GRISET v. FAIR POLITICAL PRACTICES COMMISSION

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Court of Appeal, Fourth District, Division 3, California.

Daniel GRISET et al., Plaintiffs and Appellants, v. FAIR POLITICAL PRACTICES COMMISSION, Defendant and Respondent.

No. G018853.

Decided: January 29, 1999

Reed & Davidson, Los Angeles, and Darryl R. Wold, Costa Mesa, for Plaintiffs and Appellants. Steven G. Churchwell, Sacramento, and Liane Randolph, San Leandro, for Defendant and Respondent.

OPINION

 This case illustrates the principle that an intervening change in the controlling rule of law is an exception to the doctrine of law of the case.  (People v. Stanley (1995) 10 Cal.4th 764, 787, 42 Cal.Rptr.2d 543, 897 P.2d 481.)   Here, the intervening law is the broad declaration of the United States Supreme Court in McIntyre v. Ohio Elections Comm'n (1995) 514 U.S. 334, 336, 115 S.Ct. 1511, 131 L.Ed.2d 426 to the effect that a statute which “prohibits the distribution of anonymous campaign literature” contravenes the First Amendment of the federal Constitution.

I

Most of the basic facts of the case have already been set forth in a prior decision of our Supreme Court, rendered before McIntyre.  (See Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, 854-855, 35 Cal.Rptr.2d 659, 884 P.2d 116.)   The plaintiffs are a former Santa Ana city council member and two campaign committees involved in the council member's 1988 re-election campaign.   During that campaign, the two committees sent five mass mailings without identifying the council member as the controlling candidate.   In March 1990, the defendant in this case, the Fair Political Practices Commission, began an administrative enforcement action against the plaintiffs for violation of Government Code section 84305, which requires that candidates for public office and individuals or groups supporting or opposing a candidate for public office, identify themselves on any mass mailings they send to prospective voters.  (See Griset, supra, 8 Cal.4th at pp. 853-855, 35 Cal.Rptr.2d 659, 884 P.2d 116.)

In October 1990, plaintiffs filed a complaint for injunctive and declaratory relief, listing three causes of action:  (1) a request for temporary, preliminary and permanent injunctive relief against the Commission's enforcement proceeding;  (2) a request for temporary, preliminary and permanent relief against the Commission's enforcing Government Code section 84305 against them or any one else in the future;  and (3) for a declaration that section 84305 contravened both the state and federal Constitutions.   On December 10, 1990, the trial court denied the plaintiffs' request for a preliminary injunction to stop the Commission's enforcement action.   Three days later, on December 13, 1990, an administrative judge issued a proposed decision to the effect that plaintiffs had violated section 84305 of the Government Code and recommended that they should be ordered to pay fines of $2,000 each for the five mass mailings.   The administrative law judge's decision was adopted by the Commission in February 1991, and became effective March 1991.

In April plaintiffs filed a first amended and supplemental complaint in their civil action, listing four causes of action:  (1) a petition for administrative mandamus under section 1094.5 of the Code of Civil Procedure directing the Commission to rescind its decision and ordering it to dismiss its proceeding with prejudice;  (2) for declaratory relief that section 84305 contravened both the state and federal constitutions;  (3) for injunctive relief, to prevent the Commission from enforcing and collecting the monetary penalties it had by then imposed on the plaintiffs;  and (4) for a temporary, preliminary and permanent injunction to prevent the Commission from enforcing section 84305 against them or any one else in the future.

In September 1991, the trial court entered an order denying the request for a petition for a writ of administrative mandamus.   On its face the order stated it was a determination on the merits of the plaintiffs' first cause of action and was final as to that action.   The plaintiffs then appealed from the determination of their first cause of action, even though there was no final judgment in the case.1

A year later, in September 1992, this court filed an opinion affirming the trial judge's order denying plaintiffs' petition for writ of mandate, in an opinion which focused on the basic issue of the constitutionality of section 84305 as applied to plaintiffs.   The opinion did not address the appealability of the order denying the petition for writ of mandamus when causes of action still remained to be litigated.

The California Supreme Court granted a petition for review, and in late November 1994 issued an opinion affirming the judgment of the Court of Appeal.  (Griset v. Fair Political Practices Com., supra, 8 Cal.4th at p. 867, 35 Cal.Rptr.2d 659, 884 P.2d 116.)   Like the intermediate appellate court, the state supreme court upheld the statute as applied to plaintiffs, reasoning that “the state's interest in a well-informed electorate ia a compelling one” and therefore sufficient to justify the imposition on plaintiffs' speech in an election campaign as candidates (or committees controlled by candidates).  (See Griset, supra, 8 Cal.4th at pp. 862-863, 35 Cal.Rptr.2d 659, 884 P.2d 116.)

At the time of the California Supreme Court's decision, McIntyre v. Ohio Elections Comm'n, supra, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 was pending in the United States Supreme Court.  (See Griset, supra, 8 Cal.4th at p. 861, 35 Cal.Rptr.2d 659, 884 P.2d 116.)   By concluding that the state's interest in providing voters with information to aid in making choices at the ballot box was compelling, the California Supreme Court was able to avoid the question it perceived to be at issue in McIntyre:  namely, whether a more “relaxed standard” would justify the statute.  (See Griset, supra, 8 Cal.4th at pp. 861-862, 35 Cal.Rptr.2d 659, 884 P.2d 116.)   Like this court, the Supreme Court did not discuss the appealability of the order denying the petition for administrative mandamus, except to note that the plaintiffs had appealed “only from the order denying their petition for writ of mandate.”  (Griset, supra, 8 Cal.4th at p. 854, 35 Cal.Rptr.2d 659, 884 P.2d 116.)

In February 1995-prior to the McIntyre decision-the plaintiffs filed a petition for a writ of certiorari in the United States Supreme Court.   Almost two months later, on April 19, 1995, McIntyre was handed down by the United States Supreme Court.

McIntyre involved an Ohio statute which prohibited the distribution of campaign literature without the name and address of the person issuing the literature.  (See McIntyre, supra, 514 U.S. at p. 338, fn. 3, 115 S.Ct. 1511, quoting Ohio Rev.Code Ann § 3599.09(A).)   The United States Supreme Court struck down the law as an unconstitutional infringement on the First Amendment of the federal Constitution in a seven-to-two decision authored by Justice Stevens, with Chief Justice Rehnquist and Justice Scalia dissenting.   The McIntyre majority and Justice Thomas' concurring opinion were encomiums to the importance of anonymity in core political speech.  (See McIntyre, supra, 514 U.S. at pp. 342-343, fns. 4 [anonymity in literature, exemplified by Mark Twain, George Sand and O. Henry] & 6 [anonymity in political causes, best exemplified by Publius who wrote the Federalist papers] and p. 357 [referring to John Stuart Mill to the effect that “[a]nonymity is a shield from the tyranny of the majority”] and pp. 360-367, 115 S.Ct. 1511 (conc. opn. of Thomas, J.) [historical review of use of pseudonyms in political writing in revolutionary America beginning with the famous case of Peter Zenger in 1735 and continuing to the time of the adoption of the federal constitution].)   The majority concluded that the Ohio statute abridged the First Amendment because the burden it posed on “core political speech” could not be justified by the two state interests that Ohio had advanced:  “preventing fraudulent and libelous statements” and “providing the electorate with relevant information.”  (See id. at p. 348, 115 S.Ct. 1511.)   The second interest, called the “informational interest,” was quickly dismissed by the federal high court.   The court said that the name and address of the author of a “handbill written by a private citizen who is not known to the recipient ․ add[s] little, if anything, to the reader's ability to evaluate the document's message” and thus the “informational interest” was “plainly insufficient to support the constitutionality of [Ohio's] disclosure requirement.”  (Id. at pp. 348-349, 115 S.Ct. 1511.)   As to the first interest, the statute was plainly overbroad because the statute encompassed “documents that [were] not even arguably false or misleading.”  (Id. at p. 351, 115 S.Ct. 1511.)

On April 24, 1995, five days after the McIntyre decision, the United States Supreme Court denied the plaintiffs' petition for a writ of certiorari without opinion.

Less than three months later, on July 18, 1995, the case was back from Washington and once again in the Orange County Superior Court, with the filing of an answer by the Commission to the plaintiffs' first amended and supplemental complaint.   A month later, on August 21, 1995, plaintiffs 2 filed a motion for summary adjudication and for summary judgment, arguing that McIntyre rendered section 84305 unconstitutional and seeking to prevail on their second, third and fourth causes of action.   Not to be outdone, ten days later the Commission filed its own motion for judgment on the pleadings.

On September 25, 1995, the trial court denied the plaintiffs' motion and granted judgment for the Commission as a matter of law based, among other things, on the state Supreme Court's decision in Griset and the fact the United States had denied the plaintiffs' petition for certiorari after handing down McIntyre.   Noting that the former city council member had no present intention of seeking office, had closed his committees and did not believe that section 84305 “would in any way inhibit his ability to communicate in the political arena,” the court filed a judgment declaring that there was no case or controversy to afford a basis for declaratory relief on the second cause of action, and no standing with regard to the third and fourth causes of action.   The notice of appeal was filed timely on November 22, 1995.   The judgment was corrected nunc pro tunc on December 20, 1995 to make it absolutely clear that, in addition to the procedural points mentioned in the first judgment, it was also based on the conclusion that plaintiffs' second and third causes of action were barred as a matter of substantive law under the Griset decision and the fact that certiorari had been denied by the United States Supreme Court after McIntyre had been filed.

And so the case has once again returned to us.

II

We must now confront a procedural issue that neither this court nor our Supreme Court addressed the first time this case made its way up the state court ladder:  the fact there was no final judgment.

Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 33 Cal.Rptr.2d 10 provides an instructive exposition on the subject.   There is a line of California appellate court decisions which hold that the denial of a petition for writ of mandate is appealable when causes of action remain, at least when no further action is contemplated on the petition for writ of mandate.  (See id. at p. 539.)   Nerhan, however, noted that the 1994 California Supreme Court decision (which, we might add, was subsequent to Griset ) in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 29 Cal.Rptr.2d 804, 872 P.2d 143 cannot be reconciled with that result.   The Nerhan court dismissed the appeal in a case involving a petition for administrative mandamus combined with a complaint for damages because Morehart had indicated that a judgment which fails to “dispose of ‘all causes of action between the parties' is not appealable.”  (Nerhan, supra, 27 Cal.App.4th at p. 540, 33 Cal.Rptr.2d 10, quoting Morehart, supra, 7 Cal.4th at p. 743, 29 Cal.Rptr.2d 804, 872 P.2d 143.)

After Nerhan, the California Supreme Court observed in a footnote, also involving an appeal from a judgment denying a petition for a writ of mandate, that-at least prior to Nerhan-case law had indeed indicated that “an appeal could be taken from a judgment denying a petition for writ of mandate where no further action on the petition was contemplated, even if, as in the present case, other causes of action were still pending between the parties.”  (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52, fn. 5, 51 Cal.Rptr.2d 837, 913 P.2d 1046.) In that footnote the court did not try to resolve the divergence between Nerhan and prior case law because it didn't have to:  The Court of Appeal in the Superior Court case had assumed Nerhan was correct and treated the appeal from the judgment denying the petition for writ of mandate as a petition for writ of mandate itself, and thereby reached the merits of the decision.  (Superior Court v. County of Mendocino, supra, 13 Cal.4th at p. 52, fn. 5, 51 Cal.Rptr.2d 837, 913 P.2d 1046).   The Supreme Court had jurisdiction in any event because section 12, subdivision (b) of article VI of the California Constitution gives the Supreme Court jurisdiction to review a decision of the Court of Appeal “in any cause.”

In light of the question over whether the denial of a petition for administrative mandamus is appealable when other causes of action remain between the parties, and the fact the Supreme Court would have jurisdiction to review the decision of the Court of Appeal regardless of the answer to that question, it is not surprising that our Supreme Court did not take a detour in Griset to address the fact that there were causes of action still remaining.   At the time this court had issued its opinion neither Nerhan nor the case it relied on, Morehart, had been decided, and the case law indicated that the order denying plaintiffs' petition for writ of administrative mandate was appealable.   Moreover, given that both parties were clearly eager for a determination on the merits of the constitutionality of section 84305, there was no reason to make an issue out of it.

The matter crops up, of course, because the absence of the traditional one final appealable judgment has put the case now in a most ungainly procedural posture.   It isn't everyday that a case goes up to the state supreme court from an intermediate appellate court, where the dispositive issue is decided, then the federal supreme court changes the rule of decision in another case but denies review of the case itself, and the case returns to the state trial court where the first thing that happens is an answer filed by the party who won at the state supreme court.   In the usual situation the decision of the state supreme court would have affirmed a final judgment of the state trial court, and the denial of review by the United States Supreme Court would have a dispositive effect.3

Here, however, there was no final judgment until after the state supreme court and the federal supreme court had each rendered conflicting decisions.

 When a prior ruling is in the same case, it falls within the law of the case doctrine.   The doctrine of law of the case is that a principle or rule of law necessary to the decision decided in the same case by a reviewing court must be adhered to throughout the subsequent progress of the case even though subsequent consideration may reveal that the former decision is erroneous.  (See People v. Stanley (1995) 10 Cal.4th 764, 786, 42 Cal.Rptr.2d 543, 897 P.2d 481.)   As Justice Werdegar pointed out on behalf of the Supreme Court in Stanley, the “principal reason for the doctrine is judicial economy.”  (Ibid.) And accordingly, because the rule is “merely one of procedure and does not go to the jurisdiction of the court” it will not be adhered to where application will result in an “unjust decision,” which includes times when “the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.”  (Id. at pp. 786-787, 42 Cal.Rptr.2d 543, 897 P.2d 481.) 4

The change-of-the-controlling-rule-of-law exception to the law of the case doctrine is a matter of no conceptual difficulty in this case, entailing as it does a change in the law resulting from an intervening United States Supreme Court decision explicating core political speech.   The critical question, of course, is whether there really has been a change in the controlling rule of law.   That is the question to which we now must turn.

III

A

As mentioned in part I of this opinion, McIntyre held that an Ohio state statute requiring, like the California statute in this case, disclosure of the true author of campaign literature in the literature itself was unconstitutional.   The prosecutorial target of the statute, Mrs. McIntyre, was an anti-property tax crusader.   She distributed some anonymous handbills opposing a proposed school tax levy.   Like the present case, a state election commission imposed a monetary fine for violating a state statute which criminalized the distribution of anonymous campaign literature.   There the fine was rather less than the fine which the Commission has visited upon Mr. Griset:  $100.

The United States Supreme Court held that the statute-note that we do not append the qualifying words “as applied to Mrs. McIntyre”-was unconstitutional as violative of the federal First Amendment.   The court said the state's informational interest was “plainly insufficient” to support the disclosure requirement, while the state's interest in prevention of fraud and libel was undercut by the fact the statute encompassed documents that were not “even arguably false or misleading.”  (McIntyre, supra, 514 U.S. at pp. 348-353, 115 S.Ct. 1511.)

B

There is, of course, one difference between the present case and McIntyre.   In McIntyre the target of the statute was not a candidate qua candidate, but a crusader involved in an election centered on an issue.   Mr. Griset, unlike Mrs. McIntyre, was actually running for office himself.   While this is a difference in the facts of the two cases, the difference does not affect the rule of law articulated in the United States Supreme Court's decision in McIntyre.

A close reading of the McIntyre opinion shows that the United States Supreme Court struck down the Ohio statute as unconstitutional on its face, not merely “as applied” to Mrs. McIntyre.   Several reasons rooted in the text of the McIntyre opinion dictate this conclusion.

1

 First and most obviously, the introduction to the opinion frames the issue in the case in extremely broad language, and as one of pure, abstract law without any qualifying reference to application.   Here is the introduction to the McIntyre opinion:  “The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a ‘law ․ abridging the freedom of speech’ within the meaning of the First Amendment.”   (McIntyre, supra, 514 U.S. at p. 336, 115 S.Ct. 1511, fn. omitted.) 5  This language compels the conclusion that section 84305 violates the federal First Amendment.

The fact that the court chose to summarize its opinion by asking a rhetorical question to which the answer is an implied “yes,” is important.   Introductions often contain the distilled essence of a court's opinion;  it (along with conclusions, sometimes) is where the author distills the essence of what he or she wants the reader to extract from the case.   For that reason it is also the portion of the opinion which is most likely to be scrutinized by the other judges who sign the draft.   For one thing, they can't miss it.   For another, the introduction is often the most reader-friendly portion of a court opinion, and therefore the least likely place where one of the non-authoring judges who sign it is going to read over or miss the significance of what is said or-more importantly-left out.   We may presume that none of the five other justices who signed Justice Stevens' majority opinion demanded that he frame the issue more narrowly.6  The broad language in the introduction to the McIntyre opinion is inescapable.

Secondly, the court alluded to its introduction at the end of its exposition of the procedural history of the case to underscore its intention to have the case read as broadly as the words of the introduction were written.   While the case was winding its way to the Supreme Court Mrs. McIntyre died.   A court that wanted its readers to have a narrow view of its decision might have consigned the fact that the case was now being pursued by the executor of a dead litigant's estate to a footnote to make the point that the death made no difference to the legal issues at hand.   But the McIntyre opinion does something different.   It uses the fact of the death of Mrs. McIntyre and the fact her fine entailed the relatively paltry sum of $100 to emphasize the importance of the broad “question presented.”   In describing its grant of certiorari, the United States Supreme Court said it “reflect[ed] our agreement with his [the executor of Mrs. McIntyre's estate] appraisal of the importance of the question presented.”  (Id. at pp. 340-341, emphasis added.)   The repeat of the words “question presented”-a traditional way that first year law students are taught to begin legal memoranda, in which the precise formulation of the “question” is extremely important-harkens back to the opening words of the opinion and reminds the reader that the Supreme Court really does see the case the way it is framed in the introduction.

Thirdly, as mentioned above, the United States Supreme Court did not take any pains to stress that the unconstitutionality of the Ohio statute was only “as applied” to Mrs. McIntyre or someone in a precisely analogous situation.   The words “as applied” appear only three times in the opinion, once to describe a decision of the state trial court (see id. at p. 339, 115 S.Ct. 1511 [describing the conclusion of the Ohio Court of Common Pleas] ), once to describe the position of the dissent at the state supreme court level (see id. at p. 340, 115 S.Ct. 1511 [describing the position of the dissent in the Ohio Supreme Court] ) and once in a parenthetical reference to a citation in a footnote, which emphasized that even a statute constitutional on its face may be unconstitutional as applied.  (See id. at p. 356, fn. 21, 115 S.Ct. 1511, citing Brown v. Socialist Workers '74 Campaign Comm. (Ohio) (1982) 459 U.S. 87, 88, 103 S.Ct. 416, 74 L.Ed.2d 250.)   The opinion is devoid of the sort of qualifiers-“as applied to the case at hand,” “under the circumstances of this particular case,” “given the nature of the peculiar use of the statute here”-which judicial writers regularly use to narrow court opinions so that lower courts and litigants don't make the mistake of reading the opinion more broadly than intended, particularly when a court is engaging in the judicially painful act of declaring a statute unconstitutional.   Indeed, the court used the facts of the case only as illustrative of what it described as the statute's “blunderbuss approach,” which would indicate that it wanted a broader reading of its ruling striking down the statute.7

Finally, the passages in the opinion that touch on the distinction between candidates qua candidates and people who merely distribute literature in referendums (or discuss the fact that Mrs. McIntyre was involved in an issue-based election) do not imply that the distinction made any difference to the McIntyre court.   To understand this point we must explicate the structure of the opinion.

Part I sets out the facts and litigation history of the case.   Part II is an enthusiastic endorsement of anonymity as within the protection of the First Amendment.   Part III makes the point that the Ohio law burdened “core political speech,” and it is here that we encounter one reference to the “issue-based” nature of the activity that got Mrs. McIntyre into trouble with the Ohio commission.  (See id. at p. 347, 115 S.Ct. 1511.)   But the context is simply to make the point that Mrs. McIntyre was indeed engaged in core political speech just the same as if she were a candidate.   Thus, after a long quotation from Buckley v. Valeo (1976) 424 U.S. 1, 14-15, 96 S.Ct. 612, 46 L.Ed.2d 659 which waxes eloquent about the importance of the First Amendment and need for “ ‘unfettered interchange of ideas' ” and “ ‘uninhibited, robust, and wide-open’ ” free speech, the court makes the point that Mrs. McIntyre was no less protected by the First Amendment than a candidate for office who might have inspired the passage in Buckley:  “Of course, core political speech need not center on a candidate for office.   The principles enunciated in Buckley extend equally to issue-based elections such as the school-tax referendum that Mrs. McIntyre sought to influence․”  (McIntyre, supra, 514 U.S. at p. 347, 115 S.Ct. 1511.)   In context, then, the reference to the issue-based election before the court was only to equate it with protections afforded candidates.

Part IV of the opinion confronts the two state interests which Ohio posited in favor of its statute and demonstrates why those interests could not infringe on core political speech which parts II and III had demonstrated were at issue in the case.   The court rejects as “plainly insufficient” the informational interest which our own Supreme Court had found compelling in Griset (because it adds little to the reader's ability to evaluate the message) and makes the point that the prevention of libel and fraud cannot justify a statute which prohibits documents that might not be false or fraudulent.

Part V is the McIntyre court's confrontation with two past opinions relied on by Ohio to support its statute (First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 and Buckley v. Valeo, supra, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659).   At the end of part V the court does indeed distinguish between candidate and issue elections.   (McIntyre, supra, 514 U.S. at p. 356, 115 S.Ct. 1511.)   But it does so in a context which demonstrates that the distinction has nothing to do with the strength of the respective interests-particularly the informational interest-with which the court dealt in part IV. The point of the differentiation, in context, is simply to distinguish a federal expenditure reporting requirement which had been upheld in Buckley.   That expenditure requirement was a “far cry from compelled self-identification on all election related writings.”   (See id. at p. 355, 115 S.Ct. 1511.) 8  And, moreover, the expenditure reporting requirement upheld in Buckley was based on the need to deter “quid pro quo ” corruption by exposing the campaign contributions of “[c]urriers of favor” with candidates.  (Id. at p. 356, 115 S.Ct. 1511.)   A statute which involves “compelled self-identification on all election-related writings” cannot be supported by the quid pro quo rationale, a conclusion which applies equally as much to candidates as it does to citizens in issue referenda.9

Part VI of McIntyre forms its conclusion.   The opinion leaves the stage with the banner of free speech raised high (metaphorically that is) and returns to the theme of part II once again.   It trumpets the importance of anonymous political speech and quotes John Stuart Mill. (See id. at p. 357, 115 S.Ct. 1511.)   Again, there is nothing to suggest that the Ohio statute might survive in the different context of a prosecution against a candidate.

2

Besides the intent of the McIntyre opinion as revealed in its text and structure, the actual doctrinal analysis employed also suggests that Mr. Griset's status as a candidate makes no difference.   In particular, the informational interest which our own Supreme Court held was compelling in Griset cannot, in light of McIntyre, be used to require “compelled self-identification” even of candidate-originated literature.

First, however, we must note the obvious.   The informational interest rejected out of hand in McIntyre does carry at least a little more weight in the context of candidate election.   While it is certainly true that the truth of a statement is independent of who makes it, surely it is not irrelevant in a political campaign that a piece of literature comes from a candidate and not a disinterested party, if only because of the presumptive skepticism-perhaps cynicism would be the better word-that might greet the former but not the latter.   Thus our Supreme Court noted in the first Griset case that the plaintiffs' mailings might have “deceived” members of the electorate “into believing that the mailing came from a ‘grass-roots' group of concerned neighbors, rather than from a candidate for public office.”  (Griset, supra, 8 Cal.4th at p. 865, 35 Cal.Rptr.2d 659, 884 P.2d 116.)

That said, we cannot avoid the conclusion that McIntyre controls the case.   The language and structure of the McIntyre opinion indicate that, as a matter of federal law, the state's informational interest does not outweigh the tremendous importance of anonymous political speech in American history.   Part II and part VI of the opinion are virtual panegyrics to the tradition of anonymity.10

McIntyre's emphasis on the tradition of anonymity is central to its balancing of the relative constitutional interests involved.   Would McIntyre have been decided differently if the person who could lay the best claim to the actual authorship of the United States Constitution itself-James Madison-had not himself propagandized on its behalf under the pseudonym Publius?   Very possibly.   The problem is, anonymity qua anonymity cannot, by definition, be squared with a self-identification requirement.   The sin of the Ohio statute in McIntyre, and thus the sin of section 84305 in light of McIntyre, is that compelled self-disclosure utterly precludes anonymous political speech.

Additionally, the distinction between issue-literature for or against referenda, as in McIntyre, and candidate-literature, as in Griset, is more apparent than real from the point of view of protecting the public from deception, fraud or libel.   There is actually less reason to suppose that issue-oriented groups or individuals will be more truthful than candidates.   If candidates lie or are deceptive about an opponent, they risk having their ads turned against them and the very fact that they have been caught lying itself becomes a campaign issue.   That is less likely to be the case when it comes to issues and referenda, where individual character is not the voters' focus.

And in any event the relative weight accorded the state's informational interest that is satisfied by forcing a candidate to disclose that he or she is behind a mass mailing is a topic on which reasonable minds may differ.   There is no escaping that our Supreme Court saw a benefit to such disclosure in Griset.   But, judging from the language and structure of McIntyre, there is no escaping that the federal Supreme Court was less impressed with the benefit, particularly when balanced against the tradition of anonymous political speech on which it put such a heavy emphasis.11  We are forced to conclude that, while as a matter of state law under Griset the interest in an informed electorate may outweigh the infringement on free speech represented by a definitional, absolute bar to anonymous political speech on the part of a candidate himself or herself, the United States Supreme Court disagrees.

IV

 The fact the United States Supreme Court denied certiorari in this case is of no moment.   It is well established that the denial of certiorari has no legal implication or significance.  (E.g., Chessman v. Teets (1957) 354 U.S. 156, 165, fn. 13, 77 S.Ct. 1127, 1 L.Ed.2d 1253;  Brown v. Allen (1953) 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.)   We need only add that the United States Supreme Court, like the California Supreme Court, is not a court of error.   These days it accepts fewer than 100 cases a year to review.   It functions as the final arbiter of federal law;  it does not exist to correct every erroneous state court decision.   It must trust the lower federal courts and the state courts to read its decisions and draw the appropriate conclusions.

 Nor is the present case moot, without controversy, or Griset without standing.   The Commission is still trying to collect a fine from him, and his challenge to section 84305 on his remaining causes of action implicates inescapably vital questions of free speech.

Of course, to the degree that his remaining causes of action were predicated on the unconstitutionality of section 84305 under the state Constitution the Griset decision controls, there has been no intervening change in the controlling law, and the judgment on the second cause of action is affirmed to that extent.   However, because McIntyre changed the controlling federal law, the judgment is reversed as to the remaining causes of action.   The trial court is directed to enter a judgment declaring that section 84305 contravenes the federal, if not the state, Constitution;  to enjoin the Commission from enforcing and collecting the monetary penalties it has assessed against plaintiffs;  and to enjoin the Commission from enforcing section 84305 in the future.

Griset shall recover his costs on appeal.

Despite Supreme Court authority to the contrary (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 29 Cal.Rptr.2d 804, 872 P.2d 143), my colleagues hold the denial of a petition for administrative mandamus is appealable when other causes of action remain between the parties.   They come to this conclusion based on the parties' desire to determine the constitutionality of Government Code section 84305 (maj. opn., ante, p. 30) and the ability of the parties and the courts to “revive” an otherwise final judgment.  (Id. at fn. 3.) The majority misses the point.

There Is Nothing For Us To Hear

Daniel Griset asked the trial court to declare Government Code section 84305 unconstitutional and having done so to prohibit the Fair Political Practices Commission from collecting its fine.   The trial court, this court and the California Supreme Court found the statute constitutional.   The United States Supreme Court denied hearing.   At that point, Griset was without any more bites at the apple.

The majority finds Griset's other causes of action are nevertheless viable because the first appeal encompassed only the denial of his writ of mandate.   There are several problems with this position.

Griset may have intended to challenge only the denial of his requested writ relief in his first appeal.   The result of the appeal, however, put an end to the whole matter.   Griset's characterization of what he appealed is meaningless.   A litigant cannot confer jurisdiction on a court.  (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9, 63 Cal.Rptr.2d 74, 935 P.2d 781.) Indeed, a court cannot confer jurisdiction on itself.   The Supreme Court therefore impliedly considered the trial court's order a final judgment as to all causes of action (Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal.Rptr. 843, 673 P.2d 720;  Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1102, 39 Cal.Rptr.2d 737) because an appeal of a denial of a petition for a writ of mandate is authorized only when the judgment terminates all procedures in the lower court.  (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 743-744, 29 Cal.Rptr.2d 804, 872 P.2d 143.) 1

The judgment denying Griset's writ relief was in fact a final judgment because once the court found the statute constitutional, the other causes of action became moot.  (Bank of California v. Thornton-Blue Pacific, Inc. (1997) 53 Cal.App.4th 841, 845-846, 62 Cal.Rptr.2d 90.) 2  “Where no further action is contemplated, the order denying the petition for writ of mandate is a final judgment in a special proceeding under [Code of Civil Procedure] section 1064.”  (Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 539, 33 Cal.Rptr.2d 10.)

Effects of Res Judicata

Generally, the doctrines of res judicata, collateral estoppel and law of the case do not prohibit us from revisiting a statute's constitutionality.  “Where a question of law essential to the judgment is actually litigated and determined by a valid and final personal judgment, the determination is not conclusive between the parties in a subsequent action ․ [if in public interest,] if injustice would result [ ] ․ if it would be unjust to one of the parties or to third persons to apply one rule of law in subsequent actions between the same parties and to apply a different rule of law between other persons.”  (Louis Stores, Inc. v. Department of Alcoholic Beverage Control (1962) 57 Cal.2d 749, 757, 22 Cal.Rptr. 14, 371 P.2d 758, original italics, internal citation and quotation marks omitted.)   But, Louisis inapt because there the court considered subsequent actions between the parties.   Griset did not file a new action;  he attempted to resurrect one long-since dead.   The difference is insurmountable.

I would affirm the judgment.3

FOOTNOTES

1.   We discuss below the anomaly of an “appeal” without a final judgment.

2.   In light of the California Supreme Court's decision in Griset one would ordinarily expect that it would be the Commission who would be first out of the box seeking the formal victory.

3.   It is true, of course, that our Supreme Court's decision in Griset implicitly decided all questions essential to the decision, in particular the constitutionality of section 84305.  (See Olson v. Cory (1983) 35 Cal.3d 390, 399, 197 Cal.Rptr. 843, 673 P.2d 720.)   And cases have held that where the disposition of one cause of action effectively disposes of the entire case, there is an appealable final judgment.  (E.g., Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1102, 39 Cal.Rptr.2d 737.)   Even so, while the plaintiffs' second, third, and fourth causes might have been moribund when the case returned from the denial of certiorari, they were not declared dead and properly buried in a formal final judgment.   The not quite yet dead corpse was still walking, as attested by the fact that the substantive winner, the Commission, still found it necessary to file an answer to the plaintiffs' complaint.   If the fortuity of an intervening United States Supreme Court decision breathed new life into those causes of action, the Commission has only itself to blame for not obtaining an undisputably final judgment on all causes of action before the case made its first trek to an appellate court.

4.   We acknowledge that the pigeonholing of the present case into law of the case and not res judicata or collateral estoppel is to some degree an academic exercise in that all three doctrines have an “injustice” exception which may be based on an intervening change in the controlling rule of law.  (E.g., George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291, 265 Cal.Rptr. 162, 783 P.2d 749 (analogizing injustice exception in law of the case to that in res judicata);  Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, 160 Cal.Rptr. 124, 603 P.2d 41 (articulating injustice and public interest exception to collateral estoppel).)

5.   The footnote that followed the statement merely makes the point that the First Amendment to the federal Constitution applies to the states by virtue of the Fourteenth Amendment to the federal Constitution, but otherwise contains no limiting or qualifying language.  (See id. at p. 336, fn. 1, 115 S.Ct. 1511.)

6.   For example, Justice Stevens might have written something like this:  “The question presented in this case is whether an Ohio statute which prohibits the distribution of anonymous campaign literature may be constitutionally applied to the distributor of anonymous leaflets in an issue-based election.”   That would have been easy enough to write if the high court wanted to limit the scope of its decision.

7.   Here are three sentences from near the end of the conclusion, in which the court is making the point that the statute is overbroad because it encompasses speech which is not fraudulent.   The first two sentences provide the necessary context:  “The State may, and does, punish fraud directly.   But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.   One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us.”  (McIntyre, supra, 514 U.S. at p. 357, 115 S.Ct. 1511, emphasis added.)   The italicized words demonstrate that the court was not basing its decision on the peculiar facts of McIntyre, but using those facts as illustrative of the reason that Ohio's prevention-of-fraud rationale was not convincing.   That is, the statute was overbroad on its face.

8.   As a confirming note to our point, the court's characterization of the Ohio statute as “compelled self-identification on all election-related writings” makes no distinction between candidate writings and citizen-issue writings.

9.   And for that reason, of course, nothing in our opinion filed today should be construed as commenting one way or the other on financial disclosure laws as applied to candidates.

10.   Presidents of the United States have even participated in the tradition of anonymous political discourse.   Besides James Madison who wrote as Publius, there was John Quincy Adams.   In the early 1790's John Quincy Adams wrote under the pseudonym Publicola, in which he countered the views of Thomas Paine in the The Rights of Man. Many readers thought Publicola was really John Quincy Adams' father.  (See Nagel, John Quincy Adams:  A Public Life (Alfred A. Knopf, 1998) pp. 73-74.)

11.   Our Supreme Court in Griset refused to trot out Publius and Mark Twain and Cato in a grand parade in support of anonymous political speech.   Obviously the two courts made different value judgments on the point.   We are spared the task of deciding which one is right;  our task is merely to figure out the necessary implications of the two opinions.

1.   In Morehart, the plaintiffs sued the County of Santa Barbara “alleging separate causes of action for (1) a writ of mandate, (2) damages for inverse condemnation, (3) damages for violation of civil rights, i.e., substantive and procedural due process and equal protection of law, (4) declaratory relief, and (5) injunctive relief.”  (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 735, 29 Cal.Rptr.2d 804, 872 P.2d 143.)   The trial court tried the first, fourth and fifth causes of action for writ of mandate, declaratory relief, and injunctive relief finding in favor of the plaintiffs.The plaintiffs objected to the proposed statement of decision arguing the court should simply rule on the merits of those causes of action and defer entry of judgment until after it determined damages.   The trial court thought otherwise, entering judgment accordingly.   The county appealed and the Court of Appeal reversed the judgment, “dispos[ing] of the appealability question in a one-sentence footnote as follows:  ‘The judgment is separately appealable on a severed issue․’ ”  (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 736, 29 Cal.Rptr.2d 804, 872 P.2d 143.)The Supreme Court disagreed.   It held, “[A]n appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as ‘separate and independent’ from those remaining․  A petition for a writ, not an appeal, is the authorized means for obtaining review of judgments and orders that lack the finality required by Code of Civil Procedure section 904.1, subdivision (a).”  (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at pp. 743-744, 29 Cal.Rptr.2d 804, 872 P.2d 143.)

2.   The court's failure to enter judgment accordingly is of no moment.  (Tenhet v. Boswell (1976) 18 Cal.3d 150, 153-154, 133 Cal.Rptr. 10, 554 P.2d 330;  see also Consaul v. City of San Diego (1992) 6 Cal.App.4th 1781, 1792, fn. 6, 8 Cal.Rptr.2d 762.)

3.   Having concluded we have no jurisdiction to hear this matter, I need not consider whether McIntyre v. Ohio (1995) 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 is controlling.

SILLS, P.J.

WALLIN, J., concurs.