Brownsburg Area Patrons Affecting Change v. Baldwin

Decision Date24 February 1998
Docket NumberNo. 96-3981,96-3981
Citation137 F.3d 503
PartiesBROWNSBURG AREA PATRONS AFFECTING CHANGE and John Patten, Plaintiffs-Appellants, v. Patricia BALDWIN, Prosecuting Attorney for Hendricks County, Jeffrey Modisett, Indiana Attorney General, William Daily, Chairman of the Hendricks County Election Board, Connie Lawson, Secretary of the Hendricks County Election Board, Dolly Starnes, Member of the Hendricks County Election Board, Anthony Long, Chairman of the Indiana Election Commission, 1 Butch Morgan, Member of the Indiana Election Commission, Joseph M. Perkins, JR., Member of the Indiana Election Commission, Dudley Cruea, Member of the Indiana Election Commission, 2 Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

James Bopp, Jr. (argued), John K. Abegg, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs-Appellants.

Phillip D. Hatfield, Jon B. Laramore (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees Baldwin, Modisett & Long.

Paul A. Hadley, Michael G. Worden, Danville, IN, for Defendants-Appellees Dailey, Lawson & Starnes.

Before COFFEY, EASTERBROOK and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Brownsburg Area Patrons Affecting Change ("BAPAC") and its founder and leader, John Patten, 3 filed an interlocutory appeal under 28 U.S.C. § 1292(a)(1) after their request to the district court for a preliminary injunction was denied. Because this case presents an important issue regarding the interpretation of a state statute, we certify this case to the Supreme Court of Indiana.

I. BACKGROUND

BAPAC is a group of citizens located in Hendricks County, Indiana, organized to inform and educate local citizens on political, social, and economic issues; to act as a conduit for presenting citizens' views to local public officials; and to advise citizens on the positions of local public figures. BAPAC describes itself as non-partisan and voluntary, with no officials or board members. BAPAC accomplishes its mission in part by recording and disseminating information on a telephone hotline regarding candidates' positions on issues. The hotline message sometimes indicates whether a candidate's position is in accordance with the views of BAPAC. BAPAC also prepares and distributes flyers on various candidates and issues.

Prior to the primary election in May 1996, BAPAC aired a message on its hotline that discussed certain candidates' positions on various issues. On June 6, 1996, William Daily, the chairman of the Hendricks County Election Board ("Board"), sent a letter to BAPAC indicating that BAPAC might be considered a "political action committee" ("PAC") as defined by Indiana law. 4 As a PAC, BAPAC would be subject to certain Indiana registration and reporting laws. The letter asked BAPAC for a statement as to why these laws did not apply to BAPAC. On August 6, 1996, BAPAC's lawyer responded with a letter to Daily asserting that BAPAC could not be considered a PAC because its "major purpose [was] not to expressly advocate the election or defeat of any candidate." In late August, Daily wrote a letter to BAPAC stating that the Board had not as of this date reached a final decision regarding BAPAC's status but that the audio tape of the hotline message appeared to be an attempt to influence an election. The letter stated further that if BAPAC had spent over $100 to influence the outcome of a particular race, BAPAC must file the reports as required under Indiana law. BAPAC spent $464 in cash or in kind on advocacy activities in 1996.

In September 1996, BAPAC filed a complaint and a motion for a preliminary injunction in federal district court. BAPAC alleges that the definition of "political action committee" under Indiana election law is unconstitutionally overbroad because it impermissibly regulates "issue advocacy," that is, advocacy on politically or socially relevant issues that is not associated with express advocacy in support of certain candidates or electoral outcomes. BAPAC also seeks to challenge the law on the ground that the definition of a PAC includes groups whose "major purpose" is not to engage in express advocacy. BAPAC sought a preliminary injunction to prevent the enforcement of the alleged unconstitutional Indiana election law provisions. On October 11, 1996, the district court held a hearing on the motion for a preliminary injunction. The district court issued its written decision on October 23, 1996, denying the request for a preliminary injunction because it concluded that BAPAC did not possess a likelihood of success on the merits. The district court found that the Indiana statutory language did not regulate issue advocacy based on the Supreme Court's interpretation of similar language in the Federal Election Campaign Act of 1971. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Because BAPAC engaged only in issue advocacy, the district court concluded that it was not a PAC under Indiana law; accordingly, the preliminary injunction was not necessary. Since BAPAC was not a PAC, the district court stated that it did not possess standing to challenge the constitutionality of the statute on the alternate ground that its major purpose was not to engage in express advocacy. 5 BAPAC appeals contending that the district court erred in narrowly construing the relevant portion of the Indiana election law and that the district court erred in concluding that BAPAC did not have standing to challenge the statute based on its alleged failure to incorporate "major purpose" language.

II. ANALYSIS

At oral argument, we asked counsel for BAPAC whether this case was suitable for certification to the Supreme Court of Indiana as it appeared to turn so decisively on the Indiana court's interpretation of its own law. Although BAPAC stated that certification was unnecessary, we conclude that it is and certify this case.

A. District Court's Interpretation of State Law

BAPAC is in the peculiar position of challenging the constitutionality of the Indiana election statute in this court when it essentially prevailed in the district court on statutory interpretation grounds. The district court held that the definition of a PAC does not include organizations engaged only in issue advocacy, and consequently, that BAPAC is not a PAC as defined by Indiana law and so need not comply with the registration and reporting requirements imposed on PACs in Indiana. BAPAC, however, argues now that the district court's interpretation of the statute is incorrect, and thus, asserts that its request for a preliminary injunction should not have been denied. It argues that, in fact, it is a PAC as defined by Indiana statute and accordingly, that the Indiana statute is unconstitutional because it regulates issue advocacy, the only activity in which BAPAC is engaged.

In Buckley, the Supreme Court addressed various constitutional challenges to the Federal Election Campaign Act of 1971 ("FECA"). The Court recognized the important First Amendment interest in protecting political speech, including discussions surrounding elections and candidates. Buckley, 424 U.S. at 14, 96 S.Ct. at 632 ("The First Amendment affords the broadest protection to such political expression in order to 'assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' ") (internal citation omitted). Because of the vital importance in protecting such speech, the Buckley Court articulated what has come to be known as the "express advocacy" test by stating that the statutory expenditure limit at issue in that case "must be construed to apply to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S. at 44, 96 S.Ct. at 646-47 (emphasis added). The Court noted in a footnote that the limitation on expenditures was restricted to "communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.' " Id. at 44 n. 52, 96 S.Ct. at 647 n. 52. Communication that does not constitute express advocacy is generally not susceptible to regulation under the First Amendment. Id. at 14-15, 96 S.Ct. at 632-33.

The Indiana statute defines PACs, in part, as groups that spend more than $100 to "influence the election of a candidate ... or the outcome of a public question." Ind.Code § 3-5-2-37(a)(1). The district court construed the phrase "influence the election of a candidate ... or the outcome of a public question" to mean "expressly advocate the election or defeat of a clearly defined candidate." Because BAPAC engages only in issue advocacy rather than express advocacy, the district court concluded that BAPAC would not fall within this definition and thus would not be considered a PAC. Accordingly, the district court stated that BAPAC lacked standing to challenge the constitutionality of the statute based on the "major purpose" test.

The district court based its construction of the Indiana statutory language on the Supreme Court's interpretation of similar language in FECA. FECA required any individual or group (other than a political committee or candidate) who made contributions or expenditures aggregating over $100 in a calendar year to file a statement with the Federal Election Commission. Buckley, 424 U.S. at 74-75, 96 S.Ct. at 660-62. The definitions of "contributions" and "expenditures" were based on whether the money was used "for the purpose of ... influencing" the nomination or election of a candidate. The Court concluded that while such language could include "both issue discussion and advocacy of a political result," it would narrowly construe the statute to apply only to expenditures that were used to "expressly advocate the election or defeat of a clearly identified...

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