Unger v. Superior Court

GRODIN, Acting C. J., Concurring.

I am sympathetic to the views expressed in Justice Sims’ scholarly opinion. The prospect of *621 political parties participating directly in elections for judicial office through endorsement is not appealing, and I agree that article II is amenable to an interpretation that would prohibit such conduct. Indeed, were it not for First Amendment considerations, I would be inclined to join in Justice Sims’ dissent. It is a cardinal principle of construction, however, that a provision must “be construed, if such a construction is fairly possible, to avoid raising doubts of its constitutionality.” (St. Martin Lutheran Church v. South Dakota (1981) 451 U.S. 772, 780 [ 68 L.Ed.2d 612, 619 , 101 S.Ct. 2142 ].) Because I have very serious doubts whether article II, as interpreted by real parties in interest, could withstand scrutiny under the First Amendment, I concur in the majority’s more narrow construction.

Under real parties in interest’s interpretation, article II would flatly prohibit a qualified political party from expressing any views concerning a judicial candidate’s qualifications, competence, or record. The tension between such an absolute prior restraint on pure political speech and traditional First Amendment principles is obvious and palpable.

There can be no doubt that such a prohibition strikes at the heart of the First Amendment. As the United States Supreme Court stated in Buckley v. Valeo (1976) 424 U.S. 1 [ 46 L.Ed.2d 659 , 96 S.Ct. 612 ]: “Although First Amendment protections are not confined to the ‘exposition of ideas,’ ‘there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course including] discussions of candidates . . . . ’ This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” (Id., at pp. 14-15 [ 46 L.Ed.2d at p. 685 ], citations omitted.)

Nor can there be any doubt that the First Amendment protects political association, including association through political parties (Buckley v. Valeo, supra, 424 U.S. at p. 15 [ 46 L.Ed.2d at p. 685 ]; Cousins v. Wigoda (1975) 419 U.S. 477, 487 [ 42 L.Ed.2d 595, 603 , 95 S.Ct. 541 ]; Kusper v. Pontikes (1973) 414 U.S. 51, 56-57 [ 38 L.Ed.2d 260, 266-267 , 94 S.Ct. 303 ]), and that “[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” (Sweezy v. New Hampshire (1957) 354 U.S. 234, 250 [ 1 L.Ed.2d 1311, 1325 , 77 S.Ct. *622 1203 ]; see also Buckley v. Valeo, supra, 424 U.S. at p. 22 [ 46 L.Ed.2d at p. 689 ].)

Because article II, if interpreted as real parties in interest urge, would absolutely prohibit the expression of any opinion by or through a political party concerning candidates for certain public offices, it could be upheld only if the government can demonstrate that the provision furthers a compelling state interest and is narrowly drawn to avoid unnecessary abridgment of First Amendment rights. (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786 [ 55 L.Ed.2d 707, 724 , 98 S.Ct. 1407 ]; Buckley v. Valeo, supra, 424 U.S. at p. 25 [ 46 L.Ed.2d at p. 691 ],) 1 No such demonstration exists on this record.

Real parties in interest contend that article II serves the compelling state interest of maintaining judicial integrity and impartiality. Unquestionably, this is an interest “of the highest importance.” (Bellotti, supra, 435 U.S. at p. 789 [ 55 L.Ed.2d at p. 725 ].) But neither the government’s burden, nor this court’s responsibility, is met merely by invoking such worthy objectives as a “talismanic incantation to support any exercise of . . . power.” (United States v. Robel (1967) 389 U.S. 258, 263 [ 19 L.Ed.2d 508, 514 , 88 S.Ct. 419 ].) Rather, strict scrutiny under the First Amendment requires us to examine closely the precise means employed by the state to effectuate its interests. (Buckley v. Valeo, supra, 424 U.S. at p. 238 [ 46 L.Ed.2d at p. 811 ], conc. opn. of Burger, C. J.)

Two assumptions underlie real parties in interest’s contention that the prohibition contained in article II is necessary to maintain judicial integrity and impartiality. First, real parties in interest argue that without such a prohibition judges will be beholden or appear to be beholden to political parties. In Buckley v. Valeo, supra, the government made a similar argument in attempting to defend a limitation on campaign expenditures on the grounds that it served the “governmental interest in preventing corruption and the appearance of corruption.” (Id., at p. 45 [ 46 L.Ed.2d at p. 702 ].) The court rejected this argument, holding that while the government’s purported interest was sufficient to justify a limit on contributions made directly to a candidate, it was inadequate to justify a limit on expenditures made by an *623 individual or group on behalf of a particular candidate. 2 If the state’s interest in preventing corruption or the appearance of corruption cannot justify a limit on independent campaign expenditures, surely it cannot justify an absolute prohibition on all forms of expression relating to a campaign. 3

The second assumption underlying real parties in interest’s contention that article II is necessary to protect judicial integrity and impartiality is that voters will be so influenced by political party endorsements that they will blindly follow the parties’ recommendations, thereby, in Justice Sims’ words, “reducing the selection of candidates to a litmus test of endorsement by a given qualified political party.” (Post, p. 642.) This assumption, even if true, 4 cannot justify a prohibition on political party endorsements for “the *624 concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment . . . .” (Buckley v. Valeo, supra, 424 U.S. at pp. 48-49 [ 46 L.Ed.2d at p. 704 ].) Nor may the state, consistent with the First Amendment, restrict the advocacy of some in order to prevent the people from acting “unwisely” in response either to the eloquence or stature of the advocate. (See, e.g., Bellotti, supra, 435 U.S. at pp. 791, fn. 31, 792 [55 L.Ed.2d at pp. 727, 728]; Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 96-97 [ 52 L.Ed.2d 155, 164-165 , 97 S.Ct. 1614 ]; Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 770 [ 48 L.Ed.2d 346, 363 , 96 S.Ct. 1817 ].) 5

The fundamental difficulty with real parties in interest’s position is that essentially the same arguments concerning judicial integrity can be made with respect to endorsements by other groups—unofficial political parties or partisan organizations, as well as special interest groups—who would remain free to express their views and to vigorously support or oppose any candidate for judicial office. 6 The possibility that a judge will appear beholden to particular interests, and the possibility that the public will be unduly influenced by a particular endorsement, are both risks inherent in a system which calls upon judges to run for office. It does not appear, at least from this record, that partisan endorsements pose such a substantial and unique threat as to justify the limitations upon freedom of expression posed by the interpretation which real parties in interest advocate. Because I be *625 lieve it is “fairly possible” to construe article II in a manner that avoids these serious flaws, I concur.

LUCAS, J.

I concur, albeit reluctantly, in the majority opinion. My agreement stems from my conclusion that Justice Mosk has correctly interpreted the scope of the existing restrictions imposed by the Legislature and the California Constitution. My reluctance flows from my concern about the effect of our ruling in light of important social and political policy considerations expressed by Justice Sims in his dissent. I think there is a strong state interest in preserving the nonpartisan nature of the offices involved and that this interest will be sorely tried if political parties engage in wholesale endorsement of and opposition to candidates for “judicial, school, county, and city offices . . . .” (Cal. Const., art. II, § 6.)

Because this interest is so important, I cannot join in Justice Grodin’s approach. His conclusion that the First Amendment may well bar restrictions on political endorsements of candidates for nonpartisan office is premature. The Legislature may be able to fashion a permissible limitation on partisan involvement in nonpartisan campaigns after careful scrutiny of the various interests at stake. I do not think that at this stage we should sweepingly discourage such an attempt. The majority opinion, of course, does not take that path.

Of course, “[i]t is irrelevant that the voters rather than a legislative body enacted [article II], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” (Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 295 [ 70 L.Ed.2d 492, 498 , 102 S.Ct. 434 ].)

Although several years after Buckley v. Valeo the court, in FEC v. National Right to Work Committee (1982) 459 U.S. 197 [ 74 L.Ed.2d 364 , 103 S.Ct. 552 ], did uphold certain restrictions on campaign contributions and expenditures by corporations and labor organizations, that holding is not controlling in this case. At issue in National Right to Work Committee was the meaning and constitutionality of one subsection of section 441b of the Federal Election Campaign Act (2 U.S.C. § 441b). Section 441b prohibits corporations and labor unions from making direct campaign contributions or expenditures in federal elections but allows them to establish a separate fund for the purpose of making such contributions and expenditures. As the court noted in National Right to Work Committee'. “The separate segregated fund may be completely controlled by the sponsoring corporation or union, whose officers may decide which political candidates contributions to the fund will be spent to assist. The ‘fund must be separate from the sponsoring union [or corporation] only in the sense that there must be a strict segregation of its monies’ from the corporation’s other assets.” (Id., at p. 200, fn. 4 [ 74 L.Ed.2d at p. 371 ], citation omitted.) In contrast to the relatively uninhibiting limitations imposed by section 441b, article II, as interpreted by real parties in interest, would absolutely prohibit any and all advocacy by political parties concerning judicial candidates. In fact, under real parties in interest’s interpretation, article n would appear to prohibit not only “public” endorsements but recommendations or other communications made by parties directly to their members only. In United States v. C. I. O. (1948) 335 U.S. 106 [ 12 L.Ed. 1849 , 68 S.Ct. 1349 ], the Supreme Court refused to construe section 313 of the Corrupt Practices Act to prohibit corporations and unions from expressing their views on candidates directly to their members, stockholders and customers because, as so interpreted, “the gravest doubt would arise in our minds as to its constitutionality.” (Id., at p. 121 [92 L.Ed. at p. 1861], fn. omitted.)

In Concerned Democrats of Florida v. Reno (S.D.Fla. 1978) 458 F.Supp. 60 , the trial court granted a preliminary injunction against enforcement of a prohibition on political party endorsements of judicial candidates on the grounds that existing restrictions on judicial candidates and the nonpartisan ballot process (similar to those in California) were sufficient and less restrictive means of achieving the state’s interest in “maintaining the integrity and impartiality of the state judiciary.” (Id., at p. 64.) While this holding is not controlling, it does highlight the government’s burden to demonstrate that, notwithstanding the existing restrictions, there remains a threat to judicial integrity and impartiality sufficient to justify an absolute prohibition on advocacy by political parties.

One would expect judicial elections to become a mere “litmus test” for party endorsement only if political parties had an overwhelming influence on the voters’ choice in nonpartisan elections. As in Bellotti, supra, 435 U.S. 765 [ 55 L.Ed.2d 707 ], however, “there has been no showing that the relative voice of [political parties] has been overwhelming or even significant in influencing” nonpartisan elections. (Id., at p. 789 [ 55 L.Ed.2d at p. 726 ].) Indeed, one might expect that in local elections, where most judicial campaigns take place, local “special interest” and civic groups would have a greater influence over the *624 electorate than would political parties. (See, e.g., Lee, The Politics of Nonpartisanship (1960) pp. 77, 79.)

Real parties in interest further attempt to justify the absolute prohibition they read into article II on the grounds that qualified political parties are already heavily regulated by the state and receive certain benefits as a result of this regulation. The United States Supreme Court has rejected this very argument. (Consolidated Edison Co. v. Public Serv. Comm ’n (1980) 447 U.S. 530, 534, fn. 1 [ 65 L.Ed.2d 319, 325 , 100 S.Ct. 2326 ]; see also Abrams v. Reno (S.D.Fla. 1978) 452 F.Supp. 1166, 1170 .)

This distinction raises serious equal protection problems. Where First Amendment interests are abridged, the equal protection clause requires that any legislative discrimination among speakers be narrowly tailored to serve a compelling state interest. (American Party of Texas v. White (1974) 415 U.S. 767, 780 [ 39 L.Ed.2d 744, 759 , 94 S.Ct. 1296 ]; Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 99, 101 [ 33 L.Ed.2d 212, 218, 220 , 92 S.Ct. 2286 ].) While First Amendment and equal protection analyses are, therefore, almost identical in some cases, analysis under the equal protection clause, by “ [highlighting the legislative classification serves to illumine the state’s interest in burdening those of the plaintiff’s class and the necessity of doing so in order to advance that interest.” (Morial v. Judiciary Com’n of State of L.A. (5th Cir. 1977) 565 F.2d 295, 304 .)

Under equal protection analysis, the relevant question in this case becomes: in what way does the threat posed by qualified political parties differ significantly enough from that posed by all other political and “special interest” groups to warrant such different treatment? Real parties in interest nowhere address this crucial question. Without some indication that political parties pose a significantly greater or different threat than do other groups, it would be difficult to find that the government has met its burden under the equal protection clause.