Employees who work for local governments will no longer have fewer rights to solicit political contributions from their fellow workers than those who work for state governments. The Ninth Circuit Court of Appeals ruled that a section of the law that barred all their solicitations is constitutional.

In 1996, California enacted Section 3205 of the California Government Code (the Code) that made it a misdemeanor for local agency employees to solicit political contributions from their co-workers. The statute applied to both employees and candidates. However, it did not prohibit such solicitations if they were also made to “significant segments” of the public.

A three-justice panel of the Ninth Circuit authored by Circuit Judge Marsha S. Berzon unanimously found the Code section an unconstitutional violation of the First and Fourteenth Amendments to the U.S. Constitution on July 19. The decision reversed the summary judgment ruling by District Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California. Gilliam’s ruling was appealed by the Progressive Democrats for Social Justice (PDSJ), a Democratic Club chartered by the Santa Clara County Democratic Party, and two public defenders, Krista Henneman and Carlie Ware, who were members of the Club.

A key reason for the reversal was the fact that state government employees were not barred from similar solicitations. State government employees were limited to soliciting contributions during non-work hours and could not use state resources when making requests, but there was no total ban on solicitation. Berzon’s opinion tracked the legislative history of both the state and local bars, which came and went until Governor Jerry Brown signed the more inclusive ban on local government employees in 1976.

The case began when Henneman and Ware sued Rob Bonta, the California Attorney General, claiming the bar on solicitation by only local employees was unconstitutional. The women were supporting Sajid Khan, a fellow public defender who was running for district attorney. They wanted to solicit support for Kahn during non-work hours and without using any government resources but did not do so because they feared they would violate the Code. They sued instead.

Plaintiff-appellants argued that the solicitation ban violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court ruled that state and local employees were not “similarly situated,” and there was an “important state interest in reducing the existence and appearance of corruption and workplace coercion.” The appeal followed.

The First Amendment issue began with a discussion of the level of scrutiny that the court should apply to determine whether the Code discriminated among the speakers. Berzon explained that the level of scrutiny need not be determined because the issue could be resolved by evaluating the State’s interests when it enacted the Code section and deciding whether the statute was “appropriately tailored to achieve those interests.”

The Ninth Circuit concluded that “ may provide the

Government are not sufficient to justify this crudely crafted burden on freedom to engage in expressive activities.” The opinion said that “banning targeted political solicitations” aimed at local government workers “restricts a core form of political speech.”

Berzon summarized the “critical question” to be whether Code Section 3205 was “properly tailored to support the State’s interest.” She explained that the disparity between the free speech rights of local and state employees must be “a reasonable response to the State’s posited and actual harms.” She concluded, “We cannot say that the State has met its burden of justifying the differential ban under the First Amendment.”

She wrote, “The law curtails far more speech than necessary to achieve the State’s aims.” Importantly, the State offered “no affirmative evidence” that soliciting contributions ever caused government employees to be coerced or to “perform their duties in a partisan manner.” She also noted “The First Amendment does not tolerate such a “crudely crafted burden” on local employees’ expressive rights.”

The opinion also distinguished Section 3205 from the Hatch Act, which prohibits federal employees from soliciting, accepting, or receiving donations for partisan candidates or political parties or from participating in any political activity or solicitation. Section 3205 only prohibited similar activities aimed at co-workers, making the law “radically underinclusive.”

In addition, none of defendants’ arguments were persuasive. The Court of Appeal did not agree that local and state employees could be treated differently because the latter are part of the State’s civil service system. Nor did they find a disparity in the amount of oversight each group of employees received or distinguish among local offices or various sizes.

Berzon concluded, “We do not doubt the State’s interests in combating corruption and worker coercion. But we cannot, applying First Amendment precepts, countenance California’s “second-class treatment” of local employees, absent any plausible reason for the distinction.” The district court’s summary judgment was reversed and the case was remanded for additional proceedings.