Constitutional Law
Jul. 31, 2002
Judge Ponders If He Can Rule on Slate Mailer Provision
SACRAMENTO - A federal judge said Monday he is willing to grant a preliminary injunction to prevent the state from requiring certain disclosures on slate mail, but he first must decide whether he should leave the issue to state courts to decide first.
"If we reach the merits [of the case], it's likely I'm going to issue a preliminary injunction," said U.S. District Judge Lawrence K. Karlton.
Four publishers of political mail that urges voters to vote for or against certain candidates or ballot measures have sued the state, challenging a section of the campaign reform measure, Proposition 34. That measure requires slate mail that looks like it comes from a particular political party to state clearly on the mail that it is not the official position of that party.
The plaintiffs contend the disclosure takes up valuable space that could otherwise be used to advocate a political position. They also contend the disclosure violates their right to free speech by compelling them to publicize opposing views.
It's also confusing, plaintiffs lawyers said, because a political party may take no stand on certain candidates or ballot issues and the disclosure might mislead voters into thinking the party has taken the opposite position from the one espoused by the mailer.
However, Karlton said recent decisions by the U.S. Supreme Court - which he disagrees with - may compel him to abstain from issuing any ruling.
As a federal judge, Karlton said, he is limited to construing the meaning of the statute, while state courts may rewrite the language of a statute to comply with the Constitution.
Karlton ordered lawyers for the plaintiffs and the state Fair Political Practices Commission to submit letters supporting their position on the abstention issue within 10 days.
In particular, Karlton cited a case, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). In that case, the Supreme Court held that federal courts lack competence to rule on the meaning of state legislation and may not adjudicate challenges to state measures without a showing of the actual impact on the challenger.
Part of the problem for Karlton is that attorneys for the state never raised the abstention issue in their briefings on the preliminary injunction request. They suggested it might be a problem in papers related to a status conference on the case.
"It's troubling to me when the court is going to do something that the state hasn't asked me to do," Karlton said. "The more we talk, the more uneasy I'm getting. If I understand the high court's most recent amendments on jurisprudence, and I'll restrain myself from commenting ..., these are all questions of sovereign dignity, not questions of who has the expertise."
A few minutes later in the hearing, Karlton called a recess to ponder the questions.
"Part of the problem is, if I defer to briefing on abstention, the plaintiffs will engage in self-censorship to avoid the sanctions of the FPPC and the problem with that is that's precisely what the First Amendment was designed to prevent," he said.
The original statute containing the disclosure requirements, Govt. Code Section 84305.5(a)(6), was repealed by Proposition 208, a campaign reform measure passed by voters in 1996. Proposition 34, passed by voters in 2000, supplanted Proposition 208.
Lawrence Woodlock, senior counsel for the FPPC, contends that when Proposition 208 was repealed, the law reverted to the previous statute, which became valid again. The FPPC contends the disclosure is necessary to ensure voters aren't misled into thinking a major political party is endorsing candidates or ballot measures on mail sent by a group with a confusing name, such as the California Republican Assembly.
"That is truly an arcane legal question," said Daniel Lowenstein, a UCLA law professor representing the plaintiffs, who filed the suit Jan. 24.
The lead plaintiff is Larry Levine, who owns Larry Levine and Associates of Sherman Oaks, which publishes slate mail through the "Voter Information Guide," a group that usually supports Democratic candidates and issues.
Other plaintiffs are Tom Kaptain, whose Elite Advertising Consultants of Los Angeles publishes slate mail for Democratic Voters Choice, a pro-Democratic Party group; Scott Hart, of Scott Hart and Associates of Orange, who publishes mailers for "Continuing the Republic Revolution;" and the California Republican Assembly, which produces the "CRA Election Voter Guide," which has advocated positions on voter initiatives.
Linda Rapattoni
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