Emineth v. Jaeger, Case No. 1:12–cv–139.

CourtUnited States District Courts. 8th Circuit. United States District Court of North Dakota
Writing for the CourtDANIEL L. HOVLAND
Citation901 F.Supp.2d 1138
Docket NumberCase No. 1:12–cv–139.
Decision Date31 October 2012
PartiesGary EMINETH, Plaintiff, v. Alvin JAEGER, Secretary of State of North Dakota, in his official capacity; Wayne Stenehjem, Attorney General of North Dakota, in his official capacity; Richard J. Riha, Burleigh County State's Attorney, in his official capacity, Defendants.

901 F.Supp.2d 1138

Gary EMINETH, Plaintiff,
v.
Alvin JAEGER, Secretary of State of North Dakota, in his official capacity; Wayne Stenehjem, Attorney General of North Dakota, in his official capacity; Richard J. Riha, Burleigh County State's Attorney, in his official capacity, Defendants.

Case No. 1:12–cv–139.

United States District Court,
D. North Dakota,
Southwestern Division.

Oct. 31, 2012.






Held Unconstitutional


NDCC § 16.1–10–06

[901 F.Supp.2d 1140]

Monte Lane Rogneby, Vogel Law Firm, Bismarck, ND, for Plaintiff.


ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

DANIEL L. HOVLAND, District Judge.

Before the Court is a “Motion for Preliminary Injunction” filed by the Plaintiff on October 25, 2012. See Docket No. 12. The defendants filed responsive briefs on October 29, 2012. See Docket Nos. 13–14. The parties have agreed there is no need for a hearing on the motion and the matter may be decided on the briefs. For the reasons set forth below, the motion is GRANTED.

I. BACKGROUND

The plaintiff, Gary Emineth, is a resident of Lincoln, North Dakota. Emineth challenges the constitutionality of Section 16.1–10–06 of the North Dakota Century Code, which provides as follows:

16.1–10–06. Electioneering on Election Day—Penalty.

Any person asking, soliciting, or in any manner trying to induce or persuade, any voter on an election day to vote or refrain from voting for any candidate or the candidates or ticket of any political party or organization, or any measure submitted to the people, is guilty of an infraction. The display upon motor vehicles of adhesive signs which are not readily removable and which promote the candidacy of any individual, any political party, or a vote upon any measure, and political advertisements promoting the candidacy of any individual, political party, or a vote upon any measure which are displayed on fixed permanent billboards, may not, however, be deemed a violation of this section.

[901 F.Supp.2d 1141]

Emineth seeks to exercise his First Amendment right to engage in political activity on November 6, 2012—Election Day. He contends the North Dakota statute is an unconstitutional abridgment of his First Amendment right to free speech as incorporated against the states by the Fourteenth Amendment. Emineth is currently engaged in constitutionally-protected speech through a display of election yard signs on his private property, and he does not wish to take those signs down on November 6, 2012, as required by North Dakota law. Emineth states that he wishes to speak in support of candidates on Election Day by distributing flyers in public places, which state law prohibits. Emineth states that he frequently discusses the upcoming election with friends, family members, associates, and neighbors, and seeks to continue to do so on Election Day, but state law prohibits such actions. Emineth contends the plain language of Section 16.1–10–06 criminalizes all speech aimed at persuading a voter to cast (or not cast) his or her ballot in any particular way on Election Day. He argues that outlawing this conduct before it even takes place imposes a prior restraint on constitutionally-protected speech. Under North Dakota law, if a private individual advocates for or against a candidate, a ballot measure, or any party on an election day—whether to a family member, neighbor, friend, associate, or any other voter—that individual is subject to criminal prosecution. There are few exceptions to criminal prosecution, other than the limited exception for billboards and bumper stickers with particular adhesion qualities. SeeN.D.C.C. § 16.1–10–06.

II. LEGAL DISCUSSION

In determining whether a preliminary injunction should be granted, Rule 65(b) of the Federal Rules of Civil Procedure directs the court to assess whether immediate and irreparable injury, loss, or damage will result to the applicant. The court is required to consider the factors set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981). Whether a preliminary injunction or temporary restraining order should be granted involves consideration of “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Id.

It is well-established that the burden of establishing the necessity of a temporary restraining order or a preliminary injunction is on the movant. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989). “ ‘No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction.’ ” Baker Elec. Coop., Inc., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir.1987)).

A. IRREPARABLE HARM

The plaintiff must show there is a threat of irreparable harm if injunctive relief is not granted, and that such harm is not compensable by money damages. Doe v. LaDue, 514 F.Supp.2d 1131, 1135 (D.Minn.2007) (citing Northland Ins. Cos. v. Blaylock, 115 F.Supp.2d 1108, 1116 (D.Minn.2000)). “The ‘mere possibility’ that harm may occur before a trial on the merits is not enough.” Johnson v. Bd. of Police Comm'rs, 351 F.Supp.2d 929, 945 (E.D.Mo.2004). The party that seeks injunctive relief must show that a significant risk of harm exists. Doe, 514 F.Supp.2d at 1135 (citing

[901 F.Supp.2d 1142]

Johnson, 351 F.Supp.2d at 945). The absence of such a showing is sufficient grounds to deny injunctive relief. Id. (citing Gelco Corp. v. Coniston Partners, 811 F.2d 414, 420 (8th Cir.1987)).

It is axiomatic to say that the “protection [of political speech] lies at the heart of the First Amendment.” Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 400, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (Breyer, J., concurring). The United States Supreme Court has recognized that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In this case, North Dakota's enforcement of the electioneering ban will prevent Emineth from expressing his support for candidates in the overall context of the 2012 election cycle; specifically, on Election Day. Elections are, by nature, time sensitive and finite. While there will be other elections, no future election will be this election. Emineth is desirous of voicing his support for the specific candidates running for election on November 6, 2012. If he is forbidden from doing so, no court can offer the equitable relief of going back to November 6, 2012, once that day has passed. Thus, the harm Emineth suffers will arguably be irreparable.

The Eighth Circuit Court of Appeals said that, “[i]f [plaintiff] can establish a sufficient likelihood of success on the merits of [his] First Amendment claim, [he] will also have established irreparable harm.” See Phelps–Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008), overruled on other grounds by Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir.2012). The Court finds this Dataphase factor weighs in favor of granting a preliminary injunction.

B. BALANCE OF HARM.

In the context of injunctions, the Eighth Circuit has noted that “[t]he balance of equities ... favors the constitutionally-protected freedom of expression.” Phelps–Roper v. Nixon, 545 F.3d at 690. This case hinges upon the First Amendment freedom of speech on a crucial day—Election Day 2012. At issue is a unique and broad provision of state election law enacted in 1981, which prohibits electioneering on an election day. The State indicates that a similar prohibition has existed in North Dakota statutory law since at least 1911. See 1911 N.D. Sess. Laws, ch. 129 § 16. The purpose of the original law was to “Secure the Purity of Elections ...”. Id.1 A cursory review of the statute raises serious questions as to its constitutionality and its justification in modern day society. Thousands of voters in Burleigh County, and throughout the State of North Dakota, have already cast their ballot at the polls—all while being constantly bombarded by political ads designed to “induce or persuade” them to vote a certain way in this election. While the public interest in upholding Emineth's free speech rights is great, no party has an interest in the enforcement of an unconstitutional law. The Court finds this Dataphase factor weighs in favor of the issuance of a preliminary injunction.

C. PUBLIC INTEREST.

The First Amendment is the foundation to our political process. Thus,

[901 F.Supp.2d 1143]

vindication of the rights it guarantees would rarely serve the public more than on an election day. In the context of an injunction, “the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights.” Phelps–Roper, 545 F.3d at 690; see Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996, 1004 (8th Cir.2012) (noting that a likely First Amendment violation favors the issuance of an injunction). It is undisputed that the “public interest favors protecting core First Amendment freedoms.” See Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir.1999). Thus, the Court finds this Dataphase factor also weighs in favor of the issuance of a preliminary injunction.

D. PROBABILITY OF SUCCESS ON THE MERITS.

The electioneering ban in North Dakota was enacted in 1981, and expressly prohibits “[a]ny person asking, soliciting, or in any manner trying to induce or persuade, any voter on an election day to vote or refrain from voting for any candidate or...

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2 practice notes
  • State v. Francis, No. 20150280.
    • United States
    • United States State Supreme Court of North Dakota
    • 20 de julho de 2016
    ...Id. at 199–200, 112 S.Ct. 1846.[¶ 12] The more difficult question is whether the statute is “narrowly tailored.” In Emineth v. Jaeger, 901 F.Supp.2d 1138, 1146 (D.N.D.2012), a North Dakota statute prohibiting all electioneering speech on election day, besides permanent advertisements and bu......
  • Human Rights Def. Ctr. v. Baxter Cnty., CASE NO. 5:17-CV-3070
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 5 de dezembro de 2017
    ...due process claim.4. Public Interest The public interest unequivocally favors protecting First Amendment liberties. Emineth v. Jaeger, 901 F. Supp. 2d 1138, 1143 (D.N.D. 2012) (quoting Iowa Right to Life Comm. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999)). Also, because the protection of ......
2 cases
  • State v. Francis, No. 20150280.
    • United States
    • United States State Supreme Court of North Dakota
    • 20 de julho de 2016
    ...Id. at 199–200, 112 S.Ct. 1846.[¶ 12] The more difficult question is whether the statute is “narrowly tailored.” In Emineth v. Jaeger, 901 F.Supp.2d 1138, 1146 (D.N.D.2012), a North Dakota statute prohibiting all electioneering speech on election day, besides permanent advertisements and bu......
  • Human Rights Def. Ctr. v. Baxter Cnty., CASE NO. 5:17-CV-3070
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • 5 de dezembro de 2017
    ...due process claim.4. Public Interest The public interest unequivocally favors protecting First Amendment liberties. Emineth v. Jaeger, 901 F. Supp. 2d 1138, 1143 (D.N.D. 2012) (quoting Iowa Right to Life Comm. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999)). Also, because the protection of ......

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