Subject:  RENNE v. GEARY, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


RENNE, SAN FRANCISCO CITY ATTORNEY, et al. v. GEARY et al.

certiorari to the united states court of appeals for the ninth circuit

No. 90-769.  Argued April 23, 1991 -- Decided June 17, 1991

Article II, MDRV 6(b) of the California Constitution prohibits political
parties and party central committees from endorsing, supporting, or
opposing candidates for nonpartisan offices such as county and city
offices.  Based on MDRV 6(b), it is the policy of petitioners -- the City
and County of San Francisco, its Board of Supervisors, and certain local
officials -- to delete any reference to party endorsements from candidates'
statements included in the voter pamphlets that petitioners print and
distribute.  Respondents -- among whom are 10 registered voters in the city
and county, including members of the local Republican and Democratic
Central Committees -- filed suit seeking, inter alia, a declaration that
MDRV 6(b) violates the First and Fourteenth Amendments and an injunction
preventing petitioners from editing candidate statements to delete
references to party endorsements.  The District Court entered summary
judgment for respondents, declaring MDRV 6(b) unconstitutional and
enjoining its enforcement, and the Court of Appeals affirmed.

Held: The question whether MDRV 6(b) violates the First Amendment is not
justiciable in this case, since respondents have not demonstrated a live
controversy ripe for resolution by the federal courts.  Pp. 2-11.

    (a) Although respondents have standing to claim that MDRV 6(b) has been
applied in an unconstitutional manner to bar their own speech, the
allegations in their complaint and affidavits raise serious questions about
their standing to assert other claims.  In their capacity as voters, they
only allege injury flowing from MDRV 6(b)'s application to prevent speech
by candidates in the voter pamphlets.  There is reason to doubt that that
injury can be redressed by a declaration of MDRV 6(b)'s invalidity or an
injunction against its enforcement, since a separate California statute,
the constitutionality of which was not litigated in this case, might well
be construed to prevent candidates from mentioning party endorsements in
voter pamphlets, even in the absence of MDRV 6(b).  Moreover, apart from
the possibility of an overbreadth claim, discussed infra, the standing of
respondent committee members to litigate based on injuries to their
respective committees' rights is unsettled.  See Bender v. Williamsport
Area School Dist., 475 U. S. 534, 543-545.  Nor is it clear, putting aside
redressability concerns, that the committee members have third party
standing to assert the rights of candidates, since no obvious barrier
exists preventing candidates from asserting their own rights.  See Powers
v. Ohio, 499 U. S. ---, ---.  Pp. 5-7.

    (b) Respondents' allegations fail to demonstrate a live dispute
involving the actual or threatened application of MDRV 6(b) to bar
particular speech.  Their generalized claim that petitioners deleted party
endorsements from candidate statements in past elections does not do so,
since, so far as can be discerned from the record, those disputes had
become moot by the time respondents filed suit.  Similarly, an allegation
that the Democratic Committee has not endorsed candidates "[i]n elections
since 1986" for fear of the consequences of violating MDRV 6(b) will not
support a federalcourt action absent a contention that MDRV 6(b) prevented
a particular endorsement, and that the controversy had not become moot
prior to the litigation.  Nor can a ripe controversy be found in the fact
that the Republican Committee endorsed candidates for nonpartisan elections
in 1987, the year this suit was filed, since nothing in the record suggests
that petitioners took any action to enforce MDRV 6(b) as a result of those
endorsements, or that there was any desire or attempt to include the
endorsements in the candidates' statements.  Allegations that respondents
desire to endorse candidates in future elections also present no ripe
controversy, absent a factual record of an actual or imminent application
of MDRV 6(b) sufficient to present the constitutional issues in clean-cut
and concrete form.  Indeed, the record contains no evidence of a credible
threat that MDRV 6(b) will be enforced, other than against candidates in
the context of voter pamphlets.  In these circumstances, postponing
adjudication until a more concrete controversy arises will not impose a
substantial hardship on respondents and will permit the state courts
further opportunity to construe MDRV 6(b), perhaps in the process
materially altering the questions to be decided.  Pp. 7-10.

    (c) Even if respondents' complaint may be read to assert a facial
overbreadth challenge, the better course might have been to address in the
first instance the constitutionality of MDRV 6(b) as applied in the context
of voter pamphlets.  See, e. g., Board of Trustees, State Univ. of N. Y. v.
Fox, 492 U. S. 469, 484-485.  If the as-applied challenge had been resolved
first, the justiciability problems determining the disposition of this case
might well have concluded the litigation at an earlier stage.  Pp. 10-11.

911 F. 2d 280, vacated and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and Stevens, O'Connor, and Souter, JJ., joined, and in all but Part II-B of
which Scalia, J., joined.  Stevens, J., filed a concurring opinion.  White,
J., filed a dissenting opinion.  Marshall, J., filed a dissenting opinion,
in which Blackmun, J., joined.
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Subject: 90-769 -- OPINION, RENNE v. GEARY

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-769



LOUISE RENNE, SAN FRANCISCO CITY ATTORNEY, et al., PETITIONERS v. BOB GEARY
et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 17, 1991]



    Justice Kennedy delivered the opinion of the Court.
    Petitioners seek review of a decision of the United States Court of
Appeals for the Ninth Circuit holding that Article II, MDRV 6(b) of the
California Constitution violates the First and Fourteenth Amendments to the
Constitution of the United States.  Section 6(b) reads: "No political party
or party central committee may endorse, support, or oppose a candidate for
nonpartisan office."  Its companion provision, MDRV 6(a), provides that
"[a]ll judicial, school, county, and city offices shall be nonpartisan."

I
    In view of our determination that the case is nonjustici able, the
identity of the parties has crucial relevance.  Petitioners are the City
and County of San Francisco, its Board of Supervisors, and certain local
officials.  The individual respondents are 10 registered voters residing in
the City and County of San Francisco.  They include the chairman and three
members of the San Francisco Republican County Central Committee and one
member of the San Francisco Democratic County Central Committee.  Election
Action, an association of voters, is also a respondent, but it asserts no
interest in relation to the issues before us different from that of the
individual voters.  Hence, we need not consider it further.
    Respondents filed this suit in the United States District Court for the
Northern District of California.  Their third cause of action challenged
MDRV 6(b) and petitioners' acknowledged policy, based on that provision, of
deleting any references to a party endorsement from the candidate
statements included in voter pamphlets.  As we understand it, petitioners
print the pamphlets and pay the postage required to mail them to voters.
The voter pamphlets contain statements prepared by candidates for office
and arguments submitted by interested persons concerning other measures on
the ballot.  The complaint sought a declaration that Article II, MDRV 6 was
unconstitutional and an injunction preventing petitioners from editing
candidate statements to delete references to party endorsements.
    The District Court granted summary judgment for respondents on their
third cause of action, declaring MDRV 6(b) unconstitutional and enjoining
petitioners from enforcing it.  708 F. Supp. 278 (ND Cal. 1988).  The court
entered judgment on this claim pursuant to Federal Rule of Civil Procedure
54(b), and petitioners appealed.  A Ninth Circuit panel reversed, 880 F. 2d
1062 (1989), but the en banc Court of Appeals affirmed the District Court's
decision, 911 F. 2d 280 (CA9 1990) (en banc).
    We granted certiorari, 498 U. S. --- (1991), to determine whether MDRV
6(b) violates the First Amendment.  At oral argument, doubts arose
concerning the justiciability of that issue in the case before us.  Having
examined the complaint and the record, we hold that respondents have not
demonstrated a live controversy ripe for resolution by the federal courts.
As a consequence of our finding of nonjusticiability, we vacate the Ninth
Circuit's judgment and remand with instructions to dismiss respondents'
third cause of action.

II
    Concerns of justiciability go to the power of the federal courts to
entertain disputes, and to the wisdom of their doing so.  We presume that
federal courts lack jurisdiction "unless `the contrary appears
affirmatively from the record.' "  Bender v. Williamsport Area School
Dist., 475 U. S. 534, 546 (1986), quoting King Bridge Co. v. Otoe County,
120 U. S. 225, 226 (1887).  "It is the responsibility of the complainant
clearly to allege facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute and the exercise of the court's remedial
powers."  Bender, supra, at 546, n. 8, quoting Warth v. Seldin, 422 U. S.
490, 517-518 (1975).

A
    Proper resolution of the justiciability issues presented here requires
examination of the pleadings and record to determine the nature of the
dispute and the interests of the parties in having it resolved in this
judicial proceeding.  According to the complaint, the respondent committee
members "desire to endorse, support, and oppose candidates for city and
county office through their county central committees, and to publicize
such endorsements by having said endorsements printed in candidate's
statements published in the voter's pamphlet."  App. 4, MDRV 36.  All
respondents "desire to read endorsements of candidates for city and county
office as part of candidate's statements printed in the San Francisco
voter's pamphlet."  Id., at 5, MDRV 37.
    The complaint alleges that in the past certain of these petitioners
"have deleted all references in candidate's statements for City and County
offices to endorsements by political party central committees or officers
or members of such committees," and that they will continue such deletions
in the future unless restrained by court order.  MDRV 38.  Respondents
believe an actual controversy exists because they contend MDRV 6 and any
other law relied upon to refuse to print the endorsements are
unconstitutional in that they "abridge [respondents'] rights to free speech
and association," while petitioners dispute these contentions.  MDRV 39.
The third cause of action concludes with general assertions that
respondents have been harmed by the past and threatened deletion of
endorsements from candidate statements, and that because of those deletions
they have suffered and will suffer irreparable injury to their rights of
free speech and association.  Id., at 5-6, 14 40-41.
    An affidavit submitted by the Chairman of the Republican Committee in
connection with respondents' motion for summary judgment illuminates and
supplements the allegations of the complaint.  It indicates the committee
has a policy of endorsing candidates for nonpartisan offices:

"In 1987, the Republican Committee endorsed Arlo Smith for District
Attorney, Michael Hennessey for Sheriff, and John Molinari for Mayor,
despite objections from some that such endorsements are prohibited by
California Constitution Article [II], Section 6.  It is the plan and
intention of the Republican Committee to endorse candidates for nonpartisan
offices in as many future elections as possible.  The Republican Committee
would like to have such endorsements publicized by endorsed candidates in
their candidate's statements in the San Francisco voter's pamphlet, and to
encourage endorsed candidates to so publish their endorsements by the
Republican Committee.
    "In the future, I and other Republican Committee members . . . would
like to use our titles as Republican County Committeemen in endorsements we
make of local candidates which are printed in the San Francisco voter's
pamphlet.  We cannot do so as [petitioner] Jay Patterson has a policy of
deleting the word `Republican' from all such endorsements."  App. 15-16.


    An affidavit submitted by a Democratic committeeman states that "[i]n
elections since 1986, the Democratic Committee has declined to endorse
candidates for nonpartisan office solely out of concern that committee
members may be criminally or civilly prosecuted for violation of the
endorsement ban contained in" MDRV 6.  Id., at 12.  It also provides two
examples of elections in which the word "Democratic" had been deleted from
candidate statements.  One involved an endorsement by a committee member of
one of these respondents, then a candidate for local office, and in another
the respondent committee member wished to mention that position in his own
candidate statement.  Ibid.  Those elections occurred prior to the adoption
of MDRV 6(b), but at least one and perhaps both were held at a time when a
California appellate court had found a ban on party endorsements implicit
in the state constitutional provision designating which offices are
nonpartisan, now MDRV 6(a).  See Unger v. Superior Court of Marin County,
102 Cal. App. 3d 681, 162 Cal. Rptr. 611 (1980), overruled by Unger v.
Superior Court, 37 Cal. 3d 612, 692 P. 2d 238 (1984).

B
    Respondents' allegations indicate that, relevant to this suit,
petitioners interpret MDRV 6(b) to apply to three different categories of
speakers.  First, as suggested by the language of the provision, it applies
to party central committees.  Second, petitioners' reliance on MDRV 6(b) to
edit candidate statements demonstrates that they believe the provision
applies as well to the speech of candidates for nonpartisan office, at
least in the forum provided by the voter pamphlets.  Third, petitioners
have interpreted MDRV 6(b) to apply to members and officers of party
central committees, as shown by their policy of deleting references to
endorsements by these individuals from candidate statements.  The first of
these interpretations flows from the plain language of MDRV 6(b), while the
second and third require inferences from the text.
    As an initial matter, serious questions arise concerning the standing
of respondents to defend the rights of speakers in any of these categories
except to the extent that certain respondents in the third category may
assert their own rights.  In their capacity as voters, respondents only
allege injury flowing from application of MDRV 6(b) to prevent speech by
candidates in the voter pamphlets.  We have at times permitted First
Amendment claims by those who did not themselves intend to engage in
speech, but instead wanted to challenge a restriction on speech they
desired to hear.  See, e. g., Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748 (1976).  There is reason to doubt,
however, that the injury alleged by these voters can be redressed by a
declaration of MDRV 6(b)'s invalidity or an injunction against its
enforcement.  See ASARCO Inc. v. Kadish, 490 U. S. 605, 615-616 (1989)
(opinion of Kennedy, J., joined by Rehnquist, C. J., and Stevens and
Scalia, JJ.) (party seeking to invoke authority of federal courts must show
injury "likely to be redressed by the requested relief"); Allen v. Wright,
468 U. S. 737, 751 (1984) ("relief from the injury must be `likely' to
follow from a favorable decision"); Simon v. Eastern Ky. Welfare Rights
Org., 426 U. S. 26, 38 (1976).  A separate California statute, the
constitutionality of which was not litigated in this case, provides that a
candidate's statement "shall not include the party affiliation of the
candidate, nor membership or activity in partisan political organizations."
Cal. Elec. Code Ann. MDRV 10012 (West 1977 and Supp. 1991).  This statute
might be construed to prevent candidates from mentioning party endorsements
in voter pamphlets, even in the absence of MDRV 6(b).  Overlapping
enactments can be designed to further differing state interests, and
invalidation of one may not impugn the validity of another.
    The respondent committee members allege injury to their rights, either
through their committees or as individual committee members, to endorse
candidates for nonpartisan offices, and also allege injury from the
inability of candidates to include those endorsements in voter pamphlets.
Respondents of course have standing to claim that MDRV 6(b) has been
applied in an unconstitutional manner to bar their own speech.  Apart,
though, from the possibility of an overbreadth challenge, an alternative we
discuss below, the standing of the committee members to litigate based on
injuries to the rights of their respective committees is unsettled.  See
Bender v. Williamsport Area School Dist., 475 U. S., at 543-545 (school
board member, as member of a "collegial body," could not take appeal board
as a whole declined to take).  It may be that rights the committee members
can exercise only in conjunction with the other members of the committee
must be defended by the committee itself.  Nor is it clear, putting aside
our concerns about redressability, that the committee members have third
party standing to assert the rights of candidates, since no obvious barrier
exists that would prevent a candidate from asserting his or her own rights.
See Powers v. Ohio, 499 U. S. ---, --- (1991) (slip op., at 10).

C
    Justiciability concerns not only the standing of litigants to assert
particular claims, but also the appropriate timing of judicial
intervention.  See Regional Rail Reorganization Act Cases, 419 U. S. 102,
136-148 (1974).  Respondents have failed to demonstrate a live dispute
involving the actual or threatened application of MDRV 6(b) to bar
particular speech.  Respondents' generalized claim that petitioners have
deleted party endorsements from candidate statements in past elections does
not demonstrate a live controversy.  So far as we can discern from the
record, those disputes had become moot by the time respondents filed suit.
While the mootness exception for disputes capable of repetition yet evading
review has been applied in the election context, see Moore v. Ogilvie, 394
U. S. 814, 816 (1969), that doctrine will not revive a dispute which became
moot before the action commenced.  "Past exposure to illegal conduct does
not in itself show a present case or controversy regarding injunctive
relief . . . if unaccompanied by any continuing, present adverse effects."
O'Shea v. Littleton, 414 U. S. 488, 495-496 (1974); see Los Angeles v.
Lyons, 461 U. S. 95 (1983).
    The allegation that the Democratic Committee has not endorsed
candidates "[i]n elections since 1986" for fear of the consequences of
violating MDRV 6, App. 12, provides insufficient indication of a
controversy continuing at the time this litigation began or arising
thereafter.  The affidavit provides no indication whom the Democratic
Committee wished to endorse, for which office, or in what election.  Absent
a contention that MDRV 6(b) prevented a particular endorsement, and that
the controversy had not become moot prior to the litigation, this
allegation will not support an action in federal court.
    Nor can a ripe controversy be found in the fact that the Republican
Committee endorsed candidates for nonpartisan elections in 1987, the year
this suit was filed.  Whether or not all of those endorsements involved
elections pending at the time this action commenced, a point on which the
affidavit is not clear, we have no reason to believe that MDRV 6(b) had any
impact on the conduct of those involved.  The committee made these
endorsements "despite objections from some that such endorsements are
prohibited" by the provision at issue.  App. 15.  Nothing in the record
suggests that any action was taken to enforce MDRV 6(b) as a result of
those endorsements.  We know of no adverse consequences suffered by the
Republican Committee or its members due to the apparent violation of MDRV
6(b).  We also have no indication that any of the three endorsed candidates
desired or attempted to include the party's endorsement in a candidate
statement.
    We also discern no ripe controversy in the allegations that respondents
desire to endorse candidates in future elections, either as individual
committee members or through their committees.  Respondents do not allege
an intention to endorse any particular candidate, nor that a candidate
wants to include a party's or committee member's endorsement in a candidate
statement.  We possess no factual record of an actual or imminent
application of MDRV 6(b) sufficient to present the constitutional issues in
"clean-cut and concrete form."  Rescue Army v. Municipal Court of Los
Angeles, 331 U. S. 549, 584 (1947); see Socialist Labor Party v. Gilligan,
406 U. S. 583 (1972); Public Affairs Press v. Rickover, 369 U. S. 111
(1962) (per curiam); Alabama Federation of Labor v. McAdory, 325 U. S. 450
(1945).  We do not know the nature of the endorsement, how it would be
publicized, or the precise language petitioners might delete from the voter
pamphlet.  To the extent respondents allege that a committee or a committee
member wishes to "support" or "oppose" a candidate other than through
endorsements, they do not specify what form that support or opposition
would take.
    The record also contains no evidence of a credible threat that MDRV
6(b) will be enforced, other than against candidates in the context of
voter pamphlets.  The only instances disclosed by the record in which
parties endorsed specific candidates did not, so far as we can tell, result
in petitioners taking any enforcement action.  While the record indicates
that the Democratic Committee feared prosecution of its members if it
endorsed a candidate, we find no explanation of what criminal provision
that conduct might be held to violate.  Petitioners' counsel indicated at
oral argument that MDRV 6(b) carries no criminal penalties, and may only be
enforced by injunction.  Nothing in the record suggests that petitioners
have threatened to seek an injunction against county committees or their
members if they violate MDRV 6(b).
    While petitioners have threatened not to allow candidates to include
endorsements by county committees or their members in the voter pamphlets
prepared by the government, we do not believe deferring adjudication will
impose a substantial hardship on these respondents.  In all probability,
respondents can learn which candidates have been endorsed by particular
parties or committee members through other means.  If respondents or their
committees do desire to make a particular endorsement in the future, and a
candidate wishes to include the endorsement in a voter pamphlet, the
constitutionality of petitioners' refusal to publish the endorsement can be
litigated in the context of a concrete dispute.
    Postponing consideration of the questions presented, until a more
concrete controversy arises, also has the advantage of permitting the state
courts further opportunity to construe MDRV 6(b), and perhaps in the
process to "materially alter the question to be decided."  Babbitt v. Farm
Workers, 442 U. S. 289, 306 (1979); see also Webster v. Reproductive Health
Services, 492 U. S. 490, 506 (1989) (plurality opinion).  It is not clear
from the language of the provision, for instance, that it applies to
individual members of county committees.  This apparent construction of the
provision by petitioners, which may give respondents standing in this case,
could be held invalid by the state courts.  State courts also may provide
further definition to MDRV 6(b)'s operative language, "endorse, support, or
oppose."  "Determination of the scope and constitutionality of legislation
in advance of its immediate adverse effect in the context of a concrete
case involves too remote and abstract an inquiry for the proper exercise of
the judicial function."  Longshoremen v. Boyd, 347 U. S. 222, 224 (1954).

D
    We conclude with a word about the propriety of resolving the facial
constitutionality of MDRV 6(b) without first addressing its application to
a particular set of facts.  In some First Amendment contexts, we have
permitted litigants injured by a particular application of a statute to
assert a facial overbreadth challenge, one seeking invalidation of the
statute because its application in other situations would be
unconstitutional.  See Broadrick v. Oklahoma, 413 U. S. 601 (1973).  We
have some doubt that respondents' complaint should be construed to assert a
facial challenge to MDRV 6(b).  Beyond question, the gravamen of the
complaint is petitioners' application of MDRV 6(b) to delete party
endorsements from candidate statements in voter pamphlets.  While the
complaint seeks a declaration of MDRV 6(b)'s unconstitutionality, the only
injunctive relief it requests relates to the editing of candidate
statements.  References to other applications of MDRV 6(b) are at best
conclusory.
    But even if one may read the complaint to assert a facial challenge,
the better course might have been to address in the first instance the
constitutionality of MDRV 6(b) as applied in the context of voter
pamphlets.  "It is not the usual judicial practice, . . . nor do we
consider it generally desirable, to proceed to an overbreadth issue
unnecessarily -- that is, before it is determined that the statute would be
valid as applied.  Such a course would convert use of the overbreadth
doctrine from a necessary means of vindicating the plaintiff's right not to
be bound by a statute that is unconstitutional into a means of mounting
gratuitous wholesale attacks upon state and federal laws."  Board of
Trustees, State Univ. of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989); see
also Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985).  If
the as-applied challenge had been resolved first in this case, the problems
of justiciability that determine our disposition might well have concluded
the litigation at an earlier stage.

III
    The free speech issues argued in the briefs filed here have fundamental
and far-reaching import.  For that very reason, we cannot decide the case
based upon the amorphous and illdefined factual record presented to us.
Rules of justiciability serve to make the judicial process a principled
one.  Were we to depart from those rules, our disposition of the case would
lack the clarity and force which ought to inform the exercise of judicial
authority.
    The judgment is vacated and the case remanded with instructions to
dismiss respondents' third cause of action without prejudice.

It is so ordered.


 
 
 
 
 


------------------------------------------------------------------------------




Subject: 90-769 -- CONCUR, RENNE v. GEARY

 


    SUPREME COURT OF THE UNITED STATES


No. 90-769



LOUISE RENNE, SAN FRANCISCO CITY ATTORNEY, et al., PETITIONERS v. BOB GEARY
et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 17, 1991]



    Justice Stevens, concurring.

    The dissenting opinions in this case illustrate why the Court should
decline review of the merits of the case in its present posture.  Justice
Marshall concludes that Article II, MDRV 6(b) of the California
Constitution is invalid on its face because it is overbroad.  Justice
White, on the other hand, concludes that respondents' complaint may not be
construed as including a facial overbreadth challenge, and that MDRV 6(b)
is valid insofar as it is applied to petitioners' policy of refusing to
include endorsements in candidates' campaign mailings.
    Given the very real possibility that the outcome of this litigation
depends entirely on whether the complaint should be construed as making a
facial challenge or an as-applied challenge -- for it is apparent that
Justice White and Justice Marshall may both be interpreting the merits of
their respective First Amendment questions correctly -- and given the
difficulty of determining whether respondents' complaint against
petitioners' policy of deleting party endorsements from candidates'
statements may fairly be construed as including a facial overbreadth
challenge, the Court is surely wise in refusing to address the merits on
the present record.
    Two other prudential concerns weigh against deciding the merits of this
case.  First, I am not sure that respondents' challenge to petitioners'
policy of deleting party endorsements is ripe for review.  If such a
challenge had been brought by a political party or a party central
committee, and if the complaint had alleged that these organizations wanted
to endorse, support, or oppose a candidate for nonpartisan office but were
inhibited from doing so because of the constitutional provision, the case
would unquestionably be ripe.  Cf. Eu v. San Francisco County Democratic
Central Committee, 489 U. S. 214 (1989).  Because I do not believe an
individual member of a party or committee may sue on behalf of such an
organization, see Bender v. Williamsport Area School District, 475 U. S.
534, 544 (1986), however, no such plaintiff presenting a ripe controversy
is before us.  Alternatively, if this action had been brought by a
candidate who had been endorsed by a political party and who sought to
include that endorsement in his or her candidate's statement, we would also
be confronted with a ripe controversy.
    Unlike such scenarios, however, the respondents in this case are
voters.  They claim, based on petitioners' representations, that MDRV 6(b)
of the State Constitution forms the basis for petitioners' policy of
deleting party endorsements from candidates' mailed statements.  But there
are at least two hurdles that these respondents must overcome before their
claim would be ripe for judicial review.  First, they must prove that
political parties would endorse certain candidates if MDRV 6(b) were
repealed or invalidated.  See Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 756, and n. 14 (1976) (allowing
listeners of potential speech to bring an anticipatory challenge where the
parties stipulate that "a speaker exists").  Arguably, respondents have met
this hurdle by offering several affidavits of members of party central
committees stating that the committees plan to endorse candidates for
nonpartisan office and to seek to have those endorsements publicized.  See,
e. g., App. 15.  Second, respondents must prove that specific candidates
for nonpartisan office would seek to mention the party endorsements in
their statements if petitioners' policy of deleting such endorsements were
declared invalid (moreover, to prove injury to their interest as informed
voters, respondents would perhaps also have to allege that they would not
otherwise know about the endorsements if the endorsements are not included
in mailed candidates' statements).  This latter hurdle has not, in my
opinion, been met by respondents in such a way as to ensure that we are
confronted by a definite and ripe controversy.
    Moreover, I am troubled by the redressability issues inherent in this
case.  Respondents' complaint has challenged MDRV 6(b) of the State
Constitution, but it has not challenged the validity of MDRV 10012 of the
California Election Code.  That section plainly prohibits the inclusion of
the party affiliation of candidates in nonpartisan elections, and
unquestionably would provide an adequate basis for petitioners' challenged
policy even if the constitutional prohibition against endorsements were
invalidated.  Even if we were to strike down MDRV 6(b) as overbroad, then,
it is unclear whether respondents' alleged injury would be redressed.
    These three unsettled issues -- involving whether a facial overbreadth
challenge may be construed to have been made, whether respondents'
challenge is ripe, and whether their injury is redressable -- coalesce to
convince me that review of the merits of respondents' challenge is best
left for another day and another complaint.  No substantial hardship would
accrue from a dismissal of respondents' action without prejudice, and the
courts would benefit from a more precise articulation of a current and
definite controversy.  I therefore join the Court's opinion and judgment
ordering the lower courts to dismiss the action without prejudice.

------------------------------------------------------------------------------




Subject: 90-769 -- DISSENT, RENNE v. GEARY

 


    SUPREME COURT OF THE UNITED STATES


No. 90-769



LOUISE RENNE, SAN FRANCISCO CITY ATTORNEY, et al., PETITIONERS v. BOB GEARY
et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 17, 1991]



    Justice White, dissenting.

    The majority's concerns about the justiciability of this case, even
though ultimately misplaced, are understandable, in light of the failure by
the courts below to analyze the precise nature of the constitutional
challenge that is presented here.  Those concerns, however, should not
prevent us from independently examining the record and deciding the issues
that are properly presented.  In doing so, I conclude that the only
constitutional challenge that is properly before us is to the action by the
San Francisco Registrar of Voters in deleting references in official voter
pamphlets to political party endorsements, a challenge that is fully
justiciable.  Because the Registrar's action does not violate the First
Amendment, I would reverse the judgment of the Court of Appeals.  I
therefore dissent from the majority's disposition of this case.

I
    The courts below erred in treating respondents' challenge in this case
as a facial challenge to the constitutionality of Article II, MDRV 6(b) of
the California Constitution.  Respondents' complaint reveals that they
challenged only the application of MDRV 6(b) by San Francisco's Registrar
of Voters in refusing to print in voter pamphlets references to
endorsements by political parties. {1}
    After listing the defendants, the complaint sets forth the background
for its three causes of action:


"In connection with each municipal election, the City and County mails a
voters pamphlet to all registered voters.  Said pamphlet contains ballot
arguments for and against City and County measures, and statements of
qualifications of candidates for City and County offices.  Defendant
PATTERSON [the Registrar of Voters] is responsible for preparing and
publishing said voters pamphlet."  App. 3, MDRV 10.


The first cause of action then challenges the Registrar's deletion of
portions of proposed ballot arguments submitted for inclusion in the voter
pamphlets.  2 Record, Complaint 14 11-20.  The second cause of action
challenges the Registrar's charge of a fee for ballot arguments.  Id., 14
21-30.    The third cause of action is the one that is at issue in this
case.  That cause of action, like the two before it, concerns actions by
the Registrar with regard to the voter pamphlets.  Specifically,
respondents alleged:


"In the past, defendants PATTERSON and CITY AND COUNTY OF SAN FRANCISCO
have deleted all references in candidate's statements for City and County
offices to endorsements by political party central committees or officers
or members of such committees.  Unless restrained from doing so by order of
this court, defendants threaten to continue to delete or exclude all
references in candidate's statements to endorsement of candidates by
political party central committees, or officers or members of such central
committees."  App. 5, MDRV 38.


Respondents also stated that they "desire to read endorsements of
candidates for city and county office as part of candidate's statements
printed in the San Francisco voter's pamphlet."  MDRV 37.  Finally, the
only injunctive relief sought based on the third cause of action relates to
the deletion of endorsements from the voter pamphlets.  Id., at 6, MDRV 6.
    In entering summary judgment in favor of respondents on the third cause
of action, the District Court described respondents' claim as follows:
"Plaintiffs claim -- and defendants admit -- that defendants refuse to
permit political party and political party central committee endorsements
of candidates for such offices to be printed in the San Francisco voter's
pamphlet on account of said state constitutional provision."  708 F. Supp.
278, 279 (ND Cal. 1988).  Similarly, both the original Ninth Circuit panel
and the en banc panel stated:


"The basis of [respondents'] complaint as it relates to this appeal was the
refusal of [petitioners], the City and County of San Francisco and the San
Francisco Registrar of Voters, to permit official political party and party
central committee endorsements of candidates for nonpartisan office to be
printed in the San Francisco Voter Pamphlet in connection with elections
scheduled for June 2 and November 3, 1987.  [Petitioners] based their
refusal to print party endorsements on the language of article II, MDRV
6(b)."  880 F. 2d 1062, 1063 (CA9 1989); 911 F. 2d 280, 282 (CA9 1990).


    As the above discussion reveals, and as the majority recognizes, see
ante, at 10-11, it is far from clear that a facial challenge to the
constitutionality of MDRV 6(b) was presented in this case.  Both the
District Court and the en banc Court of Appeals nevertheless invalidated
MDRV 6(b) on its face, without analyzing the nature of respondents' claim.
In doing so, they violated two important rules of judicial restraint
applicable to the resolution of constitutional issues -- " `one, never to
anticipate a question of constitutional law in advance of the necessity of
deciding it; the other never to formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be
applied.' "  United States v. Raines, 362 U. S. 17, 21 (1960), quoting
Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of
Emigration, 113 U. S. 33, 39 (1885).  See also 911 F. 2d, at 304-305
(Rymer, J., dissenting) (arguing that MDRV 6(b) should not be invalidated
on this record).

II
    I have no doubt that the narrow issue presented in this case is
justiciable.  As the majority recognizes, ante, at 5-6, respondents in
their capacity as registered voters are alleging that MDRV 6(b), as applied
by the Registrar to the voter pamphlets, interferes with their right to
receive information concerning party endorsements.  Such a claim finds
support in our decisions, which have long held that the First Amendment
protects the right to receive information and ideas, and that this right is
sufficient to confer standing to challenge restrictions on speech.  See, e.
g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc.,
425 U. S. 748, 756-757 (1976); Kleindienst v. Mandel, 408 U. S. 753, 762
(1972); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969);
Stanley v. Georgia, 394 U. S. 557, 564 (1969).
    The majority nevertheless speculates that there is no standing here
because a provision in the California Elections Code "might be construed to
prevent candidates from mentioning party endorsements in voter pamphlets,
even in the absence of MDRV 6(b)."  Ante, at 6.  That makes no sense.  A
constitutional challenge to a law is not barred merely because other laws
might also mandate the allegedly unconstitutional action.  If so, it would
mean that the States or the Federal Government could insulate
unconstitutional laws from attack simply by making them redundant.
    The majority's confusion on this issue is illustrated by its reliance
on ASARCO Inc. v. Kadish, 490 U. S. 605, 615-616 (1989).  There, the
plaintiffs challenged the validity of a state statute governing mineral
leases, basing their standing on the claim that the statute deprived school
trust funds of millions of dollars and thereby resulted in higher taxes.
Id., at 614.  Four Members of this Court noted that even if the statute
were struck down, it was far from clear that the plaintiffs would enjoy any
tax relief: "If respondents prevailed and increased revenues from state
leases were available, maybe taxes would be reduced, or maybe the State
would reduce support from other sources so that the money available for
schools would be unchanged."  Ibid.
    The difference between ASARCO and the present case is obvious.  In
ASARCO, the State could, by other actions, legally preclude the relief
sought by the plaintiffs.  By contrast, in this case if petitioners'
refusal to allow references to party endorsements in voter pamphlets is
unconstitutional when based on MDRV 6(b), it probably is also
unconstitutional if based on some other state law, such as California's
Elections Code.  The injury alleged by respondents, therefore, "is likely
to be redressed by a favorable decision."  Simon v. Eastern Ky. Welfare
Rights Org., 426 U. S. 26, 38 (1976).
    The majority's concerns about the ripeness of respondents' challenge,
see ante, at 7-10, also are not sufficient to preclude our review.
Although I agree with the majority that the possible applications of MDRV
6(b) to speech by political parties and their members is not properly
before us, here respondents have alleged, and petitioners have admitted,
that San Francisco's Registrar of Voters has deleted references to
political party endorsements from candidate statements printed in official
voter pamphlets, and that he threatens to continue to do so in the future.
See App. 5, MDRV 38; id., at 9, MDRV XIV.  Indeed, the majority admits that
the record contains "evidence of a credible threat that MDRV 6(b) will be
enforced . . . against candidates in the context of voter pamphlets."
Ante, at 9.  The Registrar's past conduct makes his threat "sufficiently
real and immediate to show an existing controversy."  O'Shea v. Littleton,
414 U. S. 488, 496 (1974).  See, e. g., Blum v. Yaretsky, 457 U. S. 991,
1000-1001 (1982) (allowing nursing home residents to sue to prevent
threatened transfers); Steffel v. Thompson, 415 U. S. 452, 459 (1974)
(allowing action for declaratory relief based on threats of enforcement of
antihandbilling statute).  It is well settled that " `[o]ne does not have
to await the consummation of threatened injury to obtain preventive
relief.' "  Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979), quoting
Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923).  This is
particularly true in the election context, where we often have allowed
pre-enforcement challenges to restrictions on speech.  See, e. g., Eu v.
San Francisco County Democratic Central Committee, 489 U. S. 214 (1989);
Tashjian v. Republican Party of Connecticut, 479 U. S. 208 (1986); Buckley
v. Valeo, 424 U. S. 1 (1976).
    I therefore dissent from the judgment ordering dismissal for want of
justiciability.

III
    Although the Court does not discuss the merits, I shall briefly outline
my view that the state constitutional provision at issue in this case is
constitutional as applied to the exclusion of party endorsements from the
official voter pamphlets.  California has decided that its "[j]udicial,
school, county, and city offices shall be nonpartisan."  Cal. Const., Art.
II, MDRV 6(a).  I am confident that this provision is valid at least in so
far as it authorizes the State not to identify on the official ballot
candidates for nonpartisan offices as the candidates of political parties.
The interests proffered as supporting California's nonpartisan provision --
promotion of the impartial administration of government, prevention of
corruption, and the avoidance of the appearance of bias -- are interests
that we have already held are sufficiently important to justify
restrictions on partisan political activities.  See CSC v. Letter Carriers,
413 U. S. 548, 565 (1973).  These interests are also similar to the
interests supporting limitations on ballot access and voting eligibility
that have been upheld by this Court.  See American Party of Texas v. White,
415 U. S. 767, 786 (1974); Storer v. Brown, 415 U. S. 724, 736 (1974);
Rosario v. Rockefeller, 410 U. S. 752, 761 (1973); Jenness v. Fortson, 403
U. S. 431, 442 (1971).
    If the State may exclude party designations from the ballot, it surely
may exclude party endorsements from candidate statements contained in the
official voter pamphlet prepared by the government and distributed to
prospective voters.  It is settled that "the First Amendment does not
guarantee access to property simply because it is owned or controlled by
the government."  United States Postal Service v. Council of Greenburgh
Civic Assns., 453 U. S. 114, 129 (1981).  The voter information pamphlet
obviously is not a traditional public forum, and its use may be limited to
its intended purpose, which is to inform voters about nonpartisan
elections.  See Perry Education Assn. v. Perry Local Educators' Assn., 460
U. S. 37, 46, n. 7 (1983).  Refusing to permit references in candidate
statements to party endorsements is therefore plainly constitutional.
    Accordingly, I would reverse the judgment of the Court of Appeals.
------------------------------------------------------------------------------
1
    Pursuant to both local and state law, the San Francisco Registrar of
Voters prepares, publishes, and distributes to voters an information
pamphlet for nonpartisan municipal elections.  The pamphlet contains
personal statements by candidates for nonpartisan offices, the text of each
ballot measure submitted to the voters, digests of the measures, and
arguments for and against the measures.  See Geary v. Renne, 914 F. 2d
1249, 1251 (CA9 1990).  The pamphlet is subsidized by the city, "with
mailing and distribution costs borne by the city and the authors of ballot
arguments charged a minimal sum to defray printing costs."  Patterson v.
Board of Supervisors of City and County of San Francisco, 202 Cal. App. 3d
22, 30, 248 Cal. Rptr. 253, 259 (1988).





Subject: 90-769 -- DISSENT, RENNE v. GEARY

 


    SUPREME COURT OF THE UNITED STATES


No. 90-769



LOUISE RENNE, SAN FRANCISCO CITY ATTORNEY, et al., PETITIONERS v. BOB GEARY
et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[June 17, 1991]



    Justice Marshall, with whom Justice Blackmun joins, dissenting.
    Article II, MDRV 6(b) of the California Constitution provides that
"[n]o political party or party central committee may endorse, support, or
oppose a candidate for nonpartisan office."  In a form of action extremely
familiar to the federal courts, see, e. g., Buckley v. Valeo, 424 U. S. 1
(1976); Eu v. San Francisco County Democratic Central Committee, 489 U. S.
214 (1989); Tashjian v. Republican Party of Connecticut, 479 U. S. 208
(1986), respondents brought a pre-enforcement challenge to MDRV 6(b),
seeking a declaration that MDRV 6(b) violates the First Amendment and an
injunction against its application to candidate statements published in
official "voter pamphlets."  We granted certiorari in this case, 498 U. S.
--- (1991), to review the decision of the Ninth Circuit, sitting en banc,
that MDRV 6(b) violates the First Amendment.
    The majority vacates the judgment below and remands the case with
instructions to dismiss.  It does so not because it disagrees with the
merits of respondents' constitutional claim; indeed, the majority never
reaches the merits.  Rather, the majority finds a threshold defect in the
"justiciability" of this case that did not occur to any of the courts below
or to any party in more than three years of prior proceedings.  Federal
courts, of course, are free to find, on their own motion, defects in
jurisdiction at any stage in a suit.  But the majority's conclusion that
respondents have failed to demonstrate a "live controversy ripe for
resolution by the federal courts," ante, at 2, is simply not supported by
the record of this case or by the teachings of our precedents.  Because I
cannot accept either the views expressed in, or the result reached by, the
majority's opinion, and because I would affirm the decision of the Ninth
Circuit on the merits, I dissent.

I
    I consider first the question of justiciability.  Respondents are 10
registered California voters, including a chairman and certain individual
members of the local Democratic and Republican Party central committees.
{1}  Respondents' complaint alleges that petitioner municipal officials
relied upon MDRV 6(b) to adopt a policy of deleting "all references . . .
to [party] endorsement[s]" from candidate statements submitted for
inclusion in official "voter pamphlets" and that petitioners have announced
their intention to make such redac tions in future elections.  App. 5, MDRV
38.  The existence of the redaction policy is expressly admitted by
petitioners in their answer.  See id., at 9, MDRV XIV.  Respondents
maintain that this policy frustrates the "desire [of respondent committee
members] . . . to publicize [party] endorsements" and the "desire [of all
respondents] to read endorsements" in the voter pamphlets.  Id., at 4-5, 14
36-37.  The complaint prays for a declaration that MDRV 6(b) violates the
First Amendment and for an injunction against petitioners' continued
enforcement of MDRV 6(b) by means of the redaction policy.  Id., at 6, 14
3, 6.
    I would have thought it quite obvious that these allegations
demonstrate a justiciable controversy.  In cases in precisely the same
posture as this one, we have repeatedly entertained pre-enforcement
challenges to laws restricting election-related speech.  See, e. g.,
Buckley v. Valeo, supra, at 12 (1976); Eu v. San Francisco Democratic
Central Committee, supra; see also Tashjian v. Republican Party of
Connecticut, supra.  Indeed, standing and ripeness arguments nearly
identical to those canvassed by the majority today were expressly
considered and rejected by the Ninth Circuit in Eu, see San Francisco
County Democratic Central Committee v. Eu, 826 F. 2d 814, 821-824 (1987),
which no doubt explains why the lower courts and the parties did not even
bother to return to these issues in this case.
    Essentially ignoring the wealth of relevant case law, the majority
proceeds as if the justiciability questions presented by this case --
questions of standing and ripeness -- were novel and unresolved.  On the
issue of standing, the majority purports to find "serious questions"
concerning respondents' entitlement to challenge MDRV 6(b).  Ante, at 5.
Since mere "questions" about standing cannot sustain the dismissal of a
suit, one wonders why the majority offers dicta of this kind.  As it turns
out, the majority uses this opportunity to espouse a novel basis for
denying a party standing; the profferred theory is both illogical and
unsupported by any precedent.  As for ripeness, which the majority finds to
be the dispositive jurisdictional defect, today's decision erroneously
concludes that there is no "live dispute involving the actual or threatened
application of MDRV 6(b) to bar particular speech."  Ante, at 7.  I am
persuaded by neither the majority's "doubt" whether respondents have
standing, ante, at 6, nor the majority's certainty that this case is
unripe.

A
    In order to demonstrate standing, "[a] plaintiff must allege personal
injury fairly traceable to the defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief."  Allen v. Wright, 468 U.
S. 737, 751 (1984).  In my view, "careful . . . examination of [the]
complain[t]," id., at 752, makes it clear that these requirements are met
in this case.  All of the individual respondents are registered voters in
California.  See App. 2, MDRV 1.  Moreover, all allege that petitioners'
redaction policy has injured them in that capacity by restricting
election-related speech that respondents wish to consume.  See id., at 5,
14 37-38.  As the majority acknowledges, see ante, at 5-6, our cases
recognize that "listeners" suffer a cognizable First Amendment injury when
the State restricts speech for which they were the intended audience.  See,
e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc.,
425 U. S. 748, 756-757 (1976); see also San Francisco County Democratic
Central Committee v. Eu, supra, (applying "listener" standing in
election-law setting), aff'd, 489 U. S. 214 (1989).  Nor can there be any
doubt that the injury that respondents allege as listeners of election
speech is "fairly traceable" to petitioners' redaction policy.  Finally,
this injury would, in my view, be redressed by the relief requested by
respondents, for an injunction against the redaction policy would prevent
petitioners from continuing to block respondents' access to committee
endorsements in voter pamphlets.
    The majority's "doubt" about respondents' entitlement to proceed on a
listener-standing theory  {2} relates wholly to redressability.  The
majority notes that a provision in the California Election Code bars
inclusion of a candidate's party affiliation in the statement submitted for
publication in a voter pamphlet.  See Cal. Elec. Code Ann. MDRV 10012
(West. 1977 and Supp. 1991).  The majority speculates that, if respondents
succeed in invalidating MDRV 6(b), petitioners might henceforth rely on
MDRV 10012 as a basis for continuing their policy of deleting endorsements.
See ante, at 6.  Articulating a novel theory of standing, the majority
reasons that the registrar's possible reliance upon MDRV 10012 to implement
the same policy currently justified by reference to MDRV 6(b) would defeat
the redressability of respondents' listener injury.
    In my view, this theory is not only foreign to our case law  {3} but is
also clearly wrong.  If the existence of overlapping laws could defeat
redressability, legislatures would simply pass "backup" laws for all
potentially unconstitutional measures.  Thereafter, whenever an aggrieved
party brought suit challenging the State's infringement of his
constitutional rights under color of one law, the State could advert to the
existence of the previously unrelied-upon backup law as an alternative
basis for continuing its unconstitutional policy, thereby defeating the
aggrieved party's standing.
    I cannot believe that Article III contemplates such an absurd result.
Obviously, if respondents succeed on the merits of their constitutional
challenge to MDRV 6(b), the immediate effect will be to permit candidates
to include endorsements in the voter pamphlet.  This is so because no other
law (and no other interpretation of a law that petitioners have formally
announced) purports to bar inclusion of such endorsements.  Perhaps, as the
majority speculates, see ante, at 6, petitioners will subsequently attempt
to reinstate their redaction policy under some legal authority other than
MDRV 6(b).  But whether or not they ultimately do so has no consequence
here.  Just as a plaintiff cannot satisfy the redressability component of
standing by showing that there is only a possibility that a defendant will
respond to a court judgment by ameliorating the plaintiff's injury, see
Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 43 (1976), so a
defendant cannot defeat the plaintiff's standing to seek a favorable
judgment simply by alleging a possibility that the defendant may
subsequently act to undermine that judgment's ameliorating effect.

B
    Under our precedents, the question whether a pre-enforcement challenge
to a law is ripe "is decided on a case-by-case basis, by considering [1]
the likelihood that the complainant will disobey the law, [2] the certainty
that such disobedience will take a particular form, [3] any present injury
occasioned by the threat of [enforcement], and [4] the likelihood that
[enforcement efforts] will actually ensue."  Regional Rail Reorganization
Act Cases, 419 U. S. 102, 143, n. 29 (1974).  Like the pre-enforcement
challenges in Buckley v. Valeo, 424 U. S. 1 (1976); Eu v. San Francisco
Democratic Central Committee, 489 U. S. 214 (1989); and Tashjian v.
Republican Party of Connecticut, 479 U. S. 208 (1986), this case easily
satisfies these requirements.
    The record clearly demonstrates the likelihood of both future
disobedience of MDRV 6(b) and future enforcement of that provision by way
of petitioners' redaction policy.  As even the majority acknowledges, see
ante, at 8, some respondent central committee members have expressed an
intention to continue endorsement of candidates for nonpartisan offices.
Indeed, the chairman of one committee, in addition to identifying the
specific candidates that the committee has endorsed in past elections,
states in an affidavit that it is the com mittee's "plan and intention . .
. to endorse candidates for nonpartisan offices in as many future elections
as possible."  App. 15.  Likewise, as the majority acknowledges, see ante,
at 9, petitioners expressly admit in their answer to the complaint that
they intend to enforce MDRV 6(b) by deleting all ref erences to party
endorsements from candidate statements submitted for inclusion in official
voter pamphlets.  See App. 9, MDRV XIV.  Of course, petitioners will have
occasion to enforce MDRV 6(b) in this manner only if candidates seek to
include such endorsements in their statements.  Respondents allege and
petitioners concede, however, that candidates have sought to advert to such
endorsements in their statements in the past and that petitioners have
always deleted them from the voter pamphlets.  Id., at 5, MDRV 38; id., at
9, MDRV XIV.  When combined with the clearly expressed intentions of the
parties, these allegations of "past wrongs" furnish sufficient evidence of
"a real and immediate threat of repeated injury."  O'Shea v. Littleton, 414
U. S. 488, 496 (1974).
    It is also clear that respondents have alleged sufficient "present
injury occasioned by the threat of [future enforcement]."  Regional Rail
Reorganization Act Cases, supra, at 143, n. 29.  Obviously, the reason that
parties bring preenforcement challenges to laws that restrict
election-related speech is to avoid the risk that a court will be unable to
dispose of a postenforcement challenge quickly enough for the challenging
parties to participate in a scheduled election.  Buckley v. Valeo, supra.
Our mootness jurisprudence responds to this dilemma by applying the
capable-of-repetitionyet-evading-review doctrine to preserve the
justiciability of an election-law challenge even after the election at
issue has taken place.  See, e. g., Anderson v. Celebrezze, 460 U. S. 780,
784, n. 3 (1983); First National Bank of Boston v. Bel lotti, 435 U. S.
765, 774-775 (1978); Storer v. Brown, 415 U. S. 724, 737, n. 8 (1974);
Moore v. Ogilvie, 394 U. S. 814, 816 (1969).  But insofar as the purpose of
entertaining a case in that mootness posture is not to remedy past wrongs
but rather to "simplif[y] future challenges [and] thus increas[e] the
likelihood that timely filed cases can be adjudicated before an election is
held," Storer v. Brown, supra, at 737, n. 8 (emphasis added), it would be
quite anomalous if ripeness doctrine were less solicitous of the interests
of a party who brings a pre-enforcement challenge.
    For this reason, it is surely irrelevant that the record does not
demonstrate an "imminent application of MDRV 6(b)."  Ante, at 8.  So long
as the plaintiff credibly alleges that he plans to disobey an election law
and that government officials plan to enforce it against him, he should not
be forced to defer initiation of suit until the election is so "imminent"
that it may come and go before his challenge is adjudicated.  See Regional
Rail Reorganization Act Cases, supra, at 143 (" `One does not have to await
the consummation of threatened injury to obtain preventive relief,' "
quoting Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923)).  Indeed,
in Buckley v. Valeo, supra, we held a pre-enforcement challenge to be
justiciable even though the case was filed in the District Court nearly two
years before the next scheduled national election.  See id., at 11-12.
Similarly, nothing in Eu v. San Francisco Democratic Central Committee,
supra, and Tashjian v. Republican Party of Connecticut, supra, suggests
that elections were "imminent" when those cases were filed.
    Most of the majority's concerns about the ripeness of this dispute
arise from the majority's uncertainty as to the "particular form" of future
violations of MDRV 6(b).  See Regional Rail Reorganization Act Cases,
supra, at 143, n. 29.  The majority notes, for example, that "[r]espondents
do not allege an intention to endorse any particular candidate."  Ante, at
8.  Similarly, the majority objects that "[w]e do not know the nature of
the endorsement [that the parties will next make], how it would be
publicized, or the precise language petitioners might delete from the voter
pamphlet."  Ante, at 9.
    In my view, these uncertainties do not detract in the slightest from
the ripeness of this case.  The form of future disobedience can only matter
in ripeness analysis to the extent that it bears on the merits of a
plaintiff's pre-enforcement challenge.  The majority never bothers to
explain how the identity of the endorsed candidates, the "nature" of the
endorsement, the mode of publicity (outside of candidate statements
submitted for inclusion in voter pamphlets), or the precise language that
petitioners might delete from the pamphlets affects the merits of
respondents' challenge.  Indeed, it is quite apparent that none of these
questions is relevant.  In Eu v. San Francisco Democratic Central
Committee, 489 U. S. 214 (1989), we struck down a similar California
provision that barred party endorsements in primary elections for partisan
offices.  See id., at 222-229.  Nothing in our analysis turned on the
identity of the candidates to be endorsed, the nature or precise language
of the endorsements, or the mode of publicizing the endorsements.
Similarly, here we can dispose of respondents' challenge to MDRV 6(b)
knowing simply that party central committees will continue to make
endorsements of candidates for nonpartisan offices and that petitioners
will continue to redact those endorsements from the voter pamphlets. {4}

II
    Because I conclude that the controversy before us is jus ticiable, I
would reach the merits of respondents' challenge.  In my view, it is clear
that MDRV 6(b) violates the First Amendment.

A
    At the outset, it is necessary to be more precise about the nature of
respondents' challenge.  In effect, respondents' complaint states two
possible First Amendment theories.  The first is that MDRV 6(b), as that
provision has been applied to delete endorsements from voter pamphlets,
violates the First Amendment.  See App. 4-5, 14 36-39(a).  The second is
that MDRV 6(b) on its face violates the First Amendment because it
"purports to outlaw actions by county central committees . . . to endorse,
support or oppose candidates for city or county offices."  Id., at 4, MDRV
35.  This second theory can be understood as an overbreadth challenge: that
is, a claim that regardless of whether MDRV 6(b) violates the First
Amendment in its peripheral effect of excluding references to party
endorsements from candidates' statements, MDRV 6(b) is unconstitutional in
its primary effect of barring parties and party committees from making
endorsements.  See Secretary of State of Md. v. Joseph H. Munson Co., 467
U. S. 947, 965-966 (1984) (party who suffers unwanted but constitutionally
permissible effect of a law may nonetheless succeed in voiding that law by
showing that "there is no core of easily identifiable and constitutionally
proscribable conduct that the [provision] prohibits"). {5}
    As the majority notes, it is this Court's "usual . . . practice . . .
[not] to proceed to an overbreadth issue . . . before it is determined that
the statute would be valid as applied."  Board of Trustees, State Univ. of
N. Y. v. Fox, 492 U. S. 469, 484-485 (1989).  This is so because

"the overbreadth question is ordinarily more difficult to resolve than the
as-applied, since it requires determination whether the statute's overreach
is substantial . . . `judged in relation to the statute's plainly
legitimate sweep,' . . . and therefore requires consideration of many more
applications than those immediately before the court."  Id., at 485
(emphasis in original), quoting Broadrick v. Oklahoma, 413 U. S. 601, 615
(1973).


Nonetheless, the rule that a court should consider as-applied challenges
before overbreadth challenges is not absolute.  See, e. g., Board of
Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569,
573-574 (1987) (considering overbreadth challenge first); Houston v. Hill,
482 U. S. 451, 458-467 (1987) (same).  Rather, the rule represents one
prudential consideration among many in determining the order in which to
evaluate particular constitutional challenges.     In my opinion, competing
prudential factors clearly support considering respondents' overbreadth
challenge first in this case.  Unlike the situation in Fox, the as-applied
challenge here is actually more difficult to resolve than is the
overbreadth challenge.  Insofar as they attack petitioners' redaction
policy as unconstitutional, respondents must be understood to argue that
they have a right to receive particular messages by means of official voter
pamphlets or a right to communicate their own messages by that means.
Either way, this argument would require us to determine the "public forum"
status of the voter pamphlets, cf. Perry Education Assn. v. Perry Local
Educators' Assn., 460 U. S. 37, 48 (1983), an issue on which the law is
unsettled, see generally L. Tribe, American Constitutional Law MDRV 12-24,
p. 987 (2d ed. 1988) (noting "blurriness . . . of the categories within the
public forum classification").  By contrast, respondents' overbreadth
challenge is easily assessed.  In the first place, the application of MDRV
6(b) to party speech that "endorse[s], support[s], or oppose[s] a[ny]
candidate for nonpartisan office" clearly is "substantial" when compared
with MDRV 6(b)'s only alleged "legitimate" application, namely, the
redaction of voter pamphlets.  Moreover, the constitutional doctrine
relevant to MDRV 6(b)'s restriction of party speech is well settled.  See
Eu v. San Francisco Democratic Central Committee, 489 U. S. 214 (1989).
Rather than undertaking to determine what sort of "public forum" voter
pamphlets might constitute -- a finding that could have broad
ramifications, see, e. g., Patterson v. Board of Supervisors of City and
County of Los Angeles, 202 Cal. App. 3d 22, 248 Cal. Rptr. 253 (1988) (suit
challenging constitutionality of 15 3795 and 5025 of California Election
Code, authorizing deletions from arguments about ballot propositions in the
voter pamphlet) -- a court should, if possible, resolve this constitutional
challenge by well-settled doctrine.  See, e. g., Webster v. Reproductive
Health Services, 492 U. S. 490, 525-526 (1989) (O'Connor, J., concurring in
part and concurring in judgment).
    In addition, both the District Court and the Court of Appeals disposed
of respondents' challenge on overbreadth grounds, and that is the only
theory briefed by the parties in this Court.  Because the as-applied
component of respondents' challenge has not been fully aired in these
proceedings, resolving the case on that basis presents a significant risk
of error.  For these reasons, I turn to respondents' overbreadth challenge,
which I find to be dispositive of this case. {6}

B
    Conceived of as an overbreadth challenge, respondents' First Amendment
attack upon MDRV 6(b) closely resembles the issue presented in Eu v. San
Francisco Democratic Central Committee, supra.  As I have noted, Eu struck
down on First Amendment grounds a California law that prohibited the party
central committees from " `endors[ing], support[ing], or oppos[ing]' " any
candidate in primary elections for partisan offices.  Id., at 217.  We
concluded in Eu that this "ban directly affect[ed] speech which `is at the
core of our electoral process and of the First Amendment freedoms.' "  Id.,
at 222-223, quoting William v. Rhodes, 393 U. S. 23, 32 (1968).  We also
determined that this prohibition was unsupported by any legitimate
compelling state interest.  The State defended the endorsement ban on the
ground that it was necessary to prevent voter "confusion and undue [party]
influence."  See 489 U. S., at 228.  Properly understood, this claim
amounted to no more than the proposition that the State could protect
voters from being exposed to information on which they might rationally
rely, a " `highly paternalistic' " function to which the State could not
legitimately lay claim.  Id., at 223, quoting Virginia State Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770;
see 489 U. S., at 228-229.
    In my view, this case is directly controlled by Eu.  As in Eu, there
can be no question here that the endorsements that MDRV 6(b) purports to
make unlawful constitute core political speech.  And, as in Eu, this
prohibition is unsupported by any legitimate compelling state interest.
Petitioners assert that MDRV 6(b) advances a compelling state interest
because it assures that "local government and judges in California are . .
. controlled by the people [rather than] by those who run political
parties."  Brief for Petitioners 7.  The only kind of "control" that MDRV
6(b) seeks to prohibit, however, is that which "those who run political
parties" are able to exert over voters through issuing party endorsements.
In effect, then, petitioners are arguing that the State has an interest in
protecting "the people" from their own susceptibility to being influenced
by political speech.  This is the very sort of paternalism that we deemed
illegitimate in Eu.
    Drawing on our decision in Austin v. Michigan Chamber of Commerce, 494
U. S. --- (1990), petitioners try to repackage the State's concern to
protect voters from themselves as an interest in avoiding "corruption" of
the electoral process.  The law that was at issue in Austin barred
corporations from making political expenditures from their corporate
treasuries in favor of, or in opposition to, political candidates.  We
upheld the constitutionality of that law, finding that a State could
legitimately prohibit "the corrosive and distorting effects of immense
aggregations of wealth that are accumulated with the help of the corporate
form and that have little or no correlation to the public's support for the
corporation's political ideas."  Id., at ---.  Petitioners argue that
California similarly should be able to prohibit political parties from
using their special place in the political process to exercise a disruptive
effect upon the election of nonpartisan office holders.
    Petitioners' reliance on Austin is unavailing.  The political activity
that MDRV 6(b) limits in this case is not the expenditure of money to
further a viewpoint but merely the announcement of that viewpoint in the
form of an endorsement.  It is difficult to imagine how a political party's
announcement of its view about a candidate could exert an influence on
voters that has "little or no correlation to the public's support for the
[party's] political ideas."  On the contrary, whatever influence a party
wields in expressing its views results directly from the trust that it has
acquired among voters.
    Thus, whereas the Austin Court worried that corporations might dominate
elections with capital they had only accumulated by dint of " `economically
motivated decisions of investors and customers,' " id., at ---, the party
endorsements in this case represent an expenditure of political capital
accumulated through past voter support.  And, whereas the special benefits
conferred by state law in Austin "enhance[d]" the corporations' "ability to
attract capital," id., at ---, the benefits California confers upon parties
-- e. g., permitting taxpayers to make voluntary contributions to parties
on their tax returns -- should have little effect on the parties'
acquisition of political capital.  In sum, the prospect that voters might
be persuaded by party endorsements is not a corruption of the democratic
political process; it is the democratic political process.
    In the final analysis, MDRV 6(b) and the arguments that petitioners
advance in support of it reflect an ambivalence about the democratic
process itself.  The possibility that judges and other elective nonpartisan
office holders will fall under the influence of political parties is
inherent in an electoral system in which voters look to others, including
parties, for information relevant to exercise of the franchise.  Of course,
it is always an option for the State to end the influence of the parties by
making these offices appointive rather than elective positions.  But the
greater power to dispense with elections altogether does not include the
lesser power to conduct elections under conditions of state-imposed voter
ignorance.  If the State chooses to tap the energy and the legitimizing
power of the democratic process, it must accord the participants in that
process -- voters, candidates, and parties -- the First Amendment rights
that attach to their roles.
    Because MDRV 6(b) clearly fails to meet this standard, and because I
believe that the lower courts properly determined that they were in a
position to reach this conclusion now, I would affirm the judgment of the
Ninth Circuit.  Consequently, I dissent.

 
 
 
 
 


------------------------------------------------------------------------------
1
    In addition, there is one organization respondent, Election Action,
which is committed to placing certain referenda matters on the ballot in
California.  As the majority notes, see ante, at 1, Election Action asserts
no stake in this litigation independent of the individual voters who
constitute its membership.

2
    Because all respondents clearly have standing as potential receivers of
protected speech, it is unnecessary to resolve whether certain respondents
also have standing, in their capacity as committee members, to contest
deletion from voter pamphlets of the committee's endorsement.  Were this
the only available basis for respondents' standing, it would be necessary
to determine whether individual committee members may challenge
infringement of the right to publicize an endorsement that is issued by the
committee as a whole.  As the majority points out, this matter is
"unsettled."  Ante, at 6.

3
    In support of its novel approach to standing, the majority cites no
cases in which an injury was deemed unredressable because the challenged
government conduct might have been -- but was not -- justified with
reference to some law other than the one upon which the government
officials relied.  Indeed, the only precedents that the majority cites,
ante, at 6, are decisions imposing the general requirement that injuries be
redressable.  Stated at that level of generality, the principle is
uncontrovertible -- but it is also of no help to the majority here.

4
    The majority cites a series of decisions to support its view that we do
not know enough about the expressive activity restricted by MDRV 6(b) to
evaluate its constitutionality.  Ante, at 8-9.  The Court's reasoning in
the cited precedents, however, only confirms the deficiencies in the
majority's analysis here.  For example, in Rescue Army v. Municipal Court
of Los Angeles, 331 U. S. 549, 576-580 (1947), the Court found the dispute
unripe for adjudication because it was unsure which criminal statutes would
be applied to the petitioner or which other code sections were incorporated
by reference in those statutes; in Socialist Labor Party v. Gilligan, 406
U. S. 583, 586 (1972), the Court found "no allegation of injury that the
party has suffered or will suffer because of the existence of the [law
challenged]" (emphasis added); and in Public Affairs Associates, Inc. v.
Rickover, 369 U. S. 111, 113 (1962), involving a public official's disputed
authorship rights in his speeches, the Court found the record "woefully
lacking" because it omitted details -- such as whether the official used
government facilities and personnel to prepare his speeches -- that bore
directly upon the legal issue.  Unlike the situation in these precedents,
the respondents in this case have clearly identified the law that will be
enforced to their detriment, the injury that will flow from that
enforcement, and the relevant facts surrounding such enforcement.

5
    The majority expresses "doubt that respondents' complaint should be
construed to assert a facial challenge to MDRV 6(b)" because the complaint
prays for an injunction only against petitioners' redaction policy and
because "[r]eferences to other applications of MDRV 6(b) [in the complaint]
are at best conclusory."  Ante, at 10.  Justice White's dissenting opinion
expresses a similar view.  Ante, at 1, 3.  But neither the majority nor
Justice White explains why a party raising an overbreadth challenge must
seek to enjoin applications of an invalid law other than the application
that is injuring him.  Moreover, to require a broader request for
injunctive relief here would be both unfair and unnecessary.  Although
respondents know which officials should be enjoined in order to halt the
redaction of voter pamphlets, respondents cannot know who will next enforce
MDRV 6(b) against party central committees that seek to endorse nonpartisan
candidates.  See, e. g., Unger v. Superior Court, 37 Cal. 3d 612, 692 P. 2d
238 (1984) (injunction sought by two registered voters against party's
announcement of opposition to justices at confirmation election); Unger v.
Superior Court, 102 Cal. App. 3d 681, 162 Cal. Rptr. 611 (1980), cert.
denied, 449 U. S. 1131 (1981), (injunction against party endorsement sought
by rival candidate who was not endorsed).  Should respondents obtain the
declaratory relief that they seek, any future attempts to enforce MDRV 6(b)
against a political party could easily be defeated by invoking that
declaratory judgment.  In sum, respondents' request for a declaratory
judgment that MDRV 6(b) is unconstitutional furnishes ample basis for
inferring that their complaint includes a facial challenge to MDRV 6(b).
    The insistence by the majority and by Justice White that a party
expressly style his claim in his complaint as a challenge based on
overbreadth is also inconsistent with the liberal "notice pleading"
philosophy that informs the Federal Rules of Civil Procedure.  See Conley
v. Gibson, 355 U. S. 41, 47-48 (1957); see generally Fitgerald v. Codex
Corp., 882 F. 2d 586, 589 (CA1 1989) ("[U]nder Fed.R.Civ.P. 8 it is not
necessary that a legal theory be pleaded in the complaint if plaintiff sets
forth `sufficient factual allegations to state a claim showing that he is
entitled to relief' under some [tenable] legal theory" (emphasis in
original)).  I am particularly perplexed by Justice White's determination
that "[t]he courts below erred in treating respondents' challenge in this
case as a facial challenge."  Ante, at 1 (emphasis added).  At every stage
of this litigation, beginning with respondents' summary judgment motion,
the parties have framed the constitutional question exclusively in terms of
MDRV 6(b)'s application to party endorsements, precisely the overbreadth
argument that Justice White declines to reach.  See Points and Authorities
in Support of Sumary Judgment in No. C-87-4724 AJZ (ND Cal.), pp. 22-26;
Memorandum of Points of Authorities in Opposition to Summary Judgment in
No. C-87-4724 AJZ (ND Cal.), pp. 20-41; Brief of Appellant in No. 88-2875
(CA9), pp. 7-18; Brief of Appellees in No. 88-2875 (CA9), pp. 5-36.  In
such circumstances, I do not understand what authority this Court would
have for reversing the decision below, sua sponte, simply because the lower
courts upheld a theory of relief not expressly relied upon in the
complaint.  See generally 5 C. Wright and A. Miller, Federal Practice and
Procedure MDRV 1219, p. 190 (2d ed. 1990) (text of Federal Rules "makes it
very plain that the theory of the pleadings mentality has no place under
federal practice").

6
    It is, of course, no impediment to proceeding on an overbreadth theory
that petitioners' redaction policy supplies the ripe controversy in this
case.  The thrust of an overbreadth challenge is that a party is entitled
"not to be bound by a [provision] that is unconstitutional."  Board of
Trustees, State Univ. of N. Y. v. Fox, 492 U. S. 469, 485 (1989).  Thus, a
pre-enforcement overbreadth challenge is ripe so long as the party can show
that state actors will foreseeably apply a facially invalid law in a way
that determines his rights.  He need not show, in addition, that state
actors are about to apply the law to third parties in the precise manner
that renders the law facially invalid.  As I have shown, respondents
demonstrate a ripe dispute by credibly alleging that petitioners will apply
MDRV 6(b) in a manner that determines respondents' right to receive
election-related speech in official voter pamphlets.
