by Judge WALLACE.


M. SMITH, Circuit Judge:

Appellants bring facial and as-applied challenges to California's Political Reform Act of 1974, Cal. Gov.Code. §§ 81000–91014(PRA), and seek (1) an injunction exempting them from the PRA's future reporting deadlines, and (2) declaratory and injunctive relief requiring the State to purge all records of Appellants' past PRA disclosures. The district court granted summary judgment in favor of the State of California on all counts. We affirm the district court's judgment with regard to Appellants' facial challenges. We dismiss this appeal as non justiciable with regard to Appellants' as-applied challenges. And, we remand with instructions that the district court vacate the portion of its opinion concerning Appellants' as-applied challenges.


The PRA requires political committees to report certain information about their contributors to the State. Specifically, politicalcommittees must file semi-annual disclosures, which, among other things, identify those individuals who have contributed more than $100 during or after a campaign, in addition to each contributor's address, occupation, and employer. Cal. Gov.Code §§ 84200, 84211(f). The State of California then publishes this information on the website of the California Secretary of State (the Secretary), and produces hard copies upon request.

Appellants, to whom we refer as the Prop 8 Committees or the Committees, are political committees that supported the November 2008 passage of Proposition 8. That proposition amended the California Constitution to provide that [o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, § 7.5. Proposition 8 was subsequently invalidated. See Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 2660, 186 L.Ed.2d 768 (2013) (citing Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1004 (N.D.Cal.2010)).

Prior to Proposition 8's passage, the Prop 8 Committees submitted disclosures to comply with the PRA's semi-annual reporting deadlines. These disclosures were published on the Secretary's website, and are available in hard copy. Following Proposition 8's passage, the Committees initiated this action in the United States District Court for the Eastern District of California, challenging the constitutionality of the PRA's disclosure requirements both facially and as applied to them. The Committees argued that their donors have been harassed as a result of the Committees' PRA disclosures, and they sought (1) an injunction exempting them from the PRA's future reporting deadlines, and (2) declaratory and injunctive relief requiring the State to purge all records of their past PRA disclosures.

On January 30, 2009, the district court denied Appellants' motion for a preliminary injunction. Appellants did not appeal the district court's order under 28 U.S.C. § 1292(a). Instead, they complied with the PRA's January 31, 2009 disclosure deadline, reporting those contributors who donated after October 19, 2008 and before December 31, 2008. The Secretary published these disclosures on her website, and made them publicly available in hard copy. 1 On November 4, 2011, the district court granted summary judgment in favor of the State on all counts. Appellants timely appealed, asking us to reverse the judgment of the district court and to order the State to purge all records of Appellants' PRA disclosures.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court's grant of summary judgment de novo. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir.2007). We review questions of justiciability de novo. Bell v. City of Boise, 709 F.3d 890, 896 (9th Cir.2013).

I. Facial Challenges

Appellants assert that the PRA's $100 reporting threshold and “post-election reporting requirements” are facially unconstitutional in the context of ballot initiatives. Our decision in Family PAC v. McKenna directly precludes Appellants' challenge to the $100 threshold. 685 F.3d 800, 809–11 (9th Cir.2012) (holding that $25 and $100 contribution disclosure thresholds survive “exacting scrutiny” in the context of ballot initiatives). Appellants' facial challenge to the post-election reporting requirements fails as well.

A. Legal Standard

Contribution disclosure requirements are subject to “exacting scrutiny.” Citizens United v. FEC, 558 U.S. 310, 366–67, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010); Buckley v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In applying exacting scrutiny, we first ask whether the challenged regulation burdens First Amendment rights. If it does, we then assess whether there is a “substantial relation” between the burden imposed by the regulation and a “sufficiently important” governmental interest. Citizens United, 558 U.S. at 366–67, 130 S.Ct. 876;Family PAC, 685 F.3d at 805–06 (citing Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir.2010)).

Although disclosure is generally “a less restrictive alternative to more comprehensive regulations of speech,” Citizens United, 558 U.S. at 369, 130 S.Ct. 876, contribution disclosure requirements may burden First Amendment rights by, among other things, deterring “individuals who would prefer to remain anonymous from contributing,” Family PAC, 685 F.3d at 806–07 (internal quotation marks omitted). To justify these burdens and to survive exacting scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Doe No. 1 v. Reed, 561 U.S. 186, 130 S.Ct. 2811, 2818, 177 L.Ed.2d 493 (2010) (internal quotation marks omitted).

The Supreme Court recognizes three substantial government interests that campaign contribution disclosure requirements may serve. Buckley, 424 U.S. at 66–68, 96 S.Ct. 612;see also Doe, 130 S.Ct. at 2819–21. First, disclosure requirements may serve a substantial “informational interest” by providing the electorate with information about the source of campaign money, the individuals and interests seeking their vote, and where a particular ballot measure or candidate falls on the political spectrum. Buckley, 424 U.S. at 66–67, 96 S.Ct. 612;Family PAC, 685 F.3d at 806. This interest is particularly important in the ballot initiative context. As we explained in Family PAC:

The governmental interest in informing the electorate about who is financing ballot measure committees is of great importance. Disclosure enables the electorate to give proper weight to different speakers and messages ... by providing the voting public with the information with which to assess the various messages vying for their attention in the marketplace of ideas.... Given the complexity of the issues and the unwillingness of much of the electorate to independently study the propriety of individual ballot measures, we think being able to evaluate who is doing the talking is of great importance.... Disclosure also gives voters insight into the actual policy ramifications of a ballot measure. Knowing which interested parties back or oppose a ballot measure is critical, especially when one considers that ballot-measure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown.

Family PAC, 685 F.3d at 808–09 (internal quotation marks and citations omitted); see also Human Life of Wash. Inc., 624 F.3d at 1006 ([T]he high stakes of the ballot context only amplify the crucial need to inform the electorate....”).

Disclosure requirements may also help preserve the integrity of the electoral process by deterring corruption and the appearance of corruption. Doe, 130 S.Ct. at 2819;Buckley, 424 U.S. at 67, 96 S.Ct. 612 (explaining that disclosure requirements deter “those who would use money for improper purposes either before or after the election”). This interest extends generally to ...

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