Ogden v. Marendt

• Decision Date: 21 May 2003
• Docket Number: No. 1:03-cv-415-JDT-TAB.,1:03-cv-415-JDT-TAB.
• Citation: 264 F.Supp.2d 785
• Parties: Paul OGDEN and Indiana Right to Life Political Action Committee, Plaintiffs, v. Candace MARENDT, in her official capacity as Chairman of the Marion County Election Board, Doris Anne Sadler, in her official capacity as Vice Chairman of the Marion County Election Board, STeven R. Eichholtz, in his official capacity as Vice Chairman of the Marion County Election Board Dudley R. Cruea, in his official capacity as Chairman of the Indiana Election Commission, Butch Morgan, in his official capacity as a member of the Indiana Election Commission, S. Anthony Long, in his official capacity as a Member of the Indiana Election Commission, and Claudia E. Cummings, in her official capacity as a member of the Indiana Election Commission, Defendants.
• Court: U.S. District Court — Southern District of Indiana

Page 785

264 F.Supp.2d 785

Paul OGDEN and Indiana Right to Life Political Action Committee, Plaintiffs, v. Candace MARENDT, in her official capacity as Chairman of the Marion County Election Board, Doris Anne Sadler, in her official capacity as Vice Chairman of the Marion County Election Board, STeven R. Eichholtz, in his official capacity as Vice Chairman of the Marion County Election Board Dudley R. Cruea, in his official capacity as Chairman of the Indiana Election Commission, Butch Morgan, in his official capacity as a member of the Indiana Election Commission, S. Anthony Long, in his official capacity as a Member of the Indiana Election Commission, and Claudia E. Cummings, in her official capacity as a member of the Indiana Election Commission, Defendants.

No. 1:03-cv-415-JDT-TAB.

United States District Court, S.D. Indiana, Indianapolis Division.

May 21, 2003.

James Bopp, Jr., Eric C. Bohnet, Bopp, Coleson & Bostrom, Terre Haute, IN, Daniel A. Ladendorf, Ladendorf & Ladendorf, Indianapolis, IN, for Plaintiffs.

Michael T. Schaefer, Douglas J. Webber, Office of the Attorney General, Indianapolis, IN, for Defendants.

ENTRY ON MOTION FOR PRELIMINARY INJUNCTION

TINDER, District Judge.

This matter comes before the court on Plaintiffs Paul Ogden and Indiana Right to Life Political Action Committee ("IRLPAC")'s request for a preliminary injunction against the enforcement of Indiana Code section 3-14-1-2(a)(2)(3) on the ground that it infringes their First Amendment rights. Having reviewed the parties' briefs and heard oral argument on the issues, the court now rules on the Plaintiffs' motion.

I. Statute

The provision of the Indiana Code challenged in this action provides, in pertinent part:

(a) A person who:

(2) prints on a slate during a primary election campaign the name or number of a candidate without the candidate's written consent; or

(3) prints, publishes, or distributes a slate during a primary election campaign unless at least five (5) days before it is printed and published the written consent .... of the candidates in whose behalf it is distributed [is] filed in the office of the county election board in each county where the election is held; commits a Class A misdemeanor.

Ind.Code § 3-14-1-2(a)(2)-(3). Clearly, much depends on the meaning of the statutory term "slate." That term is defined as follows:

As used in this section, "slate" means a sample ballot, reproduction of an official ballot, or a listing of candidates:

(1) having the names or numbers of more than one (1) candidate for nomination at a primary election; and

(2) that expresses support for more than one (1) of the candidates set forth on the ballot or list.

Ind.Code § 3-14-1-2(b). In short, the law prohibits an individual or organization from printing, publishing or distributing a slate of candidates for nomination in a primary election without obtaining the written consent of the candidates five days in advance.¹ The Plaintiffs refer to this statute as an "anti-slating" provision (e.g., Verified Complaint "V.C." ¶ 11), and that is a fair shorthand so long as it is kept in mind that slating is only proscribed where the person fails to secure the candidates' written consent five days before the printing of the slate. The parties' sole disagreement with respect to the construction of the statute relates to the meaning of the term "slate" and will be addressed in the discussion section.

II. Facts

A. Ogden

The following facts are alleged in the Plaintiffs' Verified Complaint, and are not in dispute unless noted. Plaintiff Paul Ogden, a resident of Marion County, Indiana, was a candidate in the May 7, 2002 Republican primary, where he sought that party's nomination for the office of Marion County Clerk. (V.C.¶ 5.) As part of his campaign, Ogden distributed a flyer which expressed support for himself and another candidate for party nomination for Sheriff. It read: "Vote McAtee for Sheriff and Ogden for Clerk." (V.C.¶ 12.)² The flyer also stated that it had been paid for the Ogden for Clerk Committee. (V.C, Ex B.) Prior to the distribution of this material, Ogden had sought McAfee's consent to the appearance of his name alongside Ogden's, but was told that McAtee did not wish to publicly consent, although he did not object to Ogden's distribution of the flyers, either.³ (V.C.¶ 13.) On the day of the election, members of the Marion County Election Board obtained one of the Ogden flyers. Pursuant to a subsequently convened meeting, the Election Board determined the flyers to be in violation of Indiana Code section 3-14-1-2 and approved a motion calling for their removal and confiscation. (V.C.¶ 14, Ex. C.) Letters announcing this action were sent to the precinct inspectors and polling sites. As a result, many of the campaign flyers already on display were confiscated, and Ogden and his supporters were prevented from handing out any further ones. (Id.) Ogden claims he fears prosecution stemming from this incident. (V.C.¶ 15.)

Although Ogden does not claim to be a candidate in this year's Marion County primary elections scheduled for May 6, 2003, he vows he will run again in future primary elections in the state of Indiana. (V.C.¶ 5.) Ogden also asserts that in future primaries he would like to print and distribute materials expressing support for multiple candidates without first having to seek their consent, but will not be able to do so unless the state is enjoined from enforcing the anti-slating law. (V.C.¶ 16.)

B. IRLPAC

IRLPAC is a political action committee registered in Indiana which is dedicated to supporting political candidates who share its views, the bulk of which revolve around opposition to the availability of abortions. As part of its activities, it frequently endorses candidates for office, and distributes lists of these candidates to the public. (V.C.¶¶ 6, 17.) Accordingly, IRLPAC would like to print and distribute a list of endorsed candidates in the upcoming May 6, 2003 Marion County primary elections. IRLPAC would also like to post its list on its website. (V.C.¶ 18.) However, IRLPAC does not want to seek permission from the candidates who might receive its endorsement, for several reasons: it prefers to have its list stand on its own as independent speech, rather than being the product of coordination with endorsed candidates; it understands that some candidates may not wish to be known as having publicly consented to the association with IRLPAC and the other candidates it supports; and it wants to avoid the logistical difficulties involved in obtaining written consent from each candidate. (V.C.¶¶ 19, 21.) IRLPAC also objects to the five day waiting requirement as limiting its ability to make spontaneous endorsement decisions in the run-up to the elections. (V.C.¶ 20.)

IRLPAC also contends that it will not be able to print, publish, or distribute its endorsement list unless the Defendants are enjoined from enforcing Indiana Code section 3-14-1-2(a)(2)(3). (V.C.¶ 22.)

III. Preliminary Injunction Standard

A district court will grant a preliminary injunction if there is a reasonable likelihood of success on the merits of the claim, no adequate remedy at law, and failure to grant the injunction would cause irreparable harm to the party seeking it. Jones v. InfoCure Corp., 310 F.3d 529, 534 (7th Cir.2002) (citing Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)). If the moving party has made a sufficient showing of those elements, the court then balances the relative harms to the parties depending on whether the injunction is granted or denied, and taking into account the public interest in the matter. Id. at 534 (citing PepsiCo., Inc. v. Redmond, 54 F.3d 1262, 1267 n. 3 (7th Cir.1995)).

IV. Discussion

A. Construction of the Statute

Before undertaking an analysis of the constitutionality of the statute, the court needs to address the dispute over the breadth of the anti-slating law, which depends on the meaning of the term "slate." That term is defined quite broadly in the statute itself: "a sample ballot, reproduction of an official ballot, or a listing of candidates having the names or numbers of more than one (1) candidate for nomination at a primary election; and that expresses support for more than one (1) of the candidates set forth on the ballot or list." Ind.Code § 3-14-1-2(b). At oral argument, counsel for the Defendants invoked the canon of statutory construction known as "ejusdem generis" to urge an interpretation of the phrase a "listing of candidates" which would require the listing to be somehow connected to the notion of a ballot which figures in the two preceding items. There is no warrant for this reading. First, the ejusdem generis principle only functions to resolve ambiguities in the statutory text. See United States v. Irons, 640 F.2d 872, 876 (7th Cir.1981) ("[Ejusdem generis] is intended only as an aid to ascertainment of legislative intent when uncertainty or ambiguity exists.") The Defendants have not shown, nor can the court discern, any ambiguity in the phrase "listing of candidates," so there is no need for recourse to this principle. Second, the Defendants' narrow interpretation of the phrase "listing of candidates" conflicts with the Marion County Election Board's own actions in confiscating the Ogden campaign flyers. While the flyers did contain a "listing of candidates"—Ogden and McAtee— there was nothing "ballot-like" about them. Nonetheless, the Election Board still considered them to fit the definition of a slate. The court believes the Election Board was correct in that judgment, as the statute could not be more clear that a list of candidates, in addition to a sample ballot or reproduction of a ballot, is included in the statutory definition. The court thus declines to give the phrase "listing of candidates" anything less than its full meaning and scope.

B. Level of Review

The court begins with the appropriate level of scrutiny afforded Indiana's...