Service Employees Intern. Union, AFL-CIO v. FPPC

721 F. Supp. 1172

SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, CLC; et al., Plaintiffs California Democratic Party, an unincorporated association, Plaintiff in Intervention, v. FAIR POLITICAL PRACTICES COMMISSION, et al., Defendants Quentin L. Kopp and Ross Johnson, Defendants in Intervention.

No. CIV. S-89-433 LKK.

United States District Court, E.D. California.

September 14, 1989.

Joseph Remcho, Kathleen J. Purcell, Lowell Finley, Julie M. Randolph, Steven D. Dopkin, Remcho, Johansen & Purcell, San Francisco, Cal., for plaintiffs.

Robert E. Darby, Calvin House, Fulbright, Jaworski, Reavis & McGrath, Los Angeles, Cal., for plaintiff in intervention.

Kathryn E. Donovan, Scott Hallabrin, Fair Political Practices Com'n, Sacramento, Cal., for defendants.

Quentin L. Kopp, Kopp & DiFranco, San Francisco, Cal., for defendants in intervention.

ORDER

KARLTON, Chief Judge.

In this action, plaintiffs brought suit against the California Fair Political Practices Commission ("FPPC")¹ challenging as unconstitutional a statute adopted pursuant to California's initiative process, Proposition 73, codified as Title 9, Chapter 5 of the California Government Code.² Proposition 73 seeks to control campaign financing in various ways. The motion at bar seeks summary judgment only with regard to California Government Code section 85306,³ which concerns the use of campaign funds raised prior to January 1989.⁴

Plaintiffs filed their complaint for declaratory and injunctive relief on March 24, 1989. A motion for preliminary injunction was granted on May 15, 1989. That order enjoined the FPPC from applying section 85306 to pre-1989 funds raised within Proposition 73's overall contribution limits⁵. At a subsequent status conference at which a hearing on the instant motion was set, the parties stipulated that in the event this motion is granted, pre-1989 funds could be disbursed and accepted without regard to fiscal year deadlines.

I SUMMARY JUDGMENT STANDARDS UNDER FED.R.CIV.P. 56

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party

Always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

If the moving party identifies an absence of material fact in the record, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-1356, 89 L.Ed.2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. at 1355 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence could support a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510-11; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987).

In resolving the summary judgment motion, the court examines the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-2514, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir.1979).

Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898, 902 (9th Cir.1987). To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).

II FACTS

Plaintiffs, relying upon the FPPC's records, note that incumbent state legislators and constitutional officers had $12,403,312 in campaign funds on hand as of December 31, 1988. Defendant-intervenors, while supplying no contradictory evidence, assert that:

Defendant-Intervenors believe that the amount of campaign funds affected by section 85306 is a genuine issue of material fact. Reference Declarations of Ross Johnson and Quentin L. Kopp and Supplemental Declaration of Ross Johnson declaring that Section 85306 does not restrict his First Amendment rights of free speech.

Amended Response by Defendant-Intervenors to Plaintiff's Statement of Undisputed Facts, filed July 28, 1989, at 2.

These referenced declarations do not contradict the facts asserted by plaintiffs, nor is there a challenge to the reliability of the relevant records. Rather, in their Amended Response, defendant-intervenors dispute that funds are not available "for campaign purposes" (at best a legal issue, at worst a semantic dispute); the effect of section 85306 on individual plaintiffs (e.g., "the precise affects sic of section 85306 on the financing of the Friends of David Roberti is a genuine issue of material fact"), and like matters which do not appear to this court to constitute material issues of fact. See Section I (material issue of fact is one which affects the disposition of the motion).

Thus the Declaration of Ross Johnson, to which the objection refers, avers:

I have been able to meet with my constituency and conduct the duties of my leadership position without any inhibition whatsoever on my ability to communicate my political views and agenda.

The statutory structure which is alleged to "impermissibly restrict" Plaintiffs' (and the rest of us privileged enough to represent our constituients sic) constitutional freedoms does not do so. In drafting Proposition 73, it was my goal to ensure California's elected officials would not sacrifice their guarantees under the First and Fourteenth Amendments. I believe I met that goal, and on June 7, 1988 the People of California agreed.

Johnson Declaration at 5. This declaration simply does not create any issue of material fact. Assemblyman Johnson's subjective judgment concerning the effect of section 85306 on his ability to communicate with his constituents, and his intentions concerning the effect of Proposition 73, do not raise disputes as to its objective effect on the ability of either himself or others to expend the carryover funds on behalf of their own political campaigns. As I shall explain below, the central relevant fact at bar is that by virtue of the provisions of section 85306, a large sum of money raised prior to the effective date of the statute may not be expended on behalf of a candidate's pursuit of state elective office. This fact is not in genuine dispute.

III POLITICAL CAMPAIGNS AND THE FIRST AMENDMENT

By its plain terms, section 85306 permits the use of campaign funds raised prior to the effective date of the statute for any lawful purpose except that for which it was given; namely, the direct advancement of the donee's political career. See footnote 3. Plaintiffs contend that the statute, in precluding expenditure of carryover funds to support or oppose a candidacy for state elective office, violates the free speech provisions of the First Amendment of the United States Constitution which, of course, were made applicable to the states through the Fourteenth Amendment. See, e.g., Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927).

To sustain their attack, plaintiffs must first demonstrate that the provisions in issue impinge upon rights protected by the First Amendment. This task is easily accomplished. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court taught that the expenditure of funds in connection with a political campaign is a matter of particular First Amendment concern. Critical to the issue at bar was the Court's determination that, in essence, every dollar spent in a campaign has value as protected speech and, accordingly, every restriction on expenditures implicates First Amendment rights. The Court explained:

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communication ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and

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