Libertarian Party Los Angeles, et al v. Debra Bowen

Filing

FILED OPINION (HARRY PREGERSON, SUSAN P. GRABER and MARSHA S. BERZON) REVERSED AND REMANDED. , Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8538523]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIBERTARIAN PARTY OF LOS
ANGELES COUNTY ; THEODORE
BROWN ; and CHRISTOPHER
AGRELLA ,
Plaintiffs-Appellants,

No. 11-55316
D.C. No.
2:10-cv-02488PSG-OP

v.
OPINION
DEBRA BOWEN , in her official
capacity as Secretary of State of
California,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued May 9, 2012
Resubmitted February 25, 2013
Pasadena, California
Filed March 6, 2013
Before: Harry Pregerson, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber

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LIBERTARIAN PARTY V . BOWEN
SUMMARY*

Civil Rights
The panel reversed the district court’s dismissal of a 42
U.S.C. § 1983 complaint challenging California Elections
Code sections 8066 and 8451, which mandate that
“circulators,” who gather signatures from registered voters
for a candidate’s nomination papers, must reside in the
political subdivision where they are gathering signatures.
The panel held that the district court erred by dismissing
plaintiffs’ pre-enforcement challenge for lack of standing.
The panel held in light of plaintiffs’ concrete plan to violate
the law and defendants’ communication of a specific warning
of a threat of enforcement, plaintiffs had met the
constitutional case or controversy requirement. The panel
remanded for further proceedings.

COUNSEL
Robert G. Bernhoft and Daniel J. Treuden, The Bernhoft
Law Firm, S.C., Milwaukee, Wisconsin, for PlaintiffsAppellants.
Michael Glenn Witmer, Deputy Attorney General, Los
Angeles, California, for Defendant-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
GRABER, Circuit Judge:
To qualify for the ballot in California, political candidates
must file a “nomination paper” that includes a certain number
of signatures from registered voters. Cal. Elec. Code
§§ 8062, 8409. Commonly, candidates appoint persons,
known in California as “circulators,” to circulate the
nomination paper for the purpose of gathering signatures. At
issue here are California Elections Code sections 8066 and
8451, which mandate that “[c]irculators shall be voters in the
district or political subdivision in which the candidate is to be
voted on and shall serve only in that district or political
subdivision.” Plaintiffs Libertarian Party of Los Angeles
County, Theodore Brown, and Christopher Agrella brought
this pre-enforcement action under 42 U.S.C. § 1983 against
Defendant Debra Bowen, California Secretary of State.
Plaintiffs allege that the residency requirement violates the
First and Fourteenth Amendments and, accordingly, seek to
enjoin its enforcement.
Plaintiff Libertarian Party of Los Angeles County would
like to use circulators who reside in counties other than Los
Angeles County to gather signatures for candidates in that
county. Plaintiffs Brown and Agrella live in California and
would like to serve as circulators in political subdivisions
other than their own. Plaintiffs have refrained from doing so
because they fear enforcement, including criminal penalties,
of the California Elections Code. The district court dismissed
the complaint on the ground that Plaintiffs lack standing.
Reviewing de novo, Am.-Arab Anti-Discrimination Comm. v.
Thornburgh, 970 F.2d 501, 506 (9th Cir. 1992), we hold that
Plaintiffs have alleged a sufficient injury-in-fact to meet

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constitutional standing requirements. Accordingly, we
reverse and remand for proceedings on the merits.1
We have jurisdiction only over claims that present a “case
or controversy.” Allen v. Wright, 468 U.S. 737, 750 (1984).
To meet that requirement, Plaintiffs must establish that they
have suffered an “injury in fact.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992).2 In this pre-enforcement
action, Plaintiffs “must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute’s operation
or enforcement.” Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979). But Plaintiffs “do[] not
have to await the consummation of threatened injury to obtain
preventive relief.” Id. (internal quotation marks omitted). “It
is sufficient for standing purposes that the plaintiff intends to
engage in a course of conduct arguably affected with a
constitutional interest and that there is a credible threat that
the challenged provision will be invoked against the
plaintiff.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th
Cir. 2000) (internal quotation marks omitted).
First Amendment challenges, such as Plaintiffs’ here,
“present unique standing considerations” such that “the
inquiry tilts dramatically toward a finding of standing.” Ariz.
Right to Life Political Action Comm. v. Bayless, 320 F.3d
1002, 1006 (9th Cir. 2003) (internal quotation marks
omitted). That is so because, as the Supreme Court has
recognized, a chilling of the exercise of First Amendment

1

Because the issue is not before us, we express no view on the merits of
Plaintiffs’ constitutional challenge.
2

Plaintiffs also must demonstrate causation and redressability. Lujan,
504 U.S. at 560–61. Those requirements are met here.

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rights is, itself, a constitutionally sufficient injury. Id.; see
Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000
(9th Cir. 2010) (“[W]hen a challenged statute risks chilling
the exercise of First Amendment rights, the Supreme Court
has dispensed with rigid standing requirements and
recognized ‘self-censorship’ as a harm that can be realized
even without an actual prosecution.” (citations and internal
quotation marks omitted)). “[W]here a plaintiff has refrained
from engaging in expressive activity for fear of prosecution
under the challenged statute, such self-censorship is a
constitutionally sufficient injury as long as it is based on an
actual and well-founded fear that the challenged statute will
be enforced.” Human Life, 624 F.3d at 1001 (internal
quotation marks omitted).3
“In evaluating the genuineness of a claimed threat of
prosecution, courts examine three factors: (1) whether the
plaintiffs have articulated a ‘concrete plan’ to violate the law
in question, (2) whether the prosecuting authorities have
communicated a specific warning or threat to initiate
proceedings, and (3) the history of past prosecution or
enforcement under the challenged statute.” McCormack v.
Hiedeman, 694 F.3d 1004, 1021 (9th Cir. 2012) (internal
quotation marks omitted).
Plaintiffs have a “concrete plan.” For example, Plaintiff
Agrella alleges that he was “a candidate for the House of
Representatives[] who circulated petitions in his own behalf

3
The Supreme Court’s recent decision in Clapper v. Amnesty
International USA, No. 11-1025, 2013 W L 673253 (U.S. Feb. 26, 2013),
does not change our analysis. Unlike in Clapper, Plaintiffs’ fear of
enforcement here is actual and well-founded and does not involve a
“highly attenuated chain of possibilities.” Id. at *8.

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in this last election cycle, but was barred from circulating
petitions for a state senate candidate that overlaps his district
because he does not reside within the state senate district for
which that candidate was running.” He also alleges that he
intends to gather signatures for such candidates in future
elections but will be prohibited by state law from doing so.
Unlike the plaintiffs’ vague plan in Thomas v. Anchorage
Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir.
2000) (en banc), which did not specify “when, to whom,
where, or under what circumstances” they intended to violate
the challenged statute, Plaintiff Agrella’s plan answers those
questions: In the next election, he will support the state
senate candidate in the district that overlaps with his House
district. See ACLU of Nev. v. Heller, 378 F.3d 979, 984–85
(9th Cir. 2004) (holding that the plaintiffs’ plan “to circulate
petitions to place certain referendum measures on statewide
or local ballots” was sufficiently concrete to support Article
III jurisdiction).
We also conclude that Defendant has communicated a
specific warning or threat of enforcement. Defendant has
posted on her website a set of instructions for political
candidates labeled “Summary of Qualifications and
Requirements for Partisan Nomination for the Offices of State
Senator [and] Member of the Assembly.” Under the section
titled “Requirements,” the instructions mandate that
“[c]irculators shall be voters in the district or political
subdivision in which the candidate is to be voted on and shall
serve only in that district or political subdivision.” Those
instructions go beyond “the mere existence of a proscriptive
statute,” which we have held is insufficient to satisfy the
“case or controversy” requirement. Thomas, 220 F.3d at
1139. The Secretary has exercised her discretion to include

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this specific requirement in her instructions to candidates and
to frame the requirement in absolute terms.
In that regard, a different section of the instructions
strongly suggests that Defendant will enforce the provision.
In the section that lists the qualifications for candidacy, the
Secretary chose to omit a residency requirement for
candidates—mandated by the California Constitution—from
the instructions’ list of candidate qualifications. Instead, she
wrote in a footnote that, although the California Constitution
includes the candidate residency requirement, “it is the legal
opinion of this office that these provisions violate the U.S.
Constitution and are unenforceable.” (Emphasis added.) No
similar disclaimer appears in connection with the challenged
criterion.
Defendant argues that, even though the instructions
include the requirement, Plaintiffs (and all other potential
circulators) should not feel threatened by enforcement
because of a legal memorandum by her office originally
written in 1980 and reiterated in 2010. As Defendant points
out, the memorandum instructs county, city, and district
clerks that nomination papers “should not be marked
insufficient solely because the circulator of the petition or
paper is not a registered voter.” Far from assuaging
Plaintiffs’ fears, however, the memorandum’s concluding
paragraph reinforces those fears:
This is not to say, however, that the
specific requirements of the Elections Code
can be ignored.
The Code clearly
contemplates that circulators be registered
voters and otherwise qualified and state the
qualifications in the circulator’s affidavit. A

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circulator who completes a false affidavit is
subject to criminal prosecution for perjury or,
where applicable, violating Elections Code
§ 29780 [1980], and suspected violators
should be reported by local elections officials
to the proper authorities. Such a procedure
properly punishes the errant circulator rather
than the innocent petition or paper signer.

(Emphasis added.)4
In sum, Defendant has promulgated instructions for
candidates that describe the mandatory qualifications of
circulators, and she has advised them that any person filing a
false affidavit should be reported to authorities for criminal
investigation. In these circumstances, we hold that Defendant
has communicated a specific warning or threat of
enforcement.
The final factor—history of past prosecution or
enforcement—does not support Plaintiffs’ standing, because
Defendant has never enforced the challenged provisions. But
that factor alone is not dispositive. Babbitt, 442 U.S. at 302;
Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010).
Because the challenged provisions have not been
“‘commonly and notoriously’ violated,” the “record of nonenforcement” is not the end of the inquiry. S.F. Cnty.
4

California Elections Code section 18203 provides that “[a]ny person
who files or submits for filing a nomination paper . . . knowing that it or
any part of it has been made falsely” has committed a crime. Plaintiffs
have “an actual and well-founded fear,” Human Life, 624 F.3d at 1001,
that a circulator who knowingly attests that he or she meets the mandatory
statutory requirements for circulating petitions when he or she does not
will be prosecuted.

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Democratic Cent. Comm. v. Eu, 826 F.2d 814, 822 & n.15
(9th Cir. 1987) (quoting Poe v. Ullman, 367 U.S. 497, 502
(1961)). In light of Plaintiffs’ concrete plan and Defendant’s
specific threat of enforcement, we conclude that Plaintiffs
have met the constitutional “case or controversy”
requirement.5
REVERSED and REMANDED.

5

For similar reasons, we decline to exercise our discretion to dismiss the
case under prudential doctrines. See Thomas, 220 F.3d at 1138–42
(describing constitutional and prudential ripeness in this context).