Wednesday, January 16, 2008

Preserve Shorecliff Homeowners v. City of San Clemente (Cal. Ct. App. - Jan. 16, 2008)

You should read this opinion if only for the breezy manner in which Justice Sills writes it. That's not something you see every day. Even from him.

Plus, on the merits, he's exactly right. It's unconstitutional under the First Amendment to require that people who circulate referenda petitions be eligible voters in the city (or other locality) in which the referenda is to be voted upon. Sure, there's a 1994 Court of Appeal opinion (Browne) that upheld such a statute. But that's not good law after the U.S. Supreme Court's opinions in Meyer (which predated Browne) and Buckley (which came after, and is more on point). (Parenthetically, I might not have included Section C.3.a of the opinion -- which tries in part to distinguish Browne -- and instead would have just gone with C.3.b, which argues that this opinion doesn't survive Buckley. I think the latter point is much stronger than the first.)

So I agree with Justice Sills on the merits. Even though I can also see the counterarguments, and think that the dissenters in Buckley made some good points. I also agree with his decision to reach the constitutional issue even though -- somewhat stunningly -- no such argument had been raised by the parties below. His analysis of this issue is spot on, in my view. Exactly right.

So a neat First Amendment opinion for the day.

P.S. - For what it's worth, I'm somewhat less convinced by the companion opinion (in a separate case, but published at the same time) authored by Justice Sills. I think there's a pretty good argument for substantial compliance in that one. But I see his argument to the contrary, which is far from frivolous. Still, I think that the first opinion is better. And is much more clearly right.