Chamber of Commerce of U.S. v. Moore
| Decision Date | 02 November 2000 |
| Docket Number | No. 3:00CV778WS.,3:00CV778WS. |
| Parties | CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Plaintiff, v. Michael MOORE, Attorney General, State of Mississippi, Eric Clark, Secretary of State, State of Mississippi Defendants |
| Court | U.S. District Court — Southern District of Mississippi |
Michael B. Wallace, Christopher R. Green, Phelps Dunbar, Jackson, Jan Witold Baran, Wiley, Rein & Fielding, Bobby R. Burchfield, Covington & Burling, Washington, DC, for Chamber of Commerce of the United States of America, plaintiffs.
Eugene Carroll Stone, III, T. Hunt Cole, Jr., Harold Edward Pizzetta, III, Office of the Attorney General, Jackson, for Mike Moore, Attorney General, State of Mississippi, Eric Clark, Secretary of State, State of Mississippi, defendants.
Before the court is plaintiff's Motion for Expedited Declaratory Relief under Title 28 U.S.C. §§ 22011 and 22022. By its motion, plaintiff Chamber of Commerce of the United States of America (hereinafter "Chamber") asks this court to declare that it may televise certain political advertisements favoring specific candidates for the popularly elected Mississippi Supreme Court without being subjected to Mississippi's law pertaining to election contributions and reporting. To be answerable under Mississippi's laws, says the Chamber the independent expenditure by a third party must expressly advocate the election or defeat of a clearly identified candidate without cooperation or consultation with any candidate or any authorized committee or agent of such candidate, and which is not made in concert with or at the request or suggestion of any candidate or any authorized committee or agent of such candidate. According to the Chamber, their advertisements discuss issues of public interest; have not been coordinated with any particular candidates; and do not advocate for the election of any candidate. Thus, says the Chamber, if subjected to Mississippi's contribution limits and reporting requirements, it will suffer a severe impairment of its free speech rights under the First Amendment of the United States Constitution.3
The Attorney General and the Secretary of State of the State of Mississippi (hereinafter "the State of Mississippi"), defendants in this cause, are opposed to plaintiff's requested declaratory relief. Admitting that they have no proof whatsoever of any collaboration between the Chamber and the candidates involved in the advertisements, the defendants contend that plaintiff's advertisements cross the boundary of issue advocacy into the arena of election advocacy and, thus, expressly advocate the election of the favored candidates for the four Mississippi Supreme Court seats.
This court's jurisdiction over this matter is asserted under Title 28 U.S.C. §§ 13314, 13345 and Title 42 U.S.C. § 19836.
The State of Mississippi is currently in election season. In addition to the national election for President of the United States and members of Congress, Mississippi is also occupied with electing four members of its Supreme Court. Comprised of nine Justices who hail from three separate districts, the Mississippi Supreme Court, a popularly elected body, is the highest court in the State, standing in review of decisions rendered in the lower County, Circuit, Chancery, and Appeals Courts, themselves staffed by judges who are popularly elected. Except in event of a vacancy when the Governor of the State is empowered to appoint the office-holder, the members of the Mississippi Supreme Court are popularly elected by the citizenry of the respective districts and serve a term of eight years before having again to test the public's confidence at the polls. Although the contenders for the Mississippi Supreme Court are not allowed to run for the office on political party labels7, the contenders, as any other office-seekers, strive to raise campaign funds, acquire television and radio appearances and post election signs. Predictably, the candidates, whether incumbent or challenger, run on their qualifications, accomplishments and experience. And, since elections for Mississippi Supreme Court Justices, in character and procedure, are alike any other State election, these elections, too, are covered by Mississippi's election disclosure and reporting laws found at Mississippi Code Annotated §§ 23-15-801, et seq.
On October 17, 2000 the United States Chamber of Commerce, a nonprofit corporation residing in the District of Columbia, began televising four advertisements in Mississippi which comment on the backgrounds and qualifications of four candidates for the Mississippi Supreme Court— incumbent Chief Justice Lenore Prather, Justices Jim Smith and Kay Cobb, and candidate Judge Keith Starrett. According to the Chamber, these advertisements do not fall within the embrace of Mississippi's election disclaimer and reporting laws because these advertisements do not advocate for the election or defeat, of these, or any candidates.
State Attorney General Mike Moore and Secretary of State Eric Clark disagree, contending further that these advertisements constitute "independent expenditures" subject to the reporting requirements of Mississippi Code Annotated §§ 23-15-801(j)8 and 8099. Faced with the perceived risk of civil and criminal penalties10 for continuing to televise these advertisements, the Chamber brought this lawsuit seeking to have this court declare its rights in this matter.
The four advertisements precipitating this lawsuit are marked as Exhibits B, C, D and E to the plaintiff's complaint. Each advertisement is described below.
Exhibit B begins with the photograph of a gavel and a picture of Chief Justice Lenore Prather slowly materializes in the background. The narration states, "Lenore Prather -Chief Justice of Mississippi's Supreme Court; Lenore Prather—using common sense principles to uphold the law; Lenore Prather—putting victims rights ahead of criminals and protecting our Supreme Court from the influence of special interests." As the narration proceeds, the words "Chief Justice," "Common Sense," and "Victims Rights" appear on the screen. The narrator then states that Lenore Prather was the first woman appointed to the Mississippi Supreme Court, and that she has thirty-five years of experience.
Exhibit C begins with the narration, "Keith Starrett—a common sense Justice." As pictures of Judge Starrett appear on the screen, followed by scenes of school children and scenes of citizens going about their daily routines, the narrator says that Keith Starrett formed the first drug court in Mississippi, and that Starrett's drug court saved taxpayers over one half million dollars in the first year. Then, as the words "Baptist Deacon" and "Victim's Rights Count" appear on the screen, the narration states, "a Baptist Deacon who once headed South Mississippi Child Protection, Starrett knows victims have as much a right to justice as defendants do." The narration closes with, "Judge Keith Starrett—he knows victims rights count!"
Exhibit D is an advertisement touting incumbent Justice Kay Cobb. The narration provides the following, These words appear on the screen simultaneously as they are narrated. The narration then continues with, "Justice Kay Cobb has worked to end the judicial backlog, eliminate endless appeals and insure that death penalty cases are tried promptly." The narration concludes, "Justice Kay Cobb—victims rights count!"
Finally, Exhibit E is an advertisement for Justice Jim Smith. An American flag is in the background. The name Jim Smith remains visible throughout the narration, and a scales-of-justice appears in the left part of the screen. While the narration explains that Jim Smith uses common sense and puts victim's rights first, the words, "96% conviction rate" appear on the screen. The narrator states that, The narration ends with, "Judge Jim Smith—common sense on the bench!"
All of the advertisements are about thirty seconds in length, and direct the viewer to a web site, www.Litigation Fairness.org, which contains a link to web pages which urge the support of the election of two of these particular candidates, Justice Cobb and Judge Starrett, while presenting the biographies of Chief Justice Prather and Justice Smith. A sample of these web pages are attached to this opinion as an appendix.
The advertisements sub judice do not dwell on any particular issue, but instead ascribe attributes which a voter might find to be desirable in a candidate for judicial office to each of the named candidates. Nor do the advertisements discuss, mention, implicate or concern any person other than the particular candidate being touted in the advertisement. The prominent references to judicial philosophy (common sense) and victim's rights are not accompanied by any elaboration. While the plaintiff contends that technically there is no mention of an election in these advertisements, the State of Mississippi notes that they are being aired at the same time statewide judicial elections are being conducted.
A federal court must find that Article III standing...
To continue reading
Request your trial
-
Chamber of Commerce of U.S. v. Moore
...content of the advertisements and the court's view — as thoughtful as it may be — of "true issue advocacy." Chamber of Commerce v. Moore, 191 F.Supp.2d 747, 761 (S.D.Miss.2000); see also Furgatch, 807 F.2d at 864 (concluding that an advertisement was not "issue-oriented speech" because it "......