Chula Vista Citizens for Jobs & Fair Competition v. Norris

Opinion by Judge O’SCANNLAIN, in which Judge GRABER joins, except as to Part IV, and in which Judge BEA joins, except as to Part III. Judge GRABER filed an opinion dissenting as to Part IV. Judge BEA filed an opinion concurring as to Part III.

OPINION

We must decide whether associations have a First Amendment right to serve as official proponents of local ballot initiatives and the extent to which the same Amendment protects the anonymity of initiative proponents.

I

A

This case arises from a political battle concerning labor unions. Chula Vista Citizens for Jobs and Fair Competition (“Chu-la Vista Citizens”), an unincorporated association, and Associated Builders and Contractors of San Diego, Inc., an incorporated association of construction-related businesses (“the Associations”), sought to place an initiative on the Chula Vista municipal ballot. As described by the title of the initiative, the proposed measure “mandated] that the City or Redevelopment Agency not fund or contract for public works projects where there [was] a requirement to use only union employees.” The City of Chula Vista requires that initiative proponents be electors (“the elector requirement”), which…

concurring:

I join all of the majority opinion except for Section III, which analyzes the local and state requirements that official ballot initiative proponents be electors, thereby excluding associations. Although I concur in the result of Section III, I see the issue differently. I believe that the majority opinion employs an incorrect test to determine whether acting as an official ballot initiative proponent is a legislative act with expressive content or an expressive act with legislative effect, and thus whether the elector requirement burdens any First Amendment rights. The test should not be whether a particular act has legislative effect or legislative character. The correct test, as stated in Doe and Carrigan, asks whether the individual — here the ballot initiative proponent — is exercising his own power, as does a ballot initiative signatory (Doe), or is exercising a governmental power that has been democratically apportioned to him, as does a legislator voting in a legislature (Carrigan). When I apply this test I conclude that acting as a ballot initiative proponent is an expressive act, despite its legislative effect, and is protected by the First Amendment.…

concurring in part and dissenting in part:

Two groups of Plaintiffs 1 mount challenges to two restrictions that the people of California have placed on their initiative process: (1) the requirement that official proponents be electors, that is, individual voters; and (2) the requirement that each petition section list the name of at least one official proponent. I agree with the majority opinion that the case is properly before us, and I concur in Part III, which holds that the elector requirement passes constitutional muster. I write separately to dissent from Part IV. The majority opinion properly recognizes in Part III that the role of an official proponent of an initiative petition in California is like that of a legislator. But the majority fails to apply this analogy equally to Part IV. Following the analogy of official proponent as legislator to its logical end, the disclosure requirement survives any level of review.

The overarching question begins and ends with the role of the official proponent within the California lawmaking process. Although the California Constitution does not describe the full contours of the official proponent’s role, the California legislature…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHULA VISTA CITIZENS FOR JOBS No. 12-55726

AND FAIR COMPETITION; LORI

KNEEBONE; LARRY BREITFELDER; D.C. No. ASSOCIATED BUILDERS AND 3:09-cv-00897-

CONTRACTORS OF SAN DIEGO, INC., BEN-JMA

Plaintiffs-Appellants,

v. OPINION

DONNA NORRIS; MAYOR CHERYL

COX; PAMELA BENSOUSSAN; STEVE

CASTANEDA; JOHN MCCANN, in his official capacity as Member of the Chula Vista City Council; RUDY RAMIREZ, JR., in his official Capacity as Member of the Chula Vista City Council, Defendants-Appellees,

STATE OF CALIFORNIA,

Intervenor-Defendant–Appellee.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted November 6, 2013—Pasadena, California Filed June 16, 2014

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain, in which Judge Graber joins, except as to Part IV, and in which Judge Bea joins, except as to Part III. Judge Graber filed an opinion dissenting as to Part IV.…