Metropolitan News-Enterprise


Wednesday, October 15, 2008


Page 1


Ninth Circuit Revives San Jose Election Ordinance

Panel Says Judge Should Have Abstained From Ruling Ahead of Local Commission




A district judge who threw out a San Jose ordinance limiting contributions to independent political committees that support or oppose candidates for city office should have abstained from hearing the case, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The ruling by U.S. District Judge James Ware of the Northern District of California ran afoul of the principle, set forth in Younger v. Harris, 401 U.S. 37 (1971), that federal courts should not interfere with ongoing state or local administrative proceedings or with litigation in state courts absent unusual circumstances, Judge Susan P. Graber wrote for the appellate court.

Younger applies because the business groups challenging the ordinance were engaged in proceedings before the city’s Elections Commission when they sued to have the ordinance declared unconstitutional, Graber said.

The law, Municipal Code Sec. 12.06.310, limits contributions to independent committees for city election campaigns to $250. Supporters of Cindy Chavez—who was vice mayor of the city when she ran for mayor two years ago and lost—claim the San Jose Silicon Valley Chamber of Commerce Political Action Committee and a related entity, the COMPAC Issues Fund, violated the code section when they sent out hundreds of thousands of anti-Chavez mailers during the primary election

The charges were investigated by the Elections Commission staff, which recommended that the committees be penalized for violating the ordinance. The commission voted to reprimand the committees and to impose a fine equaling $5,000 per violation, with final action deferred so that the total could be calculated.

In June 2006, the committees filed their federal action seeking declaratory and injunctive relief and alleging the code section was unconstitutional, both on its face and as applied, as a violation of the First and Fourteenth Amendments.

Ware agreed that the law is unconstitutional and enjoined the city from enforcing it.

But Graber, writing yesterday for the appellate court, said the commission proceedings were still “ongoing” under Younger and that the plaintiffs failed to show the existence of an extraordinary circumstance that would justify an exception to the doctrine.

The judge acknowledged that an exception would apply if the commission were acting in bad faith by delaying the final decision. But the evidence before the court was that the delay was caused by the plaintiffs, who failed to provide financial information requested by the commission and filed suit just six weeks after the commission voted to impose the fine, Graber said.

The judge also noted that there is a split among the circuits as to whether Younger requires a party that is aggrieved as a result of an administrative proceeding to seek judicial review in state courts before resorting to federal remedies. The Ninth Circuit once answered that question in the affirmative, but the opinion was withdrawn and the issue remains open, Graber said.

She added:

“We agree with Plaintiffs, of course, that political speech is vitally important. But the Supreme Court has never suggested that the importance of the interest asserted by a federal plaintiff affects the analysis of the Younger factors. Indeed, it would be hard to assert that the right to speech is more important than the liberty interest of the criminal defendant in Younger itself, where the Court held that federal courts were required to abstain.”

The opinion was joined by Senior Judge J. Clifford Wallace and by U.S. District Judge George Schiavelli of the Central District of California, sitting by designation.

The case is San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 06-17001.


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