New Hampshire Right to Life Political Action Committee v. Gardner

• Decision Date: 05 September 1996
• Docket Number: No. 96-1744,96-1744
• Citation: 99 F.3d 8
• Parties: NEW HAMPSHIRE RIGHT TO LIFE POLITICAL ACTION COMMITTEE, Plaintiff, Appellant, v. William M. GARDNER, in his official capacity as the Secretary of State of the State of New Hampshire, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

99 F.3d 8

NEW HAMPSHIRE RIGHT TO LIFE POLITICAL ACTION COMMITTEE Plaintiff, Appellant, v. William M. GARDNER, in his official capacity as the Secretary of State of the State of New Hampshire et al., Defendants, Appellees.

No. 96-1744.

United States Court of Appeals First Circuit.

Heard Sept. 5, 1996.

Decided Nov. 1, 1996.

James Bopp, Jr. with whom Paul R. Scholle, Bopp, Coleson & Bostrom, Terre Haute, IN, and Stephen F. Queeney, Amherst, NH, were on brief, for appellant.

Lucy C. Hodder, Assistant Attorney General, with whom Martin P. Honigberg, Senior Assistant Attorney General, Concord, NH, was on brief, for appellees.

Before SELYA, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

Like forecasted hurricanes, approaching elections invariably give rise not only to gusts of wind but also to feverish preparations. And, just as the prudent fisherman does not trust in chance to save his boat from the gathering storm, the sage political activist does not rely on an unenlightened electorate to save her candidate from the vicissitudes of the ballot box. Still, government from time to time attempts to circumscribe the ways and means of bringing enlightenment to a sometimes truculent public. This appeal comes to us by virtue of one such restriction: the $1,000 per election limit that New Hampshire places on "independent expenditures" in a political campaign. ¹ See N.H.Rev.Stat. Ann. (RSA), tit. LXIII, ch. 664:5, V; 664:3, I; 664:3, II (Supp.1995).

In this case the appellant New Hampshire Right to Life Political Action Committee (N-PAC) challenges the constitutionality of the New Hampshire limitation, arguing that the statutory scheme violates the First Amendment. ² In the course of denying a requested preliminary injunction, the district court dismissed the case sua sponte. The court held that the appellant lacked standing to maintain the action. Because N-PAC faces a credible threat of prosecution if it pursues its wonted activities, we conclude that it does have standing to mount a pre-enforcement facial challenge to the statutory cap. Consequently, we reverse the district court's order of dismissal, and, because the merits of the case are clear, we strike down New Hampshire's ceiling on independent expenditures.

I. THE STATUTORY SCHEME

Understandably perturbed by the corrosive effect of money on the electoral process, New Hampshire began to enact campaign finance reform legislation as far back as 1989. In 1991 the state legislature capped a political committee's ability to make "independent expenditures" at $1,000 per election. ³ The relevant statute reads:

No political committee shall make independent expenditures in excess of $1,000 for any or against any candidate running for a particular office in a state primary election, and a like amount in a state general election, in support of or to oppose any candidate.

RSA 664:5, V. Two other statutes complement the general restriction on independent expenditures. First, the state requires a political committee to file a declaration with the Secretary of State pledging that it "will not exceed the expenditure limitations allowed under RSA 664:5, V." RSA 664:3, I. Another statute provides that "[o]nly those political committees that have filed a declaration with respect to independent expenditures ... may make such expenditures." RSA 664:3, II. The violation of any of these provisions is a criminal offense. See RSA 664:21, V.

New Hampshire vests enforcement of this statutory scheme in its Attorney General. See RSA 664:18. The Secretary of State is charged with receiving and examining reports of election expenditures and notifying the Attorney General of any suspected improprieties. See RSA 664:19.

II. THE GATHERING STORM

N-PAC is a political committee within the contemplation of RSA 664:2, III and has been registered as such with the Secretary of State for over a decade. The organization's stated purpose is to "promote the sanctity of human life from conception to natural death." N-PAC works in a variety of ways to accomplish this goal. Among other stratagems, it supports (or opposes) various candidates for state office whom it perceives as endorsing (or denigrating) its views. N-PAC's support manifests itself through the expenditure of funds for such purposes as purchasing advertisements and distributing leaflets.

Over the past decade N-PAC typically has spent all the contributions that it receives on some form of right-to-life political advocacy. The 1996 election followed this well-trodden path. Originally, N-PAC vowed to make political expenditures opposing a certain candidate in the primary election, but that candidate withdrew. N-PAC then shifted gears and decided to throw its support behind a different candidate who was running for state office in the primary election. ⁴

Ellen Dube, a state employee, functions as the Secretary of State's liaison with the Attorney General. One of Dube's duties is to report possible violations of RSA 664 to the Attorney General, who then makes the decision whether to investigate and/or prosecute. On March 6, 1996, N-PAC's president, Barbara Hagan, telephoned Dube. Hagan inquired if the state intended to enforce the statutory limitation on independent expenditures. Dube replied that infractions "would be noticed" and that the state would commence enforcement actions against any persons who violated RSA 664:5, V. Hagan subsequently posed the same question to Wynn Arnold, a member of the Attorney General's staff. Arnold advised her that the initiation of an enforcement action would depend on whether there had been a referral from the Secretary of State. He refused to deny that the Attorney General would enforce RSA 664:5, V.

N-PAC then filed suit in New Hampshire's federal district court against the Secretary of State, William M. Gardner, and the Attorney General, Jeffrey R. Howard. N-PAC's verified complaint alleged that it intended to exceed the limitation on independent expenditures in the 1996 election campaign, that it feared prosecution if it did so, and that the challenged statutory provisions impermissibly burdened its free-speech rights and thereby ran afoul of the Supreme Court's holding in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). N-PAC sought a declaratory judgment that RSA 664:5, V and 664:3, I & II on their face chill its political expression and thereby abridge its constitutional rights. It also sought an order restraining the defendants from enforcing these statutes against it.

Within a week, N-PAC filed a motion for a preliminary injunction. In describing the need for this relief, N-PAC focused on three sets of expenditures which it intended to make for the September 10 primary election: (1) its contemplated purchase of an advertisement endorsing the candidate in the June edition of the New Hampshire Right to Life Committee (NHRLC) newsletter (estimated cost: $900); (2) its planned distribution at public events around the state on July 4 of roughly 30,000 fliers supporting the candidate (estimated cost: slightly over $3,000); and (3) its proposed purchase of a follow-up advertisement in either the August or September issue of the NHRLC newsletter (estimated cost not disclosed in the record).

After deposing Hagan and learning of these projected expenditures, the defendants informed N-PAC that the state would not take any enforcement action because of its belief that the pattern of contacts between N-PAC and the candidate whom it had opted to support precluded classification of the proposed expenditures as "independent" within the purview of RSA 664:2, XI. As what seemed to them a logical corollary of this determination, the defendants asserted that in the absence of a threat of enforcement, N-PAC could not claim to have suffered any cognizable injury by operation of the challenged statutes and therefore had no standing to contest their constitutionality.

On June 21, 1996, the district court denied the motion for a preliminary injunction. In that same order the court--relying heavily on the Attorney General's representation that the specified expenditures, if made, would not engender prosecution--sua sponte dismissed the action for want of standing. ⁵ In the court's view its conclusion that N-PAC lacked standing "present[ed] a constitutional barrier not only to the adjudication of the instant motion but also to the court's consideration of the merits of the case." As part and parcel of this determination, the court concluded that N-PAC did not face a credible threat of prosecution based on the aggregate effect of the $900 expenditure it had already made and the other two planned expenditures. Importantly, the court neither dwelt on N-PAC's prayer for declaratory relief nor assayed the threat of prosecution vis-a-vis other potential expenditures.

N-PAC filed this appeal, but it refrained from printing the fliers or purchasing a second advertisement.

III. STANDARD OF REVIEW

We review standing determinations de novo, crediting the plaintiff's factual allegations to the extent that they are material and construing those alleged facts, together with the reasonable inferences therefrom, in favor of the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Benjamin v. Aroostook Medical Ctr., Inc., 57 F.3d 101, 104 (1st Cir.1995); United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir.1992). Where, as here, dismissal is ordered sua sponte, the ultimate standard of review does not vary, but the court of appeals must take an extra step, scrutinizing the proceedings carefully to make certain that the plaintiff has had a fair opportunity to put its best foot forward. See, e.g., Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n of New Eng., Inc., 37 F.3d 12, 15 (1st Cir.1994); Preterm, Inc. v. Dukakis, 591 F.2d 121, 134 (1st Cir.), cert. denied, 441 U.S. 952, 99 S.Ct. 2181,...