CC 07-06-2023 Item No. 13 Regulation of Lobbying Activities_Written CommunicationsCC 07-06-2023
Written Communications
Item No. 13
Ordinance 23-2249
amending Regulation
of Lobbying Activities
From:Jean Bedord
To:City Attorney"s Office; City Clerk; City Council; Cupertino City Manager"s Office
Subject:Agenda Item #13 Regulation of Lobbying Activities, July 6, City Council meeting
Date:Thursday, July 6, 2023 9:08:58 AM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Honorable Mayor Wei, Vice-Mayor Mohan and Councilmembers Chao, Fruen, and Moore,
and staff,
I support modification of the current lobbying ordinance or even better, deleting it
completely. It over regulates a non-existent problem, and perpetuates Cupertino’s reputation
as a “lost cause”. There are only six registered lobbyists and some are no longer active. It
chills community organizations, particularly multi jurisdiction efforts.
Should this council continue the ordinance, I urge you to make the recommended changes
recommended by both the League of Women Voters and the city attorney:
* Increase the threshold to $5000 - travel expenses can easily exceed $1000,
* Conform to state laws, not idiosyncratic Cupertino ordinances.
*. Remove trickle over into campaign funding, which is different from lobbying, and regulated
separately.
Too much council and staff time, plus legal resources have been spent on this poorly
conceived ordinance. It’s time to expend those resources on productive matters, not
restrictions.
Thank you for your consideration.
Jean Bedord
Cupertino VOTER
--
Warm regards,
Jean Bedord
Cell: 408-966-6174 / Land line: 408-252-5220
From:Tracey Edwards
To:Tracey Edwards; City Clerk; City Council; Hung Wei; Sheila Mohan; Liang Chao; J.R. Fruen; Kitty Moore; City
Attorney"s Office
Subject:Comments from the League of Women Voters Cupertino-Sunnyvale regarding: Proposed Ordinance No. 23-2249,
amending Municipal Code Chapter 2.100
Date:Thursday, July 6, 2023 11:34:56 AM
Attachments:White Paper on Lobbying Ordinance .DOCX
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
To the Cupertino City Council,
First we want to thank the City Attorney for his work on redrafting the Lobbying ordinance
you will be considering today, July 6th.
Attached please find a white paper which addresses the two choice provided you in the staff
report and two additional areas we feel must be modified.
Respectfully
Tracey Edwards
Co-President LWV Cupertino-Sunnyvale
Tracey Edwards
H: +1 408 733 5570
M: +1 408 888 9411
tracey@edwards123.com
Respect science, respect nature, respect each other.
Submitted July 6th, 2023
Comments from The League of Women Voters Cupertino-Sunnyvale
on Proposed Ordinance No. 23-2249, amending Municipal Code Chapter
2.100
Regulating Lobbyists
Section 2.100.030: The Threshold Compensation for Being Treated as a Lobbyist.
Staff has presented two alternatives as the threshold for being treated as a
Lobbyist and being compelled to register under the proposed Ordinance. The
question is whether the threshold compensation for registration as a Lobbyist
should be $1,000 or $5,000.
The League endorses option B, a $5,000 threshold paid for engaging in Lobbying
during any consecutive three-month period during the preceding twenty-four
months (staff accepted the League’s other proposed revisions to this provision so
the only question is the threshold). Historically, volunteers who have information to
provide to a City Council or Committee are reimbursed for their travel expenses to
attend meetings.
Under the Ordinance’s definition of “Compensation” being reimbursed for travel
expenses, but otherwise volunteering, could make one a paid Lobbyist.
Neighborhood organizations that are entirely volunteer-based would fall within the
definition of Organization Lobbyists if the organization reimbursed travel expenses
alone to an expert from outside the area to travel to Cupertino, and today’s travel
costs quickly exceed $1,000. By setting the threshold at $5,000, at which point
payments are likely to exceed expenses alone, the Council avoids the inadvertent
characterization of unpaid volunteers and the organizations that consult them as
Lobbyists.
The State uses a $5,000 threshold, largely for this reason, and the League
recommends that the City follow the same approach.
2.100.080. The Proposed Registration Fee Should Only Be Charged to Paid
Lobbyists.
The City proposes to charge every Lobbyist, regardless whether that person is a
paid Lobbyist or a volunteer neighborhood activist, to register with the City. The
League proposes that only paid Lobbyists be charged an annual registration fee.
The League understands why the City seeks not only to have Lobbyists register but
also to levy a fee upon those being paid to Lobby the City. The current draft,
however, requires each Lobbyist, whether a Contract Lobbyist, an Organization
Lobbyist, or an Individual, to pay an unspecified registration fee. If the Lobbyist
fails to pay the fee on time, they are subject to a daily fine of $25, up to $500 in
total.
The League questions the imposition of a fee on those who are not being
compensated for their Lobbying efforts, especially when the Council has not
specified the fee that will be charged. On the other hand, since all Contract
Lobbyists, i.e., those being paid to Lobby, are assessed an additional fee each year,
currently set at $500, the League believes that the City’s overhead costs can be
offset fairly by assessing paid Lobbyists. A fee for someone who is not being paid to
Lobby discourages people like neighborhood activists – surely not paid – from
regularly speaking up at Council meetings. It also discriminates against small
organizations without staff to track annual registrations, come to City Hall to make
annual filings, etc., and fines them for failing to pay the fee. The burden imposed
by the base fee seems disproportionate to the benefit already received from
requiring universal registration, and the League questions whether there is any
governmental purpose served by requiring a fee from Lobbyists who are not paid
and are not Contract Lobbyists.
The League suggests that only Contract Lobbyists be required to pay a fee each
year to register as Lobbyists.
2.100.090. Regulation of Campaign Contributions Should Be left to the State.
The City proposes to regulate campaign contributions but only for Lobbyists. The
regulation of campaign finance is a matter within both State statute and
comprehensive enforcement by the State of California. The League questions why
the City would seek to add this obligation. If, however, the City is intent on adding
campaign finance regulations to the City Code, the regulation of campaign
contributions should reach all those who deal with the City. Therefore, if the City
does propose restrictions they should be placed elsewhere in CMC to do the most
good for the City.
This section of the proposed revision describes the information that each Lobbyist
must provide with their annual registration. It includes the name, business address,
telephone, email addresses and, if applicable, business license of all Persons
required to register, including the names of all owners of sole proprietorships and
partnerships of fewer than ten Persons. For corporate registrants, it also includes
the names of the president, secretary, chief financial officer, and agent for service
of process, as well as information on the. There is separate additional information
required for Contract Lobbyists and Organizational Lobbyists, and the amount of
fees collected by paid Lobbyists, in subparagraphs (a) – (c). Subparagraphs (g) –
(h) require the reporting of fundraising and donations, and subparagraphs (i) – (j)
require the Lobbyist to log contacts with City officials and activity expenses.
But the proposed Ordinance also includes three subparagraphs addressing
campaign contributions, which are out of place here. The League does not question
the importance of subparagraphs (d) through (f), and indeed believes
comprehensive disclosures of campaign contributions is an important part of civic
regulation. For this reason and others, campaign finance regulation does not belong
in a Lobbying Ordinance. That is particularly true in light of the way the Municipal
Code is drafted, where (i) the campaign contribution provisions largely replicate
State law, and (ii) the reporting of campaign contributions and expenditures applies
more broadly than just to Lobbying alone.
These reporting obligations should apply to all contributors who do business with
the City, not just to Lobbyists. For example, the same campaign finance
prohibitions also should apply to chapter 3.23, governing public works contractors
and bidding procedures. Similarly, the regulations should reach all dealings with the
City, not just Lobbying.
The League suggests that campaign finance regulation be left to the State but, if
the City does want to add its own campaign finance regulations to the CMC, the
proper placement for these provisions is either in 2.06, a reserved section in the
chapter on administration and personnel, or 10.27, a reserved section in the
chapter on public morals. This would make the same prohibitions broadly applicable
to all campaign contributions.
2.100.130. Violations of the Lobbying Ordinance Should Be Policed by the District
Attorney, Not the City Attorney.
Option A expressly repeats state law prohibitions on Lobbying into the Municipal
ordinance, making this conduct a violation of the Municipal Code as well as of
California State law. The League offers the following observations to the Council in
its consideration of the proposed ordinance.
The League believes that every item covered in subparagraphs (b) – (g) of this
section, are adequately and properly policed by the State. Since these prohibitions
are wholly duplicative of prohibitions in California State Statutes, adding them to
the Municipal Code would impose an unnecessary burden on the City at a time
when the City lacks the resources to police these actions themselves.
In light of the current obligations facing the City, the League questions why the City
would want to take on this burden when it currently resides with the District
Attorney, whose job it is to enforce these very provisions under existing California
laws. Worse, by making these unlawful activities the subject of a municipal
ordinance, the City opens the door to the District Attorney declining to prosecute
these actions because they are also a City obligation. With the proposed provisions
in place in the Municipal Code, the District Attorney could decline to prosecute
violators and send violations back to the City to enforce.
The League supports Option B in order to place the enforcement obligation where it
is best administered: the District Attorney and not the City Attorney.
From:Rhoda Fry
To:City Clerk; City Council
Subject:City Council Meeting July 6 2023 Agenda Item #13 Lobbying Ordinance
Date:Thursday, July 6, 2023 3:33:37 PM
Attachments:Court 1 dismiss on June 2 unless amended.pdf
Court 2 extension request.pdf
Court 3 time extended.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
City Council Meeting July 6 2023 Agenda Item #13 Lobbying Ordinance
Summary for Minutes: Rhoda Fry requested that the lobbying ordinance remain unchanged
and questioned the City’s decision to extend the plaintiff’s response time.
Dear City Clerk – please include the attachments inline in the comments so that they can be
more easily read
Dear City Council,
One of the things that I’ve been hearing this Council talk about is “good governance.” With
respect to the frivolous lawsuit by the League of Women Voters against the City of Cupertino,
I don’t think that the City has exercised “good governance.” The court granted dismissal. And
now the City is giving more time to the League to amend their complaint. That’s just plain
wrong.
I have to say that I am furious at the League for not discussing their concerns about the
Lobbying ordinance when it was being discussed during multiple City Council meetings. A
lawsuit is a course of last result. Their lawsuit has cost the City tens of thousands of dollars –
more than several of our favorite community events that are on the chopping block due to our
City’s financial complaints.
I urge the City Council to leave the ordinance as is and allow the case to be completely closed
before making any amendments. By amending now, you are inviting more lawsuits.
Additionally, given that our Mayor has held a leadership position in the League, I respectfully
request that she recuse herself from deliberations on this matter.
If you do go ahead and make changes – and I had to say it, but I expect that you will, I request
the following:
1. Leave the $1000 limit as is. The ordinance’s objective is to PROMOTE
TRANSPARENCY. Increasing the threshold would decrease transparency. Filling out
paperwork for a lobbyist is similar to filling out a business license. If you want to lobby
in the City, then fill out the paperwork and pay a fee. Likewise, if you want to do
business in the City, then fill out the paperwork and pay a fee. Keep the threshold the
same.
2. Leave the reporting timeframe of quarterly as is. The ordinance’s objective is to
PROMOTE TRANSPARENCY. Decreasing the reporting timeframe to twice yearly
would decrease transparency. What the staff report fails to mention is that many
jurisdiction do require quarterly reporting. By stating that one other jurisdiction allows
for twice-annual reporting and not mentioning others within our county that require
quarterly reporting is misleading. Right there, I’m feeling a lack of transparency in City
affairs and it is eroding my trust in City staff. : ( : ( : ( Yes . . . these are sad faces.
3. Removing gender-specific language is okay.
4. I am against making other changes to the ordinance as these erode Transparency.
I would also like to ask a hypothetical question as to how the current and revised ordinance
would come into play. Let’s say that a person or organization is against building a huge
development in the City and they give a large amount of money to the Committee to Green
Foothills to oppose it. The Committee then goes ahead and testifies at Council meetings and
launches various initiatives like email campaigns to encourage community engagement. If this
were to happen, I would want to know that Committee for Green Foothills had earmarked
funds for this activity and I would think that they should be subject to disclosure. The person
doing the work would not have had this activity as a full-time job. This is a completely
hypothetical scenario but it demonstrates how people working on a very part-time basis could
be instrumental in lobbying activities that should be disclosed.
Again, I ask that you make not changes. Why? Because looking at this now conflates the
lawsuit and that is just plain wrong. Many hours were invested on this ordinance in public
meetings. Making changes now makes it appear as though council is seeking to fulfill a
political agenda. The optics are really bad.
If you do feel compelled to discuss this, please do so in an in-depth line-by-line manner and
explain all of the ramifications of proposed changes.
Sincerely,
Rhoda Fry
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
LEAGUE OF WOMEN VOTERS OF
CUPERTINO-SUNNYVALE,
Plaintiff,
v.
CITY OF CUPERTINO, et al.,
Defendants.
Case No. 22-cv-04189-JSW
ORDER GRANTING MOTION TO
DISMISS
Re: Dkt. No. 31
Now before the Court is motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by Defendant City of Cupertino (“Cupertino”). Court has considered the parties’
briefs and relevant legal authority, and the Court HEREBY GRANTS the motio n to dismiss.
BACKGROUND
Plaintiff, the League of Women Voters of Cupertino-Sunnyvale (“Plaintiff”), brings a
facial challenge to the Cupertino Ordinance 21-2222, codified as Cupertino Municipal Code
chapter 2.100 (the “Ordinance”). Cupertino Municipal Code (“CMC”) § 2.100.010 et seq.
Plaintiff, a nonprofit public benefit corporation registered under 26 U.S.C. section 501(c)(4), is a
local chapter of the nonpartisan League of Women Voters of the United States. One of its primary
goals is to ensure opportunities for effective and inclusive voter participation in government
decision-making, often through advocacy for or against particular laws or policies. (Complaint at
¶¶ 29, 31.)
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 1 of 8
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
The Ordinance, operative as of July 1, 2021, is a lobbying registration and disclosure law.
The Ordinance provides information to city officials and to the public about lobbying activity in
connection with changes in the law or the award of city contracts, permits, or positions. The
stated purpose of disclosure of lobbyists’ identities and activities is to “foster[] public confidence
in government officials by making government decision-making more transparent to the public.”
CMC § 2.100.010. The stated purpose of the Ordinance is to “impose registration and disclosure
requirements on those engaged in lobby efforts to influence decisions of City policy maker for
Compensation.” Id.
The Ordinance defines lobbying as influencing or attempting to influence a Legislative
Action or Administrative Action. §2.100.030(n). The Ordinance defines “influencing” as any
“purposeful communication” that promotes, supports, modifies, opposes, causes the delay or
abandonment of conduct, or intentionally affects the behavior of a city official through persuasion,
information, incentives, statistics, studies, or analyses. Id. A Legislative Action refers to
ordinances, resolutions, City contracts, or other official action of the Mayor, City Council, or City
boards. § 2.100.030(m). An Administrative Action refers to rules, regulations, contracts, permits,
licensing, or hiring by the City. § 2.100.030(b). The Ordinance defines three types of lobbyists:
(1) contract lobbyists who are paid to lobby for a client; (2) business or organizational lobbyists
that direct their paid employees or officers to lobby in an aggregate amount of ten or more hours
within a year; and (3) expenditure lobbyists who pay $5,000 or more in a year to carry out
advertising or public relations campaigns to convince others to directly lobby the government.
§§ 2.100.030(o)(1), (2), (3).
The Ordinance requires all lobbyists, as defined, to register with the City Clerk, pay an nual
registration fees, and disclose a list of detailed information to the City. (Complaint at ¶¶ 49 -52.)
The Ordinance also imposes fines and lobbying debarment for violating the terms of the
Ordinance. CMC §§ 2.100.080(c); 2.100.150, 2.100.170.1
1 The Court notes that the Ordinance at issue here is materially identical to similar lobbying
registration ordinances in Santa Clara County, and the cities of Long Beach, Sacramento, Santa
Clara, San Jose, and San Diego.
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 2 of 8
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
Plaintiff claims that the Ordinance violates the free speech and petition clauses of the
federal and California constitutions.2 Plaintiff alleges that the Ordinance is an overbroad, speaker-
based, content-based regulation that chills protected First Amendment expression, which subjects
the law to strict scrutiny. Plaintiff contends that Cupertino must show that the Ordinance is
narrowly tailored to further a compelling government interest justifying its burdensome
registration and reporting requirements. Plaintiff argues that the facially overbroad Ordinance has
a chilling effect on political speech and that it has had that effect on Plaintiff and its members,
deterring them from exercising their protected rights to assemble, to engage in free speech, and to
petition the government.
Cupertino moves to dismiss the complaint on the basis that Plaintiff has failed to state a
facial overbreadth challenge to the Ordinance.3 The Court shall address other relevant facts in the
remainder of its order.
ANALYSIS
A. Legal Standard on Motion to Dismiss.
Cupertino moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Under Rule 12(b)(1), a district court must dismiss a complaint if it lacks subject matter
jurisdiction to hear the claims alleged in the complaint. Fed. R. Civ. P. 12(b)(1). In order for a
district court to have subject matter jurisdiction over a plaintiff’s claims, a plaintiff must present a
live case or controversy, as required by Article III of the U.S. Constitution. See U.S. Const. art. III
section 2, cl. 1. In order for there to be a case or controversy within the meaning of Article III, a
2 Generally, when courts interpret a provision of the California constitution that is similar to the
federal Constitution, they will not depart from United States Supreme Court jurisprudence
regarding the construction of the similar federal provision unless given a cogent reason to do so.
See Edelstein v. City and County of San Francisco, 29 Cal. 4th 164, 179 (2002) (citing People v.
Monge, 16 Cal. 4th 826, 844 (1997)). Plaintiff contends that because the Ordinance fails to pass
federal Constitutional muster, it also fails for the same reasons under Article 1 of the California
Constitution. See Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1154 (9th Cir. 2003).
3 Cupertino also moves to dismiss Plaintiff’s official capacity claims as duplicative as official
capacity claims are claims against the City itself. See, e.g., Larez v. Los Angeles, 946 F.2d 630,
646 (9th Cir. 1991) (“A suit against a governmental officer in his official capacity is equivalent to
a suit against the government entity itself.”) Plaintiff does not oppose dismissal of the official
capacity claims. The motion is GRANTED as to those claims.
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 3 of 8
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
plaintiff must have standing to pursue their claims.
A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim
upon which relief can be granted. A court’s “inquiry is limited to the allegations in the complaint,
which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y
Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading
standard of Rule 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Pursuant to Twombly, a plaintiff cannot merely allege conduct that is conceivable but must
instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
If the allegations are insufficient to state a claim, a court should grant leave to amend,
unless amendment would be futile. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.
1990).
B. Standing.
In order to establish standing to sue, a plaintiff must show injury, a causal connection to
the conduct complained of, and redressability through a favorable decision. See Lujan v. Defs. of
Wildlife, 594 U.S. 555, 560-61 (1992). The Court finds that Plaintiff has standing to challenge the
provisions of the Ordinance pertaining to Business or Organizational Lobbyists and Expenditure
Lobbyists. At this procedural posture and taking the allegations as true, Plaintiff has satisfactorily
alleged that it has suffered an injury-in-fact, that is “a realistic danger of sustaining a direct injury
as a result of the statute’s operation or enforcement,” to both its organizational interests and its
members. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979).
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 4 of 8
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
Plaintiff brings a facial challenge to the Ordinance. A facial challenge of overbreadth may
be made only if “a substantial number of its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010). The
“overbreadth doctrine operates as a narrow exception permitting the lawsuit to proceed on the
basis of ‘a judicial prediction or assumption that the statute’s very existence may cause others not
before the court to refrain from constitutionally protected speech or expression.’” Get Outdoors
II, Ltd. Liab. Co. v. City of San Diego, 506 F.3d 886, 891 (9th Cir. 2007) (citation omitted) see
also Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (holding that the “First Amendment needs
breathing space” if it is to have any effect and third-parties may bring First Amendment challenges
to protect the rights of others who may refrain from constitutionally protected activity due to the
overly broad sweep of the statute at issue). Overbreadth should be used “sparingly and only as a
last resort” when a limiting condition cannot be placed on the challenged law. Broadrick, 413
U.S. at 613. “[O]verbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” Marquez-
Reyes v. Garland, 36 F.4th 1195, 1201 (9th Cir. 2022) (citation omitted). “A statute is not
overbroad just because ‘one can conceive of some impermissible applications.’ … There must …
be a ‘realistic danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court.’” Id. (citations omitted).
C. Level of Scrutiny and Application.
Not all restrictions on speech are subject to the strict scrutiny standard. Strict scrutiny will
be applied if there is a significant interference or “appreciable impact” on the exercise of an
individual’s fundamental right. Fair Political Practices Com. v. Superior Court, 25 Cal.3d 33, 47
(1979). Strict scrutiny is not applied when the challenged regulation “merely has an incidental
effect on exercise of protected rights.” Id.
In Fair Political Practices, the California Supreme Court addressed the constitutionality of
regulations governing lobbyists codified in the Political Reform Act of 1974. Id. at 37, citing Cal.
Gov. Code § 81000 et seq. Similar to the Ordinance at issue here, under the Policial Reform Act,
lobbyists were required to register and report all payments for lobbying activities. Similar to
plaintiff here, advocates against these regulations argued that because free speech and petition
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 5 of 8
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
rights were implicated, the court must apply strict scrutiny. However, with respect to the
registration and reporting requirements, the Supreme Court found that these provisions were not
“direct limitations on the right to petition for redress of grievances.” Id. at 47. The Court
reasoned that the burden created by the registration and reporting requirements did not
substantially interfere with the lobbyist’s ability to “raise his voice,” and the “[w]hile the burden
of disclosure might be substantial for those engaging in extensive lobbying activities, the burden is
not as great when viewed in the context of the total activities engaged in.” Id. The Court further
held that “the burden placed on employers of lobbyists to disclose their expenditures for lobbying
purposes, and the action thereby sought to be influenced, does not constitute a substantial
interference with the exercise of petition and speech rights.” Id. at 48.
The application of the less stringent exacting scrutiny review has also been applied by the
United States Supreme Court in Citizens United with regard to disclaimer and disclosure
requirements. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 366 (2010). This
“exacting scrutiny” requires a substantial relationship between the disclosure requirements and a
“sufficiently important” governmental interest. Id. at 366-67. The Court finds that the disclosure
and reporting requirements imposed by the Ordinance on business or organizational lobbyists and
expenditure lobbyists does not directly regulate who can speak or what they can say. Although the
Ordinance creates a burden, this burden does not act as a prohibition. And, further, the disclosure
and reporting requirements bear a substantial relationship to a sufficiently important government
interest.
In United States v. Hariss, the Supreme Court found that Congress possesses a valid
interest in determining who seeks to influence legislation. 346 U.S. 612, 625-26 (1954). The
California Supreme Court also has recognized the existence of the public interest “in determining
the source of voices seeking to influence legislation” and has enforced regulations which
“reasonably require the professional lobbyist to identify himself and disclose his lobbying
activities.” Fair Political Practices, 25 Cal.3d at 47. The stated purpose of the Cupertino
Ordinance is to “foster[] confidence in government officials by making government decision-
making more transparent to the public” and to “ensure that City Officials are made aware of the
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 6 of 8
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
interests that Lobbyists represent when the officials are lobbied.” CMC § 2.100.010. In
accordance with these principals, this Court finds that there is a vital government interest in
providing disclosure to the public of individuals who seek to influence legislation through the
expenditure of money. See e.g., Smith v. City of San Jose, 2013 WL 6665712, at *7 (Cal. Ct. App.
Dec. 17, 2013). “Transparency in the electoral process, and the dissemination of information to
decisionmakers has long been recognized and acknowledged by both the United States Supreme
Court and the California Supreme Court as important governmental interests.” Id. This Court
similarly finds that “there is a vital government interest in providing information to the public
about those who seek to influence local government action through lobbying activity.” Id. There
is no distinction between providing such transparency with respect to federal or state officials and
the same government interest in providing transparency to city officials and local lawmakers. See
id.
Having found that there exists a sufficiently important governmental interest, the Court
must address whether the lobbying regulations are sufficiently related to this interest. In this
analysis, the Court must consider the extent of the burden placed on First Amendment rights.
Buckley v. Valeo, 424 U.S. 1, 68 (2003). Here, the Court finds that the Ordinance does not restrict
the amount of lobbying a lobbyist may engage in or how much any particular lobbyist may spend.
The Ordinance does not differentiate among or restrict speech according to speaker or content.
Nothing in the Ordinance reflects a “preference for the substance of what the favored speakers
have to say (or aversion to what the disfavored speakers have to say).” Turner Board. Sys. v.
FCC, 512 U.S. 622, 657-58 (1994). The reporting and disclosure requirements do not
“substantially interfere with the ability of the lobbyist to raise his voice. While the burden of
disclosure may be substantial for those engaged in extensive lobbying activities, the burden is not
great when viewed in the context of the total activities engaged in.” Fair Political Practices, 25
Cal.3d at 47. It is well settled that lobbyist registration laws like the Ordinance are supported by
an important governmental interest in transparency. See, e.g., Citizens United, 558 U.S. at 369;
Hariss, 347 U.S. at 626.
Further, the extensive list of exemptions provides exceptions to the regulatory scheme for
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 7 of 8
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Un
i
t
e
d
S
t
a
t
e
s
D
i
s
t
r
i
c
t
C
o
u
r
t
No
r
t
h
e
r
n
D
i
s
t
r
i
c
t
o
f
C
a
l
i
f
o
r
n
i
a
some. For example, there is an exemption for those who are purely engaged in media, meaning
newspapers or other regularly published periodicals, when limited to “the ordinary course of news
gathering or editorial activity, as carried out by members of the press.” CMC 2.100.030(p)(2).
This exemption clearly covers the one cited instance of purported self-censorship by Plaintiff of its
newsletter, Cupertino Matters. Further exempted from the requirements of the Ordinance are
those “whose communications regarding any Legislative Action or Administrative Action are
solely limited to appearing at or submitting testimony for any public meeting held by the City or
any of its agencies … as long as the communications thereto are public records available for
public review.” CMC 2.100.030(p)(4).
The Court finds that the challenged provisions of the Ordinance satisfy the appropriate
exacting scrutiny and are not facially overbroad. Accordingly, Plaintiff has failed to state a facial
challenge to the Ordinance. Although these are questions of law and it is unlikely that Plaintiffs
will be able to plead additional facts that alter the Court’s analysis, in the interests of justice, the
Court GRANTS Cupertino’s motion to dismiss with leave to amend.
CONCLUSION
For the foregoing reasons, the Court GRANTS Cupertino’s motion to dismiss with leave to
amend. If it so elects, Plaintiff may file an amended complaint, in compliance with this Order, by
no later than June 2, 2023. In the absence of such a filing, the Court shall dismiss this matter with
prejudice.
IT IS SO ORDERED.
Dated: May 1, 2023
______________________________________
JEFFREY S. WHITE
United States District Judge
Case 4:22-cv-04189-JSW Document 41 Filed 05/01/23 Page 8 of 8
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Jamie L. Lucia (SBN 246163) jlucia@steptoe.com Amanda C. Schwartz (SBN 307522) aschwartz@steptoe.com STEPTOE & JOHNSON LLP 1 Market Plaza Steuart Tower, Suite 1070 San Francisco, CA 94105 Telephone: (415) 365-6700 Facsimile: (415) 365-6678 Michael Dockterman (pro hac vice to be filed) mdockterman@steptoe.com STEPTOE & JOHNSON LLP 227 West Monroe Street, Suite 4700 Chicago, IL 60606 Telephone: (312) 577-1300 Attorneys for Plaintiffs LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE James M. Wagstaffe (95535) Michael von Loewenfeldt (178665) mvl@wvbrlaw.com WAGSTAFFE, VON LOEWENFELDT, BUSCH & RADWICK LLP 100 Pine Street, Suite 2250 San Francisco, CA 94111 Telephone: (415) 357-8900; Fax: (415) 357-8910 Attorneys for Defendants
CITY OF CUPERTINO, DARCY PAUL, DIANE
THOMPSON, KIRSTEN SQUARCIA, CHRIS
JENSEN, LIANG CHAO, KITTY MOORE,
HUNG WEI, and JOHN WILLEY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE, Plaintiff, v. CITY OF CUPERTINO, et al. Defendants.
Case No. 22-cv-04189 STIPULATION AND [PROPOSED] ORDER RE EXTENSION OF TIME TO AMEND COMPLAINT
Case 4:22-cv-04189-JSW Document 42 Filed 05/16/23 Page 1 of 4
- 1 -
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED REQUEST FOR EXTENSION OF TIME
WHEREAS on May 1, 2023 the Court granted defendants motion to dismiss;
WHEREAS the Court’s May 1, 2023 Order grants Plaintiff League of Women Voters of
Cupertino-Sunnyvale (“LWVCS”) until June 2, 2023 to file an amended complaint in
compliance with the Order;
WHEREAS the parties have begun discussing means by which to avoid the necessity of
further proceedings in this Court or the Court of Appeals;
WHEREAS the City’s fiscal year, legislative calendar, and the summer schedules of
relevant clients and attorneys will cause those discussions to proceed more slowly than they
might at other times in the year; and
WHEREAS the parties desire to fully explore their ongoing discussions without the cost
or pressure of litigation or appellate deadlines’
THEREFORE, LWVCS and Defendants City of Cupertino, Darcy Paul, Diane
Thompson, Kirsten Squarcia, Chris Jensen, Liang Chao, Kitty Moore, Hung Wei, and John
Willey (“Defendants”) stipulate that the Court should grant Plaintiff until September 29, 2023 to
file (i) an amended complaint, or (ii) a motion to reconsider the May 1, 2023 Order, in this
action.
Plaintiff and Defendants further stipulate that neither party shall engage in any discovery
prior to the filing, if any, of an amended complaint.
IT IS SO STIPULATED.
DATED: May 16, 2023 STEPTOE & JOHNSON LLP
By: /s/ Jamie L. Lucia
Jamie L. Lucia (SBN 246163)
jlucia@steptoe.com
Michael Dockterman (pro hac vice)
mdockterman@steptoe.com
Attorneys for Plaintiff
LEAGUE OF WOMEN VOTERS OF
CUPERTINO-SUNNYVALE
Case 4:22-cv-04189-JSW Document 42 Filed 05/16/23 Page 2 of 4
- 2 -
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DATED: May 16, 2023 WAGSTAFFE, VON LOEWENFELDT,
BUSCH & RADWICK LLP
By _/s/ Michael von Loewenfeldt_____________
Michael von Loewenfeldt
Attorneys for Defendants CITY OF CUPERTINO, DARCY PAUL, DIANE
THOMPSON, KIRSTEN SQUARCIA, CHRIS
JENSEN, LIANG CHAO, KITTY MOORE,
HUNG WEI, and JOHN WILLEY
ATTESTATION
I, Jamie L. Lucia, am the ECF User whose ID and password is being used to file this
Stipulation for Extension of Time to Respond to Complaint. I attest that, pursuant to Civil L.R.
5-4.3.4, concurrence in the filing of this document has been obtained from all counsel. I declare
under penalty of perjury that the foregoing is true and correct.
/s/ Jamie L. Lucia
Jamie L. Lucia
Case 4:22-cv-04189-JSW Document 42 Filed 05/16/23 Page 3 of 4
- 3 -
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER
Pursuant to Stipulation, and good cause appearing therefore,
IT IS HEREBY ORDERED THAT the deadline set in this Court’s May 1, 2023 order for
Plaintiff to file an amended complaint is extended to September 29, 2023.
IT IS SO ORDERED.
Dated: May __, 2023 ____________________________________
JEFFREY S. WHITE
United States District Judge
Case 4:22-cv-04189-JSW Document 42 Filed 05/16/23 Page 4 of 4
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Jamie L. Lucia (SBN 246163) jlucia@steptoe.com Amanda C. Schwartz (SBN 307522) aschwartz@steptoe.com STEPTOE & JOHNSON LLP 1 Market Plaza Steuart Tower, Suite 1070 San Francisco, CA 94105 Telephone: (415) 365-6700 Facsimile: (415) 365-6678 Michael Dockterman (pro hac vice to be filed) mdockterman@steptoe.com STEPTOE & JOHNSON LLP 227 West Monroe Street, Suite 4700 Chicago, IL 60606 Telephone: (312) 577-1300 Attorneys for Plaintiffs LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE James M. Wagstaffe (95535) Michael von Loewenfeldt (178665) mvl@wvbrlaw.com WAGSTAFFE, VON LOEWENFELDT, BUSCH & RADWICK LLP 100 Pine Street, Suite 2250 San Francisco, CA 94111 Telephone: (415) 357-8900; Fax: (415) 357-8910 Attorneys for Defendants
CITY OF CUPERTINO, DARCY PAUL, DIANE
THOMPSON, KIRSTEN SQUARCIA, CHRIS
JENSEN, LIANG CHAO, KITTY MOORE,
HUNG WEI, and JOHN WILLEY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE, Plaintiff, v. CITY OF CUPERTINO, et al. Defendants.
Case No. 22-cv-04189 STIPULATION AND [PROPOSED] ORDER RE EXTENSION OF TIME TO AMEND COMPLAINT
Case 4:22-cv-04189-JSW Document 43 Filed 05/25/23 Page 1 of 4
- 1 -
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED REQUEST FOR EXTENSION OF TIME
WHEREAS on May 1, 2023 the Court granted defendants motion to dismiss;
WHEREAS the Court’s May 1, 2023 Order grants Plaintiff League of Women Voters of
Cupertino-Sunnyvale (“LWVCS”) until June 2, 2023 to file an amended complaint in
compliance with the Order;
WHEREAS the parties have begun discussing means by which to avoid the necessity of
further proceedings in this Court or the Court of Appeals;
WHEREAS the City’s fiscal year, legislative calendar, and the summer schedules of
relevant clients and attorneys will cause those discussions to proceed more slowly than they
might at other times in the year; and
WHEREAS the parties desire to fully explore their ongoing discussions without the cost
or pressure of litigation or appellate deadlines’
THEREFORE, LWVCS and Defendants City of Cupertino, Darcy Paul, Diane
Thompson, Kirsten Squarcia, Chris Jensen, Liang Chao, Kitty Moore, Hung Wei, and John
Willey (“Defendants”) stipulate that the Court should grant Plaintiff until September 29, 2023 to
file (i) an amended complaint, or (ii) a motion to reconsider the May 1, 2023 Order, in this
action.
Plaintiff and Defendants further stipulate that neither party shall engage in any discovery
prior to the filing, if any, of an amended complaint.
IT IS SO STIPULATED.
DATED: May 16, 2023 STEPTOE & JOHNSON LLP
By: /s/ Jamie L. Lucia
Jamie L. Lucia (SBN 246163)
jlucia@steptoe.com
Michael Dockterman (pro hac vice)
mdockterman@steptoe.com
Attorneys for Plaintiff
LEAGUE OF WOMEN VOTERS OF
CUPERTINO-SUNNYVALE
Case 4:22-cv-04189-JSW Document 43 Filed 05/25/23 Page 2 of 4
- 2 -
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DATED: May 16, 2023 WAGSTAFFE, VON LOEWENFELDT,
BUSCH & RADWICK LLP
By _/s/ Michael von Loewenfeldt_____________
Michael von Loewenfeldt
Attorneys for Defendants CITY OF CUPERTINO, DARCY PAUL, DIANE
THOMPSON, KIRSTEN SQUARCIA, CHRIS
JENSEN, LIANG CHAO, KITTY MOORE,
HUNG WEI, and JOHN WILLEY
ATTESTATION
I, Jamie L. Lucia, am the ECF User whose ID and password is being used to file this
Stipulation for Extension of Time to Respond to Complaint. I attest that, pursuant to Civil L.R.
5-4.3.4, concurrence in the filing of this document has been obtained from all counsel. I declare
under penalty of perjury that the foregoing is true and correct.
/s/ Jamie L. Lucia
Jamie L. Lucia
Case 4:22-cv-04189-JSW Document 43 Filed 05/25/23 Page 3 of 4
- 3 -
Stip. & [Proposed] Order Re Time to Amend Complaint
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER
Pursuant to Stipulation, and good cause appearing therefore,
IT IS HEREBY ORDERED THAT the deadline set in this Court’s May 1, 2023 order for
Plaintiff to file an amended complaint is extended to September 29, 2023.
IT IS SO ORDERED.
Dated: May __, 2023 ____________________________________
JEFFREY S. WHITE
United States District Judge
25
Case 4:22-cv-04189-JSW Document 43 Filed 05/25/23 Page 4 of 4