Vermont Right to Life Comm. v. Sorrell, et al.

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-9325
• Parties: (2nd Cir. 2000) VERMONT RIGHT TO LIFE COMMITTEE, INC., Plaintiff-Appellant, v. WILLIAM H. SORRELL, in his official capacity as Vermont Attorney General; JOHN T. QUINN, in his official capacity as Vermont State's Attorney; WILLIAM WRIGHT, in his capacity as Vermont State's Attorney; DALE O. GRAY, in his/her official capacity as Vermont State's Attorney; JAN PAUL, in his/her official capacity as Vermont State's Attorney; LAUREN BOWERMAN, in her official capacity as Vermont State's Attorney; JAMES HUGHES, in his official capacity as Vermont State's Attorney; LINDA P. EFFEL, in her official capacity as Vermont State's attorney; JOEL W. PAGE, in his official capacity as Vermont State's Attorney; JAMES D. MCNIGHT, in his official capacity as Vermont State's Attorney; JANE WOODRUFF, in her official capacity as Vermont State's Attorney; JAMES P. MONGEON, in his official capacity as Vermont State's Attorney; TERRY TRONO, in his/her official capacity as Vermont State's Attorney; DAN DAVIS, in his official capacity as Vermont State's Attorney; PATRICIA ZIMMERMAN, in her official capacity as Ver mont State's Attorney; JAMES F. MILNE, in his official capacity as Vermont Secretary of State; EDWARD W. HAASE, in his official capacity as Vermont Commissioner of Taxes, Defendants-Appellees, VERMONT PUBLIC INTEREST RESEARCH GROUP; COMMON CAUSE/VERMONT; LEAGUE OF WOMEN VOTERS OF VERMONT; RURAL VERMONT; SETH BONGARTZ; CHERYL RIVERS; MARJORIE POWERS, Intervenors-Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 376

221 F.3d 376 (2nd Cir. 2000)

VERMONT RIGHT TO LIFE COMMITTEE, INC., Plaintiff-Appellant, v. WILLIAM H. SORRELL, in his official capacity as Vermont Attorney General; JOHN T. QUINN, in his official capacity as Vermont State's Attorney; WILLIAM WRIGHT, in his capacity as Vermont State's Attorney; DALE O. GRAY, in his/her official capacity as Vermont State's Attorney; JAN PAUL, in his/her official capacity as Vermont State's Attorney; LAUREN BOWERMAN, in her official capacity as Vermont State's Attorney; JAMES HUGHES, in his official capacity as Vermont State's Attorney; LINDA P. EFFEL, in her official capacity as Vermont State's attorney; JOEL W. PAGE, in his official capacity as Vermont State's Attorney; JAMES D. MCNIGHT, in his official capacity as Vermont State's Attorney; JANE WOODRUFF, in her official capacity as Vermont State's Attorney; JAMES P. MONGEON, in his official capacity as Vermont State's Attorney; TERRY TRONO, in his/her official capacity as Vermont State's Attorney; DAN DAVIS, in his official capacity as Vermont State's Attorney; PATRICIA ZIMMERMAN, in her official capacity as Ver mont State's Attorney; JAMES F. MILNE, in his official capacity as Vermont Secretary of State; EDWARD W. HAASE, in his official capacity as Vermont Commissioner of Taxes, Defendants-Appellees, VERMONT PUBLIC INTEREST RESEARCH GROUP; COMMON CAUSE/VERMONT; LEAGUE OF WOMEN VOTERS OF VERMONT; RURAL VERMONT; SETH BONGARTZ; CHERYL RIVERS; MARJORIE POWERS, Intervenors-Defendants-Appellees.

Docket No. 98-9325

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued May 5, 1999

Decided June 15, 2000

Amended July 21, 2000

Appeal from a judgment of the United States District Court for the District of Vermont (William K. Sessions III, Judge) granting summary judgment to the defendants and the intervenors in an action brought by the Vermont Right to Life Committee, Inc., seeking a declaratory judgment that three sections of a Vermont campaign finance law are facially unconstitutional under the First Amendment, and an injunction barring the defendants from enforcing them.

Reversed and remanded.

[Copyrighted Material Omitted] JAMES B. BOPP, JR., Bopp, Coleson & Bostrom, Terre Haute, IN (Glenn Willard, Bopp, Coelson & Bostrom, Terre Haute, IN, on the brief; Norman C. Smith, Bauer, Anderson & Gravel, Burlington, VT, of counsel), for Plaintiff-Appellant.

TIMOTHY B. TOMASI, Assistant Attorney General of the State of Vermont, Montpelier, VT (William H. Sorrell, Attorney General of the State of Vermont, Eve Jacobs-Carnahan, Assistant Attorney General of the State of Vermont, Montpelier, VT, on the brief), for Defendants-Appellees.

JONATHAN S. ABADY, Emery, Cuti, Brinckerhoff & Abady, PC, New York, NY (Brenda Wright, John C. Bonifaz, National Voting Rights Institute, Boston, MA, on the brief; Peter F. Welch, Welch, Graham & Manby, Burlington, VT, of counsel), for Intervenors-Defendants-Appellees.

Daniel Manatt, Washington, DC, submitted a brief in support of affirmance of the judgment of the district court for Amicus Curiae Public Disclosure, Inc.

Before: JACOBS^*. and SACK, Circuit Judges, and SHADUR,^**. District Judge.

Judge Shadur dissents in a separate opinion.

SACK, Circuit Judge:

The plaintiff, the Vermont Right to Life Committee, Inc. ("VRLC"), challenges the constitutionality of three provisions of Act No. 64, a law enacted by the State of Vermont in 1997 to reform its system of campaign financing. VRLC is a non-profit membership organization whose stated purpose is "to ac[h]ieve universal recognition of the sanctity of human life from conception to natural death by lawful means such as public education and promoting legislation." It brought an action in the United States District Court for the District of Vermont pursuant to 42 U.S.C. §1983 seeking a declaratory judgment that these three provisions are facially unconstitutional under the First Amendment, and an injunction barring the defendants various Vermont State officials sued in their official capacities (the "State") from enforcing them. Two of these provisions taken together require that all "political advertisements" disclose the identity of the person or entity paying for the advertisement and the candidate, party or political committee by or on whose behalf it was disseminated. See Vt. Stat. Ann. tit. 17, §§2881-2882. The third requires that those who make expenditures for "mass media activities" within thirty days of an election report those expenditures within twenty-four hours to the state and to any candidate whose name or likeness is "included in the activity."

After determining that it had federal jurisdiction over this action and declining to exercise its discretion to abstain, the district court (William K. Sessions III, Judge) concluded that all the challenged provisions were susceptible to limiting constructions that saved them from constitutional invalidity. The court therefore awarded summary judgment to the State and to the intervenors -- the Vermont Public Interest Research Group, Common Cause/Vermont, the League of Women Voters of Vermont, Rural Vermont, Seth Bongartz, Senator Cheryl Rivers, and Marjorie Power ("the Intervenors") -- dismissing the complaint. The court also denied a cross-motion by VRLC for summary judgment on its claim that the provisions violate the First Amendment.

We agree with the district court that it had jurisdiction to decide this case and find that it did not abuse its discretion when it declined to abstain from exercising its jurisdiction. We disagree, however, with its decision on the merits. No narrowing construction of §§2881, 2882 or 2883 available to the district court would save those statutory provisions from facial invalidity under the First Amendment as it applies to the States through the Fourteenth Amendment. No one has briefed or argued -- and we do not decide -- whether the portion of §§2881 and 2882 that is challenged in this case, and which we hold to be unconstitutional, is severable from the remainder of the statute. We therefore reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

BACKGROUND

In June 1997, Act No. 64, a bill designed to impose comprehensive reform on Vermont's system of campaign financing, became law. Act of June 26, 1997, No. 64, 1997 Vermont Acts & Resolves. The statute recites that it is a response to rising costs of running for state office, the influence of those who make large campaign contributions, and the effect of large campaign expenditures on what the Vermont General Assembly called the "[r]obust debate of issues, candidate interaction with the electorate, and public involvement and confidence in the electoral process." Id. §1(a). The Act changed Vermont's campaign finance system in several important respects. It provided public financing of campaigns for the offices of governor and lieutenant governor, limited campaign contributions and expenditures, amended the reporting requirements for candidates and contributors, and imposed disclosure and reporting requirements on, respectively, all "political advertisements" and "mass media activities." See id. §§2, 4-15. Only the political advertising and mass media activities provisions of this measure, codified at Vt. Stat. Ann. tit. 17, §§2881-2883, are at issue in this litigation.

Sections 2881 and 2882, the disclosure provisions, state:

§ 2881. Definitions

As used in this subchapter, "political advertisement" means any communication, including communications published in any newspaper or periodical or broadcast on radio, television or over any public address system, placed on any billboards, outdoor facilities, buttons or printed material attached to motor vehicles, window displays, posters, cards, pamphlets, leaflets, flyers or other circulars, or in any direct mailing, which expressly or implicitly advocates the success or defeat of a candidate.

§ 2882. Identification

All political advertisements shall contain the name and address of the person who paid for the advertisement. The advertisement shall clearly designate the name of the candidate, party or political committee by or on whose behalf the same is published or broadcast. In the case of printed or written matter, the name and address shall be printed or written large enough to be clearly legible, except that this shall not apply to buttons or any written or printed matter attached to or displayed on any motor vehicle.

Section 2883, the reporting provision, provides:

§ 2883. Notice of expenditure

(a) For purposes of this section, "mass media activities" includes television commercials, radio commercials, mass mailings, literature drops and central telephone banks which include the name or likeness of a candidate for office.

(b) In addition to any other reports required to be filed under this chapter, a person who makes expenditures totaling $500.00 or more for mass media activities within 30 days of a primary or general election shall report such expenditures to the secretary of state, and to the candidate whose name or likeness is included in the activity, within 24 hours of making the expenditure. The report shall identify the person who made the expenditure with the name of the candidate involved in the activity and any other information relating to the expenditure that is required to be disclosed under the provisions of [other] subsections... of this title.

Violation of §2882 or § 2883 can result in imposition of a civil penalty of up to $10,000 for each infraction. Vt. Stat. Ann. tit. 17, §2806(b).

VRLC is a nonprofit Vermont corporation with local chapters at various locations in the state. According to its by-laws, it exists to "engage in educational, charitable, and scientific projects or purposes," including (1) "present[ing] fully detailed and factual information upon which individuals and the general public may make an informed decision about the...