Lair v. Murry
| Decision Date | 24 February 2012 |
| Docket Number | No. CV 12–12–H–CCL.,CV 12–12–H–CCL. |
| Citation | 846 F.Supp.2d 1116 |
| Parties | Doug LAIR, Steve Dogiakos, American Tradition Partnership, American Tradition Partnership PAC, Montana Right to Life Association PAC, Sweet Grass Council for Community Integrity, Lake County Republican Central Committee, Beaverhead County Republican Central Committee, Jake Oil LLC, JL Oil LLC, Champion Painting Inc., and John Milanovich, Plaintiffs, v. James MURRY, in his official capacity as Commissioner of Political Practices; Steve Bullock, in his official capacity as Attorney General of the State of Montana; and Leo Gallagher, in his official capacity as Lewis and Clark County Attorney; Defendants. |
| Court | U.S. District Court — District of Montana |
OPINION TEXT STARTS HERE
Held Unconstitutional
MCA 13–35–225(3)(a), 13–37–131.
John E. Bloomquist, James Edward Brown, Doney Crowley Bloomquist Payne UDA, Helena, MT, Noel H. Johnson, James Bopp, Jr., Bopp Coleson & Bostrom, Terre Haute, IN, for Plaintiffs.
Michael G. Black, Black Law Office, Missoula, MT, for Defendants.
ORDER GRANTING AND DENYING MOTION FOR PRELIMINARY INJUNCTION
The plaintiffs filed this lawsuit, challenging several of Montana's campaign finance and election laws. They move the Court for a preliminary injunction enjoining the enforcement of those statutes. The defendants oppose the motion.
On February 17, 2012, the Court held a hearing on the motion. Noel Johnson of Bopp, Coleson, & Bostrom and James Edward Brown of Doney Crowley Payne Bloomquist P.C. appeared for the plaintiffs. Michael Black and Andrew Huff of the Montana Attorney General's office appeared for the defendants.
The Court grants the motion in part and denies it in part.
The plaintiffs are individuals, corporations, political committees, associations, and political parties that have expressed a desire to take actions that would violate several of Montana's campaign finance and election laws:
• Montana Code Annotated § 13–35–225(3)(a), which requires authors of political election materials to disclose another candidate's voting record;
• Montana Code Annotated § 13–37–131, which makes it unlawful for a person to misrepresent a candidate's public voting record or any other matter relevant to the issues of the campaign with knowledge that the assertion is false or with a reckless disregard of whether it is false;
• Montana Code Annotated § 13–37–216(1), (5), which limits contributions that individuals and political committees may make to candidates;
• Montana Code Annotated § 13–37–216(3), (5), which imposes an aggregate contribution limit on all political parties; and
• Montana Code Annotated § 13–35–227, which prevents corporations from making either direct contributions to candidates or independent expenditures on behalf of a candidate.
The plaintiffs argue that each of these statutory provisions violates the First Amendment of the United States Constitution.
The plaintiffs have launched a multi-front attack on at least one of these provisions—Section 13–35–227's ban on corporate independent expenditures. Many of the plaintiffs in this case previously sued the defendants in state court, claiming that the ban is unconstitutional. The state district court, Judge Sherlock, agreed with the plaintiffs in light of the U.S. Supreme Court's decision in Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), where the Supreme Court held that bans on corporate independent expenditures violate the First Amendment.
The Attorney General and Commissioner of Political Practices then appealed to the Montana Supreme Court. Notwithstanding Citizens United, the Montana Supreme Court upheld Montana's ban on corporate independent expenditures. See W. Tradition Partn. v. Atty. Gen. of the St. of Mont., 2012 MT 328. The Montana Supreme Court reasoned that Montana's storied history of political corruption demonstrates that the State has a compelling interest in preventing corporations from making independent expenditures on a candidate's behalf. Id. at ¶ 48.
Justice Nelson, in his dissent, expressed sympathy for the majority's ruling in favor of the State, but he could not agree with the majority in light of Citizens United. He wrote, “The language of the Citizens United majority opinion is remarkably sweeping and leaves virtually no conceivable basis for muzzling or otherwise restricting corporate political speech in the form of independent expenditures.” Id. at ¶ 62 (footnote omitted).
Justice Baker also dissented. Id. at ¶¶ 49–60. She agreed with Justice Nelson that Citizens United should have controlled the Court's decision. Id. at ¶ 49. But, unlike the majority, she would have expressly ruled to preserve the disclosure requirements that apply to independent expenditures in order to further the interest in preventing corruption. Id. at ¶ 50. Justice Baker poignantly concluded:
I believe it is our unflagging obligation, in keeping with the courts' duty to safeguard the rule of law, to honor the decisions of our nation's highest Court.
Id. at ¶ 60 (quoting Stephen Breyer, Making Our Democracy Work: A Judge's View 214 (Alfred A. Knopf 2010)).
One of the plaintiffs, Western Tradition Partnership (now American Tradition Partnership), agreed with the dissenting opinions and asked the U.S. Supreme Court to either summarily reverse the Montana Supreme Court or stay its decision pending American Tradition Partnership's petition for a writ of certiorari. See Am. Tradition Partn., Inc. v. Bullock, Cause No. 11A762. On February 17, 2012—one day after this Court heard oral argument on the plaintiffs' motion for a preliminary injunction—the U.S. Supreme Court granted the application to stay the Montana Supreme Court's decision.
Against this backdrop, the Court turns to the plaintiffs' motion. Because the parties are familiar with the facts of this case, they are restated here only when necessary to explain the Court's decision.
“ ‘A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’ ” Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir.2011) (quoting Winter v. NRDC, 555 U.S. 7, 24–25, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)).
“[T]he moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement, at which point the burden shifts to the government to justify the restriction.” Id. at 1116 (citing Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir.2009)).
The plaintiffs argue that the five statutory provisions described above are unconstitutional under the First Amendment. The defendants disagree and argue that the plaintiffs do not have standing to bring this challenge. As explained below, though, the plaintiffs have standing and they are entitled to injunctive relief on some, but not all, of their claims.
In the first amendment context, “ ‘[I]t is sufficient for standing purposes that the plaintiff intends to engage in a course of conduct arguably affected with a constitutional interest and that there is a credible threat that the challenged provision will be invoked against the plaintiff.’ ” Wong v. Bush, 542 F.3d 732, 736 (2008) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir.2000)).
Here, in their verified complaint,1 the plaintiffs thoroughly laid out their plans and desire to violate the statutes at issue. See Compl. ¶¶ 24–102 (dkt # 1). And the plaintiffs have shown there is a “credible threat that the challenged provision[s] will be invoked against [them].” See Wong, 542 F.3d at 736. Some of the plaintiffs, for example, have been recently threatened with lawsuits for violating the laws at issue here. See Pl.'s Preliminary Injunction Memo. 22–23 (dkt # 10). And, some of the plaintiffs have had contributions returned to them by a candidate after that candidate had already received the maximum contribution allowed by statute. See id. at 11.
In short, the plaintiffs have sufficiently shown that (1) they “intend[ ] to engage in a course of conduct arguably affected with a constitutional interest” and (2) “there is a credible threat that the challenged provision will be invoked against [them].”
The plaintiffs challenge the vote-reporting requirement in Section 13–35–225(3)(a):
Printed election material described in subsection (1) that includes information about another candidate's voting record must include:
(i) a reference to the particular vote or votes upon which the information is based;
(ii) a disclosure of contrasting votes known to have been made by the candidate on the same issue if closely related in time; and
(iii) a statement, signed as provided in subsection (3)(b), that to the best of the signer's knowledge, the statements made about the other candidate's voting record are accurate and true.
The plaintiffs argue that this statute is unconstitutional because it is unconstitutionally vague, overbroad, and fails strict scrutiny review. The Court agrees, at least in part.
A statute is unconstitutionally vague if it “fails to clearly mark the boundary between permissible and impermissible speech....” Buckley v. Valeo, 424 U.S. 1, 41, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). “Statutes that are insufficiently clear are void for three reasons: ‘(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective...
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Lair v. Murry
...be invoked against the plaintiff.’ ” (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir.2000))). On February 24, 2012, 846 F.Supp.2d 1116 (D.Mont.2012), the Court issued a preliminary injunction enjoining the enforcement of the vote-reporting requirement (Section 13–35–225(3)(a)) ......