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Institute of Governmental Advocates v. Bowen

June 15, 2009


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

This matter is before the court on defendant Debra Bowen's motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the basis that the subject matter of plaintiffs' claim is not ripe for review. Plaintiffs Institute of Governmental Advocates, Jericho: A Voice for Justice, Law Offices of Timothy Yaryan, Timothy Yaryan, Los Angeles Police Protective League, and California Professional Firefighters (collectively, "plaintiffs") oppose the motion. For the reasons set forth below,*fn1 defendant's motion to dismiss is GRANTED.


Plaintiffs are lobbyists, lobbying firms, lobbyist employers, and an association representing professional lobbyists and lobbying firms active in California. (Id. ¶¶ 5-9.) In 2008, the California State Legislature enacted AB 583, which, inter alia, requires defendant to place upon the June 8, 2010 California statewide primary ballot the question of whether the State of California should implement publicly-financed elections for the office of California Secretary of State. (Compl., filed Mar. 13, 2009, ¶ 2.) If approved, the funds for the publicly-financed elections would derive, in part, from a new flat tax imposed on lobbyists, lobbying firms, lobbyist employers, and lobbying coalitions of $700 per two-year legislative session. (Id.) Specifically, AB 583, § 7 reads, in relevant part:

The Secretary of State shall... submit Sections 1, 2, 3, 4, 5, 6, and 8 of this act for approval by the voters at the June 8, 2010, statewide primary election.... [A]ll ballots of the June 8, 2010, primary election shall have printed thereon as the ballot label the following: "CALIFORNIA FAIR ELECTIONS ACT. Creates a voluntary system for candidates for Secretary of State to qualify for a public campaign grant if they agree to strict spending limits and no private contributions.... Funded by voluntary contributions and by an annual fee on lobbyists, lobbying firms, and lobbyist employers."

(Id. ¶ 22.)


Plaintiffs contend that AB 583 is unconstitutional because it (1) imposes a tax on the exercise of protected First Amendment activities; (2) imposes a flat tax that has no connection to the State's actual costs of administering it otherwise lawful regulation of lobbying activities; and (3) imposes a discriminatory tax that violations plaintiffs' Fourteenth Amendment right to equal protection by singling out a category of speech engaged in by specific participants in the lobbying process while excluding others from the obligation to pay the tax. (Compl. ¶ 24.) Plaintiffs also contend that the mere submission to voters of the provisions in AB 583 is unconstitutional. (Id. ¶ 25.) Plaintiffs seek an injunction removing the sections of AB 583 from the June 8, 2010 California statewide primary ballot, or any other ballot. Defendant contends that plaintiffs' claims are not ripe for judicial review.

The justiciability doctrine of ripeness is "peculiarly a question of timing," Reg'l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974), which "demands that litigants state a claim on which relief can be granted and that litigants' asserted harm is 'direct and immediate' rather than speculative or hypothetical." Hillblom v. United States, 896 F.2d 426, 430 (9th Cir. 1990). "For adjudication of constitutional issues, concrete legal issues presented in actual cases, not abstractions, are requisite." United Pub. Workers v. Mitchell, 330 U.S. 75, 89 (1947). The case must present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. v. Haworth, 300 U.S. 227, 240-41 (1937). "The 'basic rationale' for the ripeness doctrine 'is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements' over policy." Hillblom, 896 F.2d at 430 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967)).

"There are two components to ripeness: constitutional ripeness and prudential ripeness." United States v. Braren, 338 F.3d 971, 975 (9th Cir. 2003) (citing Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc)).

A. Constitutional Ripeness

In order to meet the threshold of constitutional ripeness for declaratory judgment, the facts alleged must demonstrate, under all the circumstances, "that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Id. (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)). In assuring whether the jurisdictional prerequisite is met, courts must "consider whether the plaintiffs face 'a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.'" Thomas, 220 F.3d at 1139 (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).

The Supreme Court has noted that under certain circumstances, "the implementation of a governmental electoral process that subjects" conduct subject to constitutional protections "to a majoritarian vote" can be a constitutional injury by itself. Santa Fe Indep. Sch. Dist. v. Doe ("SFISD"), 530 U.S. 290, 314 (2000). In SFISD, the plaintiffs challenged a school district policy that authorized two student elections in regards to prayers before high school football games; the first election decided whether pre-game invocations should be delivered and the second decided who the speaker would be. Id. at 294-98. The Court also noted that the policy evolved from "the long-sanctioned office of 'Student Chaplain' to the candidly titled 'Prayer at Football Games' regulation," indicating that the school district "intended to preserve the practice of prayer before football games. Id. at 309. After the school district enacted the policy, the students chose to allow a student to say a prayer and selected a student to deliver the prayer. Id. at 297-98. The Court held that based upon the content and historical context of the policy, the simple enactment "with the purpose of endorsement of student prayer, was a constitutional violation" and that the Court "need not wait for the inevitable to confirm and magnify the constitutional injury." Id. at 316 ("Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail.")

However, the Ninth Circuit has specifically rejected the position that "the mere existence of a statute can create a constitutionally sufficient direct injury"; "[r]ather, there must be a genuine threat of imminent" that the statute will be enforced. Thomas, 220 F.3d at 1139; see San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir. 1996). In Thomas, the plaintiffs, two landlords, challenged a statute that outlawed certain forms of discrimination in rental housing based upon marital status. Id. at 1137. The court held that because the landlords only expressed an "intent" to violate the law on come uncertain day in the future, there was no specific threat or even hint of future enforcement or prosecution, and there was not a history of past criminal prosecution or civil enforcement under the statute, the plaintiffs did not confront "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Id. at 1141 (quoting Babbitt, 442 U.S. at 298). Thus, the claim was not constitutionally ripe for review. Id. (citing Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 732 (1998)).

The injury of self-censorship, though, is a constitutionally sufficient to set forth a justiciable claim. Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1093 (9th Cir. 2003). In Getman, the Ninth Circuit held that the plaintiff's refrain from engaging in planned communications and associated expenditures based upon a reasonable fear of enforcement of the enacted statute at issue was sufficient injury to create a justiciable case or controversy. The court noted that it is well established that "one does not have to await the consummation of threatened injury to obtain preventative relief." Id. at 1094 (quoting Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)). However, the court also noted that "the self-censorship door... does not open to every plaintiff." Id. at 1095. In a claim involving free speech, the potential plaintiff's intended ...

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