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

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

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

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

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

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

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

911 F. 2d 280, vacated and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, and Souter, JJ., joined, and in all but Part II-B of which Scalia, J., joined. Stevens, J., filed a concurring opinion. White, J., filed a dissenting opinion. Marshall, J., filed a dis- senting opinion, in which Blackmun, J., joined.