League of Women Voters of Cupertino-Sunnyvale v. City of Cupertino

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LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE, Plaintiff, v. CITY OF CUPERTINO, et al., Defendants.

No. 22-cv-04189-JSW

United States District Court, N.D. California

May 1, 2023

ORDER GRANTING MOTION TO DISMISS Re: Dkt. No 31

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

Now before the Court is motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant City of Cupertino (“Cupertino”). Court has considered the parties' briefs and relevant legal authority, and the Court HEREBY GRANTS the motion to dismiss.

BACKGROUND

Plaintiff the League of Women Voters of Cupertino-Sunnyvale (“Plaintiff”), brings a facial challenge to the Cupertino Ordinance 21-2222, codified as Cupertino Municipal Code chapter 2.100 (the “Ordinance”). Cupertino Municipal Code (“CMC”) § 2.100.010 et seq. Plaintiff, a nonprofit public benefit corporation registered under 26 U.S.C. section 501(c)(4), is a local chapter of the nonpartisan League of Women Voters of the United States. One of its primary goals is to ensure opportunities for effective and inclusive voter participation in government decision-making, often through advocacy for or against particular laws or policies. (Complaint at ¶¶ 29, 31.)

The Ordinance, operative as of July 1, 2021, is a lobbying registration and disclosure law. The Ordinance provides information to city officials and to the public about lobbying activity in connection with changes in the law or the award of city contracts, permits, or positions. The stated purpose of disclosure of lobbyists' identities and activities is to “foster[] public confidence in government officials by making government decision-making more transparent to the public.” CMC § 2.100.010. The stated purpose of the Ordinance is to “impose registration and disclosure requirements on those engaged in lobby efforts to influence decisions of City policy maker for Compensation.” Id.

The Ordinance defines lobbying as influencing or attempting to influence a Legislative Action or Administrative Action. §2.100.030(n). The Ordinance defines “influencing” as any “purposeful communication” that promotes, supports, modifies opposes, causes the delay or abandonment of conduct, or intentionally affects the behavior of a city official through persuasion, information, incentives, statistics, studies, or analyses. Id. A Legislative Action refers to ordinances, resolutions, City contracts, or other official action of the Mayor, City Council, or City boards. § 2.100.030(m). An Administrative Action refers to rules, regulations, contracts, permits, licensing, or hiring by the City. § 2.100.030(b). The Ordinance defines three types of lobbyists: (1) contract lobbyists who are paid to lobby for a client; (2) business or organizational lobbyists that direct their paid employees or officers to lobby in an aggregate amount of ten or more hours within a year; and (3) expenditure lobbyists who pay $5,000 or more in a year to carry out advertising or public relations campaigns to convince others to directly lobby the government. §§ 2.100.030(o)(1), (2), (3).

The Ordinance requires all lobbyists, as defined, to register with the City Clerk, pay annual registration fees, and disclose a list of detailed information to the City. (Complaint at ¶¶ 49-52.) The Ordinance also imposes fines and lobbying debarment for violating the terms of the Ordinance. CMC §§ 2.100.080(c); 2.100.150, 2.100.170.^[1] Plaintiff claims that the Ordinance violates the free speech and petition clauses of the federal and California constitutions.^[2] Plaintiff alleges that the Ordinance is an overbroad, speakerbased, content-based regulation that chills protected First Amendment expression, which subjects the law to strict scrutiny. Plaintiff contends that Cupertino must show that the Ordinance is narrowly tailored to further a compelling government interest justifying its burdensome registration and reporting requirements. Plaintiff argues that the facially overbroad Ordinance has a chilling effect on political speech and that it has had that effect on Plaintiff and its members, deterring them from exercising their protected rights to assemble, to engage in free speech, and to petition the government.

Cupertino moves to dismiss the complaint on the basis that Plaintiff has failed to state a facial overbreadth challenge to the Ordinance.^[3] The Court shall address other relevant facts in the remainder of its order.

ANALYSIS

A. Legal Standard on Motion to Dismiss.

Cupertino moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a district court must dismiss a complaint if it lacks subject matter jurisdiction to hear the claims alleged in the complaint. Fed.R.Civ.P. 12(b)(1). In order for a district court to have subject matter jurisdiction over a plaintiff's claims, a plaintiff must present a live case or controversy, as required by Article III of the U.S. Constitution. See U.S. Const. art. III section 2, cl. 1. In order for there to be a case or controversy within the meaning of Article III, a plaintiff must have standing to pursue their claims.

A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. A court's “inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading standard of Rule 8(a)(2), “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Pursuant to Twombly, a plaintiff cannot merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).

B. Standing.

In order to establish standing to sue, a plaintiff must show injury, a causal connection to the conduct complained of, and redressability through a favorable decision. See Lujan v. Defs. of Wildlife, 594 U.S. 555, 560-61 (1992). The Court finds that Plaintiff has standing to challenge the provisions of the Ordinance pertaining to Business or Organizational Lobbyists and Expenditure Lobbyists. At this procedural posture and taking the allegations as true, Plaintiff has satisfactorily alleged that it has suffered an injury-in-fact, that is “a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement,” to both its organizational interests and its members. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979).

Plaintiff brings a facial challenge to the Ordinance. A facial challenge of overbreadth may be made only if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010). The “overbreadth doctrine operates as a narrow exception permitting the lawsuit to proceed on the basis of ‘a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.'” Get Outdoors II, Ltd. Liab. Co. v. City of San Diego, 506 F.3d 886, 891 (9th Cir. 2007) (citation omitted) see also Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (holding that the “First Amendment needs breathing space” if it is to have any effect and third-parties may bring First Amendment challenges to protect the rights of others who may refrain from constitutionally protected activity due to the overly broad sweep of the statute at issue). Overbreadth should be used “sparingly and only as a last resort” when a limiting condition cannot be placed on the challenged law. Broadrick, 413 U.S. at 613. “[O]verbreadth is ‘strong medicine' that is not to be ‘casually employed.'” Marquez-Reyes v. Garland, 36 F.4th 1195, 1201 (9th Cir. 2022) (citation omitted). “A statute is not overbroad just because ‘one can conceive of some impermissible applications.' ... There must ... be a ‘realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.'” Id. (citations omitted).

C. Level of Scrutiny and Application.

Not all restrictions on speech are subject to the strict scrutiny standard. Strict scrutiny will be applied if there is a significant interference or “appreciable impact” on the exercise of an individual's fundamental right. Fair Political Practices Com. v. Superior Court, 25 Cal.3d 33, 47 (1979). Strict scrutiny is not applied when the challenged regulation “merely has an incidental effect on exercise of protected rights.” Id.

In Fair Political Practices, the California Supreme Court addressed the constitutionality of regulations governing lobbyists codified in the Political Reform Act of 1974. Id. at 37, citing Cal....