Metropolitan News-Enterprise


Thursday, July 20, 2023


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Ninth Circuit Voids California Political-Solicitation Statute

Panel Finds That Government Code §3205, Barring Local Government Employees, but Not State Employees,

From Collecting Funds for Campaigns From Co-Workers, Is Unconstitutional Under First Amendment


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday held that California’s Government Code §3205 which bars employees of local governmental entities from soliciting political contributions from coworkers but places no such restriction on state employees, is unconstitutional.

“Because the statute’s discrimination against local employees is not justified under any arguably applicable standard,” Circuit Judge Marsha S. Berzon said, “we hold that Section 3205 is unconstitutional and reverse the district court.”

She acknowledged that California has an interest “in combatting corruption and worker coercion,” but declared that “we cannot, applying First Amendment precepts, countenance California’s ‘second-class treatment’ of local employees, absent any plausible reason for the distinction.”

While decrying disparate treatment of local government employers, Berzon specified that the case is being decided on First Amendment principles, not equal protection concerns.

Judge Ronald M. Gould signed Berzon’s opinion and Judge Sandra S. Ikuta, concurring in the result, wrote separately.

Lawyers’ Fund-Solicitation Precluded

The action to enjoin enforcement of the statute was brought against California Attorney General Rob Bonta by Progressive Democrats for Social Justice and two of its officers, Santa Clara Deputy Public Defenders Krista Henneman and Carlie Ware. Henneman, who is president of the club, and Ware, who is secretary, desired to collect money for a candidate for district attorney but were barred from doing so by §3205.

Sec. 3205(a) provides, in part:

“An officer or employee of a local agency shall not, directly or indirectly, solicit a political contribution from an officer or employee of that agency…with knowledge that the person from whom the contribution is solicited is an officer or employee of that agency.”

Violation of the section is a misdemeanor.

Yesterday’s decision reverses a summary judgment granted in Bonta’s favor by District Court Judge Haywood S. Gilliam Jr. of the Northern District of California.

Widespread Effect

Berzon wrote:

“Section 3205 precludes over a million local government employees from soliciting political contributions from co-employees.…Although local government employees may engage in other forms of political speech under Section 3205—such as solicitations directed at the public at large—Henneman and Ware declare, without contradiction, that individualized solicitations are ‘much more effective’ than general solicitations. By banning targeted political solicitations among local government workers, California restricts a core form of political speech for ‘a vast group of present and future employees.’ ”

She went on to say:

“The critical question…is whether Section 3205 is properly tailored to support the State’s interests, given its exclusive application to local government employees. In other words, California must demonstrate that Section 3205, despite its differential treatment of state and local employees, is a reasonable response to the State’s posited and actual harms….After a review of the record before us. we cannot say that the State has met its burden of justifying the differential ban under the First Amendment.”

Appellate Brief Quoted

The judge quoted the appellants’ brief as pointing out:

“A law clerk in a state judge’s chambers may solicit political contributions for a judicial candidate from one of her two or three fellow clerks at a Friday happy hour and sit next to the other clerk the following week; meanwhile, a Los Angeles County janitor may not solicit contributions for a Presidential candidate from a Los Angeles County prosecutor at a barbecue that they both happen to attend with family, even though both are among approximately 100,000 county employees, and even though they may go to work more than 85 miles (and an hours-long drive in LA traffic) from each other.”

Berzon commented:

“The First Amendment does not tolerate such a ‘crudely crafted burden’ on local employees’ expressive rights….If the State seeks to protect government employees from undue political pressure with a solicitation ban, it cannot enact a statute that illogically distinguishes between types of government employees but fails to account for a crucial factor in determining whether the prohibited solicitations will actually result in undue pressure. Section 3205’s indiscriminate application to local agencies of all sizes—and disregard for the potential for coercion hi state agencies regardless of size—undercuts the State’s argument that the statute is properly tailored to address the government’s interests.”

Level of Scrutiny

While Berzon said it is not necessary to determine what level of scrutiny of §3205 should be applied because the statute would fail under any of the tests, Ikuta maintained that strict scrutiny should be employed.

“Because I agree that Section 3205 fails under strict scrutiny, thereby constituting an unconstitutional restriction on speech, I concur in the result,” she wrote.

The judge also said the statute should be analyzed “under ordinary First Amendment principles,” without resort to a “balancing test” alluded to by Berzon.

The case is Progressive Democrats for Social Justice v. Bonta, 22-15323.

Santa Clara Deputy Public Defender Sajid Khan is the candidate for district attorney Henneman and Ware supported in the June 7, 2022 primary. He came in third, with 19.7 percent of the votes.

Berzon said in a footnote that because Henneman and Ware desire to solicit funds from colleagues in future elections, the case is not moot.


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