Free Amended Complaint - District Court of California - California

Case 3:08-cv-04098-SI

Document 5

Filed 09/03/2008

Page 1 of 3

1 PAUL J. BEARD II, No. 210563 E-mail: [email protected] 2 DAMIEN M. SCHIFF, No. 235101 E-mail: [email protected] 3 BRANDON M. MIDDLETON, No. 255699 E-mail: [email protected] 4 Pacific Legal Foundation 3900 Lennane Drive, Suite 200 5 Sacramento, California 95834 Telephone: (916) 419-7111 6 Facsimile: (916) 419-7747 7 Attorneys for Plaintiffs 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

PACIFIC LEGAL FOUNDATION

11 12

13 MERCER, FRASER CO., a California corporation; and ) No. C 08-04098 SI O & M INDUSTRIES, a California corporation, ) 14 ) NOTICE OF FILING OF Plaintiffs, ) FIRST AMENDED COMPLAINT 15 ) v. ) Judge: Hon. Susan Illston 16 ) Courtroom 10, 19th Floor COUNTY OF HUMBOLDT, CALIFORNIA, a ) 17 political subdivision of the State of California ) ) 18 Defendant. ) ) 19 20 21 22 Please take notice that Plaintiffs Mercer, Fraser Co. and O & M Industries, pursuant to

23 Rule 15(a)(1) of the Federal Rules of Civil Procedure (FRCP), hereby submit and file the attached 24 First Amended Complaint. This filing is proper under FRCP 15(a)(1) in that this is Plaintiffs' first 25 amendment, and Defendant County of Humboldt, California, has not yet responded to the 26 Complaint. 27 The only change between the Complaint and the First Amended Complaint is in

28 Paragraph 9 of each. The former read:
Notice of Filing of First Amended Complaint No. C 08-04098 SI

-1-

Case 3:08-cv-04098-SI

Document 5

Filed 09/03/2008

Page 2 of 3

1

9.

Since Measure T's passage, Plaintiff Mercer, Fraser has not and will not expend and

2 contribute money and other things of value, for fear of prosecution for violation of Measure T's 3 prohibitions. 4 5 The First Amended Complaint now reads: 9. Since November, 2007, Plaintiff Mercer, Fraser has neither expended nor

6 contributed money or other things of value in an election in Humboldt County, and will not do so, 7 for fear of prosecution for violation of Measure T's prohibitions. 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

DATED: September 3, 2008. Respectfully submitted, PAUL J. BEARD II DAMIEN M. SCHIFF BRANDON M. MIDDLETON

PACIFIC LEGAL FOUNDATION

11 12 13 14

By

/s/ Damien M. Schiff DAMIEN M. SCHIFF

Attorneys for Plaintiffs 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Notice of Filing of First Amended Complaint No. C 08-04098 SI

-2-

Case 3:08-cv-04098-SI

Document 5

Filed 09/03/2008

Page 3 of 3

1 2 3 4 5 6

DECLARATION OF SERVICE BY FACSIMILE AND MAIL I, Damien M. Schiff, declare as follows: I am a resident of the State of California, residing or employed in Sacramento, California. I am over the age of 18 years and am not a party to the above-entitled action. My business address is 3900 Lennane Drive, Suite 200, Sacramento, California 95834. On September 3, 2008, true copies of NOTICE OF FILING OF FIRST AMENDED

7 COMPLAINT were faxed and placed in envelopes addressed to: 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

Board of Supervisors County of Humboldt Attn: Kathy Hayes, Clerk of the Board 825 - 5th Street, Room 111 Eureka, CA 95501 Fax: (707) 445-7299 Ms. Wendy B. Chaitin Interim County Counsel County of Humboldt 825 - 5th Street Eureka, CA 95501 Fax: (707) 445-6297

PACIFIC LEGAL FOUNDATION

11 12 13 14

15 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox 16 regularly maintained by the United States Postal Service in Sacramento, California. 17 I declare under penalty of perjury that the foregoing is true and correct and that this

18 declaration was executed this 3rd day of September, 2008, at Sacramento, California. 19 20 21 22 23 24 25 26 27 28
Notice of Filing of First Amended Complaint No. C 08-04098 SI

/s/ Damien M. Schiff DAMIEN M. SCHIFF

-3-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 1 of 12

1 PAUL J. BEARD II, No. 210563 E-mail: [email protected] 2 DAMIEN M. SCHIFF, No. 235101 E-mail: [email protected] 3 BRANDON M. MIDDLETON, No. 255699 E-mail: [email protected] 4 Pacific Legal Foundation 3900 Lennane Drive, Suite 200 5 Sacramento, California 95834 Telephone: (916) 419-7111 6 Facsimile: (916) 419-7747 7 Attorneys for Plaintiffs 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

PACIFIC LEGAL FOUNDATION

11 12 MERCER, FRASER CO., a California corporation; and ) No. CV 08-4098 SI O & M INDUSTRIES, a California corporation, ) 13 ) FIRST AMENDED Plaintiffs, ) COMPLAINT FOR 14 ) DECLARATORY AND v. ) INJUNCTIVE RELIEF 15 ) COUNTY OF HUMBOLDT, CALIFORNIA, a ) Judge: Hon. Susan Illston 16 political subdivision of the State of California ) Courtroom 10, 19th Floor ) 17 Defendant. ) ) 18 19 20 1. INTRODUCTION Plaintiffs Mercer, Fraser Co., and O & M Industries, challenge the constitutionality

21 of the "Humboldt County Ordinance to Protect Our Right to Fair Elections and Local Democracy," 22 known as "Measure T," a true and correct copy of which is attached hereto as Exhibit 1, and 23 incorporated by reference. Measure T forbids all election-related contributions and expenditures 24 by nonlocal corporations. Plaintiffs contend that Measure T violates Plaintiffs' political free 25 speech rights under the First Amendment of the Federal Constitution, as incorporated against 26 municipalities by the Due Process Clause of the Fourteenth Amendment, as well as Plaintiffs' right 27 to be free from arbitrary and irrational discrimination that impacts the exercise of said speech 28 rights, as protected by the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs seek
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-1-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 2 of 12

1 a declaratory judgment that Measure T is unconstitutional and void, as well as preliminary and 2 permanent prohibitory injunctions forbidding its enforcement. 3 4 2. JURISDICTION This Court has subject matter jurisdiction of the action pursuant to 28 U.S.C. § 1331

5 (federal question); § 1343(a)(3) (constitutional violation under color of state law); § 2201 6 (authorizing declaratory relief); and § 2202 (authorizing injunctive relief). Plaintiffs' claims for 7 relief arise under the First and Fourteenth Amendments, and Plaintiffs seek redress pursuant to 42 8 U.S.C. § 1983 for deprivations, under color of municipal law, for deprivations of their rights 9 secured under the same Amendments. 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

VENUE 3. Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2), because a

PACIFIC LEGAL FOUNDATION

11

12 substantial part of the events or omissions giving rise to the claims occurred in this district. 13 14 4. INTRADISTRICT ASSIGNMENT Pursuant to Civil Local Rule 3-2(c), this action arises in the County of Humboldt

15 because a substantial part of the events or omissions giving rise to the claims occurred in that 16 County. Pursuant to Civil Local Rule 3-2(d), this action should be assigned to either the 17 San Francisco or Oakland Division. 18 19 5. NATURE OF THIS ACTION This action is authorized by Section 1 of the Civil Rights Act of 1871, 17 Stat. 13,

20 as amended, see 42 U.S.C. § 1983, to prevent the deprivation, under color of state law, of rights 21 secured by the First and Fourteenth Amendments to the United States Constitution. Section 1983 22 provides, in relevant part, that 23 24 25 26 27 /// 28 ///
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

-2-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 3 of 12

1 2 The Plaintiffs 3 6.

PARTIES

Plaintiff Mercer, Fraser Co., is a corporation organized under the laws of the State

4 of California. Plaintiff's current corporate charter was issued by the California Secretary of State 5 in 1948. Plaintiff is a successful asphalt paving, highway and heavy construction business located 6 in Eureka, California. Approximately 98% of Plaintiff's employees live in Humboldt County. A 7 corporation may maintain an action under Section 1983. 8 7. Plaintiff Mercer, Fraser is considered a nonlocal corporation under Measure T and

9 is therefore subject to Measure T's total prohibition on "nonlocal corporation" political 10 expenditures and contributions.
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

11

8.

Prior to Measure T's passage, Plaintiff Mercer, Fraser contributed to local election

12 campaigns, and also purchased its own advertisements in local newspapers to support local 13 candidacies. But for Measure T's prohibitions, Plaintiff would, directly and indirectly, expend and 14 contribute money and other things of value in local elections within Humboldt County. 15 9. Since November, 2007, Plaintiff Mercer, Fraser has neither expended nor

16 contributed money or other things of value in an election in Humboldt County, and will not do so, 17 for fear of prosecution for violation of Measure T's prohibitions. 18 10. Therefore, Measure T, since its passage and continuously since then and to the

19 present, has worked upon Plaintiff Mercer, Fraser concrete and discrete injuries to its rights under 20 the First and Fourteenth Amendments. 21 11. Plaintiff Mercer, Fraser would receive redress for its injuries by a favorable decision

22 from this Court. A declaration that Measure T is unconstitutional and a permanent injunction 23 enjoining its enforcement would permit Plaintiff to expend and contribute money and other things 24 of value in local elections within Humboldt County. 25 12. Plaintiff O & M Industries is a corporation organized under the laws of the State

26 of California. Plaintiff's current corporate charter was issued by the California Secretary of State 27 in 1972. Plaintiff is a successful manufacturer focusing on steel fabrication and heat, ventilation, 28 and air conditioning systems. (The company built the famed steel Coke bottle located in the left
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-3-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 4 of 12

1 field seats at the San Francisco Giants' ATT Park.) A corporation may maintain an action under 2 Section 1983. 3 13. Approximately three quarters of Plaintiff O & M Industries's employees live within

4 the Humboldt County, but Plaintiff is considered a nonlocal corporation under Measure T because 5 the remainder of its workforce resides outside the County. Therefore, Plaintiff is subject to 6 Measure T's total prohibition on "nonlocal corporation" political expenditures and contributions. 7 14. Prior to Measure T's passage, Plaintiff O & M Industries contributed to a local

8 election campaign. But for Measure T's prohibitions, Plaintiff would, directly and indirectly, 9 expend and contribute money and other things of value in local elections within Humboldt County. 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

15.

Since Measure T's passage, Plaintiff O & M Industries has not and will not expend

PACIFIC LEGAL FOUNDATION

11 and contribute money and other things of value, for fear of prosecution for violation of 12 Measure T's prohibitions. 13 16. Therefore, Measure T, since its passage and continuously since then and to the

14 present, has worked upon Plaintiff O & M Industries concrete and discrete injuries to its rights 15 under the First and Fourteenth Amendments. 16 17. Plaintiff O & M Industries would receive redress for its injuries by a favorable

17 decision from this Court. A declaration that Measure T is unconstitutional and a permanent 18 injunction enjoining its enforcement would permit Plaintiff to expend and contribute money and 19 other things of value in local elections within Humboldt County. 20 The Defendant 21 18. Defendant County of Humboldt is a political subdivision of the State of California.

22 A county is a "person" within the meaning of 42 U.S.C. § 1983. Defendant is principally 23 responsible for the implementation and enforcement of Measure T. 24 25 26 19. GENERAL ALLEGATIONS Measure T Measure T, otherwise known as the "Humboldt County Ordinance to Protect Our

27 Right to Fair Elections and Local Democracy," forbids all election-related contributions and 28 expenditures by nonlocal corporations.
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-4-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 5 of 12

1 2 3 4 5 6

Non-local corporations shall be prohibited from paying or contributing, directly or indirectly, any money, property, compensated service of its officers or employees, independent expenditures, or any other thing of value for the purpose of: a) Promoting or defeating the candidacy of any person for nomination, appointment or election to any political office within the jurisdiction of Humboldt County; or b) Promoting or defeating any initiative, referendum or recall election within the jurisdiction of Humboldt County, California.

7 See Exh. 1, § 5. The ordinance was enacted by the voters of Humboldt County at the June, 2006, 8 general election. 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

20.

Listed under Measure T's "Findings and General Purpose" are the assertions that

2) Only natural persons possess civil and political rights. Corporations are creations of state law and possess no legitimate civil or political rights. 3) Courts have illegitimately defined corporations as "persons," allegedly vesting corporations with constitutional protections and rights. The unconstitutional doctrines of "corporate personhood" and "corporate constitutional rights" illegitimately deny the people of Humboldt County the ability to exercise our fundamental political rights.

PACIFIC LEGAL FOUNDATION

11 12 13 14 15 See id. § 3, subparas. 2-3. 16 21. The stated specific purpose of Measure T is "to prohibit non-local corporations from

17 making direct or indirect contributions and independent expenditures in all elections within the 18 jurisdiction of Humboldt County." Id. § 4. Further, the ordinance states that "[n]o corporation 19 shall be entitled to claim corporate constitutional rights or protections in an effort to overturn this 20 law." Id. § 8. 21 22. A "local corporation," to which the provisions of Measure T do not apply, is defined

22 as a corporation in which all employees reside in Humboldt County, the corporation's principal 23 place of business and headquarters are located in Humboldt County, and all shareholders reside 24 in Humboldt County, and no shareholder is a corporation. Id. § 11. A "local labor organization," 25 which is also exempt, is defined as a labor organization qualifying as such under the National 26 Labor Relations Act in which at least one member resides in Humboldt County. See id. 27 Measure T makes no distinction between incorporated and unincorporated local labor 28 organizations.
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-5-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 6 of 12

1

23.

Measure T prohibits a nonlocal corporation from contributing or expending

2 anything of value, directly or indirectly, to promote or defeat the candidacy of any person for a 3 local office, or to promote or defeat any local initiative, referendum, or recall election. Id. § 5. 4 24. Measure T imposes a penalty of ten times the amount illegally contributed or

5 expended. It also directs the district attorney to initiate corporate charter revocation proceedings 6 if the amount illegally contributed or expended exceeds $25,000. Id. § 12. 7 8 25. INJUNCTIVE RELIEF ALLEGATIONS Plaintiffs hereby reallege and incorporate by reference the allegations contained in

9 Paragraphs 1 through 24 as though fully set forth herein. 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

26.

If an injunction does not issue enjoining Defendant from enforcing Measure T,

PACIFIC LEGAL FOUNDATION

11 Plaintiffs will be irreparably harmed. Plaintiffs are presently and continuously injured by 12 Measure T's total ban on nonlocal corporation campaign contributions and expenditures because 13 Plaintiffs are and will continue to be unable to participate in any meaningful way in any upcoming 14 local election by directly and indirectly supporting and opposing candidates, referenda, initiatives, 15 and the like through contributions and expenditures. 16 27. If not enjoined by this Court, Defendant will continue to enforce Measure T in

17 derogation of Plaintiffs' rights. 18 28. Plaintiffs have no plain, speedy, and adequate remedy at law. Damages are

19 indeterminate or unascertainable and, in any event, would not fully redress Plaintiffs' harm. 20 21 22 30. 29. Accordingly, injunctive relief is appropriate. DECLARATORY RELIEF ALLEGATIONS Plaintiffs hereby reallege and incorporate by reference the allegations contained in

23 Paragraphs 1 through 29 as though fully set forth herein. 24 31. An actual and substantial controversy exists between Plaintiffs and Defendant over

25 the constitutionality of Measure T's total ban on nonlocal corporation campaign contributions and 26 expenditures. Plaintiffs contend that Measure T is unconstitutional. Plaintiffs are informed and 27 believe, and on that basis allege, that Defendant contends that Measure T is constitutional. 28 ///
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-6-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 7 of 12

1

32.

This case is presently justiciable because Defendant's enforcement of Measure T

2 has caused and will continue to cause immediate and concrete injuries to Plaintiffs by preventing 3 Plaintiffs from expending or contributing anything of value in connection with a local election or 4 campaign. Plaintiffs have expended and contributed in the past, and would continue to do so in 5 the present but for the existence of Measure T. 6 7 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

33.

Declaratory relief is, therefore, appropriate to resolve this controversy. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF

Violation of the Free Speech Clause of the First Amendment, as Incorporated Against Municipalities by the Fourteenth Amendment (Pursuant to 42 U.S.C. § 1983) (Declaratory and Injunctive Relief) 34. Plaintiffs hereby incorporate by reference the allegations of Paragraphs 1 through

PACIFIC LEGAL FOUNDATION

11 12 13 33. 14 35. The First Amendment provides, in relevant part, that "Congress shall make no

15 law . . . abridging the freedom of speech." U.S. Const. amend. I. The First Amendment has been 16 incorporated against the states and their subdivisions by the Due Process Clause of the Fourteenth 17 Amendment. 18 19 36. 37. Corporations enjoy the free speech protections of the First and 14th Amendments. Measure T burdens Plaintiffs' constitutionally protected core political speech in

20 violation of Plaintiffs' free speech rights under the First and 14th Amendments to the United States 21 Constitution. Measure T prohibits Plaintiffs and similarly situated corporations from making 22 election-related contributions and expenditures. 23 38. The standard for determining the constitutionality of a restriction on corporate

24 campaign speech varies depending upon whether the speech in question takes the form of a 25 campaign contribution or campaign expenditure. 26 39. The Free Speech Clause forbids corporate contribution limitations unless they are

27 closely drawn to match a sufficiently important interest. 28 ///
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-7-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 8 of 12

1

40.

A regulation cannot be closely drawn to match any interest in ensuring corruption-

2 free elections, where the regulation imposes an absolute ban on all direct and indirect 3 contributions. 4 41. Measure T is not closely drawn to achieving any interest in corruption-free elections

5 because it bans all direct and indirect campaign contributions. 6 42. The Free Speech Clause forbids corporate expenditure limitations unless those

7 limitations are narrowly tailored to achieve a compelling government interest. 8 43. Measure T's prohibition on corporate expenditures does not narrowly achieve any

9 compelling interest in avoiding the alleged corrupting influence of corporate election funding, 10 because it imposes a total ban on all contributions and expenditures of any value by a nonlocal
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

11 corporation, in connection with any local election, initiative, or recall. 12 44. Because Measure T is not closely drawn to achieve any interest in corruption-free

13 elections, it is unconstitutional and void. 14 45. Because Measure T is not narrowly tailored to achieve a compelling government

15 interest, it is unconstitutional and void. 16 17 18 19 20 45. 21 47. A law violates the Equal Protection Clause if the law (1) uses classifications that 46. SECOND CLAIM FOR RELIEF Violation of Equal Protection Clause of the Fourteenth Amendment (Pursuant to 42 U.S.C. § 1983) (Declaratory and Injunctive Relief) Plaintiffs hereby incorporate by reference the allegations of Paragraphs 1 through

22 trench upon political speech rights, and (2) is not narrowly tailored to serve a compelling interest. 23 48. A law also violates the Equal Protection Clause if it fails to treat similarly situated

24 groups in a like manner. 25 26 49. 50. A corporation is a "person" within the meaning of the Equal Protection Clause. Measure T, through its definitions of "local corporation" and "local labor

27 organization," imposes its prohibitions disproportionately on corporate enterprises as opposed to 28 incorporated labor organizations.
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-8-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 9 of 12

1

51.

There is no compelling interest for Measure T's disparate treatment of incorporated

2 labor organizations versus non-labor-oriented corporations: the alleged corrupting influences of 3 the corporate form are no more significant with the latter than with the former. 4 52. Therefore, in its disparate treatment of corporations as opposed to incorporated

5 labor organizations, Measure T fails to classify persons in a manner narrowly tailored to achieving 6 any compelling interest, in violation of the Equal Protection Clause. 7 53. Further, Measure T, through its definitions of "local corporation" and "local labor

8 organization," imposes its prohibitions disproportionately on corporate enterprises as opposed to 9 labor organizations by its conception of a "local" entity. To qualify as "local," a corporation must 10 establish that (1) all employees reside in Humboldt County, (2) the corporation's principal place
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

11 of business and headquarters are located in Humboldt County, (3) all shareholders reside in 12 Humboldt County, and (4) no shareholder is a corporation. See Exh. 1, § 11. In contrast, a labor 13 organization, to qualify as "local," need only establish that (1) it is deemed a labor organization 14 under the National Labor Relations Act, and (2) at least one member resides in Humboldt County. 15 See id. 16 54. There is no compelling interest for making the standard for "local" much more

17 difficult to achieve for corporations as opposed to labor organizations, because the alleged 18 corrupting effects of nonlocal influence on local elections is as much present with labor 19 organizations as it is with non-labor-oriented corporations; and further, because the "localness" 20 of a legal entity is independent of whether it is a labor organization or a non-labor-oriented 21 corporation. 22 55. Measure T, by using such disproportionate criteria, is not narrowly tailored to

23 achieving any compelling interest, in violation of the Equal Protection Clause. 24 56. Because Measure T exempts certain organizations from its prohibition in a manner

25 that offends the Equal Protection Clause, an appropriate remedy is the extension of its exemptions 26 to the improperly targeted class. 27 /// 28 ///
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

-9-

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 10 of 12

1 2 3

PRAYER FOR RELIEF Wherefore, Plaintiffs pray for judgment as follows: 1. For a declaration that Measure T, as applied to Plaintiffs, abridges the freedom of

4 speech protected by the First Amendment, as incorporated into the Fourteenth Amendment, by 5 impermissibly burdening protected political speech; 6 2. For a preliminary and permanent prohibitory injunction forbidding Defendant and

7 its agents, employees, officers, and representatives from enforcing, or attempting to enforce, 8 Measure T and any subsequently adopted and similar ordinance; 9 3. For a declaration that Measure T violates the Equal Protection Clause of the

10 Fourteenth Amendment by impermissibly distinguishing between corporations and incorporated
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

11 labor organizations, and by impermissibly distinguishing between the standard for local 12 corporations as opposed to local labor organizations, in providing an exemption to Measure T's 13 prohibitions; 14 4. For preliminary and permanent mandatory injunction requiring Defendant and its

15 agents, employees, officers, and representatives to provide Plaintiffs an exemption from 16 Measure T's prohibitions; 17 5. For preliminary and permanent prohibitory injunction enjoining Defendant and its

18 agents, employees, officers, and representatives from enforcing or attempting to enforce Measure 19 T, now and in the future; 20 6. For an award, pursuant to 42 U.S.C. § 1988(b), of reasonable attorneys' fees,

21 expenses, and costs; and 22 23 24 25 26 27 28
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

- 10 -

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 11 of 12

1 2 3 4 5 6

7.

For such other relief as the Court deems just and proper.

DATED: September 3, 2008. Respectfully submitted, PAUL J. BEARD II DAMIEN M. SCHIFF BRANDON M. MIDDLETON By /s/ Damien M. Schiff DAMIEN M. SCHIFF

7 8 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

Attorneys for Plaintiffs MERCER, FRASER CO., a California corporation; and O & M INDUSTRIES, a California corporation

PACIFIC LEGAL FOUNDATION

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

- 11 -

Case 3:08-cv-04098-SI

Document 5-2

Filed 09/03/2008

Page 12 of 12

1 2 3 4 5 6

DECLARATION OF SERVICE BY FACSIMILE AND MAIL I, Damien M. Schiff, declare as follows: I am a resident of the State of California, residing or employed in Sacramento, California. I am over the age of 18 years and am not a party to the above-entitled action. My business address is 3900 Lennane Drive, Suite 200, Sacramento, California 95834. On September 3, 2008, true copies of FIRST AMENDED COMPLAINT FOR

7 DECLARATORY AND INJUNCTIVE RELIEF were faxed and placed in envelopes addressed 8 to: 9 10
3900 Lennane Drive, Suite 200 Sacramento, CA 95834 (916) 419-7111 FAX (916) 419-7747

PACIFIC LEGAL FOUNDATION

11 12 13 14 15

Board of Supervisors County of Humboldt Attn: Kathy Hayes, Clerk of the Board 825 - 5th Street, Room 111 Eureka, CA 95501 Fax: (707) 445-7299 Ms. Wendy B. Chaitin Interim County Counsel County of Humboldt 825 - 5th Street Eureka, CA 95501 Fax: (707) 445-6297

16 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox 17 regularly maintained by the United States Postal Service in Sacramento, California. 18 I declare under penalty of perjury that the foregoing is true and correct and that this

19 declaration was executed this 3rd day of September, 2008, at Sacramento, California. 20 21 22 23 24 25 26 27 28
1st Amended Complaint for Declaratory & Injunctive Relief - No. CV 08-4098 SI

/s/ Damien M. Schiff DAMIEN M. SCHIFF

- 12 -

Case 3:08-cv-04098-SI

Document 5-3

Filed 09/03/2008

Page 1 of 3

Case 3:08-cv-04098-SI

Document 5-3

Filed 09/03/2008

Page 2 of 3

Case 3:08-cv-04098-SI

Document 5-3

Filed 09/03/2008

Page 3 of 3