Center For Indiv. Freedom Foundation Urges CA Supreme Court To Decide If LBUSD Improperly Influenced School Bond Measure ElectionAugust 1, 2003
(August 5, 2003) -- Remember the March 1999 LB Unified School District election when School Bond "Measure A" was on the ballot? In that election, LBUSD conducted a "voter registration" and "vote by mail" drive that coincided with the election.
A LB taxpayer brought suit against LBUSD, alleging what took place amounted to using public resources to advocate passage of Measure A. A trial court ruled in favor of LBUSD and a Court of Appeal affirmed the trial court's ruling for the school district.
Now the appeal (Juliano v. LBUSD) may be heard by the CA Supreme Court...and a national constitutional rights group is supporting efforts by the LB taxpayer to have CA's highest court hear the case.
The Center for Individual Freedom Foundation in Alexandria, VA (suburban Washington, D.C.) has filed an amicus curiae (Friend of the Court) letter which we post verbatim below, urging the state's high court to review the case in view of the CA Supreme Court's landmark opinion in Stanson v. Mott.
Stanson forbids government bodies from engaging in election advocacy...but also contains an exception allowing government "informational" activities.
So, when do allowable "informational" activities cross the line into forbidden government advocacy?
The Center for Individual Freedom Foundation (CFIFF), described on its web site as "a non-partisan constitutional advocacy group that fights to protect and defend individual freedoms and rights in the legal, legislative and educational arenas," says LBUSD improperly crossed the line in the 1999 LBUSD school bond election. The group urges the high court to review a decision of a CA Court of Appeal that upheld a trial court which ruled LBUSD acted properly.
The Foundation's letter to the CA Supreme Court calls government involvement in targeted voter registration and get-out-the-vote campaigns to influence the popular vote on school bond measures violative of the "fundamental precept of the United States and State Constitutions that no public official, whether the President of the United States or a school teacher, shall put the government’s official imprimatur on the resolution of any ballot question."
The group's letter adds, "As local governments and agencies throughout the State turn more frequently to their constituencies to tax themselves to raise money for schools and other local functions, the people must not be coerced to support a ballot measure by an official 'government-approved' stamp, no matter how subtly it may be presented."
LB residents may recall the issue of "information" vs. "advocacy" also arose in a 2000 LB citywide election when a grassroots ballot measure, Prop J, sought to reduce LB's utility tax (Prop J). City Hall responded with "informational" materials hailing the utility tax as good for taxpayers and a source of city services. The committee supporting Prop J sued City Hall, saying it had improperly crossed the line from information to advocacy; a court agreed and ordered LB City Hall to stop. (LB voters went on to enact the Prop J utility tax cut by a landslide near 70% margin.)
In an interesting link, the Prop J committee was represented by attorneys Patrick Manshardt and Manuel S. Klausner...who (with attorneys Tania L. Whiteleather and Marcy J.K. Tiffany) also represented the taxpayer against the LBUSD. LBUSD was represented on appeal by O'Melveny & Myers attorneys Catherine B. Hagen, Brent J. North and Laura Fleming.
[begin Center for Individual Freedom amicus curiae text to CA Supreme Court.]
Justices of the California Supreme Court
Re: Juliano v. Long Beach Unified School District
California Supreme Court
350 McAllister Street
San Francisco, CA 94102
California Supreme Court No. S117216
To the Justices of the California Supreme Court:
Pursuant to Rule 28(g) of the California Rules of Court, the undersigned hereby submits this amicus curiae letter on behalf of the Center for Individual Freedom Foundation (CFIFF) and in support of Albert Juliano’s pending petition for review of the decision of the Court of Appeal, Second Appellate District, Division Four, in Case No. S117216.
CFIFF is a non-partisan, non-profit organization that strives to protect and defend the individual freedoms and rights guaranteed by the Constitutions of the United States and of the several states. CFIFF is dedicated to the advancement of, among other constitutional precepts, the right of individuals to participate and freely vote in elections uninfluenced by government officials who may have a stake in the outcome of those elections. This right is a cornerstone both the United States and California Constitutions, as particularly expressed by this Court in Stanson v. Mott (1976) 17 Cal.3d 206. In furtherance of this constitutionally secured right, CFIFF urges this Court to accept Mr. Juliano’s pending petition for review.
Mr. Juliano’s case concerns the extent to which a government actor -- such as a school district or its officials -- may influence the popular vote on a school bond measure without overstepping the bounds established in Stanson, statutory and constitutional law. This issue is one of increasing importance as California’s school districts turn frequently to bond measures to raise funds to operate, grow and maintain their facilities. Indeed, on average, California voters decided approximately 60 school district general obligation bond issues a year between 1986 and 1999, and in the past few years the pace has increased to more than 70 a year. Add to that parcel tax measures and a much anticipated increase in bond and tax measures as federal and state funds dry up, and the number of elections is almost certain to grow even higher.
It is a fundamental precept of the United States and State Constitutions that no public official, whether the President of the United States or a school teacher, shall put the government’s official imprimatur on the resolution of any ballot question. Yet, in the case at bar, the undisputed evidence shows that the school district stretched this fundamental precept beyond all limits by financing and operating a get-out-the-vote campaign aimed solely and expressly at likely bond measure supporters (including a targeted and systematic vote-by-mail program), sending letters in the names of school principals touting the benefits -- but omitting any mention of the drawbacks -- of the bond measure, and closely coordinating school district efforts with partisan bond measure advocates, all the while purporting to stay "within the law" by not spending public funds on these efforts. If the rule in Stanson -- that the line between unauthorized campaign expenditures and authorized informational activities is to be determined by consideration of the style, tenor and timing of the activities -- has any meaning, these governmental activities, by and through the public school district, must fall on the unauthorized, unlawful and unconstitutional side of the line.
Clearly, the Court of Appeal’s allowance of these activities on the ground that there was no direct expenditure of public funds -- a jurisprudential holding that we submit exalts form over substance -- demonstrates that further guidance from this Court is needed. The last time this Court was asked to offer guidance in construing Stanson and its rule against government influence in elections was in 2000, when Californians for Scientific Integrity petitioned for review of the decision of the Court of Appeal in Californians for Scientific Integrity v. Regents of the University of California (July 6, 2000, C028522), review den. and opn. ordered nonpub. Oct. 6, 2000, S090769. The Court of Appeal had ordered its opinion published, but rather than grant review (for which two members of this Court voted), this Court ordered the opinion depublished. In the intervening years, this Court has stayed on the sidelines as the lower courts have struggled to draw the line between authorized and unauthorized governmental activities in elections. In fact, not since Keller v. State Bar (1989) 47 Cal.3d 1152, has this Court expanded or clarified the landmark ruling in Stanson.
The case of Juliano v. Long Beach Unified School District demonstrates that the time is ripe for guidance in this area so critical to understanding the proper statutory and constitutional limits imposed on public actors seeking to involve themselves in political contests, and to the individual freedoms guaranteed by the United States and California Constitutions. As local governments and agencies throughout the State turn more frequently to their constituencies to tax themselves to raise money for schools and other local functions, the people must not be coerced to support a ballot measure by an official "government-approved" stamp, no matter how subtly it may be presented.
For the foregoing reasons, CFIFF urges the Court to grant Mr. Juliano’s pending petition for review.
The amicus curiae letter is signed by attorney Ira Bibbero [with the firm of Browne & Woods, representing CFIFF] and was provided to us by Reid Alan Cox from CFIFF.
When the CA Supreme Court decides whether it will hear the taxpayer's appeal in the LBUSD case, LBReport.com will report it.