Kansans for Life, Inc. v. Gaede
| Decision Date | 24 February 1999 |
| Docket Number | No. 98-4192-RDR.,98-4192-RDR. |
| Citation | 38 F.Supp.2d 928 |
| Parties | KANSANS FOR LIFE, INC., Plaintiff, v. Diane GAEDE, in her official capacity as Chairwoman and Member of the Kansas Governmental Ethics Commission, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Frederick J. Patton, Patton & Patton, Topeka, KS, James Bopp, Jr, James R Mason, III, Bopp, Coleson & Bostrom, Terre Haute, IN, for plaintiff.
Eliehue Brunson, Office of Attorney General, Topeka, KS, for defendants.
This case is now before the court upon plaintiff's motion for preliminary injunction, defendant's motion to dismiss and plaintiff's motion to combine the hearing upon the preliminary injunction motion with the trial on the merits.
Plaintiff is a nonprofit Kansas corporation exempt from federal income tax. It promotes "pro-life" issues and attempts to educate the general public regarding such issues from a "pro-life" perspective. It is not associated with any political candidate or political party. Defendants are officers of the Kansas Governmental Ethics Commission. The Commission is charged with enforcing certain provisions of the Kansas Campaign Finance Act, K.S.A. 25-4142 et seq. The enforcement policy of the Commission is being challenged by plaintiff in this lawsuit. The defendants are being sued in their official capacities.
In July 1998, during the primary campaign to determine the Republican Party's candidate for Governor of Kansas, plaintiff ran a radio advertisement. The ad read as follows:
Have you ever had someone try to trick you? You know, twist the truth to make you think one thing instead of another? Children are quite good at this. Unfortunately, Governor Bill Graves is trying to do the same thing, telling you he is pro-life when, in fact, he is a strong supporter of legal abortion in Kansas. During his last campaign, Gov. Bill Graves held a rally for his supporters — Dr. George Tiller, the infamous late-term abortionist was in attendance to support Bill Graves. We know Bill Graves props up the abortion industry because we are Kansans For Life — it's our job to know who is pro-life and who is pro-abortion. Yet there are political ads, which this radio station is required by law to run, by Bill Graves trying to deceive you. The truth is David Miller, who is challenging Bill Graves for Governor, is pro-life. David Miller has always been pro-life. David Miller will not change or try to fool you just because it is an election. Now you know the truth!
Paid for by Kansans For Life.
The ad cost $750.00 which was covered in part from the general operating funds of plaintiff and from an in-kind contribution to it from a private individual. The Commission received an anonymous complaint that the ad should have been paid for by plaintiff's political action committee under the Kansas Campaign Finance Act because the ad expressly advocated the election or defeat of a clearly identified candidate. A staff member of the Commission informed plaintiff of the complaint and suggested that plaintiff seek an advisory opinion from the Commission on this matter. Plaintiff followed this advice. Consequently, the Commission reviewed the July ad and concluded in Advisory Opinion 1998-22 that the July advertisement constituted express advocacy of the election or defeat of a candidate and, therefore, was subject to the disclosure requirements of the Kansas Campaign Finance Act.
On November 4, 1998, plaintiff filed this case and asked for a temporary restraining order against the application of the Kansas Campaign Finance Act, as construed by the advisory opinion, against the July ad and future "issue advocacy" political advertisements by plaintiff. On November 6, 1998, the Commission mailed a notice of failure to file a receipts and expenditures report required by the Kansas Campaign Finance Act. The notice stated:
A review of the files in the Secretary of State's Office indicates that you have failed to file the October 26, 1998 Receipts and Expenditures Report For A Person Other Than A Candidate, Party Committee or Political Committee as required by law. Such report, a blank copy of which is enclosed for your use, must be completed and filed within five (5) days from the date of receipt of this notice.
As provided by K.S.A. 25-4181, the Commission may assess a civil fine against Kansans For Life in an amount not to exceed $5,000 for the first violation, $10,000 for the second violation and $15,000 for the third violation.
File the required report within five (5) days with the Secretary of State.
As stated, the notice gave plaintiff five days to file the report. The report lists who made an expenditure on behalf of a political candidate. In this instance, the report required the disclosure of what individual and organization paid for the July 1998 radio ad. On November 10, 1998, the court conducted a hearing upon plaintiff's motion for a temporary restraining order. The focus of the TRO hearing was the deadline for filing the receipts and expenditures report. Ultimately, however, the court did not rule upon the motion and allowed defendants additional time to respond to it. On November 12, 1998, plaintiff filed the receipts and expenditures report. A few days later an amended report was filed.
If the report had not been filed, then a staff member of defendant would have filed a complaint. The Commission would have reviewed the complaint for sufficiency. There would have been an investigation and a determination of probable cause and then a public hearing. The Commission would have made findings which may have led to a fine or even criminal prosecution by the Attorney General.
Plaintiff's filing of the report arguably eliminated some of the urgency for injunctive relief. But, the time for Wichita city elections is approaching. Plaintiff intends to run political advertisements for that election. Now, plaintiff argues that injunctive relief is necessary in this case to prevent its rights from being violated both as to the July 1998 advertisement (because the report is still on file and open to the public) and as to future advertisements. Defendants have filed a motion to dismiss.
The Kansas Campaign Finance Act requires a receipts and expenditures report by persons other than a candidate or candidate committee, or party or political committee, regarding the funding of political advertisements when the advertisements are considered "contributions" for a certain candidate. K.S.A. 25-4150. If the advertisement "expressly advocates the nomination, election or defeat of a clearly identified candidate," then it is a "contribution" under K.S.A. 25-4143(e)(1)(B). The report must contain the name and address of each person from whom a contribution or in-kind contribution in excess of $50 was made. K.S.A. 25-4148(b)(2) & (8).
The statute further provides at 25-4143(h) that "expressly advocate" means:
"any communication which uses phrases including, but not limited to: (A) `Vote for secretary of state'; (B) `reelect your senator'; (C) `support the democratic nominee'; (D) `cast your ballot for the republican challenger for governor'; (E) `Smith for senate'; (F) `Bob Jones in '98'; (G) `vote against Old Hickory'; (H) `defeat' accompanied by a picture of one or more candidates; or (1) `Smith's the one.'"
The July ad contained none of the "buzz" words specified in the statute as express advocacy. But, the advisory opinion from the Commission (Advisory Opinion 1998-22) found that it constituted express advocacy which triggered the reporting requirement because if read "on the whole" by an ordinary person it would lead that person to believe he or she was being urged to vote for a particular candidate. Specifically, the advisory opinion applied the following definition of express advocacy to the July ad:
A communication which, when viewed as a whole, leads an ordinary person to believe that he or she is being urged to vote for or against a particular candidate for office, will be deemed to expressly advocate the nomination, election or defeat of a clearly identified candidate.
The complaint in this case has two claims. The first claim ("Count One") involves relief directed toward the July advertisement. The second claim ("Count Two") involves relief directed toward future advertisements.
Plaintiff asks that the court issue a declaratory judgment that the July ad was "issue advocacy" protected under the First Amendment from regulation; that the enforcement policy enunciated in Advisory Opinion 1998-22 be declared unconstitutional; that the Commission expunge the report filed by plaintiff regarding the July ad; and that defendants be enjoined from enforcing the alleged unconstitutional policy stated in the advisory opinion against future advertisements.
Defendants' motion to dismiss contends: 1) that there is no case and controversy because plaintiff's filing of the report has made any controversy regarding the July 1998 ad moot; 2) that there is no case and controversy regarding future political ads because any issue regarding those ads is not ripe for decision; and 3) that the court should abstain from deciding plaintiff's claims in this matter. Defendants also contend that the July ad is not issue advocacy and that the enforcement policy stated in Advisory Opinion 1998-22 is constitutional.
Consolidation of hearing with trial on the merits
Plaintiff moved to consolidate the trial on the merits in this case with the hearing upon the preliminary injunction motion. Defense counsel at first opposed this idea. However, when the issue was raised again at the close of the hearing upon the instant motions, defense counsel appeared to approve consolidation. The court believes consolidation would be logical and efficient. Therefore, the court shall grant the motion for...
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