Justice v. Hosemann

• Decision Date: 03 November 2011
• Docket Number: Civil Action No. 3:11–CV–138–SA–SAA.
• Parties: Gordon Vance JUSTICE, Jr. et al., Plaintiffs v. Delbert HOSEMANN, in his official capacity as Mississippi Secretary of State; Jim Hood, in his official capacity as Attorney General of the State of Mississippi, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

829 F.Supp.2d 504

Gordon Vance JUSTICE, Jr. et al., Plaintiffs

v.Delbert HOSEMANN, in his official capacity as Mississippi Secretary of State; Jim Hood, in his official capacity as Attorney General of the State of Mississippi, Defendants.

Civil Action No. 3:11–CV–138–SA–SAA.

United States District Court, N.D. Mississippi,Western Division.

Nov. 3, 2011.

Russell Latino, Wells Marble & Hurst, PLLC, Jackson, MS, for Plaintiff.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

Plaintiffs have moved for a temporary restraining order and/or preliminary injunction to enjoin enforcement of Mississippi's political committee and individual registration, reporting, and disclosure laws (Miss.Code Ann. §§ 23–17–47 et seq. and Miss.Code Ann. §§ 23–15–801 et seq.). Plaintiffs contend these statutes impose an unconstitutional infringement on their rights to free speech and association. This Court held a hearing on November 1, 2011, and heard arguments from both sides. For the following reasons, the Court denies the motion.

FACTUAL BACKGROUND

Plaintiffs are “a group of like-minded friends and neighbors” who have been meeting regularly for the past few years, as a group and with others, to discuss the political issues of the day. According to Plaintiffs, they “have no formal organization or structure. They meet at their homes, at restaurants, and wherever else is convenient. They have no officers or directors, no bank account, and no member dues.” Plaintiffs wish to associate with one another and with others for the purposes of running independent political advertisements advocating the passage of Initiative 31, a proposed amendment to the Mississippi Constitution which will be decided by popular vote in the upcoming election on November 8, 2011. Initiative 31 would “amend the Mississippi Constitution to prohibit state and local government from taking private property by eminent domain and then conveying it to other persons or private businesses for a period of 10 years after acquisition. Exceptions from the prohibition include drainage and levee facilities, roads, bridges, ports, airports, common carriers, and utilities. The prohibition would not apply in certain situations, including public nuisance, structures unfit for human habitation, or abandoned property.”

Specifically, Plaintiffs “wish to pool their funds to purchase posters, buy advertising in a local newspaper, and distribute flyers targeted to Mississippi voters, urging them to vote for the passage of Initiative 31.” However, according to Plaintiffs, to undertake these activities, Plaintiffs would have to register as a “political committee” under Mississippi's campaign finance laws and comply with administrative, reporting, and disclosure requirements such as appointing a formal treasurer, filing a statement of organization, and filing regular reports with the State listing their names, addresses, occupations, and employers and the same information of anyone else who decides to add more than $200 to their cause. Plaintiffs contend that these laws substantially burden and chill the Plaintiffs' and others' rights to free speech under the First and Fourteenth Amendments to the United States Constitution. Plaintiffs wish to pool funds in excess of $200 and spend money on speech that supports Initiative 31, but claim they are inhibited from doing so because it would trigger Mississippi's campaign disclosure requirements. Plaintiffs contend that even purchasing a 1/4 page advertisement in the local newspaper for one day would cost more than $200 and trigger the reporting and disclosure requirements of Miss.Code Ann. §§ 23–17–47 et seq. and Miss.Code Ann. §§ 23–15–801 et seq.

Plaintiffs filed the instant lawsuit on October 20, 2011, seeking a declaratory judgment that Miss.Code Ann. §§ 23–17–47 et seq. and Miss.Code Ann. §§ 23–15–801 et seq. are unconstitutional on their face and as applied, as well as an injunction prohibiting their enforcement. On the same day, Plaintiffs also filed a motion for a Temporary Restraining Order (TRO) & Preliminary Injunction [3]. The State filed its response on October 27, 2011. At the hearing held on November 1, 2011, Plaintiffs announced that they seek an injunction prohibiting enforcement of Mississippi's political committee and individual registration, reporting and disclosures laws, as they apply to Plaintiffs, for contributions and expenditures of less $1,000 in support of Initiative 31.¹

STATUTORY FRAMEWORK

At issue are two sets of statutes mandating registration and disclosure of expenditures and contributions in support of or opposition to ballot measures: Miss.Code Ann. § § 23–15–801 et seq. and Miss.Code Ann. §§ 23–17–47 et seq. The provisions of the statutes Plaintiffs contend are applicable to them are as follows:

1. Miss.Code Ann. §§ 23–15–801 et seq.

Section 23–15–801(c) defines a “political committee” as “any committee, party, club, association, political action committee, campaign committee or other groups of persons or affiliated organizations which receives contributions aggregating in excess of Two Hundred Dollars ($200.00) during a calendar year or which makes expenditures aggregating in excess of Two Hundred Dollars ($200.00) during a calendar year for the purpose of influencing or attempting to influence the action of voters for or against ... balloted measures.” Miss.Code Ann. § 23–15–801(c). No later than ten days after “receipt of contributions aggregating in excess of Two Hundred Dollars ($200.00), or ... having made expenditures aggregating in excess of Two Hundred Dollars ($200.00),” each political committee must file a “statement of organization” with the Secretary of State's Office, containing: (1) the name and address of the committee and all officers and (2) a designation of a director of the committee and a custodian of books and accounts of the committee, who shall be designated treasurer. Miss.Code Ann. § 23–15–803.

Additionally, political committees must file pre-election reports, periodic reports every four years, and yearly reports in the three years between periodic reports. Miss.Code Ann. § 23–15–807(b). These reports must include:

(i) For the reporting period and the calendar year, the total amount of all contributions and the total amount of all expenditures of the candidate or reporting committee which shall include those required to be identified pursuant to item (ii) of this paragraph as well as the total of all other contributions and expenditures during the calendar year. Such reports shall be cumulative during the calendar year to which they relate;

(ii) The identification of:

1. Each person or political committee who makes a contribution to the reporting candidate or political committee during the reporting period, whose contribution or contributions within the calendar year have an aggregate amount or value in excess of Two Hundred Dollars ($200.00) together with the date and amount of any such contribution;

2. Each person or organization, candidate or political committee who receives an expenditure, payment or other transfer from the reporting candidate, political committee or its agent, employee, designee, contractor, consultant or other person or persons acting in its behalf during the reporting period when the expenditure, payment or other transfer to such person, organization, candidate or political committee within the calendar year have an aggregate value or amount in excess of Two Hundred Dollars ($200.00) together with the date and amount of such expenditure.

(iii) The total amount of cash on hand of each reporting candidate and reporting political committee;

Miss.Code Ann. § 23–15–807(d). Failure to comply with these regulations can carry fines of up to $500. Miss.Code Ann. § 23–15–813. Willful violations of these regulations are misdemeanors punishable by a fine of up to $3,000 and imprisonment of up to six months. Miss.Code Ann. § 23–15–811(a).

2. Miss.Code Ann. § 23–17–47 et seq.

Section 23–17–47 defines a “political committee” as “any person, other than an individual, who receives contributions ² or makes expenditures ³ for the purpose of influencing the passage or defeat of a measure on the ballot.” Miss.Code Ann. § 23–17–47. Each political committee must file with the Secretary of State a statement of organization no later than ten days after making expenditures in excess of $200 or receiving contributions in excess of $200. Miss.Code Ann. § 23–17–49. The statement shall include: (1) the name and address of the committee and all officers; (2) a designation of a director of the committee and a custodian of books and accounts of the committee, who shall be designated treasurer, and (3) a brief statement identifying the measure that the committee seeks to pass or defeat. Id.

Any political committee that either receives contributions in excess of $200 or makes expenditures in excess of $200 is additionally required to file monthly reports with the Secretary of State until all contributions and expenditures cease. Miss.Code Ann. § 23–17–51. This monthly reporting requirement also applies to individuals who expend in excess of $200 for the purpose of influencing the passage or defeat of a ballot measure. Id. This reporting obligation continues until “all contributions and expenditures cease.” Id. Additionally, “[i]n all cases a financial report shall be filed thirty (30) days following the election on a measure.” Id. The financial reports must contain the following information:

(a) The name, address and telephone number of the committee or individual person filing the statement.

(b) For a political committee:

(i) The total amount of contributions received during the period covered by the financial report;

(ii) The total amount of expenditures made during the period covered by the financial report;

(iii) The cumulative amount of those totals for each measure;

(iv) The balance of cash and cash equivalents on hand at the beginning and the end of the period...