protectmarriage.com - Yes on 8 v. Debra Bowen , 752 F.3d 827 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROTECTMARRIAGE.COM - YES ON 8, No. 11-17884
A PROJECT OF CALIFORNIA
RENEWAL; NATIONAL D.C. No.
ORGANIZATION FOR MARRIAGE 2:09-cv-00058-
CALIFORNIA, Yes on 8, Sponsored MCE-DAD
by National Organization for
Marriage; NATIONAL ORGANIZATION
FOR MARRIAGE CALIFORNIA PAC; OPINION
JOHN DOE #1, an individual,
Plaintiffs-Appellants,
v.
DEBRA BOWEN; ROSS JOHNSON;
CALIFORNIA SECRETARY OF STATE;
KAMALA HARRIS, in her official
capacity as Attorney General of the
State of California; EUGENE
HUGUENIN, JR.; LYNN
MONTGOMERY; RONALD ROTUNDA;
ANN MILLER RAVEL, in her official
capacity as Chair of the Fair Political
Practices Commission; SEAN
ESKOVITZ, in his official capacity as
Commissioner of the Fair Political
Practices Commission;
DEPARTMENT OF ELECTIONS CITY
AND COUNTY OF SAN FRANCISCO;
DENNIS J. HERRERA, City Attorney
2 PROTECTMARRIAGE.COM V. BOWEN
for the City and County of San
Francisco; DEAN C. LOGAN; JAN
SCULLY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
October 11, 2013—San Francisco, California
Filed May 20, 2014
Before: J. Clifford Wallace, Milan D. Smith, Jr.
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Wallace
PROTECTMARRIAGE.COM V. BOWEN 3
SUMMARY*
Civil Rights
The panel affirmed in part the district court’s summary
judgment and dismissed in part the appeal as non-justiciable
in an action challenging California’s Political Reform Act of
1974, which requires political committees to report certain
information about their contributors to the State, specifically,
semi-annual disclosures identifying those individuals who
have contributed more than $100 during or after a campaign,
in addition to each contributor’s address, occupation and
employer.
Appellants are political committees that supported the
November 2008 passage of Proposition 8, which before it was
invalidated, amended the California Constitution to provide
that only marriage between a man and a woman is valid or
recognized in California. Arguing that their donors have been
harassed as a result of Political Reform Act disclosures,
appellants asserted that the Act’s $100 reporting threshold
and post-election reporting requirements were facially
unconstitutional in the context of ballot initiatives.
The panel held that Family PAC v. McKenna, 685 F.3d
800, 809–11 (9th Cir. 2012), directly precluded appellants’
challenge to the $100 threshold. The panel further held that
the government’s interest in disclosing contributions to ballot
initiative committees was not merely a pre-election interest.
The panel therefore affirmed the district court’s judgment
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PROTECTMARRIAGE.COM V. BOWEN
with regard to appellants’ facial challenges to the post-
election reporting requirements.
The panel dismissed the appeal as non-justiciable with
regard to appellants’ as-applied challenges. The panel held
that to the extent that appellants sought an injunction
requiring the State to purge records of their past disclosures,
any claim for such relief was moot given that the information
has been publicly available on the Internet and in hard copy
for nearly five years. To the extent that appellants sought a
forward-looking exemption from the Political Reform Act’s
requirements, the panel held such claim was not ripe. The
panel remanded with instructions that the district court vacate
the portion of its opinion concerning appellants’ as-applied
challenges.
Dissenting in part, Judge Wallace disagreed with the
majority’s determination that appellants’ as-applied
challenges were non-justiciable.
COUNSEL
John C. Eastman (argued), Center for Constitutional
Jurisprudence, Orange, California; James Bopp, Jr. (argued)
and Richard E. Coleson, The Bopp Law Firm, Terre Haute,
Indiana; Benjamin W. Bull, Alliance Defense Fund,
Scottsdale, Arizona; David J. Hacker, Alliance Defense Fund,
Folsom, California; Noel H. Johnson and Kaylan L. Phillips,
ActRight Legal Foundation, Plainfield, Indiana, for Plaintiffs-
Appellants.
Mollie M. Lee (argued), Dennis J. Herrera, Therese M.
Stewart, and Jon Givner, Office of the City Attorney, San
PROTECTMARRIAGE.COM V. BOWEN 5
Francisco, California; Zackery P. Morazzini (argued) and
Jack Woodside, Fair Political Practices Commission,
Sacramento, California; Kamala D. Harris, Tamar Pachter,
and Daniel J. Powell, Office of the Attorney General, San
Francisco, California; Terence J. Cassidy and Kristina M.
Hall, Porter Scott, Sacramento California, for Defendants-
Appellees.
Trevor Potter, J. Gerald Hebert, Paul S. Ryan, and Megan
McAllen, The Campaign Legal Center, Washington, D.C., for
Amicus Curiae The Campaign Legal Center.
6 PROTECTMARRIAGE.COM V. BOWEN
OPINION
M. SMITH, Circuit Judge:
Appellants bring facial and as-applied challenges to
California’s Political Reform Act of 1974, Cal. Gov. Code.
§§ 81000–91014 (PRA), and seek (1) an injunction
exempting them from the PRA’s future reporting deadlines,
and (2) declaratory and injunctive relief requiring the State to
purge all records of Appellants’ past PRA disclosures. The
district court granted summary judgment in favor of the State
of California on all counts. We affirm the district court’s
judgment with regard to Appellants’ facial challenges. We
dismiss this appeal as non-justiciable with regard to
Appellants’ as-applied challenges. And, we remand with
instructions that the district court vacate the portion of its
opinion concerning Appellants’ as-applied challenges.
FACTUAL AND PROCEDURAL BACKGROUND
The PRA requires political committees to report certain
information about their contributors to the State. Specifically,
political committees must file semi-annual disclosures,
which, among other things, identify those individuals who
have contributed more than $100 during or after a campaign,
in addition to each contributor’s address, occupation, and
employer. Cal. Gov. Code §§ 84200, 84211(f). The State of
California then publishes this information on the website of
the California Secretary of State (the Secretary), and produces
hard copies upon request.
Appellants, to whom we refer as the Prop 8 Committees
or the Committees, are political committees that supported
the November 2008 passage of Proposition 8. That
PROTECTMARRIAGE.COM V. BOWEN 7
proposition amended the California Constitution to provide
that “[o]nly marriage between a man and a woman is valid or
recognized in California.” Cal. Const., Art. I, § 7.5.
Proposition 8 was subsequently invalidated. See
Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013) (citing
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (N.D.
Cal. 2010)).
Prior to Proposition 8’s passage, the Prop 8 Committees
submitted disclosures to comply with the PRA’s semi-annual
reporting deadlines. These disclosures were published on the
Secretary’s website, and are available in hard copy.
Following Proposition 8’s passage, the Committees initiated
this action in the United States District Court for the Eastern
District of California, challenging the constitutionality of the
PRA’s disclosure requirements both facially and as applied to
them. The Committees argued that their donors have been
harassed as a result of the Committees’ PRA disclosures, and
they sought (1) an injunction exempting them from the PRA’s
future reporting deadlines, and (2) declaratory and injunctive
relief requiring the State to purge all records of their past
PRA disclosures.
On January 30, 2009, the district court denied Appellants’
motion for a preliminary injunction. Appellants did not
appeal the district court’s order under 28 U.S.C. § 1292(a).
Instead, they complied with the PRA’s January 31, 2009
disclosure deadline, reporting those contributors who donated
after October 19, 2008 and before December 31, 2008. The
Secretary published these disclosures on her website, and
made them publicly available in hard copy.1 On November 4,
1
Appellant “National Organization for Marriage California PAC” was
subsequently formed, and joined in Plaintiffs’ Third Amended Complaint.
8 PROTECTMARRIAGE.COM V. BOWEN
2011, the district court granted summary judgment in favor of
the State on all counts. Appellants timely appealed, asking us
to reverse the judgment of the district court and to order the
State to purge all records of Appellants’ PRA disclosures.
We have jurisdiction under 28 U.S.C. § 1291. We review
a district court’s grant of summary judgment de novo. Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007). We review
questions of justiciability de novo. Bell v. City of Boise,
709 F.3d 890, 896 (9th Cir. 2013).
DISCUSSION
I. Facial Challenges
Appellants assert that the PRA’s $100 reporting threshold
and “post-election reporting requirements” are facially
unconstitutional in the context of ballot initiatives. Our
decision in Family PAC v. McKenna directly precludes
Appellants’ challenge to the $100 threshold. 685 F.3d 800,
809–11 (9th Cir. 2012) (holding that $25 and $100
contribution disclosure thresholds survive “exacting scrutiny”
in the context of ballot initiatives). Appellants’ facial
challenge to the post-election reporting requirements fails as
well.
A. Legal Standard
Contribution disclosure requirements are subject to
“exacting scrutiny.” Citizens United v. FEC, 558 U.S. 310,
366–67 (2010); Buckley v. Valeo, 424 U.S. 1, 44 (1976). In
applying exacting scrutiny, we first ask whether the
challenged regulation burdens First Amendment rights. If it
does, we then assess whether there is a “substantial relation”
PROTECTMARRIAGE.COM V. BOWEN 9
between the burden imposed by the regulation and a
“sufficiently important” governmental interest. Citizens
United, 558 U.S. at 366–67; Family PAC, 685 F.3d at 805–06
(citing Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990,
1005 (9th Cir. 2010)).
Although disclosure is generally “a less restrictive
alternative to more comprehensive regulations of speech,”
Citizens United, 558 U.S. at 369, contribution disclosure
requirements may burden First Amendment rights by, among
other things, deterring “individuals who would prefer to
remain anonymous from contributing,” Family PAC,
685 F.3d at 806–07 (internal quotation marks omitted). To
justify these burdens and to survive exacting scrutiny, “the
strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment rights.”
Doe No. 1 v. Reed, 561 U.S. 186, 130 S. Ct. 2811, 2818
(2010) (internal quotation marks omitted).
The Supreme Court recognizes three substantial
government interests that campaign contribution disclosure
requirements may serve. Buckley, 424 U.S. at 66–68; see also
Doe, 130 S. Ct. at 2819–21. First, disclosure requirements
may serve a substantial “informational interest” by providing
the electorate with information about the source of campaign
money, the individuals and interests seeking their vote, and
where a particular ballot measure or candidate falls on the
political spectrum. Buckley, 424 U.S. at 66–67; Family PAC,
685 F.3d at 806. This interest is particularly important in the
ballot initiative context. As we explained in Family PAC:
The governmental interest in informing the
electorate about who is financing ballot
measure committees is of great importance.
10 PROTECTMARRIAGE.COM V. BOWEN
Disclosure enables the electorate to give
proper weight to different speakers and
messages . . . by providing the voting public
with the information with which to assess the
various messages vying for their attention in
the marketplace of ideas . . . . Given the
complexity of the issues and the unwillingness
of much of the electorate to independently
study the propriety of individual ballot
measures, we think being able to evaluate who
is doing the talking is of great importance
. . . . Disclosure also gives voters insight into
the actual policy ramifications of a ballot
measure. Knowing which interested parties
back or oppose a ballot measure is critical,
especially when one considers that ballot-
measure language is typically confusing, and
the long-term policy ramifications of the
ballot measure are often unknown.
Family PAC, 685 F.3d at 808–09 (internal quotation marks
and citations omitted); see also Human Life of Wash. Inc.,
624 F.3d at 1006 (“[T]he high stakes of the ballot context
only amplify the crucial need to inform the electorate . . . .”).
Disclosure requirements may also help preserve the
integrity of the electoral process by deterring corruption and
the appearance of corruption. Doe, 130 S. Ct. at 2819;
Buckley, 424 U.S. at 67 (explaining that disclosure
requirements deter “those who would use money for improper
purposes either before or after the election”). This interest
extends generally to “promoting transparency and
accountability in the electoral process,” and those states that
allow ballot initiatives “have considerable leeway to protect
PROTECTMARRIAGE.COM V. BOWEN 11
the integrity and reliability of the initiative process.” Doe,
130 S. Ct. at 2819 (citations and quotations omitted).
Finally, disclosure requirements may permit accurate
record-keeping. “[D]isclosure requirements are an essential
means of gathering the data necessary to detect violations of
. . . contribution limitations.” Buckley, 424 U.S. at 68. Such
records further enhance the public’s future associational
rights by offering voters information about which policies
those seeking their vote have previously endorsed.
Both the Supreme Court and our court have rejected facial
challenges to contribution disclosure requirements in several
cases, holding that these substantial interests outweigh the
modest burdens that the challenged disclosures impose on
First Amendment rights. See, e.g., Doe, 130 S. Ct. at 2820
(holding that a state law authorizing private parties to obtain
copies of referendum petitions is “substantially related to the
important interest of preserving the integrity of the electoral
process”); Family PAC, 685 F.3d at 805–11; Human Life of
Wash. Inc., 624 F.3d at 1013–14; Alaska Right To Life Comm.
v. Miles, 441 F.3d 773, 791–92 (9th Cir. 2006).
B. Application
The PRA imposes reporting requirements on ballot
committees, which require them to disclose the names of, and
other identifying information about, contributors who donate
$100 or more. The PRA’s reporting deadlines are semi-
annual. Accordingly, donations that are made prior to an
election, but after the final pre-election reporting deadline,
are reported after the election concludes. Appellants argue
that this requirement is unconstitutional, because a state’s
only interest in disclosure is its interest in an informed
12 PROTECTMARRIAGE.COM V. BOWEN
electorate, and this interest allegedly expires with the
election’s conclusion. We reject Appellants’ narrow view of
the government’s interest in disclosure.
A state’s interests in contribution disclosure do not
necessarily end on election day. Even if a state’s interest in
disseminating accurate information to voters is lessened after
the election takes place, the state retains its interests in
accurate record-keeping, deterring fraud, and enforcing
contribution limits. As a practical matter, some lag time
between an election and disclosure of contributions that
immediately precede that election is necessary for the state to
protect these interests. In this case, for example, Appellants’
contributions surged nearly 40% (i.e., by over $12 million)
between the final pre-election reporting deadline and election
day. Absent post-election reporting requirements, California
could not account for such late-in-the-day donations. And,
without such reporting requirements, donors could undermine
the State’s interests in disclosure by donating only once the
final pre-election reporting deadline has passed. Accordingly,
we hold that the government’s interest in disclosing
contributions to ballot initiative committees is not merely a
pre-election interest, and we affirm the district court’s
judgment with regard to Appellants’ facial challenges.
II. As-Applied Challenges
Appellants also challenge the PRA disclosure
requirements as applied to themselves.
To the extent that Appellants seek an injunction requiring
the State to purge records of their past PRA disclosures, any
claim for such relief is moot. To the extent that Appellants
seek a forward-looking exemption from California’s PRA
PROTECTMARRIAGE.COM V. BOWEN 13
requirements, such a claim is not ripe. Accordingly, we
dismiss as non-justiciable Appellants’ appeal from the district
court’s judgment rejecting their as-applied claims, and we
direct the court to vacate this portion of its opinion.
A. Mootness
Article III’s “case-or-controversy” requirement precludes
federal courts from deciding “questions that cannot affect the
rights of litigants in the case before them.” DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (quoting
North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
1. Present Controversy
a. Legal Standard
It is not enough that a case presents a live controversy
when it is filed. FEC v. Wisc. Right To Life, Inc., 551 U.S.
449, 461 (2007). An actual controversy must exist at all
stages of federal court proceedings. Spencer v. Kemna,
523 U.S. 1, 7 (1998). This means that, at all stages of the
litigation, the plaintiff “must have suffered, or be threatened
with, an actual injury traceable to the defendant [that is]
likely to be redressed by a favorable judicial decision.” Id.
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990)). “[T]he judicial branch loses its power to render a
decision on the merits of [a] claim,” Nome Eskimo Cmty. v.
Babbitt, 67 F.3d 813, 815 (9th Cir. 1995), when a federal
court can no longer effectively remedy a “present
controversy” between the parties, Doe, 697 F.3d at 1238
(quoting Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir.
2008)).
14 PROTECTMARRIAGE.COM V. BOWEN
We are unable to effectively remedy a present controversy
between the parties where a plaintiff seeks to enjoin an
activity that has already occurred, and we cannot “undo” that
action’s allegedly harmful effects. Foster v. Carson, 347 F.3d
742, 746 (9th Cir. 2003) (citing Bernhardt v. Cnty. of Los
Angeles, 279 F.3d 862, 871 (9th Cir. 2002)); see also Seven
Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th
Cir. 2001). For example, “once a fact is widely available to
the public, a court cannot grant ‘effective relief’ to a person
seeking to keep that fact a secret.” Doe, 697 F.3d at 1240; see
also Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160,
1164 (9th Cir. 2011); In re Copley Press, Inc., 518 F.3d 1022,
1025 (9th Cir. 2008) (“Once information is published, it
cannot be made secret again.”). For this reason, “a case
seeking to keep a document secret is moot once third parties
have control over copies of the document.” Doe, 697 F.3d at
1239 (quoting C & C Prods., Inc. v. Messick, 700 F.2d 635,
636–37 (11th Cir. 1983)). A case is similarly moot where a
plaintiff seeks to enjoin specific parties from disclosing
information that has already been published across the
Internet. Doe, 697 F.3d at 1240.
b. Application
Appellants’ request for an injunction requiring the State
to purge all records of their PRA disclosures does not present
a live controversy.
Before commencing this lawsuit, Appellants voluntarily
complied with all PRA reporting requirements, and they have
continued to do so throughout this litigation. Appellants most
recently filed PRA disclosures on January 17, 2014—more
than two years after filing this appeal. Each PRA disclosure
PROTECTMARRIAGE.COM V. BOWEN 15
that Appellants have submitted is published on the
Secretary’s website, and is publicly available in hard copy.2
The record is replete with evidence that Appellants’ PRA
disclosures have been accessed and republished by third
parties. Appellants themselves provided detailed
documentation of several websites that have published their
contributors’ names, employers, and addresses. Appellants
also represent that: (1) one site allows individuals to search
for “any city and print a map graphically illustrating the
name, address, [contribution] amount, occupation, and
employer of each individual in that city who contributed to
Prop. 8”; (2) “at least two major California newspapers have
compiled searchable databases . . . that enable easy access to
look up Prop. 8 contributors”; and (3) Time Magazine
directed its readership to a website that publishes the
information contained in Appellants’ PRA disclosures.
In light of the disclosures, and their vast dissemination,
we can no longer provide Appellants with effective relief.
The information that Appellants seek to keep private has been
2
Specifically, since the PRA’s January 31, 2009 reporting deadline,
“ProtectMarriage.com - Yes on 8, a Project of California Renewal” has
made seven additional filings. There was no committee activity between
January 2009 and June 2011, but filings were made in June 2011, July
2011, January 2012, July 2012, January 2013, and July 2013. “National
Organization for Marriage California - Yes on 8, Sponsored by National
Organization for Marriage” has made two filings since the January 2009
deadline, in July 2009 and January 2010. There has been no committee
activity since January 2010. Finally, “National Organization for Marriage
California PAC” was formed subsequent to the November 2008 election,
and joined in Plaintiffs’ Third Amended Complaint. It has only made one
filing, in July 2010, and its only donor was the National Organization for
Marriage. In each instance, the information filed with the Secretary of
State was posted on the Internet, and was and is available in hard copy.
16 PROTECTMARRIAGE.COM V. BOWEN
publicly available on the Internet and in hard copy for nearly
five years. Third parties already have control over this
information. Moreover, we have no way of knowing how
many individuals have: (1) viewed Appellants’ PRA
disclosures; (2) retained copies of the disclosures or their
contents; or (3) reproduced the disclosures. Accordingly, we
cannot remedy Appellants’ alleged harms, and their request
for an injunction requiring the State to purge their past PRA
disclosures does not present a live controversy.3
3
Our dissenting colleague does not dispute that our precedent compels
this conclusion. Rather, Judge Wallace argues that Doe was wrongly
decided in light of Church of Scientology of California v. United States,
506 U.S. 9 (1992). In Church of Scientology, the Supreme Court held that
the improper disclosure of privileged audio tapes to the IRS did not moot
a claim to destroy or return those tapes. Id. at 13. But Church of
Scientology involved a finite set of tangible records that had only been
disclosed to a party to the action. Accordingly, the Court was able to
clearly identify each person who had viewed the information, and order
that each copy be returned or purged. Conversely, in this case, as in Doe,
the challenged information is in the hands of third parties over whom we
lack jurisdiction, and it has been widely available on the Internet for
several years. It is now impossible to identify how many people have
viewed this information, locate every reproduction of this information, and
prevent the information’s continued disclosure. As in Doe, the widespread
disclosure of Appellants’ PRA disclosures precludes us from providing the
“effective relief” that the Supreme Court recognized in Church of
Scientology. We also observe that even if Judge Wallace were correct that
Doe was wrongly decided, we would still be bound by Doe’s holding
unless and until the Supreme Court announces a “clearly irreconcilable”
rule, or our court, sitting en banc, announces an alternate rule. Miller v.
Gammie, 335 F.3d 889, 900 (2003) (en banc). As noted, Church of
Scientology is not “clearly irreconcilable” with Doe.
PROTECTMARRIAGE.COM V. BOWEN 17
2. Capable of Repetition, Yet Evading Review
We further hold that Appellants’ request for injunctive
relief does not fall within the mootness exception for cases
that are “capable of repetition, yet evading review.”
a. Legal Standard
As we explain above, a federal court loses its jurisdiction
to reach the merits of a claim when the court can no longer
effectively remedy a present controversy between the parties.
Doe, 697 F.3d at 1238 (quoting Feldman, 518 F.3d at 642);
Nome Eskimo Cmty., 67 F.3d at 815. There is an exception to
this rule, however, where an otherwise moot action is
“capable of repetition, yet evading review.” Lewis, 494 U.S.
at 481. Under the “capable of repetition, yet evading review”
exception, we will decline to dismiss an otherwise moot
action if we find that: “(1) the challenged action is in its
duration too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again.” Wisc. Right to Life, Inc., 551 U.S. at 462 (internal
quotation marks omitted).
For a controversy to be “too short to be fully litigated
prior to cessation or expiration,” it must be of “inherently
limited duration.” Doe, 697 F.3d at 1240 (emphasis added).
This is so because the “capable of repetition, yet evading
review” exception is concerned not with particular lawsuits,
but with classes of cases that, absent an exception, would
always evade judicial review. Id. at 1240–41; see also
Bunker Ltd. P’ship v. United States (In re Bunker Ltd.
P’ship), 820 F.2d 308, 311 (9th Cir. 1987) (“[t]he exception
was designed to apply to situations where the type of injury
18 PROTECTMARRIAGE.COM V. BOWEN
involved inherently precludes judicial review”); 13C Charles
Alan Wright & Arthur R. Miller, Federal Practice and
Procedures: Jurisdiction and Related Matters § 3533.8.2 (3d
ed. 2013) (collecting cases). Notably, regardless of any
injunction that might issue, a woman can only obtain an
abortion so long as she remains pregnant. Roe v. Wade,
410 U.S. 113, 125 (1973). We can only invalidate a
temporary injunction so long as that injunction remains in
effect. Carroll v. President & Comm’rs of Princess Anne, 393
U.S. 175, 178–79 (1968); Enyart v. Nat’l Conference of Bar
Exam’rs, Inc., 630 F.3d 1153, 1159–60 (9th Cir. 2011). And
where a purportedly invalid law inhibits a political candidate
or party’s ability to win an election, we can only remedy that
impediment before the election occurs. Norman v. Reed,
502 U.S. 279, 288–89 (1992). We recognize these types of
controversies as “inherently limited in duration,” because
they will only ever present a live action until a particular date,
after which the alleged injury will either cease or no longer be
redressible. The limited duration of such controversies is
clear at the action’s inception.
Actions seeking to enjoin future conduct are different.
Such actions only become moot if the challenged conduct
actually occurs and causes an injury that cannot be reversed.
These actions are not of “inherently limited duration,”
because the challenged conduct might never occur. And, a
court can ensure that a live controversy persists until the
action is fully litigated by enjoining the challenged conduct
until the litigation concludes. See Doe, 697 F.3d at 1240–41.
Because mootness concerns whether we have power to
hear a case, we apply the “capable of repetition, yet evading
review” exception sparingly, and only in “exceptional
situations.” Lewis, 494 U.S. at 481. Controversies that are not
PROTECTMARRIAGE.COM V. BOWEN 19
of “inherently limited duration” do not create “exceptional
situations” justifying the rule’s application, because, even if
a particular controversy evades review, there is no risk that
future repetitions of the controversy will necessarily evade
review as well. As we have explained, “[t]he exception was
designed to apply to situations where the type of injury
involved inherently precludes judicial review, not to
situations where . . . [review is precluded as a] practical
matter.” Bunker, 820 F.2d at 311.
For this reason, where preliminary injunctive relief is
available to maintain a live controversy, it is of no
consequence to the mootness inquiry that a particular party
has failed to actually obtain such relief. “[A] party may not
profit from the ‘capable of repetition, yet evading review’
exception . . . where through his own failure to seek and
obtain [prompt relief] he has prevented [an] appellate court
from reviewing the trial court’s decision.” Id. at 311; see also
Newdow v. Roberts, 603 F.3d 1002, 1008–09 (D.C. Cir.
2010). In such circumstances, we have no power to hear the
action, and the controversy must be resolved in a future
action presenting a live dispute. Doe, 697 F.3d at 1241; see
also Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d
1012, 1016 (9th Cir. 1990) (holding that a party may not
invoke the “capable of repetition, yet evading review”
exception where its failure to obtain prompt relief has
prevented judicial review); Bunker, 820 F.2d at 311.
Lawsuits seeking to enjoin the disclosure of sensitive
information do not fall into the mootness exception for cases
that are “capable of repetition, yet evading review,” because
there is no inherent limit on the duration of such
controversies. For example, in a case challenging campaign
contribution disclosure requirements, the court can maintain
20 PROTECTMARRIAGE.COM V. BOWEN
a live controversy by issuing an order that either:
(1) temporarily excuses the plaintiffs from complying with
the challenged requirements; or (2) temporarily precludes the
state from disclosing the challenged information. Doe,
697 F.3d at 1240–41. Whether a party actually obtains such
an order in a particular case does not affect our jurisdictional
inquiry. See id.
b. Application
The “capable of repetition, yet evading review” exception
does not apply to Appellants’ claims, because there was no
“inherent limit” on the duration of this controversy. A court
order temporarily excusing Appellants from the PRA’s
reporting deadline or enjoining the state from publicly
disclosing Appellants’ filings could have permitted the parties
to fully litigate this case on the merits. Appellants simply
failed to obtain such an order.
After the district court denied Appellants’ motion for a
temporary restraining order, Appellants did not file an
interlocutory appeal, nor did they seek an injunction pending
appeal. By the time Appellants’ claims reached us, the
information that Appellants seek to keep private had been
publicly available for nearly five years. If Appellants were to
bring a similar action in the future, their claims would not, by
their nature, again evade review, because a different litigation
strategy could maintain a live controversy until the action’s
final resolution.4
4
In concluding that this controversy is justiciable, the dissent argues that
under Enyart, the “capable of repetition, yet evading review” exception
considers whether the circumstances of a particular litigation allowed a
party to fully litigate its claims before they became moot. But Enyart dealt
PROTECTMARRIAGE.COM V. BOWEN 21
In reaching this conclusion, we emphasize that the
justiciability of disputes concerning the disclosure of
with an issue of an entirely different nature.
It is well established that when a party challenges a temporary
injunction and that party will likely face a similar injunction in the future,
the injury caused by that injunction is “capable of repetition, yet evading
review.” Carroll, 393 U.S. at 178–79. This is so because any injury
caused by a temporary injunction ends when the injunction expires, and
no court order can extend the duration of the controversy past the
injunction’s expiration. Enyart involved a straightforward application of
this rule. We merely held that a challenge to a temporary injunction
remained justiciable after the injunction expired because there was a
reasonable expectation that the appellants would be subject to the same
injunction in the future. 630 F.3d at 1159–60.
The dissent reasons that, because we considered the duration of the
challenged injunctions in Enyart, we should consider this litigation’s
timeline in assessing whether Appellants’ claims “evade review.” In so
doing, the dissent highlights that there was only one day between the
issuance of the district court’s order denying preliminary injunctive relief
and the PRA’s January 31, 2009 disclosure deadline.
The dissent errs with regard to the time-frame that is relevant to
whether a controversy inevitably “evades review.” As we explain above,
a controversy “evades review” only if it is of “inherently limited
duration.” Bunker, 820 F.2d at 311 (“[t]he exception was designed to
apply to situations where the type of injury involved . . . [evades review]
by [its] nature” (emphasis added)). A case is not of “inherently limited
duration” if a court order could maintain a live controversy until the action
is fully litigated.
While the timing of the district court’s order made it difficult for
Appellants to maintain a live controversy in this case, we can no longer
redress Appellants’ alleged injuries, and we therefore lack jurisdiction
over this appeal. Despite the dissent’s contrary assertions, the poor timing
of the district court’s order cannot confer jurisdiction upon us that would
not otherwise exist.
22 PROTECTMARRIAGE.COM V. BOWEN
sensitive information may well turn on whether preliminary
relief is granted at an action’s inception. As this case
demonstrates, the premature disclosure of information can
eviscerate a live controversy. Nevertheless, the fact that
preliminary relief is technically available to maintain a live
controversy will also deprive federal courts of jurisdiction to
consider the action as one that is “capable of repetition, yet
evading review.” Accordingly, we advise courts to exercise
the utmost caution at the early stages of actions concerning
the disclosure of sensitive information, and to consider this
“mootness Catch-22” when assessing whether the denial of
preliminary relief will likely result in irreparable harm. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
B. Ripeness
Finally, Appellants urge that they are entitled to an
injunction exempting them from complying with future PRA
disclosure requirements, because they expect to participate in
future campaigns opposing same-sex marriage. This claim for
forward-looking relief is not ripe for judicial review.
1. Legal Standard
The ripeness doctrine seeks to identify those matters that
are premature for judicial review because the injury at issue
is speculative, or may never occur. Alcoa, Inc. v. Bonneville
Power Admin., 698 F.3d 774, 793 (9th Cir. 2012); see also
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). “For
adjudication of constitutional issues, concrete legal issues,
presented in actual cases, not abstractions, are requisite.”
United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75,
89 (1947) (internal quotations omitted). Concrete legal issues
PROTECTMARRIAGE.COM V. BOWEN 23
require more than mere “hypothetical threat[s],” and where
we can “only speculate” as to the specific activities in which
a party seeks to engage, we must dismiss a claim as
nonjusticiable. Id. at 90.
We have explained that “the ripeness inquiry contains
both a constitutional and a prudential component.” Thomas v.
Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th
Cir. 2000) (en banc). The constitutional component overlaps
with, and is often indistinguishable from, the “injury in fact
prong” of our standing analysis. Id. Whether we view injury
in fact as a question of standing or ripeness, “we consider
whether the plaintiff[] face[s] a realistic danger of sustaining
a direct injury as a result of the statute’s operation or
enforcement . . . or whether the alleged injury is too
imaginary or speculative to support jurisdiction.” Id. at 1139
(internal quotation marks and citations omitted). If this
constitutional requirement is not satisfied, we lack
jurisdiction, and we need not consider the prudential
component of the ripeness inquiry.
We typically look to three factors to assess whether a pre-
enforcement challenge is ripe for review under Article III. Id.
We first consider whether the plaintiff articulates a “concrete
plan to violate the law.” Id. (internal quotation marks
omitted). With regard to this prong, “[a] general intent to
violate a statute at some unknown date in the future” is not
sufficient, id, and the plaintiff must establish a plan “that is
more than hypothetical,” Wolfson v. Brammer, 616 F.3d
1045, 1059 (9th Cir. 2010).
Next, we typically look to whether the government has
“communicated a specific warning or threat to initiate
proceedings” under the statute. Thomas, 220 F.3d at 1139.
24 PROTECTMARRIAGE.COM V. BOWEN
Our analysis under this second prong is somewhat different,
however, in a pre-enforcement challenge that alleges a free
speech violation under the First Amendment. See Wolfson,
616 F.3d at 1059–60. In such actions, the plaintiff need not
establish an actual threat of government prosecution. Id.
Rather, the plaintiff need only demonstrate that a threat of
potential enforcement will cause him to self-censor, and not
follow through with his concrete plan to engage in protected
conduct. Id.
Finally, we consider the history of past prosecution or
enforcement under the statute. Thomas, 220 F.3d at 1140.
Under this third prong, “the government’s active enforcement
of a statute [may] render[] the plaintiff’s fear [of injury] . . .
reasonable.” Id.
Weighing these factors, we will only conclude that a pre-
enforcement action is ripe for judicial review if the alleged
injury is “reasonable” and “imminent,” and not merely
“theoretically possible.” Id. at 1141. A claim is not ripe where
“[t]he asserted threat is wholly contingent on the occurrence
of unforeseeable events,” or where the plaintiffs do not
“confront a realistic danger of sustaining a direct injury as a
result of the statute’s operation or enforcement.” Id. (internal
quotation marks and citations omitted).
The application of these principles is illustrated in Renne
v. Geary, 501 U.S. 312 (1991), in which the Supreme Court
dismissed a challenge to a provision in the California
constitution prohibiting political parties and committees from
endorsing, supporting, or opposing candidates for nonpartisan
offices. In that case, the Republican Committee submitted an
affidavit stating:
PROTECTMARRIAGE.COM V. BOWEN 25
It is the plan and intention of the Republican
Committee to endorse candidates for
nonpartisan offices in as many future
elections as possible. The Republican
Committee would like to have such
endorsements publicized by endorsed
candidates in their candidate’s statements in
the San Francisco voter’s pamphlet, and to
encourage endorsed candidates to so publish
their endorsements by the Republican
Committee.
Id. at 317.
In holding that the Republican Committee did not present
a ripe controversy, the Renne Court explained that “[the
Committee] d[id] not allege an intention to endorse any
particular candidate . . . . [and there is] no factual record of an
actual or imminent application of [the challenged provision]
sufficient to present the constitutional issues . . . .” Id. at
321–22 (citations omitted).
2. Application
At this stage, any as-applied challenge based on
Appellants’ future activity fails to “tender[] the underlying
constitutional issues in clean cut and concrete form.” Socialist
Labor Party v. Gilligan, 406 U.S. 583, 588 (1972) (quoting
Rescue Army v. Mun. Court, 331 U.S. 549, 584 (1947)). The
only information that we have regarding Appellants’ intended
future activities is that Appellants expect to participate in
future campaigns opposing same-sex marriage, and that, in so
doing, they wish not to comply with the PRA’s disclosure
requirements.
26 PROTECTMARRIAGE.COM V. BOWEN
Appellants have not offered any information regarding
when they may next support a campaign opposing same-sex
marriage, what type of campaign they will support, where
they will support it, what their involvement will entail, or
whether their donors will likely face personal harassment.
Without this information, we cannot discern a concrete plan
to engage in protected conduct. Rather, the scant information
that Appellants provide merely demonstrates “[a] general
intent to [engage in protected conduct] at some unknown date
in the future,” along with a speculative fear that Appellants’
donors may be personally harassed as a result of disclosing
their contributions to such an effort. Wolfson, 616 F.3d at
1059. These hypothetical plans and fears do not create an
immediate threat of self-censorship. And, as in Renne, there
is no factual record of the State’s bringing PRA enforcement
actions against those who do not comply with the statute’s
disclosure requirements. Renne, 501 U.S. at 321–22.
Accordingly, any claim based on Appellants’ future activities
is not ripe under the Thomas factors.
In reaching this conclusion, we emphasize that we have
“no right to pronounce an abstract opinion upon the
constitutionality of a [s]tate law,” Poe v. Ullman, 367 U.S.
497, 504 (1961). As-applied challenges to contribution
disclosure laws are fact-specific in nature. Whether a group
will succeed in asserting such a challenge depends on factors
such as the group’s size, the nature of the campaign, the
political tenor in the community, and the actions of third
parties and government entities. See Brown v. Socialist
Workers ‘74 Campaign Comm. (Ohio), 459 U.S. 87, 89–92
(1982). Unlike California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088 (9th Cir. 2003) and New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495 (10th Cir.
1995)—upon which the dissent relies—any opinion that we
PROTECTMARRIAGE.COM V. BOWEN 27
could issue regarding Appellants’ forward-looking claims
would require us to speculate about the nature of events that
might take place at some unknown time in the future, and to
declare the constitutionality of a state law in the context of
these uncertain circumstances. Under Article III, we lack the
authority to issue such an opinion. See Renne, 501 U.S. at 323
(“[a] determination of the . . . constitutionality of
legislation[,] in advance of its immediate adverse effect in the
context of a concrete case[,] involves too remote and abstract
an inquiry for the proper exercise of the judicial function”).
CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment with regard to Appellants’ facial challenges. We
dismiss this appeal as non-justiciable with regard to
Appellants’ as-applied challenges, and we remand these
claims to the district court with instructions that the court
vacate the portion of its opinion concerning Appellants’ as-
applied challenges. See Bunker, 820 F.2d at 313. Appellants
shall bear costs on appeal.
AFFIRMED in part; DISMISSED in part; and
REMANDED with instructions.
WALLACE, Circuit Judge, dissenting in part:
I do not disagree with the majority’s disposition of
Appellants’ facial challenges. The majority is correct that our
precedent, including our decision in Family PAC v.
McKenna, 685 F.3d 800 (9th Cir. 2012), forecloses those
challenges. However, I disagree with the majority’s
28 PROTECTMARRIAGE.COM V. BOWEN
determination that Appellants’ as-applied challenges are non-
justiciable.
The majority offers three rationales for its holding that
Appellants’ as-applied challenges are non-justiciable. First,
the majority concludes that those challenges are moot, insofar
as various Internet websites have republished the information
contained in Appellants’ disclosures. (Majority Op. at 14.)
Second, the majority concludes that Appellants cannot avail
themselves of the “capable of repetition, yet evading review”
exception to mootness. The majority reaches this conclusion
on the ground that this exception only applies to cases in
which there is an “inherent limit” on the “duration of [the]
controversy,” and faults Appellants for not seeking and
obtaining immediate relief from our court after the district
court denied their motion for a temporary restraining order.
(Id. at 17–22.) Finally, the majority concludes that insofar as
Appellants seek an injunction exempting them from
complying with future disclosure requirements, this claim is
not ripe because it rests on merely speculative contentions
from Appellants about their future activities. (Id. at 22–27.)
For the reasons stated below, I disagree with each of these
three conclusions. Accordingly, I respectfully dissent from
the majority’s decision to dismiss Appellants’ as-applied
challenges as non-justiciable.
I.
The majority holds that Appellants’ request for an
injunction requiring California to purge all records of their
disclosures does not “present a live controversy.” (Majority
Op. at 14.) The majority’s reasoning as to this issue relies on
our decision in Doe No. 1 v. Reed, 697 F.3d 1235 (9th Cir.
PROTECTMARRIAGE.COM V. BOWEN 29
2012). However, I believe that Reed was wrongly decided, as
Judge Randy Smith explained in his concurrence in that case.
See id. at 1241 (N.R. Smith, J., concurring in the judgment).
Reed involved facts much like those presented in this
appeal. The plaintiffs in that case sought an injunction
preventing the State of Washington from releasing to the
public the names of people who signed petitions supporting
a referendum. Id. at 1237. Because those petitions were
“already widely available on the [I]nternet,” the majority
dismissed the case as moot. Id.
While Judge Randy Smith concurred with the judgment,
he wrote separately to explain that “Supreme Court precedent
makes clear” that the case was not moot, insofar as
“continued government disclosure of confidential materials
can be prevented.” Id. at 1241. As he explained, our court
could have afforded the plaintiffs a “viable remedy, albeit a
much less effective remedy than they originally sought.” Id.
As he further explained, there were several respects in which
a “viable remedy” was available from us. First, our court
could have “fashion[ed] some form of meaningful relief” by
“ordering the [State] to destroy or return any and all copies
[of the petitions] it may have in its possession,” because the
State’s “continued possession of those materials” itself
constituted an “affront to the [citizen’s] privacy.” Id. at
1242–43, quoting Church of Scientology of Cal. v. United
States, 506 U.S. 9, 12–13 (1992). Second, he pointed out that
the majority had “mistakenly assume[d] that every person in
the United States or the State of Washington has access to a
computer to search for [the] petitions,” whereas in actuality
a significant percentage of the public either lacks access to
the Internet or “would not know where to look for [the]
petitions” on the Internet. Id. at 1243. Thus, by granting the
30 PROTECTMARRIAGE.COM V. BOWEN
plaintiffs the injunctive relief they requested, our court could
have “prevent[ed] further government disclosure to
individuals without access or desire to download petitions
from non-government websites,” which would have slowed
or reduced “the dissemination of potentially private
information.” Id., citing Massachusetts v. E.P.A., 549 U.S.
497, 525 (2007).
I agree with the reasoning of Judge Smith’s concurrence
in Reed. I write here to emphasize that the Supreme Court’s
decision in Church of Scientology of California v. United
States clearly states that the type of claim raised by the
plaintiffs in Reed, and by Appellants in this case, is not moot.
There, the Court acknowledged that there are circumstances
in which the judiciary “may not be able to return the parties
to the status quo ante,” because there is “nothing a court can
do to withdraw all knowledge or information” once that
information has been disseminated. Church of Scientology,
506 U.S. at 12–13. Nonetheless, Church of Scientology held
that “a court can fashion some form of meaningful relief” in
such circumstances. Id. The Court stated that “even if the
Government retains only copies of the disputed materials,” a
citizen “still suffers injury by the Government’s continued
possession of those materials, namely, the affront to the
[citizen’s] privacy.” Id. at 13. Accordingly, Church of
Scientology held that “a court does have power to effectuate
a partial remedy by ordering the Government to destroy or
return any and all copies it may have in its possession,” and
further held that the “availability of this possible remedy is
sufficient to prevent [a] case from being moot.” Id.
The majority in Reed failed to recognize that Church of
Scientology is controlling. Instead, it ignored the holding of
Church of Scientology on the basis of its “commonsense
PROTECTMARRIAGE.COM V. BOWEN 31
conclusion that once a fact is widely available to the public,
a court cannot grant any ‘effective relief’ to a person seeking
to keep that fact a secret.” Reed, 697 F.3d at 1240. It should
go without saying, however, that the “commonsense
conclusion” of two circuit judges cannot trump an express
holding of the Supreme Court. Church of Scientology is still
the controlling law of all circuits, including the Ninth Circuit.
Reed cannot change that. Indeed, the majority should have
interpreted Reed in such a way as to render it consistent with
Church of Scientology.
As Church of Scientology makes clear, we could order the
State of California to “destroy or return any and all copies” of
Appellants’ disclosures that the State “may have in its
possession.” Church of Scientology, 506 U.S. at 13. Thus,
under binding Supreme Court precedent, there is available to
us a “possible remedy” that is “sufficient to prevent this case
from being moot.” Id.
The majority goes the opposite direction, and attempts to
distinguish Church of Scientology by stating that Church of
Scientology involved “a finite set of tangible records that had
only been disclosed to a party to the action,” whereas this
case involves records that have been “widely available on the
Internet for several years.” (Majority Op. at 16 n.3.) Thus,
the majority concludes that we cannot provide “the ‘effective
relief’ that the Supreme Court recognized in Church of
Scientology.” (Id.) But this conclusion simply repeats the
error of the panel in Reed. As pointed out above, Church of
Scientology clearly holds that a case is not moot if we can
“effectuate a partial remedy by ordering the Government to
destroy or return any and all copies [of records] it may have
in its possession.” Church of Scientology, 506 U.S. at 13.
The fact that records may have been “widely available” on
32 PROTECTMARRIAGE.COM V. BOWEN
the Internet is not relevant to the inquiry mandated by Church
of Scientology. Again, that inquiry is whether we can
“fashion some form of meaningful relief” by remedying the
“injury” to citizens caused by the “Government’s continued
possession” of records, where that possession is an “affront”
to the citizen’s privacy. Id. at 12–13.
Church of Scientology teaches that courts should not
declare a case moot if “any effective relief may be granted.”
Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir.
2006) (citation omitted). As one of our sister circuits has
explained, this is a “high threshold for judging a case moot,”
insofar as it requires that we find an appeal “moot in the
constitutional sense only if events have taken place that make
it impossible for the court to grant any effectual relief
whatever.” United Artists Theatre Co. v. Walton, 315 F.3d
217, 226 (3d Cir. 2003) (internal quotation marks and citation
omitted). Both Reed and the majority in this case err by
effectively lowering this standard, in contravention of Church
of Scientology. That opinion tells us that we should find a
case moot only if it is “impossible” for us to grant “any
effectual relief whatever.” Church of Scientology, 506 U.S.
at 12. By contrast, the majority holds that this case is moot
because it is unlikely that we will be able to provide
significant effective relief. But that is not the standard set by
Church of Scientology.
For the reasons stated above, and in accordance with the
well-reasoned concurrence of Judge Randy Smith in Reed, I
conclude that Reed was wrongly decided. Under the
governing law of Church of Scientology, Appellants’ as-
applied challenges are not moot. The majority should have
PROTECTMARRIAGE.COM V. BOWEN 33
distinguished Reed and followed Church of Scientology, not
the opposite.1
II.
Having concluded that Appellants’ as-applied challenges
are moot, the majority proceeds to consider whether those
challenges may nonetheless be subject to the exception to
mootness for injuries that are “capable of repetition, yet
evading review.” As discussed above, I do not believe that
the as-applied challenges are moot. But even if they were
moot, I believe that the majority errs in concluding that the
“capable of repetition, yet evading review” exception to
mootness does not apply to this case.
The majority correctly states that the “capable of
repetition, yet evading review” exception applies where:
“(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is
a reasonable expectation that the same complaining party will
be subject to the same action again.” Fed. Election Comm’n
v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). In my
view, Appellants satisfy both of these requirements. I
consider each in turn.
1
As the majority observes, this panel is bound by the holding in Reed
“unless and until the Supreme Court announces a ‘clearly irreconcilable’
rule, or our court, sitting en banc, announces an alternate rule.” (Majority
Op. at 16 n.3.) My purpose here is to explain the misguided reasoning of
Reed, in the hope that our court will reconsider the erroneous rule it
propounds, or distinguish Reed and follow the clear mandate of the
Supreme Court in Church of Scientology.
34 PROTECTMARRIAGE.COM V. BOWEN
A.
As to the first requirement, Appellants filed their original
complaint on January 7, 2009, two months after the election
on Proposition 8 took place. Under California law,
Appellants were required to disclose the names of their
contributors by January 31, 2009. As the majority observes,
the district court denied Appellants’ motion for a preliminary
injunction on January 30, 2009. (Majority Op. at 7.) The
next day, Appellants complied with the law and made their
disclosures. (Id.) Such a short span of time is clearly “in its
duration too short” for a claim of this nature to be “fully
litigated.” Wis. Right to Life, 551 U.S. at 462.
The majority does not contend that this claim could have
been “fully litigated” in so brief a time. Rather, it faults
Appellants for failing to seek preliminary injunctive relief,
and concludes that their failure to do so precludes this claim
from falling under the “capable of repetition, yet evading
review” exception to mootness. In reaching this conclusion,
the majority relies upon our opinions in Headwaters, Inc. v.
Bureau of Land Management, 893 F.2d 1012 (9th Cir. 1990),
and Bunker Ltd. Partnership v. United States, 820 F.2d 308
(9th Cir. 1987). However, I believe that these opinions do not
preclude us from deciding that the “capable of repetition, yet
evading review” exception applies to this case.
In Headwaters, we stated that “[w]here prompt
application for a stay pending appeal can preserve an issue for
appeal, the issue is not one that will evade review.”
Headwaters, 893 F.2d at 1016. Likewise, in Bunker we
stated that “a party may not profit from the ‘capable of
repetition, yet evading review’ exception to mootness, where
through his own failure to seek and obtain a stay he has
PROTECTMARRIAGE.COM V. BOWEN 35
prevented an appellate court from reviewing the trial court’s
decision.” Bunker, 820 F.2d at 311 (emphasis added). But
the abstract proposition stated in both of these cases—i.e., the
proposition that if a party “fail[s] to seek and obtain a stay,”
that party may not avail itself of the “capable of repetition,
yet evading review” exception to mootness—does not speak
to the particular facts of this case. As pointed out above, the
district court issued its order on Appellants’ motion for a
preliminary injunction on January 30, 2009, while Appellants
were required to make their disclosures by January 31, 2009.
Thus, under the majority opinion, Appellants would have had
a single day to “seek and obtain a stay” from our court in
order to “profit from the ‘capable of repetition, yet evading
review’ exception to mootness.” Id. This draconian
constraint is not established by the opinions cited by the
majority, which merely speak in general terms of a party’s
obligation to “seek and obtain a stay” so as to enable our
court to review the lower court’s decision.
A recent case in one of our sister circuits emphasizes the
unfair position in which Appellants have been placed by the
majority’s holding as to this issue. On December 20, 2013,
the District of Utah held that Amendment 3 of the Utah
Constitution is unconstitutional, and enjoined the State of
Utah from enforcing various statutory provisions that
“prohibit a person from marrying another person of the same
sex.” Kitchen v. Herbert, 2013 WL 6697874, at *30 (D. Utah
Dec. 20, 2013). A few hours after that order was issued, the
State of Utah filed a motion to stay the order. See Kitchen v.
Herbert, 2013 WL 6834634, at *1 (D. Utah Dec. 23, 2013).
Although the district court ordered expedited briefing, it did
not rule on the motion to stay for three days. See id. It was
not until two weeks later that the Supreme Court issued a stay
36 PROTECTMARRIAGE.COM V. BOWEN
pending final disposition of the appeal by the Tenth Circuit.
See Herbert v. Kitchen, 134 S. Ct. 893, 893 (2014).
As this example illustrates, it is simply not realistic to
expect a party to “seek and obtain a stay” within the span of
a single day. Yet that is what the majority effectively
requires. On the facts of this case, I would hold that our
decisions in Headwaters and Bunker do not prohibit
Appellants from satisfying the first requirement of the
“capable of repetition, yet evading review” exception to
mootness.
The majority asserts that the analysis above errs by
focusing on the wrong “time-frame” for determining whether
“a controversy inevitably ‘evades review.’” (Majority Op. at
21 n.4.) The majority’s contrary analysis hinges on its
discussion of “types of controversies” that are “inherently
limited in duration.” (Id. at 17.) The majority argues that the
mootness exception discussed here only applies to “inherently
limited” controversies, which it defines as those that “will
only ever present a live action until a particular date, after
which the alleged injury will either cease or no longer be
redressible.” (Id. at 18.)
To my mind, the majority’s discussion of an “inherently
limited” controversy is somewhat metaphysical. The present
controversy unquestionably had an “inherent limit”: namely,
January 31, 2009, when Appellants were required by law to
make their disclosures. In the same way, a controversy
involving a law that “inhibits a political candidate or party’s
ability to win an election” has, as its “inherent limit,” the date
of that election. (Id. at 18.) Whatever distinction might be
drawn between these two scenarios, it cannot be that only the
latter has an “inherent limit.”
PROTECTMARRIAGE.COM V. BOWEN 37
Although the majority does not say as much, it appears to
posit a distinction between controversies whose “inherent
limit” is a real-world event and those whose “inherent limit”
is an artificial creation of the legal system. An example of
the former, which the majority regards as “[n]otabl[e],” is
pregnancy, insofar as the date on which a baby is born is
independent of anything the law might decree. (Id.) By
contrast, the limit in this case was the disclosure deadline
mandated by California state law.
This distinction is not established by the cases the
majority cites. Moreover, I believe that this distinction,
although crucial to the majority’s holding, cannot be
reconciled with our precedent. In effect, the majority has
established a new test for determining whether this exception
to mootness applies to a given case. Under the newly
invented test of the majority, in cases in which the “inherent
limit” on the controversy derives from some real-world
event— such as a pregnancy—the exception will invariably
apply. By contrast, in cases in which the “inherent limit”
derives from an event that may be delayed via court order, the
exception will never apply, because it will always be possible
for a “court [to] ensure that a live controversy persists until
the action is fully litigated by enjoining the challenged
conduct until the litigation concludes.” (Id. at 18.)
Although such a test may have a certain intuitive appeal,
it is not the law of our circuit, as the majority’s own citations
indicate. The majority relies on Bunker, which held that a
party “may not profit” from this exception to mootness
“where through his own failure to seek and obtain [prompt
relief] he has prevented [an] appellate court from reviewing
the trial court’s decision.” (Id. at 19, citing Bunker, 820 F.2d
at 31 (emphasis added).) This citation demonstrates the
38 PROTECTMARRIAGE.COM V. BOWEN
obvious novelty of the test introduced by the majority. In
Bunker, we held that the significant factor, in determining
whether this exception to mootness applies, is a party’s “own
failure to seek and obtain” relief. That is, in our analysis of
this exception to mootness we looked to the party’s own
diligence in seeking relief, rather than evaluating the case in
the abstract and determining whether it was the “type[] of
controvers[y]” that is invariably “inherently limited in
duration.” (Id. at 18.)
Put another way, the majority holds that this exception to
mootness is only available in cases whose “limited duration
. . . is clear at the action’s inception.” (Id. at 18.) But the
cases relied upon by the majority consider a party’s “failure
to obtain prompt relief” during an action. (Id. at 19.) If it
were true that the question of whether this exception to
mootness applies could be resolved solely by considering an
action in abstract form from its “inception,” then there would
have been no reason for our prior cases to consider a party’s
“failure to seek and obtain” relief over the course of litigating
the action. The new majority rule is inconsistent with our
prior case law.
Thus, the majority’s holding here clearly creates new law
for our circuit, and does so in a way that cannot be reconciled
with our court’s precedent. The majority relies on Reed for
its reasoning as to this point. (Id. at 18–20.) I quote below
the entirety of the discussion of this issue in Reed:
There was no inherent limit on the duration of
this controversy. The district court granted a
temporary restraining order the day after
Plaintiffs filed their complaint in July 2009.
The petitions were not released until October
PROTECTMARRIAGE.COM V. BOWEN 39
2011. The release was not timed to a 27-
month deadline inherent in this type of
petition. And unlike [other] election-related
cases granting an exception . . . the issues in
this case were not moot once the election was
held. [citation omitted] Because it is
reasonably foreseeable that this type of
challenge could be fully litigated before
becoming moot, this type of challenge does
not evade review.
Reed, 697 F.3d at 1240–41.
Whatever might be said of this holding, it does not
provide a justification for the novel test that the majority has
invented.
In similar contexts, we have not relied upon the
distinction used by the majority to preclude review of this
case under this exception to mootness. Our recent decision
in Enyart v. National Conference of Bar Examiners, Inc.,
630 F.3d 1153 (9th Cir. 2011), is instructive in this regard. In
Enyart, we considered an appeal from preliminary injunctions
entered by the district court. Id. at 1159. Those injunctions
required the National Conference of Bar Examiners to allow
the plaintiff to take certain bar examinations using “assistive
software.” Id. at 1156. We held that even though those
injunctions only related to particular administrations of those
examinations, “which [had] since come and gone,” the
appeals were not moot because “the situation [was] capable
of repetition, yet evading review.” Id. at 1159. As we
explained, “[d]ue to the limited duration of [the] injunctions,”
and in particular because “little more than a month passed
between the issuance of the injunctions and the final
40 PROTECTMARRIAGE.COM V. BOWEN
execution of their terms,” it was “practically” impossible for
the appellant to obtain review of the district court’s orders.
Id. at 1160.
Thus, in Enyart, we held that a period of “little more than
a month” rendered it “practically” impossible for a party to
obtain appellate review. Id. By the same logic, it was almost
certainly impossible for Appellants to obtain review from us
of the district court’s order on Appellants’ motion for a
preliminary injunction in the single day available to them.
The majority attempts to distinguish Enyart by stating
that it “dealt with an issue of an entirely different nature.”
(Majority Op. at 20–21 n.4.) The point of my discussion of
Enyart, however, is that it considered whether a party could
“practically obtain appellate review” of a district court order.
Enyart, 630 F.3d at 1160. This reinforces my point that the
relevant inquiry, when considering this exception to
mootness, is a pragmatic one—namely, whether it is
practically possible for a party to obtain the appellate relief it
needs—rather than the metaphysical one mandated by the
majority.
In sum, because it was practically impossible under the
facts of this case for Appellants to obtain appellate review, I
would hold that Appellants have satisfied the first
requirement of the “capable of repetition, yet evading review”
exception to mootness.
B.
In light of its conclusion that Appellants failed to satisfy
the first requirement of the “capable of repetition, yet evading
review” exception to mootness, the majority does not address
PROTECTMARRIAGE.COM V. BOWEN 41
the second requirement—namely, the requirement that there
must be a “reasonable expectation that the same complaining
party will be subject to the same action again.” Wis. Right to
Life, Inc., 551 U.S. at 462. Because I believe the majority’s
conclusion as to the first requirement is erroneous, I proceed
to consider the second requirement as well, so as to
demonstrate that Appellants have completely satisfied the
requirements for this exception to mootness.
In this case, Appellants have alleged that they intend to
engage in future political activities against same-sex marriage
and that they intend to continue soliciting donations to
advance that position. Their Third Amended Complaint
alleges that “Committee Plaintiffs believe potential
contributors have been and will continue to be discouraged
from contributing to their committees as a result of the threats
and harassment directed at any individual supporting a
traditional definition of marriage” (emphasis added).
Moreover, at oral argument, counsel for Appellants stated that
future ballot initiatives are being circulated and that
Appellants’ committees are ready to participate in such
initiatives by filing amendment documents, at which point
they would resume soliciting donations.
Under our precedent, this is sufficient to show a
“reasonable expectation that [Appellants] will be subject to
the same action again.” Id. The case of Wolfson v. Brammer,
616 F.3d 1045, 1054 (9th Cir. 2010), is exactly on point.
Wolfson involved an appellant who was a “candidate for
judicial office in Arizona.” Id. at 1051. The district court
had dismissed the case as moot, insofar as Wolfson had lost
his election and the district court found that he “did not intend
to seek judicial office in the next election.” Id. at 1052. We
reversed, holding that the case was not moot under the
42 PROTECTMARRIAGE.COM V. BOWEN
“capable of repetition yet evading review” exception. Id. at
1052, 1054. In particular, we observed that Wolfson had to
“establish a reasonable expectation that he [would] be
subjected to the same action or injury again.” Id. We
concluded that he had established such a “reasonable
expectation.” Id. at 1055. In reaching this conclusion, which
was predicated on our assessment that there was “more than
sufficient evidence to support a finding that Wolfson intends
to seek judicial office in the future,” we relied on two facts.
Id. at 1054–55. First, we observed that “Wolfson’s complaint
expresses an intention to seek judicial office in the future, and
a desire to engage in prohibited conduct . . . in future judicial
elections.” Id. Second, we observed that Wolfson had
“eliminat[ed] any doubts” as to this issue by “represent[ing]
in the present appeal that he intends to seek judicial office in
a future election.” Id.
The same type of evidence is present in this case. First,
as stated above, Appellants’ complaint expresses an intention
to engage in similar conduct in the future, insofar as it alleges
that future contributors “will continue to be discouraged.”
Second, as is also pointed out above, Appellants’ counsel
represented in the present appeal that Appellants intend to
engage in similar campaigns against same-sex marriage in the
future. Therefore, under Wolfson, Appellants have
established a “reasonable expectation” that they will be
subject to the same action again, and thus have satisfied the
second requirement of the “capable of repetition, yet evading
review” exception to mootness.
III.
Finally, the majority invokes the ripeness doctrine to
conclude that Appellants’ “claim for forward-looking relief”
PROTECTMARRIAGE.COM V. BOWEN 43
is non-justiciable. (Majority Op. at 22.) The majority
correctly identifies our guidelines for the ripeness inquiry,
which we articulated in our en banc opinion in Thomas v.
Anchorage Rights Commission. 220 F.3d 1134 (9th Cir.
2000) (en banc); see also Alaska Right to Life Political Action
Comm. v. Feldman, 504 F.3d 840, 845, 849 (9th Cir. 2007)
(following the ripeness analysis from Thomas in considering
a “preenforcement challenge” to two canons of the Alaska
Code of Judicial Conduct); Jacobus v. Alaska, 338 F.3d 1095,
1104–05 (9th Cir. 2003) (applying the ripeness analysis from
Thomas in an action involving a challenge to a state campaign
finance law). As Thomas explains, “the ripeness inquiry
contains both a constitutional and a prudential component.”
Thomas, 220 F.3d at 1138 (citation omitted). First, there is a
constitutional aspect to the ripeness inquiry, under which we
ask three questions: (1) “whether the plaintiffs have
articulated a ‘concrete plan’ to violate the law in question”;
(2) “whether the prosecuting authorities have communicated
a specific warning or threat to initiate proceedings”; and
(3) “the history of past prosecution or enforcement under the
challenged statute.” Id. at 1139. Second, there is a prudential
aspect to the ripeness inquiry, under which we consider “the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.” Id. at 1141.
In light of the ripeness inquiry described by Thomas, and
in light of our consideration of that inquiry in a very similar
context in California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088 (9th Cir. 2003), I believe that Appellants’
claim is ripe.
In Getman, we considered a similar challenge to
California’s campaign finance disclosure laws. Id. at
1091–92. As a threshold matter, we determined whether that
44 PROTECTMARRIAGE.COM V. BOWEN
challenge was ripe. Id. at 1093–95. The district court,
following the approach set forth in Thomas, had concluded
that the action was not ripe, insofar as California was not
investigating the plaintiff for violations of the state’s
campaign finance disclosure law and had not threatened the
plaintiff with prosecution. Id. at 1094. We held that the
district court’s interpretation of Thomas “must be rejected.”
Id. In doing so, we emphasized that in the context of First
Amendment challenges, the “Supreme Court has endorsed
what might be called a ‘hold your tongue and challenge now’
approach rather than requiring litigants to speak first and take
their chances with the consequences.” Id. (citation omitted).
We determined that the “intended communication” that was
the subject of the litigation was “arguably subject” to the
“reporting and disclosure requirements” of California’s
Political Reform Act (PRA)—i.e., the same act that is at issue
in this case. Id. at 1095. From that fact alone, we concluded
that the plaintiff had “suffered an injury as a result of the
alleged unconstitutional statute,” which meant that its claim
was “necessarily ripe for review.” Id. Likewise, here, it is
beyond question that Appellants’ intended future activities, as
discussed above, are subject to the reporting and disclosure
requirements of the PRA, which in turn means that their
claims are “necessarily ripe for review.”
Although the majority pays lip service to our ripeness
analysis in Thomas, its actual resolution of this issue is
largely reliant on the Supreme Court’s decision in Renne v.
Geary, 501 U.S. 312 (1991), which predates our opinion in
Thomas. In my view, the majority’s reliance on Renne is
misguided. In the portion of Renne discussed by the majority,
the Court stated that it could “discern no ripe controversy in
the allegations that respondents desire to endorse candidates
in future elections,” insofar as the respondents did not “allege
PROTECTMARRIAGE.COM V. BOWEN 45
an intention to endorse any particular candidate, nor that a
candidate wants to include a party’s or committee member’s
endorsement in a candidate statement.” Id. at 321. The Court
went on to assert that the respondents had failed to “specify
what form [the] support or opposition [of a particular
candidate] would take.” Id. at 322. Here, by contrast, we
know that Appellants have a very particular intention, and
that they have specified the form their opposition would take:
they intend to oppose same-sex marriage via ballot measures.
Thus, because we held that the post-Renne case of Getman
was ripe, I would hold that this case is ripe.
My view that Renne does not preclude us from holding
that this case is ripe is further supported by the Tenth
Circuit’s well-reasoned opinion in New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995). In
Richardson, the Tenth Circuit held that a plaintiff’s
constitutional challenge to a state campaign finance law was
ripe. Id. at 1497. In particular, the court held that the “facts
presented to the district court undoubtedly show[ed that] the
existence of the New Mexico statute [had] created a direct
and immediate dilemma with respect to [the plaintiff’s]
exercise of his First Amendment liberties.” Id. at 1500. In
this regard, the court considered affidavits submitted to the
district court showing that the plaintiff had solicited
campaign contributions in the past, and that the statute had
“reduc[ed] the likelihood” that the plaintiff would be “able to
obtain funds from contributors” in the future. Id. On the
basis of these facts, the court concluded that it was “clear to
us that the mere existence of the New Mexico statute has
caused [the plaintiff] to engage in the activity of fund raising
differently than he has in the past, rendering his ability to
raise funds, and thus exercise his constitutionally protected
rights, less effective.” Id. at 1500–01. Therefore, the court
46 PROTECTMARRIAGE.COM V. BOWEN
concluded that there was “nothing speculative or uncertain
about the harm to [the plaintiff’s] fund raising activities
brought about by” the statute, which in turn meant that the
case was ripe. Id. at 1501–02.
Just as in Richardson, in this case the record contains
ample affidavits submitted to the district court showing that
Appellants have solicited contributions in the past, and that
the State of California’s disclosure of contributors’
identifying information has reduced the likelihood that
Appellants will be able to obtain funds from contributors in
the future. Thus, as the Tenth Circuit concluded in
Richardson, I would hold here that there is nothing
“speculative or uncertain about the harm” to Appellants’
fund-raising activities caused by California’s campaign
disclosure law, and that their claim is therefore ripe.
A separate reason for concluding that Renne does not
block Appellants’ claim is also provided by the Tenth
Circuit’s opinion in Richardson. The court in Richardson
expressly considered Renne, and concluded that the case
before it was ripe notwithstanding Renne. As the Tenth
Circuit explained, Renne’s holding was largely predicated on
the particular “facts presented” in that case, and especially on
“the dubiousness of plaintiffs’ standing to bring the case.” Id.
at 1501 n.1. The Renne plaintiffs’ standing was “dubious[]”
because they were a “group of individual voters” who were
challenging a law that “regulated political parties and central
committees.” Id. That is, because the law at issue in Renne
“contained no enforcement mechanism against individual
voters and, indeed, did not even regulate the conduct of
individual voters, it follow[ed] logically that [the plaintiffs]
faced no threat of prosecution by virtue of that [law].” Id.
PROTECTMARRIAGE.COM V. BOWEN 47
The Tenth Circuit found further support for this
interpretation of Renne in Justice Stevens’s concurring
opinion. Justice Stevens stated there that “[i]f such a
challenge had been brought by a political party or a party
central committee [i.e., by the type of plaintiff to whom the
law was addressed], and if the complaint had alleged that
these organizations wanted to endorse, support, or oppose a
candidate for nonpartisan office but were inhibited from
doing so because of the [law], the case would unquestionably
be ripe.” Id., quoting Renne, 501 U.S. at 325 (Stevens, J.,
concurring). Justice Stevens made it clear that his
reservations about ripeness in the case were predicated on his
belief that “an individual member of a party or committee
may [not] sue on behalf of such an organization.” Renne,
501 U.S. at 325 (citation omitted). Here, by contrast, it is
clear that the California law at issue—i.e., the
PRA—regulates Appellants’ conduct, which means that the
case “unquestionably [is] ripe.” Id.
The majority attempts to distinguish both Getman and
Richardson by asserting that, “[u]nlike” in those cases, “any
opinion that we could issue regarding Appellants’ forward-
looking claims would require us to speculate about the nature
of events that might take place at some unknown time in the
future.” (Majority Op. at 26–27.) But such “speculation”
was present in Getman. In Getman, we held that a First
Amendment challenge to a California’s PRA was ripe after
concluding that the plaintiff’s “fear” that “enforcement
proceedings might be initiated” by the State of California was
reasonable. Getman, 328 F.3d at 1094–95. That conclusion,
obviously, was “speculative,” insofar as the State had never
actually “evinced an intent to prosecute [the plaintiff] for its
voter publications.” Id. at 1093.
48 PROTECTMARRIAGE.COM V. BOWEN
Finally, the majority’s rigid approach to the ripeness
analysis errs by overlooking the well-established principle
that in the First Amendment context, courts should apply the
“requirements of ripeness . . . less stringently.” Wolfson,
616 F.3d at 1058; see also Sullivan v. City of Augusta, 511
F.3d 16, 31 (1st Cir. 2007) (explaining that “when free speech
is at issue, concerns over chilling effect call for a relaxation
of ripeness requirements”); Peachlum v. City of York, 333
F.3d 429, 434–35 (3d Cir. 2003) (explaining that First
Amendment claims are “subject to a relaxed ripeness
standard,” and that courts have “repeatedly shown solicitude
for First Amendment claims because of concern that, even in
the absence of a fully concrete dispute, unconstitutional
statutes . . . tend to chill protected expression among those
who forbear speaking because of the law’s very existence”);
U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1209 (10th Cir.
1999) (explaining that “any chilling effect [a] statute may
have on [a party’s] First Amendment rights counsels in favor
of ripeness”).
In sum, I conclude that Appellants’ forward-looking
claims are ripe. As discussed above, I base this conclusion on
our post-Renne precedents discussing ripeness in general,
such as Thomas; our determination in Getman that a similar
challenge to California’s campaign finance disclosure laws
was ripe; the Tenth Circuit’s decision in Richardson, along
with its crucial distinguishing of Renne; and the general
principle that the requirements for ripeness should be relaxed
in the context of First Amendment claims.
IV.
The First Amendment “bars subtle as well as obvious
devices by which political association might be stifled.”
PROTECTMARRIAGE.COM V. BOWEN 49
NAACP v. Overstreet, 384 U.S. 118, 122 (1966) (Douglas, J.,
dissenting from dismissal of writ of certiorari). Regardless of
our views on the merits of the controversy, the public
marketplace of ideas should not be unnecessarily burdened.
This case is justiciable. Therefore, I dissent.2
2
At page 6–7 of the majority opinion, a brief history of the litigation
over the merits of Proposition 8 is provided. I add here more detail
regarding the problems that arose during that litigation.
Before the district court, the Attorney General of California took the
position that Proposition 8 was unconstitutional under the federal
Constitution, while the other government defendants “refused to take a
position on the merits” and “declined to defend Proposition 8.” Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 928 (N.D. Cal. 2010). After the
district court held that Proposition 8 was unconstitutional under the federal
Constitution, California’s Attorney General decided not to appeal that
decision. See generally Hollingsworth v. Perry, 133 S. Ct. 2652, 2659–60
(2013). Subsequently, the California Supreme Court held that California
law authorizes the “official proponents” of a voter-approved initiative to
“appeal a judgment invalidating the measure when the public officials who
ordinarily defend the measure or appeal such a judgment decline to do so.”
Perry v. Brown, 52 Cal. 4th 1116, 1127 (2011). After the Supreme Court
granted certiorari, however, it concluded that the official proponents of
Proposition 8 lacked Article III standing to appeal the district court’s
judgment. Hollingsworth, 133 S. Ct. at 2668. Accordingly, the Supreme
Court vacated the Ninth Circuit’s decision which had affirmed the district
court. Id. at 2660, 2668.
As a consequence of Hollingsworth, the only federal court decision
remaining that addresses the merits of Proposition 8 is the district court’s
decision, which by definition is without precedential authority. See, e.g.,
Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998).
Thus, the only precedential appellate decision addressing the merits of
Proposition 8 is the California Supreme Court’s opinion in Strauss v.
Horton, 46 Cal. 4th 364 (2009), which held that challenges to Proposition
8 “lack[ed] merit” under California law. Id. at 391. In fact, Strauss’s
holding that Proposition 8 was a lawful amendment to the California
Constitution is the final and only appellate decision on the merits of
50 PROTECTMARRIAGE.COM V. BOWEN
Proposition 8. Id.
To my knowledge, nothing in California law requires the Attorney
General to defend the Constitution of California, and other duly enacted
laws of the State of California, from challenges in the courts.
Nonetheless, it seems clear that the confusion created by the decisions
discussed above, and the resulting abrogation of the federal courts’
decisions due to lack of standing, could have been avoided if the Attorney
General of California had defended Proposition 8 on appeal in the federal
courts. This suggests that the State of California would do well to
consider legislating a process whereby the State’s elected officials would
be obliged to defend the State’s duly enacted laws in court, rather than
leaving it to the unfettered discretion of the Attorney General to pick and
choose which of the State’s laws he or she elects to defend.