Mr. Rubin Goes to Washington

By Jorge Casuso

July 7 -- It may take the nation's highest court to decide if Jerry Rubin has a job.

The two-time City Council candidate filed a petition with the U.S. Supreme Court Friday claiming the City violated his First Amendment rights when it refused to list his occupation on the ballot as "peace activist."

The filing comes nine months after the 9th Circuit U.S. Court of Appeals panel unanimously upheld a U.S. District Judge's dismissal of Rubin's First Amendment suit, filed in September 2000.

The decision essentially upheld City Clerk Maria Stewart's refusal to have the phrase listed below Rubin's name on the 2000 ballot, arguing that under the Secretary of State's guidelines, "'activist'" is a status (such as husband or wife) not a legitimate vocation or occupation.

Rubin's attorney, James Fosbinder, contends that "the state law is just plain wrong." Fosbinder notes that Internet job sites routinely list "activist" as an occupation and that other states place no such restrictions on ballot designations.

"The law is obviously flawed," Fosbinder said. "California has something unique. They don't do that anywhere else that I can find… Government employees shouldn't arbitrarily decide."

Stewart repeated her previous contention that her decision to deny Rubin's requested ballot designation was not arbitrary and that it was in fact dictated by the state.

"It wasn't arbitrary at all," Stewart said. "It was in writing. It was the Secretary of State's guidelines, and the word (activist) was in there."

In its ruling last year, the District Court held that the City has the authority to regulate the terms describing a candidate's occupation and that denying use of the term activist "does not severely burden a candidate's First Amendment rights."

Fosbinder disagrees. "It's a very important first amendment issue," he said. "Anything that's put right under your name on the ballot is extremely important."

Rubin, who sells bumper stickers on the Third Street Promenade, said he used the $1,600 in his bank account to take his case to the Supreme Court. Rubin has called the District Court's decision "a defeat for free speech and for activism."

Being a peace activist, Rubin told The Lookout after his defeat in court, is "my occupation, my vocation, my avocation and lifelong mission…. It's not only a job. Being an activist is a damn hard job."

After Rubin filed his lawsuit, the City Council voted in April 2001 to amend the municipal code. It now specifies that the clerk shall follow "the Secretary of State Ballot Designation Regulations."

The Circuit Court subsequently ruled that the City had a significant interest in applying a consistent rule as to what constitutes an occupation. The panel noted that the clerk's decision was '"viewpoint neutral,"' meaning all candidates, regardless of their political views, were barred from using the term.

The judges also held that Rubin had other ways to communicate his peace activities to the electorate, including the candidate's statement the City publishes before the election. "A ballot is a ballot, not a bumper sticker," the panel said.

The odds are that the U.S. Supreme Court -- which receives 110 petitions a week -- won't take up the case, said City Attorney Marsha Moutrie. She noted the court usually takes up cases that have "nationwide importance" or where the law is unclear because the various circuits are split in their decisions.

"A great many people knock on their door," Moutrie said. "They can't handle the number of people that want them to review a case."