City Council hopeful takes case to Supreme Court
Former City Council candidate Jerry Rubin is taking his battle to be recognized on local election ballots as a “Peace Activist” to the nation’s highest court.
James Fosbinder, a First Amendment attorney who is working pro bono on behalf of Rubin, said Tuesday he plans to file a petition asking the U.S. Supreme Court to hear the case.
Rubin suffered a setback last week when the 9th U.S. Circuit Court of Appeals refused to rehear his case, solidifying a three-judge panel’s ruling last October that upheld a previous dismissal of Rubin’s lawsuit by a U.S. District judge.
A 9th Circuit judge last year requested the three-judge panel’s unanimous decision be reviewed by the full court, but that request was denied when it failed to garner the support of the majority of 9th Circuit judges.
Fosbinder, whose practice is based in Hawaii, said Tuesday he was encouraged by the earlier request for a review, even though it failed. The request was a “one in a 1,000” thing for a 9th Circuit judge to do, Fosbinder said.
Still, Fosbinder expressed reserved optimism about Rubin’s prospects of being heard in the nation’s highest court.
“The odds statistically are that they’ll reject (our petition),” Fosbinder said. “On the other hand, one of the judges in the 9th Circuit felt it was important enough to look at it again on their own (without us requesting it).”
Rubin originally sued the city in 2000 during his first bid for a Santa Monica City Council seat after the city denied his request to be listed as a “Peace Activist” on the ballot.
In 2002, Rubin’s name ran on the ballot without a designation. He withdrew just days before the election, citing his battle with depression. Rubin has not decided whether he will run in 2004 and said Tuesday the designation determination likely will not have a strong effect one way or the other.
City Clerk Maria Stewart, who has been working on the case, did not return phone calls Tuesday.
However, she has said in the past that state election code bars candidates from using the word “activist” in the professional designation that is printed under their names on the ballot.
But Rubin has maintained that it is his First Amendment right to do just that.
“That’s what I do,” Rubin said. “That’s what I consider my occupation, my lifelong vocation. Not only is (being an) activist a job, it’s a damn hard job.”
Rubin said Stewart came back with a series of alternatives — peace promoter and peace organizer, among others — that fell short of describing his professional pursuits.
“All you have to do is look in my closet to see I’m not an organizer,” Rubin joked. “It’d be false advertising.”
At issue in the trial is whether the city’s ballot can be deemed a “limited public forum,” where free speech is protected by the First Amendment. If it is, Fosbinder said Rubin will almost certainly win the case.
But Fosbinder said Stewart doesn’t consider the ballot a limited public forum.
“She’s arguing it’s a little mechanical thing where you put your job down,” said Fosbinder, who added that attorneys outside of California couldn’t believe the city would forbid such a designation. “They have this bizarre system of arbitrarily allowing or not allowing you to designate your own occupation.
“They have this bizarre system of arbitrarily allowing or not allowing you to designate your own occupation. They don’t know what they’re doing, and they don’t have any guidelines.” — — JAMES FOSBINDER Attorney
“They don’t know what they’re doing and they don’t have any guidelines. It’s just so damn arbitrary it drives me nuts.”
As of the 9th Circuit’s ruling last week, Fosbinder and Rubin had 45 days to file their petition with the Supreme Court. Once filed, the city will file their response and the Supreme Court will decide whether or not to hear the case.
All told, the process could take the “better part of two years,” Fosbinder said.
Originally published in the Santa Monica Daily Press print edition on March 5, 2003. Read the original PDF.