Renne v. Geary/Dissent Marshall

by Byron White

Justice MARSHALL, with whom Justice BLACKMUN joins, dissenting.

Article II, § 6(b) of the California Constitution provides that "[n]o political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office." In a form of action extremely familiar to the federal courts, see, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), respondents brought a pre-enforcement challenge to § 6(b), seeking a declaration that § 6(b) violates the First Amendment and an injunction against its application to candidate statements published in official "voter pamphlets." We granted certiorari in this case, 498 U.S. ----, 111 S.Ct. 750, 112 L.Ed.2d 771 (1991), to review the decision of the Ninth Circuit, sitting en banc, that § 6(b) violates the First Amendment.

The majority vacates the judgment below and remands the case with instructions to dismiss. It does so not because it disagrees with the merits of respondents' constitutional claim; indeed, the majority never reaches the merits. Rather, the majority finds a threshold defect in the "justiciability" of this case that did not occur to any of the courts below or to any party in more than three years of prior proceedings. Federal courts, of course, are free to find, on their own motion, defects in jurisdiction at any stage in a suit. But the majority's conclusion that respondents have failed to demonstrate a "live controversy ripe for resolution by the federal courts," ante, at 315, is simply not supported by the record of this case or by the teachings of our precedents. Because I cannot accept either the views expressed in, or the result reached by, the majority's opinion, and because I would affirm the decision of the Ninth Circuit on the merits, I dissent.

* I consider first the question of justiciability. Respondents are 10 registered California voters, including a chairman and certain individual members of the local Democratic and Republican Party central committees. ^[1] Respondents' complaint alleges that petitioner municipal officials relied upon § 6(b) to adopt a policy of deleting "all references . . . to [party] endorsement[s]" from candidate statements submitted for inclusion in official "voter pamphlets" and that petitioners have announced their intention to make such redactions in future elections. App. 5, ¶ 38. The existence of the redaction policy is expressly admitted by petitioners in their answer. See id., at 9, ¶ XIV. Respondents maintain that this policy frustrates the "desire [of respondent committee members] . . . to publicize [party] endorsements" and the "desire [of all respondents] to read endorsements" in the voter pamphlets. Id., at 4-5, &Par; 36-37. The complaint prays for a declaration that § 6(b) violates the First Amendment and for an injunction against petitioners' continued enforcement of § 6(b) by means of the redaction policy. Id., at 6, &Par; 3, 6.

I would have thought it quite obvious that these allegations demonstrate a justiciable controversy. In cases in precisely the same posture as this one, we have repeatedly entertained pre-enforcement challenges to laws restricting election-related speech. See, e.g., Buckley v. Valeo, supra, 424 U.S., at 12, 96 S.Ct., at 631; Eu v. San Francisco County Democratic Central Committee, supra; see also Tashjian v. Republican Party of Connecticut, supra. Indeed, standing and ripeness arguments nearly identical to those canvassed by the majority today were expressly considered and rejected by the Ninth Circuit in Eu, see San Francisco County Democratic Central Committee v. Eu, 826 F.2d 814, 821-824 (1987), which no doubt explains why the lower courts and the parties did not even bother to return to these issues in this case.

Essentially ignoring the wealth of relevant case law, the majority proceeds as if the justiciability questions presented by this case-questions of standing and ripeness-were novel and unresolved. On the issue of standing, the majority purports to find "serious questions" concerning respondents' entitlement to challenge § 6(b). Ante, at 318. Since mere "questions" about standing cannot sustain the dismissal of a suit, one wonders why the majority offers dicta of this kind. As it turns out, the majority uses this opportunity to espouse a novel basis for denying a party standing; the profferred theory is both illogical and unsupported by any precedent. As for ripeness, which the majority finds to be the dispositive jurisdictional defect, today's decision erroneously concludes that there is no "live dispute involving the actual or threatened application of § 6(b) to bar particular speech." Ante, at 320. I am persuaded by neither the majority's "doubt" whether respondents have standing, ante, at 319, nor the majority's certainty that this case is unripe.

In order to demonstrate standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). In my view, "careful . . . examination of [the] complain[t]," id., at 752, 104 S.Ct., at 3325, makes it clear that these requirements are met in this case. All of the individual respondents are registered voters in California. See App. 2, ¶ 1. Moreover, all allege that petitioners' redaction policy has injured them in that capacity by restricting election-related speech that respondents wish to consume. See id., at 5, &Par; 37-38. As the majority acknowledges, see ante, at 319, our cases recognize that "listeners" suffer a cognizable First Amendment injury when the State restricts speech for which they were the intended audience. See, e.g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757, 96 S.Ct. 1817, 1822-1823, 48 L.Ed.2d 346 (1976); see also San Francisco County Democratic Central Committee v. Eu, supra, (applying "listener" standing in election-law setting), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). Nor can there be any doubt that the injury that respondents allege as listeners of election speech is "fairly traceable" to petitioners' redaction policy. Finally, this injury would, in my view, be redressed by the relief requested by respondents, for an injunction against the redaction policy would prevent petitioners from continuing to block respondents' access to committee endorsements in voter pamphlets.

The majority's "doubt" about respondents' entitlement to proceed on a listener-standing theory ^[2] relates wholly to redressability. The majority notes that a provision in the California Election Code bars inclusion of a candidate's party affiliation in the statement submitted for publication in a voter pamphlet. See Cal.Elec.Code Ann. § 10012 (West 1977 and Supp.1991). The majority speculates that, if respondents succeed in invalidating § 6(b), petitioners might henceforth rely on § 10012 as a basis for continuing their policy of deleting endorsements. See ante, at 319. Articulating a novel theory of standing, the majority reasons that the registrar's possible reliance upon § 10012 to implement the same policy currently justified by reference to § 6(b) would defeat the redressability of respondents' listener injury.

In my view, this theory is not only foreign to our case law ^[3] but is also clearly wrong. If the existence of overlapping laws could defeat redressability, legislatures would simply pass "backup" laws for all potentially unconstitutional measures. Thereafter, whenever an aggrieved party brought suit challenging the State's infringement of his constitutional rights under color of one law, the State could advert to the existence of the previously unrelied-upon backup law as an alternative basis for continuing its unconstitutional policy, thereby defeating the aggrieved party's standing.

I cannot believe that Article III contemplates such an absurd result. Obviously, if respondents succeed on the merits of their constitutional challenge to § 6(b), the immediate effect will be to permit candidates to include endorsements in the voter pamphlet. This is so because no other law (and no other interpretation of a law that petitioners have formally announced) purports to bar inclusion of such endorsements. Perhaps, as the majority speculates, see ante, at 319, petitioners will subsequently attempt to reinstate their redaction policy under some legal authority other than § 6(b). But whether or not they ultimately do so has no consequence here. Just as a plaintiff cannot satisfy the redressability component of standing by showing that there is only a possibility that a defendant will respond to a court judgment by ameliorating the plaintiff's injury, see Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 43, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976), so a defendant cannot defeat the plaintiff's standing to seek a favorable judgment simply by alleging a possibility that the defendant may subsequently act to undermine that judgment's ameliorating effect.

Under our precedents, the question whether a pre-enforcement challenge to a law is ripe "is decided on a case-by-case basis, by considering [1] the likelihood that the complainant will disobey the law, [2] the certainty that such disobedience will take a particular form, [3] any present injury occasioned by the threat of [enforcement], and [4] the likelihood that [enforcement efforts] will actually ensue." Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, n. 29, 95 S.Ct. 335, 358, n. 29, 42 L.Ed.2d 320 (1974). Like the pre-enforcement challenges in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); and Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), this case easily satisfies these requirements.

The record clearly demonstrates the likelihood of both future disobedience of § 6(b) and future enforcement of that provision by way of petitioners' redaction policy. As even the majority acknowledges, see ante, at 321, some respondent central committee members have expressed an intention to continue endorsement of candidates for nonpartisan offices. Indeed, the chairman of one committee, in addition to identifying the specific candidates that the committee has endorsed in past elections, states in an affidavit that it is the committee's "plan and intention . . . to endorse candidates for nonpartisan offices in as many future elections as possible." App. 15. Likewise, as the majority acknowledges, see ante, at 322, petitioners expressly admit in their answer to the complaint that they intend to enforce § 6(b) by deleting all references to party endorsements from candidate statements submitted for inclusion in official voter pamphlets. See App. 9, ¶ XIV. Of course, petitioners will have occasion to enforce § 6(b) in this manner only if candidates seek to include such endorsements in their statements. Respondents allege and petitioners concede, however, that candidates have sought to advert to such endorsements in their statements in the past and that petitioners have always deleted them from the voter pamphlets. Id., at 5, ¶ 38; id., at 9, ¶ XIV. When combined with the clearly expressed intentions of the parties, these allegations of "past wrongs" furnish sufficient evidence of "a real and immediate threat of repeated injury." O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974).

It is also clear that respondents have alleged sufficient "present injury occasioned by the threat of [future enforcement]." Regional Rail Reorganization Act Cases, supra, 419 U.S., at 143, n. 29, 95 S.Ct., at 358, n. 29. Obviously, the reason that parties bring pre-enforcement challenges to laws that restrict election-related speech is to avoid the risk that a court will be unable to dispose of a postenforcement challenge quickly enough for the challenging parties to participate in a scheduled election. Buckley v. Valeo, supra. Our mootness jurisprudence responds to this dilemma by applying the capable-of-repetition-yet-evading-review doctrine to preserve the justiciability of an election-law challenge even after the election at issue has taken place. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 784, n. 3, 103 S.Ct. 1564, 1567, n. 3, 75 L.Ed.2d 547 (1983); First National Bank of Boston v. Bellotti, 435 U.S. 765, 774-775, 98 S.Ct. 1407, 1414-1415, 55 L.Ed.2d 707 (1978); Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1282, n. 8, 39 L.Ed.2d 714 (1974); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). But insofar as the purpose of entertaining a case in that mootness posture is not to remedy past wrongs but rather to "simplif[y] future challenges [and] thus increas[e] the likelihood that timely filed cases can be adjudicated before an election is held," Storer v. Brown, supra, 415 U.S., at 737, n. 8, 94 S.Ct., at 1283, n. 8 (emphasis added), it would be quite anomalous if ripeness doctrine were less solicitous of the interests of a party who brings a pre-enforcement challenge.

For this reason, it is surely irrelevant that the record does not demonstrate an "imminent application of § 6(b)." Ante, at 322. So long as the plaintiff credibly alleges that he plans to disobey an election law and that government officials plan to enforce it against him, he should not be forced to defer initiation of suit until the election is so "imminent" that it may come and go before his challenge is adjudicated. See Regional Rail Reorganization Act Cases, supra, 419 U.S., at 143, 95 S.Ct., at 358 (" 'One does not have to await the consummation of threatened injury to obtain preventive relief,' " quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). Indeed, in Buckley v. Valeo, supra, we held a pre-enforcement challenge to be justiciable even though the case was filed in the District Court nearly two years before the next scheduled national election. See id., 424 U.S., at 11-12, 96 S.Ct., at 630-631. Similarly, nothing in Eu v. San Francisco County Democratic Central Committee, supra, and Tashjian v. Republican Party of Connecticut, supra, suggests that elections were "imminent" when those cases were filed.

Most of the majority's concerns about the ripeness of this dispute arise from the majority's uncertainty as to the "particular form" of future violations of § 6(b). See Regional Rail Reorganization Act Cases, supra, 419 U.S., at 143, n. 29, 95 S.Ct., at 358, n. 29. The majority notes, for example, that "[r]espondents do not allege an intention to endorse any particular candidate." Ante, at 321. Similarly, the majority objects that "[w]e do not know the nature of the endorsement [that the parties will next make], how it would be publicized, or the precise language petitioners might delete from the voter pamphlet." Ante, at 322.

In my view, these uncertainties do not detract in the slightest from the ripeness of this case. The form of future disobedience can only matter in ripeness analysis to the extent that it bears on the merits of a plaintiff's pre-enforcement challenge. The majority never bothers to explain how the identity of the endorsed candidates, the "nature" of the endorsement, the mode of publicity (outside of candidate statements submitted for inclusion in voter pamphlets), or the precise language that petitioners might delete from the pamphlets affects the merits of respondents' challenge. Indeed, it is quite apparent that none of these questions is relevant. In Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), we struck down a similar California provision that barred party endorsements in primary elections for partisan offices. See id., at 222-229, 109 S.Ct., at 1019-1024. Nothing in our analysis turned on the identity of the candidates to be endorsed, the nature or precise language of the endorsements, or the mode of publicizing the endorsements. Similarly, here we can dispose of respondents' challenge to § 6(b) knowing simply that party central committees will continue to make endorsements of candidates for nonpartisan offices and that petitioners will continue to redact those endorsements from the voter pamphlets. ^[4]

Because I conclude that the controversy before us is justiciable, I would reach the merits of respondents' challenge. In my view, it is clear that § 6(b) violates the First Amendment.

* At the outset, it is necessary to be more precise about the nature of respondents' challenge. In effect, respondents' complaint states two possible First Amendment theories. The first is that § 6(b), as that provision has been applied to delete endorsements from voter pamphlets, violates the First Amendment. See App. 4-5, &Par; 36-39(a). The second is that § 6(b) on its face violates the First Amendment because it "purports to outlaw actions by county central committees . . . to endorse, support or oppose candidates for city or county offices." Id., at 4, ¶ 35. This second theory can be understood as an overbreadth challenge: that is, a claim that regardless of whether § 6(b) violates the First Amendment in its peripheral effect of excluding references to party endorsements from candidates' statements, § 6(b) is unconstitutional in its primary effect of barring parties and party committees from making endorsements. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 965-966, 104 S.Ct. 2839, 2851-2852, 81 L.Ed.2d 786 (1984) (party who suffers unwanted but constitutionally permissible effect of a law may nonetheless succeed in voiding that law by showing that "there is no core of easily identifiable and constitutionally proscribable conduct that the [provision] prohibits"). ^[5]

As the majority notes, it is this Court's "usual . . . practice . . . [not] to proceed to an overbreadth issue . . . before it is determined that the statute would be valid as applied." Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-485, 109 S.Ct. 3028, 3037-3038, 106 L.Ed.2d 388 (1989). This is so because "the overbreadth question is ordinarily more difficult to resolve than the as-applied, since it requires determination whether the statute's overreach is substantial . . . 'judged in relation to the statute's plainly legitimate sweep,' . . . and therefore requires consideration of many more applications than those immediately before the court." Id., at 485, 109 S.Ct., at 3037 (emphasis in original), quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973).

Nonetheless, the rule that a court should consider as-applied challenges before overbreadth challenges is not absolute. See, e.g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 573-574, 107 S.Ct. 2568, 2571-2572, 96 L.Ed.2d 500 (1987) (considering overbreadth challenge first); Houston v. Hill, 482 U.S. 451, 458-467, 107 S.Ct. 2502, 2507-2513, 96 L.Ed.2d 398 (1987) (same). Rather, the rule represents one prudential consideration among many in determining the order in which to evaluate particular constitutional challenges.

In my opinion, competing prudential factors clearly support considering respondents' overbreadth challenge first in this case. Unlike the situation in Fox, the as-applied challenge here is actually more difficult to resolve than is the overbreadth challenge. Insofar as they attack petitioners' redaction policy as unconstitutional, respondents must be understood to argue that they have a right to receive particular messages by means of official voter pamphlets or a right to communicate their own messages by that means. Either way, this argument would require us to determine the "public forum" status of the voter pamphlets, cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 48, 103 S.Ct. 948, 956, 74 L.Ed.2d 794 (1983), an issue on which the law is unsettled, see generally L. Tribe, American Constitutional Law § 12-24, p. 987 (2d ed. 1988) (noting "blurriness . . . of the categories within the public forum classification"). By contrast, respondents' overbreadth challenge is easily assessed. In the first place, the application of § 6(b) to party speech that "endorse[s], support[s], or oppose[s] a[ny] candidate for nonpartisan office" clearly is "substantial" when compared with § 6(b)'s only alleged "legitimate" application, namely, the redaction of voter pamphlets. Moreover, the constitutional doctrine relevant to § 6(b)'s restriction of party speech is well settled. See Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). Rather than undertaking to determine what sort of "public forum" voter pamphlets might constitute-a finding that could have broad ramifications, see, e.g., Patterson v. Board of Supervisors of City and County of San Francisco, 202 Cal.App.3d 22, 248 Cal.Rptr. 253 (1988) (suit challenging constitutionality of §§ 3795 and 5025 of California Election Code, authorizing deletions from arguments about ballot propositions in the voter pamphlet)-a court should, if possible, resolve this constitutional challenge by well-settled doctrine. See, e.g., Webster v. Reproductive Health Services, 492 U.S. 490, 525-526, 109 S.Ct. 3040, 3060-3061, 106 L.Ed.2d 410 (1989) (O'CONNOR, J., concurring in part and concurring in judgment).

In addition, both the District Court and the Court of Appeals disposed of respondents' challenge on overbreadth grounds, and that is the only theory briefed by the parties in this Court. Because the as-applied component of respondents' challenge has not been fully aired in these proceedings, resolving the case on that basis presents a significant risk of error. For these reasons, I turn to respondents' overbreadth challenge, which I find to be dispositive of this case. ^[6]

Conceived of as an overbreadth challenge, respondents' First Amendment attack upon § 6(b) closely resembles the issue presented in Eu v. San Francisco County Democratic Central Committee, supra. As I have noted, Eu struck down on First Amendment grounds a California law that prohibited the party central committees from " 'endors[ing], support[ing], or oppos[ing]' " any candidate in primary elections for partisan offices. Id., 489 U.S., at 217, 109 S.Ct., at 1017. We concluded in Eu that this "ban directly affect[ed] speech which 'is at the core of our electoral process and of the First Amendment freedoms.' " Id., at 222-223, 109 S.Ct., at 1019-1020, quoting William v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968). We also determined that this prohibition was unsupported by any legitimate compelling state interest. The State defended the endorsement ban on the ground that it was necessary to prevent voter "confusion and undue [party] influence." See 489 U.S., at 228, 109 S.Ct., at 1023. Properly understood, this claim amounted to no more than the proposition that the State could protect voters from being exposed to information on which they might rationally rely, a " 'highly paternalistic' " function to which the State could not legitimately lay claim. Id., at 223, 109 S.Ct., at 1020, quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S., at 770, 96 S.Ct., at 1829; see 489 U.S., at 228-229, 109 S.Ct., at 1023-1024.

In my view, this case is directly controlled by Eu. As in Eu, there can be no question here that the endorsements that § 6(b) purports to make unlawful constitute core political speech. And, as in Eu, this prohibition is unsupported by any legitimate compelling state interest. Petitioners assert that § 6(b) advances a compelling state interest because it assures that "local government and judges in California are . . . controlled by the people [rather than] by those who run political parties." Brief for Petitioners 7. The only kind of "control" that § 6(b) seeks to prohibit, however, is that which "those who run political parties" are able to exert over voters through issuing party endorsements. In effect, then, petitioners are arguing that the State has an interest in protecting "the people" from their own susceptibility to being influenced by political speech. This is the very sort of paternalism that we deemed illegitimate in Eu.

Drawing on our decision in Austin v. Michigan Chamber of Commerce, 494 U.S. ----, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), petitioners try to repackage the State's concern to protect voters from themselves as an interest in avoiding "corruption" of the electoral process. The law that was at issue in Austin barred corporations from making political expenditures from their corporate treasuries in favor of, or in opposition to, political candidates. We upheld the constitutionality of that law, finding that a State could legitimately prohibit "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Id., at ----, 110 S.Ct., at 1397. Petitioners argue that California similarly should be able to prohibit political parties from using their special place in the political process to exercise a disruptive effect upon the election of nonpartisan office holders.

Petitioners' reliance on Austin is unavailing. The political activity that § 6(b) limits in this case is not the expenditure of money to further a viewpoint but merely the announcement of that viewpoint in the form of an endorsement. It is difficult to imagine how a political party's announcement of its view about a candidate could exert an influence on voters that has "little or no correlation to the public's support for the [party's] political ideas." On the contrary, whatever influence a party wields in expressing its views results directly from the trust that it has acquired among voters.

Thus, whereas the Austin Court worried that corporations might dominate elections with capital they had only accumulated by dint of " 'economically motivated decisions of investors and customers,' " id., at ----, 110 S.Ct., at 1403, the party endorsements in this case represent an expenditure of political capital accumulated through past voter support. And, whereas the special benefits conferred by state law in Austin "enhance[d]" the corporations' "ability to attract capital," id., at ----, 110 S.Ct., at 1397, the benefits California confers upon parties-e.g., permitting taxpayers to make voluntary contributions to parties on their tax returns-should have little effect on the parties' acquisition of political capital. In sum, the prospect that voters might be persuaded by party endorsements is not a corruption of the democratic political process; it is the democratic political process.

In the final analysis, § 6(b) and the arguments that petitioners advance in support of it reflect an ambivalence about the democratic process itself. The possibility that judges and other elective nonpartisan office holders will fall under the influence of political parties is inherent in an electoral system in which voters look to others, including parties, for information relevant to exercise of the franchise. Of course, it is always an option for the State to end the influence of the parties by making these offices appointive rather than elective positions. But the greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process-voters, candidates, and parties-the First Amendment rights that attach to their roles.

Because § 6(b) clearly fails to meet this standard, and because I believe that the lower courts properly determined that they were in a position to reach this conclusion now, I would affirm the judgment of the Ninth Circuit. Consequently, I dissent.

Notes