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August 4, 1994

DANIEL LUNGREN, Attorney General of the State of California; CALIFORNIA REPUBLICAN PARTY; and TIRSO DEL JUNCO, Defendant.

The opinion of the court was delivered by: WILLIAM H. ORRICK

 Plaintiffs, California Democratic Party, Bill Press, Susan Kennedy, San Francisco County Democratic Central Committee, Carole Migden, Sacramento County Democratic Central Committee, Rita Hodgkins and Douglas Denton, have moved this Court to preliminarily enjoin defendant Daniel Lungren, the Attorney General of the State of California, from enforcing Article II, section 6(b) of the California Constitution. A hearing on the matter was held July 27, 1994. For the reasons set forth in this Opinion and Order, which constitutes the Court's findings of fact and conclusions of law required by Rule 52(a) of the Federal Rules of Civil Procedure, the Court GRANTS plaintiffs' motion for a preliminary injunction.


 Plaintiffs have filed an action seeking to have Article II, section 6(b) of the California Constitution declared unconstitutional on the ground that it violates the First and Fourteenth Amendments. *fn1" In addition, plaintiffs seek an order preliminarily enjoining the Attorney General from enforcing section 6(b) against them, arguing that such an enforcement action, if successful, would prevent plaintiffs from endorsing Delaine Eastin for State Superintendent of public Instruction and other candidates for nonpartisan offices in the upcoming fall elections.

 Article II, section 6(a)(b) of the California Constitution provides as follows:

(a) All judicial, school, county, and city offices shall be nonpartisan.
(b) No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.

 Section 6(b) has previously been challenged in federal court. *fn2" On August 31, 1990, the Ninth Circuit, sitting en banc, declared section 6(b)'s ban on nonpartisan endorsements unconstitutional and upheld a district court ruling from the Northern District of California enjoining its enforcement. Geary v. Renne, 911 F.2d 280 (9th Cir. 1990) (en banc), vacated on other grounds, Renne v. Geary, 501 U.S. 312, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1991). The Supreme Court vacated the Ninth Circuit's decision on jurisdictional grounds, concluding, in part, that the case was not ripe for review because the individuals challenging the law had not alleged "an intention to endorse any particular candidate." Id. at 321.

 After the Supreme Court's ruling in Renne v. Geary, plaintiffs sought to have section 6(b) declared unconstitutional in Sacramento Superior Court. The Superior Court denied relief finding that the dispute was not yet ripe for review because plaintiffs had not demonstrated a sufficient threat of injury. (Decl. of Joseph Remcho, filed May 27, 1994, Ex. A).

 Subsequently, the California Democratic Party prepared a mailer in support of Michael Woo, a candidate for the nonpartisan office of Mayor of Los Angeles in the June 1993 election. Shortly before the election, the California Republican Party and an individual, Tirso del Junco, filed a lawsuit in the Superior Court of Sacramento County seeking an injunction prohibiting sending the mailer in support of Woo, on the grounds that it was violative of section 6(b). Del Junco v. Democratic Party of California, No. 534020 (Super. Ct. Sacramento County, 1993) (the "Woo action"). On June 1, 1993, the Sacramento Superior Court, Judge Joe S. Gray presiding, entered a preliminary injunction, prohibiting the California Democratic Party from endorsing Woo. (Remcho Decl. at Ex. C).

 In response, the California Democratic Party filed a petition for writ of mandate in the California Court of Appeal, Third Appellate District, seeking an immediate stay and reversal of the Superior Court's order. Democratic Party of California v. Superior Court, 3 Civil No. CO 16017 (1993). The Court of Appeal declined to stay the injunction, but after the election the Court of Appeal granted an alternative writ of mandate and ordered expedited briefing on the merits of the petition. Although briefing was completed in August 1993, the Court of Appeal had neither scheduled oral argument nor taken any action in the case at the time this lawsuit was filed in May 1994.

 At its 1994 statewide convention, the California Democratic Party decided to support Delaine Eastin for State Superintendent of Public Instruction in the June 7, 1994, primary election. This is a nonpartisan office. The party produced a slate mailer endorsing Eastin and other candidates. (Decl. of Susan P. Kennedy, filed May 27, 1994, Ex. A).

 On May 13, 1994, plaintiffs filed the present action against the California Republican Party, Tirso Del Junco, and the Attorney General of California, seeking declaratory and injunctive relief. Counsel for plaintiffs gave counsel for the California Republican Party a copy of the complaint. On May 25, 1994, California Republican Party counsel informed plaintiffs that it intended to seek a superior court order, pursuant to the superior court's reservation of jurisdiction in the Woo action, to halt distribution of the slate mailer supporting Eastin. A hearing was held on the matter in the Superior Court of Sacramento County on May 26, 1994, and concluded with Judge Gray granting the California Republican Party's application for a temporary restraining order enjoining the California Democratic Party from sending the slate mailers supporting Eastin. (Remcho Decl. at Ex. E). Prior to the issuance of the state court temporary restraining order, the California Democratic Party mailed about seventy-five percent of the mailers.

 On May 27, 1994, plaintiffs applied to this Court for a temporary restraining order prohibiting defendants from enforcing section 6(b) against them. On June 1, 1994, General Duty Judge Claudia Wilken held a hearing on the matter and entered the requested temporary restraining order.



 Before addressing the parties' arguments concerning the issuance of a preliminary injunction, it is necessary to examine the various justiciability concerns raised by the Attorney General in his opposition papers.


 The Attorney General's participation in prior enforcement actions initiated by private parties, *fn3" 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 ...

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