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HomeMy WebLinkAbout03 - Election Campaign DocumentsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 3 July 22, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Clerk's Office LaVonne M. Harkless, City Clerk 949 -644 -3005, Iharkless @city.newport - beach.ca.us SUBJECT: ORDINANCE TO REPEAL CHAPTER 1.30, ELECTION CAMPAIGN DOCUMENTS, OF THE NEWPORT BEACH MUNICIPAL CODE (NBMC) ISSUE Should the City Council adopt an ordinance to repeal Chapter 1.30, Election Campaign Documents, of the Newport Beach Municipal Code? RECOMMENDATION: Introduce Ordinance No. 2008 -_ repealing Chapter 1.30 of the NBMC, and pass to second reading on August 12, 2008; and direct staff to research the constitutional issues raised, the practical enforcement issues presented by the ordinance, and bring it back for Council discussion and consideration after the November 2008 election. DISCUSSION: Background: On August 13, 1990, the City Council adopted Ordinance No. 90 -34, which required that late campaign materials be filed with the City Clerk. The ordinance was intended to provide an opportunity for candidates and proponents /opponents of a measure to respond to last minute "hit pieces ". Candidates who appear to benefit from attacks on their opponents would have an opportunity to disavow the contents of the document or any connection to the distributor. The intent of the ordinance was that public disclosure of late campaign documents would foster discussion of important issues, discourage personal attacks unrelated to a candidate's fitness to serve, and promote the conduct of fair elections. During the 1998 General Municipal Election there was a lot of confusion surrounding the filing of the documents with the City Clerk. The code provided that ten (10) copies of the campaign documents be filed within two hours of first distribution, however there was no requirement to provide proof of the first distribution. Based upon my ELECTION CAMPAIGN DOCUMENTS July 22, 2008 Page 2 recommendation, on June 13, 2000, the City Council adopted Ordinance No. 2000 -11, which required that within two hours after distribution of the first document, ten (10) copies of the campaign documents must be filed with the City Clerk accompanied by a Notice of Mailing or other evidence confirming the date and time of the first distribution. The ordinance also contained a provision that stated that this would apply to each initial distribution of more than two hundred substantially similar campaign documents but shall not apply to each distribution of campaign documents after copies have already been filed with the City Clerk. My office provides copies of the code provisions to all candidates when they withdraw their nomination papers, and for the most part, candidates have at least made an attempt to comply with the provisions of the code. Although the code has a provision (Section 1.30.04) which requires that the City Clerk shall, on the day of filing or the next business day if filing occurs after three p.m., mail copies of campaign documents to all candidates, proponents and opponents who have provided self- addressed, stamped envelopes in sufficient number to accommodate all filings, during my tenure the Clerk's office has never received such a request. The code also requires that the City Clerk shall make available, upon request of any person appearing at the office of the City Clerk during normal business hours, one copy of campaign documents filed with the City Clerk. On occasion the candidates have come into the office to review the documents on file. Section 1.30.060 sets forth the following penalties for failure to comply with this code section: A. Any person who knowingly and willfully violates the provisions of Section 1.30.030 is guilty of a misdemeanor and may be punished by a fine of five hundred dollars ($500.00) or six months in jail or both. B. Any candidate who violates the provisions of Section 1.30.030 in the course of any municipal election which results in the election of that candidate to the office of City Council shall, upon his/her conviction for violating Section 1.30.030, forfeit their office and the vacancy shall be filled as provided in Section 4033 of the Newport Beach City Charter. To my knowledge, the City has never taken any action to enforce the provisions of Chapter 1.30, nor have any penalties ever been assessed for failure to comply. Although the intent of the ordinance is good, it is virtually impossible to enforce as there is no way to prove that the provisions of the ordinance have been violated. With all of the sophisticated methods of distributing election materials and targeting specific audiences, the City Clerk's office has no way of verifying exactly when a piece has been distributed, or how many pieces were distributed. Subsequent to the February 2008 Special Municipal Election, the City received a complaint from Mr. James Lacy asserting two things: 1) the ordinance is ELECTION CAMPAIGN DOCUMENTS July 22, 2008 Page 3 unconstitutional; and 2) the ordinance is not being enforced. Attached is an article dated February 2, 2008 posted on FlashReport Weblog by Mr. Lacy questioning the constitutionality of the ordinance and citing a United States Supreme Court case, McIntyre v Ohio Elections Commission. In light of Mr. Lacy's questions and the difficulties in enforcing this ordinance, the City Attorney and I have discussed the ordinance and it is our opinion that the current ordinance be repealed and staff be directed to research the constitutional issues raised by Mr. Lacy, the practical enforcement issues presented by the ordinance, and bring it back for Council discussion and consideration after the November 2008 election. Environmental Review: Submitted by: �V�M, Not applicable LaVonne M. Harkless, City Clerk Attachments: Draft Ordinance Ord. 90 -34 Ord. 2000 -11 FlashReport Weblog — 216108 ORDINANCE NO. 2008- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA REPEALING CHAPTER 1.30 PERTAINING TO CAMPAIGN DOCUMENTS WHEREAS, the City Council recognizes that the City's present campaign document regulations, as found in Chapter 1.30 of the Municipal Code of the City of Newport Beach, has not been enforced in past years and is questionable as far as whether or not it is constitutional. NOW THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: SECTION 1: Chapter 1.30 of Title 1 of the Newport Beach Municipal Code is hereby repealed in its entirety. SECTION 2: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspapers of the City, and it shall be effective thirty (30) days after its adoption. SECTION 3. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 22nd day of July, 2008, and adopted on the 126' day of August, 2008, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS ABSTAIN, COUNCIL MEMBERS INNIMIS CITY CLERK u: •i o� ..; AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ESTABLISHING CHAPTER 1.30 PERTAINING TO CANPAIGN DOCUMENTS. The City Council . of the City of Newport Beach does hereby ordain as follows: Sections; 1.30.010 Findings a Purpose 1.30.020 Definitions 1.30.030 Filing 1.30.040 Public Record 1.30.050 Application 1.30.060 Penalties 1.30.010 Findinca and Purpose. The City Council finds and declares as follows: A. Recent municipal elections have been characterized by the dissemination of campaign literature known as "hit pieces." These documents are sent to voters in the later stages of a campaign, typically contain personal attacks on candidates or the proponents /opponents of measures and frequently misrepresent a candidate's position on issues or the true impact of a measure. B. Prompt public disclosure of the contents of last minute campaign documents will promote the discussion of important issues and the conduct of fair elections by: (1) offering the candidate attacked an opportunity to accurately represent his or her position on issues; (2) offering opponents or proponents the opportunity to respond to statements about a measure that are untrue or believed to be untrue; and (3) providing an opportunity for a candidate, proponent or opponent to disavow the contents of any campaign document that he or she believes represents an unfair, untrue or improper attack on any person. C.. The requirement for prompt disclosure of last minute campaign mailers is content neutral, serves compelling municipal interests in fair elections and full discussion of relevant issues, and is the least intrusive method available to further these 1 t.� interests. 1.30.020 Definitions. For the purposes of this Chapter, the following terms shall have the meaning specified in this Section: A. "Campaign document" means any writing or document which supports, opposes or relates to any candidate or measure. B. "Person" includes any individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee, and any other organization or group of persons acting in concert. C. "Candidate" means any, individual who is listed on the ballot or who has qualified to have write -in votes on his or her behalf counted by election officials for the office of City Council. D. "Measure" means any initiative, referendum, charter amendment or other proposition which is listed on the ballot for any general or special municipal election and which is being voted on only in the City of Newport Beach. E. "Proponent" shall mean any person who,has signed a notice of intention to circulate a petition to qualify a measure and any person who has publicly declared his or her support for a measure. F. "opponent" means any person who has publicly disclosed his or her opposition to a measure. G. "Distributing" or "Distribution" shall mean mailing, sending, passing out or otherwise disseminating any campaign document to any person. 1.30.030 Filing. Any person distributing two hundred, or more, substantially similar campaign documents within fourteen (14) days of any general or special municipal election shall, within two hours of first distribution, file ten (10) copies of the campaign document with the City Clerk for the City of Newport Beach. 2 1.30.040 Public Record. Campaign documents filed with the City Clerk shall be a matter of public record. The City Clerk shall, on the day of filing or the next business day if filing occurs after 3 p.m., mail copies of campaign documents to all candidates, proponents and opponents who have provided self - addressed, stamped envelopes in sufficient number to accommodate all filings. The Clerk shall make available, upon the request of any person appearing at the office of the Clerk during normal business hours, one copy of campaign documents filed with the Clerk. 1.30.050 Application. The provisions of this Chapter shall apply to any person distributing new campaign literature mailed or sent from any location inside or outside of the corporate limits of the City of Newport Beach. 1.30.060 penalties. A. Any person who knowingly and willfully violates the provisions of Section 1.30.030 is guilty of a misdemeanor and may be punished by a fine of $500 or six months in jail or both. i B. Any candidate who violates the provisions of Section i 1.30.030 in the course of any municipal election which results in the election of that candidate to the office of City Council shall, upon his /her conviction for violating Section 1.30.030, forfeit their office and the vacancy shall be filled as provided in Section 403 of the Newport Beach City Charter. SECTION 2: Severability. The City Council of the City of Newport Beach hereby declares that should any section, paragraph, sentence or word of this Ordinance he declared, for any reason, to be invalid, it is the intent of the Council that it would have passed all other portions of this Ordinance independent of the portion declared invalid. 3 i SECTION 8: savings Clause. Neither the adoption of this i Ordinance nor the repeal of any other ordinance of the City shall, in any manner, affect the prosecution for violations of ordinances committed prior to the effective date of the adoption or repeal, i nor be construed as a waiver, of any of the penalty or penal provisions applicable to such violation. The provisions of this ordinance, to the extent they are substantially the same as ordinances previously adopted by the City and relating to the same I subject matter, shall be construed as restatements and j continuations, and not as new enactments. SECTION 4: This Ordinance was introduced at a regular meeting. of the City Council of the City of Newport Beach held on the 23rd day of July 1990, and adopted on the .13th day of August , 1990, by the following vote, to -wit: - AYES, - COUNCr MFMRBRS TORNER, WATT. SANSONE, PLUM, BART, STRAUSS, COX. NOES, COUNCITMFM MRS NONE ABSENT COUNCIIMMERS NONE MAYOR X nmmsam• 4 n x ORDINANCE NO. 2000. 11 r) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS 1.30.030 OF TITLE 1 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO ELECTION CAMPAIGN FILING CITY OF Nr'f-- P'C''.''.P ACH i r kDOQfsD. The City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code section is amended to read, in full, as follows: SECTION 1: Section 1.30.030 of Chapter 1.30 is amended to read as follows: 1.30.030 Filing. Any person distributing two hundred (200), or more, substantially similar campaign documents within fourteen (14) days of any general or special municipal election shall, within two hours after distribution of the first document, file ten copies of the campaign document with the City Clerk accompanied by a Notice of Mailing or other evidence confirming the date and time of the first distribution. The provisions of this Section shall apply to each initial distribution of more than two hundred substantially similar campaign documents but shall not apply to any distribution of campaign documents after copies have been filed with the City Clerk. SECTION 2: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this 1 i ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 23rd day of May, 2000, and adopted on the 13' day of June, 2000, by the following vote, to wit: AYES, COUNCILMEMBERS Thomson, Glover, Adams, Debay, Ridgeway, O'Neil and Mayor Noyes NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS 2 j FlashReport Weblog on California Politics Newport Beach Ci _10-ounc!I: "Tear Down This Ordinance!" by James Lacy - Political Law 2-6 -2008 7:03 am Congratulations are due in Newport Beach to political consultant Scott Taylor and proponents Bill Ficker, Marion Bergeson, and Jack Crowl on their victory last night with the Charter Amendment known as the "City Hall in the Park" Initiative, which will site a new City Hall in Newport Center near the main library and save taxpayers millions. I was pleased to write the proposed law for them and successfully defend it in court. The 5.5% margin of victory must have made for a sweet night, Bill Ficker! That said, the City of Newport Beach has one of the most threatening and unconstitutional campaign ordinances on its books I have ever seen, and the free - speech loving Republicans on that council need to repeal this law before the next municipal elections to avoid getting slapped with a civil rights suit they are certain to lose, and certain to pay for. The law, which can be found on the Citys website at Municipal Code section 1.30, criminalizes all "writings," direct -mail and flyers distributed to 200 or more people in Newport Beach within 14 days of an election, unless copies are filed with the City Clerk within 2 hours of distribution, and supported by evidence of how they were distributed. The penalty is six months in jail, a $500 fine, or both. The law claims it is "content neutral" because it affects all writings and requires filing after distribution has begun. It is admittedly focused on last minute "hit pieces" and is intended to force public disclosure of such mailings, and all late mailings, to give opponents the opportunity to "respond to statements" that are "untrue, or believed to be untrue." The big problem here is that government power is not intended to sort through what statements of candidates and measures are "true or untrue" during an election campaign. And campaign ordinances are not constitutionally valid when they affect the content or volume of speech, are vague, are abritrary, or deny fundamental First Amendment protections. This Newport Beach "hit piece" crime fails to pass constitutional muster, and I can see a civil rights case on the horizon unless the Council repeals this monster of a law before the next rounds of elections. Here are just four reasons why the law is unconstitutional 1. The law does indeed unconstitutionally affect content and volume of speech, and experts would agree. Targeting of messaging to "get out the vote" or "GOTV" has become an essential form of campaigning today. Campaigns seek to identify and get their special groups of voters to the polls to win a race. As a result, campaign strategy does not always intend to communicate a single message to the broader group of voters. Thus, a campaign might cause a message to be sent to a specific subset of voters that states, "Candidate Jones has been a member of Scientology for twenty years." The message is intended to relate the candidate to a speck group of voters that may be motivated to support Candidate Jones because of his special affiliation. But the campaign manager might not make this same message to the entire group of voters in a city because strategically it might not be helpful. Similarly, a message that "Candidate Jones has been active in the Republican Party for twenty years" would clearly not be helpful if sent to both Republican and Democratic voters. Thus, content of communications is often determined by the ability to target or limit the distribution of the message for maximum effect. Under the Newport Beach ordinance, such targeted messages have a greatly diminished value to the candidate or measure seeking to make the statements, when they are required to publicly disclose the content. The statements, which are true and could be helpful through a targeted direct-mail appeal, could become actually harmful to election prospects when required to be disclosed broadly to all voters. In this regard, experts would testify that the Newport Beach ordinance "dumbs down" pure political speech by adding a new consideration to what a campaign will say, how it says it, and when it says it. In an effort to comply with the ordinance and avoid jail time, candidates and measures are discourgaed from engaging in types of targeted affinity speech that might reveal their campaign strategy, which have become standard in election campaigns, such as party-based GOTV messages. In this regard, the law is a "prior restraint" on pure political speech. 2. The law is unconstitutionally vague and overbroad. "Campaign document" is defined as "any writing" that is distributed to 200 or more people. Well, is a private email sent to an email list in Newport Beach expressing a view on an election topic within 14 days of an election covered by the ordinance, thus requiring public filing of the email with the City Clerk within two hours of distribution to avoid jail time? Could be! And that consequence can hardly be justified by the law. Pure political speech is entitled to the highest standard of protection from governmental interference under our Constitution. For the Newport Beach law to pass constitutional muster, it must address and solve a compelling corruption problem posed by "writings" in the last 14 days of an election. It is hard to believe that Newport Beach possesses any evidence that any such writings have "corrupted" elections in Newport Beach, including private emails by residents. 3. The law is unconstitutionally arbitrary. While it applies to "writings" distributed to 200 or more people in the last 14 days of an election, such as direct -mail, flyers, and potentially emails, it does not apply to other forms of advertising that are commonly used in political campaigns in Newport Beach, such as ads in the Daily Pilot, and cable N. In 2000, Federal District Court Judge Lawrence Karlton, after a full -blown trial on the constitutionality of a campaign law, Proposition 208, made a series of "findings of fact" about the relative "corruptibility" of various forms of political advertising in an electoral context. He found that direct -mail type advertising was no more susceptible of corruption than the other forms of political advertising. And then he enjoined Proposition 208's attempt to regulate a specific form of direct -mail, by singling it out. In other words, what is "sauce for the goose" is "sauce for the gander." The Newport Beach City Council can't just pick on direct -mail because it doesn't like "hit pieces." Its regulation must be rational, across the board, and justified by evidence that such late "hits" are so debilitating to democracy in Newport Beach Beach that the law's obvious effect on free speech rights is justified. Don't think they have that evidence. 4. The law's requirements of filing copies and supporting evidence on distribution violates an express decision of the United States Supeme Court which allows for the anonymous distribution of election flyers (i.e., "writings ") without governmental interference. For the benefit of the City Council, I have reprinted the syllabus of the case, McIntyre v. Ohio Elections Commission, below. Newport Beach City Council, tear down this ordinance! Take a step in favor of freedom and send this law into the wastebasket as soon as possible!!! SUPREME COURT OF THE UNITED STATES McINTYRE, executor of ESTATE OF McINTYRE, DECEASED, V. OHIO ELECTIONS OF COMMISSION Certiorari to the Supreme Court of Ohio No. 93 -986. Argued October 12, 1994 -- Decided april 19, 1995 After petitioner's decedent distributed leaflets purporting to express the views of "CONCERNED PARENTS AND TAX PAYERS" opposing a proposed school tax levy, she was fined by respondent for violating §3599.09(A) of the Ohio Code, which prohibits the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. The Court of Common Pleas reversed, but the Ohio Court of Appeals reinstated the fine. In affirming, the State Supreme Court held that the burdens §3599.09(A) imposed on voters' First Amendment rights were "reasonable" and "nondiscriminatory' and therefore valid. Declaring that §3599.09(A) is intended to identify persons who distribute campaign materials containing fraud, libel, or false advertising and to provide voters with a mechanism for evaluating such materials, the court distinguished Talley v. California, 362 U.S. 60, in which this Court invalidated an ordinance prohibiting all anonymous leafletting. Held: Section 3599.09(A)'s prohibition of the distribution of anonymous campaign literature abridges the freedom of speech in violation of the First Amendment.