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State of California
ANGELINA MORFIN VARGAS, MARK DIEROLF
CITY OF SALINAS, DAVE MORA
CALIFORNIA COURT OF APPEAL CASE NO. H027693 Monterey County Superior Court Case No. M61489 (The Honorable Robert O’Farrell)
REPLY BRIEF ON THE MERITS
Steven J. André Attorney at Law #132633 26540 Carmel Rancho Blvd. Carmel, CA 93923 (831)624-5786 Attorney for Plaintiffs -Appellants, Angelina Morfin Vargas and Mark Dierolf
TABLE OF CONTENTS page TABLE OF CONTENTS TABLE OF AUTHORITIES I. II. III. RESPONDENTS MISCONSTRUE THE ROLE OF PUBLIC OFFICIALS IN THE AMERICAN POLITICAL PROCESS THE DANGER OF PARTISAN GOVERNMENT CONDUCT IN THE ELECTION CONTEXT THE CONTEXTUAL CONSIDERATIONS RECOGNIZED BY THIS COURT FOR DETERMINING AN IMPROPER EXPENDITURE DO NOT RENDER THE PROHIBITION ON GOVERNMENT ELECTION CAMPAIGNING “VAGUE” RESPONDENTS' REQUEST FOR AN ITEMIZED LIST OF PROHIBITED CONDUCT SHOULD BE REJECTED THE DETERMINATION OF WHETHER A PUBLIC OFFICIAL'S AUTHORIZATION WAS IMPROPER IS BASED UPON OBJECTIVE CONSIDERATIONS – NOT UPON A SUBJECTIVE LISTENER'S REACTION A. B. C. VI. A NEGLIGENCE STANDARD WAS APPLIED BY STANSON CONTEXTUAL CONSIDERATIONS INCLUDE THE ISSUES DISPUTED IN THE ELECTION CONTEST 16 19 i iii 1 6
CASE LAW IN OTHER JURISDICTIONS ILLUSTRATES WHY A TEXTUAL (EXPRESS ADVOCACY) APPROACH FAILS 19 27 30
RESPONDENTS' EXPENDITURE ON DOOMSAYING CANNOT BE REGARDED AS IMPARTIAL INFORMATIONAL ACTIVITY
VII. APPROACHING THE FACTS FROM A CORRECT PUBLIC FORUM ANALYSIS VIII. RESPONDENTS FAIL THE FIRST PRONG UNDER SECTION 425.16 BECAUSE UNCONTROVERTED AND CONCLUSIVE EVIDENCE ESTABLISHES THAT SECTION 425.16 DOES NOT APPLY TO THE NEWSLETTER, LEAFLET AND WEBSITE AS A MATTER OF LAW
RESPONDENTS FAIL THE FIRST PRONG UNDER SECTION 425.16 BECAUSE THE CONDUCT AT ISSUE IS THE USE OF PUBLIC FUNDS TO PROVIDE PARTISAN SUPPORT, NOT PROTECTED SPEECH A. B. C. D. THE GOVERNMENT CONDUCT AT ISSUE IS NOT SPEECH APPLICATION OF SECTION 425.16 IS DETERMINED BY THE NATURE OF THE RIGHT SUED UPON THE ESSENCE OF APPELLANTS' SUIT CONCERNS A MISUSE OF PUBLIC FUNDS ANY PROTECTION AFFORDED GOVERNMENT SPEECH IS FRAMED IN TERMS OF THE INTERESTS SERVED FOR THE LISTENER 35 36 38
THE CONSTITUTIONAL INTEREST IN HAVING GOVERNMENT REMAIN IMPARTIAL IN ELECTION MATTERS MEANS THERE ARE NO PROTECTED INTERESTS SERVED BY HAVING GOVERNMENT USE PUBLIC FUNDS TO LEND PARTISAN SUPPORT IN AN ELECTION CONTEST 43 45 48 49
X. CONCLUSION WORD COUNT PROOF OF SERVICE
TABLE OF AUTHORITIES Cases
Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108 Buckley v. Valeo (1976) 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 Burt v. Blumenauer (1985) 299 Or. 55, 699 P.2d 168 California Pro-Life Council, Inc. v. Getman (9th Cir. 2003) 328 F.3d 1088 Choice-in Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415. Citizens to Protect Public Funds v. Board of Education (1953) 13 N.J. 172, 98 A.2d 673 City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77. Day v. Greene (1963) 59 Cal.2d 404, 411. Dollar v. Town of Cary (2002) 153 NC App. 309, 569 S.E.2d 731 Federal Election Comm'n v. Furgatch (9th Cir. 1987) 807 F.2d 857. Flatley v. Mauro (2006) 39 Cal.4th 299 Gebert v. Patterson (1986) 186 Cal.App.3d 868, 874. Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 488. Godwin v. East Baton Rouge Parish School Board (1979) 372 So.2d 106 Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449 Gould v. Grubb (1975) 14 Cal.3d 661 Hoellen v. Annunzio (1972) 468 F.2d 522.
43 passim. 21 21 36 27-28 37 36-37 20-21,23 21 33-34 30-32 39,41 4 22 42 27
Hoffman Estates v. Flipside (1982) 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 Keller v. State Bar (1989) 47 Cal.3d 1152 Kromko v. City of Tucson (2002) 47 P.3d 1137 League of Women Voters v. Countywide Crim. Justice Coordination Com. (1988) 203 Cal.App.3d 529. Mines v. Del Valle (1927) 210 Cal. 273. Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713 Moraga-Orinda Fire Protection Dist. v. Weir (2004) 115 Cal.App.4th 477, 480. Nadel v. Regents of University of California (1994) 28 Cal.App.4th 1251. Navellier v. Sletten (2002) 29 Cal.4th 82 New York Times Co. v. Sullivan (1964) 376 U.S.254, 270. Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364. Paul for City Council v. Hanyecz (2001) 85 Cal.App.4th 1356. Putter v. Montpelier Public School System (1997) 166 Vt. 463, 697 A.2d 354 San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn (2004) 125 Cal.App.4th 343 Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174. Schulz v. State of New York (1995) 86 N.Y.2d 225, 654 N.E.2d 1226, 630 N.Y.S.2d 978. Smith v. Dorsey (1991) 599 So.2d 529.
8 13,18,42 21-22 36 39 43 31 42-43 34 45 41 33-34 15,28 37-38,44 21,44 24 25-26
Stanson v. Mott (1976) 17 Cal.3d 217, 130 Cal.Rptr. 697, 551 P.2d 1
Stern v. Kramarsky (1975) 84 Misc.2d 447, 375 N.Y.S.2d 235. Sweetman v. State Elections Enforcement Commission (1999) 249 Conn. 296, 732 A.2d 144 United States v. Associated Press (D.C. 1943) 52 F. Supp. 362 West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624.
Statutes Code of Civil Procedure Section 425.16
Elections Code Section 9212 Elections Code Section 9214 Government Code Section 54964 Salinas City Code Section 2-1, Rule 8.
2 2 8 11
Comment, “Contemplating the Dilemma of Government as Speaker: Judicially Identified Limits on Government Speech in the Context of Carter v. City of Las Cruces” 27 N.M.L.Rev. 517. V.O. Key, Jr., “Public Opinion and American Democracy” (1961 Alfred A. Kropf, Inc.) MacIver, R.M., “The Ramparts We Guard” (1950, The Macmillan Co.) pp.27-30, 49-51. Note, “Kromko v. City of Tucson: Use of Public Funds to Influence the Outcomes of Elections” 46 Ariz. L. Rev. 423, 424
6-7,22 1-2 3 21-23
35 Ops.Cal.Atty.Gen. 112 Shapiro and Tresolini, “American Constitutional Law” (6th Ed. 1983) Shiffrin, “Government Speech” (1980) 27 UCLA L.Rev. 565 Yudoff, “When Governments Speak: Toward A Theory of Government Expression and the First Amendment” (1979) 57 Texas Law Rev. 863 Ziegler, “Government Speech and the Constitution: The Limits of Official Partisanship” 21 B.C.L.Rev. (1980) 578
27-28 45 15 15,41-42 4,15,18,23
I. RESPONDENTS MISCONSTRUE THE ROLE OF PUBLIC OFFICIALS IN THE AMERICAN POLITICAL PROCESS
Respondents spend considerable energy briefing the differing points of view aired at city council meetings.(ROB P.9-21) While this material certainly illustrates the fact that the website, newsletter and leaflet omitted opposing points of view well known to Respondents, it does not explain why Respondents should have been allowed to use public resources to promote one side in the preelection debate. Curiously, Respondents' argument amounts to rehashing the issues before the electorate, seeking to convince the Court that the position of the Measure O proponents was not worthy of a “yes” vote. Respondents complain that the plans proposed by proponents of Measure O ignored adopted fiscal policies. (ROB P. 11) But Respondents fail to consider that voters may have felt it was time for city officials to adopt new policies. Respondents seem to argue that the critical decision is not up to the voters: “As discussed in this brief, the formation and implementation of the City's budgeting policy, including adjusting for the potential effects of a tax repeal on millions of general fund dollars is ultimately a legislative-budgeting decision.” (ROB P.11, fn 5) To the extent this statement assumes that implementation of budgeting policy should precede the electorate's decision, it fails to recognize where in the scheme of governance administrative planning properly belongs. It bears remembering who the sovereign is. “Elections are basic means by which the people of a democracy bend government to their wishes.” (V.O. Key,
Jr., “Public Opinion and American Democracy” (1961 Alfred A. Kropf, Inc.) p.458). What this Court recognized in Stanson v. Mott (1976) 17 Cal.3d 384, as defying constitutional principles is the idea that elections should involve government bending the people to its will. Government's role in this process is circumscribed by these constitutional principles. Plans adopted by city officials are not a basis to direct citizens as to what they should want. What administrators would or would not do if Measure O passed was simply conjecture before the election. Even if the arguments favoring Measure O were meritless, this was for the sovereign voters to determine. This was not something for city officials to prejudge and, based on their view of the merits, to counsel voters. Elections Code Section 9212 and 9214 set the proper limitations upon a city administration's role in evaluating the possible impacts of a proposed ballot measure. Fiscal planning such as preparation of contingency budgets before the voters have acted is not, as Respondents argue, a factual predetermination of the impact of the UUT repeal. (ROB, P.20) It is an opinion. Access to public funds to promote this viewpoint as truth effectively permits city bureaucrats to blackmail voters – à la “if you vote for this cut, we will axe these services.” Respondents' argument is premised upon the notion that city officials are vested with special expertise and insight and that the misguided and uninformed citizenry is inadequately equipped to handle the complex task of properly evaluating the issues before them. The idea is that the sovereign
electorate should be dependent upon the expert guidance provided by the city administration. [ROB P.56-57] The supposition here is that the administrators' expertise entitles them to pre-determine what is best for the voters. This approach fundamentally misunderstands the basic decisional hierarchy in American constitutional democracy. This misconception regarding the nature of our government and the proper role of the sovereign electorate and the “expert” bureaucrat is laid bare by the following exposition: [T]here are those who [ ] deplore the plight of democracy because the people simply cannot undertake the task of coping with all the complex issues of modern government. [ ] Representative democracy[ ] does not put such an impossible strain on the citizen. The people, let us repeat, do not and cannot govern; they control the government. In every live democracy they decide the broad march of politics. They decide whether there is to be more social legislation or less, more collectivization or somewhat more play for private enterprise, more dependence on an international system of security or more self-sufficiency and relative isolation, and so forth. They decide these issues, not one at a time but by voting for an administration favorable to one or another “platform.” They decide them partly – and in the last resort – at the polls, and partly by continuously manifested indications of public sentiment. [ ] [T]he citizens of a democracy are continuously engaged in a massive give-and-take of creative opinion-making. Certainly not as experts who must willy-nilly do the job of the administration, that is, by finding answers to the very specific questions that the administration must face from day to day. [ ] We observe in passing that in a democracy there are two stages of decision-making before the proper job of the expert begins. First, there is the primary function of policy-making, the choice between directions, the function of the people. Second, there is the delineation of policy by the legislators and the heads of the government – in accordance with the “mandate” thus entrusted to them. Third, there is the implementation of policy. At this third stage the expert finds his place. It is here, and here alone, that he belongs. MacIver, R.M., “The Ramparts We Guard” (1950, The Macmillan Co.) pp.27-30, 49-51.
The role of the city administration is not to influence policy, it is to implement it.1 Respondents' analysis, suggesting that these experts should be allowed to use public funds in the election context to promote their viewpoint on policy issues over competing viewpoints stands the fundamental structure of American government on its head. This decision-making process is constitutionally reserved for the sovereign electorate. Respondents' argument that they were entitled to make the determination for Salinas voters that the position of the Measure O proponents was “misleading” or incorrect (ROB P. 57) is, based upon civics fundamentals, wrong.2 Use of public funds to advocate their view is even more unsupportable. When this Court in Stanson, referred to “objective” “fair” and “impartial” information (Id. at fn. 6), it was talking about details which were not the subject of argument in the election debate – material which was objectively verifiable or upon which contending factions were not in disagreement.3 Any material which is subject to serious dispute (such as the impact of gradually
Ziegler, “Government Speech and the Constitution: The Limits of Official Partisanship” 21 B.C.L.Rev. (1980) 578, 578-580. This is not to say that civil servants cannot be involved in political issues on their own time, in their personal capacities and using their own funds. Reference here is strictly to the administrator's conduct in an official capacity. 3 The court in Godwin v. East Baton Rouge Parish School Board (1979) 372 So.2d 1060, said what is already implicit in Stanson: In our view, the authority to disseminate factual information relative to a proposition appearing on an election ballot encompasses all empirical data required by the public to intelligently decide whether to vote for or against the issue. Included in such information would of course be tax rates, if any, interest rates on bonds or other evidence of indebtedness purported to be issued and the term and provisions thereof, and an explanation of the expenditures contemplated. Such information may be disseminated in brochures or otherwise, provided they are purely factual and suggest no position for or against and make it clear that the data is published and disseminated solely and only for informational purposes. Id. at 1064.
reducing the municipality's general fund by 13%) is necessarily political argument. But Respondents proceed under the self-righteous delusion that by conducting a staff evaluation of the positions of the contending factions they can emerge from the fray with an enlightened vision of political truth.(ROB 3) Moreover, Respondents regard themselves as anointed to use public funds to carry this political truth to the electorate and enlighten the voters who labor under the shadow of political incorrectness. This perspective does not comport with fundamental tenets of American democracy. City officials are not the selfordained oracle of truth responsible for shepherding the witless voters to the light of political truth. Their role is to stay out of the fray. This perspective that city bureaucrats are responsible for determining political correctness and educating voters accordingly is particularly dangerous. The danger of indoctrination is probably less where the city had come right out and used express advocacy - “Vote No on O.” Then the electorate could have identified the material for what it was – campaign propaganda. In this event, the electorate would perhaps have recognized the bias involved – government officials trying to preserve their all-important budget in the age old battle between taxpayers and public administrators. It is a far more sinister animal when the official materials in question appear in the guise of neutral educational information.
II. THE DANGER OF PARTISAN GOVERNMENT CONDUCT IN THE ELECTION CONTEXT
Aside from having persuasive power commensurate with the depths of the public coffers, government speech has an inherent persuasive power not associated with other speakers. This power allows public officials to effectively indoctrinate the electorate's perspective and subtly alter how a voter may regard an issue. This quality poses a very real threat to the functioning of our democratic system of government. The following excerpt details the problem with Respondents' proposal to let public officials prejudge issues for the electorate: [G]overnment as speaker tends to confuse and prejudice the issues, affecting its hearers differently than other forms of campaign speech. As a result voters may tend to defer to the government's judgment – although the assumption that government has an especially influential effect on the people depends on the public's reverence and respect for government. . . . [T]he government may not only affirmatively tell the electorate how to view an issue, but in addition, may use the prestige of government and its “authoritative voice” to obtain the voters' approval. ... The value of free expression in our system rests on political outcomes that are responsive to the public will. Government speech, even if its effect is only minimally coercive on public opinion, may be inconsistent with this goal. At the very least, government support for one view distorts the process by forcing the dissenters to subsidize a view with which they disagree and may dilute the dissenters' votes. When government enters the political fray in cases . . . it interferes with the exercise of the electoral franchise, a right which is “at the heart of the democratic process.” [citing Burson v. Freedman (1992) 504 U.S. 191] An election is the forum within a democracy where citizens exercise their choice regarding how they shall be governed. Government speech is especially inappropriate in an election context where courts have stated that governments may educate, but they may not advocate. The distinction that courts make between education and
advocacy recognizes the importance of the free formation of informed opinion which is essential to democracy. The judiciary has recognized that in an election context, allowing a subdivision to engage in partisan advocacy would make “the creature greater than the creator” in a government that is designed so that the source of power originates in the people. Comment, “Contemplating the Dilemma of Government as Speaker: Judicially Identified Limits on Government Speech in the Context of Carter v. City of Las Cruces” 27 N.M.L.Rev. 517, 540-541. This Court should reject what is tacit in Respondents' argument: that the creature is greater than the creator.
III. THE CONTEXTUAL CONSIDERATIONS RECOGNIZED BY THIS COURT FOR DETERMINING AN IMPROPER EXPENDITURE DO NOT RENDER THE PROHIBITION ON GOVERNMENT ELECTION CAMPAIGNING “VAGUE”
All but abandoning the earlier argument that legislative and regulatory provisions and the United States Supreme Court's decision in Buckley v. Valeo (1976) 424 U.S. 1, have altered the constitutional prohibition against partisan government involvement in the election process to only proscribe conduct involving “express advocacy,” Respondents now turn to a new source to bolster the argument that this Court should adopt an express advocacy approach. Respondents now argue that the constitutional requirement recognized by this Court in Stanson, that government may not interfere with the election process by lending support to one side, involves an unconstitutionally vague standard.(ROB 45-47) Initially, it should be observed that application of the vagueness doctrine is anomalous here. Without venturing the question of
whether constitutional protection even extends to the conduct supposedly encumbered (government speech) or whether the doctrine can even be applied to a constitutional principle rather than a statute, the application of the vagueness doctrine to the civil liability at issue here, as opposed to a penal provision (such as Government Code Section 54964), is questionable. Considering the argument as an attack on the viability of the contextual considerations regarded by this Court in Stanson as informing the inquiry into whether material has crossed the demarcation between proper informational material and improper partisan activity is more instructive. Respondents attack the “style, timing, tenor” analysis of alleged partisan government support as vague – i.e., as encompassing and “chilling” lawful conduct, such as proper “informational” activity. (ROB 45-47; 51-52) The analysis of a challenge to a law based upon alleged vagueness or overbreadth is stated by the United States Supreme Court, as follows: In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should examine the complainant's conduct before analyzing other hypothetical applications of the law. Hoffman Estates v. Flipside (1982) 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362.
Tracking this analysis (something Respondents fail to do), the challenge fails. First, the prohibition on government campaigning does not impact constitutionally protected conduct. While, according to Respondents'
argument, proper informational speech might be impinged, this speech is not constitutionally protected, as will be detailed. (infra. At 36-45) Second, the prohibition is not vague in all of its applications as Stanson makes abundantly clear. Respondents, who have used public funds to disseminate one-sided materials to persuade voters against voting for a ballot measure, cannot complain that the prohibition is vague as applied to others. Respondents rely upon Buckley, arguing that under the Supreme Court's decision “vagueness is avoided by the requirement the published statements may not contain express words of advocacy.” (ROB P.53) Certainly this was true with respect to the regulation of campaign speech addressed in Buckley. But the express advocacy requirement was imposed as a constitutional requirement upon the campaign reform regulations to prevent government from intruding upon protected speech. It was not intended to allow government to intrude into election contests. The court in Sweetman v. State Elections Enforcement Commission (1999) 249 Conn. 296, 732 A.2d 144, addressed the same argument4 that the “style, timing, tenor” contextual approach was unconstitutionally vague. Sweetman
The Supreme Court of Connecticut was dealing with a state elections commission decision that a school superintendent had violated a statute providing “no expenditure of state or municipal funds shall be made to influence any person to vote for approval or disapproval” of a ballot measure by improperly distributing a leaflet expressing a partisan position on a referendum.
involved facts very similar to those here - a leaflet discussing an upcoming referendum on the school board's budget. The form of the leaflet was based upon previous informational flyers. It was sent to every household in the district days before the referendum. The material contained no words of express advocacy. Such exhortations were removed from an earlier draft. Id. At 301. The court analyzed the leaflet, concluding that “both the structure and the rhetoric of the pamphlet conveyed the message that – to borrow the words of the board – the budget is necessary to 'make a difference for our children[.]'” Id. The statements referenced by the court were not as sensational as the materials at issue in this case and consisted primarily of one-sided platitudes concerning the importance of educating children.5 The court rejected the appellants' assertion that the contents were merely “'data and information.'” Id. at fn.25. It looked to contextual factors in doing so. The court found, “this text – like the text of the introductory message – contains advocacy.” Id.
The court distilled the introductory statement down and examined its basic thrust: Stripping aside the flesh of diction, the skeletal structure of this introductory message is as follows: the budget is the result of a great deal of work; the budget reflects what the community wants; the board made every effort to limit spending; the proposed expenditures are necessary; and an affirmative vote is necessary to enable students to succeed in school and in life. The board thus informed voters that they should vote for the budget, and attempted to persuade them to do so. It is apparent that the rhetoric employed by the board -- “our products are the future generations of citizenry'”; “we must provide a solid educational program and safe environment”; “learning takes place best in the proper environment”; “all children have the right to reach their full potential”; “it is our obligation . . . to provide [children] with the means to a solid education”; “we need voter participation to validate our educational priorities and directions”; “[our} mission . . . is to empower all students to meet the challenges and responsibilities of a changing global community” -- was calibrated to convince parents and members of the community of the negative consequences that would follow if the budget were voted down. Id. at 329-330.
The vagueness challenge stemmed from a commission statement that in evaluating a given text “it reviews the entire communication and carefully considers the style, tenor and timing of the communication to determine whether it advocates a position on a pending referendum.” Id. at 315. The Connecticut high court addressed the argument that the statute was unconstitutionally vague on its face and as applied: We are not persuaded by either argument. In our view, the instruction contained in the statutory mandate – do not use public funds to “advocate either the approval or disapproval of [a] proposal or question”[citation] - - is sufficiently clear to pass constitutional muster. Even if an individual of ordinary intelligence were unable to comprehend the meaning of this language . . . one could always seek the approving opinion of counsel before distributing materials that a court might interpret as “advocacy.” Accordingly, there is little reason to fear that anyone might violate Sec. 9-369b unwittingly. Id. at 319-320. Similarly, with respect to the constitutional requirement facing officials of the City of Salinas, if they were not familiar with the requirement from the language of Stanson, from memorandums provided by such emissaries as the League of Cities, or the language of the pertinent city ordinance,6 they could have consulted with the office of the city attorney. The Connecticut supreme court went on to discuss the requirement that the law challenged as vague on
Salinas City Code Section 2-1. provides: Rule 8. Political activities. No member of the city council shall use city funds, services, supplies or equipment for the purpose of urging the passage or defeat of any federal, state, county or local measure including, but not limited to, the candidacy of any person for election to a federal, state, county or local office. Nothing herein shall preclude the use of city funds, services, supplies or equipment for the purpose of urging the passage or defeat of any federal, state, county or local measure when authorized by a majority vote of the city council.
its face be impermissibly vague in all its applications (Id. At 320-321), observing, “Section 9-369b has an unmistakeable core meaning: no one may use public funds to influence any person to vote for or against a local proposal or question.” Id. At 321. Recognizing that the appellants had failed to articulate any recognized first amendment protection of public officials to use public funds to advocate their views on public issues in a local referenda, the court rejected the argument that constitutionally protected rights were at stake and observed that statutes involving civil penalties involved a lesser degree of scrutiny than penal statutes. Id. at 323. The court distinguished Buckley which involved an individual's right to contribute personal funds to support candidates, from the situation there which involved “a group of public officials who sought to expend taxpayers' money to support the budget that they had proposed.” Id. At fn.20. The court held with respect to the vagueness challenge to the statute's contextual approach: As we have stated, the [appellants] bear the heavy burden of “demonstrating beyond a reasonable doubt that [they] had inadequate notice of what was prohibited or that [they were] the victims of arbitrary and discriminatory enforcement.” [cite] . .. With respect to the notice prong of this test, the plain language of sec. 9-369b clearly informed [appellants] of what was prohibited. There is nothing novel or arcane about the concept that no one may use public funds to (1) “advocate either the approval or disapproval” of a referendum or (2) “influence any person to vote for approval or disapproval” of a referendum. We do not hold the drafters of our statutes to the unattainable standard of “mathematical” perfection. Grayned v. Rockford 408 U.S. [104,] 110 [,92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)]. It is sufficient that the language contained in sec. 9-369b “affords a person of ordinary intelligence a
reasonable opportunity “to know what conduct is prohibited. [cite]. A reasonable person reading the text of sec 9-369b would expect the commission to consider the wording of the entire communication in context, from the perspective of an ordinary reader. Id. at 324-325. The Connecticut supreme court also addressed the argument raised by Respondents here that the “style, tenor, timing” contextual approach left the determination concerning partisan conduct to the purely subjective, post-hoc interpretation of the listener. (ROB 47, 50) “Although the [appellants] claim that this construction of sec. 9-369b is hopelessly arbitrary, in fact it contains classic objective language: officials may not use public funds to distribute communications that 'an ordinary reasonable person' would construe as urging a particular result.” Id. at 325-326. This approach is no different than the standard adopted in Stanson7 and reaffirmed in Keller v. State Bar (1989) 47 Cal.3d 1152.8 The Connecticut supreme court evaluated the supposed deficiencies of the “style, tenor, timing” approach: We decline to adopt the [appellants'] focus on the 'style, tenor and timing' language. If the commission had relied upon nothing but this language, the plaintiffs conceivably might be correct that it would have 'opened the
7 This Court did not limit the evaluation to only “style, tenor, timing.” Nor did it regard this as a subjective evaluation. It recognized “the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.” Stanson at 222. 8
The Court in Keller objectively considered the materials and their context to evaluate whether or not their nature was partisan. Id. at 1172. This approach does not, as Respondents contend, turn upon the subjective impression of a single listener who for the first time happens to express disagreement with the contents of the materials. (ROB 46-47) Respondents' effort to reframe the contextual analysis as involving a public official unaware of disagreement with his opinion until after he has voiced it hardly fits the facts here. Respondents were fully apprised of the differing point of view advanced by the Measure O proponents at the time they issued the newsletter, leaflet and website materials. (CT 438, 439, 445-448; 450-457; 854, par.10; 944; 1264-1267; 1458-1463) They knowingly ignored the position of the Measure O proponents and used these public resources to advance an opposing perspective. (CT 23, par.30; 1267-1269; 1393-1401).
door to subjective interpretation of a communication.' Considered in context, however, it is apparent that the commission would have acted irresponsibly if it had refrained from considering the 'style, tenor and timing' of a communication before determining that it 'would make the ordinary reasonable person believe that a particular result is urged . . .' The [appellants] fail to consider this objective language. Id. at 326. The reasoning of the Connecticut supreme court concerning a vagueness challenge to a statute stating the same prohibition recognized as mandated by constitutional imperatives in Stanson points to no different outcome here. Respondents' vagueness challenge should be rejected. Respondents knew what was prohibited and did it anyway.
IV. RESPONDENTS' REQUEST FOR AN ITEMIZED LIST OF PROHIBITED CONDUCT SHOULD BE REJECTED
Adopting Respondents' request to formulate “hard and fast” guidelines for what public officials can and cannot get away with in the election context is problematic. It guarantees whatever methods the guidelines do not list are fair game. The danger here is that all possible methods of supporting one faction in an election contest cannot be simply itemized by judicial decree or legislative enactment. This is why this Court recognized that it is necessary to look at the totality of the circumstances. Stanson at 221. To do what Respondents suggest would effectively provide a roadmap for public officials to use public funds to influence elections without incurring any liability so long as the method they employ is not specified.
Courts and commentators have acknowledged the difficulty in drawing the line between government providing “neutral information” and promoting “partisan” views on election issues. Stanson at 221; Yudoff, “When Governments Speak: Toward A Theory of Government Expression and the First Amendment” (1979) 57 Texas Law Rev. 863 899 (describing the line as “exceedingly difficult to draw”; Shiffrin, “Government Speech” (1980) 27 UCLA L.Rev. 565, 655 (subject contains far too many complexities); Ziegler, supra, fn.37, 615 (discussing the “apparent dilemma of distinguishing proper from improper government conduct”); Putter v. Montpelier Public School System9 (1997) 166 Vt. 463, 697 A.2d 354, (observing “the nebulous line separating information from propaganda” Id. at 359.). This is not to say that the requirement that public officials remain impartial in performing any informational function in an election contest is “vague,” only that it is not feasible to anticipate and proscribe all the possible ways such impartial support may occur. The requirement is clear and comprehensible enough. The ways in which it may be violated are simply not susceptible of itemization.
The supreme court of Vermont in Putter considered a school district's newsletter containing articles concerning an upcoming election on the school budget which warned that without the proposed budget increase “reduction in programs, services and educational opportunities would occur” including a “question and answer” section “explaining that approval was necessary to avoid further cuts in services and programs and to maintain the current student-to-teacher ratio” and urging readers to “Vote Yes.” Id. at 464-465. The court rejected the plaintiffs' attempt to have the election declared invalid, affirming their right to proceed with their action to recoup wrongfully spent public funds.
Respondents' vagueness challenge is really a transparent subterfuge for a feeble claim that the public officials in question were simply innocent dupes confused by the requirement that they not use public funds to support one side in the election contest over Measure O. Essentially they would have this Court believe that they could not tell that the materials they produced were partisan that the point of view expressed tended to favor the opponents of Measure O. This is really an argument they will need to make to a trier of fact.
V. THE DETERMINATION OF WHETHER A PUBLIC OFFICIAL'S AUTHORIZATION WAS IMPROPER IS BASED UPON OBJECTIVE CONSIDERATIONS – NOT UPON A SUBJECTIVE LISTENER'S REACTION
A. A NEGLIGENCE STANDARD WAS APPLIED BY STANSON Contrary to Respondents' statement this Court's understanding of the term “partisan” does not mean any statements with which a listener might disagree. (ROB P. 1, 42, 47) Respondents' claim that they are faced with strict liability10 is not borne out. Plainly under Stanson whether conduct is partisan support of one side in an election contest is to be determined by considering objective contextual factors. In considering the question of what standard of liability is to be applied to the misuse of public funds, the Court rejected the strict liability standard Respondents claim is the rule. It held:
Respondents complain they would be strictly liable under a contextual “style, tenor, timing” approach: “Appellants offer an approach which effectively prevents government officials and staff from speaking, because they may be sued if any member of the public disagrees with the government's statements.” (ROB P.59)
In light of the considerable authority enjoyed by officials who control public funds, and the important public interest in protecting such moneys from improper use, however, we believe that such officials may properly be held to a higher standard than simply the avoidance of “fraud, corruption or actual malice” in their handling of public funds. We conclude that such public officials must use “due care,” i.e., reasonable diligence, in authorizing the expenditure of public funds, and may be subject to personal liability for improper expenditures made in the absence of such due care. Id. at 226-227. The standard is a classic negligence “reasonable man” type standard: Should the public official, under the circumstances, exercising due care, have known that the use of public resources would tend to unfairly support one side in an election contest? This Court in Stanson contemplated a two stage analysis. First the trier of fact finds an improper expenditure of public resources. This may involve considering contextual factors such as “style, tenor and timing.” If an improper expenditure has occurred, the trier of fact next considers whether the public official exercised due care in authorizing it. This again involves consideration of contextual factors, obviously including the same factors pertaining to the inquiry regarding whether the expenditure was improper. This objective test involves the context at the time the public official acted – including the public official's knowledge of what disputed points are at issue in
the election debate.11 It is not an inquiry involving factors which did not exist at the time the conduct of the public official occurred.12 This review of the context of the expenditure was what the Court did in Keller. After finding that the State Bar Board of Governors had engaged in an unlawful expenditure, the Court turned to the issue of liability. Looking at the objective contextual factors, the Court observed “the past uncertainty concerning the scope of the bar's authority.” Id. at 1173. In fact, this Court held, “Under these circumstances we conclude as a matter of law that the Board of Governors could reasonably believe that it had the authority to take action in opposition to what it perceived to be an attack on an independent judiciary. Under Stanson v. Mott, supra, 17 Cal.3d 206, 226-227, such a reasonable belief precludes personal liability.” Id. at 1172-1173. No prior track record can be relied upon by Respondents here. It is up to the trier of fact to evaluate the reasonableness of Respondents' expenditure on the website, newsletter and leaflet.
11 “Drawing the line in close cases is no more difficult than making the decisions required in so many other areas of law where careful consideration must be given to the factual context of particular events.” Ziegler, supra, fn. 37. 12
Respondents seek to twist Appellants' point that a trier of fact assessing whether conduct is partisan needs to consider whether a position being advanced by the government agency is the subject of dispute in the preelection debate: “The Appellants' notion that after the speech is published the listener may make it un-lawfully partisan by disagreeing with it is precisely a vague standard which is unconstitutional.” (ROB P.47, 59) This is not a “post-hoc” determination. Even the facts of this case do not lend themselves to such a scenario – the website, newsletter and leaflet, containing one-sided evaluations of the impact of phasing out the UUT, were all prepared at a time when the countervailing point of view on this hotly contested point was well known to city officials. The requirement of neutrality would plainly require a public official preparing informational materials to avoid persuasion and present an impartial look at both perspectives on the point. Although the disagreement was well known to Respondents beforehand, it was ignored in the materials.
B. CONTEXTUAL CONSIDERATIONS INCLUDE THE ISSUES DISPUTED IN THE ELECTION CONTEST The Court in Stanson observed that numerous objective considerations were relevant for the trier of fact in determining whether a public official failed to exercise due care in diverting public funds to a partisan purpose. Id. at 227. Necessarily included in these considerations are the bones of contention surrounding a particular election issue. In order to evaluate whether a government official reasonably should know a use of public resources supports one side in an election contest, it is first necessary to consider what basic issues comprise the election debate. It would be one thing for the city to embark upon an advertising campaign extolling the virtues of the UUT (“Your UUT dollars at work”) in a non-election context. But such a campaign launched just prior to the election would readily be recognized as partisan support of the opponents of Measure O. In this latter context, a balanced approach would be required which impartially describes the costs as well as benefits of the UUT. C. CASE LAW IN OTHER JURISDICTIONS ILLUSTRATES WHY A TEXTUAL (EXPRESS ADVOCACY) APPROACH FAILS Nor is Respondents' argument persuasive that a determination involving “consideration of the whole of the speech based upon all 'subtle' factors, including the 'style, tenor and timing' of it (and, presumably, the contents of the speech itself)(see Stanson, supra, 17 Cal.3d at pp. 222-224), creates substantial uncertainty for the potential speaker and, ultimately, the courts.” (ROB P.47) It is telling that Respondents fail to furnish any examples illustrating how a
consideration of contextual factors in determining whether the public official exercised due care might chill valuable government speech. Examples abound of how improper use of public resources can be avoided by reasonable public officials properly considering the context in which they act. The need for an objective contextual approach is aptly illustrated by the facts of a North Carolina case. The court in Dollar v. Town of Cary (2002) 153 NC App. 309, 569 S.E.2d 731, dealt with a town's campaign on the eve of a council election “'to better inform citizens about growth management issues.'” Id. To accomplish this the town council appropriated $200,000 for “among other things[,] 'direct mail, media buys,and contracted services'.” Id. The court looked beyond the content of the supposedly nonpartisan informational campaign and adopted a contextual analysis: “The determination of whether advertising is informational or promotional is a factual question, and factors such as the style, tenor, and timing of the publication should be considered. Stanson [cite]. It is not necessary for the advertisement to urge voters to vote “yes” or “no” or “for” or “against” a particular issue or candidate in order for the advertisement to be promotional. Id.” Id. Applying the contextual approach, the court affirmed the trial court's granting of a preliminary injunction: The advertisements were to run between 6 September and 19 November 2001, a period of time coinciding with the Council elections where the smart/managed growth concept was a contested issue between candidates. We agree with the trial court that this evidence reveals “it is more likely than not that a ... jury would find that a primary purpose of this [Campaign] is to influence [the Town's] voters in favor of 'slow growth' or 'managed growth' candidates in the [2001 Council] election”
[ ] The advertisement, in the context of the Council elections, appear to be more than informational in nature and instead implicitly promote the candidacy of those Council candidates in sympathy with the Council's position on the Town's growth. It is not material that the advertisements did not directly support one candidate over another; they promoted only one point of view on an important campaign issue. See Citizens to Protect Public Funds, 98 A.2d at 677. Id. Had the court adhered to a content-only approach, the town council's strategy to mask election advocacy as an educational program and thereby use public funds to perpetuate in power those sharing its perspective would have succeeded. See also, Burt v. Blumenauer (1985) 299 Or. 55, 699 P.2d 168 (While educating the public about health matters is a proper part of an agency's duties, the agency's use of taxpayer funds to promote a policy germane to that agency's purpose was improper to support one side of an issue before the voters). The approach advanced by Respondents – a Buckley express advocacy test limited to content – and the problems involved with this approach are illustrated by an Arizona appellate court decision. In Kromko v. City of Tucson (2002) 47 P.3d 1137, the Arizona court of appeal considered dissemination by Tucson and its city manager of information concerning two related ballot propositions - to increase a business tax by one-half percent and a transportation plan. The message was spread via pamphlets, television announcements and websites. The information was presented in a one-sided manner.13 The Arizona
Note, “Kromko v. City of Tucson: Use of Public Funds to Influence the Outcomes of Elections” 46 Ariz. L. Rev. 423, 424. The decision's adoption of a modified “express advocacy” standard fails to recognize the mischief that can ensue from one-sided presentation of facts. Obviously objectively verifiable information which is presented in a one-sided, splashy manner can have as much or greater deleterious effect on the fairness of the ballot process than express exhortations. For example, emphasis - using bold, colored, text framed in lightning bolts - of a purely factual statement: “Proposition 13 limits tax increases to 2% per year.” (ROB P.20, fn.10) Such a non-neutral presentation of facts can only be recognized by looking
court, even though finding that the statute in question there derived from “language in Buckley itself as well as cases decided later” Id., rejected an express advocacy approach:14 [S]uch a narrow construction of the statute leaves room for great mischief. Application of the statute could be avoided simply by steering clear of the litany of forbidden words, albeit that the message and purpose of the communication may be unequivocal. Id.15
beyond the text of the materials. This would include considering omitted relevant facts such as revenue from property sales not subject to Proposition 13 limitations, including new property sales. Based upon this complete picture of the increase in property tax revenue, Measure O proponents conservatively projected 6% growth. (CT P.833) A contextual analysis allows the trier of fact to objectively assess what factual information was overemphasized, omitted or downplayed.
Criticism of courts incorporating a Buckley analysis in reviewing government materials also appears at 27 N.M.L.Rev. 517, supra: Courts do not adequately explain why express advocacy coerces the electorate any more than other forms of speech by government. . . . While express advocacy, such as “vote yes,” may “tend[ ] to supplant the critical capacity of its hearers,” a presentation that is less strident, but uses facts favoring only its position, may be equally or more persuasive.
Id. at 544. Instead, the court – deciding the case before the decisions in Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, and California Pro-Life Council, Inc. v. Getman (9th Cir. 2003) 328 F.3d 1088, rejected an approach to express advocacy which did not employ magic words looked to the decisions in Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, and Federal Election Comm'n v. Furgatch (9th Cir. 1987) 807 F.2d 857. The court determined, “the message must be examined within the textual context of the medium used to communicate it.” What exactly this rather cryptic test involves is not explained in the decision, however the court rejected the challenge to the communications at issue there on the basis that reasonable minds could differ as to whether the communications encouraged a vote for the propositions. The court also rejected any first amendment challenge on the basis that the state statute struck the appropriate balance between “the electorate's rights and the City's obligation to inform the public.” Id. The court's decision has drawn criticism. See, 46 Ariz.L.Rev., supra., which first criticized the application of Buckley to the situation of partisan government speech, noting the express constitutional concerns in Buckley (privacy of association and belief) involved first amendment guarantees to private citizens. These concerns are not similarly implicated in the context of government campaign speech. 46 Ariz.L.Rev. at 429-430. The article then went on to criticize the Arizona court's departure from the “style, tenor, timing” test as adopting “a minority view from an arguably inapposite context,” stating: The modified Buckley test [ ] may fail to protect public elections from undue government influence. Although a one-sided presentation might not be deemed to “unambiguously urge” a particular outcome, the public may be ill-equipped to differentiate between neutral voter-education pamphlets required by statute and other, partisan materials distributed by the government. Recipients of materials like those disseminated by the City may assume the materials are nonpartisan and neutral, and may feel no need to investigate an issue any further. Thus, communications deemed something less than “express advocacy” may nonetheless, influence voter opinion. The modified Buckley standard leaves room for
Limiting the inquiry to internal textual considerations would fail to reach the type of unlawful conduct addressed in Dollar. A governing body whose candidates are running on an issue-based platform could spend public funds to advocate a favorable position on those issues. Under a content-based “express advocacy” departure from Stanson, as long as the names of candidates whose position was favorably represented are not mentioned, the partisan support would be allowed. Objective consideration of contextual factors allows the trier of fact to evaluate the whole picture to determine whether a government agent reasonably should have known the conduct was partisan. Nor does Respondents' proposal to limit inquiry to “internal, textual” (ROB P.51,52) considerations address public resources diverted to provide support of a non-textual nature. Obviously support of one side in an election contest does not need to involve speech. It can take such forms as allocating funds, use of public property or employees to support one campaign against another. These forms of support are often no more readily susceptible to clear delineation than those involving speech.16 The contextual approach has been employed by the New York high court in applying a constitutional prohibition against use of public funds for campaign-
future mischief. As the U.S. Supreme Court cautioned over a century ago, “illegitimate and unconstitutional practices [often] get their first footing” in their “mildest and least repulsive form.” 46 Ariz.L.Rev. at 432-433.
“The mechanics of official partisanship are limited only by government's imagination and the tools at hand.” Ziegler, supra, 581.
ing to a state agency's newsletter disseminated on the eve of an election.17 Schulz v. State of New York (1995) 86 N.Y.2d 225, 654 N.E.2d 1226, 630 N.Y.S.2d 978. The court looked to objective considerations concerning context, rather than focusing solely on content or what the listener might think: [W]e conclude that the document transgresses the constitutional boundary. It was disseminated on the eve of the Presidential campaign of 1992. Its subject matter covered one of the issues already then of primary interest in that campaign - - welfare reform. Although the newsletter contained a substantial amount of factual information which would have been of assistance to the electorate in making an educated decision on whose position to support on that issue, the paper undisputably “'convey[ed] ... partisanship, partiality ... [and] disapproval by a State agency of [an] issue'” (Matter of Phillips v Maurer [67 NY2d 672] at 674 [quoting Stern v. Kramarsky, supra, at 452]). Id. at 235. Here again, the court looked beyond the four corners of the newsletter and emphasized the overiding need for government to be neutral in performing an informational function, citing with approval Stern v. Kramarsky
The newsletter contained the following material cited by the court: “Led by the Bush Administration, Republicans in New York and across the nation are seeking to slash assistance to the needy. “The Republicans appear to have devised a strategy of using distortions and half-truths about Medicaid and welfare to divide the people in a key election year.” The newsletter also reported the Governor's criticism of “President Bush and the Republicans for using welfare as the 'Willie Horton issue of the 1992 campaign.'”. While [the newsletter] did properly urge the public to vote and to “[s]tudy the candidates”, it also sought to enlist the public's support in opposition to the alleged Republican position on the welfare and Medicaid reform issues. Thus, the newsletter urged:”[y]ou can also write at any time to your local representatives. Tell them that welfare and Medicaid is a lifeline during troubled times, and that they shouldn't pull in the lifeline while so many people are in need”. Moreover, it proceeded to ask the public to “vote for the men and women who put people before politics”, a thinly veiled entreaty to vote against the previously disparaged Republican stance on the issues addressed. Finally, [the] newsletter contained a tear-sheet message to be sent to the Governor for the individual recipient among the public to sign and fill in . . .
Id. at 235-236.
(1975) 84 Misc.2d 447: “'[T]o educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be'.” Id. at 235. The supreme court of Mississippi addressed a school board's expenditure concerning a bond referendum. Smith v. Dorsey (1991) 599 So.2d 529.18 Like the campaign launched by the City of Salinas, the informational campaign in Smith was justified as necessary to compensate for voters' lack of “correct” information.19 (CT P. 480 (“the voters should have a complete and accurate understanding of the services to be reduced and/or eliminated”); CT P. 962 (“The intent of this report is to provide facts so that the decision can be an 'informed' decision based on fact. Those that dispute the facts presented in this report must come forward to debate these facts.”); CT P. 1470-1471; ROB P.36) The decision notes, “According to Dr. Smith, the campaign workers and other promotional efforts were in response to distortions in the community generated by Mississippi Power and Light concerning the impact of a bond referendum on the local tax base.” Id. at 540.
The board spent funds for a “documentary” concerning the bond issue, to pay poll workers to go door-todoor, answer phones, put up posters and pass out pamphlets for four months preceding the election, and for a fish fry for the poll workers. Id. at 539-540. Incredibly, with respect to the $9427.50 documentary, the record was devoid of the actual film or any details concerning its contents except the superintendent's selfserving statement “that the documentary was non-partisan.” The court necessarily found it was permissible: “Finding nothing in the record to contradict this assertion, we accept it at face value.” Id. at 549.
19 In fact the record shows that defendant MORA sought to delay the election until November 2002, specifically to allow time to correct what he perceived as voters' misconceptions about the issues. (CT P. 774) This allowed Respondents to reframe the key issue in terms of cutting services. (CT P. 1285; P. 1482). This is akin to the city financing a public forum debate and, instead of stating the issue as “The Consequences of Measure O,” framing it as “Is It Worth the Loss of Our Services?”
The court, applying objective considerations, recognized this rationale translates to a partisan effort to offset arguments with which the school district disagreed. As with Measure O, the public officials avoided expressly seeking to influence voters.20 The superintendent, Smith, stated, “'We were advised that we could spend money to educate the community, not to tell them how to vote. We would have been in violation, from what I've been told if we had spent money to try to tell somebody how to vote.'” Id. at 539. Based upon consideration of contextual factors, the court rejected the claim “that an unbiased, nonpartisan presentation of the facts was the board's aim.” Id. at 549. After reviewing cases from other jurisdictions, including Stanson, the Mississippi high court accepted the requirement that government's informational role in the election context requires it to remain neutral: We find compelling wisdom and sound logic in this line of cases which recognizes a balanced, informational role in educating the local community about referendum proposals. A fair and balanced presentation of the facts would also include relevant information addressing the tax impact as well as proposed community benefits. A line does exist between a fair presentation of the facts in an innocent informational role and a concerted campaign designed to achieve the objectives of the proponents. In the words of the Florida appellate court, the taxpayer's money belongs equally to proponents and opponents, and the government can never, “pick up the gauntlet and enter the fray.” Palm Beach County v. Hudspeth, 540 So.2d 147, 154 (Fla. 4th Dist. Ct. App. 1989). Id. at 542-543.
The city Finance Manager here testified: “I am well aware that the city can't advocate. My recollection is Mr. Mora made it clear to all employees that at work we weren't to advocate. And I don't think this report advocates. It simply informs.” CT P. 1424-1425.
A contextual approach has similarly been applied to enjoin the misuse of the franking privilege for campaign purposes. The court in Hoellen v. Annunzio (1972) 468 F.2d 522, in addressing the argument that its inquiry should be restricted to whether the content of a mailer expressly advanced the congressman's candidacy held that “logic dictates that we should not close our eyes in the face of extrinsic evidence which reveals that an appearance of official business is nothing more than a mask[.]” Id. At 526. This Court should not countenance allowing partisan expenditures to be masked by an analysis restricted to textual factors. Instead, the constitutional imperative to prevent government from interfering with the pure and free expression of voters' choice necessitates that this Court should reaffirm its methodology set forth in Stanson. Evaluating whether a public official has acted unreasonably in authorizing an improper partisan expenditure involves objective consideration encompassing all relevant factors, including the style, tenor and timing of any purported informational materials involved.
VI. RESPONDENTS' EXPENDITURE ON DOOMSAYING CANNOT BE REGARDED AS IMPARTIAL INFORMATIONAL ACTIVITY
A recurring fact pattern in many cases is the government agency's prediction of the consequences of the passage or failure of the measure at issue. Citizens to Protect Public Funds v. Board of Education (1953) 13 N.J. 172, 98 A.2d 673, authored by later Supreme Court Justice William J. Brennan, Jr., and
relied upon by this Court in Stanson addressed a pamphlet concerning a school bond referendum disseminated to the community by a school board. In addition to a one-sided presentation of facts, one page “What Will Happen if You Don't Vote Yes?” listed the negative consequences which would ensue if the bond measure failed. Id. at 674. The court did not accept these predictions as “facts,” and properly perceived them as advocacy: But the defendant board was not content to simply present the facts. The exhortation “Vote Yes” is repeated on three pages, and the dire consequences of the failure to do so are over-dramatized on the page reproduced above. In that manner the board made use of public funds to advocate one side only of the controversial question without affording the dissenters the opportunity by means of that financed medium to present their side, and thus imperiled the propriety of the entire expenditure. The public funds entrusted to the board belonged equally to the proponents and opponents of the proposition, and the use of public funds to finance not the presentation of facts merely but also arguments to persuade the voters that only one side has merit, gives the dissenters just cause for complaint. Id. at 677. See also, Putter, supra, at 464 (newsletter warning that without increased funding from the ballot measure “reduction in programs, services and educational opportunities would occur.”); Sweetman, supra, at 329 (pamphlet listing needed maintenance, repairs and improvements of school facilities); 35 Ops.Cal.Atty.Gen. 112 (school district advertisement describing existence of an “emergency” situation). Applying the holdings of the foregoing authorities to the one-sided predictions of dire consequences of passage of Measure O foretold by Respondents here would seem to pose no special problem. Respondents argue,
however, their predictions take on special status because of the city council's pre-election vote adopting staff's predictions: “According to Appellants, these 'predictions' were not 'factual, but hyperbole.' . . . The recommended cuts were adopted, making the potential elimination of the services if Measure O passed fact.” (ROB P.20) The fundamental flaw in this assertion is obvious with or without a crystal ball. What the future holds cannot be foretold with certainty until it becomes the present. The staff's predictions of gloomy consequences from passage of Measure O, whether they are ratified by a vote of the lame duck city council or not, are still nothing more than predictions. Accordingly the official predictions here should be treated no differently than the official opinions espoused by government agents in the foregoing authorities. The observation of one of the amicus writers made at the petition stage of this proceeding about how a governing body addresses hypothetical and actual reductions to its revenue source is probably very pertinent. (March 13, 2006, letter in support of review from Michael Weaver) It illustrates why the city council's evaluation of the impact of Measure O prior to the election was speculative and unlikely to resemble what would actually occur if Measure O did pass. The reality is that a governing body reacts differently to the threat of budget constraints as compared with how it responds to actual reductions. The threat of a loss of revenue tends to cause the governing body to react defensively and behave like chicken little. During this phase, dire predictions of
imminent catastrophe abound. When dealing with actual reductions, however, the governing body's approach becomes more open to outside solutions and is characterized more by practical thinking and realistic analysis.
VII. APPROACHING THE FACTS FROM A CORRECT PUBLIC FORUM ANALYSIS
Respondents suggest that the omission of Measure O Proponents’ viewpoint on the issue of the consequences of passage of Measure O from the website, newsletter and leaflet was offset by presentation of their views in other contexts. (ROB P.8, 18-20) Respondents argue that the Measure O proponents’ position was presented in council meetings (ROB P.18-19), and by displaying the Measure O proponents’ report on the city clerk’s counter (ROB P.18). But realistically most voters do not consult the minutes of governing bodies as part of the process of educating themselves on ballot measures. They do not review televised council meetings. Nor do they wander into the city clerk’s office to peruse a report. The far more available and influential source of information for the voter – in addition to newspapers, television and radio - is literature they receive. Obviously the governing body’s newsletter and informational material from the governing body are going to be highly influential to the voter due to the presumption that the source of such information is unbiased and reliable. Gebert v. Patterson (1986) 186 Cal.App.3d 868, 874.
Because the website, newsletter and leaflet abundantly illustrated the point of view of opponents of Measure O that catastrophic consequences would befall the City upon passage of Measure O and omitted the contrary point of view of the Measure O supporters that city government could operate more efficiently and the city would benefit from the influx of these funds into the economy, these materials cannot be regarded as “equal access,” “fair” or “balanced” within the Supreme Court’s meaning in Stanson. Id. at 210, 219, 220. Performance of the City’s informational role should not be construed to allow giving the public only one side of the political debate on an issue - the perspective city officials, after performing their evaluation (ROB P.18), conclude is “right.” Indeed, this is exactly what Respondents did in the newsletter, leaflet and website. The website, newsletter and leaflet are indistinguishable from the voter’s pamphlet21 considered by the Court in Gebert v. Patterson, supra. In rejecting a restriction to access by one faction to the limited forum (a fee), the court in Gebert applied the rule requiring equal access: “. . .[I]t is well settled that once the city has chosen to open a public forum, ‘equal access must be provided to all competing factions.’ [citing Stanson]” Id at 874. The court went on to observe: In reference to the voter’s pamphlet, the principle of equal access carries special significance due to the significant impact that the pamphlet can have on the equality and fairness of the electoral process. Unlike other
“A voter pamphlet is unquestionably a public forum involving issues of public interest.” Moraga-Orinda Fire Protection Dist. v. Weir (2004) 115 Cal.App.4th 477, 480.
vehicles for partisan political argument, the pamphlet is printed by a governmental body and distributed to all registered voters. The arguments set forth therein are likely to “carry greater weight in the minds of the voters than normal campaign literature . . .”(Knoll v. Davidson (1974) 12 Cal.3d 335, 352 [116 Cal.Rptr. 97, 525 P.2d 1273].) Id. Once a public entity opens a public forum, such as the website, newsletter or leaflet to one political viewpoint, it must make it equally accessible to all factions. Stanson at 219. This was not done. The newsletter, website and
leaflet became public forums when they were used to express the view that Measure O would have disastrous consequences for the city and did not include appellants’ countervailing point of view. Approaching the website, newsletter and leaflet from the foregoing perspective involves a fairly straightforward analysis. Government use of these forums to promote one view on the disputed consequences of passage of Measure O would open the forum and require equal access to be provided to any competing view. Gebert at 874. Respondents' argument (ROB P. 18-20) attaches no significance to the distinction between partisan government speech in the election context and government speech in other contexts. Respondents do not differentiate between the right of private speakers to participate in the pre-election debate and the right of government to do likewise. This failure to account for these critical differences incorrectly shifts the focus from considering whether the
view expressed in the forum is partisan to considering whether the forum is open to non-government speakers. This effort to have this Court abandon its analysis set forth in Stanson and regard the newsletter, website and leaflet in the same light as privately owned publications should be rejected as unsound. The partisan nature of the view expressed on an election issue in government publications should continue to be considered in determining whether they should be regarded as public forums.
VIII. RESPONDENTS FAIL THE FIRST PRONG UNDER SECTION 425.16 BECAUSE UNCONTROVERTED AND CONCLUSIVE EVIDENCE ESTABLISHES THAT SECTION 425.16 DOES NOT APPLY TO THE NEWSLETTER, LEAFLET AND WEBSITE AS A MATTER OF LAW This Court has approved the rule adopted in Paul for City Council v. Hanyecz (2001) 85 Cal.App.4th 1356, that unlawful conduct is not protected by Section 425.16. In Flatley v. Mauro (2006) 39 Cal.4th 299, the Court addressed the issue of whether uncontroverted evidence of an attorney's letter and subsequent calls constituted extortion as a matter of law. The attorney (Mauro) argued his conduct on behalf of his client “amounted to no more than the kind of permissible settlement negotiations that are attendant upon any legal dispute or, at a minimum, that a question of fact exists regarding the legality of his conduct precluding a finding that it was illegal as a matter of law.” Id. at 328. This
Court examined Paul and Navellier v. Sletten (2002) 29 Cal.4th 82, to state the rule: We conclude, therefore, that where a defendant brings a motion to strike under Section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action. Id. at 320. Applying the rule, the Court held, “Evaluating Mauro's conduct, we conclude that the letter and subsequent phone calls constitute criminal extortion as a matter of law.” Id. at 330. Evaluating the conduct at issue in this case in terms of the rule established in Flatley requires the same result. The uncontroverted evidence that Respondents used public funds to publish and disseminate the newsletter, leaflet and website on the eve of the election on Measure O, and the unmistakeably partisan nature of these materials conclusively compels the determination that this expenditure was illegal as a matter of law. Because the expenditure was unprotected by constitutional guarantees of free speech or petition, Respondents are not protected by Section 425.16.
IX.RESPONDENTS FAIL THE FIRST PRONG UNDER SECTION 425.16 BECAUSE THE CONDUCT AT ISSUE IS THE USE OF PUBLIC FUNDS TO PROVIDE PARTISAN SUPPORT, NOT PROTECTED SPEECH
A. THE GOVERNMENT CONDUCT AT ISSUE IS NOT SPEECH Respondents' actions fail to qualify for protection under the first prong of the anti-SLAPP test because the conduct at issue does not concern speech. Respondents' reliance upon Section 425.16 depends entirely upon convincing this Court that the essential conduct which is the subject of Appellants' lawsuit is not an unlawful use of public funds, but constitutionally protected speech. Examination of Appellants' action reveals that the primary right violated does not concern Respondents' exercise of speech rights. Section 425.16(b)(1) provides that a motion to strike may be brought on “a cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” The fundamental problem with application of this section to the facts of this case is that the cause of action does not arise from free speech.22 The basis for the lawsuit is entirely different – it concerns Respondents' use of public resources to pay for their speech on a pending ballot measure. Respondents' effort to include this unlawful activity as protected by Section 425.16 simply does not work.
Contrary to Respondents' assertion Appellants do not “urge that government's informational role concerning municipal affairs in the pre-election process be silenced.” (ROB P.27) In fact, Appellants do not even dispute government's right to express a partisan opinion in the pre-election debate.
Appellants have already demonstrated the distinction recognized by the courts between a governing body's expression of its opinion on a public issue and the use of public resources to support one side in an election contest. (AOB P.29-31) League of Women Voters v. Countywide Crim. Justice Coordination Com. (1988) 203 Cal.App.3d 529; Choice-in Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415. Appellants have never challenged Respondents' right to express their opinion on Measure O, which public officials did at numerous meetings23 and which the council did on July 16, 2002. (CT 788-797) What Appellants contend is unlawful is the use of public funds to promote the position of one side in the election contest. Whether the use of taxpayers' dollars took the form of speech or other means of support is irrelevant. Appellants' objection concerns this unlawful expenditure of public resources, not speech.24 B. APPLICATION OF SECTION 425.16 IS DETERMINED BY THE NATURE OF THE RIGHT SUED UPON This Court has long recognized that application of particular statutory provisions “is determined by the nature of the right sued upon, not by the form of the action or the relief demanded.” Day v. Greene (1963) 59 Cal.2d 404, 411.
Even to the extent that the council meetings tended to resemble pep rallies for the Measure O opponents, this has not been a basis for Appellants' action, which has focused upon the expenditure on the website, newsletter and leaflet.
One court pointedly addressed the argument that the prohibition against the use of public funds for partisan purposes in an election contest was a restriction on freedom of speech, observing it “does not prohibit public officials from speaking; it merely prohibits them from using the public fisc to purchase a soap box.”Sweetman v. State Elections Enforcement Commission (1999) 249 Conn. 296, 314, 732 A.2d 144. The city of Salinas and its officials were free to speak until they were blue in the face against Measure O, so long as they did not finance their speech with public resources.
The Court in Day held: “The fact that a breach of contract is involved is not decisive as to the applicable statute of limitations. ... where constructive fraud is the gravamen of the action the three year period prescribed in section 338, subdivision 4, of the Code of Civil Procedure applies. Id. at 411. This Court has applied this requirement - that it is necessary to look past the allegations to the essence of the right sued upon - to section 425.16, stating: [T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. The anti-SLAPP statute cannot be read to mean that “any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.” [Citations.] . . . California courts rightly have rejected the notion “that a lawsuit is adequately shown to be one 'arising from' an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.” [Citation] City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77. The basis of Appellants' suit is not, as Respondents claim, “for their actions in preparing a budget” “and for informing the public of those actions.” (ROB P.1) The gravamen of Appellants' cause of action is the use of public resources to provide partisan support in an election contest. The court in San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn (2004) 125 Cal.App.4th 343, in rejecting application of Section 425.16 to litigation seeking judicial review of an act or decision by a public entity, recognized the anti-SLAPP statute's definitional focus is whether the defendant's “activity
giving rise to his or her asserted liability ...constitutes protected speech[.]” Id. at
354. The court looked to the need to protect the rights of citizens from government abuse and observed that to hold otherwise “would significantly burden the petition rights of those seeking mandamus review for most types of governmental action.” Id. at 358. The court looked past the allegations involving speech to find: “In the present case, the litigation does not arise from the speech or votes of public officials, but rather from an action taken by the public entity administered by those officials.” Id. At 347. For the same reason, Section 425.16 does not apply here. C. THE ESSENCE OF APPELLANTS' SUIT CONCERNS A MISUSE OF PUBLIC FUNDS The essence of Appellants' suit concerns a misuse of public resources to provide partisan government support to one side in an election contest. It does not matter that this support took the form of speech, such official support is not protected by the Constitution. Respondents' repeated reference to proper government speech25 is not the critical inquiry. This confuses the method of partisan support for the support. There would be no such confusion had Respondents simply allocated a grant of funds directly to a “No on O” organization.
Respondents correctly observe, “The government may speak through public reports to the City Council during regular, noticed public hearings. The analysis and planning for the potential fiscal impact of the repeal of the UUT are legitimate government speech on 'a public issue or an issue of public interest'.” ROB 33. But this does not address the use of taxpayer dollars to support one faction in the election contest – whether through financing dissemination of partisan speech or other means.
This is not to say that money is not important in first amendment activity. This Court has recognized that money, even if it is not itself speech, nevertheless enables speech. Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 488. The Court in Gerawan, observed: Just as speech results from what a speaker chooses to say and what he chooses not to say, so too it results from what speech a speaker chooses to fund and what speech he chooses not to fund. The right in question comprises both a right to fund speech meaningfully [citations] and also a right to refrain from doing so altogether [citations]. For, in words written by Thomas Jefferson specifically about religious speech, but with general applicability, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical ...” [citation] Hence, it is put at risk both by prohibiting a speaker from funding speech that he otherwise would fund and also by compelling him to fund speech that he otherwise would not fund. Id. at 488. It is the compelled aspect of publicly funded government speech in the election context which this Court in Stanson regarded as the starting point of its analysis. Id. at 213-217. Relying upon the decision in Mines v. Del Valle (1927) 210 Cal. 273, the Court stated: “Pointing out that 'the electors of said city opposing said bond issue had an equal right to and interest in the [public] funds . . . as those who favored said bonds,' the court reasoned that '[t]o use said public funds to advocate the adoption of a proposition which was opposed by a large number of said electors would be manifestly unfair and unjust to the rights of said last-named electors. . .' (201 Cal. At p.287.)” Id. at 216. Rather than finding constitutional protection for such conduct, this Court regarded such a use of public funds as contrary to the constitutional mandate that government
avoid any feature that might adulterate or frustrate voters' free and pure choice. Id. at 219. Respondents point to Code of Civil Procedure Section 425.16 (e) in support of their argument that Respondents' conduct in using public resources (to fund creation and distribution of the website, newsletter and leaflet) to support the position of Measure O's opponents is “an 'act in furtherance of [the constitutional] right of petition or free speech'” encompassed by anti-SLAPP provisions. (ROB P. 33-34) The conduct here was not an “act in furtherance” of any speech or petition right. Section 425.16 (e) provides that the following conduct is protected:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Applying the provisions of subsection (e) to the conduct at issue here does not support Respondents' position that the expenditure is covered by Section 425.16. The use of public funds was not a statement made at or in connection with a “legislative, executive or judicial” body or “other official proceeding” within the meaning of subsections (e)(1) or (e)(2). Nor was the use of tax dollars a statement made in a public forum (subsection (e)(3)). Finally, the use public funds to oppose a ballot measure was not “other” conduct in furtherance of “the constitutional right of petition or the constitutional right of free speech” (subdivision (e)(4) ). On the contrary, it was conduct designed to counteract such exercise of first amendment rights. D. ANY PROTECTION AFFORDED GOVERNMENT SPEECH IS FRAMED IN TERMS OF THE INTERESTS SERVED FOR THE LISTENER The only valid basis for extending first amendment protection to government speech is its informational aspect. Even then, this protection must be framed in terms of preserving citizens’ right to know – the listener’s rights – rather than protecting government’s right to speak. See, Yudoff, at 868. In considering California's Constitution, article I, this Court in Gerawan observed that rights conferred by the listener are determined by the interests served by that speech: “[T]he right's protection is afforded not only to one who speaks but also to those who listen.[citation] When the interests served by the speech at issue extend beyond those of the speaker, we think, whoever or whatever it may be, may be deemed to possess the right in question.” Id. at 490-
491. Evaluating the interests served by use of public funds for government electioneering has already been done by this Court, which has repeatedly found no value to such activity and has instead emphasized the significant constitutional interest in government impartiality in electoral matters. Stanson at 219; Gould v. Grubb (1975) 14 Cal.3d 661; Keller at 206-207. The court in Nadel v. Regents of University of California (1994) 28 Cal.App.4th 1251, relied heavily upon Professor Yudoff’s analysis, agreeing “the proper focus” is on the right of listeners to receive information.26 The court drew a “line between government’s legitimate expression of ideas and its abuse of the power to speak” in regard to a defamation action against city employees. Id. at 1269. Looking to the “overarching constitutional focus on protecting citizens from abuses of government power, rather than protecting government from its citizens” (Id. at 1266), the court balanced the competing interests by concluding: We are acutely mindful of the danger that government may abuse its power to speak. Events of the past few decades have demonstrated that government is quite capable of misleading the public and defaming its citizens. But we also perceive that government has a legitimate role to play in the interchange of ideas. In determining the extent to which government speech implicates the First Amendment in the context of government liability for defamation, we are compelled to accommodate three competing interests-the First Amendment interest in promoting the unfettered interchange of ideas, the state interest in protecting citizens from the power of government to defame them, and the overarching constitutional interest in protecting citizens from government rather than
Id. at 1262. See also, Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, relying upon Nadel’s analysis regarding protecting government’s “informing function” acknowledged “that not all speech relating to governmental affairs necessarily deserves First Amendment protection.” Id. at 377.
government from its citizens -and to draw a line between government's legitimate expression of ideas and its abuse of the power to speak. We believe the New York Times standard of constitutional malice provides a fair and feasible measure for determining whether government has stepped over that line. Id. at 1268-1269. E. THE CONSTITUTIONAL INTEREST IN HAVING GOVERNMENT REMAIN IMPARTIAL IN ELECTION MATTERS MEANS THERE ARE NO PROTECTED INTERESTS SERVED BY HAVING GOVERNMENT USE PUBLIC FUNDS TO LEND PARTISAN SUPPORT IN AN ELECTION CONTEST The limited protection afforded government’s right to speak is reflected in the cases analyzing the extent of protection given government’s right to speak under Code of Civil Procedure Section 425.16. Those cases explicitly or tacitly recognize that protection for government speech is premised upon and only extends to government’s informational function. The court in Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, found first amendment protection for government informational speech for purposes of application of the antiSLAPP statute. Id. at 1115-1116. The court in Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, upheld a section 425.16 motion concerning a suit challenging an Environmental Impact Report, observing: “Government has a legitimate, independent, statutory role to play in the consideration of EIR’s and the approval of development proposals. As such, it should be protected in performing its role on matters of public interest, including purported inadequate performance of its role under CEQA.” Id. at 730.
In San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn supra, the court rejected application of Section 425.16 to litigation seeking judicial review of an act or decision by a public entity. The court focused on whether the activity giving rise to liability constituted protected speech. Id. at 354. The court looked to the interests at stake, including the need to protect the rights of citizens from government abuse, and observed that to hold otherwise “would significantly burden the petition rights of those seeking mandamus review for most types of governmental action.” Id. at 358. The court in Schroeder v. Irvine City Council, supra, declined to rule on the issue of whether the first amendment protects government speech because the plaintiff conceded this point. Id. at 183. But the court observed (without considering the contextual aspect of providing partisan support for one side in an election contest) that the content of the speech did not prevent application of Section 425.16 (Id. at Fn.3). The paramount constitutional interest in limiting government to a neutral role in political campaigns outweighs any benefit to be gained from the financing of non-informational government speech with public funds. Respondents' use of tax dollars to fund partisan speech regarding their opinion on the impacts of passage of Measure O is unlawful and not protected. Section 425.16 does not apply.
This case concerns the two fundamental principles at the heart of our constitutional democracy: limited government and popular sovereignty. (Shapiro and Tresolini, “American Constitutional Law” (6th Ed. 1983) 9) This Court should reject Respondents' request to throw off the constitutional shackles which prevent government from interfering with citizens' free and unadulterated ability to rule through exercise of the franchise. Judge Learned Hand recognized the purpose of the first amendment and the limited role of government in the electoral process when he said: The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all. United States v. Associated Press (D.C. 1943) 52 F. Supp. 362, 372; cited with approval by the United States Supreme Court in New York Times Co. v. Sullivan (1964) 376 U.S.254, 270. The argument over vesting power in the hands of the people versus establishing a strong centralized government was settled over 200 years ago when the constitutional vision of Madison and Jefferson and others triumphed over that of the Federalists. Even following the rise of the welfare state and the resultant increase of government involvement in our lives the fundamental principal of constitutional law that the people are sovereign and that
government has no place in influencing the sovereign's use of the electoral process to rule has held firm: We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority. ... If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 641642. Government is not a participant in the electoral process, it is the product of that process. Its role is to implement the decisions of the electorate, not to use its unique position of authority and power to influence and shepherd the electorate's decisions. Thirty years ago this Court in Stanson recognized the proper balance between government's informational function in educating citizens and the constitutional requirement that government not engage in advocacy on election issues. That decision, made in light of the Supreme Court's decision in Buckley, rejected a simple “express advocacy” approach to this determination. Courts across the nation have widely accepted the Court's identification of contextual factors such as the “style, tenor and timing” of the government conduct in determining when such conduct crosses the line between proper and improper
action. This methodology has functioned effectively as a means of maintaining the proper balance – permitting recognition of unlawful expenditures and guiding reasonable public officials from straying across the line. Respondents, who have so clearly crossed the line with their one-sided arguments describing the negative consequences of passage of a ballot measure, should not now be heard to complain that the line should be redrawn so that only expenditures on express advocacy are unlawful. In the present case, a review of all relevant factors surrounding the government conduct at issue – the expenditure of city resources to promote Respondents' point of view in the website, newsletter and leaflet – leads inescapably to the conclusion that this conduct was improper and leaves for the trier of fact the issue of whether Respondents failed to exercise reasonable care in expending public resources on them. This Court should, therefore, reaffirm its decision in Stanson that government partisanship is determined by reviewing all relevant factors. The trial court's judgment granting Respondents' motion to strike pursuant to Code of Civil Procedure Section 425.16 should be reversed and the matter remanded to the trial court. Respectfully submitted: Dated: October __27_, 2006 /s/Steven J. Andre Attorney for ANGELINA MORFIN VARGAS and MARK DIEROLF
CERTIFICATION OF WORD COUNT I, Steven J. Andre, certify that according to the information provided by my word processing software program, the word count of this Brief is 13,927 words. Dated: October _27__, 2006 /s/Steven J. Andre, Attorney for Appellants ANGIE MORFIN VARGAS and MARK DIEROLF
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF MONTEREY I am employed in the county aforesaid, I am over the age of 18 years and not a party to the within action. My business address is 26540 Carmel Rancho Blvd., Carmel, CA 93923. The papers listed below were served this date by sending them in the United States mail, addressed as follows: REPLY BRIEF ON THE MERITS OF PLAINTIFFS/APPELLANTS In the manner specified below: [ x ] Service By U.S. Mail: I served by U.S. Mail a true and correct copy of the document(s) listed above, together with a copy of this declaration, by causing the same to be sent to the mailing addresses maintained by each addressee on the attached Service List. Mailing address used was the last given by each of the addressee(s), including on a document that had been filed in this action and served on the filer(s) of the aforementioned document(s). [ x ] Service By Email or Electronic Transmission: Based on an agreement to accept service by e-mail or electronic transmission, I served by email a true and correct copy of the document(s) listed above in Portable Document Format (PDF), together with an unsigned copy of this declaration in PDF and standard email formats, by causing the same to be transmitted from an email account [email@example.com] to the email address maintained by each addressee on the attached Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under the penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Dated October _27_, 2006 /s/Brenna Wheelis
SERVICE LIST Service By U.S. Mail:
Vanessa Vallarta City Attorney City of Salinas 200 Lincoln Ave. Salinas, CA 93901 Joel Franklin Attorney at Law 2100 Garden Rd., Suite G Monterey, CA 93940 [Original and 13 copies to:] Clerk of the Supreme Court of California 350 McAllister St. San Francisco, CA 94102 Clerk of the Court of Appeal Suite 1060 333 W. Santa Clara St. San Jose, CA 95113 Clerk of the Superior Court For delivery to the Honorable Robert O’Farrell 1200 Aguajito Rd. Monterey, CA 93940 Nossaman, Guthner, Knox & Elliott, LLP 50 California St, 34th Floor San Francisco, CA 94111 James R. Parrinello Law Offices of Nielsen, Merksamer, Parrinello, Muller & Naylor 591 Redwood Hwy, #4000 Mill Valley, CA 94941-3039
Timothy A. Bittle Stephen P. Taylor Director of Legal Affairs Assistant General Counsel Howard Jarvis Taxpayers Assoc. League of California Cites 921 11th St., Suite 1201 1400 K Street Sacramento, CA 95814 Sacramento, CA 95814
SERVICE LIST Service By E Mail:
Joseph T. Francke General Counsel Californians Aware email: firstname.lastname@example.org Manuel S. Kausner Attorney at Law email: email@example.com Senator Gloria Romero c/o Richard.firstname.lastname@example.org Milo E. Rodich, President Pomona Coalition for Better Government email: email@example.com Jeff Haferman, Member Monterey City Council email: firstname.lastname@example.org Jeff Milchen, Director Reclaim Democracy email: Jeff@ReclaimDemocracy.org Nick Bulaich email: email@example.com Jack Cohen Attorney at Law email: jackcohen @ix.netcom.com John Tresch, Chairman/CEO City Watch Inc. email: johntresch @joincitywatch.org Harold Griffith email: haroldwgriffith @ebold.com Lupe Garcia email: garciamom firstname.lastname@example.org
Johan Jongans email: DELIMY@aol.com Michael Weaver email: email@example.com
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