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

Samuel UNGER et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; REPUBLICAN PARTY OF CALIFORNIA et al., Real Parties in Interest.


Decided: July 19, 1983

George R. Beavin, Lynn S. Carman, San Rafael, for petitioners. No appearance for respondent. John A. Slezak, Los Angeles, for real parties in interest.

In Unger v. Superior Court (1980) 102 Cal.App.3d 681, 162 Cal.Rptr. 611, hg. den., cert. den. (hereafter Unger I ), Division Two of this court ruled that political parties and county central committees were barred from endorsing, supporting, or opposing candidates for the office of governing member of the board of a community college district, a nonpartisan school office within the meaning of article II, section 6 of the California Constitution.   In this case (Unger II ), we are asked to restrain the Republican Party of California and the Republican State Central Committee from endorsing or supporting the recall of the Chief Justice and the “nonconfirmation” of three other justices of the California Supreme Court.   Unger I involved a contested multi-candidate election, whereas this case involves two kinds of one-candidate elections.   We conclude that this difference does not dictate a different result from that reached in Unger I.

The petition before us challenges dismissal of a petition for writ of mandate by the superior court following the sustaining of a demurrer.   The petition below (brought by our petitioners Samuel Unger and Clark Blasdell) alleged that the Republican Party of California, the Republican State Central Committee and executives of both (all real parties in interest in this proceeding) had endorsed the recall of the Chief Justice of the Supreme Court of California, and had endorsed the “nonconfirmation” of three associate justices at the November 1982 statewide general election.   It alleged further that they had and would continue to campaign for recall and “nonconfirmation” and had and would “expend party funds, use party property, use the party name, use the party organization, use party premises, use party employees, employ employees, and direct prospective party donors to instead donate their money to said recall and nonconfirmation campaigns.”   The petition alleged certain actions already taken by the Executive Committee of the Republican Party of California and made additional allegations about further actions expected from the party and its executive committee.

Article II, section 6 of the California Constitution provides that:  “Judicial, school, county, and city offices shall be nonpartisan.”   In support of their trial court petition, petitioners argued that that section was a bar to political party participation in a judicial election.   Real parties filed a general demurrer contending that their activities did not violate the California Constitution and were protected by the First Amendment to the United States Constitution, among other provisions.   The trial court sustained the demurrer, and when the parties stipulated that the demurrer be sustained without leave to amend, it dismissed the petition.   This petition followed.   Although the matter is at least partially moot because the confirmation election has taken place, we reach the merits because the issue is one of broad public interest and is likely to recur.  (Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719, 94 Cal.Rptr. 602, 484 P.2d 578;  Unger I, supra, 102 Cal.App.3d at p. 688, 162 Cal.Rptr. 611.)

In Unger I, Samuel Unger, one of the petitioners here, was a candidate for election to the governing board of the Marin Community College District.   The Marin County Democratic Central Committee invited all registered Democrats who were candidates for that position to attend a meeting to seek the endorsement of the central committee and to apply for financial assistance.   Mr. Unger did not attend, but challenged the endorsements made.   Based upon the dictionary definition of “nonpartisan” as “not affiliated with or committed to the support of a particular political party:  politically independent ․ viewing matters or policies without party bias ․ held or organized with all party designations or emblems absent from the ballot ․ composed, appointed, or elected without regard to the political party affiliations of members ․”  (Webster's Third New Internat. Dict. (1970) p. 1538), the Unger I court sustained his challenge.

 Petitioners contend here that the superior court violated stare decisis by failing to follow Unger I.   Real parties contend that Unger I does not apply to judicial confirmation elections and judicial recall elections and that if it does apply, it fails to give proper consideration to First Amendment protections.

Real parties seek to distinguish the community college district election in Unger I from the judicial elections here by noting that Unger I involved a political party throwing its weight behind one candidate to the exclusion of others.   They contend that because the Republican Party's advocacy will not determine who shall serve as the officeholder in the event a justice is defeated, there should be a different rule in judicial confirmation and recall elections.

Real parties have identified a distinction between this case and Unger I.  However, that distinction does not furnish a solid reason for a different result.  Article II, section 6 of the California Constitution provides that judicial “offices” shall be nonpartisan, not merely that judicial elections be nonpartisan.   In order to keep the office nonpartisan it is necessary to bar the political parties from seeking to influence confirmation or recall of incumbents.   Otherwise, a political party backing a gubernatorial candidate could seek to sweep out the appointed judiciary with the hope that it could influence the new governor in his or her replacement appointments.   A pattern of linking appellate justices to governors and making their fates interdependent could develop.   The constitutional requirement that the judiciary be “nonpartisan” was meant to avoid that result.

 Real parties' more difficult argument is that article II, section 6 of the California Constitution, as interpreted by Unger I and as applied here to judicial recall and confirmation elections, strikes at the heart of the First Amendment's protection for freedom of speech and interferes with the related freedom of association.  Unger I rejected the First Amendment argument, finding that “[r]easonable regulation ․ in order to prevent evils which formerly had been prevalent does not infringe on freedom of speech or association guaranteed by the federal and state Constitutions.”  (Unger I, supra, 102 Cal.App.3d 681, 686, 162 Cal.Rptr. 611.)   Real parties argue that the test is not whether the regulation is “reasonable” but whether restrictions upon First Amendment freedoms are necessary to advancement of a compelling state interest.

In First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 the United States Supreme Court explained that when a regulation is directed at speech itself and the speech is intimately related to the process of governing, the state must show a “compelling” interest to be furthered by the regulation and that the state regulation is “closely drawn to avoid unnecessary abridgment.”   Elsewhere, the court has stated that any interference with the freedom of a political party is “simultaneously an interference with the freedom of its adherents.”  (Sweezy v. New Hampshire (1957) 354 U.S. 234, 250–251, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311.)   More recently, it confirmed that “[t]he First Amendment protects political association as well as political expression” and that “ ‘[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.’ ”  (Buckley v. Valeo (1976) 424 U.S. 1, 15, 96 S.Ct. 612, 633, 46 L.Ed.2d 659.)

In Concerned Democrats of Florida v. Reno (S.D.Fla.1978) 458 F.Supp. 60, the court applied these principles to strike a Florida law prohibiting political parties and partisan political organizations from endorsing, supporting, or assisting candidates for election to judicial offices.   The court there found that the state had a vital interest in assuring that its judges were free from direct political pressure, but found that less restrictive means for achieving that result were available.   In fact, the court found that existing statutes preventing partisan activity by judges and judicial candidates and requiring a separate nonpartisan ballot for judicial officers had succeeded in keeping the candidates and their elections nonpartisan.

Real parties rely heavily upon Concerned Democrats of Florida, but that case is distinguishable.   The statute in Concerned Democrats of Florida prevented both political parties and “partisan political organizations” from participating in judicial elections.   Thus, the court there could state that the statute operated “against private citizens who wish to express their political preferences” and could conclude that the statute could not “control private citizens who wish to make their choices known.”  (Id., at p. 65.)   Here, article II, section 6 of the California Constitution as interpreted by Unger I and applied to judicial recall and confirmation elections does not control private citizens or all types of partisan political organizations.   It applies only to official political parties and party central committees.   It prevents them from lending the name and support of the official political party or of any official suborganization of the party.

“Historically, California political parties and their executive organizations were viewed as private associations whose activities were beyond the scope of judicial review and immune from legislative control.  People v. Cavanaugh, 112 Cal. 674, 44 P. 1057 (1896).   While this view of political party affairs persisted throughout much of the early history of California, it is now well established that political parties are subject to regulation in the public interest.  Katz v. Fitzgerald, 152 Cal. 433, 93 P. 112 (1907).   The official structure and the powers and duties of political parties are now prescribed at least in part by constitutional provisions and by the Elections Code which makes county central committees along with party conventions and state central committees the governing bodies of qualified political parties.   See Elec.Code § 8000 et seq.”  (59 Ops.Cal.Atty.Gen. 60 (1976), fn. omitted.)

Regulation of the official political parties by preventing them from endorsing, supporting, or opposing candidates for nonpartisan offices is a narrowly drawn measure designed to assure that nonpartisan officers are free from direct political pressure.   It does not deny the right of citizens to associate or express themselves in campaigns for nonpartisan offices.   It merely restrains one kind of organization from participating in the election process for offices specifically designed to be free from the influence of that kind of political organization.   Consistent with the ends sought, it could be drawn no more narrowly.

Petitioners have not stressed the portion of their action which is directed at the campaign to recall the Chief Justice.   The rest of the action has become moot.   Thus, it is not clear to us that petitioners have any interest in pursuing the matter below.   We deem it unlikely that once apprised of this decision real parties will repeat the conduct which precipitated this proceeding.  (See Unger I, supra, 102 Cal.App.3d 681, 688, 162 Cal.Rptr. 611.)   We consider the alternative writ to have served its purpose.   Thus, the alternative writ is discharged and the petition for a peremptory writ is denied.

SCOTT, Acting Presiding Justice.