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Chula Vist Citizens For Jobs and Fair Competition, et al v. Donna Norris

March 22, 2012


The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge



This case presents two questions of first impression. It asks whether the First Amendment grants a corporation or association the right to serve as the official proponent of a local ballot initiative. It also asks whether official proponents enjoy a First Amendment right to anonymity during the period when signatures are being gathered. Having considered the arguments and the evidence presented, this Court answers "no" to both questions. The plaintiffs also ask that certain statutory requirements governing ballot initiatives be declared void for vagueness. The Court finds those sections are sufficiently clear to pass constitutional muster.


The Plaintiffs are the Chula Vista Citizens for Jobs and Fair Competition (an unincorporated association), the Associated Builders & Contractors, Inc. (a corporation), Lori Kneebone and Larry Breitfelder (residents and registered voters of Chula Vista, California). The Defendants are Chula Vista city officials sued in their official capacities. The State of California has intervened to defend the constitutionality of California's elections laws.

Chula Vista Citizens and Associated Builders & Contractors, Inc., attempted to propose an initiative to be placed on the ballot in the City of Chula Vista, but it was rejected by the City Clerk. Then Kneebone and Breitfelder proposed an initiative and it was accepted and enough signatures collected to place the initiative on the ballot. The ballot measure, known as "Proposition G," passed on June 8, 2010 by a margin of 55.75% to 44.25%.*fn1

Plaintiffs filed their Complaint challenging state and municipal election laws as violating the First Amendment: (a) by preventing corporations and associations from serving as official proponents of Proposition G; and (b) by requiring the official proponents of Proposition G to disclose their names during the time of circulating Proposition G for signature gathering. Plaintiffs also challenge as too vague various terms in the statutes governing ballot initiatives.

Plaintiffs and Defendants have filed cross-motions for summary judgment on all counts of the Complaint.*fn2 There are no genuine issues of material fact present and the motions are ripe for decision. Having reviewed the evidence and arguments, the Court denies Plaintiffs' motion and grants Defendants' motion.



Only Electors May Be Official Proponents; Only Natural Persons May Be Electors The California Constitution provides that its citizenry may propose laws for popular consideration. Likewise, the City of Chula Vista Charter also permits its citizenry to propose ordinances for the ballot. To begin the process, both Chula Vista and California require a ballot initiative be officially and formally proposed by an "elector." See City of Chula Vista Charter § 903; Cal. Elec. Code § 342. Section 903 of the City Charter states in part, There are hereby reserved to the electors of the City the powers of the initiative and referendum and of the recall of municipal elective officers. (emphasis added). Chula Vista's Charter incorporates the California Elections Code. Under California Elections Code § 9202(a), to start the process a "proponent" must sign and file a notice of intention with the text of the ballot initiative.*fn3 For state-wide measures, California Elections Code § 342 defines an initiative proponent in terms of "electors,"

"Proponent or proponents of an initiative or referendum measure" means, for statewide initiative and referendum measures, the elector or electors who submit the text of a proposed initiative . . . (emphasis added). California Elections Code § 321 defines an "elector" to be a natural person and a resident,

"Elector" means any person who is a United States citizen 18 years of age or older and a resident of an election precinct at least 15 days prior to an election.

An "elector" may be a voter once he or she registers to vote. See Cal. Elec. Code § 359. Consequently, only a natural person may be an official initiative proponent because the privilege is restricted to "electors."

Plaintiffs do not disagree, but argue that the natural person requirement offends the First Amendment to the United States Constitution. Consequently, Plaintiffs ask this Court to declare California Elections Code §§ 342 and 9202 unconstitutional*fn4 to the extent that they exclude corporations and unincorporated associations from serving as official proponents of a municipal ballot initiative.
Though Corporations and Associations Have First Amendment Rights, They May Not Propose Legislation Through a California Ballot Initiative Assuming that Plaintiffs have Article III standing,*fn5 their arguments are unpersuasive. The main contention advanced by the Plaintiffs is that corporations and associations have a First Amendment right to propose legislation in the form of a qualifying ballot initiative.*fn6 Their argument relies upon the Supreme Court's recent decision that "First Amendment protection extends to corporations." Citizens United v. FEC, 130 S. Ct. 876, 899-900 (2010) ("The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because associations are not 'natural persons.'").*fn7 Plaintiffs' contention is both novel and breathtaking in its potential application. As the City Defendants correctly point out, there is "no record that anybody has ever attacked a state law similar to the elector requirement before . . . . None of the cases cited in plaintiffs' motion addresses the issue, even in dictum or by implication." May a state or municipality constitutionally limit its law-making machinery to natural person citizen electors? Or, must it also allow associations and corporations to exercise law-making functions? Plaintiffs view the question in terms of a corporation's right to engage in protected political speech. Defendants, on the other hand, view the question in terms of the rights of citizens to self govern.
Plaintiffs contend that the elector requirement impermissibly prohibits associational speakers from speaking. The argument begins with the well-accepted position that advocating for an initiative petition is core political speech. It continues with the also well-accepted idea that the circulation of a ballot initiative involves core political speech. See Meyer v. Grant, 486 U.S. 414, 421-22 (1988). Plaintiffs then attempt to stretch the idea of advocation and circulation to include the mechanics of initiation. They argue that the act of proposing an initiative is also core political speech and that corporations and associations are banned*fn8 from speaking in that way. But the acts of ballot initiation are qualitatively different than acts of engaging in the First Amendment dialog of circulation or advocation. Angle v. Miller, __ F.3d __, 2012 WL 833901*7 & n.5 (9th Cir. Mar. 14, 2012) (citing Meyer, 486 U.S. at 424-25) ("There is no First Amendment right to place an initiative on the ballot.")

The Power of the Initiative Is Reserved to the People of California

"The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California." Perry v. Schwarzenegger, 628 F.3d 1191, 1197 (9th Cir. 2011). Under California's constitutional form of government, "All political power is inherent in the people." Cal. Const. art. II, § 1; Schwarzenegger, 628 F.3d at 1196. While the state legislature passes most laws, the people of California have retained for themselves the power to pass laws and amend their Constitution. Cal. Const. art. IV, § 1; Schwarzenegger, 628 F.3d at 1196 ("the sovereign people's initiative power is considered to be a fundamental right."). The state constitution makes clear that this initiative power belongs to people. Neither corporations nor unincorporated associations are mentioned. Cf. Citizens United, 130 S. Ct. at 972 (Stevens, J., concurring and dissenting in part) ("Corporations . . . are not themselves members of 'We the People' by whom and for whom our Constitution was established."). "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt them or reject them." Cal. Const. art. II, § 8 (emphasis added); Schwarzenegger, 628 F.3d at 1196. The Supreme Court of California describes the initiative power held by California citizens:

The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.

Assoc. Home Builders etc., Inc. v. City of Livermore, 18 Cal. 3d 582, 591-92 (1976) (citations omitted); see also Costa v. Superior Court, 37 Cal. 4th 986, 1008-09 (2006) (describing the initiative power of California electors). Just last year, the California Supreme Court described the state's initiative power as a power distinctly reserved to "people" or "electors:"

Article II, section 1 of the California Constitution proclaims: "All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require." As this court noted in Strauss: "This provision originated in one of the initial sections of the Declaration of Rights contained in California's first Constitution (Cal. Const. of 1849, art. I, § 2), and reflects a basic precept of our governmental system: that the people have the constitutional right to alter or reform their government."

Although California's original 1849 Constitution declared that "all political power is inherent in the people," it was not until 60 years later - in 1911 - that the California Constitution was amended to afford the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions through the initiative power.

Perry v. Brown, 52 Cal. 4th 1116 (2011) (emphasis in original) (citations omitted). That is not to say that corporations and associations may not promote, discuss, debate, underwrite, or advocate for or against a ballot measure. But the position of official initiative proponent is a special role springing from and confined by state law. As Perry points out, "[u]nder these and related statutory provisions, the official proponents of an initiative measure are recognized as having a distinct role - involving both authority and responsibilities that differ from other supporters of the measure . . . ." Id. (emphasis added).

For example, one would rightly expect the Governor and Attorney General to defend a California law passed by popular initiative vote. But if for some unforseen reason no public defense is mounted, it is only the official proponents who have standing to defend the initiative in court. Perry v. Brown, __ F.3d __, 2012 WL 372713 at *2, *9 (9th Cir. Feb. 7, 2012) ("we do know that California law confers on 'initiative sponsors' the authority 'to defend, in lieu of public officials, the constitutionality of initiatives made law of the State'") (quoting Perry v. Brown, 52 Cal. 4th 1116).

Like the State, the people of Chula Vista in adopting a governing charter, reserved to themselves, as electors, the power of the city ballot initiative. In view of the self-governance model adopted by the citizens of Chula Vista and of California, the elector requirement makes good public policy sense, since the act of proposing a ballot initiative is the first step in an act of law-making. The State argues, and Perry recognizes, that there are several legislation-related examples where the actors must be electors and thus natural persons. For example, only electors are allowed to vote. Only electors are allowed to run for office. Only electors may sign nominating papers necessary to qualify candidates for the ballot. Only electors (as elected legislators) are allowed to introduce bills to the legislature. Thus, it is entirely consistent that only a natural person elector may be an official ballot initiative proponent.

Plaintiffs do not come to terms with the idea that the natural person citizens of Chula Vista may constitutionally reserve to themselves the power to make law, for their argument overlooks the essence of self-government. Brown, 2012 WL 372713 at *10 ("The People of California are largely free to structure their system of governance as they choose."). Permitting a corporation or association to be a ballot initiative proponent could lead to local laws being proposed by foreigners unready to contribute to the city or bear the responsibility of citizenship. Worse, corporations with assets, operations, or shareholders located outside the city, state, or country might propose initiatives adversely affecting the welfare of citizens of Chula Vista, in order to gain a business advantage elsewhere. Likewise, associations of people who live and work in other locales, could propose laws to their own advantage or the disadvantage of Chula Vistans. Even harmless or well-meant initiatives, could drown out the legislative ideas of the City's citizens. By requiring proponents to be electors, Chula Vista protects its initiative process from becoming a tool of foreigners and artificial entities. That is a choice the people of the City of Chula Vista may freely make without running afoul of the First Amendment.

Proposing a Ballot Initiative is Part of a Legislative Process

The State of California points out in its brief that "the submission of an initiative petition is the first step in a legislative process." According to the State, "because an initiative petition is a legislative document, it is legitimately limited to members of the legislative body, in this case the electorate."*fn9 Id. The California Supreme Court underscores the distinction between an official proponent and all other supporters of a ballot measure. "[T]he official proponents of an initiative measure are recognized as having a distinct role - involving both authority and responsibilities that differ from other supporters of the measure." Perry, 52 Cal. 4th 1116; see also S.F. Forty-Niners v. Nishoika, 75 Cal. App. 4th 637, 648 (1999) ("The initiative petition with its notice of intention is not a handbill or campaign flyer -- it is an official election document . . . . It is the constitutionally and legislatively sanctioned method by which an election is obtained on a given proposal.").

States are allowed "significant flexibility" in designing their own initiative systems. Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) ("To the extent a regulation concerns the effect of a particular activity in that process, the government will be afforded substantial latitude to enforce that regulation."). In this case, the elector requirement is a reasonable state restriction on who may officially energize the ballot initiative machinery. "These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action." Id. at 2827 (Sotomayor, J., concurring). "As the Court properly recognizes, each of these structural decisions inevitably affects -- at least to some degree -- the individual's right to speak about political issues and to associate with others for political ends." Id. at 2827-28 (citations and internal quotations omitted). "Regulations of this nature, however, stand a step removed from the communicative aspect of petitioning, and the ability of the States to impose them can scarcely be doubted." Id. (citations and internal quotations omitted). The elector (or natural person) requirement is premised upon the distinction between an elector who proposes a measure, and all other persons who may evaluate and advocate for or against its passage. It is a step removed from restrictions on speech and debate. It is a rational, reasonable, and constitutional choice by the people of Chula Vista acting in their sovereign capacity, to fashion rules for lawmaking by popular initiative. Consequently, the restriction does not trench on the Plaintiffs' First Amendment right to otherwise engage in core political speech.

Moreover, the elector requirement is not subject to strict scrutiny, as Plaintiffs assert. If Chula Vista Charter § 903 restricted core political speech, it would need a compelling interest and it would need to be narrowly tailored to achieve that interest. However, the preferred protections for core political speech are out of place in the context of ballot initiative mechanics. Serving in the position of an official ballot initiative proponent is not pure speech. It is a legislative act. But, even assuming for the sake of argument, that serving as an official proponent is speech to some degree, it is speech a large step removed from the core communicative aspect of circulating a petition and publicly advocating for its passage or defeat. It is speech much closer to the mechanics of the ballot initiative process.

"It is by no means necessary for a State to prove" that measures to control the mechanics of the ballot initiative process "are narrowly tailored to its interests." Reed, 130 S. Ct. at 2827 (Sotomayor, J., concurring) (citing Celebrezze, 460 U.S. at 788). "To require that every voting, ballot, and campaign regulation be narrowly tailored to serve a compelling interest 'would tie the hands of States seeking to assure that elections are operated equitably and efficiently.'" Buckley v. Am. Const. Law Found. ("Buckley II"), 525 U.S. 182, 206 (1999) (Thomas, J., concurring) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)). Thus, strict scrutiny is not the appropriate test for the elector requirement. Instead, it is a regulation for which the Supreme Court recognizes that states and ...

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