Monday, April 1, 2019
Five Circuit Judges:
Ikuta Writes Dissent From Order Denying Rehearing En Banc, Says Decision by Five-Judge Panel Fails to Follow 1958 Supreme Court Decision, Is Based on Appellate Fact-Finding
By a MetNews Staff Writer
Five members of the Ninth U.S. Circuit Court of Appeals on Friday protested their colleagues’ decision to deny a rehearing en banc in a case in which a three-judge panel vacated injunctions against state Attorney General Xavier Becerra demanding that tax-exempt charitable organizations provide copies of their federal tax forms listing names and addresses of top contributors.
Circuit Judge Sandra Ikuta wrote an opinion dissenting from the denial of a rehearing. She was joined by Judges Consuelo M. Callahan, Carlos T. Bea, Mark J. Bennett, and Ryan D. Nelson.
Balking at the requirement of providing the information—in particular, IRS Form 990, Schedule B—was the Americans for Prosperity Foundation, a nationwide conservative/libertarian organization. With the state unable to safeguard the confidentiality of information it amasses, Ikuta charged, Becerra’s enforcement of a long dormant law puts that organization at risk, explaining:
“People publicly affiliated with the Foundation have often faced harassment, hostility, and violence, as shown by the evidence adduced at trial in this case. For example, supporters have received threatening messages and packages, had their addresses and children’s school addresses posted online in an effort to intimidate them, and received death threats….
“Foundation supporters have also been subjected to violence, not just threats.”
The opinion in the case—which vacated injunctions issued by District Court Judge (now Senior Judge) Manuel Real—was rendered last Sept. 11. Circuit Judge Raymond C. Fisher wrote the opinion, which was signed by Circuit Judges Richard A. Paez and Jacqueline H. Nguyen.
“We hold that the California Attorney General’s Schedule B requirement, which obligates charities to submit the very information they already file each year with the IRS, survives exacting scrutiny as applied to the plaintiffs because it is substantially related to an important state interest in policing charitable fraud. Even assuming arguendo that the plaintiffs’ contributors would face substantial harassment if Schedule B information became public, the strength of the states interest in collecting Schedule B information reflects the actual burden on First Amendment rights because the information is collected solely for nonpublic use. and the risk of inadvertent public disclosure is slight.”
In her opinion on Friday, Ikuta relied on the U.S. Supreme Court’s 1958 decision in NAACP v. Alabama which arose from a state’s demand that the NAACP provide its membership lists. Justice John Marshall Harlan wrote:
“We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have.”
Taking aim at the Sept. 11 decision, Ikuta charged:
“The panel’s reversal of the district court’s decision was based on appellate factfinding and crucial legal errors. First, the panel ignored the district court’s factfinding, holding against all evidence that the donors’ names would not be made public and that the donors would not be harassed….Second, the panel declined to apply NAACP v. Alabama, even though the facts squarely called for it….The panel’s approach will ensure that individuals affiliated with controversial organizations effectively have little or no protection from compelled disclosure. We should have taken this case en banc to correct this error and bring our case law in line with Supreme Court jurisprudence.”
She went on to say:
“Under the panel’s analysis, the government can put the First Amendment associational rights of members and contributors at risk for a list of names it does not need, so long as it promises to do better in the future to avoid public disclosure of the names. Given the inability of governments to keep data secure, this standard puts anyone with controversial views at risk.”
Responding to the dissent, Fisher, Paez, and Nguyen insisted that “we properly applied exacting scrutiny,” rather than strict scrutiny, and that such was the standard employed in NAACP v. Alabama.
“Our colleagues sensibly declined to rehear this case en banc,” they declared.
The case is Americans for Prosperity Foundation v. Becerra, 16-55727.
Copyright 2019, Metropolitan News Company