# Renne v. Geary

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## Concurring Opinion

    Stevens

## Dissenting Opinions

    White
    Marshall
United States Supreme Court
501 U.S. 312
Renne v. Geary
No. 90-769 Argued: April 23, 1990. --- Decided: June 17, 1991
Syllabus
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 included in the voter pamphlets that petitioners print and distribute. Respondents-among whom are 10 registered voters in the city and county, including members of the local Republican and Democratic Central Committees-filed suit seeking, inter alia, a declaration that § 6(b) violates the First and Fourteenth Amendments and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements. The District Court entered summary judgment for respondents, declaring § 6(b) unconstitutional and enjoining its enforcement, 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. 316-324.
(a) Although respondents have standing to claim that § 6(b) has been applied in an unconstitutional manner to bar their own speech, the allegations 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 injunction against its enforcement, since a separate California statute, the constitutionality of which was not litigated in this case, might well be construed 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 respective committees' rights is unsettled. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-545, 106 S.Ct. 1326, 1332-1333, 89 L.Ed.2d 501. 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 exists preventing candidates from asserting their own rights. See Powers v. Ohio, 499 U.S. ----, ----, 111 S.Ct. 1364, ----, 113 L.Ed.2d 411. Pp. 318-320.
(b) Respondents' allegations fail to demonstrate a live dispute involving 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 Democratic 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 endorsement, and that the controversy had not become moot prior to the litigation. Nor can a ripe controversy be found in the fact that the Republican 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 endorsements, or that there was any desire or attempt to include the endorsements in the candidates' statements. Allegations that respondents 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 adjudication until a more concrete controversy arises will not impose a substantial 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. 320-323.
(c) Even if respondents' complaint may be read to assert a facial overbreadth 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, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388. If the as-applied challenge had been resolved first, the justiciability problems determining the disposition of this case might well have concluded the litigation at an earlier stage. Pp. 323-324.
911 F.2d 280 (CA9 1990). 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 dissenting opinion, in which BLACKMUN, J., joined.
Dennis Aftergut, San Francisco, Cal., for petitioners.
Arlo Hale Smith, San Francisco, Cal., for respondents.
Cedric C. Chao, San Francisco, Cal., for the California Democratic Party, et al., as amici curiae, supporting respondents, by special leave of Court.
Justice KENNEDY delivered the opinion of the Court.

## Notes

** Justice Scalia joins all but Part II-B of this opinion.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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