Stephen SCHMID, Plaintiff-Appellant, v. SONOMA CLEAN POWER, a public agency, Defendant-Appellee, 673 F. App'x 785

MEMORANDUM Stephen Schmid appeals the district court’s order dismissing without leave to amend his complaint brought pursuant to 42 U.S.C. § 1983 challenging the procedure used by Sonoma Clean Power Authority for automatically enrolling electricity customers. We affirm. Schmid’s First Amendment claims for compelled contribution to speech and compelled association or disassociation fail because he has not been compelled to do anything.

When SCPA became a second electricity seller in Sonoma County to supplement the monopoly previously held by Pacific Gas & Electric, the default policy was to enroll consumers in SCPA’s service instead of PG&E’s service. See Cal. Pub. Util. Code § 366.2(c)(2). SCPA’s customers are permitted to switch to PG&E’s service at any time by calling a toll-free telephone number or by visiting a website, although they may be charged an administrative fee if they switch after having been enrolled in SCPA’s service for more than sixty days. Cal. Pub. Util. Code § 866.2(c)(13).

Customers were informed of their choices twice in the two months preceding and twice in the two months following the automatic enrollment. Cal. Pub. Util. Code § 366.2(c)(15)(A). Unlike the labor union political contribution arrangement the Supreme Court disapproved in Knox v. Service Employees International Union, 667 U.S. 298, 132 S.Ct. 2277, 2296, 183 L.Ed.2d 281 (2012), SCPA’s enrollment system does not require Schmid to opt out multiple times in a single year to avoid paying for SCPA’s services. He need not even opt out on an annual basis. Cf. id. at 2296 n.9.

Rather, if he opts out once, he will be enrolled in PG&E’s service, and he will remain enrolled in that service, even if he moves elsewhere in Sonoma County. Cal. Pub. Util. Code § 366.2(c)(2). Accordingly, Schmid has not been compelled to give any money to SCPA, and he has therefore not been compelled to subsidize SCPA’s speech. For the same reason, he has not been compelled to associate with SCPA or disassociate from PG&E. Cf. Morrow v. State Bar of California, 188 F.3d 1174, 1177 (9th Cir. 1999).

Schmid’s Fourteenth Amendment economic substantive due process claim also fails. “[T]he venerable maxim de minimis non curat lex” instructs that “the law cares not for trifles.” Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992). Even if the automatic enrollment provision were a real deprivation of Schmid’s liberty interest in contracting with PG&E, the provision “must only pass rational basis review: the statute must be based on ‘a legitimate legislative purpose furthered by rational means.’” Campanelli v. Allstate Life Ins.

Co., 322 F.3d 1086, 1100 (9th Cir. 2003) (quoting Gen. Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992)). The government’s goals in establishing the framework within which SCPA operates—reducing greenhouse gas emissions, providing electricity at a competitive cost, reducing energy consumption, and promoting rate stability, energy security, and, energy reliability through local control—are legitimate legislative purposes. See Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 943 (9th Cir. 2011); Mountain Water Co. v. Mont. Dep’t of Pub.

Serv. Regulation, 919 F.2d 593, 598 (9th Cir. 1990). For SCPA to accomplish its purposes, customers must purchase their electricity from SCPA. Automatically enrolling customers in SCPA is a rational means to create an adequate customer base for SCPA and thereby advance the government’s legitimate purposes. See Campanelli, 322 F.3d at 1100. The district court did not abuse its discretion in denying leave to amend on the grounds that it would have been futile for Schmid to amend his compliant. See Lead singer, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.