Opinion
No. C-04-2012-JF (HRL).
September 24, 2004
ORDER VACATING TENTATIVE RULING AND DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs claim that Defendants unlawfully have prevented and continue to prevent them from registering voters at a residential facility operated by the Department of Veterans Affairs ("VA") in Menlo Park, California. Plaintiffs are the Santa Clara County Democratic Central Committee ("SCCDCC") and its chairman, Steven R. Preminger.
On July 19, 2004, Plaintiffs filed an application for a temporary restraining order ("TRO"), asking the Court to enjoin the VA and its agents from (1) enforcing 38 C.F.R. § 1.218(a)(14); (2) conditioning the visitation of persons to VA premises based on their expressed or assumed political affiliation or conduct in urging persons to register to vote or commenting upon federal policies; (3) requiring prior authorization for political expression by visitors or residents on VA premises; and (4) interfering with the receipt of political contributions on the exterior grounds of VA premises. Plaintiffs also filed a motion for preliminary injunction seeking the same relief.
The Court denied the application for TRO but set a hearing on the motion for preliminary injunction. On August 19, 2004, after initial briefing and oral arguments of counsel, the Court issued a tentative ruling stating that it was inclined to grant at least some relief to Plaintiffs and requesting further briefing as to the appropriate scope of such relief ("Tentative Ruling"). The tentative ruling was based upon the following conclusions:
1. 38 C.F.R. § 1.218(a)(14) gives the head of each VA facility discretion to grant or deny permission for certain types of activities on the facility's premises, including "demonstrations" constituting "partisan activities." Tentative Ruling, 5.
2. The facility at issue in the instant case, Building 331 on the Menlo Park VA campus, is a nonpublic forum, and accordingly the facility head's exercise of discretion must be upheld as long as it is reasonable. Id. at 6.
3. "Defendants' exclusion of Plaintiffs based solely on their party affiliation, without more, appears to be unreasonable as a matter of law." Id.
The Court's analysis assumes the validity of § 1.218(a)(14), as any facial challenge to the regulation must be brought in the Federal Circuit.
The Court directed the parties to provide supplemental briefing as to what restrictions, if any, would be appropriate to impose upon Plaintiffs' access to the facility if Plaintiffs were permitted to conduct voter registration activities there.
In response to the request for supplemental briefing, Defendants made an unsolicited request for reconsideration of the Tentative Ruling, and also indicated that if Plaintiffs were granted access to the facility, Defendants would seek to exercise the discretion vested by § 1.218(a)(14) to restrict Plaintiffs from expressing any visual or verbal support of any party or candidate. Although they cited legal authority supporting their request for reconsideration, Defendants, as they had in their initial papers, again failed to set forth any rationale or factual basis for their claimed exercise of discretion. For their part, Plaintiffs asserted that no restrictions should be imposed upon them, and that the Court should issue a ruling broad enough to encompass every VA facility in the United States.
Defendants relied primarily upon Monterey County Democratic Central Committee v. United States Postal Service, 812 F.2d 1194 (9th Cir. 1987), but cited a number of other cases, including Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788 (1985) and McConnell v. Federal Election Commission, 540 U.S. 93 (2003). Defendants did not explain why these authorities were not cited in their initial opposition.
On August 31, 2004, the Court issued a second request for supplemental briefing ("August 31 Order"). In that order, the Court reminded both parties that its task was to determine whether Defendants' exercise of discretion in denying Plaintiffs access to the Menlo Park facility was reasonable, and expressed frustration at being unable to perform this task as a result of Defendants' failure to articulate their reasons for denying or restricting Plaintiffs' access to the facility and Plaintiffs' persistence in mounting an improper facial challenge to § 1.218(a)(14). August 31 Order, 2-3. The Court reiterated its conclusion that "[s]imply stating that Plaintiffs cannot enter because they are associated with a particular political party, without more, appears to be an unreasonable exercise of discretion." Id. at 3. The Court also made clear that vague assertions that Plaintiffs' presence would compromise the facility's primary purpose were insufficient, particularly in light of the fact that Defendants had not articulated what they contend that purpose is. Id. at 2. The Court again directed Defendants to explain how and why they have elected to exercise their discretion as they have, and also set a deadline for responsive briefing by Plaintiffs.
That deadline subsequently was extended in consideration of the fact that counsel's wife was expected to give birth on or about the date Plaintiff's brief was due.
The Court has received Defendants' second supplemental brief as well as Plaintiffs' response thereto. Defendants at last have articulated their reasons for exercising their discretion under § 1.218(a)(14) to exclude Plaintiffs from the Menlo Park facility. Defendants make the following assertions, which are supported by the declarations of twelve different individuals, including VA policy makers, medical personnel at Building 331, a VA police officer who interacted with Mr. Preminger and his counsel, Scott Rafferty, and a patient who resides in Building 331:
While the Court refers to all twelve documents as "declarations" for the sake of simplicity, the Court notes that two of the documents are "witness statements" that are not made under penalty of perjury.
Many of the patients in Building 331 have cognitive or psychiatric impairments that prevent them from being placed in other community facilities or living alone. These patients are particularly susceptible to being upset by even minor disruptions to their routines. As a result, the facility must balance the need to avoid such disruptions against the need to provide patients with opportunities for community activities such as voting. The VA tries to achieve this balance by permitting only certain non-partisan organizations, such as the League of Women Voters and California Protection and Advocacy, to conduct voter education and registration activities at the facility. Were the VA to permit one partisan group to register voters at the facility, the VA would have to grant similar access to all other partisan groups who request it. Permitting access by several different groups, each with its own political agenda, likely would be disruptive and would divert staff time from providing medical and other patient care. Moreover, the VA has made a policy decision that it wishes to remain non-partisan in the eyes of the public and VA patients.
California Protection and Advocacy conducted a day-long voter education and registration drive in Building 331 on August 30, 2004.
VA social workers also register patients and help them fill out forms and apply for permanent absentee ballots.
In addition to articulating these general policy reasons for excluding Plaintiffs, Defendants assert that Mr. Rafferty deceived Bill Ball, the VA's Chief of Voluntary Services, and Elizabeth Freeman, the Director of the VA Palo Alto Health Care System in order to obtain permission to conduct voter registration at the facility, by denying that he was affiliated with any political party. Defendants additionally assert that when Mr. Rafferty visited Building 331, he acted in a confrontational and intimidating manner with staff members and failed to respect patients' privacy. During one incident, Mr. Rafferty allegedly entered Building 331 and began taking photographs of the interior, including patients in the area, without obtaining permission to do so. One of the patients photographed was a paranoid schizophrenic, who became extremely upset and obsessed about the incident for hours afterward. When a staff member confronted him, Mr. Rafferty allegedly responded by stating, "Fine, then I'll just take your picture!" and then doing so.
In their second supplemental response brief, Plaintiffs assert that Defendants' exercise of discretion to prevent political activities on VA premises is unsupervised, unguided, inconsistent and undocumented. Plaintiffs accuse Defendants of mischaracterizing the nature of Building 331, the terms of public access thereto and the extent of voter registration activities there. They dispute Defendants' characterization of the League of Women Voters as a non-partisan organization and object to the use of private organizations to help veterans register to vote and complete absentee ballots. Finally, Plaintiffs dispute Defendants' characterization of the manner in which Plaintiffs initially obtained permission to visit Building 331 and their conduct on the premises. Mr. Rafferty states that he never deceived Mr. Ball or Ms. Freeman regarding his party affiliation, emphatically denies photographing any patient, and asserts that he and other SCCDCC representatives acted in a calm and professional manner in the face of provocative behavior by VA staff.
Given the fundamental importance of the right to vote, it is extremely unfortunate that the factual record and legal arguments in this case have been developed in such a piecemeal fashion. Based upon the state of the record on August 19, the Court was deeply concerned that Defendants were denying Plaintiffs access to the Menlo Park VA simply because Plaintiffs represent a political party. As more facts have come to light through the supplemental briefing process, it has become apparent that the disputes in the instant matter are much more fact-specific. While the Court remains of the opinion that an outright and unconditional ban on voter registration at a VA facility simply because of party affiliation likely is unconstitutionally overbroad, the exclusion or restriction of these plaintiffs based upon their alleged conduct in interacting with the facility, if proved, clearly would be a reasonable exercise of Defendants' administrative discretion.
If the Court were to accept at face value Defendants' proffered reasons for excluding Plaintiffs, including the characterization of Mr. Rafferty's conduct, the Court likely would conclude that Defendants' exercise of their discretion under § 1.218(a)(14) was reasonable under the circumstances. If the Court were to believe Plaintiffs' version of events, the Court might well conclude that Defendants' exercise of their discretion was unreasonable. Because this is a motion for preliminary injunction, Plaintiffs have the burden of demonstrating a likelihood of success on the merits and the possibility of irreparable injury, or the existence of serious questions going to the merits and the balance of hardships tipping in the movant's favor. See Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir. 1998); Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir. 1984).
Given the present state of the record, the Court concludes that Plaintiffs have not met their burden for obtaining a preliminary injunction under the Ninth Circuit standard. Accordingly, the Tentative Ruling is vacated. Plaintiffs' motion for preliminary injunction is DENIED.