United States District Court For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MERCER, FRASER CO. et al.,
Plaintiffs,
v.
COUNTY OF HUMBOLDT, CALIFORNIA,
Defendant.
/
No. C 08-4098 SI
ORDER GRANTING MOTION FOR
PRELIMINARY INJUNCTION AND
PRELIMINARILY ENJOINING
ENFORCEMENT OF MEASURE T
OnSeptember 22, 2008, this Court heard argument on plaintiffs’ motion for a preliminary
injunctionenjoiningHumboldtCountyfromenforcingMeasureT,aninitiativeordinanceadoptedby
HumboldtCountyvotersin2006. Measure T prohibits non-local corporations, labor organizations, and
non-profit groups from making campaign contributions and expenditures in Humboldt County local
elections. After carefully reviewing the parties’ briefs and the record, the Court hereby GRANTS
plaintiffs’ motion.
LEGAL STANDARD
Requests for preliminary injunctive relief require the movant to demonstrate either (1) a
combination of probable success on the merits and the possibility of irreparable injury, or (2) that
serious questions are raised and the balance of hardships tips sharply in his favor. See Bernhardt v. Los
Angeles County, 339 F.3d 920, 925 (9th Cir.2003). The irreparable harm requirement can be met by
demonstrating the existence of a colorable First Amendment claim. See Elrod v. Burns, 427 U.S. 347,
373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.”); see also Sammartano v. First Judicial District Court, 303 F.3d 959,
973 (9th Cir. 2002).
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DISCUSSION
The Court finds that plaintiffs have demonstrated a colorable claim that Measure T violates the
First and Fourteenth Amendments.
Plaintiffs have demonstrated that Measure T likely violates the First Amendment because it
burdens corporations’ First Amendment right to make political expenditures and campaign
contributions, yet it is neither narrowly tailored nor closely drawn as the case law requires. The
ordinance is not narrowly tailored because, unlike the Michigan law at issue in Austin v. Michigan State
Chamber of Commerce, 494 U.S. 652 (1990), it does not allow for corporate expenditures through
segregated funds. Even if Measure T did allow corporations to form segregated funds, it may also be
unconstitutionally underinclusive: Measure T regulates non-local corporations more stringently than
non-local incorporated unions. See§ 11. At the same time, Measure T is likely overinclusive: it
regulates corporations based on their status as “local,” incorporating its own peculiar definition of
“local,” see§ 5, but this distinction does not further the compelling goal of “preventing corruption,
avoiding the appearance of corruption, and averting the circumvention of provisions intended to combat
corruption.” See Jacobus v. Alaska, 338 F.3d 1095, 1110 (9th Cir. 2003). Finally, Measure T allows
no exemption for political corporations or for corporate speech on ballot initiatives. See§ 5. Nor is
Measure T likely to be found closely drawn, in accordance with the case law, because unlike the federal
law at issue in F.E.C. v. Beaumont, 539 U.S. 146, 157 (2003), it does not allow corporations to form
political action committees.
At oral argument, defendant urged that the Ninth Circuit’s decision in Jacobus would save at
least the ban on contributions, if not the ban on expenditures. This Court is not persuaded. The court
in Jacobus examined the constitutionality of an Alaska statute restricting various types of campaign
spending by corporations, unions, other business associations and individuals. The portion of Jacobus
on which defendant relies is its discussion of “soft money contributions” to political parties by
individuals, corporations, business associations, and unions. Jacobus, 338 F.3d at 1100. The court
labored to define “soft money contributions,” as opposed to other “hard money” contributions,
ultimately settling on “all money contributed to a political party not expressly earmarked to influence
the nomination or election of a candidate.” Id., at 1098. In this context, the court in Jacobus approved
Case 3:08-cv-04098-SI Document 32 Filed 09/22/2008 Page 2 of 4
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Nor did the Alaska statute distinguish “local” from “non-local” corporations, labor
organizations and non-profits, as does Measure T. As already noted, these idiosyncratic distinctions
may independently cause constitutional infirmity.
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Alaska’s ban on “soft money contributions” by corporations. However, the provisions of Measure T
are not limited to such “soft money contributions,” but rather apply across the board to all contributions,
including contributions going directly to candidates. Jacobus neither discussed nor approved such a
sweeping ban.1
Measure T is also likely to violate the Equal Protection Clause of the Fourteenth Amendment
because it burdens corporations’ right to engage in political expression but, as described above, it is not
narrowly tailored.
Measure T contains a severability clause (§ 14), but this Court finds no way to render the
challenged prohibitions (§§5, 5(a), 5(b)) constitutional.
Accordingly, pursuant to Fed. R. Civ. P. 52 and 65 and Local Civil Rule 65.1, the Court hereby
ORDERS as follows:
Defendant, and its agents, officer, representatives and employees, are ENJOINED from
enforcing or giving legal effect to Measure T, until further order of the Court. The Court finds that the
preliminary injunction will require defendant to incur little or no monetary costs and that the injunction
is sought to vindicate constitutional rights and the public interest, so no bond or security will be imposed
under Fed. R. Civ. Pro. 65(c).
IT IS SO ORDERED.
Dated: September 22, 2008
SUSAN ILLSTON
United States District Judge
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