The following press release arrived via email:
A California Superior Court in San Luis Obispo County has declared three Joe McCarthy era sections of the State’s Election Code unconstitutional. In the case brought by John Barta against Secretary of State Debra Bowen, Attorney General Kamala Harris, and San Luis Obispo County Clerk-Recorder Julie Rodewald, the Superior Court struck down sections that forbid membership on county political party committees of the Democratic, Republican, and American Independent Party without first taking and signing a loyalty oath.
Judge Martin J. Tangeman summarized Barta’s Complaint for Declaratory relief which charged that by requiring a loyalty oath to belong to political party governing committee California Election Code §§ 7210, 7408 and 7655 are each “premised upon … violations of First Amendment rights, California Constitutional free speech rights, and preemption.”
Barta’s lawyers, Saro Rizzo and Stew Jenkins, of San Luis Obispo filed a Petition and Complaint In November 2011 seeking a Declaration that the statutes were unconstitutional, together with issuance of an Injunction against further enforcement of the sections. Barta also urged the Court to order for the California Attorney General to correct a formal opinion issued in the 1990s asserting that § 7408 constitutionally limits membership and voting on county central committees; and an order directing the Secretary of State to notify all 58 County Clerks in California to stop requiring the unconstitutional loyalty oaths. The California Secretary of State supervises elections conducted by all 58 County Clerks. Both the County and the State defendants sought to have the suit thrown out by filing separate demurrers, but Barta’s lawyers prevailed against both demurrers. The Defendants had argued that a provision of California’s Constitution prevented them from refusing to enforce the statutes unless a court first declared them unconstitutional. Trial before Judge Tangeman was held Monday, October 28, 2013.
According to page 2 of the Court’s November 1, 2013 Ruling the San Luis Obispo County Clerk “elected not to answer the Petition and a default was entered on June 10, 2013.” The Secretary of State and California Attorney General had continued to oppose the suit but by time of trial admitted that “some of Barta’s claims have merit and that the State has no objection to the Court entering a declaratory judgment declaring certain statutes unconstitutional.” The State’s admission that the statutes were unconstitutional had been made almost two years after the case was filed. The Court ruled on page 3: “Barta will prevail on his declaratory relief cause of action seeking a determination that Elections Code §§ 7210, 7408 and 7655 are unconstitutional and void on their face.” Another section, which the Court decided did not apply to county political party central committees, was not stricken.
In the eight page ruling, the Court declined to issue injunction. The essence of the Court’s reasoning (summarized on page 5) was that injunction or mandatory remedial orders were premature, but could follow if the Secretary of State or California Attorney General took action to enforce those unconstitutional previsions after the Court’s issuance of its order declared for the first time in California that these sections violated the U.S. and California Constitutions.
The Court reasoned, on page 5 of its ruling, that issuance of an injunction would not be necessary “in this case because it [the State] has conceded the unconstitutionality of the statutes, thereby removing the threat of any potential enforcement of these statutes by the State … [and] the County Clerk-Recorder allowed a default to be taken rather than contest the allegations.” On page 8 of its ruling, the Court repeated in stronger terms its reason for not issuing injunction at this time because “Defendants have conceded the unconstitutionality of the statutes challenged in this case, and have asserted that no injunctive relief is necessary because they will not attempt to enforce an admittedly unconstitutional statute” [Emphasis added].