Moffett v. Killian

• Decision Date: 21 June 1973
• Docket Number: Civ. A. No. 15584.
• Citation: 360 F. Supp. 228
• Court: U.S. District Court — District of Connecticut
• Parties: Anthony J. MOFFETT, Jr., Plaintiff, v. Robert K. KILLIAN, Attorney General of the State of Connecticut, et al., Defendants.

360 F. Supp. 228

Anthony J. MOFFETT, Jr., Plaintiff, v. Robert K. KILLIAN, Attorney General of the State of Connecticut, et al., Defendants.

Civ. A. No. 15584.

United States District Court, D. Connecticut.

June 21, 1973.

Raynald B. Cantin, Martin H. Rogol, Gen. Counsel, Conn. Citizens Action Group, Hartford, Conn., for plaintiff.

Bradford J. Ward, Deputy Chief Pros. Atty., Circuit Court, Middletown, Conn., Robert K. Killian, Barney Lapp, Asst. Atty. Gen., Daniel R. Schaefer, Hartford, Conn., for defendants.

Before ANDERSON, Circuit Judge, BLUMENFELD, Chief District Judge, and CLARIE, District Judge.

MEMORANDUM OF DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROBERT P. ANDERSON, Circuit Judge:

This action challenges, on First Amendment and equal protection grounds, the constitutionality of the $35 fee charged by Connecticut for legislative lobbying activities, Conn.Gen.St. § 2-45.¹ Jurisdiction is based upon 42 U.S. C. § 1983, 28 U.S.C. § 1343, and a three-judge district court has been convened pursuant to 28 U.S.C. §§ 2281, 2284.²

The plaintiff, Anthony Moffett, is the executive director of the Connecticut Citizen Action Group (CCAG), a Connecticut corporation engaged in promoting and opposing the passage of consumer and environmental legislation. Although Moffett is paid by CCAG for his work, which includes lobbying, he has refused to pay to the Secretary of the State the $35 which must be paid for the filing with the Secretary, of the statement of his legislative appearance as prescribed by the statute. Defendant Gloria Schaeffer, as Secretary of the State, is responsible for implementing § 2-45; defendant Cornelius Shea, Chief Prosecutor of the Circuit Court of Connecticut, is responsible for prosecuting violators of § 2-45. Moffett seeks a declaratory judgment that the $35 fee is unconstitutional and a permanent injunction restraining the defendants from instituting criminal proceedings against him.

In its broad outlines, § 2-45 of the Connecticut General Statutes requires that each person, retained or employed for compensation to promote or oppose legislation, must, before doing so, file a statement with the Secretary of the State setting forth his employer and the legislation with which he is concerned, and, in addition pay the $35 fee. The Secretary of the State compiles these statements and makes them available for public inspection. Then, at the close of each session of the General Assembly, each person or corporation on whose behalf a person has served as a lobbyist must file with the Secretary of the State a listing of all expenses paid in pursuit of his efforts to influence legislation. This statement, too, must be accompanied by a $35 fee. Failure to abide by these requirements of § 2-45 can also lead to criminal penalties.

No challenge is made to the registration or filing provisions, as such,³ and similar requirements in the Federal Regulation of Lobbying Act have been held constitutional, United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

A threshold question is whether or not the First Amendment right to petition the government, which is binding on the States, see, e. g., Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), is applicable to lobbyists, who by definition receive compensation, and employers, who engage someone to lobby for them.

The mere fact, however, that one earns a living by exercising First Amendment rights does not vitiate the ability to assert those rights. In Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944), the Court squarely held that a clergyman does not forfeit his freedom of religion or change the nature of his religious pursuit simply because his livelihood is derived, in whole or in part from the exercise of that freedom. See also, Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), and Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (Booksellers and motion picture distributors do not lose First Amendment rights just because they make a profit on the exercise of them).

Furthermore, one does not forfeit First Amendment rights because he pays someone to exercise them for him. In New York Times Co. v. Sullivan, 376 U.S. 254, 265-266, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964), the Court held that people who purchased space in a newspaper to present a certain point of view retained their free speech rights even though they paid the paper to express those views for them. In addition, even though corporations exercise the rights of petition and free speech only through agents, they still retain those rights,⁴ Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 138, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); see also, NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Walden, "More About Noerr-Lobbying, Antitrust and the Right to Petition," 14 U.C.L.A.L.Rev. 1211, 1243 (1967); Comment, "Freedom of Speech and the Corporation," 4 Vill.L.Rev. 377 (1959).

It is therefore beyond dispute that lobbyists and their employers, in the circumstances of this case, have First Amendment rights, and the sole remaining issue is whether or not the imposition of the $35 fee is an unconstitutional abridgment of those rights.⁵ We hold that it is.

In Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), the Court held that a tax on the exercise of First Amendment freedoms is unconstitutional even when there is no proof that the tax actually restrains the exercise of those freedoms, Id., at 114, 63 S.Ct. 870. In so holding, however, the Court reaffirmed its decision in Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), that a fee used to defray the cost of administering legitimate regulation of First Amendment activity was constitutional, Murdock, 319 U.S. at 116-117, 63 S.Ct. 870. In Cox, the fee for a parade permit was on a sliding scale from a nominal amount up to $300 to cover the cost of policing the event. In Murdock, a $1.50 fee for a license to sell religious books was struck down because there was no showing that the fee was needed to cover the expenses of the licensing program.

Connecticut can constitutionally require lobbyists to supply the information required by the statute, § 2-45, in order that Assemblymen and the public can be made aware of the interests which they represent, Harriss, supra, 347 U.S. at 625, 74 S.Ct. 808, 98 L.Ed. 989, and it can also charge a nominal sum to cover the cost of collecting, filing, copying and distributing this information, but it cannot require payment of an amount in excess of that actually needed for the purpose.

According to figures provided by the defendants, Connecticut expended the following sums in carrying out the mandates of § 2-45:⁶

                    1971     $4,103.13
                    1972      3,916.26
                    1973      4,739.84 (estimated)
                

In return, the State received the following amounts as fees from lobbyists and their employers under § 2-45:

                    1971    $17,990.00
                    1972      9,975.00
                    1973     16,310.00 (estimated)
                

Thus, it is clear that the sums received by the State under § 2-45, which were paid into the State's general fund, were far in excess of the amounts actually needed to administer the registration provisions. The $35 fee, therefore, is an unconstitutional tax on the exercise of First Amendment rights which may not be imposed.⁷

The defendants are therefore enjoined from taking any action against the plaintiff for his failure to pay such a fee.

Judgment may be entered in favor of the plaintiff with his costs.

1 Conn.Gen.St. § 2-45 reads as follows:

"Each person retained or employed for compensation to promote or oppose, directly or indirectly, the passage of any legislation or to promote or oppose executive approval of any legislation, shall, before any service is performed in promoting or opposing such legislation, sign and file in the office of the secretary of the state a statement or statements setting forth the name or names of the employer or principal by whom or on whose behalf he is so retained or employed, together with a brief description of the legislation in reference to which such service is to be rendered, and shall pay for such filing a fee of thirty-five dollars. No notice so filed shall be valid for more than thirty days after the adjournment of each session of the...