Lind v. Grimmer

Decision Date20 April 1993
Docket NumberCiv. No. 92-00415 ACK.
Citation859 F. Supp. 1317
PartiesIan Y. LIND, Plaintiff, v. Gary G. GRIMMER, Linda K., Rosehill, James C.F. Wang, Robert Y. Watada, Individually, and in their capacities as Commissioners of the Campaign Spending Commission, State of Hawaii, and Jack M.K. Gonzales, Individually, and in his capacity as the Executive Director of the Campaign Spending Commission, State of Hawaii, Defendants.
CourtU.S. District Court — District of Hawaii

Clayton C. Ikei, Honolulu, HI, for plaintiff.

Warren Price, III, Atty. Gen., HI, Steven S. Michaels, Robert A. Marks, Patricia Green Riley, Office of the Atty. Gen., Honolulu, HI, for defendants.

KAY, Chief Judge.



This case is now before the Court on Plaintiff's motion for summary judgment and Defendants' cross-motions for judgment on the pleadings, or, in the alternative, for summary judgment.

Plaintiff seeks: (1) a declaratory ruling that Section 11-216(d)1, Hawaii Revised Statutes ("HRS"), is unconstitutional and invalid because it violates the Plaintiff's rights of Freedom of Speech and Freedom of the Press in violation of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983; and (2) a permanent injunction enjoining the enforcement of HRS § 11-216(d).

Defendants oppose Plaintiff's motion for summary judgment and seek: (1) judgment on the pleadings, or summary judgment that HRS § 11-216(d) is constitutional as applied to "charging parties"; or (2) in the alternative suggest this Court certify HRS § 11-216(d) to the Hawaii Supreme Court for a limiting construction.

The issues presented are: (1) whether HRS § 11-216(d) is constitutional in its present form; (2) whether HRS § 11-216(d) is constitutional in the limited use proposed by Defendants; and (3) whether HRS § 11-216(d) should be certified to the Hawaii Supreme Court for a limiting construction.

For the reasons discussed below, this Court grants Plaintiff's motion for summary judgment and for a permanent injunction and denies Defendants' motion for judgment on the pleadings, or in the alternative, motion for summary judgment.


Plaintiff, Ian Lind is author and publisher of the "Hawai`i Monitor," an independent non-partisan newsletter that focuses on election campaign issues. On March 18, 1992, Plaintiff filed a complaint with the Campaign Spending Commission against the University of Hawaii Professional Assembly ("UHPA"). Plaintiff alleged that UHPA had violated certain Hawaii statutes by failing to fully disclose its contributions to political candidates and by making excessive, prohibited campaign contributions to Governor John Waihee's re-election campaign.

Plaintiff reported in the June 1992 issue of the "Hawai`i Monitor" the fact that a complaint against UHPA had been filed with the Campaign Spending Commission. The article was reprinted, with Plaintiff's permission, in a University of Hawaii student newspaper.

Subsequently, UHPA sought clarification from the Campaign Spending Commission as to the applicability of HRS § 11-216(d) to the proceedings initiated by Plaintiff's complaint. The Campaign Spending Commission decided to treat this requested clarification as a complaint against Plaintiff for violation of HRS § 11-216(d).

Upon learning of the pending charge for violation of HRS § 11-216(d), Plaintiff filed this lawsuit for equitable and injunctive relief declaring HRS § 11-216(d) unconstitutional under the Free Speech and Free Press provisions of the First Amendment to the United States Constitution, made applicable to the States through the Due Process Clause of the Fourteenth Amendment.

On July 17, 1992, the parties submitted to this Court a Stipulation of Dismissal with Prejudice of all Claims whereby the parties agreed that HRS § 11-216(d) was unconstitutional.

By order dated September 25, 1991, this Court rejected the parties' July 17, 1992, stipulation, stating its reluctance to overturn an enactment of the Hawaii Legislature without careful consideration and solid caselaw in support of its decision.

By stipulation filed with this Court on February 23, 1993, the parties have vacated their prior stipulations. The Department of the Attorney General is now "determined to defend § 11-216(d) as applied in this instance to `charging parties' in Campaign Spending Commission proceedings, who knowingly partake of the burdens of the confidentiality provisions when they invoke the Commission's processes, and in light of the important interests in confidentiality as furthering the important First Amendment value of free speech and association." Def. Cross-Motion For Judgment On The Pleadings, Or, In The Alternative, For Summary Judgment at 2.


Defendants set forth the following arguments in support of upholding as constitutional HRS § 11-216(d):

1. This case does not involve the rights of third-party non-participants to confidential state proceedings, as were at issue in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535 (1978). The case only deals with "charging" parties who bring a complaint under HRS § 11-216(d).
2. HRS § 11-216(d) does not (1) prohibit Mr. Lind from complaining generally (and publishing) his opinion that UHPA had violated the campaign spending laws; (2) prohibit Mr. Lind from filing a complaint with the Commission, and also complaining generally (and publishing) his opinion that UHPA had violated the campaign spending laws. HRS § 11-216(d) only requires Mr. Lind to maintain the confidentiality of the fact of his formal complaint and those facts of the investigation or hearing.
3. HRS § 11-216(d) can be read to apply only to Commission staff. Since § 11-216(d) only makes the "proceedings," or "the entire record of the proceedings" subject to confidentiality and since the sanctions imposed by § 11-228 and § 11-229 apply only to any "person violating any provision of this subpart," the statutory scheme, read as a whole, is susceptible to an interpretation that only persons with control over "the proceedings" or "the entire record" are subject to prosecution.
4. Assuming, arguendo, that HRS § 11-216(d) applies to information about the facts of "the proceeding" in the possession of the charging party, the law is constitutional in light of the reasoning of the Supreme Court of the United States in Cohen v. Cowles Media Co., 111 S.Ct. 2513 (1991).
5. In any event, the reasons for confidentiality in the campaign spending context are compelling, and outweigh any First Amendment interest Mr. Lind might have in violating the confidentiality provision of the campaign spending laws because the targets of campaign spending complaints are private citizens, organizations, and candidates, in their personal capacities, exercising some of the most fundamental rights of free speech.
6. Even if Mr. Lind's statements about UHPA are protected, the regulation of speech is not justified on the basis of "the content of the speech" which Mr. Lind wishes to make about the sort of proceedings at issue here.
7. Where the Commission has departed from proper standards in assessing "probable cause," and thus in sealing campaign spending complaint proceedings, the remedies of common law mandamus lie as a charging party's source of relief. Even if no such remedies existed, Hawaii has a compelling interest in delegating final discretion to the Campaign Spending Commission over the issue whether further litigation would be "baseless."
8. Section 11-216(d), like a general noise ordinance, is "content neutral" and sufficiently tailored to validly promote Hawaii's interests. In any case, the Act "`is narrowly drawn to achieve that end.'"
9. The statute is at the very least plainly constitutional insofar as it requires confidentiality pending the probable cause determination based on the reasoning in Kamasinski v. Judicial Review Council, 797 F.Supp. 1083 (D.Conn.1992).
10. To whatever extent this Court is not confident that the statute is constitutional, it should take the step of either construing the statute narrowly itself or stay the proceeding pending a certification of the issue to the Supreme Court of Hawaii under Appellate Rule 13.

Plaintiff sets forth the following arguments in support of his position that HRS § 11-216(d) is unconstitutional:

1. There does not appear to be any overriding State purpose in the enactment of HRS § 11-216(d). Legislative history indicates only that the intent of the law was to provide for confidential hearings to insure that "due process shall be provided to anybody complained of."
2. Based on the United States Supreme Court's decision in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535 (1978), the Fourth Circuit's decision in Baugh v. Judicial Inquiry and Review Commission, 907 F.2d 440 (4th Cir.1990), the Federal District Court of Rhode Island's decision in Providence Journal Co. v. Newton, 723 F.Supp. 846 (D.R.I.1989), and this Court's prior order in John Roe v. Akamine, et al. (Civil No. 91-00252 DAE), HRS § 11-216(d) is unconstitutional.

In opposition to the Defendant's cross-motions and in reply to Defendant's opposition, Plaintiff further argues:

3. The statute by its very terms does not, as Defendants propose, confine its application to complaining participants or to employees of the Campaign Spending Commission.
4. The statute is unconstitutionally overbroad, Board of Airport Com'rs of Los Angeles v. Jews for Jesus, 482 U.S. 569, 107 S.Ct. 2568 (1987); Forsyth County, Ga. v. Nationalist Movement, 112 S.Ct. 2395 (1992), and cannot be narrowly construed. Board of Airport Com'rs of Los Angeles, 482 U.S. at 575-76, 107 S.Ct. at 2572-73.
5. Defendant's reliance on Cohen v. Cowles Media Co., 111 S.Ct. 2513 (1991

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    ...a byproduct of the government's effort to regulate some evil unconnected with the content of the affected speech." Lind v. Grimmer, 859 F.Supp. 1317, 1323 n. 4 (D.Haw.1993) (summarizing and citing Ward, 491 U.S. at 797-801, 109 S.Ct. at 2757-2759). In fact, in an attempt to justify this reg......
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    ...proper for a district court to sua sponte raise issues concerning the facial validity of a particular provision. Lind v. Grimmer, 859 F.Supp. 1317, 1331 (D. Hawaii 1993), aff'd, 30 F.3d 1115 (1994). Former sections 361.157 and 361.159 used the exact statutory language and legal incidence of......
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