CLARK v. Richard M. Silver, as Judge, etc., Respondent. (1991)

Respondent Bradley J. Clark filed an action for declaratory relief to determine whether Elections Code section 10012.1 ¹ violated either the First Amendment or the Fourteenth Amendment of the United States Constitution or Article I, section 2 of the California Constitution.   Judge William B. Burleigh cross-petitioned for a writ of mandate to compel respondent to publish certain information in a voter's pamphlet.   The trial court determined that section 10012.1 was constitutional.

We disagree.   We conclude that section 10012.1 is overbroad and not narrowly tailored to effectuate a compelling interest.   It is also a prior restraint of speech.   Accordingly, section 10012.1 violates the First Amendment of the United States Constitution and must be stricken.

FACTS AND PROCEDURAL BACKGROUND

Appellant was a candidate for Superior Court Judge.   In preparation for the election, he submitted a candidate's statement for publication in the voter's information pamphlet.   The voter's information pamphlet is published by the county prior to the election.   Its purpose is “to give the voters information concerning the measures on the ballot.”  (Hart v. Jordan (1939) 14 Cal.2d 288, 292, 94 P.2d 808;  see also Ferrara v. Belanger (1976) 18 Cal.3d 253, 263, 133 Cal.Rptr. 849, 555 P.2d 1089.)

In his candidate's statement, appellant referred to his opponent, incumbent Judge Richard M. Silver.²  Appellant stated, among other things, that Judge Silver had been appointed by former California Governor Jerry Brown, and that appellant was “greatly disturbed by his [Silver's] decisions.”   Appellant claimed that “criminal activity is being dismissed,” and that “Innocent citizens had their lives and businesses disrupted by court interference.”   Appellant listed examples of cases allegedly decided by Judge Silver.   In conclusion, appellant stated “It's time to get tough with criminals ․ time to end court interference and [sic] community affairs.”

Section 10012.1 regulates the statements of candidates for judicial office.   It limits judicial candidates' statements to “a recitation of the candidate's own personal background and qualifications.”  Section 10012.1 prohibits “reference to other candidates for judicial office or to another candidate's qualifications, character or activities.”   Statements which violate section 10012.1 will be deleted by the clerk.   The statute provides, “[t]he clerk shall not cause to be printed or circulated any statement which the clerk determines is not so limited or which includes any such references.”  (Emphasis added.) ³

Respondent Bradley J. Clark is the Registrar of Voters for Monterey County.   Clark filed a declaratory relief action to determine whether appellant's candidate statement was prohibited by section 10012.1.   Clark also sought to determine whether section 10012.1 was constitutional.

Appellant filed a cross-petition for a writ of mandate asking that respondent be ordered to publish the candidate's statement as submitted.

The trial court ordered appellant to delete all references to Judge Silver from the candidate's statement.   The court determined that section 10012.1 did not violate either the First or Fourteenth Amendments of the United States Constitution or violate Article I, section 2 of the California Constitution.

This appeal ensued.

DISCUSSION

I. MOOTNESS

 Election disputes often present legal questions “ ‘capable of repetition, yet evading review.’ ”  (Moore v. Ogilvie (1969) 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 [citation omitted];  see also Ferrara v. Belanger, supra, 18 Cal.3d at p. 259, 133 Cal.Rptr. 849, 555 P.2d 1089.)   This is because the election is usually over by the time the case reaches the appellate courts.   Because such cases may raise issues of general public interest, they are frequently reviewed even though the relief sought may not be available.  (Unger v. Superior Court (1984) 37 Cal.3d 612, 614, 209 Cal.Rptr. 474, 692 P.2d 238;  Ferrara v. Belanger, supra, 18 Cal.3d at p. 259, 133 Cal.Rptr. 849, 555 P.2d 1089;  Gebert v. Patterson (1986) 186 Cal.App.3d 868, 872, 231 Cal.Rptr. 150;  Patterson v. Board of Supervisors (1988) 202 Cal.App.3d 22, 26–27, 248 Cal.Rptr. 253.)

This is such a case.   The election is over;  appellant did not prevail.   It is therefore too late to reinsert the deleted material into the voter's pamphlet.   Nonetheless, the issues regarding the constitutionality of section 10012.1 are of great interest and are likely to reoccur in future elections.   Accordingly, we will consider the arguments raised by the parties.

II. FIRST AMENDMENT

Is section 10012.1 constitutional?   Appellant argues that it is not.   He contends that section 10012.1, on its face, violates his rights under the First Amendment of the United States Constitution and under Article I, section 2 of the California Constitution.   We agree.

Our analysis of the constitutionality of section 10012.1 will proceed as follows.   First, we will decide whether the voter's pamphlet is a public forum, limited public forum, or nonpublic forum.   Second, after concluding that the voter's pamphlet is a limited public forum, we will determine whether the pamphlet restricts judicial candidates' statements based upon content.

Third, we will apply the test applicable to content-based restrictions in limited public forums.   The test is whether section 10012.1 is necessary to further a compelling interest and narrowly tailored to achieve that interest.   In discussing this test, we will consider all of its components:  whether section 10012.1 embodies a compelling interest, whether it furthers a compelling interest, whether it is necessary to further the interest, and whether it is narrowly tailored.

Finally, we shall consider whether section 10012.1 is a prior restraint of speech.   Upon completing our analysis, we will conclude that section 10012.1 violates the First Amendment because it is not narrowly tailored and because it is a prior restraint of speech.

A. TYPE OF FORUM

 We begin with the nature of the forum.   We must determine whether the voter's pamphlet is a public forum, limited public forum or nonpublic forum.   The question is important because the power of the state to regulate expressive activity varies according to where the speech takes place.  (See e.g. Niemotko v. Maryland (1951) 340 U.S. 268, 282–283, 71 S.Ct. 325, 333, 95 L.Ed. 267 [Frankfurter, J., concurring];  Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 815, 105 S.Ct. 3439, 3455, 87 L.Ed.2d 567 [dis. opn. of Blackmun, J.];  Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794.)   As we shall explain below, we conclude that the voter's pamphlet constitutes a limited public forum.

 The Supreme Court has defined three different types of forums for speech activities.  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at pp. 45–46, 103 S.Ct. at pp. 954–955.)   A public forum is one which traditionally has been used for assembly and debate or which has been created by government fiat.  (Id. at p. 45, 103 S.Ct. at p. 954.)   Examples of public forums include streets and parks.   Such areas “ ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ”  (Id. at p. 45, 103 S.Ct. at pp. 954–955;  quoting Hague v. CIO (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.)

 A limited public forum is public property which has been opened up for expressive use.  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. 37, 45, 103 S.Ct. 948, 954.)   Although the state does not have to retain the forum indefinitely, as long as it does, “it is bound by the same standards as apply in a traditional public forum.”  (Id. at p. 46, 103 S.Ct. at p. 955.)   Examples of limited public forums include university meeting facilities, school board meetings, and a municipal theater.   (See Widmar v. Vincent (1981) 454 U.S. 263, 267–268, 102 S.Ct. 269, 273, 70 L.Ed.2d 440;   Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm'n (1976) 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376;  Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448.)   A public forum may also be created for a limited purpose.   For instance, it may be designated for use by a certain segment of the public or be opened for the discussion of certain subjects.  (Perry, supra, 460 U.S. at p. 46, fn. 7, 103 S.Ct. at p. 955, fn. 7;  citing Widmar v. Vincent, supra, 454 U.S. 263, 102 S.Ct. 269 [student groups] and Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm'n, supra, 429 U.S. 167, 97 S.Ct. 421 [school board business].)

 A nonpublic forum is one which has not traditionally been used for communication or which has not been designated for public use.  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955.)   Examples include a U.S. mailbox, school mail facilities, and a military base.  (U.S. Postal Service v. Greenburgh Civic Assns. (1981) 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517;  Perry, supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955;  Greer v. Spock (1976) 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505.)   In discussing nonpublic forums, the United States Supreme Court has emphasized that the state, like an owner of private property, may “preserve the property under its control for the use to which it is lawfully dedicated.  [Citations.]”  (Perry, supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955, internal quotation marks omitted.)

The voter's information pamphlet constitutes a limited public forum.   It is not a traditional public forum, such as a street or a park.   It is a forum created by the State for discussion of a certain subject.   The State has established the voter's pamphlet so that election issues may be debated.   After the voter's pamphlet is assembled, it is disseminated to the voters.

Other courts have also determined that the voter's pamphlet is a limited public forum.   The voter's pamphlet as a limited public forum was acknowledged in Patterson v. Board of Supervisors, supra, 202 Cal.App.3d at p. 29, 248 Cal.Rptr. 253, and in Gebert v. Patterson, supra, 186 Cal.App.3d at p. 874, 231 Cal.Rptr. 150.   More recently, the Ninth Circuit reached the same conclusion in Kaplan v. County of Los Angeles (9th Cir.1990) 894 F.2d 1076, 1080.

B. CONTENT–BASED

 Having concluded that the voter's pamphlet is a limited public forum, we must now consider whether section 10012.1 restricts speech based upon content.   If section 10012.1 is content-based, then the state must show that section 10012.1 is narrowly drawn and necessary to further a compelling government interest.  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955.)   On the other hand, if section 10012.1 merely regulates the time, place or manner of communication, then the state need only show that the restriction is reasonable.  (Ibid.)

We conclude that section 10012.1 is a content-based regulation.   It regulates the message that is contained in the statement.   In particular, section 10012.1 prohibits “reference to other candidates for judicial office or to another candidate's qualifications, character, or activities.”   It also provides that candidates may refer only to their personal background and qualifications.   Statements containing a different message cannot be “printed or circulated.”  (§ 10012.1.)   Accordingly, section 100012.1 does not merely regulate the time, place or manner in which candidates' statements are communicated.   To the contrary, section 10012.1 quite clearly restricts what the candidates may say.   As emphasized in Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, “[t]he operative distinction is the message [in the candidate's statement.]”

C. COMPELLING INTEREST

 Because section 10012.1 is content-based, the state must demonstrate that it is necessary to further a compelling government interest and that it is narrowly tailored to serve that interest.   Respondent argues that section 10012.1 furthers the compelling government interest in the impartiality and integrity of the judiciary.   We agree that this interest is compelling.

Maintaining the integrity and impartiality of the judiciary has been characterized as being of the “highest importance.”  (Unger v. Superior Court, supra, 37 Cal.3d at p. 622, 209 Cal.Rptr. 474, 692 P.2d 238, [Grodin, Acting C.J., concurring].)   A number of courts have characterized this interest as compelling.  (See e.g. In re Kaiser (1988) 111 Wash.2d 275, 759 P.2d 392, 399;  Berger v. Supreme Court of Ohio (S.D.Ohio 1984) 598 F.Supp. 69, 75;  In re Hinds (1982) 90 N.J. 604, 449 A.2d 483, 489.)   In Clements v. Fashing (1982) 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508, the Supreme Court noted the state's “particular interest in maintaining the integrity of the judicial system ․” (Id. at p. 968, fn. 5, 102 S.Ct. at p. 2846, fn. 5;  see also Landmark Communications, Inc. v. Virginia (1978) 435 U.S. 829, 841, 98 S.Ct. 1535, 1542, 56 L.Ed.2d 1.)   The judiciary must be an impartial arbiter of the law, apply the law in an evenhanded manner, and avoid being oriented toward a particular result.   An independent and impartial judicial system is essential to our system of government.   In sum, we conclude that preserving the integrity and impartiality of the judiciary is a most compelling interest.

D. FURTHERS COMPELLING INTEREST

Whether restricting the speech of candidates for judicial office furthers judicial integrity and impartiality is less clear.  Section 10012.1 limits judicial speech in two ways.   First, it limits judicial candidates to a “recitation of the candidate's own personal background and qualifications.”   Second, it prohibits judicial candidates from referring to other candidates for judicial office or another candidate's “qualifications, character, or activities.”  (§ 10012.1.)

Does restricting candidates' speech to discussion of their own background and qualifications promote judicial integrity and impartiality?   If so, then it must be because discussion of other subjects threatens judges' ability to be impartial.   On the one hand, judges have opinions about controversial issues.  (See e.g. Westin, Out-of-Court Commentary by United States Supreme Court Justices, 1790–1962:  Of Free Speech and Judicial Lockjaw (1962) 62 Colum.L.Rev. 633;  but see Note, Extrajudicial Activity of Supreme Court Justices (1969) 22 Stan.L.Rev. 587, 594.)   Prohibiting them from expressing those views in the candidate's statement does not necessarily mean those views will or will not impact the way judges decide cases.   It means only that those views will be shielded from public scrutiny.  (Cf. Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 97, 97 S.Ct. 1614, 1620, 52 L.Ed.2d 155 [“ ‘remedy to be applied is more speech, not enforced silence’ ”] quoting Whitney v. California (1927) 274 U.S. 357, 377, 47 S.Ct. 641, 649, 71 L.Ed. 1095 [Brandeis, J., concurring].)

On the other hand, judicial candidates are different from candidates for legislative or executive office.   These differences may justify stricter regulation of the campaign speech of judicial candidates.   A judicial candidate should not run on a platform or have an agenda.   A judicial candidate should not make campaign promises about how a particular case will be decided.   Judges decide cases based upon specific facts;  they do not implement broad policies.   To the extent that section 10012.1 prohibits this type of speech, it furthers judicial integrity and impartiality.

In addition, although judicial candidates have opinions about disputed issues, those views may not be particularly useful to a judge's role as an impartial arbiter of the law.   It is true that judges are not fungible;  different judges decide cases differently.  (See e.g. Chandler v. Judicial Council (1970) 398 U.S. 74, 137, 90 S.Ct. 1648, 1680, 26 L.Ed.2d 100 [Douglas, J., dissenting].) ⁴  Yet by announcing their views during an election, judicial candidates might imply that they have already made up their minds about some issues.   Moreover, once those views are revealed, judges could feel compelled to decide cases accordingly.

We turn next to the statute's restriction on references to other judicial candidates.   Does this restriction further judicial integrity and impartiality by preventing candidates from criticizing each other?   We doubt that it does.   After all, criticism of the judiciary is hardly a novel concept.   As we well know, justices are often criticized.  “If [the judge] was said to be wrong on his law, it is no matter;  appellate courts and law reviews say that of judges daily, and it imputes no disgrace.   Dissenting opinions in our reports are apt to make petitioner's speech look like tame stuff indeed.”  (In re Sawyer (1959) 360 U.S. 622, 635, 79 S.Ct. 1376, 1383, 3 L.Ed.2d 1473.) ⁵

If the integrity and impartiality of judges is not compromised by such activity outside the election context, then why should it be compromised during a campaign?   During an election, interest in judges' views is at its height.   (Cf. Bridges v. California (1941) 314 U.S. 252, 268, 62 S.Ct. 190, 196, 86 L.Ed. 192.)   Once it is agreed that judges are subject to the electoral process, the electorate should arguably be given as much information as possible upon which to base its vote.  (Cf. Anderson v. Celebrezze (1983) 460 U.S. 780, 797–798, 103 S.Ct. 1564, 1574–1575, 75 L.Ed.2d 547 [the Court has “greater faith in the ability of individual voters to inform themselves about campaign issues” and “State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.”].)

Similarly, section 10012.1 applies only to the candidate's statement in the voter's pamphlet.   It does not prohibit criticism outside this forum.   Because its application is limited, the link between section 10012.1 and judicial integrity and impartiality is tenuous.⁶

Nonetheless, we think that section 10012.1 likely furthers the appearance of judicial integrity and impartiality.   During an election, candidates may have an incentive to engage in more harmful rhetoric than they otherwise might.   Even if such tactics do not affect their ability to decide cases, this behavior would erode the public's confidence in the judiciary.   It is reprehensible to see politicians engage in a scurrilous campaign;  it would be even more galling if the candidate was aspiring to judicial office.   The public's faith in the judiciary as an impartial arbitrator of the law could be threatened.   The public's willingness to abide by judicial decrees could also be endangered.⁷

Appellant's candidate statement exemplifies the troublesome nature of such criticism.   His cursory description of Judge Silver's cases distorts both the facts and applicable legal principles.   Similarly, the statement that “criminal activity is being dismissed” panders to the public's fear of crime and incorrectly suggests that dismissal of a criminal case is per se improper.   This type of attack harms the public's perception of appellant's integrity and impartiality just as it damages the public's perception of the integrity and impartiality of his opponent.

Finally, we must address respondent's argument that section 10012.1's content-based restrictions are necessary because the voter's pamphlet carries the imprimatur of the state and is publicly funded.

 We reject this contention.   First, we do not believe the voter's pamphlet carries the imprimatur of the State any more than any other limited public forum or public forum.   Indeed, this contention turns the notion of public and limited public forums on its head.   Any state park, street, or university would be subject to strict regulation because listeners might believe the state or university approved every message conveyed.  (See e.g. Widmar v. Vincent, supra, 454 U.S. at p. 274, 102 S.Ct. at p. 276 [state university];  Police Department of Chicago v. Mosley, supra, 408 U.S. 92, 92 S.Ct. 2286 [city street].)   Moreover, the concern that voters might be unduly influenced by a state imprimatur could be avoided by placing an appropriately worded disclaimer within the voter's pamphlet.

Second, unless they are indigent, candidates must pay a portion of the costs associated with publication of the voter's pamphlet.  (§§ 10012, 10012.3;  see also Kaplan v. County of Los Angeles, supra, 894 F.2d at p. 1078.)   As to any other share of the costs, it is a fact that public forums and limited public forums are often partially subsidized by taxpayers.

 Finally, the fact that section 10012.1 only restricts speech within the voter's pamphlet does not make it more permissible under the First Amendment.   In other words, it does not suffice to characterize the voter's pamphlet as an additional forum created by the state, one which the candidate is privileged to use.   If this analysis was followed, then any limited public forum, which the state has expressly dedicated for speech activity, would be subject to content-based restrictions because speakers could always convey their messages in traditional public forums, such as streets and parks.   For example, the university's content-based regulation in Widmar v. Vincent, supra, 454 U.S. 263, 102 S.Ct. 269, would be permissible because the students could discuss religious matters in traditional public forums.

 Simply put, once the state decides to publish the voter's pamphlet, it may not “[enjoy] the same total control over the content of the [voter's pamphlet as a private publisher.  [Citation omitted.]”   (Bailey v. Loggins (1982) 32 Cal.3d 907, 918, 187 Cal.Rptr. 575, 654 P.2d 758.)   This is because “the state, having established an activity which has the elements of free expression, must take account of First Amendment considerations in restricting that expression.”  (Id. at p. 919, 187 Cal.Rptr. 575, 654 P.2d 758.)

In sum, we believe that section 10012.1 may further judicial integrity and impartiality by prohibiting judicial candidates from engaging in political promises or representations in the voter's pamphlet.  Section 10012.1 also furthers the appearance of judicial integrity and impartiality by preventing judicial candidates from criticizing each other.

However, even if section 10012.1 furthers these concededly compelling interests, its content-based restrictions still must be necessary to achieve those ends.   In short, having considered section 10012.1's impact upon judicial integrity and impartiality, the clash between First Amendment values and section 10012.1 is quite apparent.   In order to resolve the tension between these two competing concerns, we will consider several cases decided by other courts.   Although the United States Supreme Court has not yet addressed this precise issue, several of the Court's opinions, along with those of other courts, assist us in our analysis.   We examine some of these cases below.

The Supreme Court has repeatedly invalidated contempt convictions when the convictions were based upon criticism of the judiciary or judicial system.   These cases rejected the contention that such criticism posed a clear and present danger to the fair and orderly administration of justice.  (Bridges v. California, supra, 314 U.S. 252, 62 S.Ct. 190;  Wood v. Georgia (1962) 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569;  Pennekamp v. Florida, supra, 328 U.S. 331, 66 S.Ct. 1029.)

Garrison v. Louisiana (1964) 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 involved a conviction for defamation, instead of contempt.   In Garrison, a district attorney described several judges as “vacation-minded” and attributed a large case backlog to their “inefficiency and laziness.”   The Court concluded that the criminal defamation statute did not satisfy the requirements of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 because it prohibited true statements made with ill will.

Of course, neither Garrison, nor Bridges, Wood or Pennekamp involved criticism between judges or candidates for judicial office.

Several courts have considered the propriety of disciplining attorneys or judges for criticizing the judiciary.  In re Sawyer (1959) 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 concerned an attorney charged with impugning the impartiality of a judge.   Distinguishing between criticizing the law or a judge's interpretation of the law from charging that a judge was “corrupt or venal or stupid or incompetent,” the Court decided the attorney's suspension was improper, given that the attorney's statements “did not cross that line.”  (Id. at pp. 635–636, 79 S.Ct. at p. 1383.)

Berger v. Supreme Court of Ohio (1984) 598 F.Supp. 69 considered the constitutionality of Ohio's Code of Judicial Conduct.8  Canon 7 of the Code provided that “A candidate, including an incumbent judge, for judicial office:  ․ (c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;  announce his views on disputed legal or political issues;  or misrepresent his identity, qualifications, present position, or other fact.”  (Id. at p. 72.)

Interestingly, the Berger court interpreted the Canon to prohibit only untruthful or misleading criticism of the judiciary.  (Berger v. Supreme Court of Ohio, supra, 598 F.Supp. at p. 75.)   The court reasoned that the Canon was necessary to achieve a compelling state interest in assuring that “elected judges are protected from untruthful criticism and that judicial campaigns are run in a manner so as not to damage the actual and perceived integrity of state judges and the bar;  ․” (Ibid.)  Accordingly, the court determined the petitioner had not demonstrated that those interests were outweighed by “whatever intrusion on the First Amendment is caused by prohibiting judicial candidates from making misleading or fallacious statements or political pledges.”  (Id. at p. 76.)  (Emphasis added.)

In Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 829, 98 S.Ct. 1535, a newspaper accurately reported on an inquiry before the state judicial review commission.   The conduct of a state judge was being investigated.   Shortly thereafter, the newspaper was indicted for violating a statute which imposed criminal sanctions for publication of such information.   The newspaper was found guilty, and fined $500 plus costs of prosecution.

The Virginia Supreme Court affirmed the conviction.   The court identified three interests served by the confidentiality requirements.   These were “(a) protection of a judge's reputation from the adverse publicity which might flow from frivolous complaints, (b) maintenance of confidence in the judicial system by preventing the premature disclosure of a complaint before the Commission has determined that the charge is well founded, and (c) protection of complainants and witnesses from possible recrimination by prohibiting disclosure until the validity of the complaint has been ascertained.”   (Landmark Communications, Inc. v. Virginia, supra, 435 U.S. at p. 833, 98 S.Ct. at p. 1538.)

The United States Supreme Court reversed.   In so doing, the Court reasoned that the speech sought to be punished “lies near the core of the First Amendment.”  (Landmark Communications, Inc. v. Virginia, supra, 435 U.S. at p. 838, 98 S.Ct. at p. 1541.)   The Court rejected the notion that the Commonwealth's interest in protecting the reputation of its judges justified suppressing speech.  (Id. at p. 842, 98 S.Ct. at p. 1543.)   The Court also decided that “the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.”  (Ibid.)

Brown v. Hartlage (1982) 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 involved First Amendment concerns in an election context.   In Brown, a candidate promised to lower his salary if elected.   After losing the election, his opponent filed suit to declare the election void.   The opponent alleged the candidate's promise violated the Kentucky Corrupt Practices Act.   In considering whether the Act violated the First Amendment, the Supreme Court recognized that the states have a legitimate interest in preserving the integrity of their electoral processes.   Because the Act restricted a candidate's ability to communicate ideas to the voters, the court stated that the restriction had to be supported by a compelling state interest and should “operate without unnecessarily circumscribing protected expression.”  (Id. at pp. 53–54, 102 S.Ct. at pp. 1528–1529.)   The Court concluded that the Act failed to satisfy this test.  (See also Eu v. San Francisco Cty. Democratic Cent. Com. (1989) 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271.)

In CSC v. Letter Carriers (1973) 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796, federal civil service employees challenged the constitutionality of a federal law prohibiting them from actively participating in political management or political campaigns.   The Court upheld the law, concluding that it was necessary to preserve the merit system, avoid corruption and to prevent employees from being subjected to political pressure from their superiors.   The Court also noted that it was critical that federal employees “appear to the public to be avoiding [partisan activity], if confidence in the system of representative Government is not to be eroded to a disastrous extent.”  (Id. at p. 565, 93 S.Ct. at p. 2890.)   Although the act prohibited partisan activities by federal employees, the employees were not prohibited from expressing their opinion on political subjects and candidates.  (Id. at pp. 575–576, 93 S.Ct. at 2895–2896;  see also Broadrick v. Oklahoma (1973) 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830.)

Letter Carriers provides the best support for restricting the campaign speech of judicial candidates.   Just as restrictions upon partisan political activities of federal employees are necessary to “serve this great end of Government-the impartial execution of the laws,” and to avoid the appearance of “practicing political justice,” some type of restriction upon the campaign speech of judicial candidates may also be necessary.  (CSC v. Letter Carriers, supra, 413 U.S. at p. 565, 93 S.Ct. at p. 2890.)

Nonetheless, we conclude that section 10012.1 cannot be upheld.   We do so despite the fact that the integrity and impartiality of the judiciary is a most compelling interest.   We do so even though section 10012.1 may further judicial integrity and impartiality, and despite its usefulness in furthering the public's perception that these qualities exist.   There are two reasons why we reach our result.   First, section 10012.1 is not narrowly tailored.   Second, and more importantly, section 10012.1 is undoubtedly a prior restraint of speech.

E. NARROWLY TAILORED

 Assuming section 10012.1 is necessary to further a compelling interest, it also must be narrowly tailored to achieve that interest.   As we shall explain below, section 10012.1 fails to satisfy this test.

 Content-based prohibitions must be narrowly drawn.  (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460 U.S. at p. 46, 103 S.Ct. at p. 955.)   This is because state regulation “must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.”   (Cantwell v. Connecticut (1940) 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213.)

 Statutes which are overbroad not only prohibit speech or conduct which is not constitutionally protected, but also prohibit speech or conduct within the First Amendment's protection.  (See e.g. Shelton v. Tucker (1960) 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, [statute requiring teachers to list membership in all organizations had an “indiscriminate sweep” and exceeded state's legitimate inquiry into the teachers' competency and fitness];  Lewis v. City of New Orleans (1974) 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 [ordinance prohibiting cursing, reviling, or using obscene or opprobrious language with respect to a police officer was overbroad];  Kunz v. New York (1951) 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 [ordinance both overbroad and prior restraint].)

 Section 10012.1 is not narrowly drawn.   It includes within its scope protected activity.   Under section 10012.1, candidates are prohibited from making any reference to their opponents.⁹  The statute prohibits statements, both true and false.¹⁰  It forbids reference to another judicial candidate, whether the speech be scurrilous, critical, neutral, or approving.

How could the statute be improved?   It could prohibit pledges or promises other than the faithful and impartial performance of the duties of the office.   It could prohibit false or misleading statements.   Such prohibitions would further judicial impartiality and integrity and the appearance of these qualities and less severely infringe upon speech protected by the First Amendment.

In sum, all types of speech fall victim to section 10012.1's prohibition.   The “unlimited and indiscriminate sweep” of the statute far exceeds what might be necessary to protect the integrity and impartiality of the judiciary.  (Shelton v. Tucker, supra, 364 U.S. at p. 490, 81 S.Ct. at p. 253.)

F. PRIOR RESTRAINT

 Even if section 10012.1 were not overbroad, there would be an additional reason for deciding that it should be invalidated.  Section 10012.1 suppresses speech before publication.   Moreover, it entrusts the decision regarding publication to “the clerk.”   If one thing is clear in First Amendment jurisprudence, it is that such prior restraints cannot be tolerated.

“ ‘To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion and government.’ ”  (Nowak, Rotunda & Young, Constitutional Law (2d ed. 1983) ch. 18, § V, p. 886, quoting 4 W. Blackstone, Commentaries on the Laws of England (2d ed. rev. 1872) 151–152.)

 Prior restraints clash with the First Amendment's emphasis upon a “marketplace” of ideas.  (Nowak, Rotunda & Young, Constitutional Law, supra, ch. 18, § V, p. 887.)   Prohibiting speech from being published, as opposed to punishing it after publication, prevents the speech from reaching the public, and makes it impossible for the public to assess for itself the value of such speech.   A prior restraint diminishes both the diversity and number of ideas available for public discussion.   For these reasons, any type of prior restraint, “ ‘comes to this Court bearing a heavy presumption against its constitutional validity.’ ”  (Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at p. 558, 95 S.Ct. at p. 1246, quoting Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584.)

In Near v. Minnesota (1931) 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, the United States Supreme Court determined that prior restraints regarding the malfeasance of public officials violated the First Amendment.   A state statute declared that publishing any “malicious, scandalous, and defamatory newspaper, magazine or other periodical” was a public nuisance.   An injunction was issued preventing the defendant from publishing a newspaper accusing public officials of various types of misconduct.

In striking down the statute, the Supreme Court reasoned that the statute operated to suppress speech and subjected the publisher to censorship.   (Near v. Minnesota, supra, 283 U.S. at pp. 710–712, 51 S.Ct. at p. 629.)   The Court stressed that the main purpose of the freedom of press guarantee was to prevent prior restraints upon publication.  (Id. at pp. 713–715, 51 S.Ct. at p. 630.)   As a result, the court explained a prior restraint could be justified in only three exceptional cases.   These were (1) to enable a “government [to] prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops;”  (2) to restrain the publication of obscene materials if decency so required;  and (3) to avoid “incitements to acts of violence and the overthrow by force of orderly government.”  (Id. at p. 716, 51 S.Ct. at p. 631, fn. omitted.)   The statute met none of these exceptions.   To the contrary, the court concluded it was “the essence of censorship.”  (Id. at p. 713, 51 S.Ct. at p. 630.)

More recently, the Court refused to restrain publication of the “Pentagon Papers” even though the government argued that publication would breach national security.  (New York Times Co. v. United States (1971) 403 U.S. 713, 91 S.Ct. 2140.)   In Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 95 S.Ct. 1239, the city refused to permit a municipal theater to be used for the showing of the musical “Hair.”   The Court concluded the refusal to permit use of the theatre constituted a prior restraint.   This was because public officials possessed “the power to deny use of a forum in advance of actual expression.”  (Id. at p. 553, 95 S.Ct. at p. 1244.)

Section 10012.1 is clearly a prior restraint.   It prohibits a judicial candidate's speech in advance of publication.   Moreover, it places the decision whether to publish in the hands of the clerk.   It is left up to this individual to determine whether or not the candidate's statement meets the strictures of section 10012.1.   For example, is the Police Chiefs' Association's endorsement of appellant a qualification for judicial office?   That decision, as well as others affecting the information which the public is to receive, are relegated to “the authority of the censor.”  (Near v. Minnesota, supra, 283 U.S. at p. 721, 51 S.Ct. at p. 633.)

It is true that section 10012.1 is not a total ban upon speech because it does not effect speech outside the voter's pamphlet.   In other words, section 10012.1 does not restrict speech in every forum, or through every possible method of communication.   However, we do not think this impacts upon its characterization as a prior restraint.  (Nowak, Rotunda & Young, Constitutional Law, supra, ch. 18, § V, pp. 889–890.)   Indeed, most statutes or regulations apply only to a particular forum, or means of communication.   See e.g. Near v. Minnesota, supra, 283 U.S. 697, 51 S.Ct. 625 [information published by newspaper, magazine, or periodical];  Kunz v. New York, supra, 340 U.S. 290, 71 S.Ct. 312 [religious meetings on the city streets];  Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 95 S.Ct. 1239 [access to municipal theater].)

Finally, these circumstances clearly are not sufficiently extraordinary to overcome the heavy presumption against the invalidity of prior restraints.   These facts do not involve any of the exceptions addressed in Near v. Minnesota, supra, 283 U.S. at pp. 711–716, 51 S.Ct. at pp. 629–631.   This is not a case where military security is at issue.   Nor is it a case where publication of the candidate's statement is likely to cause “incitements to acts of violence and the overthrow by force of orderly government.”  (Id. at p. 716, 51 S.Ct. at p. 631.)   To the contrary, section 10012.1 represents, quite simply, government censorship in its most pernicious form.   We must be faithful to the values underlying the First Amendment.   We therefore conclude that section 10012.1 constitutes a prior restraint of speech and cannot be upheld.

G. RESPONSE TO DISSENT

We will now respond to the arguments raised by the dissent.   We chose to respond here, rather than in the body of our analysis, in order to attempt to untangle some of the issues raised by the dissent and because the dissent's analysis proceeds in a manner different from our own.   We will first consider the issue of the legislative history of section 10012.1, and then turn to the dissent's arguments regarding the nature of the voter's pamphlet.

 The dissent concludes that section 10012.1 does not violate the First Amendment.   As we understand it, this conclusion is based, in part, upon the legislative history of the statute.   We are reminded for instance, that the bill enacting section 10012.1 was presented to the Governor with the assurances of the Legislative Counsel that “the bill, if chaptered, will be constitutional.”   But we do not believe legislative history impacts upon the doctrine of prior restraint.   Nor have we been able to find any authority for the proposition that legislative history eviscerates First Amendment analysis.

In fact, the Supreme Court has reached the opposite conclusion.   In Landmark Communications, Inc. v. Virginia, supra, 435 U.S. at 829, 98 S.Ct. at 1535, the Court emphasized, “Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.”  (Id. at p. 843, 98 S.Ct. at p. 1544.)  “Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified.”  (Id. at p. 844, 98 S.Ct. at p. 1544.)

The Legislature enacts statutes.   The Judiciary determines whether they are constitutional.   To conclude that section 10012.1 is constitutional because it does exactly what the Legislature intended it to do thoroughly sidesteps the First Amendment issues at stake.   For this reason, we respectfully disagree with this portion of the dissent's reasoning.

We now consider the dissent's arguments regarding the nature of the voter's pamphlet.   The dissent contends the candidate's statements are not a forum for “uninhibited, robust, and wide-open” debate insomuch as “debate,” in a literal sense, means an ongoing exchange of information.   According to the dissent, the candidate's statement is a forum for discussion of the qualifications and personal background of the candidate, and nothing else.

We respectfully suggest that this approach begs the question.   It would be a simple matter to define a forum according to its content-based restrictions.   A limited forum would be limited by what the Legislature deems permissible.   This is what the dissent seems to say.   Although we recognize that a forum may have a particular purpose, such as discussion of election issues, the dissent carries this one step further by stating that the purpose behind a statute justifies its content-based restrictions.   We think the dissent's approach would swallow the rule.

Widmar v. Vincent, supra, 454 U.S. 263, 102 S.Ct. 269 demonstrates the problem with the dissent's analysis.   In Widmar, the university's regulation prohibited use of university facilities “ ‘for purposes of religious worship or teaching.’ ”  (Ibid.)  Using the dissent's reasoning, the Widmar regulation would be acceptable because the university's facilities were not designed to be a forum where religious matters could be debated.   In fact, in Widmar, the university sought to justify the regulation on the grounds that its “institutional mission” was to provide a secular education to its students.  (Id. at p. 268, 102 S.Ct. at p. 273.)   Of course, Widmar rejected that argument and concluded that the regulation violated the First Amendment.

The dissent does not expressly state whether the voter's pamphlet is a public forum, limited public forum or nonpublic forum.   However, the dissent concludes “In my view the state does not seek to restrict a forum traditionally available for debate, or withdraw rights of expression previously granted or acknowledged.”   This language suggests the voter's pamphlet constitutes a nonpublic forum.   If that is the intent of the dissent then this contradicts the reasoning of every court that has considered the issue.  (Patterson v. Board of Supervisors, supra, 202 Cal.App.3d at p. 29, 248 Cal.Rptr. 253;  Gebert v. Patterson, supra, 186 Cal.App.3d at p. 874, 231 Cal.Rptr. 150;  Kaplan v. County of Los Angeles, supra, 894 F.2d at p. 1080.)   Given that the voter's pamphlet is expressly dedicated to speech activity, we fail to see how it could be characterized as a nonpublic forum.  (Cf. U.S. v. Kokinda (1990) 497 U.S. 720, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571.)

 We also find the dissent's reliance upon the idea of “debate” and “invitations to debate” troublesome.   As an example, the dissent concludes that “because the opponent simply cannot respond to the invitation within the voter's pamphlet itself the invitation to debate should be foreclosed in the first instance.”   We do not believe that First Amendment protections have ever been defined by the availability of some form of equal debating opportunities between individuals with differing viewpoints.   We respectfully suggest that the dissent has confused the manner in which speech is presented with the message being conveyed.   The voter's pamphlet limits the manner of speech presentation, just as it limits it to a certain time and place.   Candidates' statements cannot exceed a certain length.   Candidates are afforded a “one-shot” chance to speak via the voter's pamphlet.   They are not permitted an opportunity for answer or rebuttal.   The state's decision to regulate the manner in which the speech is presented cannot be a basis for justifying the regulation of the message conveyed.

 In fact, we doubt any public forum or limited public forum ever ensures that listeners hear both sides of every issue.   Speech is often “unfairly one-sided.”   Yet the remedy for such unfairness should not be enforced silence.   Because it is impossible to debate the issues in 200–400 words or less, the dissent contends candidates would be better off engaging in no debate at all.   We respectfully reject such an interpretation of the First Amendment.   In short, once the state permits a segment of the public—candidates for judicial office—access to the voter's pamphlet, “it may not select what issues are worth discussing or debating․”  (Police Department of Chicago v. Mosley, supra, 408 U.S. at p. 96, 92 S.Ct. at p. 2290.)

 Moreover, we do not think that the state's interest in preserving electoral integrity and fairness saves section 10012.1.   This is because of the long line of cases taking a different approach.  (Brown v. Hartlage, supra, 456 U.S. 45, 102 S.Ct. 1523;  Eu v. San Francisco Cty. Democratic Cent. Com., supra, 489 U.S. 214, 109 S.Ct. 1013;  Anderson v. Celebrezze, supra, 460 U.S. 780, 103 S.Ct. 1564.)

Finally, we would set a damaging precedent if we failed to give the highest deference to the First Amendment.   Statutes can be amended to comport with the Constitution.   But the right of free speech should never yield to facilitate statutory analysis.   To do otherwise would risk irreparable harm to our society as a whole.

CONCLUSION

Section 10012.1 is overbroad and not narrowly drawn to effectuate a compelling interest.   It also operates as a prior restraint of speech.   Accordingly, section 10012.1 violates the First Amendment of the United States Constitution.   The judgment of the trial court is reversed.   Costs to appellant.¹¹

I agree with much of what the majority says, although I respectfully dissent from its conclusion that on its face Elections Code section 10012.1 violates the First Amendment.   I agree the issue should be reached notwithstanding the actual dispute between the parties is now moot.   I agree that the state's interest in the impartiality and integrity of the judiciary is a most compelling one.   I also agree that section 10012.1 in a literal sense restricts speech on the basis of its content.   But I find no constitutionally impermissible restraint on freedom of expression.   It is well established that neither First Amendment rights nor comparable rights under the California Constitution are absolute.   Rather “we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented.”  (Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 106, 99 S.Ct. 2667, 2672, 61 L.Ed.2d 399 (conc. opn. of Rehnquist, J.).)   In my view any restraint arguably imposed by section 10012.1 is not only necessary to further the state's compelling interests in the fairness and integrity of the electoral process, but is also sufficiently narrowly drawn to withstand constitutional challenge.

Alternatively appellant contends that section 10012.1 denies him equal protection of the laws.   I would reject this contention as well, and would affirm the trial court's order.

1. Freedom of Expression

Appellant takes the position that section 10012.1 violates guarantees of freedom of expression contained in both federal and state constitutions.   But beyond a passing suggestion that the California guarantee is “ ‘more definite and inclusive than the First Amendment.’ ” (cf. Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116), appellant does not develop a separate argument under the free speech clause of the California Constitution.  (Cal. Const., art. I, § 2(a).)

Appellant argues that section 10012.1 constitutes an impermissible “prior restraint” on his right to engage in political debate.   Although he acknowledges that the section applies only to candidates' statements, he argues his position in broad terms, culminating in an assertion that “[s]ection 10012.1 allows the government to control the political truth by protecting incumbents and censoring speech on the entire topic of c[o]mparisons of candidates.”

Appellant's assertions evoke comparably broad legal generalizations.   Any statute that purports prospectively to limit what a citizen would otherwise be free to say or write will raise the spectre of a prior restraint on expression.  (Cf. Tribe, American Constitutional Law (2d ed. 1988) §§ 12–34, pp. 1039–1042.)   The intensity of concern as to whether there is in fact a prior restraint and (if so) whether the restraint is of constitutional significance may be traced, historically, to aversion to administrative licensing, and thus censorship, of the press in England.  (Cf. Near v. Minnesota (1931) 283 U.S. 697, 713–714, 51 S.Ct. 625, 630, 75 L.Ed. 1357;  Wilson v. Superior Court, supra, 13 Cal.3d 652, 657, 119 Cal.Rptr. 468, 532 P.2d 116;  Emerson, The Doctrine of Prior Restraint (1955) 20 Law & Contemp.Probs. 648, 650–652.)   Any state-sponsored prior restraint on expression will be subject to close scrutiny under the First Amendment, made applicable with respect to the actions of state governments by the Fourteenth Amendment.  (Near v. Minnesota, supra, 283 U.S. 697, 707, 51 S.Ct. 625, 627;  cf. New York Times Co. v. United States (1971) 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822.)   When the restraint falls on communication in an election context, First Amendment concerns are implicated with particular clarity.  (Cf. Eu v. San Francisco Democratic Comm. (1989) 489 U.S. 214, 223, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271;  Buckley v. Valeo (1976) 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659;  Monitor Patriot Co. v. Roy (1971) 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35;   Wilson v. Superior Court, supra, 13 Cal.3d 652, 654–655, 660–661, 119 Cal.Rptr. 468, 532 P.2d 116;  cf. also Brown v. Hartlage (1982) 456 U.S. 45, 52–54, 61, 102 S.Ct. 1523, 1528–1529, 1533, 71 L.Ed.2d 732;  Mills v. Alabama (1966) 384 U.S. 214, 218–219, 86 S.Ct. 1434, 1436–1437, 16 L.Ed.2d 484.)

“To assess the constitutionality of a state election law, we first examine whether it burdens rights protected by the First and Fourteenth Amendments.   [Citations.]”  (Eu v. San Francisco Democratic Comm., supra, 489 U.S. 214, 222, 109 S.Ct. 1013, 1019;  cf. Anderson v. Celebrezze (1983) 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547.)   Does section 10012.1 effect a restraint upon freedom of expression?   I am not persuaded it does.   My reservation is born of a consideration of the purpose and meaning of section 10012.1—what it does and does not do—in light of its history and considered in its full statutory context.

Section 10012.1 was enacted only 11 years ago, in April 1980.   This is its first reported court test.

The basic provision for candidates' statements is Elections Code section 10012, which was derived from a statute first enacted in 1965.   At all relevant times section 10012 has provided that a candidate for any nonpartisan elective office in a local agency (which would include any California trial judgeship) may prepare a candidate's statement to be printed in a voter's pamphlet sent to each voter with his or her sample ballot.   The statement “may include the name, age and occupation of the candidate and a brief description of no more than 200 words, of the candidate's education and qualifications expressed by the candidate himself or herself.”   The local agency may increase the maximum number of words from 200 to 400.   All candidates' statements are to be printed in the voter's pamphlet in type of uniform size and darkness, and with uniform spacing.   A candidate who files a statement may be required to pay a pro rata share of printing, handling, translating, and mailing expenses.   Filing deadlines for candidates' statements apply essentially uniformly to all candidates for a given office.   Once submitted a candidate's statement may be withdrawn but may not be changed by the candidate, and there is no provision for answer or rebuttal to another candidate's statement.

In 1980 section 10012 also provided that the clerk of the local agency, with whom the candidate's statement was to be filed, “shall reject any statement, which contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of sex, race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress.”   (Cf. Stats.1978, ch. 1288, § 1, p. 4216.)

Since 1976 Elections Code section 10015 has provided, in pertinent part, that “[a]ny voter may seek a writ of mandate alleging that an error or omission has occurred or is about to occur in the ․ printing of, a ․ voter pamphlet ․, or that any neglect of duty has occurred or is about to occur.   [¶] A peremptory writ of mandate shall issue only upon proof that the error, omission or neglect is in violation of this code or the Constitution and that issuance of the writ will not substantially interfere with the conduct of the election.”

The meaning and the constitutionality of section 10012's limitations on the content of a candidate's statement came before an appellate court in Loza v. Panish (1980) 102 Cal.App.3d 821, 162 Cal.Rptr. 596, filed in February 1980.   A petitioner had invoked section 10015 to compel a local registrar-recorder (functioning as a “clerk” within the meaning of section 10012) “to reject any candidate's statement submitted under ․ section 10012 that contains any reference to anything other than the candidate's own ‘education and qualifications' and particularly any candidate's statement that contains any reference to any opposing candidate.”  (Id. at pp. 822–823, 162 Cal.Rptr. 596.)   The trial court denied the writ of mandate.   The Court of Appeal affirmed the denial, holding that (absent “adequate legislative history associated with the statute in question”) “a candidate's statement may include information regarding his qualifications which goes beyond mere personal data respecting his name, age, occupation and education.”  (Id. at p. 824, 162 Cal.Rptr. 596.)   The court also held that section 10012's provision for rejection of a statement which contains obscene, vulgar, profane, or other enumerated matters violated constitutional rights of freedom of expression “in spite of the fact the Legislature's action in providing by statute a means whereby political candidates may make themselves known to the voting public may be deemed gratuitous.   Having elected to make the candidate's statement available, it must do so subject to constitutional requirements.”  (Id. at p. 826, 162 Cal.Rptr. 596.)

Two justices filed separate concurring opinions in Loza.

One, Justice Compton, succinctly summarized the practical effect of the Court of Appeal's decision and then made a pointed suggestion to the Legislature:  “Once we have determined, as on this record we must, that the ‘candidate's statement’ is not limited to a recitation of his own qualifications and may contain reference to other matters, it necessarily follows that the registrar of voters cannot be constitutionally empowered to determine for himself which matters should or should not be included in the statement.  [¶] I suspect that the Legislature, with noble intentions, desired to afford citizens aspiring to nonpartisan elective office, an inexpensive method of partially escaping from complete anonymity.   Regretfully they have achieved their purpose only at the expense of creating an instrumentality which is susceptible of flagrant abuse.   That evil could have been constitutionally avoided by specifically limiting the statement to a recitation of personal background and qualifications.   That, however, is not what the Legislature did.”  (102 Cal.App.3d at p. 826, 162 Cal.Rptr. 596 (conc. opn. of Compton, J.).)

In the second concurring opinion Justice Beach argued that the trial court's judgment could have been affirmed on the ground the plaintiff had failed to produce proof sufficient to justify a writ of mandate, and therefore the lead opinion need not have reached the constitutional issue.   But having reached the constitutional issue, Justice Beach argued, the lead opinion had resolved it incorrectly:  “The matter at bench is not one of speaking or distributing literature in streets and parks or other public places immemorially held in trust for the use of the public for such purposes.  [Citation.]  The issue here is whether a local government may grant a new privilege to use a particular means of communication and at the same time condition that privileged use.   To pose the question is almost to answer it.   There are cases too numerous to list where the United States Supreme Court has upheld restrictions not only upon time, place and manner of speech and writing, but upon content as well.   Limitations and restriction[s] have been upheld even though the effect thereof is to impose prior restraint.   Merely because the case may involve expression through speech or literature does not mean that it is ‘hands off’ if there appears any restriction thereon.   The reports abound in cases where other public interests justify limitations on the place, manner, time and content of speech.”  (102 Cal.App.3d at pp. 828–829, 162 Cal.Rptr. 596 (conc. opn. of Beach, J.).)   As to the California constitutional free-speech right, “[t]he carrying of a candidate's advertising in a voter's pamphlet is a creation of statute.   It is not a matter resting on constitutional right.   The extent of the privilege to use the pamphlet must be balanced with the California constitutional right of privacy as well as the other interests already discussed.”  (Id. at p. 837, 162 Cal.Rptr. 596.)   Justice Beach concluded the limitations in section 10012 were constitutionally permissible.

The Legislature immediately responded to Loza by unanimously enacting section 10012.1, effective (as an urgency measure) April 3, 1980.   Section 10012.1 provides the specific limitation Justice Compton had suggested, but only with respect to candidates for judicial office:  “In addition to the restrictions set forth in Section 10012, any candidate's statement submitted pursuant to Section 10012 by a candidate for judicial office shall be limited to a recitation of the candidate's own personal background and qualifications and shall not in any way make reference to other candidates for judicial office or to another candidate's qualifications, character, or activities.   The clerk shall not cause to be printed or circulated any statement which the clerk determines is not so limited or which includes any such references.”

The Assembly Judiciary Committee digest of the bill which became section 10012.1 attributed to the bill's author statements that “the legislative intent for allowing candidate's statements was to permit a candidate to present his or her qualifications to the voters at a reasonable cost,” and that “this measure is needed in order to reaffirm the Legislature's intent that candidate's statements in judicial elections should relate only to the candidate's own background and qualifications with no reference to his or her opponent.”   (Assem.Com. on Judiciary Dig., Assem.Bill No. 2251 (1980) p. 2.)   The digest referred to the concurring opinions in Loza, commenting that “this bill apparently passes the tests for constitutionality of at least two of the three justices in this case.”  (Id. at p. 3.)

Upon unanimous passage in both houses of the Legislature the bill was forwarded to the governor with legislative counsel's routine assurance that “the bill, if chaptered, will be constitutional.”   The governor's legal affairs secretary advised the governor that “[t]he bill was introduced ․ in response to complaints in [the author's] district that some candidates were using their campaign statements as a forum for attacking their opponents.  [¶] We agree this is an abuse of such statements which should be corrected.”  (Leg. Affairs Analysis.)   The bill was immediately signed and chaptered.

Two subsequent additions to the statutory scheme are relevant to my analysis.

In 1981 the Legislature added section 10012.7, which provides that candidates' statements “shall remain confidential until the expiration of the filing deadline.”

In 1983 the Legislature added section 10013.5, which provides in pertinent part that the clerk shall make a copy of the voter's pamphlet available for public examination not less than 10 days before it is submitted for printing, and that during the 10–day examination period “any voter ․, or the clerk ․ may seek a writ of mandate or an injunction requiring any or all of the material in [the] voter's pamphlet to be amended or deleted.   A peremptory writ of mandate or an injunction shall issue only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter [which includes sections 10012 and 10012.1], and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law.”   This court has quite recently determined that section 10013.5, on its face, does not violate the First Amendment.  (Drexel v. Mann (1991) 278 Cal.Rptr. 887.)

The statutory scheme of which section 10012.1 is a part patently affords a means by which candidates may, relatively economically by virtue of prorated expense and with the plausibility and dignity afforded by uniform typographical presentation in an official publication prepared and distributed by the local governmental agency, provide to all voters a brief statement of “the candidate's education and qualifications expressed by the candidate himself or herself.”  (Elec.Code, § 10012.)   The manifest state purpose of the scheme is to provide voters with information they might not otherwise receive, and candidates with a means of disseminating information they might not otherwise provide, in the interest of fairness and validity in the election process.   A federal court has concluded that “California created the pamphlets for the specific purpose of allowing a limited class of speakers, the candidates, to address a particular class of topics, statements concerning the personal background and qualifications of the candidate.”  (Kaplan v. County of Los Angeles (9th Cir.1990) 894 F.2d 1076, 1080 [constitutional propriety of provision for pro rata recovery of costs of publishing candidates' statements].)   I agree with Justice Compton, and with the author of the bill that became section 10012.1, that this was the Legislature's intention when it first enacted the substance of section 10012 in 1965.   Whatever the perceived lack of legislative history to support this construction of section 10012 for purposes of Loza, the Legislature has now made its intent quite clear with respect to candidates for judicial office.

It is equally clear that the provisions for candidates' statements have never provided a forum for the “uninhibited, robust and wide-open” debate (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686;  Wilson v. Superior Court, supra, 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116) which is undeniably of the essence of the political process.   Under these statutes, candidates' statements are by no means the equivalent of the written arguments, counterarguments, and rebuttal arguments on ballot propositions, authorized and described in detail elsewhere in the Elections Code.  (Cf. Elec.Code, §§ 3526–3529, 3559–3567, 3570–3571, 3576 [state ballot measures], 3714, 3781–3788, 3795 [county ballot measures], 4015–4015.5, 5010–5016, 5025 [municipal ballot measures], 5157–5157.6, 5215 [district ballot measures], 5322–5328, 5330 [school ballot measures], 5350 [form for written arguments].)

The ballot-proposition provisions clearly do provide for a limited written form of political debate.  (Cf., e.g., Patterson v. Board of Supervisors (1988) 202 Cal.App.3d 22, 248 Cal.Rptr. 253 [upholding sections 3795 and 5025];  Gebert v. Patterson (1986) 186 Cal.App.3d 868, 231 Cal.Rptr. 150 [striking down a San Francisco ordinance requiring payment of a fee as a precondition to inserting an initiative argument in the voter's pamphlet].)   In contrast, section 10012 and the following sections simply do not contemplate or afford an opportunity for debate:  All candidates who wish to furnish statements must do so on or before essentially simultaneous deadlines;  each candidate's statement is confidential, as to every other candidate and to the world, until the filing deadline has passed;  and there is no provision (comparable to the provision for rebuttal arguments on ballot propositions) for any sort of response in the voter's pamphlet.   A candidate dissatisfied with an opponent's statement is limited to a judicial proceeding for amendment or deletion of any material found (on sufficient proof) to be false, misleading, or inconsistent with the statutory scheme (§ 10013.5) or (in an appropriate case) for mandate (§ 10015).   And any final judicial resolution might have to wait until after the election has been decided.

At the same time, neither section 10012.1 nor any other provision of the statutory scheme restricts in any manner the ability of any candidate, whether or not for judicial office, to begin or to participate in full and robust debate by any medium other than the voter's pamphlet.   A candidate's right to use (for example) the public parks and sidewalks, or the newspapers, or the broadcast media, or privately-prepared campaign literature or direct mailings to say whatever he or she pleases, and to respond as he or she pleases to whatever an opponent may say, is unhindered by these Elections Code provisions.

In light of these considerations it is difficult for me to perceive section 10012.1, or the statutory scheme of which it is a part, as a restraint upon freedom of expression.   Without in any degree circumscribing the rights of candidates to use every traditional forum of communication and debate to say whatever they please as often as they wish, the statutory scheme provides an additional means of communication narrowly intended and tailored to serve a constructive public purpose.   In my view the state does not seek to restrict a forum traditionally available for debate, or to withdraw rights of expression previously granted or acknowledged.

Manifestly appellant would disagree.   Appellant's argument appears to me to be that the state may not provide a limited channel of political expression.   Having added the provision for relatively economical candidates' statements (his argument would appear to run), the state became obliged, by virtue of the First and Fourteenth Amendments, to make those statements available for all purposes that could be served within 400 words.

Were I to accept appellant's premise that section 10012.1 represents a prior restraint on political expression, I would be required to test his argument by orthodox constitutional analysis.   I would conclude that the restraint would not violate the First Amendment.

It has long been established that “ ‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’  [Citations.]  The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’   [Citation.]”  (New York Times Co. v. United States, supra, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141;  cf. Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1;  Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584;  Wilson v. Superior Court, supra, 13 Cal.3d 652, 657–658, 119 Cal.Rptr. 468, 532 P.2d 116;  cf. also Near v. Minnesota, supra, 283 U.S. 697, 716, 51 S.Ct. 625, 631.)   At the same time, prior restraints on expression are not unconstitutional per se.  (Cf. Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 569–570, 96 S.Ct. 2791, 2807–2808, 49 L.Ed.2d 683;  Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448;  People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 57, 130 Cal.Rptr. 328, 550 P.2d 600;  American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 211, 28 Cal.Rptr. 700, 379 P.2d 4;  cf. also Wilson v. Superior Court, supra, 13 Cal.3d 652, 661–662, 119 Cal.Rptr. 468, 532 P.2d 116.)   And it has been persuasively suggested that the historically-based and somewhat amorphous prior restraint rubric may sometimes tend to obscure, rather than to aid, analysis.  (Cf. Jeffries, Rethinking Prior Restraint (1983) 92 Yale L.J. 409, 419–437.)

I prefer to go directly to the questions that will resolve the First Amendment issue.  “Especially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, ‘the State may prevail only upon showing a subordinating interest which is compelling,’ [citations] ‘and the burden is on the government to show the existence of such an interest.’  [Citation.]  Even then, the State must employ means ‘closely drawn to avoid unnecessary abridgment․’  [Citations.]”  (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707, fn. omitted.)   As particularized to this case:  Is section 10012.1 essential to a compelling state interest?   If so, is the section narrowly drawn to serve only that interest without unjustified impact on expression unrelated to the interest?

The state has an undeniable interest in the integrity and fairness of the election process.   The interest has been expressly recognized in the context of assertedly countervailing constitutional rights of candidates and voters:  “It is clear that the integrity of elections, essential to the very preservation of a free society, is a matter ‘in which the State may have a compelling regulatory concern.’  [Citation.]”  (Canon v. Justice Court (1964) 61 Cal.2d 446, 452–453, 39 Cal.Rptr. 228, 393 P.2d 428;  cf. Brown v. Superior Court (1971) 5 Cal.3d 509, 524, 96 Cal.Rptr. 584, 487 P.2d 1224;  Schuster v. Municipal Court (1980) 109 Cal.App.3d 887, 895–896, 167 Cal.Rptr. 447;  cf. Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 888–889, 125 Cal.Rptr. 915;  cf. also Brown v. Hartlage, supra, 456 U.S. 45, 52, 102 S.Ct. 1523, 1528.)  “[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”  (Storer v. Brown (1974) 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714;  Anderson v. Celebrezze, supra, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569.)

Section 10012.1 directly serves the state's interest in electoral fairness and integrity by recognizing that any statement beyond a summary of one's own personal background and qualifications will be in the nature of a direct invitation to debate, that the candidate's statement and the voter's pamphlet are neither intended nor suited for debate, and that because the opponent simply cannot respond to the invitation within the voter's pamphlet itself the invitation to debate should be foreclosed in the first instance.

The voter's pamphlet is prepared and distributed to all voters, with the sample ballots, and bears official markings;  unavoidably it “purports to be an authoritative document that appears to give an imprimatur of official approval to statements of qualifications included therein.   It is quite likely that this document would carry greater weight in the minds of the voters than normal campaign literature․”  (Knoll v. Davidson (1974) 12 Cal.3d 335, 352, 116 Cal.Rptr. 97, 525 P.2d 1273.)   It is of corresponding importance to the indisputable goal of electoral fairness that the content of the voter's pamphlet be as balanced and informative, and as unlikely to mislead the voter, as is practically possible.

For similar reasons it is not sufficient to argue that a candidate may respond through other media of communication.   No other medium will afford the mix of relative economy, wide distribution, and official dissemination provided by the voter's pamphlet.   In this light a direct mail piece or a television spot (for example) cannot be deemed an adequate medium for equivalent reply to allegations included in a candidate's statement.

These considerations have, I believe, special urgency in the case of candidates for judicial election.   For reasons I shall discuss in detail in connection with appellant's equal-protection argument, it is often especially difficult to state evaluations or criticisms of judicial performance or judicial potential clearly and accurately within the compass of 400 words, and rules which proscribe comment on many subjects render the task of communicating clearly and fairly even more difficult.   In short, there are many things a candidate for judicial office will simply be unable to say, and many others he or she will be unable to say clearly and accurately within 200, or 400, or even several thousand words.   The prospect that allegations of a candidate's statement may be inherently susceptible to inaccuracy, notwithstanding the presumed good faith of the candidate, exacerbates the fairness problem.

Suppose, for example, a candidate for judicial office were to use his or her candidate's statement (as appellant did in this case) to say of his or her incumbent opponent that the incumbent dismissed a criminal case in which there was some evidence of guilt.   The majority has pointed out the risk of harm inherent in such a cursory description of legal process.   In a society which places a premium on enforcement of the criminal laws, such a statement is plainly accusatory, and voters could reasonably be expected to treat a failure to respond as a tacit admission that the opponent is soft on crime.   The initial statement might be true, as far as it goes, and the incumbent might be unable to persuade another judge, by clear and convincing evidence under section 10013.5, that the statement was in the requisite sense misleading, or that there had been an error, omission, or neglect of duty within the meaning of section 10015.   Suppose the incumbent wished to respond, in order (for example) to make clear to the voters that the dismissal in question was required by the incumbent's sworn duty to follow the law.   He or she could not respond within the voter's pamphlet.   The only remaining alternative would be to respond by another medium, but this alternative would lack the breadth of distribution, through official dissemination, of the voter's pamphlet;  this alternative would be unsatisfactory in terms of fair and balanced debate.

The Legislature's solution is to exclude the initial accusatory statement from the voter's pamphlet.   The candidate for judicial office who wishes to issue an invitation to debate must use some other medium for that purpose.

Section 10012.1 does not profess directly to serve the state's interest in judicial integrity, impartiality, and independence;  the section does nothing whatsoever to avert direct or indirect attacks upon candidates for judicial office, and thus upon the integrity of the judicial system, by any means other than the voter's pamphlet.   Indeed any attempt to render the judicial system, and candidates for offices within it, wholly immune from comments likely to erode public faith in it and them would undoubtedly run afoul of the First Amendment.  (Cf. Landmark Communications, Inc. v. Virginia (1978) 435 U.S. 829, 841–842, 98 S.Ct. 1535, 1542–1543, 56 L.Ed.2d 1;  cf. also Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 154–155, 269 Cal.Rptr. 379.)   One important reason why section 10012.1 should survive First Amendment analysis is that it “neither limit[s] nor curtail[s] the ability of individuals or groups to assemble, to speak, to distribute literature or to lobby public opinion in whatever form and content they choose” other than in the voter's pamphlet.  (Patterson v. Board of Supervisors, supra, 202 Cal.App.3d 22, 31, 248 Cal.Rptr. 253, citing Vanasco v. Schwartz (S.D.N.Y.1975) 401 F.Supp. 87, aff'd sub nom.   Schwartz v. Vanasco (1976) 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630.)

But I am persuaded that the state's interest in electoral fairness and integrity is itself ample to justify any restraint on expression section 10012.1 may represent, particularly given the opportunity for full and robust debate outside the voter's pamphlet.

It remains to be asked (again assuming the validity of appellant's premise that the section does limit freedom of expression) whether section 10012.1 is sufficiently narrowly drawn to serve only the state interest I have identified.  (Cf. Shelton v. Tucker (1960) 364 U.S. 479, 488–490, 81 S.Ct. 247, 252–253, 5 L.Ed.2d 231.)   There are two elements of this inquiry as addressed to section 10012.1:  Is the language of the section sufficiently narrow on its face?   Even if so, is so much discretion vested in the clerk, an administrative agent, as to create a significant risk that constitutional bounds will be exceeded in particular cases?  (Cf. Jeffries, Rethinking Prior Restraint, supra, 92 Yale L.J. 409, 423–426.)

I conclude section 10012.1 is drawn as narrowly as it could be to serve the state interest.   The limitation is to “a recitation of the candidate's own personal background and qualifications,” which “shall not in any way make reference to other candidates for judicial office or to another candidate's qualifications, character, or activities.”   If, as I perceive, the entirely appropriate purpose of the section is to forestall an invitation to a debate which would necessarily be unfairly one-sided, then this language is exactly fitted to that purpose.

Nor does section 10012.1 vest the clerk with any measurable discretion.   The clerk is simply called upon to determine whether a particular statement “is not so limited or ․ includes any such references.”   This will rarely be a close question, but in every instance it will be a question susceptible of answer by direct application of the specific and objective criteria stated in section 10012.1.

I note with approval that in this case the registrar of voters sought the assistance of a court, choosing an action for declaratory relief.   Such an action was appropriate considering the registrar's professed uncertainty;  from the registrar's perspective section 10013.5 (which provides for judicially directed amendment or deletion of material in a voter's pamphlet) does not neatly dovetail with section 10012.1 (which empowers the clerk to exclude material from the voter's pamphlet in the first instance).¹  It would be prudent for a clerk to invoke judicial procedures in any close case.   But I consider it unnecessary to attempt to read a requirement to that effect into section 10012.1.  Section 10012.1, on its face, is sufficiently narrowly drawn.

Having sought to “eschew[ ] absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented” (Smith v. Daily Mail Publishing Co., supra, 443 U.S. 97, 106, 99 S.Ct. 2667, 2672 (conc. opn. of Rehnquist, J.)), I conclude section 10012.1 does not violate constitutional guarantees of freedom of expression.

2. Equal Protection

Appellant contends that section 10012.1, because it applies only to candidates for judicial office, would operate to deny him equal protection of the laws.  (U.S. Const., 14th Amend.;  Cal. Const., art. I, § 7(a).)

Section 10012.1, read in light of Loza v. Panish, plainly implies that a candidate for any nonpartisan local office other than a judgeship may comment on his or her opponent.   How can this distinction between candidates for judicial office and all other local nonpartisan candidates be constitutionally justified?

“The equality guaranteed by the Equal Protection Clause is equality under the same conditions, and among persons similarly situated.   The Legislature may make a reasonable classification of persons and businesses and other activities and pass special legislation applying to certain classes.   The classification must not be arbitrary, but must be based upon some difference in the classes having a substantial relation to a legitimate object to be accomplished.   [Citations.]”  (8 Witkin, Summary of Cal.Law (9th ed. 1988) § 599, p. 51.)   Because the classification in this case infringes on fundamental interests in the electoral process, “the classification must be closely scrutinized and may be upheld only if it is necessary for the furtherance of a compelling state interest.”  (Weber v. City Council (1973) 9 Cal.3d 950, 959, 109 Cal.Rptr. 553, 513 P.2d 601.)

I conclude the separate classification of candidates for judicial office is necessary in furtherance of a compelling state interest in protecting judicial integrity, impartiality, and independence.

There can be no question the state has a compelling interest in maintenance of the integrity, impartiality and independence of the judiciary, both in appearance and in fact.  (Cf. Clements v. Fashing (1982) 457 U.S. 957, 968, fn. 5, 102 S.Ct. 2836, 2846, fn. 5, 73 L.Ed.2d 508;  O'Donoghue v. United States (1933) 289 U.S. 516, 530–534, 53 S.Ct. 740, 743–744, 77 L.Ed. 1356 [federal judges];  Baker v. Carr (1962) 369 U.S. 186, 267, 82 S.Ct. 691, 737, 7 L.Ed.2d 663 (dis. opn. of Frankfurter, J.);  Unger v. Superior Court (1984) 37 Cal.3d 612, 622, 209 Cal.Rptr. 474, 692 P.2d 238 (conc. opn. of Grodin, Acting C.J.);   cf. also Mistretta v. United States (1989) 488 U.S. 361, 407, 109 S.Ct. 647, 672, 102 L.Ed.2d 714.)   The judiciary stands as the most independent of the three branches of American government, entrusted with the solemn task of assuring that temporary fluctuations in the political mood and makeup of the executive and legislative branches, and of the people in their direct exercise of democratic rights, will in the long run conform as nearly as can be to the rule of law to which the nation and its states are committed.   Because the judiciary possesses “neither the purse nor the sword,” its authority “ultimately rests on sustained public confidence in its moral sanction,” confidence that “must be nourished by ․ complete detachment, in fact and in appearance, from political entanglements․”  (Baker v. Carr, supra, 369 U.S. 186, 267, 82 S.Ct. 691, 737 (dis. opn. of Frankfurter, J.).)   Thus “[t]he legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.”  (Mistretta v. United States, supra, 488 U.S. 361, 407, 109 S.Ct. 647, 672.)

The United States Constitution reflects the judgment that federal judiciary, at least, should be removed from the dangers of political influence.   Article III provides for lifetime tenure and a guaranteed level of compensation to judges appointed by the executive with the advice and consent of the legislative branch.

California has developed a hybrid system of judicial selection and retention.   Trial judges, to whom section 10012.1 applies, may be either appointed or elected to office and must stand for reelection (and may be opposed by other candidates for their offices) at six-year intervals.²

In terms of judicial independence the California system is far from ideal.   Every judge, and every candidate to become a judge, must keep clearly in view the oath he or she has taken or will be required to take.³  But such a candidate, and a judge who wishes to remain one, will inevitably feel pressures to shape his or her statements and actions to please or otherwise persuade an electoral majority.   These pressures will be most focused in the course of the necessarily free exchange of the democratic election process itself.   It has been cogently suggested that “[t]he State of California cannot have it both ways.   If it wants to elect its judges, it cannot deprive its citizens of a full and robust election debate.”  (Geary v. Renne (9th Cir.1990) 911 F.2d 280, 294 (conc. opn. of Reinhardt, J.), cert. granted (1991) 498 U.S. 1046, 111 S.Ct. 750, 112 L.Ed.2d 771.) ⁴

There is obvious potential, in such debate, for erosion of judicial integrity, impartiality, and independence.   Nevertheless the debate must be permitted to proceed, and in every contested judicial election it does proceed in auditoriums and parks, on billboards and posters, in campaign flyers, and in all the various communication media.   Indeed the only way, acceptable in our system, to minimize the harm such debate may cause to judicial integrity, impartiality, and independence is to assure that any such debate shall be open, full, and balanced.   But at the same time these goals are particularly difficult to achieve, in debate over relative qualification for judicial office, for several reasons, each of which is as applicable to the candidate who is not a judge but who (if elected) must carry into the office an apparent capacity for integrity, impartiality, and independence, as to an incumbent judge seeking reelection.

First, candidates for judicial office are constrained to avoid too-broad statements as to how they would decide cases they have not received and may never receive:  A judge cannot go looking for a case but must wait for the case to find him or her, and in any event may not prejudge a case that has not yet been argued or proved in his or her courtroom.

Next, while other candidates for local office, such as members of a county board of supervisors, school board, or city council, may alter their own positions on issues in response to political opinion, judges who do so violate their oaths of office.   Judges must decide cases on their merits, and not on the basis of extraneous considerations based on political benefit or personal policy preferences.  (Cf. Chevron U.S.A. v. Natural Res. Def. Council (1984) 467 U.S. 837, 866, 104 S.Ct. 2778, 2793, 81 L.Ed.2d 694.)  “The very purpose of the judicial function makes inappropriate the same kind of particularized pledges and predetermined commitments that mark campaigns for legislative and executive office.”  (Berger v. Supreme Court of Ohio (S.D.Ohio 1984) 598 F.Supp. 69, 76.)   Thus states have required that a judge resign before seeking nonjudicial elective office, and those requirements have withstood constitutional challenge “even if such a restriction could not survive constitutional scrutiny with regard to any other officeholder.”  (See, e.g., Clements v. Fashing, supra, 457 U.S. 957, 968, fn. 5, 102 S.Ct. 2836, 2846, fn. 5;  Morial v. Judiciary Com'n of State of La. (5th Cir.1977) 565 F.2d 295, 296.)

Moreover, the distinctive judicial power permanently to deprive citizens of their life, liberty and property requires that judges both be fair and appear to be so.   Any ill-considered remark in the course of debate may compromise the candidate's perceived fairness.

Finally, universal rules of judicial conduct forbid comment on pending matters, or any other activity inconsistent with the fact and the perception of judicial integrity, independence, and impartiality.⁵  “No other officials of government are bound by such rigorous standards of conduct and none are so scrupulously policed.” ⁶  (Rothman, Cal.Judicial Conduct Handbook (1990) p. xxx.)   The admonition of silence, or at the very least of careful reticence, imposed by these standards for the sake both of the integrity of the judiciary and of the privacy rights of litigants, will have an obvious tendency to limit full and robust debate.   And Canon 7 of the California Code of Judicial Conduct, which requires that “judges should refrain from political activity inappropriate to their judicial office,” is expressly made applicable not only to judges but also to “candidates for election to judicial office” and provides among other things that incumbent and nonincumbent candidates for judicial election “may speak to political gatherings only on their own behalf.”

I have previously concluded section 10012.1 reflects a sound legislative judgment that the voter's pamphlet is neither intended nor suitable as a forum for debate.   In my view the Legislature's decision to apply its judgment only to judicial office is fully justified for all the reasons I have stated.   I would conclude that section 10012.1 reasonably distinguishes candidates for judicial office from other candidates for local nonpartisan office in necessary furtherance of the state's compelling interest in the integrity, impartiality, and independence of the judiciary.

I would sustain the constitutional validity of Elections Code section 10012.1 and would affirm the judgment of the trial court.

FOOTNOTES

1.   All further statutory references are to the Elections Code unless otherwise noted.

2.   The text of appellant's statement is as follows: STATEMENT OF CANDIDATE FOR JUDGE OF THE SUPERIOR COURT,OFFICE # 26 YEAR TERMNAME:  WILLIAM B. BURLEIGH AGE:  55OCCUPATION:  JUDGE OF THE MUNICIPAL COURTEDUCATION AND QUALIFICATIONS:After 17 years as a Municipal Court Judge, I am challenging the incumbent Superior Court Judge (Jerry Brown Appointee).WHY?Because, as a citizen, I am greatly disturbed by his decisions.   Criminal activity is being dismissed.   Innocent citizens have had their lives and businesses disrupted by court interference.Some Examples:A police officer was told the defendant (a convicted murderer on parole) was selling drugs from his camper.   When confronted, he attempted to hide the drugs and the officer seized them.   Judge Silver dismissed the case.   (Reversed on appeal.)Defendant and victim were fighting.   Defendant was losing, left the scene, returned with a knife, stabbed the victim, chased him into the street and killed him.   Silver ruled there was no malice.Marina Safeway, losing $20,000 a month, announced it was closing.   Silver ordered Safeway to remain open.It's time to get tough with criminals ․ time to end court interference and [sic] community affairs.ENDORSED BY POLICE CHIEF'S ASSOCIATIONQualifications:U.S. Marine Corps.Doctor Jurisprudence, University California, Berkeley.Nine years private practice;  City Attorney.Vice President, California Judge's Association.Faculty, California Judge's College.Associate Editor, “California Court's [sic] Commentary”Founder, two charity fundraisers (Big Sur marathon, River Run) raising money for local needy services.

3.   Section 10012.1 provides that “any candidate's statement submitted pursuant to Section 10012 by a candidate for judicial office shall be limited to a recitation of the candidate's own personal background and qualifications and shall not in any way make reference to other candidates for judicial office or to another candidate's qualifications, character, or activities.   The clerk shall not cause to be printed or circulated any statement which the clerk determines is not so limited or which includes any such references.”

4.   In Chandler, it was stated, “Judges are not fungible;  they cover the constitutional spectrum;  and a particular judge's emphasis may make a world of difference when it comes to ruling on evidence, the temper of the courtroom, the tolerance for a proffered defense, and the like.   Lawyers recognize this when they talk about ‘shopping’ for a judge;  Senators recognize this when they are asked to give their ‘advice and consent’ to judicial appointments;  laymen recognize this when they appraise the quality and image of the judiciary in their own community.”   (Chandler v. Judicial Council, supra, 398 U.S. at p. 137, 90 S.Ct. at p. 1681 [Douglas, J., dissenting].)

5.   (See e.g. Drew v. Drake (1980) 110 Cal.App.3d 555, 559, 168 Cal.Rptr. 65 [Poche, J., dissenting] [majority's view was “discarded shortly after the close of the Spanish Inquisition and is clearly not the law of this state.”];  People v. Arno (1979) 90 Cal.App.3d 505, 538, fn. 13, 153 Cal.Rptr. 624 [Hanson, J., dissenting] [noting that “after a great expenditure of effort and public funds another reversal joins the wreckage in the ‘giant junkyard’ of the judicial landscape by reason of an upside-down system of criminal justice․”];  Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 873, 176 Cal.Rptr. 753, 633 P.2d 949 [Richardson, J., dissenting] [majority “uses a clearly erroneous analysis to establish a plainly bad precedent, thereby turning the statute upside down”];  People v. Diaz (1989) 208 Cal.App.3d 338, 344–346, 255 Cal.Rptr. 91 [Brauer, J., dissenting] [“disagree most emphatically,” “astonished” at majority's interpretation;  and “both statements [of the majority] are wrong.”].)

6.   Of course, limits upon campaign speech of judicial candidates do exist outside the voter's pamphlet.   The Code of Judicial Conduct, Canon 7, provides, “Judges should refrain from political activity inappropriate to their judicial office.”  Canon 7 also provides, “(2) Judges who are candidates for election or reelection or non-judges who are candidates for judicial office, may speak to political gatherings only on their own behalf.  (3) ․ judges should not engage in any political activity, other than on behalf of measures to improve the law, the legal system or the administration of justice.”   Canon 4 provides that “Judges may engage in activities to improve the law, the legal system, and the administration of justice.”   Finally, Canon 2 provides that judges “should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”   We express no opinion about the constitutionality of these provisions although they are certainly preferable to section 10012.1.   In addition, as stressed in Pennekamp v. Florida, (1946) 328 U.S. 331, 348–349, 66 S.Ct. 1029, 1038, 90 L.Ed. 1295, “when the statements amount to defamation, a judge has a remedy in damages for libel as do other public servants.”

7.   In Matter of Humphrey (1917) 174 Cal. 290, 163 P. 60, the court stated, “ ‘Nobody knows better than a lawyer that, while judicious criticism is a necessary and effective means when used to keep the judges mindful of their duties, and to prevent the selection of inefficient judges when judges are chosen by the people, yet when carried beyond the limit of truth and fairness, nothing is more certain to destroy the judicial balance of timid judges, and to effectually impair the impartial administration of justice.’ ”  [Citation omitted.]  (Id. at p. 296, 163 P. 60.)Compare Humphrey with Bridges v. California, supra, 314 U.S. 252, 62 S.Ct. 190:  “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion.   For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions.   And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”  (Id. at pp. 270–271, 62 S.Ct. at p. 197, fn. omitted.)

FN8. Other cases involving speech in the context of disciplinary proceedings include In re Stevens (1982) 31 Cal.3d 403, 183 Cal.Rptr. 48, 645 P.2d 99;  In re Gorsuch (1956) 76 S.D. 191, 75 N.W.2d 644;  In re Inquiry Relating to Baker (1975) 218 Kan. 209, 542 P.2d 701;  In re Hinds (1982) 90 N.J. 604, 449 A.2d 483;  In re Donohoe (1978) 90 Wash.2d 173, 580 P.2d 1093;  see also Annot., Attorney's Criticism of Judicial Acts As Ground of Disciplinary Action (1967) 12 A.L.R.3d 1408..  FN8. Other cases involving speech in the context of disciplinary proceedings include In re Stevens (1982) 31 Cal.3d 403, 183 Cal.Rptr. 48, 645 P.2d 99;  In re Gorsuch (1956) 76 S.D. 191, 75 N.W.2d 644;  In re Inquiry Relating to Baker (1975) 218 Kan. 209, 542 P.2d 701;  In re Hinds (1982) 90 N.J. 604, 449 A.2d 483;  In re Donohoe (1978) 90 Wash.2d 173, 580 P.2d 1093;  see also Annot., Attorney's Criticism of Judicial Acts As Ground of Disciplinary Action (1967) 12 A.L.R.3d 1408.

9.   In areas not involving the First Amendment, one cannot complain that a statute is unconstitutional if it is constitutional as applied to him or her, even though it might not be constitutional in other circumstances.   The rule is different in the First Amendment context:  “[T]he instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct.   For in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.”  (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405.)

10.   Of course, section 10012.1 makes no distinction between true and false statements, although other provisions of the Elections Code do.   We express no opinion about the constitutionality of any other provision, since section 10012.1 is quite distinct from any other such statutes.

11.   Having determined that section 10012.1 violates the First Amendment, we need not consider appellant's claim that it also raises equal protection concerns.

1.   From the perspective of the candidate or other voter, of course, both sections 10013.5 and 10015 provide practical means for judicial review of actions previously taken, either to accept or to reject tendered candidates' statements, by the clerk or registrar.

2.   Judicial offices on California's appellate courts can be filled only by gubernatorial appointment, subject to confirmation by a three-person ex officio commission;  the voters are periodically asked to determine whether an appellate justice, who appears unopposed on the ballot, should or should not be retained in office.A brief history of the system's evolution provides a useful perspective;  I am particularly indebted to two scholars, Malcolm Smith and Gerald F. Uelmen, for the valuable insights they have provided.  (Smith, The California Method of Selecting Judges (1951) 3 Stan.L.Rev. 571;  Uelmen, California Judicial Retention Elections (1988) 28 Santa Clara L.Rev. 333.)The drafters of the California Constitution in 1849, following the great majority of states then members of the Union, chose popular elections as a means of selecting all judges statewide.   Dissatisfaction with this method of judicial selection developed early, but it was not until the 1934 general election that change was forthcoming.   The reform came about as part of a “package” of four constitutional amendments whose stated purpose was to “curb crime.”Proponents of the amendments were convinced that abolition of contested elections for judges would ensure a more honest and competent judiciary and thus improve the quality of the administration of justice.   Although life tenure was favored as the best means to achieve judicial independence from the political fray and the consequent dangers of corruption, life tenure would have the effect of “blanketing in” all incumbents.   A compromise measure was reached which, it was felt, combined the best features of election and appointment.   Judges at the appellate level would be appointed by the governor and confirmed by a three-person panel.   They would periodically run unopposed on the question of retention only and the voters could decide whether to retain them by a simple yes or no vote.Interestingly, the proposed amendment with respect to appellate court justices, which was part of the “curb crime” package, was adopted by the voters, while a similar proposition addressing the selection of trial judges at the county level, which appeared elsewhere on the ballot, failed by a narrow margin.Whatever the reason for the voters choosing one method for selection of appellate justices and another for trial judges, the system remains intact today.

3.   Every California judge (and every public officer and member of the Legislature) is required to swear or affirm that he or she “will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic;  that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California;  that I take this obligation freely, without any mental reservation or purpose of evasion;  and that I will well and faithfully discharge the duties upon which I am about to enter.”  (Cal. Const., art. XX, § 3;  cf. Gov.Code, § 1360;  Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 19, 64 Cal.Rptr. 409, 434 P.2d 961.)

4.   In 1986 the California electorate directly adopted a constitutional amendment which reflected widespread concern that the independence and impartiality of nonpartisan officials, including judges, were threatened by involvement in party politics.   Proposition 49 became Section 6(b) of Article II of the California Constitution, providing that “[n]o political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.”Section 6(b) was soon subjected to constitutional challenge when the San Francisco Registrar of Voters refused to permit political party endorsements of nonpartisan candidates to be printed in San Francisco's voter's pamphlet for the 1987 elections.   The future of 6(b) is uncertain as the question of its constitutionality is presently on review before the United States Supreme Court.  (Geary v. Renne, supra, 911 F.2d 280, cert. granted (1991) 498 U.S. 1046, 111 S.Ct. 750, 112 L.Ed.2d 771;  oral argument is scheduled for April 23, 1991.)

5.   The following Canons of Judicial Conduct directly bear upon the issues in this case.“An independent and honorable judiciary is indispensable to justice in our society.   Judges should participate in establishing, maintaining, and enforcing, and should themselves observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.”  (Canon 1.)“Judges should avoid impropriety and the appearance of impropriety in all their activities.”  (Canon 2.)“Judges should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  (Canon 2A.)“Judges should be faithful to the law and maintain professional competence in it.   Judges should be unswayed by partisan interest, public clamor, or fear of criticism.”  (Canon 3(A)(1).)“Judges should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to their direction and control.”  (Canon 3(A)(6).)“Judges should refrain from political activity inappropriate to their judicial office.”  (Canon 7.)

6.   The California Commission on Judicial Performance, established and governed by California Constitution, article VI, sections 8, 18, is an independent state agency that handles complaints involving judicial misconduct and disability of state judges.   The commission has nine members, including judges, attorneys, and lay citizens, and employs a staff of 12.   In 1990 the commission received 885 complaints and took actions ranging from disposition on informal investigation to recommendation to the Supreme Court that a judge be removed from office.  (Cal.Com. on Jud.Performance, Ann.Rep. (1990).)

ELIA, Associate Justice.

CAPACCIOLI, Acting P.J., concurs.