Libertarian Party Los Angeles v. Debra Bowen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIBERTARIAN PARTY OF LOS No. 11-55316

ANGELES COUNTY ; THEODORE

BROWN ; and CHRISTOPHER D.C. No.

AGRELLA , 2:10-cv-02488-

Plaintiffs-Appellants, PSG-OP

v.

OPINION

DEBRA BOWEN , in her official

capacity as Secretary of State of

California,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued May 9, 2012

Resubmitted February 25, 2013

Pasadena, California

Filed March 6, 2013

Before: Harry Pregerson, Susan P. Graber,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Graber

2 LIBERTARIAN PARTY V . BOWEN

SUMMARY*

Civil Rights

The panel reversed the district court’s dismissal of a 42

U.S.C. § 1983 complaint challenging California Elections

Code sections 8066 and 8451, which mandate that

“circulators,” who gather signatures from registered voters

for a candidate’s nomination papers, must reside in the

political subdivision where they are gathering signatures.

The panel held that the district court erred by dismissing

plaintiffs’ pre-enforcement challenge for lack of standing.

The panel held in light of plaintiffs’ concrete plan to violate

the law and defendants’ communication of a specific warning

of a threat of enforcement, plaintiffs had met the

constitutional case or controversy requirement. The panel

remanded for further proceedings.

COUNSEL

Robert G. Bernhoft and Daniel J. Treuden, The Bernhoft

Law Firm, S.C., Milwaukee, Wisconsin, for Plaintiffs-

Appellants.

Michael Glenn Witmer, Deputy Attorney General, Los

Angeles, California, for Defendant-Appellee.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LIBERTARIAN PARTY V . BOWEN 3

OPINION

GRABER, Circuit Judge:

To qualify for the ballot in California, political candidates

must file a “nomination paper” that includes a certain number

of signatures from registered voters. Cal. Elec. Code

§§ 8062, 8409. Commonly, candidates appoint persons,

known in California as “circulators,” to circulate the

nomination paper for the purpose of gathering signatures. At

issue here are California Elections Code sections 8066 and

8451, which mandate that “[c]irculators shall be voters in the

district or political subdivision in which the candidate is to be

voted on and shall serve only in that district or political

subdivision.” Plaintiffs Libertarian Party of Los Angeles

County, Theodore Brown, and Christopher Agrella brought

this pre-enforcement action under 42 U.S.C. § 1983 against

Defendant Debra Bowen, California Secretary of State.

Plaintiffs allege that the residency requirement violates the

First and Fourteenth Amendments and, accordingly, seek to

enjoin its enforcement.

Plaintiff Libertarian Party of Los Angeles County would

like to use circulators who reside in counties other than Los

Angeles County to gather signatures for candidates in that

county. Plaintiffs Brown and Agrella live in California and

would like to serve as circulators in political subdivisions

other than their own. Plaintiffs have refrained from doing so

because they fear enforcement, including criminal penalties,

of the California Elections Code. The district court dismissed

the complaint on the ground that Plaintiffs lack standing.

Reviewing de novo, Am.-Arab Anti-Discrimination Comm. v.

Thornburgh, 970 F.2d 501, 506 (9th Cir. 1992), we hold that

Plaintiffs have alleged a sufficient injury-in-fact to meet

4 LIBERTARIAN PARTY V . BOWEN

constitutional standing requirements. Accordingly, we

reverse and remand for proceedings on the merits.1

We have jurisdiction only over claims that present a “case

or controversy.” Allen v. Wright, 468 U.S. 737, 750 (1984).

To meet that requirement, Plaintiffs must establish that they

have suffered an “injury in fact.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992).2 In this pre-enforcement

action, Plaintiffs “must demonstrate a realistic danger of

sustaining a direct injury as a result of the statute’s operation

or enforcement.” Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979). But Plaintiffs “do[] not

have to await the consummation of threatened injury to obtain

preventive relief.” Id. (internal quotation marks omitted). “It

is sufficient for standing purposes that the plaintiff intends to

engage in a course of conduct arguably affected with a

constitutional interest and that there is a credible threat that

the challenged provision will be invoked against the

plaintiff.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th

Cir. 2000) (internal quotation marks omitted).

First Amendment challenges, such as Plaintiffs’ here,

“present unique standing considerations” such that “the

inquiry tilts dramatically toward a finding of standing.” Ariz.

Right to Life Political Action Comm. v. Bayless, 320 F.3d

1002, 1006 (9th Cir. 2003) (internal quotation marks

omitted). That is so because, as the Supreme Court has

recognized, a chilling of the exercise of First Amendment

1

Because the issue is not before us, we express no view on the merits of

Plaintiffs’ constitutional challenge.

2

Plaintiffs also must demonstrate causation and redressability. Lujan,

504 U.S. at 560–61. Those requirements are met here.

LIBERTARIAN PARTY V . BOWEN 5

rights is, itself, a constitutionally sufficient injury. Id.; see

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000

(9th Cir. 2010) (“[W]hen a challenged statute risks chilling

the exercise of First Amendment rights, the Supreme Court

has dispensed with rigid standing requirements and

recognized ‘self-censorship’ as a harm that can be realized

even without an actual prosecution.” (citations and internal

quotation marks omitted)). “[W]here a plaintiff has refrained

from engaging in expressive activity for fear of prosecution

under the challenged statute, such self-censorship is a

constitutionally sufficient injury as long as it is based on an

actual and well-founded fear that the challenged statute will

be enforced.” Human Life, 624 F.3d at 1001 (internal

quotation marks omitted).3

“In evaluating the genuineness of a claimed threat of

prosecution, courts examine three factors: (1) whether the

plaintiffs have articulated a ‘concrete plan’ to violate the law

in question, (2) whether the prosecuting authorities have

communicated a specific warning or threat to initiate

proceedings, and (3) the history of past prosecution or

enforcement under the challenged statute.” McCormack v.

Hiedeman, 694 F.3d 1004, 1021 (9th Cir. 2012) (internal

quotation marks omitted).

Plaintiffs have a “concrete plan.” For example, Plaintiff

Agrella alleges that he was “a candidate for the House of

Representatives[] who circulated petitions in his own behalf

3

The Supreme Court’s recent decision in Clapper v. Amnesty

International USA, No. 11-1025, 2013 W L 673253 (U.S. Feb. 26, 2013),

does not change our analysis. Unlike in Clapper, Plaintiffs’ fear of

enforcement here is actual and well-founded and does not involve a

“highly attenuated chain of possibilities.” Id. at *8.

6 LIBERTARIAN PARTY V . BOWEN

in this last election cycle, but was barred from circulating

petitions for a state senate candidate that overlaps his district

because he does not reside within the state senate district for

which that candidate was running.” He also alleges that he

intends to gather signatures for such candidates in future

elections but will be prohibited by state law from doing so.

Unlike the plaintiffs’ vague plan in Thomas v. Anchorage

Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir.

2000) (en banc), which did not specify “when, to whom,

where, or under what circumstances” they intended to violate

the challenged statute, Plaintiff Agrella’s plan answers those

questions: In the next election, he will support the state

senate candidate in the district that overlaps with his House

district. See ACLU of Nev. v. Heller, 378 F.3d 979, 984–85

(9th Cir. 2004) (holding that the plaintiffs’ plan “to circulate

petitions to place certain referendum measures on statewide

or local ballots” was sufficiently concrete to support Article

III jurisdiction).

We also conclude that Defendant has communicated a

specific warning or threat of enforcement. Defendant has

posted on her website a set of instructions for political

candidates labeled “Summary of Qualifications and

Requirements for Partisan Nomination for the Offices of State

Senator [and] Member of the Assembly.” Under the section

titled “Requirements,” the instructions mandate that

“[c]irculators shall be voters in the district or political

subdivision in which the candidate is to be voted on and shall

serve only in that district or political subdivision.” Those

instructions go beyond “the mere existence of a proscriptive

statute,” which we have held is insufficient to satisfy the

“case or controversy” requirement. Thomas, 220 F.3d at

1139. The Secretary has exercised her discretion to include

LIBERTARIAN PARTY V . BOWEN 7

this specific requirement in her instructions to candidates and

to frame the requirement in absolute terms.

In that regard, a different section of the instructions

strongly suggests that Defendant will enforce the provision.

In the section that lists the qualifications for candidacy, the

Secretary chose to omit a residency requirement for

candidates—mandated by the California Constitution—from

the instructions’ list of candidate qualifications. Instead, she

wrote in a footnote that, although the California Constitution

includes the candidate residency requirement, “it is the legal

opinion of this office that these provisions violate the U.S.

Constitution and are unenforceable.” (Emphasis added.) No

similar disclaimer appears in connection with the challenged

criterion.

Defendant argues that, even though the instructions

include the requirement, Plaintiffs (and all other potential

circulators) should not feel threatened by enforcement

because of a legal memorandum by her office originally

written in 1980 and reiterated in 2010. As Defendant points

out, the memorandum instructs county, city, and district

clerks that nomination papers “should not be marked

insufficient solely because the circulator of the petition or

paper is not a registered voter.” Far from assuaging

Plaintiffs’ fears, however, the memorandum’s concluding

paragraph reinforces those fears:

This is not to say, however, that the

specific requirements of the Elections Code

can be ignored. The Code clearly

contemplates that circulators be registered

voters and otherwise qualified and state the

qualifications in the circulator’s affidavit. A

8 LIBERTARIAN PARTY V . BOWEN

circulator who completes a false affidavit is

subject to criminal prosecution for perjury or,

where applicable, violating Elections Code

§ 29780 [1980], and suspected violators

should be reported by local elections officials

to the proper authorities. Such a procedure

properly punishes the errant circulator rather

than the innocent petition or paper signer.

(Emphasis added.)4

In sum, Defendant has promulgated instructions for

candidates that describe the mandatory qualifications of

circulators, and she has advised them that any person filing a

false affidavit should be reported to authorities for criminal

investigation. In these circumstances, we hold that Defendant

has communicated a specific warning or threat of

enforcement.

The final factor—history of past prosecution or

enforcement—does not support Plaintiffs’ standing, because

Defendant has never enforced the challenged provisions. But

that factor alone is not dispositive. Babbitt, 442 U.S. at 302;

Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010).

Because the challenged provisions have not been

“‘commonly and notoriously’ violated,” the “record of non-

enforcement” is not the end of the inquiry. S.F. Cnty.

4

California Elections Code section 18203 provides that “[a]ny person

who files or submits for filing a nomination paper . . . knowing that it or

any part of it has been made falsely” has committed a crime. Plaintiffs

have “an actual and well-founded fear,” Human Life, 624 F.3d at 1001,

that a circulator who knowingly attests that he or she meets the mandatory

statutory requirements for circulating petitions when he or she does not

will be prosecuted.

LIBERTARIAN PARTY V . BOWEN 9

Democratic Cent. Comm. v. Eu, 826 F.2d 814, 822 & n.15

(9th Cir. 1987) (quoting Poe v. Ullman, 367 U.S. 497, 502

(1961)). In light of Plaintiffs’ concrete plan and Defendant’s

specific threat of enforcement, we conclude that Plaintiffs

have met the constitutional “case or controversy”

requirement.5

REVERSED and REMANDED.

5

For similar reasons, we decline to exercise our discretion to dismiss the

case under prudential doctrines. See Thomas, 220 F.3d at 1138–42

(describing constitutional and prudential ripeness in this context).