Canyon Ferry Baptist Church, E. Helena v. Unsworth, No. 06-35883.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Canby
• Citation: 556 F.3d 1021
• Parties: CANYON FERRY ROAD BAPTIST CHURCH OF EAST HELENA, INC.; Berthold Gotlieb Stumberg, III, "B.G.", Plaintiffs-Appellants, v. Dennis UNSWORTH, Montana Commissioner of Political Practices, in his official and individual capacity, Defendant-Appellee.
• Decision Date: 25 February 2009
• Docket Number: No. 06-35883.

556 F.3d 1021 CANYON FERRY ROAD BAPTIST CHURCH OF EAST HELENA, INC.; Berthold Gotlieb Stumberg, III, "B.G.", Plaintiffs-Appellants,
v.
Dennis UNSWORTH, Montana Commissioner of Political Practices, in his official and individual capacity, Defendant-Appellee. No. 06-35883. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 4, 2008. Filed February 25, 2009.

[556 F.3d 1023]

Dale Schowengerdt, Alliance Defense Fund, Scottsdale, AZ, for the plaintiffs-appellants.

Anthony Johnstone, Deputy State Attorney General, Office of the Montana Attorney General, Helena, MT, for the defendant-appellee.

Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia; Jonathan R. Motl, Reynolds, Motl & Sherwood, Helena, MT; for Amici Curiae.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CV-04-00024-DWM.

Before: HARRY PREGERSON, WILLIAM C. CANBY, JR., and JOHN T. NOONAN, Circuit Judges.

Opinion by Judge Canby; Concurrence by Judge Noonan.

CANBY, Circuit Judge:

Canyon Ferry Road Baptist Church challenges certain provisions of Montana's campaign finance law requiring reporting and disclosure of campaign contributions or expenditures. The Church challenges the statutory provisions both facially and as applied to its activities of de minimis economic effect in support of a 2004 state ballot initiative. Following an adverse administrative decision by the Montana Commissioner of Political Practices, the Church brought this action in federal court, claiming that the Commissioner's decision violated its First Amendment and due process rights and seeking declaratory relief as well as nominal damages. On cross-motions for summary judgment, the district court upheld the Montana law against all challenges. We reverse.

556 F.3d 1024

BACKGROUND

Canyon Ferry Road Baptist Church, an incorporated religious institution located in East Helena, Montana, generally adheres to the Christian doctrines of the Southern Baptist Convention. Among these doctrines is the belief that marriage may exist only between one man and one woman.

In the spring of 2004, the Church's Pastor, Berthold Gotlieb Stumberg, III, became interested in possible ways in which the Church could assist in an effort to collect signatures to place Constitutional Initiative No. 96 ("CI-96") on the Montana state ballot the following November. If placed on the ballot and approved by Montana's voters, CI-96 would amend the Montana state constitution to define marriage as a union between one man and one woman. For the signatures to be effective, the signed petition forms had to be turned over to the sponsoring organization and then submitted to appropriate election officials no later than June 18, 2004.

In May 2004, Terri Paske, a member of the Church who campaigned for CI-96 in partnership with Jeff Laszloffy,¹ printed out a template CI-96 petition from the Montana Family Foundation website and made less than fifty copies of the petition on the Church's copy machine, using her own paper. With Stumberg's approval, Paske placed roughly twenty copies of the petition in the Church's foyer.

At about the same time, Stumberg began making arrangements for the Church's congregation to view an audio-visual simulcast entitled Battle for Marriage. The Battle for Marriage simulcast included presentations by several prominent religious leaders on the topic of marriage. Stumberg planned to have it screened in connection with a regularly scheduled Sunday evening service on May 23, 2004. There is no evidence in the record that the Church was charged any fees for access to the Battle for Marriage simulcast.

The Church advertised the upcoming screening, which was open to the public, through unpaid public service announcements aired by five radio stations. Although the Church often incorporates simulcasts in its services and all of the Church's services are open to the public, the Battle for Marriage was the only simulcast for which the Church secured public service announcements on the radio. In addition, the Church photocopied and circulated flyers publicizing the event, the template for which had been provided to the Church by the organizers of the simulcast. The flyers were placed in the Church's bulletin and Stumberg encouraged members of the congregation to take the flyers to their workplace and "let people see it." The flyers did not mention CI-96.

On May 23, 2004, ninety-three people attended the Battle% for Marriage event, well above the average attendance for a typical Sunday evening service at the Church. The congregation and members of the public watched the Battle for Marriage simulcast. In addition to televised presentations by several Christian ministers, the simulcast discussed a proposed amendment to the United States Constitution that would establish a definition of marriage as being solely between one man and one woman. It did not expressly support or oppose any Montana ballot issue or candidate for public office.

After the Battle for Marriage program ended, Stumberg spoke to those in attendance about CI-96. He said that the threat

556 F.3d 1025

to marriage also existed in Montana, and that the congregation should resist it in prayer and by signing the CI-96 petition. Stumberg told the audience that they "need[ed] to sign" the CI-96 petition and that he would "encourage[ ] everyone to sign it. This is one of the ways that we take a stand for righteousness." He then indicated that CI-96 petitions were available in the foyer near the Church's exits. The following Sunday, Stumberg circulated the CI-96 petition for signature among the attendees at each of the Church's three services that day during announcement time. The petitions remained available in the Church's foyer for signature until they were submitted on June 13, 2004.

By June 13, 2004, the petitions made available in the Church's foyer contained ninety-eight valid signatures of residents of Lewis and Clark County.² Ninety-two of these came from members of the Church. Paske had the forms notarized and mailed copies of the signed petitions to the designated county officials for filing and to Laszloffy. The sponsors of CI-96 ultimately obtained the requisite number of signatures and the initiative was placed on the November ballot. It was passed by the voters of Montana by a margin 295,070 Yes votes to 148,263 No votes (66.5% to 33.5%).

On May 26, 2004, an advocacy group called "Montanans for Families and Fairness" filed a Campaign Finance and Practices Complaint against the Church. The complaint alleged that the Church, by its "expenditures" in connection with the May 23 event to support CI-96, had created an "incidental political committee" within the meaning of Montana's campaign finance laws but had not filed the required disclosure forms. After completing an investigation, the state Commission of Political Practices ("Commission") issued an administrative decision. It found that

it is clear that when the Church and pastor Stumberg chose to engage in activities supporting the effort to place CI-96 on the ballot, the Church became an incidental political committee under Montana law, with corresponding reporting obligations. Use of the Church's facilities to obtain signatures on CI-96 petitions, along with Pastor Stumberg's encouragement of persons to sign the CI-96 petitions during regularly scheduled Church services, obviously had value to the campaign in support of CI-96. Pastor Stumberg was not acting as a volunteer when he engaged in the activities supporting CI-96, since those activities occurred in the Church building and during regularly scheduled Church services.³

The Church and Stumberg (collectively, the "Church") brought this action under 42 U.S.C. § 1983 for declaratory relief and nominal damages. The Church challenges the Commissioner's application of Montana's disclosure and reporting provisions. It argues that, as interpreted by the Commission, Montana's disclosure and reporting provisions are impermissibly vague, in violation of the Due Process Clause of the Fourteenth Amendment. It also argues that the provisions are overbroad and violate the Church's First Amendment rights of free speech, association, and free exercise of religion. The parties filed cross-motions

556 F.3d 1026

for summary judgment and the district court dismissed the complaint, rejecting all the claims asserted by the Church. The Church appeals. We have jurisdiction under 28 U.S.C. § 1291.

STATUTORY BACKGROUND

Since the 1970s, Montana has required "political committees" to disclose expenditures and contributions made toward candidate elections and ballot issues and to comply with additional reporting requirements. In relevant part, the key term "political committee" is defined as "a combination of two or more individuals or a person other than an individual who makes a contribution or expenditure . . . to support or oppose a ballot issue or a committee organized to support or oppose a ballot issue. . . ." Mont.Code. Ann. § 13-1-101(20).⁴ Montana's Administrative Rules refine this definition by differentiating among three different types of "political committees": "principal campaign committees," "independent committees," and "incidental committees." Mont. Admin. R. 44.10.327(1). The Commission found the Church to be an "incidental committee," which is defined as "a political committee that is not specifically organized or maintained for the primary purpose of influencing elections but that may incidentally become a political committee by making a contribution or expenditure to support or oppose a candidate and/or issue."⁵ Mont. Admin. R. 44.10.327(2)(c).

The designation of a group or entity as an "incidental committee," then, turns on the definition of the terms "contribution" and "expenditure"; if two or more persons make a contribution or expenditure for or against a candidate or ballot...