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Thalheimer v. City of San Diego

March 23, 2010

PHIL THALHEIMER; ASSOCIATED BUILDERS & CONTRACTORS PAC SPONSORED BY ASSOCIATED BUILDERS & CONTRACTORS, INC. SAN DIEGO CHAPTER; LINCOLN CLUB OF SAN DIEGO COUNTY; REPUBLICAN PARTY OF SAN DIEGO; AND JOHN NIENSTEDT, SR., PLAINTIFFS,
v.
CITY OF SAN DIEGO; CITY OF SAN DIEGO ETHICS COMMISSIONERS RICHARD M. VALDEZ, CHAIR, W. LEE BIDDLE, GUILLERMO ("GIL") CABRERA, CLYDE FULLER, DOROTHY LEONARD, AND LARRY S. WESTFALL, ALL SUED IN THEIR OFFICIAL CAPACITY; THE HONORABLE JERRY SANDERS, MAYOR OF SAN DIEGO, SUED IN HIS OFFICIAL CAPACITY; HEY, OLDSMITH, CITY ATTORNEY FOR THE CITY OF SAN DIEGO, SUED IN HIS OFFICIAL CAPACITY; AND ELIZABETH MALAND, CITY CLERK OF SAN DIEGO, SUED IN HER OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER DENYING DEFENDANT'S MOTION FOR IMMEDIATE STAY [Doc. No. 50]

Presently before the Court is Defendant City of San Diego's ("the City") motion for an immediate stay of a preliminary injunction pending appeal, pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. (Doc. No. 50.) The City moves to stay enforcement of the portions of the Court's February 16, 2010 and February 19, 2010 Orders relating to the City's limit on campaign contributions to independent expenditure committees. (Doc. Nos. 42, 46.)

Plaintiffs filed an opposition, and the City filed a reply. The motion is suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons stated herein, the Court denies the City's motion for an immediate stay.

BACKGROUND

Plaintiffs Phil Thalheimer, Associated Builders & Contractors, Inc. San Diego Chapter, Lincoln Club of San Diego County, San Diego County Republican Party, and John Nienstedt ("Plaintiffs") challenge the constitutionality of San Diego's campaign finance laws on First Amendment grounds. Plaintiffs' Verified Complaint names as defendants the City of San Diego ("the City") and several government officials in their official capacity.*fn1 (Doc. No. 1.)

Plaintiffs challenge five provisions of the San Diego Municipal Election Campaign Control Ordinance ("ECCO"), arguing that they are unconstitutional, both facially and as applied to Plaintiffs. Most relevant to the instant motion to stay is Section 27.2936(b), which provides: "It is unlawful for any general purpose recipient committee to use a contribution for the purpose of supporting or opposing a candidate unless the contribution is attributable to an individual in an amount that does not exceed $500 per candidate per election." ECCO § 27.2936(b).

On December 21, 2009, Plaintiffs filed a motion seeking a preliminary injunction enjoining enforcement of the five provisions. (Doc. No. 3.) On February 16, 2010, following briefing and oral argument, the Court issued a written order granting in part and denying in part the motion. (Doc. No. 43.) The Court enjoined enforcement of Section 27.2936(b), among other provisions, finding that Plaintiffs had demonstrated a likelihood of success on the merits. (Order at 9-14, 26.) The Court also enjoined enforcement of Section 27.2935(a), to the extent it imposes a $500 limit on contributions to committees making only independent expenditures. (Order at 26.)

On February 19, 2010, in response to the City's ex parte motion for clarification, the Court issued an order clarifying that the injunction pertaining to the enforcement of Section 27.2936(b), also encompasses contributions from non-individual entities, such as corporations,to independent expenditure committees. (Doc. No. 46.) In addition, the Court granted in part Plaintiffs' request to enjoin Section 27.2951, to the extent that it prohibits independent expenditure committees from accepting contributions drawn against a checking account or credit card account belonging to a non-individual entity. (Doc. No. 46.)

Subsequently, the City appealed the February 16, 2010 and the February 19, 2010 Orders. (Doc. Nos. 48, 49.) On March 8, 2010, the City filed the instant motion for immediate stay of enforcement of the portions of the Orders that deal with Sections 27.2936(b), 27.2935(a), and 27.2951, only as they relate to contributions to independent expenditure committees, until resolution of the appeal. (Doc. No. 50.) The City requests a stay remaining in effect pending resolution of the appeal. In the alternative, the City requests a short stay lasting long enough for the Ninth Circuit Court of Appeals to rule upon the City's emergency application for a stay.*fn2

The Court granted in part the City's ex parte motion to shorten time for hearing on the motion for immediate stay and issued an expedited briefing schedule. (Doc. No. 56.)

DISCUSSION

I. Legal Standard

Rule 62(c) of the Federal Rules of Civil Procedure provides: "While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights."

The standard for granting a motion to stay is akin to the one used in deciding whether a preliminary injunction should be issued. Winter v. Nat. Res. Def. Council, Inc., --- U.S. ---, 129 S.Ct. 365, 376 (2008). The Court may issue a stay upon consideration of four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 12 ...


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