Petition — Marin County Democratic Central Committee v. Unger

[Supreme Court u:

80-384 ! FILED.

AUG16 1989

AEL RODAK, JR., CLERK

H

4

~

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

MARIN COUNTY DEMOCRATIC CENTRAL COMMITTEE,

Petitioner,

SAMUEL UNGER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

HERBERT G. HAWKINS

Counsel for Petitioner

30 North San Pedro Road

San Rafael, California 94903

(415) 479-3663

QUESTIONS PRESENTED

In the action below SAMUEL UNGER

brought suit seeking to prevent MARIN

COUNTY DEMOCRATIC CENTRAL COMMITTEE from

participating in a "non-partisan" school

board election. Despite petitioner's

objection, at every stage of the pro-

ceedings, that such relief would violate

its rights of free speech and associa-

tion guaranteed by the First and Four-

teenth Amendments to the Constitution of

the United States, the California Court

of Appeal held that the Central Com-

mittee in particular, and California po-

litical parties in general, were prohib-

ited by Article II, Section 6 of the

California Constitution from endorsing,

supporting or opposing candidates in any

election for a "nonpartisan" office.

The question is thus presented:

Can a State Constitution providing for

"nonpartisan" offices foreclose the

exercise of petitioner's basic constitu-

tional rights of free speech, assembly

and political association? Or stated

somewhat more generally, in the light

of the First Amendment can partisan politi-

cal activity be prohibited in local

elections defined as nonpartisan?

Note: Parties to Action Below

In the action below, the parties

were Samuel Unger, petitioner, Marin

County Democratic Central Committee,

originally respondent and later called

real party in interest, and Marin County

Superior Court, added as an additional

respondent.

INDEX

Opinions Below .

Jurisdiction ,

Questions Presented

Constitutional Provisions

Involved

Statement

Facts ‘

Reasons for “Allowing

the Writ

Conclusion oe:

Appendix 1, Decision,

California Court of Appeal

Appendix 2, Modification

of Decision ‘ -

Appendix 3, Order of

California Supreme Court

Denying Hearing

CITATIONS

California Constitution

Article II, Section 6

Cases:

(See next page)

(i)

TABLE OF CASES

Abington School Dist. v.

Schem (1953)

ios ~eee, Oa ScCt. 1560

Abrams v. Reno (1978)

UsS.U.U., Pecorida 452 F.

Supp. 1166 ae

Bates v. City of Little Rock,

S61 U.S. 516, 80 S.Ct. 412.

Bond v. Floyd, 385 U.S. 116,

wy OsGes at Sec ake Fe

Buckley v. Valleo, 424 U.S. 1,

96 S.Ct. 612 atts

Cal. Democratic Council v.

Arneberg (1965) 2535 Cal.

pp 5 ae ae es toe ee

Cantwell v. Connecticut,

7107 U.S. 296, 66 S.Ct. 900,

Cohen v. State of California,

405 U.S.15, 91 S.Ct. 1780

Communist Party v. Peek,

su G 264 ‘200 ‘

Cousins v. Wigoda, 419 U.S.

ies & Ss Fen) ee

First National Bank of Boston

v. Belotti, 435) 1.5. 765,

78 S.Ct. 1407

Griswold v. Connecticut,

. cuts. BOTS

(ii)

Page(s)

12

16

10

) Be

15, 16

16

Kusper v. Pontikes, 414 U.S.

a5 i te Pie Sree

Moon v. Halverson 206, Minn.

331, 288 N.W. 579

Marsh v. Alabama, 326 U.S.

“SUL, CO Bue. 276

Monitor Patriot Co. v. Roy,

SUE U.0s "SOis CL OvGUbs Cer

NAACP v. Alabama, 357 U.S.

449, 78 S.Ct. 1163

NAACP v. Button, 371 U.S.

Fis, CS Guts wen

New York Times Co. v.

sullivan, 5/6 U.S. 254,

a. ute Fae ‘

Police Department of Chicago

v. Mosley, 408 U.S. 92,

) ae sk agg + Re

Redline Broadcasting Co. v.

i roe 355 1-5 467

89 $.ct.1794

(iii)

Page(s)

a3 32

15

16

Stanley v. Georgia, 394 U.S.

‘ $57, 4s, ID 43 . . . .

Thomas v. Collins,

ake, GF GUC.

315

5325 U.S.

Virginia State Board of

Pharmacy v. Virginia

Citizens’ Consumer

Council, 425 U.S.

96 S.Ct. 1817

Williams v. Rhodes,

oa, we S.Ct.

5

(iv)

748,

393 U.S.

Page(s)

16

16

16

13

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

MARIN COUNTY DEMOCRATIC CENTRAL COMMITTEE,

Petitioner,

SAMUEL UNGER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

Petitioner prays that a Writ of

Certiorari issue to review the judgment of

the California Court of Appeal, First

Appellate District, in the case of Samuel

Unger v. Marin County Democratic Central

Committee, 1 Civil 47927 (Superior Court

No. 95238). The California Supreme Court

denied a hearing in this case on May 22,

1980.

OPINIONS BELOW

The opinion of the California Court

of Appeal and its modified opinion have

not yet been printed.

JURISDICTION

The original opinion of the Cal-

ifornia Court of Appeal, First Appellate

District, Division II, was filed Febru-

ary 27, 1980 and a copy thereof is

appended to this petition (Appendix 1).

On the motion of petitioner for rehear-

ing the Court of Appeal filed a mod-

ification of opinion on March 28, 1980.

A copy thereof is appended to this

petition (Appendix 2). Petitioner's

tee

petition for hearing in the California

Y

Supreme Court was filed April 7, 1980.

By its order the Supreme Court, on

April 24, 1980, extended its time to

grant or deny a hearing in the case.

The Supreme Court issued its order deny-

ing a hearing on May 22, 1980. A copy

of this order is also appended to this

petition (Appendix 3).

The jurisdiction of this Court is

invoked under 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

In the action below SAMUEL UNGER

brought suit seeking to prevent MARIN

COUNTY DEMOCRATIC CENTRAL COMMITTEE from

participating in a "non-partisan" school

board election. Despite petitioner's

objection, at every stage of the pro-

ceedings, that such relief would violate

its rights of free speech and associa-

tion guaranteed by the First and Four-

teenth Amendments to the Constitution of

a

the United States, the California Court

of Appeal held that the Central Com-

mittee in particular, and California po-

litical parties in general, were prohib-

ited by Article II, Section 6 of the

California Constitution from endorsing,

supporting or opposing candidates in any

election for a "nonpartisan" office.

The question is thus presented:

Can a State Constitution providing for

"nonpartisan" offices foreclose the

exercise of petitioner's basic consti-

tutional rights of free speech, assemb-

ly and political association? Or stated

somewhat more generally, in the light of

the First Amendment can partisan politi-

cal activity be prohibited in local

elections defined as nonpartisan?

CONSTITUTIONAL PROVISIONS INVOLVED

Involved in this case are the First

Amendment and the Fourteenth Amendment

4,

to the Constitution of the United States,

and Article II, Section 6 of the Cali-

fornia Constitution (Deering's Consti-

tution Annotated, Volume I, Supp.,

p. 131). Article II, Section 6 was

formerly Section 5, adopted November 7,

1972; renumbered June 8, 1976.

STATEMENT

SAMUEL UNGER, petitioner below, filed

a petition in Marin County Superior

Court seeking an injunction and writ of

mandamus directed to the MARIN COUNTY

DEMOCRATIC CENTRAL COMMITTEE (county

political committee), seeking to re-

strain it from endorsing, promoting, or

financially supporting candidates for

election to the Marin Community College

District Governing Board. Insofar as

is here relevant UNGER relied on Cali-

fornia Constitution, Article II, Section

6, which in its entirety reads:

"Judicial, school, county,

and city offices shall be non-

partisan."

FACTS

The relevant facts are undisputed.

UNGER was a duly qualified candidate for

election to the governing board of the

Marin Community College District at the

November 6, 1979 election. MARIN DEMO-

CRATIC CENTRAL COMMITTEE invited all

Democratic candidates to a meeting to

seek the endorsement of the county com-

mittee and apply for financial assist-

ance. UNGER did not attend. The com-

mittee did endorse four Democrats,

publicly announced the endorsements, and

planned to make financial contributions

to the candidates endorsed. County conm-

mittees in the San Francisco Bay Area

have been openly endorsing and support-

ing candidates for nonpartisan offices

for many years.

UNGER'S complaint set out most of

the. foregoing facts. A deeirver titee

by the Central Committee, supported by a

brief based in part on the protections of

the First Amendment to the United States

Constitution, was granted without leave

to amend.

UNGER next filed a petition for writ

of mandamus in the Court of Appeal for

the State of California, First Appellate

District, which was denied on

October 10, 1979. UNGER then petitioned

the Supreme Court of California which on

October 31, 1979, granted a petition for

hearing, transferred the case to the

Supreme Court, and retransferred it to

the Court of Appeal with directions to

issue an alternative writ of mandamus to

be heard before that court. Both in the

Supreme Court and the Court of Appeal

petitioner continued to urge its rights

under the First Amendment to the Consti-

tution ot the United States (not to men-

tion its rights under the California

Constitution). This material is found

in the memo at Pages 4 - 6, with cita-

tions from federal cases and a quotation

from The New York Times Company v. Sulli-

van, 376 U.S. 254, 84 S. Ct. 710.

Again, in the petition for rehearing

filed by petitioner Central Committee,

its entire argument (pp. 3 - 7) was that

petitioner’s rights to political associa-

tion and free speech are protected both

by the First and Fourteenth Amendments

to the United States Constitution as

well as by the California Constitution.

Finally, following the modification

of the judgment by the Court of Appeal,

in its petition to the California

Supreme Court for appellate review,

petitioner argued throughout

(pp. 4 - 16) that First Amendment rights

could not be abridged by the California

Constitution, citing many cases of this

Court.

In its original decision the Cali-

fornia Court of Appeal responded to

petitioner's assertion of First Amend-

ment rights very briefly:

"Former Articie II, section

2-1/2, in which the 'Truth In

Endorsements Law' finds its gene-

Sis, expressly empowered the Legis-

lature to regulate the manner in

which political parties could par-

ticipate in the direct primary

election. (Cal. Democratic Council

v. Arneberg (1965) 255 Cal. App.

2d 425.) Buch regulation does not

infringe the right of suffrage or

violate the right of free speech.

(Cal. Democratic Council v. Arne-

bergh, supra, at p. 432.)"

Following the Central Committee's peti-

tion for rehearing, the Court of Appeal

revised its language to read as follows:

"Former Article II, section

2-1/2, in which the 'Truth in

Endorsements Law' finds its gene-

sis, expressly empowered the Legis-

lature to regulate the manner in

which political parties could

participate in the direct primary

election. (Cal. Democratic Coun-

cil v. Arnebergh (1965) 233 Cal.

App. 2d 425. easonable reguia-

tion pursuant to such a consti-

tutional grant in order to pre-

vent evils which formerly had

been prevalent does not infringe

on freedom of speech or associa-

tion guaranteed by the Federal

and State constitutions. (Cal.

Democratic Council v. Arnebergh,

supra, at p. 429: Petition for

hrg. denied; Appeal dismissed

for want of a substantial Fed-

eral question, 382 U.S. 202), nor

does such regulation, even to

the extent that it excludes parties

and individuals participating

in primary elections under certain

conditions, restrict the consti-

tutional right of suffrage.

(Communist Party v. Peek (1942)

20 Cal. 2d 536, 544-545.) (Foot-

note omitted. )

As noted above, following the

modification of opinion by the Court

of Appeal petitioner filed a sixteen page

brief with the Supreme Court requesting

appellate review. The entire brief, ex-

cept for a brief statement of facts, was

an attempt to vindicate petitioner's

rights under the First and Fourteenth

10.

Amendments to the United States Consti-

tition, but a hearing was denied.

REASONS FOR ALLOWING THE WRIT

Petitioner's basic and inalienable

rights under the First Amendment to the

United States Constitution have been

partially destroyed by a California de-

cision that petitioner, as a county

central committee of a political party

(and in fact political parties in gen-

eral) may not endorse, support or oppose

candidates in any election for "non-

partisan offices". Petitioner contends

that its rights under the First Amendment

are protected against state action by the

Fourteenth Amendment to the United States

Constitution and that the California con-

stitutional provision relied upon by the

California Court of Appeal, as inter-

preted, is repugnant to the United

States Constitution within the meaning

ie

of 28 U.6.C. 1257(3).

Petitioner further contends that

the California Court of Appeal has de-

cided a federal question of substance

not heretofore determined by the Supreme

Court of the United States, and has de-

cided the questions in a way which is

not in accord with applicable decisions

of this Court.

FIRST AMENDMENT RIGHTS ARE

BASIC AND ESSENTIAL LIBERTIES AND ARE

PROTECTED BY THE FOURTEENTH AMENDMENT

AGAINST UNCONSTITUTIONAL STATE ACTION.

Abington School Dist. v. Schempp,

374 U.S. 203, 83 S.Ct. 1560, Cantwell

v. Connecticut, 310 U.S. 296,

60 S.Ct... See; NAACP v. Alabama,

357 U.S. 449, 78 S.Ct. 1163; Kusper v.

Pontikes, 414 U.S. 51, 94 S.Ct. 303;

NAACP v. Button, 371 U.S. 415, 83S.

Ct. 328.

THE FIRST AMENDMENT TO THE

lé.

UNITED STATES CONSTITUTION PROTECTS

FREEDOM OF ASSOCIATION FOR THE ADVANCE-

MENT OF POLITICAL BELIEFS.

NAACP v. Alabama, 357 U.S. 449,

78 S.Ct. 1163; Williams v. Rhodes,

2995 U.S. 25, 89 &.Ct. $3 Buckley v.

Valleo, 424 U.S. 1, 96 S.Cto 612; Bates

v. City of Little Rock, 361 U.S. 516,

80 S.Ct. 412; New York Times Co. v. Sul-

livan, 376 U.S. 254, 84 S.Ct. 710; NAACP

v. Button, 371 U.S. 415, 83 S. Ct. 328.

MOREOVER, THESE CONSTITUTIONAL

GUARANTEES HAVE THEIR FULLEST AND MOST

URGENT APPLICATION PRECISELY IN THE CON-

DUCT OF CAMPAIGNS FOR POLITICAL OFFICE.

Monitor Patriot Co. v. Roy, 401 U.S.

265, 91 S. Ct. 62; Buckley v. Valleo, 424

U.S. 1, 96 S.Ct. 612. Ir Buckley this

Court said:

"Discussion of public issues

and debate on the qualifica-

tions of candidates are

integral to the operation of the

Ls.

system of government estab-

lished by our Constitution

In the free society ordain-

ed by our Constitution it is not

the government but the people -

individually as citizens and

candidates and collectively as

associations - who must retain

control over the quantity and

range of debate on public

issues in a political campaign."

It follows that a decision that political

parties may not support or oppose candi-

dates for office is prima facie incon-

sistent with and violative of rights

secured by the First and Fourteenth

Amendments.

THE RIGHT TO ASSOCIATION WITH A

POLITICAL PARTY OF ONE'S CHOICE IS AN IN-

TEGRAL PART OF THE BASIC RIGHT OF POLITI-

CAL ASSOCIATION PROTECTED BY THE

FOURTEENTH AMENDMENT, AND ANY INTERFER-

ENCE WITH THE FREEDOM OF A POLITICAL

PARTY IS SIMULTANEOUSLY AN INTERFERENCE

WITH ITS ADUERENTS.

14,

Cousins v. Wigoda, 419 U.S. 477,

95 S.Ct. 541; Kusper v. Pontikes, 414

U.S. 51, 94 S.Ct. 303; NAACP v. Button,

ara US. 423, 83 S. Et. - 328;

CONVERSELY, ORGANIZATIONS AS

WELL AS INDIVIDUALS ARE ENTITLED TO

EXERCISE FIRST AMENDMENT RIGHTS.

First National Bank of Boston v.

Bellotti, 435 U.S. 765, 98 S.Ct. 1407;

Police Department of Chicago v. Mosley,

408 U.S. 92, 92 S.Ct. 2286.

MOREOEVER, IT IS UNCONSTITU-

TIONAL TO IMPOSE STRICTER FREE SPEECH

STANDARDS ON PUBLIC OFFICIALS THAN ON

THE GENERAL PUBLIC.

Bond v. Floyd, 385 U.S. 116, 87 S.

Ce. Bae.

STIFLING OF POLITICAL SPEECH

AND OPINION IS ALSO A VIOLATION OF THE

RIGHT OF THE GENERAL PUBLIC TO RECEIVE

INFORMATION, WHICH IS PROTECTED BY THE

FIRST AMENDMENT EQUALLY WITH THE RIGHT

43%

TO SPEAK.

Virginia State Board of Pharmacy

v. Virginia Citizens' Consumer Council,

425 U.S. 748, $6 S.Ct. 1818; Redline

Broadcasting Co. v. F.C.C., 395 U.S.

367, 89 S.Ct. 1794; Griswold v. Con-

necticut, 381 U.S. 479, 8S S.Ct. 1678;

Marsh v. Alabama, 326 U.S. 501, 66 S.

Ct... 276.

ONLY THE GRAVEST ABUSES, EN-

DANGERING PARAMOUNT INTERESTS, JUSTIFY

ANY LIMITATION ON THE RIGHT OF FREE

SPEECH AND ASSOCIATION. A SIGNIFICANT

ENCROACHMENT UPON ASSOCIATIONAL FREEDOM

CANNOT BE JUSTIFIED UPON A MERE SHOWING

OF A LEGITIMATE STATE INTEREST.

Thomas v. Collins, 323 U.S. 516;

First National Bank of Boston v. Bel-

Lotti, 435 U.S. 765, 98 S.Ct. 1407;

Cohen v. State of California, 403 U.S.

15, 91 S.Ct. 1780; Buckley v. Valleo,

424 U.S. 1, 96 S.Ct. 612; NAACP v.

16.

Alabama, 357 U.S. 449, 78 S.Ct. 1163

With regard to its prohibition

against partisan speech, the California

Court of Appeal said that reasonable

regulation pursuant to a constitutional

grant "in order to prevent evils which

formerly had been prevalent" does not

infringe on freedom of speech or associa-

tion. But since the entire case was a

matter of pleading only, with no evi-

dence taken, the only indication of

"evils'' was the court's own reference to

the case of Moon v. Halverson, 206 Minn.

331, 288 N.W. 579, where it is mentioned

that the purpose of nonpartisan elections

is to "lift judgeships above sordid po-

litical influence and to free the candi-

date from obligation to a party."

Laudable as such aims may be they

cannot be secured by abridgment of First

Amendment rights. This Court stated in

Buckley v. Valleo, 424 U.S. 1, 96 S.Ct.

Af.

612, "discussion of public issues and de-

bate on the qualifications of candidates

are integral to the operation of the

system of government establisned by our

constitution." And it is submitted that

for the court to assert that the party

system is not an integral part of the

elective machinery in a nonpartisan

election is simply to beg the very ques-

tion at issue. To justify regulations

by the phrase such as "evils of partisan-

ship" is insufficient. The state cannot

foreclose exercise of constitutional

rights by mere labels. NAACP v. Button,

371 U.S. 415, 83 S.Ct. 328.

No decision of this Court can be

found concerning prohibition of free

speech in "nonpartisan" elections. But

see Abrams v. Reno, U.S.D.C., Florida,

452 F. Supp. 1166, involving a Florida

statute prohibiting state and county po-

litical committees from endorsing or

18,

Supporting candidates of their own party

in primary elections. The District

Court pointed out that this Court has

held several times that restrictions on

advocacy of election or defeat of po-

litical candidates are wholly at odds

with the guarantees of the First Amend-

ment, and held that the Florida statute

was unconstitutional. In the case below

the California Court of Appeal acknowl-

edged Abrams v. Reno in a footnote but

‘said it was not bound by the decision of

a lower federal court.

EVEN CONSTITUTIONALLY PERMIS-

SIBLE RESTRICTIONS ON THE EXERCISE OF

FIRST AMENDMENT RIGHTS MUST BE DRAWN WITH

NARROW SPECIFICITY.

NAACP v. Button, 371 U.S. 415,

83 S.Ct. 328; Cantwell v. Connecticut,

310 U.S. 296, 60 S.Ct. 900. There

may be ways, such as prohibiting the use

of party labels on the ballot, to prop-

19,

erly carry out the intention of Article

II, Section 6 of the California Constitu-

tion. But the prohibition set forth in

the Court of Appeal's interpretation of

the constitutional section is a pervasive

encroachment on First Amendment rights.

Finally, the section itself is vague

and ambiguous. The section provides for

nonpartisan "offices" and does not mention

elections. The California Court of Appeal

says that this section is mandatory, pro-

hibitory and self-executing, but there is

no language of prohibition in this section

and, petitioner submits, no language what-

soever on which the State Court can rea-

sonably base its deprivation of fundamen -

Sas.

CONCLUSION

Since the California Supreme Court

has refused to grant a hearing, this

20.

Court is the court of last resort for

all political parties and associations in

the State of California, who need to have

vindicated their rights of free speech

and political association under the

First Amendment to the Constitution of

the United States. Petitioner submits

that Article II, Section 6 of the Cali-

fornia Constitution, as interpreted by

the Court of Appeal of California, First

Appellate District, is an intrusive and

unjustified and unreasonable abridgment

of First Amendment rights, and the in-

terpretation should be held unconstitu-

tional by this Court

Petitioner prays that a Writ of

Certiorari issue.

Respectfully,

MARIN COUNTY DEMOCRATIC

erbert G. Hawkins

Attorney for Petitioner

a

CERTIFIED FOR PUBLICATION ORIGINAL

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

FILED

Feb 27 1980

SAMUEL UNGER, putin ie

aa Appeal -

Petitioner, First App.

V. Dist.

CLIFFORD C.

SUPERIOR COURT OF PORTER, Clerk

THE STATE OF CALI- .

FORNIA, COUNTY OF Y 5

eputy

MARIN,

1 Civil 47927

Sup.Ct.No. 95238

Respondent.

MARIN COUNTY DEMOCRATIC

COMMITTEE; also known as

DEMOCRATIC CENTRAL COM-

MITTEE/MARIN, a county

central committee,

Real Party in Interest.

Nae Ne a Ne a a Ne Ne a Ne ee Se Nee See Ne Ne ee ee Le he Le

In this extraordinary writ proceed-

ing, we consider whether Article II,

(Appendix 1)

ez.

section 6 of the ee Constitu-

tion prohibits a county central commit-

tee of a political party from endorsing,

supporting or opposing a candidate for

a school office.

Article II, section 6 of the Cali-

fornia Constitution provides: "Judicial,

school, county and city offices shall be

nonpartisan."

The salient facts are undisputed.

Petitioner Samuel Unger is a resident and

registered voter of the County of Marin

and was a duly qualified candidate on

the ballot for election as member of the

governing board of the Marin County Com -

munity College District at the Novem-

ber 6, 1979 election. On or about

September 1, 1979, real party in interest

Marin County Democratic Central Com-

mittee, a county central committee cre-

ated pursuant to Elections Code section

Sa.

8820, et seq., invited all registered

Democrats who were candidates for the

governing board of the district to attend

a September 6, 1979 meeting of the county

central committee to seek the endorsement

of the county central committee for the

office and to apply for financial assist-

ance. Petitioner neither attended the

meeting nor sought the endorsement or

assistance of the county central com-

mittee. On September 6, 1979, the county

central committee did in fact endorse

four registered Democrats (out of 6

registered Democrats, 4 registered Re-

publicans and 3 registered Independents)

for the vacancies on the governing

board to be filled at the November 6,

1979 election. The county central

committee subsequently sent letters to

unsuccessful applicants, publicly

announced the endorsement of the four

24.

candidates, and’ planned to make "small"

financial contributions to the candidates

it had endorsed. !

On September 12, 1979, petitioner

filed a verified petition in respondent

court seeking relief by mandate or by in-

junction to enjoin the county central

committee from endorsing or supporting

candidates for the nonpartisan office

of member of the governing board of the

district in the forthcoming November

election and in all future elections for

such nonpartisan office on the ground

that the county central committee's

Section 8500, et seq. of the Elec-

tions Code contains provisions govern-

ing the organization, operation and

functions of that political party known

as the Democratic Party of California.

Similar provisionsexist for the Repub-

lican Party of California (Section 9000,

et seq.), the American Independent Party

of California (section 9600, et seq.)

and the Peace and Freedom Party of Cali-

fornia (Section 9750, et seq.)

£5

activities violated Article II, section

6 of the California Constitution and sec-

tion 37 of the Elections Code.” Peti-

tioner alleged that the conduct of the

county central committee was causing

great and irreparable injury to him in

his capacity as resident, registered

voter and candidate for the governing

board of the district, an injury which

was continuing and for which he had no

plain, adequate or speedy remedy other

than in the proceeding instituted by him.

On September 27, 1979, respondent

court sustained a demurrer to the

action without leave to amend and

ordered that the action be

. Section 37 of the Elections Code pro-

vides: "'Nonpartisan office' means an

office for which no party may nominate a

candidate. Judicial, school, county and

municipal offices are nonpartisan offices

26.

dismissed.” Although the order of dismis-

sal is a final judgment (Code Civ. Proc.

Section 5813) which is appealable (Code

Civ. Proc. Section 904.9), petitioner

sought review by extraordinary writ, con-

tending that appeal was not an adequate

remedy in that he needed relief prior to

the November 6, 1979 election. The issue

of the absence of an adequate remedy in

the ordinary course of law has been de-

termined by the Supreme Court in its

order directing the issuance of an al-

ternative writ of mandate to be heard

before this court. (Brown v. Superior

Court (1971) 5S Cal.3d 509, 515.)

In its return to the alternative

writ, real party does not deny that it

——wT

had engaged in the conduct objected to by

. The demurrer was based on two grounds: ~~

(1) that the complaint did not state a

cause of action, and (2) that the com-

pleint was uncertain.

a7.

petitioner; real party contends that

its conduct was in conformance with

accepted practice it believed to be

proper. Real party has submitted decla-

rations attesting to the fact that the

county central committees have been open-

ly endorsing and supporting candidates

for nonpartisan office for many years.

The declarations show that the practice is

widespread in the San Francisco Bay Area.‘

‘ The declaration of Agar Jaicks, chair-

man of the Democratic Central Committee

for the City and County of San Francisco

avers that the San Francisco central com-

mittee has been endorsing and actively sup-

porting candidates for the nonpartisan of-

fices of mayor, board of supervisor, board

of education, community college board and

judge since 1967. The declaration of Sal

Bianco, chairman of the Santa Clara County

Democratic Central Committee avers that the

Santa Clara County central committee has

been endorsing candidates for nonpartisan

offices since 1972. The declaration of

Mary Warren, chairperson of the Alameda

County Democratic Central Committee avers

that over the past five years the Alameda

County central committee has endorsed at

least 100 candidates for the nonpartisan

offices of supervisor, city council member,

school board member and judge.

28.

Before examining the provisions of

Article II, section 6 of the Constitution

(added to the Constitution as Section 5

in 1972 and renumbered Section 6 in

1976), we note that the Constitution fur-

nishes a rule for its own construction.

That rule, unchanged since its enactment

in 1879, is that constitutional provis-

ions are "mandatory and prohibitory, un- |

less by express words they are declared

to be otherwise." (Art. I, Section 26,

Cal. Const.) The rule applies to all

sections of the Constitution alike and is

binding upon all branches of the state

government, including this court, in its

construction of the provisions of Article

II, section 6. (State Board of Education

v. Levit (1959) 52 Cal.2d 441, 460-461.)

Present section 26 of Article I

appeared as section 22 thereof in the

Constitution of 1879. It was repealed

and re-adopted, as section 28 but other-

wise unchanged, by vote of the people on

November 5, 1970; on June 8, 1976 it was

renumbered as section 26.

29.

Section 26 of Article I '"'not only

commands that its provisions shall be

obeyed, but that disobedience of them is

prohibited. Under the stress of this

rule, it is the duty of this court to

give effect to every clause and word of

the constitution, and to take care that

it shall not be frittered away by subtle

or refined or ingenious speculation.

The people use plain language in their or-

ganic law to express their intent in lang-

uage,which cannot be misunderstood, and

we must hold that they meant what they

ease .* . » « Citation.) (State Board

of Education v. Levit, supra, at p. 460,

emphasis added.)

Applying the foregoing rule of con-

struction, the language of the constitu-

tional provision is plain, explicit and

free from ambiguity. ''There is no nec-

essity or opportunity to resort to jud-

30.

icial construction “to ascertain its mean-

ing. When the facts in any particular

case come within its provisions it is the

duty of the court to apply and éaforce

it." (French v. Jordan (1946) 28 Cal.2d

765, 767.)

It cannot be denied that the office

for which petitioner was a candidate was

a "school" office within the meaning of

the constitutional provision. '"Nonparti-

san'' is defined as "not affiliated with

or committed to the support of a particu-

lar political party: politically inde-

pendent . . . viewing matters or policies

without party bias .. . held or organ-

ized with all party designations or em-

blems absent from the ballot .. . com-

posed, appointed, or elected without

regard to the political party affilia-

tions of members .. ."' (Webster's New

Int. Dictionary, 3d ed., 1965.)

oi.

In light of the foregoing, we hold

that the explicit and unqualified lang-

uage of Article II, section 6 prohibits

a political party and, in particular, a

county central committee of a political

party, from endorsing, Supporting, or

opposing a candidate for the office of

governing member of the board of a com-

munity college district, a nonpartisan

school office within the meaning of the

constitutional provision, in any elec-

tion.°

Real party acknowledges that it is

prohibited by the "Truth in Endorsements

Law" (Elec. Code Section 11700, et seq.)

from endorsing, supporting, or opposing

any candidate for nomination for partisan

. Section 19 of the Elections Code pro-

vides that '"'Election' means any elec-

tion, including a primary which is pro-

vided for under the provisions of this

code.

i

office in the ¢ rect primary election,

but suggests that if the doctrine of ex-

pressio unius est exclusio alterius is

applied, section 11702 constitutes the

sole limitation upon its activities, and

that it may participate in nonpartisan

elections.’

We do not agree. Former Article II,

section 2-1/2, in which the "Truth in En-

dorsements Law'' finds its genesis, ex-

pressly empowered the Legislature to reg-

: Section 11702 of the Elections Code

provides: "The state convention, state

central committe, and the county central

committee in each county are the official

governing bodies of a party qualified to

participate in the direct primary elec-

tion." The state convention, state cen-

tral committee, and the county central

committee in each county shall not en-

dorse, support, or oppose, any candidate

for nomination by that party for partisan

office in the direct primary election."

Any registered voter may apply to the

superior court for a restraining order or

injunctiun in the event of a violation of

this chapter. (Elec. Code, Section

11706.)

Sao

7.

ulate the manner in which political

parties could participate in the direct

primary election. (Cal. Democratic

Council v. Arnebergh (1965) 233 Cal. App.

2d 425.)° Such regulation does not in-

fringe the right of suffrage or violate

the right of free speech. (Cal. Demo-

cratic Council v. Arnebergh, supra, at

p. 432.) The provisions of Article II,

section 6 of the Constitution, on the

other hand, are self-executing; these

provisions will be given effect without

implementing legislation. (Chesney v.

. In 1963, at the time the "Truth in

Endorsements Law was enacted, former

Article II, section 2-1/2 provided that

"(t)he legislature shall have the power

to determine the tests and condi-

tions upon which electors, political

parties, or organizations of electors may

participate in any . . . primary elec-

tion." Former Article II, section 2-1/2

was repealed November 7, 1972, and super-

seded by Article II, section 5 which pro-

vides in relevant part, "the Legislature

shall provide for primary elections for

partisan offices."

34.

Byram (1950) 15 Cal. 2d 460, 4603;

Taylor v. Madigan (1975) 53 Cal.App.3d

943, 950 -952.)° Although the legisla-

ture may enact legislation to implement

a self-executing provision of the Constitu-

tion (Chesney v. Byram, supra, at p.

463, "'(i)t is not and will not be ques-

tioned but that . . . it is not within the

legislative power, either by its silence

or by direct enactment, to modify, cur-

tail or abridge this constitutional

grant.' (Citations.)" (Flood v. Riggs

(1978) 80 Cal.App.3d 138, 154.)

Legislative inaction can in no manner

qualify constitutional provisions capable

of self-execution whose language ade-

A constitutional provision may be said

to be self-executing "if it supplies a

sufficient rule by means of which the

right given may be enjoyed and protected,

or the duty imposed may be enforced."

(Chesney v. Byram, supra, at p. 462;

Taylor v. Madigan, supra, at p. 950, fn.

aad

Pr

quately sets forth the rule through which

the duty imposed may be enforced. (Flood

v. Riggs, supra, at p. 155.) Moreover,

the constitutional grant constitutes a

restraint upon the law-making powers of

the state, and legislative enactments con-

trary to its provisions are void.

(Sail'er Inn., Inc. v. Kirby (1975) 5

Ceecoe tf, 8)

We also disapprove the opinion of

the Attorney General relied upon by real

party (59 Ops. Atty. Gen. 60 issued on

January 2, 1976) to the extent that it is

inconsistent with the constitutional

mandate herein expressed. Although opin-

ions of the attorney general, who is

charged with the duty to enforce the law,

are entitled to great weight, the opin-

ions of the attorney general are not con-

trolling as to the meaning of a constitu-

tional provision or statute. (Smith v.

36.

Municipal Court (1959) 167 Cal.App.2d

534, 539.)

Because this case poses a question

which is of broad public interest, is

likely to recur, and should receive

uniform resokeeion throughout the state,

we have undertaken to resolve the issue

raised by petitioner even though an event

occurring during its pendencey would nor-

mally render the matter moot. (Zeilenga

v. Nelson (1971) 4 Cal.3d 716, 719-720.)

Although we have concluded that petition-

er's complaint stated a proper cause

against the demurrer, it is obvious that

by reason of the election of November 6,

1979 having taken place, this court cannot

grant the relief sought by petitioner

(Kagan v. Kearney (1978) 85 Cal.App.3d

1010, 1014; Gold v. Los Angeles Democrat-

ic League (1875) 49 Cal.App.3d 365, 372),

and we deen it unlikely that real party,

a

having been apprised of this decision,

will repeat the conduct which precipitated

this proceeding.

The alternative writ, having served

its purpose, is discharged, and the per-

emptory writ is denied. All other relief

sought by petitioner is denied.

CERTIFIED FOR PUBLICATION.

Miller, J.

WE CONCUR:

Taylor, P.J.

Rouse, J.

a

CERTIFIED FOR PUBLICATION COPY

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SAMUEL UNGER, ) 1 Civil 47927

)

Petitioner, )Sup.Ct.No. 95238

Vv.

SUPERIOR COURT OF .

THE STATE OF CALI- )

FORNIA, COUNTY OF ) MODIFICATION

MARIN, ) OF OPINION

Respondent. )

)

MARIN COUNTY DEMOCRATIC )

COMMITTEE, also known )

as DEMOCRATIC CENTRAL )

COMMITTEE/MARIN, a )

county central committee)

Real Party in Interest)

BY THE COURT:

The opinion filed on February 27,

1980 is modified as follows:

On page 2, footnote designation l,

(Appendix 2)

a9.

appearing after the word "endorsed",

which is the last word in the body, has

been moved to appear after the word

"assistance", on line 12.

On page 8, lines 6 through 9 are

deleted and in their place is inserted

the following:

Reasonable regulation pursuant to

such a constitutional grant in order to

prevent evils which formerly had been

prevalent does not infringe on freedom

of speech or association guaranteed by

the federal and state Constitutions (Cal.

Democratic Council v. Arnebergh, supra,

at p. 429; petition for hrg. denied;

appeal dismissed for want of a substan-

tial federal question, 382 U.S. 202), nor

does such regulation, even to the extent

that it excludes parties and individuals

from participating in primary elections

under certain conditions, restrict the con-

40.

stitutional right of suffrage. (Commu-

nist Party v. Peek (1942) 20 Cal.2d 536,

544-545.)°

In nonpartisan election, "the party

system is not an integral part of the

elective machinery and the individual's

right of suffrage is in no way impaired

by the fact that he cannot exercise his

right through a party organization".

(Communist Pary v. Peek, supra, at p.

544.) The evils of partisanship in cer-

tain offices are well illustrated in Moon

v. Halverson (1939) 206 Minn. 331, 288 N.

W. 579, 581-582 (concurring opinion of

Loring, J.). No constitutional provision

Real party has acknowledged that it is

bound by section 11702 of the Elections

Code (infra, at p. » fn. 7), which is

not here under attack (see People v.

Crutcher (1968) 262 Cal.App.2d 750, 752-

753, but see Abrams v. Reno (1978) 452

Fed. Supp. 1166, a decision of a lower

federal court by which this court is not

bound (People v. Bradley (1969) 1 Cal.3d

80, 86)).

41.

was at issue in Moon; here by consti-

tutional command, the People have direct-

ed that certain offices shall be non-

partisan. The provisions of Article II,

section 6, unlike the provisions of

former Article II, section 2-1/2 are

self-

On page 8, existing footnote 9 is

renumbered footnote 10.

The petition for rehearing is denied.

Dated: Mar 28 1980

CERTIFIED FOR PUBLICATION

tayeers Cad.

42.

CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

SAN FRANcIsco, CALIFORNIA 94102

4 a)

I have this MAL Order

gid

yan”

tra

Comatttee, . enectfully

G. E. BISHEL

Clerk

65953-6077 11-768 4M OSP

(Appendix 3)

43.