Renne v. Geary

Decision Date17 June 1991
Docket NumberNo. 90-769,90-769
Citation115 L.Ed.2d 288,111 S.Ct. 2331,501 U.S. 312
PartiesLouise RENNE, San Francisco City Attorney, et al., Petitioners v. Bob GEARY, et al
CourtU.S. Supreme Court

Article II, § 6(b) of the California Constitution prohibits political parties and party central committees from endorsing, supporting, or opposing candidates for nonpartisan offices such as county and city offices. Based on § 6(b), it is the policy of petitioners—the City and County of San Francisco, its Board of Supervisors, and certain local officials—to delete any reference to party endorsements from candidates' statements included in the voter pamphlets that petitioners print and distribute. Respondents—among whom are 10 registered voters in the city and county, including members of the local Republican and Democratic Central Committees—filed suit seeking, inter alia, a declaration that § 6(b) violates the First and Fourteenth Amendments and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements. The District Court entered summary judgment for respondents, declaring § 6(b) unconstitutional and enjoining its enforcement, and the Court of Appeals affirmed.

Held: The question whether § 6(b) violates the First Amendment is not justiciable in this case, since respondents have not demonstrated a live controversy ripe for resolution by the federal courts. Pp. 316-324.

(a) Although respondents have standing to claim that § 6(b) has been applied in an unconstitutional manner to bar their own speech, the allegations in their complaint and affidavits raise serious questions about their standing to assert other claims. In their capacity as voters, they only allege injury flowing from § 6(b)'s application to prevent speech by candidates in the voter pamphlets. There is reason to doubt that that injury can be redressed by a declaration of § 6(b)'s invalidity or an injunction against its enforcement, since a separate California statute, the constitutionality of which was not litigated in this case, might well be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of § 6(b). Moreover, apart from the possibility of an overbreadth claim, discussed infra, the standing of respondent committee members to litigate based on injuries to their respective committees' rights is unsettled. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-545, 106 S.Ct. 1326, 1332-1333, 89 L.Ed.2d 501. Nor is it clear, putting aside redressability concerns, that the committee members have third party standing to assert the rights of candidates, since no obvious barrier exists preventing candidates from asserting their own rights. See Powers v. Ohio, 499 U.S. ----, ----, 111 S.Ct. 1364, ----, 113 L.Ed.2d 411. Pp. 318-320.

(b) Respondents' allegations fail to demonstrate a live dispute involving the actual or threatened application of § 6(b) to bar particular speech. Their generalized claim that petitioners deleted party endorsements from candidate statements in past elections does not do so, since, so far as can be discerned from the record, those disputes had become moot by the time respondents filed suit. Similarly, an allegation that the Democratic Committee has not endorsed candidates "[i]n elections since 1986" for fear of the consequences of violating § 6(b) will not support a federal-court action absent a contention that § 6(b) prevented a particular endorsement, and that the controversy had not become moot prior to the litigation. Nor can a ripe controversy be found in the fact that the Republican Committee endorsed candidates for nonpartisan elections in 1987, the year this suit was filed, since nothing in the record suggests that petitioners took any action to enforce § 6(b) as a result of those endorsements, or that there was any desire or attempt to include the endorsements in the candidates' statements. Allegations that respondents desire to endorse candidates in future elections also present no ripe controversy, absent a factual record of an actual or imminent application of § 6(b) sufficient to present the constitutional issues in clean-cut and concrete form. Indeed, the record contains no evidence of a credible threat that § 6(b) will be enforced, other than against candidates in the context of voter pamphlets. In these circumstances, postponing adjudication until a more concrete controversy arises will not impose a substantial hardship on respondents and will permit the state courts further opportunity to construe § 6(b), perhaps in the process materially altering the questions to be decided. Pp. 320-323.

(c) Even if respondents' complaint may be read to assert a facial overbreadth challenge, the better course might have been to address in the first instance the constitutionality of § 6(b) as applied in the context of voter pamphlets. See, e.g., Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-485, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388. If the as-applied challenge had been resolved first, the justiciability problems determining the disposition of this case might well have concluded the litigation at an earlier stage. Pp. 323-324.

911 F.2d 280 (CA9 1990). Vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, and SOUTER, JJ., joined, and in all but Part II-B of which SCALIA, J., joined. STEVENS, J., filed a concurring opinion. WHITE, J., filed a dissenting opinion. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined.

Dennis Aftergut, San Francisco, Cal., for petitioners.

Arlo Hale Smith, San Francisco, Cal., for respondents.

Cedric C. Chao, San Francisco, Cal., for the California Democratic Party, et al., as amici curiae, supporting respondents, by special leave of Court.

Justice KENNEDY delivered the opinion of the Court.**

Petitioners seek review of a decision of the United States Court of Appeals for the Ninth Circuit holding that Article II, § 6(b) of the California Constitution violates the First and Fourteenth Amendments to the Constitution of the United States. Section 6(b) reads: "No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office." Its companion provision, § 6(a), provides that "[a]ll judicial, school, county, and city offices shall be nonpartisan."


In view of our determination that the case is nonjusticiable, the identity of the parties has crucial relevance. Petitioners are the City and County of San Francisco, its Board of Supervisors, and certain local officials. The individual respondents are 10 registered voters residing in the City and County of San Francisco. They include the chairman and three members of the San Francisco Republican County Central Committee and one member of the San Francisco Democratic County Central Committee. Election Action, an asso- ciation of voters, is also a respondent, but it asserts no interest in relation to the issues before us different from that of the individual voters. Hence, we need not consider it further.

Respondents filed this suit in the United States District Court for the Northern District of California. Their third cause of action challenged § 6(b) and petitioners' acknowledged policy, based on that provision, of deleting any references to a party endorsement from the candidate statements included in voter pamphlets. As we understand it, petitioners print the pamphlets and pay the postage required to mail them to voters. The voter pamphlets contain statements prepared by candidates for office and arguments submitted by interested persons concerning other measures on the ballot. The complaint sought a declaration that Article II, § 6 was unconstitutional and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements.

The District Court granted summary judgment for respondents on their third cause of action, declaring § 6(b) unconstitutional and enjoining petitioners from enforcing it. 708 F.Supp. 278 (ND Cal.1988). The court entered judgment on this claim pursuant to Federal Rule of Civil Procedure 54(b), and petitioners appealed. A Ninth Circuit panel reversed, 880 F.2d 1062 (1989), but the en banc Court of Appeals affirmed the District Court's decision, 911 F.2d 280 (CA9 1990) (en banc).

We granted certiorari, 498 U.S. ----, 111 S.Ct. 750, 112 L.Ed.2d 771 (1991), to determine whether § 6(b) violates the First Amendment. At oral argument, doubts arose concerning the justiciability of that issue in the case before us. Having examined the complaint and the record, we hold that respondents have not demonstrated a live controversy ripe for resolution by the federal courts. As a consequence of our finding of nonjusticiability, we vacate the Ninth Circuit's judgment and remand with instructions to dismiss respondents' third cause of action.


Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so. We presume that federal courts lack jurisdiction "unless 'the contrary appears affirmatively from the record.' " Bender v. Williamsport Area School Dist., 475 U.S. 534, 546, 106 S.Ct. 1326, 1334, 89 L.Ed.2d 501 (1986), quoting King Bridge Co. v. Otoe County, 120 U.S. 225, 226, 7 S.Ct. 552, 552, 30 L.Ed. 623 (1887). "It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Bender, supra, 475 U.S., at 546, n. 8, 106 S.Ct., at 1334, n. 8, quoting Warth v. Seldin, 422 U.S. 490, 517-518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975).


Proper resolution of the justiciability issues presented here requires examination of the pleadings and record to determine the nature of the dispute and the interests of the parties in having it...

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