Anderson v. Spear, 02-5529.

Citation356 F.3d 651
Decision Date16 January 2004
Docket NumberNo. 02-5529.,02-5529.
PartiesHobart Ward ANDERSON, et al., Plaintiffs-Appellants, v. Lloyd E. SPEAR, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

James Bopp, Jr. (briefed), Thomas J. Marzen (argued and briefed), Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs-Appellants.

Janet M. Graham (briefed), Office of the Attorney General, Frankfort, KY, D. Brent Irvin, Asst. Atty. General, Frankfort, KY, Rosemary F. Center (argued and briefed), Jennifer B. Hans (briefed), Kentucky Registry of Election Finance, Frankfort, KY, for Defendants-Appellees.

Before: SILER, BATCHELDER, and COOK, Circuit Judges.

OPINION

BATCHELDER, Circuit Judge.

Appellant Hobart Ward Anderson ("Anderson" or "Appellant") appeals the decision of the district court granting summary judgment to Defendants-Appellees Kentucky Board of Elections, the Registry of Finance ("Registry"), the Commonwealth Attorneys as a class, and the Kentucky Attorney General on nine separate claims challenging the constitutionality of various provisions of Kentucky election law. Having concluded that the district court erred in its evaluation of the substantial First Amendment interests asserted by Anderson, we reverse the district court except as to two claims — Anderson's equal protection claim, and his claim that the "trigger" provision is unconstitutional as applied — and remand for proceedings consistent with this order.

I.

Hobart Anderson filed to run as a write-in candidate in Kentucky's 1999 gubernatorial election. Because he and his slated running mate were not eligible to appear on the ballot for the general election, his campaign was not entitled to receive matching funds under Kentucky's Public Financing Campaign Act. Anderson alleges that the statutes he challenges proscribed several of the campaign activities he wanted to conduct, including: distributing within 500 feet of polling places literature instructing voters on how to cast a write-in ballot; soliciting and accepting contributions after the date of the general election; accepting cash contributions by selling items at fundraisers; lending over $50,000 of his own funds to his campaign; and soliciting and accepting contributions within twenty-eight days of the election. Mr. Anderson therefore filed this suit in October 1999 seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983. The suit challenges nine separate Kentucky statutes regulating the conduct of elections and campaign finance: (1) KRS § 117.235(3), which prohibits "electioneering" within 500 feet of polling places; (2) § 121A.080(6), a "turn-over" provision requiring campaigns to turn over unexpended funds to the State; (3) § 121.150(16), prohibiting post-election solicitation of contributions; (4) § 121A.050(2), prohibiting cash contributions; (5) § 121.150(13) & (21), providing that a candidate may not loan more than $50,000 of his personal funds to his campaign; (6) §§ 121.150(24) & 121A.030(5), prohibiting solicitation and acceptance of contributions within twenty-eight days before an election; (7) § 121A in general, regulating the public financing of elections; (8) § 121A.080(4)-(5), which allows candidates receiving public financing to exceed the contributions limit when other candidates do so; and (9) § 121A.010(11), which defines "contribution" as including a candidate's personal funds. The district court granted summary judgment for the Defendants on all counts. Anderson timely appealed to this court. The parties do not dispute any facts, and all of the issues presented in the lawsuit are questions of law.

II.

This court reviews the grant of a motion for summary judgment de novo. Faughender v. City of North Olmsted, 927 F.2d 909, 911 (6th Cir.1991). As an initial matter, we must consider whether certain claims in the case are moot. Counsel at oral arguments asked us to take judicial notice of the fact that the Kentucky legislature has defunded the public finance program in the most recent budget, which states in relevant part:

Notwithstanding KRS 118.255(3), 121.150, 121A.015(5), 121A.020, 121A.030, 121A.040, 121A.060, and 121A.080, no funds shall be appropriated to or received into the election campaign fund established by KRS 121A.020, and the Registry of Election Finance shall make no transfer of funds to any slate of candidates from the election campaign fund for any election. Notwithstanding KRS 121.150(24) and 121A.030(5), slates of candidates may accept contributions within the last 28 days immediately preceding a primary or general election, and in addition to the provisions of KRS 121A.020(5), all contributions to slates of candidates made within the last 28 days immediately preceding a primary or general election shall be reported to the Registry of Election Finance within 24 hours of receipt. All other statutes contained in KRS Chapter 121A shall remain in effect for all slates of candidates, except that KRS 121A.080(6) shall not apply, and slated candidates shall be governed instead by KRS 121.180(10), and KRS 121A.030(4) shall not apply, and all slated candidates may receive contributions from permanent committees which, in the aggregate, shall not exceed 25 percent of the contributions received by the slate in any one election up to a maximum of $300,000 in any one election.

Act of March 23, 2003, ch. 156, 2003 Ky. Laws H.B. 269. Accordingly, Appellant will not be subjected to the operation of the public finance system, the 28-day prohibition on contributions prior to elections, or the trigger provision for the duration of Kentucky's current budget cycle. The question then is whether Anderson's claims related to those features of the public financing system continue to raise issues "affect[ing] the rights of the litigants" in this case. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971).

This court has previously found that Congress may, through appropriations acts, "suspend, amend, or repeal a statute, so long as it does so clearly." Mullis v. United States, 230 F.3d 215, 217 (6th Cir.2000). In Mullis, the plaintiff filed a petition asking the court pursuant to 18 U.S.C. § 925(c) to remove his firearm disability. Section 925(c) permits a district court to review a decision by the Secretary of Treasury to deny an application for relief of firearms disability. However, Congress had passed eight consecutive appropriations bills prohibiting the Secretary of Treasury from expending any funds to review these applications. Id. at 217. The court found that Congress clearly intended to suspend all relief that was otherwise statutorily authorized by defunding such relief. Id. at 218. In Mullis, the issue before us was whether the court's jurisdiction under § 925(c) extended only to reviewing the discretion of the Secretary, or whether the federal court had a basis for independent judicial review of Mullis's application for removal of disability. Id. at 219. The case did not involve a facial challenge, but only addressed Mr. Mullis's particular petition. Because the Secretary had not rendered a decision to review, this court found that the federal courts lacked jurisdiction.

Applying to state lawmakers Mullis's premise that the legislature may "suspend, amend or repeal" a statute by clear operation of appropriation acts, the question arises whether the acts of the Kentucky legislature in defunding the various parts of this campaign funding scheme renders Mr. Anderson's claims moot.1 Importantly, Mr. Anderson's claims are not limited to this budget cycle. Appellant challenges the application of the 28-day prohibition on contributions and the trigger provision as applied to his candidacy in 1999, and challenges the apportionment of public benefits accomplished by the public funding scheme on its face. As is readily apparent, the action of the legislature suspending the operation of certain provisions of the campaign law does not eliminate the case or controversy which existed by the operation of those laws in 1999. Furthermore, because these laws are still on Kentucky's books, the legislature may choose at any time to allocate funds to the public finance program. Indeed, unlike Mullis, in which the legislature evidenced its intent to cease the operation of the law without regard to budgetary considerations, here there is nothing to suggest that the Kentucky legislature will not choose to refund the campaign scheme at the first fiscally feasible moment. The legislature's suspension of the operation of extant laws is not sufficient to deprive this court of jurisdiction, for it is well-settled that "`voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.'" DeFunis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Accordingly, because Mr. Anderson's claims involve a live case or controversy, Kentucky's recent budgetary legislation does not deprive this court of jurisdiction.

III. WHETHER KENTUCKY'S RESTRICTION ON ELECTIONEERING WITHIN 500 FEET OF POLLING PLACES (KRS § 117.235) IS UNCONSTITUTIONALLY OVERBROAD

The Kentucky legislature prohibits campaign activities near polling places on the date of an election: "No person shall, on the day of any election ... do any electioneering at the polling place or within a distance of five hundred (500) feet of a county clerk's office or any entrance to a building in which a voting machine is located...." KRS § 117.235(3). Anderson brings a two-pronged challenge to the statute, alleging first that the 500-foot buffer zone is generally overbroad in violation of the First Amendment, and second that the definition of electioneering is unconstitutionally overbroad because it includes political...

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