FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAN JOSE SILICON VALLEY 

CHAMBER OF COMMERCE POLITICAL

ACTION COMMITTEE, an

unincorporated association;

COMPAC ISSUED FUND, Sponsored No. 06-17001 by the San Jose Silicon Valley

Chamber of Commerce, an D.C. No.  unincorporated association, CV-06-04252-JW

Plaintiffs-Appellees, OPINION

v.

THE CITY OF SAN JOSE; SAN JOSE

ELECTIONS COMMISSION,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

June 12, 2008—San Francisco, California

Filed October 14, 2008

Before: J. Clifford Wallace and Susan P. Graber,

Circuit Judges, and George P. Schiavelli,* District Judge.

Opinion by Judge Graber

*The Honorable George P. Schiavelli, United States District Judge for

the Central District of California, sitting by designation. 

14467
COUNSEL

George Rios, Assistant City Attorney, and Lisa Herrick,

Senior Deputy City Attorney, San Jose, California, for the

defendants-appellants. 

James R. Sutton and Gabe Camarillo, The Sutton Law Firm,

San Francisco, California, for the plaintiffs-appellees. 

Jonathan Givner, Deputy City Attorney, San Francisco, California; Sean P. Trende, Hunton & Williams LLP, Richmond,

Virginia; Daniel R. Ortiz, University of Virginia Law School,

Charlottesville, Virginia; and Deborah B. Caplan, Olson

Hagel & Fishburn LLP, Sacramento, California, for amici

curiae. 

OPINION

GRABER, Circuit Judge: 

Defendant City of San Jose enacted a campaign finance

reform measure, including San Jose Municipal Code section

12.06.310, that requires political organizations to collect no

more than $250 per person for campaigning in certain local

elections. Plaintiffs San Jose Silicon Valley Chamber of Commerce Political Action Committee and COMPAC Issues

Fund, which are local political organizations, collected more

than $250 per person and actively campaigned in a qualifying

local election. Defendant San Jose Elections Commission, the

14470 SJSVCCPAC v. CITY OF SAN JOSE
local governmental entity established by the City to enforce

its campaign finance laws, investigated Plaintiffs’ activities

and concluded that Plaintiffs had violated section 12.06.310.

The Commission decided to issue a public reprimand and to

assess a fine against Plaintiffs. 

After the Commission issued a public reprimand, but

before it could assess the fine, Plaintiffs filed this 42 U.S.C.

§ 1983 action in federal district court. The district court

denied Defendants’ motion for judgment on the pleadings,

which asked the court to abstain under Younger v. Harris, 401

U.S. 37 (1971). The court held that the contributions limit was

unconstitutional and granted declaratory and injunctive relief

to Plaintiffs. We hold that the district court was required to

abstain under Younger. We therefore vacate the judgment and

remand with instructions to dismiss this action.

FACTUAL AND PROCEDURAL HISTORY

Voters in the city of San Jose, California, passed an amendment to the City Charter that required the mayor and city

council to adopt limitations on campaign contributions for

certain elected city positions. Pursuant to that directive, the

city council enacted, among other laws, San Jose Municipal

Code section 12.06.310:

Contribution limitations to independent

committees.

A. No person shall make nor shall any person

accept any contribution to or on behalf of an independent committee expending funds or making contributions in aid of and/or opposition to the

nomination or election of a candidate for city council

or mayor which will cause the total amount contributed by such person to such independent committee

to exceed two hundred fifty dollars per election. 

SJSVCCPAC v. CITY OF SAN JOSE 14471
B. Independent committees contributing to election

campaigns in addition to city of San José council or

mayoral campaigns shall segregate contributions

received and contributions or expenditures made for

the purpose of influencing such San José elections

from all other contributions or expenditures. Where

an independent committee has segregated such contributions and expenditures for such city elections,

contributors to that committee may contribute more

than two hundred fifty dollars so long as no portion

of the contribution in excess of two hundred fifty

dollars is used to influence San José council or mayoral elections. 

C. This section is not intended to prohibit or regulate contributions to independent committees to the

extent such contributions are used on behalf of or in

opposition to candidates for offices other than mayoral or council offices of the city of San José. 

Beginning on May 16, 2006, Plaintiffs mailed informational flyers and placed automated telephone calls to voters in

San Jose. The flyers and telephone messages referred to a specific candidate for mayor in the upcoming June 6, 2006, primary election. 

In response to a citizen complaint filed on May 17, 2006,

the Commission began an investigation into whether the flyers and telephone messages violated the contribution limits in

San Jose Municipal Code section 12.06.310.1 An independent

evaluator conducted an investigation and presented its written

report to the Commission (“Commission Report”). On May

31, 2006, the Commission adopted the Commission Report

1The Commission also investigated whether Plaintiffs’ activities violated a separate limitation on independent expenditures. The Commission

ultimately concluded that there was no expenditure violation. That finding

does not factor into this appeal. 

14472 SJSVCCPAC v. CITY OF SAN JOSE
and concluded that Plaintiffs had violated the contribution

limits in section 12.06.310. 

The Commission decided to assess two penalties at a future

date: a statement of public reprimand and a fine to be calculated based on the amount of contributions Plaintiffs received

in excess of the contributions limit. On June 21, 2006, the

Commission issued a statement of public reprimand. To date,

the Commission has not assessed the fine against Plaintiffs,

because it has been unable to calculate the amount of the fine.

The Commission asserts that Plaintiffs have refused to provide the necessary financial information. 

On July 11, 2006, Plaintiffs filed a complaint in federal district court, alleging that Defendants’ actions violated 42

U.S.C. § 1983. Plaintiffs bring both a facial challenge and an

as-applied challenge to San Jose Municipal Code section

12.06.310. Plaintiffs claim that, on its face, the ordinance is

unconstitutionally vague and overbroad, in violation of the

Fourteenth Amendment, and that it impermissibly restricts

Plaintiffs’ right to free speech, in violation of the First and

Fourteenth Amendments. Plaintiffs also assert that, as applied

to their 2006 mailers and telephone messages, the Commission’s decision and section 12.06.310 violate the First and

Fourteenth Amendments. 

The complaint concludes with the following prayers for

relief: 

1. For declaratory judgment of this Court, declaring SJMC [San Jose Municipal Code] section

12.06.310 unconstitutionally vague and overbroad,

and therefore invalid, as set forth above; 

2. For declaratory judgment of this Court, declaring SJMC section 12.06.310 is unconstitutional and

invalid under the First and Fourteenth Amendments

to the United States Constitution, as set forth above;

SJSVCCPAC v. CITY OF SAN JOSE 14473
3. For declaratory judgment of this Court, declaring the Commission Report, as a state action by the

Commission, unconstitutional and invalid under the

First and Fourteenth Amendments, as set forth

above; 

4. For temporary, preliminary and permanent

injunctive relief enjoining Defendants from enforcing SJMC section 12.06.310 against COMPAC or

any others similarly situated, as set forth above; 

5. For temporary, preliminary and permanent

injunctive relief enjoining Defendants from enforcing SJMC section 12.06.310, as construed in the

Commission Report, against COMPAC or any others

similarly situated, as set forth above; 

6. [Costs and attorney fees, as allowed by statute];

and 

7. The Court grant such other relief as may be

proper. 

In the body of the complaint, Plaintiffs requested two specific

forms of relief: 

COMPAC is also entitled to the declaratory judgment of this Court ordering Defendants to rescind

the formal reprimand of COMPAC issued on June

21, 2006 for COMPAC’s alleged violation of section

12.06.310. 

COMPAC is entitled to injunctive relief against

Defendants enjoining them from enforcing SJMC

section 12.06.310 against COMPAC as construed by

the Commission Report, including but not limited to

enjoining Defendants from levying any civil penalty

14474 SJSVCCPAC v. CITY OF SAN JOSE
or future administrative sanction against COMPAC

for alleged violations of SJMC section 12.06.310. 

(Paragraph number headings omitted.) 

Defendants moved for judgment on the pleadings arguing,

among other things, that the district court was required to

abstain under Younger. Both parties filed motions for summary judgment. The district court denied Defendants’ motion

for judgment on the pleadings, denied Defendants’ motion for

summary judgment, and granted Plaintiffs’ motion for summary judgment. The district court held that the proper remedy

was for the court “to invalidate the statute and enjoin its

enforcement.” 

The district court’s judgment included declaratory and

injunctive relief: 

1. The Court declares that San Jose Municipal

Code Section 12.06.310 violates the First and Fourteenth Amendments to the United States Constitution. 

2. Defendants are permanently enjoined from

enforcing San Jose Municipal Code Section

12.06.310 against Plaintiffs.

Defendants timely appeal. 

DISCUSSION

[1] Younger abstention2 is a jurisprudential doctrine rooted

in overlapping principles of equity, comity, and federalism.

See Steffel v. Thompson, 415 U.S. 452, 460-73 (1974)

(explaining the history and purposes of the doctrine); Youn2We review de novo whether Younger abstention applies. Gilbertson v.

Albright, 381 F.3d 965, 982 n.19 (9th Cir. 2004) (en banc). 

SJSVCCPAC v. CITY OF SAN JOSE 14475
ger, 401 U.S. at 43-49 (discussing the jurisprudential background of abstention); Gilbertson v. Albright, 381 F.3d 965,

970-75 (9th Cir. 2004) (en banc) (tracing the Supreme Court’s

application of the doctrine). We must abstain under Younger

if four requirements are met: (1) a state-initiated proceeding

is ongoing; (2) the proceeding implicates important state

interests; (3) the federal plaintiff is not barred from litigating

federal constitutional issues in the state proceeding; and (4)

the federal court action would enjoin the proceeding or have

the practical effect of doing so, i.e., would interfere with the

state proceeding in a way that Younger disapproves. Gilbertson, 381 F.3d at 978; AmerisourceBergen Corp. v. Roden

(“ABC”), 495 F.3d 1143, 1149 (9th Cir. 2007); see also Green

v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir. 2001) (en

banc) (“[I]n addressing Younger abstention issues, district

courts must exercise jurisdiction except when specific legal

standards are met, and may not exercise jurisdiction when

those standards are met; there is no discretion vested in the

district courts to do otherwise.”), overruled in other part by

Gilbertson, 381 F.3d 965. An exception to that general rule

exists if there is a “showing of bad faith, harassment, or some

other extraordinary circumstance that would make abstention

inappropriate.” Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 435 (1982). Although Younger

itself involved potential interference with a state criminal

case, the Supreme Court has extended the doctrine to federal

cases that would interfere with state civil cases and state

administrative proceedings. Ohio Civil Rights Comm’n v.

Dayton Christian Sch., Inc., 477 U.S. 619, 627 (1986). “As

virtually all cases discussing [Younger abstention] emphasize,

the limited circumstances in which abstention by federal

courts is appropriate remain the exception rather than the

rule.” ABC, 495 F.3d at 1148 (internal quotation marks and

ellipsis omitted). 

A. Ongoing State Proceeding

[2] The state-initiated proceeding in this case—the Elections Commission’s investigation of Plaintiffs’ activities—is

14476 SJSVCCPAC v. CITY OF SAN JOSE
ongoing. After concluding that Plaintiffs had violated San

Jose Municipal Code section 12.06.310, the Commission

decided to impose two sanctions: a public reprimand and a

fine. A month later, it issued the public reprimand. But, apparently because Plaintiffs have failed to provide the necessary

financial information, the Commission has not yet assessed

any fine. 

Plaintiffs argue that, because the Commission has decided

that a violation occurred, the proceeding is no longer ongoing.

We disagree. The transcript of the Commission’s hearing

makes clear that the proceeding has not concluded:

MR. MERTENS: . . . So my understanding is that

we’ve covered the finding of a violation, and we’ve

also covered the action we’re going to take, which is

going to be imposing a penalty, as well as issuing a

public reprimand. And the — we will determine at

a future date the number of violations and the penalty that will be imposed by the Commission.

MR. SATO: Mr. Chair, clarification. Are you also

directing the Commission’s evaluator to proceed

with an investigation as to the number of potential

violations? 

MR. MERTENS: If that is the recommended

course of action. 

[Commission then moves for a vote, and votes in favor of that

course of action.] 

(Emphases added.) 

[3] The status of the Commission’s proceeding is analogous

to the status of a civil case in which the district court has

resolved liability but has not finalized relief. See Riley v. Kennedy, 128 S. Ct. 1970, 1981 (2008) (“We have long held that

SJSVCCPAC v. CITY OF SAN JOSE 14477
an order resolving liability without addressing a plaintiff’s

requests for relief is not final.”). The procedure here is also

analogous to a criminal case in which the trier of fact has

determined guilt, but the court has not imposed a sentence. In

that circumstance, no final judgment has been entered, and the

proceeding is plainly ongoing.3See Corey v. United States,

375 U.S. 169, 174 (1963) (“Final judgment in a criminal case

. . . means sentence. The sentence is the judgment.” (internal

quotation marks omitted)). There is no principled distinction

between finality of judgments for purposes of appellate

review and finality of state-initiated proceedings for purposes

of Younger abstention. We therefore hold that the administrative proceeding is “ongoing” for purposes of Younger abstention. 

At oral argument, Plaintiffs’ lawyer observed that a state

administrative agency could intentionally delay completion of

a proceeding so as to thwart state-court and federal-court

review. As we have noted, an exception to Younger abstention

applies upon a “showing of bad faith, harassment, or some

other extraordinary circumstance.” Middlesex, 457 U.S. at

435. Plaintiffs’ hypothetical example would fall under that

exception but, here, Plaintiffs have not argued that Defendants

have acted in bad faith and the record does not support such

a finding. Indeed, it appears that any delay has been caused

by Plaintiffs, first by refusing to provide the necessary financial information and then by filing this federal action, only six

weeks after the Elections Commission’s decision to impose a

fine. 

We pause to note an important legal issue that we need not

and do not reach. Under California law, an aggrieved party

may challenge a final administrative action in state court by

petitioning for a writ of mandate. Cal. Civ. Proc. Code

§ 1094.5. If a state administrative proceeding is final, and

3This analogy is particularly apt where, as in many criminal cases (typically misdemeanors), the only sentence imposed is a fine. 

14478 SJSVCCPAC v. CITY OF SAN JOSE
state-court judicial review is available but has not been

invoked, is the state proceeding nevertheless “ongoing” for

purposes of Younger abstention? In other words, must federal

courts view the administrative proceeding and the possibility

for state-court review as one unitary proceeding? The

Supreme Court has stated that this is an open question. New

Orleans Pub. Serv., Inc. v. Council of New Orleans

(“NOPSI”), 491 U.S. 350, 370 n.4 (1989); see also id. at 374

(Rehnquist, C.J., concurring in the judgment) (stating that he

would hold that the proceedings are unitary); id. at 374-75

(Blackmun, J., concurring in the judgment) (stating that he is

“not entirely persuaded” that the question is open). 

Seven circuits have addressed this question. Four have held

that the administrative proceeding and the possibility for state

court review are to be viewed as one unitary proceeding, and

three have held the opposite. Compare Maymo-Melendez v.

Alvarez-Ramirez, 364 F.3d 27, 35 (1st Cir. 2004) (“Younger

now has to be read as treating the state process [the administrative proceeding and the possibility for state-court review]

. . . as a continuum from start to finish.”), Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998) (holding that the

state proceeding is ongoing, even assuming that the administrative proceeding is final and state-court review had not

begun), O’Neill v. City of Philadelphia, 32 F.3d 785, 790-91

(3d Cir. 1994) (joining the majority rule and observing that

“[w]e have been given no reason why a litigant in a state

administrative proceeding should be permitted to forego statecourt judicial review of the agency’s decision in order to

apply for relief in federal court”), and Alleghany Corp. v.

Pomeroy, 898 F.2d 1314, 1316-17 (8th Cir. 1990) (noting that

the Supreme Court left the question open and deciding that

the proceedings are unitary), with Norfolk & W. Ry. Co. v.

Pub. Utils. Comm’n, 926 F.2d 567, 572 (6th Cir. 1991)

(agreeing that “a state administrative enforcement proceeding

is no longer pending when the agency proceeding has been

completed, notwithstanding the availability of state appellate

review”), CECOS Int’l, Inc. v. Jorling, 895 F.2d 66, 72 (2d

SJSVCCPAC v. CITY OF SAN JOSE 14479
Cir. 1990) (holding that an aggrieved party may choose

between petitioning the state court for review and filing a federal § 1983 claim), and Thomas v. Tex. State Bd. of Med.

Exam’rs, 807 F.2d 453, 456 (5th Cir. 1987) (“The mere availability of state judicial review of state administrative proceedings does not amount to the pendency of state judicial

proceedings within the meaning of Huffman[ v. Pursue, Ltd.,

420 U.S. 592 (1975)].”). 

Although we briefly joined the majority rule in 1993, that

opinion was withdrawn, and we have not addressed the question since then. See Nev. Entm’t Indus., Inc. v. City of Henderson, 8 F.3d 1348 (9th Cir. 1993) (per curiam) (joining

majority rule), withdrawn by 21 F.3d 895 (9th Cir.), on reh’g

26 F.3d 131 (9th Cir. 1994) (unpublished disposition) (holding that the Younger abstention question was moot); see also

Kleenwell Biohazard Waste & Gen. Ecology Consultants, Inc.

v. Nelson, 48 F.3d 391, 393-94 (9th Cir. 1995) (noting that the

question is open in this circuit, but declining to reach it).

Because, here, the administrative proceeding itself is ongoing,

we do not reach the issue. 

B. Important State Interest

Younger abstention is required only if the state proceeding

“implicates important state interests.” Gilbertson, 381 F.3d at

978. “The importance of the interest is measured by considering its significance broadly, rather than by focusing on the

state’s interest in the resolution of an individual’s case.” Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 618 (9th Cir.

2003). For example, we have held that a state’s interest in

“[p]reserving the integrity of [horse] racing is a significant

interest.” Id.; see also Middlesex, 457 U.S. at 434-35 (holding

that a state’s interest in regulating the ethical standards of

lawyers is an important state interest). The state’s interest here

—regulating its local elections—is likewise an important state

interest. 

14480 SJSVCCPAC v. CITY OF SAN JOSE
[4] “Whether the state proceedings are ‘judicial in nature’

. . . also plays a role in assessing the significance of the state

interest.” Baffert, 332 F.3d at 618. “[J]udicial proceedings or

disciplinary proceedings which are judicial in nature are the

type of proceeding that does implicate an important state

interest. However, a state proceeding which is nonjudicial or

involves the interpretation of completed legislative or executive action is not of that character.” Gilbertson, 381 F.3d at

977 (citations omitted). The Elections Commission’s proceeding involved the investigation of the facts of Plaintiffs’ mailing and telephoning campaign and the application of the law

to those facts—a proceeding plainly “judicial in nature.” See

NOPSI, 491 U.S. at 369-73 (discussing the hallmarks of a

proceeding that is “judicial in nature”); Middlesex, 457 U.S.

at 432-34 (same). 

Plaintiffs do not argue that regulation of local elections

generally is not an important state interest. Nor do they argue

that the Elections Commission’s proceeding was not judicial

in nature. Instead, they focus on the city council’s enactment

of San Jose Municipal Code section 12.06.310. Plaintiffs

insist that, because they bring only a facial challenge to the

constitutionality of section 12.06.310, do not challenge the

Commission’s proceeding, and seek only prospective relief,

Younger abstention does not apply. 

Plaintiffs’ contentions are inaccurate. As the quoted portions of their complaint make clear, Plaintiffs bring both a

facial challenge and an as-applied challenge; they do challenge the Commission’s proceeding; and they do seek retrospective relief. And, critically, the relief that Plaintiffs request

is inextricably intertwined with the Elections Commission’s

proceeding: Plaintiffs requested (and the district court ruled)

that Defendants be enjoined from enforcing section 12.06.310

against them, i.e., that the Elections Commission be enjoined

from collecting the fine that it decided to impose (in an

amount yet to be determined). 

SJSVCCPAC v. CITY OF SAN JOSE 14481
Finally, Plaintiffs argue that Younger abstention applies

only to cases in which a plaintiff challenges the procedures of

the state proceeding, which Plaintiffs do not challenge here.

Although some of the cases applying Younger abstention

involve challenges to the underlying procedures employed by

the agency or court, e.g., Middlesex, many involve constitutional challenges to a state’s statute. In fact, Younger itself

was such a case. See Younger, 401 U.S. at 40 (noting that the

case presented the question “whether the State’s law is constitutional on its face”); see also Huffman, 420 U.S. at 598-99,

610 (applying Younger abstention to a constitutional challenge to a state’s statute). 

C. Opportunity to Litigate Federal Constitutional Issues

[5] In order for Younger abstention to apply, Plaintiffs must

have had an opportunity to litigate their federal constitutional

challenges to the San Jose Municipal Code. Plaintiffs correctly observe that the Elections Commission did not consider, and likely could not have considered, federal

constitutional questions. But that observation does not resolve

the inquiry. Under California law, Plaintiffs can petition for

a writ of mandate to challenge the administrative action in

state court, Cal. Civ. Proc. Code § 1094.5. That procedure

suffices for purposes of Younger abstention. See Kenneally v.

Lungren, 967 F.2d 329, 332-33 (9th Cir. 1992) (examining

the California writ of mandate procedure and holding that

“[t]his statutory framework provides a meaningful opportunity for [the federal plaintiff] to present his constitutional

claims for independent judicial review prior to the Board’s

decision becoming effective”); see also Baffert, 332 F.3d at

620 (applying Kenneally). 

D. Interference

[6] The final Younger requirement is that the federal suit

would “interfere” with the ongoing state proceeding (i.e.,

enjoin or have the practical effect of enjoining the proceed14482 SJSVCCPAC v. CITY OF SAN JOSE
ing). Gilbertson, 381 F.3d at 978. Plaintiffs sought, and the

district court granted, a permanent injunction against Defendants to preclude them from enforcing the statute. That

injunction consequently prohibits the Elections Commission

from imposing the fine against Plaintiffs. The relief sought

therefore would “interfere” with the Elections Commission’s

proceeding, because it would “enjoin . . . or otherwise involve

the federal courts in terminating or truncating” the Elections

Commission’s proceeding. Green, 255 F.3d at 1098.4

CONCLUSION

[7] The Elections Commission’s proceeding is an “ongoing” “state-initiated proceeding” that “implicates important

state interests”; Plaintiffs are “not barred from litigating federal constitutional issues”; and the “federal court action . . .

would enjoin the [state] proceeding.” Gilbertson, 381 F.3d at

978. Because there has been no showing of bad faith, harassment, or an extraordinary circumstance, we must abstain. We

therefore do not reach the merits of Plaintiffs’ constitutional

challenges to San Jose Municipal Code section 12.06.310, and

the district court should not have done so. 

4

In Green, sitting en banc, we held that there must be “direct interference” with the state proceeding. 255 F.3d at 1100. That holding is no longer good law. Sitting en banc again, we held that the interference need not

be direct. Gilbertson, 381 F.3d at 978. See ABC, 495 F.3d at 1149 n.9

(“Gilbertson did overrule Green’s holding that ‘ “direct interference” is a

threshold requirement . . . of Younger abstention,’ but it left intact the

more general requirement that some interference with state court proceedings is a necessary . . . element of the Younger doctrine.” (citation omitted)

(first ellipsis in original)). Gilbertson expanded the interference requirement to cases in which the relief sought (such as money damages against

the individuals on an administrative board) “would have the same practical

effect on the state proceeding as a formal injunction.” 381 F.3d at 977-78.

We need not examine the intricacies of the interference requirement

because, here, the federal court action would “interfere” with the state proceedings even under Green’s restricted test. 

SJSVCCPAC v. CITY OF SAN JOSE 14483
We agree with Plaintiffs, of course, that political speech is

vitally important. But the Supreme Court has never suggested

that the importance of the interest asserted by a federal plaintiff affects the analysis of the Younger factors. Indeed, it

would be hard to assert that the right to speech is more important than the liberty interest of the criminal defendant in Younger itself, where the Court held that federal courts were

required to abstain. 

Judgment VACATED. REMANDED with instructions to

dismiss the case. Costs on appeal are awarded to Defendants.

14484 SJSVCCPAC v. CITY OF SAN JOSE

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