Appeal from the United States District Court for the Central District of California. D.C. No. CV 89-3383-RSWL. Ronald S.W. Lew, District Judge, Presiding.
Before: Warren J. Ferguson, William A. Norris and David R. Thompson, Circuit Judges. Opinion by Judge Norris; Dissent by Judge Ferguson.
We consider whether the Goleta Water District may, consistent with the First Amendment, disqualify a board member from considering a water service application if she has received a $250 campaign contribution from the applicant, but not if she has received a $250 campaign contribution from an opponent of the application.
In 1973, faced with an emergency water shortage, the Water District imposed a moratorium on new water connections. To be exempted from this moratorium, property owners must seek a waiver from the Water District's Board of Directors. In 1988, seeking to avoid corruption and the appearance of corruption in the water service application process, the Water District and its resident voters implemented an ordinance that prevented any member of the Water District's Board of Directors from considering the water service application of any person who contributed $250 or more to that member's election campaign. The ordinance does not require the disqualification of a board member who has received a contribution of $250 or more from a person opposing a particular application for water service.
Ed Harwin, a real estate developer, brought this civil rights action against the Water District and its Board of Directors, contending that the ordinance violated his First Amendment, substantive due process, and equal protection rights. The district court entered summary judgment for Harwin on the ground that the ordinance violated the First Amendment.
We review a summary judgment de novo. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985). Under Fed. R. Civ. P. 56(c), we must decide whether the record, read in the light most favorable to the non-moving party, establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
It is undisputed that the Water District's campaign contribution limitation burdens the First Amendment rights of contributors. See Buckley v. Valeo, 424 U.S. 1, 22, 25, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (campaign contribution limits burden contributor's freedom of political association).*fn1 Furthermore, the ordinance, by its own terms, burdens only the First Amendment rights of applicants for water service.*fn2
The Supreme Court has consistently held that discrimination in the First Amendment context is permissible only when the government can show that the discrimination is itself necessary to serve a substantial governmental interest. "The crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972) (emphasis added); see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S. Ct. 1391, 1401-02, 108 L. Ed. 2d 652 (1990); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 229, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987); Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575, 591, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983); Carey v. Brown, 447 U.S. 455, 465, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980).*fn3
In the instant case, the Water District asserts that its contribution limitation is aimed at curbing corruption and the appearance of corruption.*fn4 The Supreme Court has long recognized that this interest may justify non-discriminatory contribution restrictions. Austin, 110 S. Ct. at 1397; Buckley, 424 U.S. at 26. However, the Water District has not shown that the distinction drawn by its ordinance between applicants and opponents of a water service application serves to prevent corruption and the appearance of corruption.
While a particular applicant may have a more direct financial stake in the granting of an exemption from the moratorium than non-applicants have in its denial, there is no basis for believing that this is always the case. An owner of property may have as much of a financial interest in opposing water service for his neighbor's property as the neighbor has in obtaining it. The availability of water creates the potential for development that could be detrimental to the value of surrounding property, whether by destroying open space, cutting off views, establishing a competitive business, or otherwise. Moreover, persons with environmental rather than economic interests in mind may also be inclined to make campaign contributions to try to influence the votes of board members.*fn5 Thus, while the Water District's interest in preventing corruption and the appearance of corruption might justify a non-discriminatory contribution limitation, it does not justify the discriminatory contribution limitation at issue in this case.
Mosley is analogous to the instant case. In Mosley the Supreme Court struck down a Chicago ordinance that prohibited picketing on school grounds except for labor picketing. The Mosley Court recognized that Chicago could legitimately "prohibit[ ] some picketing to protect public order," 408 U.S. at 98, and that "cities certainly have a substantial interest in stopping picketing which disrupts a school." Id. at 99. However, the critical question was whether the distinction between labor and non-labor picketing furthered this legitimate interest. The Court held that it did not, because Chicago had not shown that non-labor picketing was "clearly more disruptive" than labor picketing. Id. at 100. In the instant case, the Water District has not shown that the danger of corruption is greater when the contribution is from an applicant than it is when the contribution is from an opponent of an application. We hold, therefore, that the ordinance violates the Constitution.*fn6
We emphasize, however, the limited nature of our decision. The district court's rationale is more expansive than the evidence in the record can support. The district court concluded that the ordinance would have the effect of decreasing the political voice of one side of the debate over growth within the district. However, there is no evidence to show that by limiting the contributions of those who apply for water service the Water District was unevenly burdening advocates of growth. Nor is a no-growth bias apparent on the face of the ordinance. It is certainly possible for a person to seek water service to develop his own land but oppose growth in general. The district court's conclusion about the impact of the ordinance on the debate over growth has no basis in the evidentiary record.
The district court also ruled that the ordinance was "overbroad" because the disqualification of a board member denied representation to constituents of that board member even if they had not made a major contribution. However, there is no evidence in the record about the impact of disqualification on the representation of the Water District's residents. The grant of summary judgment cannot, therefore, be supported on the ground that the ordinance denies representation to residents of the district.
We affirm the grant of summary judgment on neither of these grounds, but rather because the ordinance restricts the contributions of applicants without restricting contributions from opponents of the same applications. On this narrow issue, there was no triable issue of ...