Renne v. Geary, 501 U.S. 312 (1991)

JUSTICE WHITE, dissenting.

The majority’s concerns about the justiciability of this case, even though ultimately misplaced, are understandable, in light of the failure by the courts below to analyze the precise nature of the constitutional challenge that is presented here. Those concerns, however, should not prevent us from independently examining the record and deciding the issues that are properly presented. In doing so, I conclude that the only constitutional challenge that is properly before us is to the action by the San Francisco Registrar of Voters in deleting references in official voter pamphlets to political party endorsements, a challenge that is fully justiciable. Because the Registrar’s action does not violate the First Amendment, I would reverse the judgment of the Court of Appeals. I therefore dissent from the majority’s disposition of this case.

I

The courts below erred in treating respondents’ challenge in this case as a facial challenge to the constitutionality of Article II, § 6(b) of the California Constitution. Respondents’ complaint reveals that they challenged only the application of § 6(b) by San Francisco’s Registrar of Voters in refusing to print in voter pamphlets references to endorsements by political parties.**

After listing the defendants, the complaint sets forth the background for its three causes of action:

In connection with each municipal election, the City and County mails a voters pamphlet to all registered voters. Said pamphlet contains ballot arguments for and against City and County measures, and statements of qualifications of candidates for City and County offices. Defendant PATTERSON [the Registrar of Voters] is responsible for preparing and publishing said voters pamphlet.

App. 3, ¶ 10. The first cause of action then challenges the Registrar’s deletion of portions of proposed ballot arguments submitted for inclusion in the voter pamphlets. 2 Record, Complaint ¶¶ 11-20. The second cause of action challenges the Registrar’s charge of a fee for ballot arguments. Id., ¶¶ 21-30. The third cause of action is the one that is at issue in this case. That cause of action, like the two before it, concerns actions by the Registrar with regard to the voter pamphlets. Specifically, respondents alleged:

In the past, defendants PATTERSON and CITY AND COUNTY OF SAN FRANCISCO have deleted all references in candidate’s statements for City and County offices to endorsements by political party central committees or officers or members of such committees. Unless restrained from doing so by order of this court, defendants threaten to continue to delete or exclude all references in candidate’s statements to endorsement of candidates by political party central committees, or officers or members of such central committees.

App. 5, ¶ 38. Respondents also stated that they

desire to read endorsements of candidates for city and county office as part of candidate’s statements printed in the San Francisco voter’s pamphlet.

¶ 37. Finally, the only injunctive relief sought based on the third cause of action relates to the deletion of endorsements from the voter pamphlets. Id. at 6, ¶ 6.

In entering summary judgment in favor of respondents on the third cause of action, the District Court described respondents’ claim as follows:

Plaintiffs claim -- and defendants admit -- that defendants refuse to permit political party and political party central committee endorsements of candidates for such offices to be printed in the San Francisco voter’s pamphlet on account of said state constitutional provision.

708 F.Supp. 278, 279 (ND Cal.1988). Similarly, both the original Ninth Circuit panel and the en banc panel stated:

The basis of [respondents’] complaint as it relates to this appeal was the refusal of [petitioners], the City and County of San Francisco and the San Francisco Registrar of Voters, to permit official political party and party central committee endorsements of candidates for nonpartisan office to be printed in the San Francisco Voter Pamphlet in connection with elections scheduled for June 2 and November 3, 1987. [Petitioners] based their refusal to print party endorsements on the language of article II, § 6(b).

880 F.2d 1062, 1063 (CA9 1989); 911 F.2d 280, 282 (CA9 1990).

As the above discussion reveals, and as the majority recognizes, see ante at 323-324, it is far from clear that a facial challenge to the constitutionality of § 6(b) was presented in this case. Both the District Court and the en banc Court of Appeals nevertheless invalidated § 6(b) on its face, without analyzing the nature of respondents’ claim. In doing so, they violated two important rules of judicial restraint applicable to the resolution of constitutional issues --

"one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."

United States v. Raines, 362 U.S. 17, 21 (1960), quoting Liverpool, New York d Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also 911 F.2d at 304-305 (Rymer, J., dissenting) (arguing that § 6(b) should not be invalidated on this record).

II

I have no doubt that the narrow issue presented in this case is justiciable. As the majority recognizes, ante at 319, respondents in their capacity as registered voters are alleging that § 6(b), as applied by the Registrar to the voter pamphlets, interferes with their right to receive information concerning party endorsements. Such a claim finds support in our decisions, which have long held that the First Amendment protects the right to receive information and ideas, and that this right is sufficient to confer standing to challenge restrictions on speech. See, e.g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757 (1976); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Stanley v. Georgia, 394 U.S. 557, 564 (1969).

The majority nevertheless speculates that there is no standing here, because a provision in the California Elections Code "might be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of § 6(b)." Ante at 319. That makes no sense. A constitutional challenge to a law is not barred merely because other laws might also mandate the allegedly unconstitutional action. If so, it would mean that the States or the Federal Government could insulate unconstitutional laws from attack simply by making them redundant.

The majority’s confusion on this issue is illustrated by its reliance on ASARCO Inc. v. Kadish, 490 U.S. 605, 615-616 (1989). There, the plaintiffs challenged the validity of a state statute governing mineral leases, basing their standing on the claim that the statute deprived school trust funds of millions of dollars, and thereby resulted in higher taxes. Id. at 614. Four Members of this Court noted that, even if the statute were struck down, it was far from clear that the plaintiffs would enjoy any tax relief:

If respondents prevailed and increased revenues from state leases were available, maybe taxes would be reduced, or maybe the State would reduce support from other sources, so that the money available for schools would be unchanged.

Ibid.

The difference between ASARCO and the present case is obvious. In ASARCO, the State could, by other actions, legally preclude the relief sought by the plaintiffs. By contrast, in this case, if petitioners’ refusal to allow references to party endorsements in voter pamphlets is unconstitutional when based on § 6(b), it probably is also unconstitutional if based on some other state law, such as California’s Elections Code. The injury alleged by respondents, therefore, "is likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).

The majority’s concerns about the ripeness of respondents’ challenge, see ante at 320-323, also are not sufficient to preclude our review. Although I agree with the majority that the possible applications of § 6(b) to speech by political parties and their members is not properly before us, here respondents have alleged, and petitioners have admitted, that San Francisco’s Registrar of Voters has deleted references to political party endorsements from candidate statements printed in official voter pamphlets, and that he threatens to continue to do so in the future. See App. 5, 1138; id. at 9, XIV. Indeed, the majority admits that the record contains "evidence of a credible threat that § 6(b) will be enforced . . . against candidates in the context of voter pamphlets." Ante at 322. The Registrar’s past conduct makes his threat "sufficiently real and immediate to show an existing controversy." O’Shea v. Littleton, 414 U.S. 488, 496 (1974). See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1000-1001 (1982) (allowing nursing home residents to sue to prevent threatened transfers); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (allowing action for declaratory relief based on threats of enforcement of anti-handbilling statute). It is well settled that "`[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.’" Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979), quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923). This is particularly true in the election context, where we often have allowed preenforcement challenges to restrictions on speech. See, e.g., Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, (1986); Buckley v. Valeo, 424 U.S. 1, (1976).

I therefore dissent from the judgment ordering dismissal for want of justiciability.

III

Although the Court does not discuss the merits, I shall briefly outline my view that the state constitutional provision at issue in this case is constitutional as applied to the exclusion of party endorsements from the official voter pamphlets. California has decided that its "[j]udicial, school, county, and city offices shall be nonpartisan." Cal.Const., Art. II, § 6(a). I am confident that this provision is valid, at least in so far as it authorizes the State not to identify on the official ballot candidates for nonpartisan offices as the candidates of political parties. The interests proffered as supporting California’s nonpartisan provision -- promotion of the impartial administration of government, prevention of corruption, and the avoidance of the appearance of bias -- are interests that we have already held are sufficiently important to justify restrictions on partisan political activities. See CSC v. Letter Carriers, 413 U.S. 548, 665 (1973). These interests are also similar to the interests supporting limitations on ballot access and voting eligibility that have been upheld by this Court. See American Party of Texas v. White, 415 U.S. 767, 786 (1974); Storer v. Brown, 415 U.S. 724, 736 (1974); Rosario v. Rockefeller, 410 U.S. 752, 761 (1973); Jenness v. Fortson, 403 U.S. 431, 442 (1971).

If the State may exclude party designations from the ballot, it surely may exclude party endorsements from candidate statements contained in the official voter pamphlet prepared by the government and distributed to prospective voters. It is settled that "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129 (1981). The voter information pamphlet obviously is not a traditional public forum, and its use may be limited to its intended purpose, which is to inform voters about nonpartisan elections. See Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46, n. 7 (1983). Refusing to permit references in candidate statements to party endorsements is therefore plainly constitutional.

Accordingly, I would reverse the judgment of the Court of Appeals.

1. In addition, there is one organization respondent, Election Action, which is committed to placing certain referenda matters on the ballot in California. As the majority notes, see ante at 314-315, Election Action asserts no stake in this litigation independent of the individual voters who constitute its membership.

2. Because all respondents clearly have standing as potential receivers of protected speech, it is unnecessary to resolve whether certain respondents also have standing, in their capacity as committee members, to contest deletion from voter pamphlets of the committee’s endorsement. Were this the only available basis for respondents’ standing, it would be necessary to determine whether individual committee members may challenge infringement of the right to publicize an endorsement that is issued by the committee as a whole. As the majority points out, this matter is "unsettled." Ante at 320.

3. In support of its novel approach to standing, the majority cites no cases in which an injury was deemed unredressable because the challenged government conduct might have been -- but was not -- justified with reference to some law other than the one upon which the government officials relied. Indeed, the only precedents that the majority cites, ante at 320, are decisions imposing the general requirement that injuries be redressable. Stated at that level of generality, the principle is uncontrovertible -- but it is also of no help to the majority here.

4. The majority cites a series of decisions to support its view that we do not know enough about the expressive activity restricted by § 6(b) to evaluate its constitutionality. Ante at 319. The Court’s reasoning in the cited precedents, however, only confirms the deficiencies in the majority’s analysis here. For example, in Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 576-580 (1947), the Court found the dispute unripe for adjudication because it was unsure which criminal statutes would be applied to the petitioner or which other code sections were incorporated by reference in those statutes; in Socialist Labor Party v. Gilligan, 406 U.S. 583, 586 (1972), the Court found "no allegation of injury that the party has suffered or will suffer because of the existence of the [law challenged]" (emphasis added); and in Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 113 (1962), involving a public official’s disputed authorship rights in his speeches, the Court found the record "woefully lacking" because it omitted details -- such as whether the official used government facilities and personnel to prepare his speeches -- that bore directly upon the legal issue. Unlike the situation in these precedents, the respondents in this case have clearly identified the law that will be enforced to their detriment, the injury that will flow from that enforcement, and the relevant facts surrounding such enforcement.

5. The majority expresses "doubt that respondents’ complaint should be construed to assert a facial challenge to § 6(b)" because the complaint prays for an injunction only against petitioners’ redaction policy and because "[r]eferences to other applications of § 6(b) [in the complaint] are at best conclusory." Ante at 323-324. JUSTICE WHITE’s dissenting opinion expresses a similar view. Ante at 328, 330. But neither the majority nor JUSTICE WHITE explains why a party raising an overbreadth challenge must seek to enjoin applications of an invalid law other than the application that is injuring him. Moreover, to require a broader request for injunctive relief here would be both unfair and unnecessary. Although respondents know which officials should be enjoined in order to halt the redaction of voter pamphlets, respondents cannot know who will next enforce § 6(b) against party central committees that seek to endorse nonpartisan candidates. See, e.g., Unger v. Superior Court, 37 Cal.3d 612, 209 Cal.Rptr. 474, 692 P.2d 238 (1984) (injunction sought by two registered voters against party’s announcement of opposition to justices at confirmation election); Unger v. Superior Court, 102 Cal.App.3d 68;, 162 Cal.Rptr. 611 (1980), cert. denied, 449 U.S. 1131 (1981), (injunction against party endorsement sought by rival candidate who was not endorsed). Should respondents obtain the declaratory relief that they seek, any future attempts to enforce § 6(b) against a political party could easily be defeated by invoking that declaratory judgment. In sum, respondents’ request for a declaratory judgment that § 6(b) is unconstitutional furnishes ample basis for inferring that their complaint includes a facial challenge to § 6(b).

The insistence by the majority and by JUSTICE WHITE that a party expressly style his claim in his complaint as a challenge based on overbreadth is also inconsistent with the liberal "notice pleading" philosophy that informs the Federal Rules of Civil Procedure. See Conley v. Gibson, 355 U.S. 41, 47-48 (1957); see generally Fitzgerald v. Codex Corp., 882 F.2d 586, 589 (CA1 1989) ("[U]nder Fed.R.Civ.P. 8, it is not necessary that a legal theory be pleaded in the complaint if plaintiff sets forth `sufficient factual allegations to state a claim showing that he is entitled to relief’ under some [tenable] legal theory" (emphasis in original)). I am particularly perplexed by JUSTICE WHITE’s determination that "[t]he courts below erred in treating respondents’ challenge in this case as a facial challenge." Ante at 328 (emphasis added). At every stage of this litigation, beginning with respondents’ summary judgment motion, the parties have framed the constitutional question exclusively in terms of § 6(b)’s application to party endorsements, precisely the overbreadth argument that JUSTICE WHITE declines to reach. See Points and Authorities in Support of Summary Judgment in No. C-87 1724 AJZ (ND Cal.), pp. 22-26; Memorandum of Points of Authorities in Opposition to Summary Judgment in No. C-87-4724 AJZ (ND Cal.), pp. 20-41; Brief of Appellant in No. 88-2875 (CA9), pp. 7-18; Brief of Appellees in No. 88-2875 (CA9), pp. 5-36. In such circumstances, I do not understand what authority this Court would have for reversing the decision below, sua sponte, simply because the lower courts upheld a theory of relief not expressly relied upon in the complaint. See generally 5 C. Wright and A. Miller, Federal Practice and Procedure § 1219, p.190 (2d ed.1990) (text of Federal Rules "makes it very plain that the theory of the pleadings mentality has no place under federal practice").

6. It is, of course, no impediment to proceeding on an overbreadth theory that petitioners’ redaction policy supplies the ripe controversy in this case. The thrust of an overbreadth challenge is that a party is entitled "not to be bound by a [provision] that is unconstitutional." Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989). Thus, a preenforcement overbreadth challenge is ripe so long as the party can show that state actors will foreseeably apply a facially invalid law in a way that determines his rights. He need not show, in addition, that state actors are about to apply the law to third parties in the precise manner that renders the law facially invalid. As I have shown, respondents demonstrate a ripe dispute by credibly alleging that petitioners will apply § 6(b) in a manner that determines respondents’ right to receive election-related speech in official voter pamphlets.