Reply Brief for Respondent — Regents of University v. Smith

Bupreme Coun, 1S

No. 93-82 a I} ' rs

|

| SEP 3 1993 |

In the Supreme Court sali

OMAGE Gb WE CLERK

brewer ee ae ~~

United States

| OCTOBER TERM, 1993

OF THE

ae

REGENTS OF THE UNIVERSITY OF CALIFORNIA. ASSOCIATED

STUDENTS OF THE UNIVERSITY OF CALIFORNIA, et al..

Petitioners,

VS.

AVERELL SMITH, ARLO HALE SMITH, ADLAI SMITH,

BRAD SPARKS, JIMMY HOM, EMILY TAYLOR,

ALEXA SMITH, THOMAS KISTLER,

Respondents.

REPLY IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

MARK HIMELSTEIN JAMES E. HOLST

22 Second Street, Sixth Floor GARY MORRISON

San Francisco, California 94105 CHRISTINE HELWICK

Telephone: (415) 543-5805 FRED TAKEMIYA

OFFICE OF THE GENERAL COUNSEL

UNIVERSITY OF CALIFORNIA

300 Lakeside Drive, 7th Floor

Oakland, California 94612-3565

Telephone: (510) 987-9800

STEVEN L. MAYER*

HOWARD, RICE, NEMEROVSKI,

CANADY, ROBERTSON, FALK &

RABKIN

| A Professional Corporation

Three Embarcadero Center,

7th Floor

San Francisco, California 94111

Telephone: (415) 434-1600

Attorney for Petitioner

ASSOCIATED STUDENTS OF THEI

UNIVERSITY OF CALIFORNIA

Attorneys for Petitioners

THE REGENTS OF THE

UNIVERSITY

OF CALIFORNIA, et al.

* Counsel of Record

BOWNE OF SAN FRANCISCO. INC «+ 343 SANSOME ST + SF . CA 94104 « (415) 362-2300

TABLE OF CONTENTS

ARGUMENT

I. THE DECISION BELOW IS FINAL.

A. The Opinion Below Is Final As To

Funding Student Political Groups.

B. The Holding Below Is Final As To

Funding The ASUC Senate’s Own

Political Activities.

Page

II. THE DECISION BELOW IS ERRONEOUS AND

CONFLICTS WITH CARROLL V. BLINKEN

CONCLUSION

10

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Board of Education,

431 U.S. 209 (1977)

Avery v. Midland County, 390 U.S. 474

(1968)

Carroll v. Blinken, 957 F.2d 991

(2d Cir.), cert. denied, --U.S.--,

121 L. Ed. 224 (1992)

Chicago Teachers Union v. Hudson,

475 U.S. 292 (1986)

Cox Broadcasting Corp. v. Cohn, 420 U.S.

469 (1975)

Department of Banking v. Pink, 317 U.S.

264 (1942)

First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304 (1987)

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46 (1989)

Gay & Lesbian Students Ass’n v. Gohn,

850 F.2d 361 (8th Cir. 1988))

Kentucky v. Stincer, 482 U.S. 730 (1987)

McGoldrick v. Compagnie Generale

Transatlantique, 309 U.S. 430 (1940)

Page

1, 7,8, 3,

r Se

4,5, 6,7

Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974)

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984)

Constitutional Provisions

U.S. CONST. amend. I

Statutes and Regulations

CAL. R. CT. 28(e)(2)

Page

passim

1

Respondents do not deny that the issue this case

presents—whether and under what circumstances a public

university can use mandatory student fees to support

student political expression—is important. Instead, six

Respondents contend the decision below is neither final nor

in conflict with Carroll v. Blinken, 957 F.2d 991 (2d Cir.), cert.

denied, --U.S.--, 121 L. Ed. 224 (1992), while the remaining

Respondents (Thomas Kistler and Emily Taylor) defend the

decision below on the merits. None of Respondents’

arguments justifies denying certiorari.

ARGUMENT

I.

THE DECISION BELOW IS FINAL.

Respondents Averell Smith, ef al. contend that the

decision of the California Supreme Court is not yet final, as

it “contemplates further proceedings both in this action and

beyond.” Opposition to Petition for Writ of Certiorari

(“Smith Br.”) at9.' To the contrary, the California

Supreme Court’s opinion finally decides all three issues

presented. It contemplates no further judicial proceedings

on either the issue of off-campus lobbying, as to which the

Smith Respondents concede finality (Smith Br. 9), or the

issue concerning funding of individual student groups (see

Part I(A), infra). Therefore, certiorari may be granted on

these distinct issues without regard to the finality of the

third issue, which involves funding the political activities of

the ASUC Senate itself. As to that issue, moreover, review

may be granted because the opinion below finally deter-

mines the federal issue, and contemplates only the applica-

tion of that announced (and erroneous) standard to facts

found in further proceedings. See Part I(B), infra.

'The other opposition filed by Respondent Arlo Hale Smith, as

counsel on behalf of Respondents Kistler and Taylor, will be referred to

as “Kistler Br.”

2

A. The Opinion Below Is Final As To Funding Student

Political Groups.

The California Supreme Court’s holding invalidating

the University’s present procedures for funding student

political groups is unquestionably final. As Respondents

themselves admit, the court “ordered the university to

establish a procedure similar to that outlined in Chicago

Teachers Union v. Hudson, 475 U.S. 292 (1986),” if it contin-

ues to use mandatory fees to fund political expression by

student groups. Smith Br. 9-10. Although the court thus

required the University to institute certain internal proce-

dures, it neither ordered nor contemplated further judicial

_ proceedings on this issue. Pet. App. 21a-22a. Indeed, the

decision states unambiguously that “plaintiffs are entitled to

relief on their claims regarding student groups and ASUC

lobbying ....” Pet. App. 30a.’

The relief ordered by the decision below leaves Peti-

tioners only two options, each of which would require

immediate and major changes in the pre-litigation status

quo should certiorari be denied. First, Petitioners can either

not fund “overtly political groups” at all, or fund them

under “a different funding mechanism.” Smith Br. 10.

Alternatively, Petitioners can institute the Hudson-type

procedures imposed by the decision below. Pet. App. 22a.°

*Under the California Supreme Court's opinion the only further

judicial proceedings on the “student groups” issue will be the purely

ministerial act of the lower court granting Respondents the relief ordered

by the California Supreme Court. It has long been established that such

ministerial acts do not bar finality. See, e.g., Abood v. Detroit Bd. of Educ.,

431 U.S. 209, 216 n.8 (1977) (judgment final where only ministerial acts

remain on remand); Department of Banking v. Pink, 317 U.S. 264, 268

(1942) (same). And while the decision below requires the University to

provide an internal administrative remedy, a state court’s order requiring

a state agency to provide such relief is final. See, e.g., Avery v. Midland

County, 390 U.S. 474, 478 n.2 (1968) (Texas Supreme Court order

requiring county government to redistrict held final, as the “opinion

contemplated no further proceedings in the lower Texas courts . . .”).

*Respondents argue that the decision is not final because “nota single

(continued...)

3

These procedures will work a fundamental change in

Petitioners’ use of mandatory fees. The decision below

requires the University first to determine—for each of the

groups whose funding is at issue—whether the educational

benefits provided by their activities were outweighed by or

incidental to their political goals.‘ Making these determina-

tions will require Petitioners to engage in viewpoint discrim-

ination that is both offensive to the First Amendment (see

Pet. 24-26; Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d

361, 367-68 (8th Cir. 1988)), and a wholly unnecessary

administrative burden. Then the University must also

provide Respondents with “an adequate explanation of the

basis” for its decisions, “a reasonably prompt opportunity

to challenge the amount of the fee before an impartial

decisionmaker, and an escrow for the amounts reasonably

in dispute while such challenges are pending.” Pet. App.

22a (citation omitted).

The impact of this case, of course, is not limited to the

past use of funds by the groups Respondents chose to

*(...continued)

student political group has been denied funding ....” Smith Br. 9.

That argument misses the point. The issue here is the process by which

funding decisions are made, not the outcome of those decisions.

Moreover, the student political groups are not parties to this proceeding.

As to the parties before the Court, the University and the ASUC, relief

is final because they will have to change their procedures if certiorari is

denied.

‘The Smith Respondents assert that the California Supreme Court

permitted the use of mandatory fees “unless the group’s educational

function is merely incidental to its political and ideological activities.”

Smith Br. 10. The opinion below, however, is quite ambiguous, also

describing the test as whether “a group’s dedication to achieving its

political or ideological goals, at some point, begins to outweigh any

legitimate claim it may have to be educating students... .” Pet. App.

12a (emphasis added). Whichever test applies, the University will have

to weigh the political and ideological content of speech against its

educational value—an inquiry which turns the First Amendment on its

head by presuming that speech devoted to a political purpose cannot also

be educational. See Brief of Amicus Curiae American Council on Education

3-7.

4

challenge. The decision below would require the University

to implement the same intrusive procedures with respect to

every student group currently requesting or receiving

mandatory fee proceeds. Moreover, the University would

have to carry out this sweeping, campus-wide review

annually as groups’ members, goals, and agendas change

and as new groups request funding.

In addition, failure to review the decision below will

place all of California’s many public universities in limbo

regarding the important First Amendment issues raised by

this case, pending resolution of the separate and distinct

issue of funding for the ASUC Senate’s own political

activities. That too is a reason for prompt review. Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 485-86 (1975);

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247 n.6

(1974) (“[w]hichever way we were to decide on the merits,

it would be intolerable to leave unanswered . . . an impor-

tant question .. . under the First Amendment”). In Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), this Court

recognized that “[a]djudicating the proper scope of First

Amendment protections has often been recognized by this

Court as a ‘federal policy’ that merits application of an

exception to the general finality rule.” Id. at 55; see also

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (reviewing

protective order barring publication of information gained

through discovery in pending litigation). The uncertainty

created by the decision below in an important area of First

Amendment law must be avoided, particularly where it

would leave California universities struggling to apply a

different standard than universities in other states.

Because both the student groups and off-campus

lobbying issues are unquestionably final, this Court can and

should grant certiorari as to the first and third questions

presented (Pet. i) without regard to the finality of the

second question. Those two “distinct issue[s] of federal law

will survive and require decision no matter how further

proceedings resolve the issues concerning” the use of

mandatory fees to fund the ASUC’s own political activities.

5

First English Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 309 n.3 (1987); Cox, 420 U.S. at 480.

In an analogous setting, First English granted review of a

takings claim even though a parallel claim for inverse

condemnation had been remanded for further proceedings.

This Court should grant review however it resolves the

remaining issue. Moreover, as we show in the next section,

that third issue is also final and reviewable.

B. The Holding Below Is Final As To Funding The

ASUC Senate’s Own Political Activities.

The California Supreme Court has ordered further

judicial proceedings on the issue of the ASUC’s own

political activities, which consist primarily of passing

resolutions. Pet. App. 30a. On remand, the trial court

must determine whether mandatory fees have been spent

on such activities. If the court finds that fees have been so

spent, it will then have to determine whether the expendi-

tures are justified by their educational value, applying the

same strict scrutiny standard applied to funding of other

student groups. Id. Regardless of the outcome upon

remand, that standard will inevitably survive, and is final

for purposes of Supreme Court review.

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), is

the seminal decision on finality of state court decisions. In

Cox, the Georgia Supreme Court upheld the constitutional-

ity of a statute giving rise to a civil action for publication of

the identity of a rape victim. It remanded, however, for

further factual determinations in light of its constitutional

holding. Despite those pending proceedings, this Court

found the decision final and reviewable.

Just as in Cox, the ASUC Senate funding issue is one:

“where the federal issue has been finally decided

in the state courts with further proceedings pend-

ing in which the party seeking review here might

prevail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal issue

6

by this Court, and where reversal of the state court

on the federal issue would be preclusive of any

further litigation on the relevant cause of ac-

tion . . . [in] the state proceedings still to come. In

these circumstances, if a refusal immediately to

review the state court decision might seriously

erode federal policy, the Court has entertained and

decided the federal issue, which itself has been

finally determined by the state courts for purposes

of the state litigation.” (Id. at 482-83)

This case meets each of these criteria. First, if on

remand Petitioners establish that no mandatory fee pro-

ceeds were spent on ASUC political activities, they would

prevail on nonfederal grounds.” In that event, this Court

could not review the erroneous California Supreme Court

decision applying the wrong First Amendment standard to

the issue this case presents; the unreviewed decision of the

California Supreme Court would be left standing (id. at 485-

86); and the conflict with the Second Circuit would remain

unresolved.

‘In Cox the party relying on the First Amendment had lost in the state

courts and faced a trial on a state claim in which the First Amendment

could not be raised as a defense. Here Respondents brought a First

Amendment claim and will prevail on this issue if they can carry their

burden on the remanded questions. That distinction is immaterial,

however, because there are First Amendment interests on both sides of

this case. Just as in Cox, Petitioners will not be able to assert their First

Amendment position as a justification for any mandatory fee proceeds

spent by the ASUC on “political” resolutions because the California

courts will be bound under the law-of-the-case doctrine by the California

Supreme Court's erroneous decision. A second, unnecessary trip

through the state courts is not required “on an issue that has been

authoritatively decided by the highest state court.” Pennsylvania v.

. Ritchie, 480 U.S. 39, 48 n.7 (1987). “The goals of finality would be

frustrated, rather than furthered, by these wasteful and time-consuming

procedures.” Id. Moreover, if Petitioners prevail on remand by showing

that the ASUC Senate expenditures are justified by their educational

value, the federal issue would be preserved for this Court’s review only

if Respondents appeal—a circumstance outside Petitioners’ control.

7

Second, “reversal of the state court on the federal issue

would be preclusive of any further litigation on the relevant

cause of action . . . [in] the state proceedings still to come.”

Id. at 482-83. If Petitioners are correct in contending that

the constitutional question was improperly decided below,

“there should be no trial at ail.” Id. at 485.

Third, allowing the decision below to remain standing

will “seriously erode federal policy.” Id. at 483. If the

ASUC and other California student governments know

activities their adversaries view as “political” can cause them

to lose mandatory fee proceeds, they will not engage in

speech that might arguably be challenged as “political.”

Speech encouraged by the First Amendment will be chilled.

Pet. 27 & n.21.

Reaching the merits in circumstances such as this “is

consistent with the pragmatic approach” this Court has

followed, especially where failing to do so would leave

unanswered important First Amendment questions. 420

U.S. at 486; see p. 4, supra. The First Amendment issue

concerning funding of the ASUC Senate should be re-

viewed by this Court to resolve the uncertainty created by

the decision below in an important area of First Amend-

ment law.

I.

THE DECISION BELOW IS ERRONEOUS

AND CONFLICTS WITH CARROLL V. BLINKEN.

The principal holding below is that Petitioners may not

use mandatory fees to fund on-campus political expression

by student groups without (1) attempting to determine

which groups provide educational benefits that are out-

weighed by or incidental to the groups’ political goals and

(2) affording dissenting students the remedies provided in

Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). This

basic holding is erroneous for all the reasons explained in

the Petition for Certiorari. Pet. 9-26. It cannot be defended

on the ground that the funding decisions are not content-

8

neutral, both because that argument is procedurally barred

and because it is wrong. Nor can it be defended as consis-

tent with Carroll.

Respondents Kistler and Taylor do not deny that if the

funding of student groups creates a public forum, funding

must be available to all groups without regard to the

content of their speech. Instead, they say Petitioners have

not created a public forum because the ASUC’s funding

decisions are neither content-neutral nor based on objective

standards. Kistler Br. 15-23. These contentions are proce-

durally barred. Kistler and Taylor did not seek review in the

California Supreme Court of the Court of Appeal’s second

opinion. They cannot support the decision below on the

basis of contentions that were never properly raised in that

court. Kentucky v. Stincer, 482 U.S. 730, 747 n.22 (1987);

McGoldrick v. Compagnie Generale Transatlantique, 309 U.S.

430, 435 (1940).° Moreover, every court that has reached

the issue has determined that ASUC funding is content-

neutral.’

The Smith Respondents argue there is no conflict both

because this case is distinguishable from Carroll on its facts

and because the court below applied the Same standard

adopted in Carroll. Neither argument is correct.

‘The petition for review that was filed on behalf of the Smith

Respondents in the California Supreme Court did not challenge the

Court of Appeal’s decision on the grounds now raised by Kistler and

Taylor. Accordingly, the California Supreme Court was not required to—

and did not—consider these grounds for reversing the Court of Appeal’s

decision even though Kistler and Taylor belatedly raised them in their

briefs on the merits in that court. CAL. R. CT. 28(e)(2).

’Pet. App. 133a; Pet. App. 115a; Pet. App. 86a. The California

Supreme Court did not decide otherwise. Moreover, there is no evidence

of viewpoint-discrimination in the ASUC’s funding decisions. The

“conservative group” (Kistler Br. 17) whose funding was denied was the

“Berkeley College Young Republicans” (RT 651-52), which—as a partisan

organization—could not be funded.

9

Respondents suggest that the university’s role in

approving expenditures in Carroll was more active because

the president approved funding decisions and because those

decisions were governed by regulations requiring the fees

to be spent on “educational activities.” Smith Br. 13. Yet

they do not explain why this is a material fact and, in any

event, it does not distinguish Carroll from this case.

Applicable standards require student organizations to use

funds “for purposes or programs related to the University

or beneficial to the student body... .” Pet. App. 73a.

Similarly, the student government cannot use mandatory

fees “except for University-related” purposes. RT 1064;

Exh. 10 463.00. The University Chancellor testified that one

of his responsibilities was “to assure that lots of viewpoints

are represented” (RT 1045) and that he relied on the vice-

chancellor to monitor grants to make sure that they com-

plied with applicable rules (RT 1086-87).

Carroll indisputably conflicts with the decision below,

notwithstanding that the plaintiffs there challenged funding

for only one specific group. In deciding that NYPIRG could

use mandatory fees for on-campus ideological expression,

the Second Circuit recognized its decision could affect other

groups (957 F.2d at 1001) and adopted a standard for

on-campus use of mandatory fees that does not require any

inquiry into the content of speech. Under Carroll, therefore,

any On-campus student political group—no matter how

ideological—may be funded as long as it will add its voice

to the “thriving campus forum of vigorous advocacy and

political action.” Id.* The decision below, in contrast,

presumes that political speech is not educational by forcing

the University to weigh the political content of speech

*Respondents base their argument on the suggestion that Carroll

described NYPIRG’s activities as educational. Smith Br. 12-13. To the

contrary, Carroll described NYPIRG as “an ideological organization” (957

F.2d at 994), which pursued its political goals on campus by, inter alia,

“petition[ing] against nuclear power.” Id. at 1001. It was that very

partisanship that fulfilled the University’s “traditional mission in a free

society.” Id.

10

against its educational value. Moreover, the decision below

applies strict scrutiny, while Carroll applies a lesser standard

f review that does not incorporate a less restrictive alterna-

tive analysis. Pet. 13-14. Certiorari should be granted to

resolve this fundamental split in First Amendment jurispru-

dence.

CONCLUSION

For the reasons expressed in this brief and the Petition,

we respectfully urge the Court to grant certiorari.

DATED: September 9, 1993. Respectfully,

MARK HIMELSTEIN

Attorney for Petitioner

Associated Students of the

University of California

JAMES E. HOLST

GARY MORRISON

FRED TAKEMIYA

Office of the General Counsel

University of California

STEVEN L. MAYER*

HOWARD, RICE, NEMEROVSKI,

CANADY, ROBERTSON, FALK &

RABKIN

A Professional Corporation

Attorneys for Petitioners The Regents

of the University of California, et al.

*Counsel of Record