Republican Party and Tirso del Junco from this lawsuit, there is no case or controversy between the remaining parties adequate to provide the Court with jurisdiction. This argument lacks merit.
The Attorney General's participation in prior enforcement actions initiated by private parties,
his present opposition to the requested preliminary injunction and his desire to bring an enforcement action against plaintiffs in state court -- his apparent preferred litigation forum, all demonstrate that the threat of injury to plaintiffs is "sufficiently real and immediate to show an existing controversy." O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); see also Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974).
Despite his prior practice of delegating enforcement of section 6(b) to private parties, the Attorney General has clearly experienced a change of heart and now expresses a clear intent to vigorously litigate any challenges to the provision. See Def.'s Opp. to Prelim. Inj., filed July 14, 1994, at 5:12-16.
In sum, plaintiffs wish to support Delaine Eastin and other candidates for nonpartisan offices in the upcoming election, and the Attorney General hopes to stop them. Despite the dismissal of two defendants, an active case and controversy remains between the parties sufficient to satisfy the jurisdictional mandates of Article III. NAACP v. City of Richmond, 743 F.2d 1346, 1350 (9th Cir. 1984).
The Attorney General next maintains that the case, as initially presented, warranted abstention under the principles first set forth in Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Under this doctrine, a federal court must abstain from exercising jurisdiction over a federal action if (1) there are concurrent, "ongoing" state proceedings; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Beltran v. California, 871 F.2d 777, 781 (9th Cir. 1988). Younger abstention embodies "a strong federal policy against federal court interference with pending state judicial proceedings absent extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982) (emphasis added).
At the June 1, 1994, hearing on the application for the temporary restraining order, Judge Wilken discussed the Younger abstention issue at some length. Although Judge Wilken recognized that Younger abstention was implicated, given the pendency of a state court injunction, she expressed her belief that two exceptions to the doctrine were present that enabled her to issue the temporary restraining order.
First, she noted the possibility that the law presently being challenged falls within the exception for laws that are "'flagrantly and patently violative of express constitutional provisions . . . .'" Younger, 401 U.S. at 53-54 (quoting Watson v. Buck, 313 U.S. 387, 402, 85 L. Ed. 1416, 61 S. Ct. 962 (1941)); see, e.g., Orazio v. Town of North Hempstead, 426 F. Supp. 1144 (E.D.N.Y. 1977) (court applied this exception to the Younger doctrine to enjoin enforcement of a local ordinance regulating wall signs against a political candidate). Second, she suggested that the repeated inability of plaintiffs to receive a full hearing on the merits in state court raised the possibility that they were procedurally barred from receiving relief in that forum. See Middlesex, 457 U.S. at 432. Judge Wilken's temporary restraining order enabled the California Democratic Party to distribute the remaining twenty-five percent of the Eastin mailers to their membership.
The Attorney General attacks Judge Wilken's issuance of the temporary restraining order, arguing that Younger abstention was justified. There are several problems with this line of attack. First, the Attorney General ignores the fact that, at the time of the June 1 temporary restraining order, there was no state court action involving plaintiff Sacramento County Democratic Central Committee, and consequently no grounds for Younger abstention with respect to it. Thus, even had Judge Wilken concluded that Younger abstention barred the California Democratic Party from proceeding with a federal complaint, the Sacramento County Democratic Central Committee would have been free to pursue at least some version of the present action in this Court.
Next, since the issuance of the temporary restraining order on June 1, discussions between the California Democratic and Republican Parties have resulted in the dismissal of the Woo action, including Judge Gray's May 26, 1994, injunction pertaining to Delaine Eastin.
Because of the dismissal of the Woo action, there is no longer any litigation concerning the constitutionality of section 6(b) pending in state court. Therefore, the first requirement for Younger abstention, that there be concurrent, "ongoing" state proceedings, is not met, and the Younger issue is now moot.
Finally, Judge Wilken issued the temporary restraining order on June 1, 1994, and the Woo action was not dismissed until July 19, 1994. The Attorney General had ample opportunity to appeal Judge Wilken's temporary restraining order during the intervening seven weeks, but chose not to.
Despite these changed circumstances, the Attorney General invites the Court to invoke a form of equitable Younger abstention. He argues that Judge Wilken improvidently granted a temporary restraining order, and that, regardless of the fact that the concurrent state proceedings have now been dismissed, the Court should nevertheless dismiss the case so as not to reward plaintiffs' tactics in eliminating the Younger problem.
The Court declines the Attorney General's invitation. The fact remains that, as the case currently stands, there are no grounds for Younger abstention. Although the Attorney General may feel like a pawn caught between the legal maneuvers of the two political parties, his complaint rings hollow in the light of his explicit policy of delegating enforcement of section 6(b) to private parties.
When the Attorney General, a named defendant in this action, made the decision to allow the California Republican Party to lead the defense, he took the risk that at some point his interests and those of the California Republican Party would diverge. The fact that those interests did diverge, leading to a tactical victory for plaintiffs on the Younger abstention issue, is no reason for the Court to intervene at this juncture.
Next, the Attorney General suggests that Pullman abstention may be appropriate in this matter. Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). Under the Pullman doctrine, a district court may abstain from exercising jurisdiction over a case "when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984); see also Cedar Shake & Shingle Bureau v. City of Los Angeles, 997 F.2d 620, 622 (9th Cir. 1993). The doctrine creates a very narrow exception to a district court's "virtually unflagging obligation" to exercise jurisdiction. Colorado River Water Conservation Dist. v United States, 424 U.S. 800, 817, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).
A fundamental prerequisite to Pullman abstention is that "a definitive ruling on the state issues by a state court could obviate the need for a constitutional adjudication by the federal court . . . ." Cedar Shake, 997 F.2d at 622 (quoting Kollsman v. City of Los Angeles, 737 F.2d 830, 833 (9th Cir. 1984), cert. denied, 469 U.S. 1211, 84 L. Ed. 2d 327, 105 S. Ct. 1179 (1985)). Such is not the case here. The Attorney General has presented no plausible interpretation of section 6(b) that would obviate the First Amendment concerns raised by plaintiffs' complaint. Indeed, on two occasions, a California superior court has interpreted the language of section 6(b) as plainly as it appears -- holding that it forbids party endorsements of candidates for nonpartisan office. Thus, there is no indication that the state courts are prepared to interpret the provision in a manner that skirts the First Amendment. See, e.g., Lind v. Grimmer, 30 F.3d 1115, 1994 U.S. App. LEXIS 18300, *19 (9th Cir. July 22, 1994) (abstention only proper "if statute at issue is 'fairly subject' to an interpretation that will save it from invalidation") (citation omitted).
Finally, the Attorney General maintains that this Court should use the Pullman doctrine as a means to follow the Supreme Court's suggestion that this matter be adjudicated in state court. Renne v. Geary, 501 U.S. at 323. A review of the Court's opinion, however, reveals that it felt that state court rulings might help resolve some of the justiciability concerns that tainted the case presented to it. More specifically, the Supreme Court was concerned with whether section 6(b) applied to individual committee members and, thus, whether they had standing to bring the suit. Id. at 323. In addition, the Court suggested that state court litigation could help further define the terms, "endorse, support, or oppose." Id.
In light of the litigation that has transpired since the Supreme Court's ruling, there can be little doubt that section 6(b) applies to political parties intending to communicate endorsements to their members through private mailings. Unlike the complaint presented in Renne v. Geary, the plaintiffs in this action have identified specific candidates that they seek to endorse in a specific manner for specific offices in the upcoming fall election.
While the Attorney General may prefer to litigate this action in state court, he has cited no precedent sufficient to justify abstention. Furthermore, such a decision would unnecessarily deny plaintiffs the opportunity to litigate in their chosen forum and oust this Court of jurisdiction over an important federal constitutional issue. The Ninth Circuit very recently addressed a similar issue in Lind v. Grimmer, which involved a First Amendment challenge to a state statute that mandated the confidential treatment of citizen complaints concerning alleged campaign finance violations. Upholding the district court's decision not to abstain under the Pullman doctrine, the Ninth Circuit noted:
[a] federal court should abstain only in exceptional circumstances, and only where the complaint involves sensitive areas of social policy that courts ought not to enter. While campaign spending regulation may qualify as an area that federal courts should avoid if possible, [the statute] does not regulate campaign spending. It regulates speech about campaign spending. This is not an area of peculiarly local concern, but an area primarily of federal concern.
30 F.3d 1115, 1994 U.S. App. LEXIS 18300, *19 (9th Cir. July 22, 1994) (citations omitted).
Similarly here, section 6(b) does not simply regulate the manner in which nonpartisan elections are conducted. It regulates speech about nonpartisan elections. A federal court is the appropriate forum in which to adjudicate the constitutionality of such a provision.
To obtain a preliminary injunction, a movant must show: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury if the injunction is not granted; (3) the balance of hardships favors the moving party; and (4) the public interest favors granting relief. Regents of University of California v. American Broadcasting Co., Inc., 747 F.2d 511, 515 (9th Cir. 1984).
A party may meet the burden under these four factors by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions of law are raised and the balance of hardships tips sharply in the moving party's favor. Id. "The critical element . . . is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Benda v. Grand Lodge, 584 F.2d 308, 315 (9th Cir. 1978), cert. denied, 441 U.S. 937, 60 L. Ed. 2d 667, 99 S. Ct. 2065 (1979). Finally, the Ninth Circuit has held that a "'serious question' as one as to which the moving party has 'a fair chance of success on the merits.'" Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984) (quoting Benda, 584 F.2d at 315).
To establish a likelihood. of success on the merits, plaintiffs must demonstrate that section 6(b) interferes with their rights to free speech and association guaranteed by the First Amendment and that the state will not be able to bear its burden of establishing that the provision is necessary to serve a compelling state interest. See Anderson v. Celebrezze, 460 U.S. 780, 789, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983).
There is little doubt that section 6(b) implicates vital First Amendment concerns. Indeed, the Supreme Court has stated that "our form of government is built on the premise that every citizen shall have the right to engage in political expression and association." Sweezy v. New Hampshire, 354 U.S. 234, 250, 1 L. Ed. 2d 1311, 77 S. Ct. 1203 (1957). "Because 'exercise of these basic freedoms . . . has traditionally been through the media of political associations,' political parties as well as individual adherents enjoy First Amendment rights." San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 818 (9th Cir. 1987), aff'd., 489 U.S. 214, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989), (citing Tashjian v. Republican Party of Connecticut, 479 U.S.208, 107 S. Ct. 544, 548-49, 93 L. Ed. 2d 514 (1986)). Furthermore, the Court has held that "any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Sweezy, 354 U.S. at 250.
Section 6(b)'s ban on partisan endorsements in nonpartisan elections directly restrains the political speech that rests "at the core of our electoral process and . . . First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32, 21 L. Ed. 2d 24, 89 S. Ct. 5 (1968). As the Supreme Court has recognized, "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989).
The ban on endorsements "prevents party governing bodies from stating whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position sought." Id. at 223. It also infringes their memberships' companion right to receive information that is similarly guaranteed by the First Amendment. Kleindienst v. Mandel, 408 U.S. 753, 762-63, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972).
Because the challenged provision burdens the right of political parties and their members to communicate freely concerning the merits of particular candidates, "it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest, and is narrowly tailored to serve that interest." Eu, 489 U.S. at 222 (citations omitted).
In this regard, the Attorney General argues that section 6(b) advances a compelling state interest by preserving the nonpartisan nature of California's method of electing local and judicial officials and by maintaining the fair and impartial administration of government. The Attorney General believes that section 6(b) serves this interest well by insulating both the voter and the nonpartisan candidate from the potentially corruptive influence of partisan endorsements. He maintains that this protective buffer is essential in elections for nonpartisan positions where the voters want independent thinkers to serve the public free from covert allegiances to party bosses.
Thus, the Attorney General argues that the endorsement ban will ensure that those who hold nonpartisan office are controlled by the people rather than the political parties who otherwise could secure their indebtedness through valuable pre-election endorsements. To support his position, he cites several Supreme Court decisions in which the Court has upheld restrictions on campaign contributions and spending. See, e.g., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 108 L. Ed. 2d 652, 110 S. Ct. 1391 (1990); Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1975).
The Attorney General's reliance on these cases is misplaced. The risk of corruption that justified limits on campaign financing is not the same type of corruption to which the Attorney General claims that partisan endorsements in nonpartisan elections will lead. To adopt his position, the Court would have to agree that "the State has an interest in protecting 'the people' from their own susceptibility to being influenced by political speech." Renne v. Geary, 501 U.S. 312, 348, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (Marshall, J., dissenting.)
Addressing the merits of section 6(b) in his dissent in Renne v. Geary, Justice Marshall clearly underscored the important difference between the state interest that justifies limits on campaign financing and those proffered by California to defend the proscription of partisan endorsements contained in section 6(b). He noted:
We upheld the constitutionality of [the campaign finance] law [in Austin], finding that a State could legitimately prohibit 'the corrosive and distorting effects of immense aggregations of wealth that are accumulated
with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.'