Preston v. Leake
| Decision Date | 20 June 2009 |
| Docket Number | No. 5:08-CV-397-FL.,5:08-CV-397-FL. |
| Citation | 629 F.Supp.2d 517 |
| Parties | Sarah PRESTON, Plaintiff, v. Larry LEAKE, in his official capacity as Chairman of the North Carolina State Board of Elections; Genevieve C. Sims, in her official capacity as Secretary of the North Carolina State Board of Elections; Lorraine G. Shinn, in her official capacity as a Member of the North Carolina State Board of Elections; Charles Winfree, in his official capacity as a Member of the North Carolina State Board of Elections; and Robert Cordle, in his official capacity as a Member of the North Carolina State Board of Elections, Defendants. |
| Court | U.S. District Court — Eastern District of North Carolina |
Jonathan D. Sasser, Rebecca M. Rich, Thomas Hamilton Segars, Ellis & Winters, LLP, Katherine Lewis Parker, American Civil Liberties Union of North Carolina, Raleigh, NC, for Plaintiff.
Alexander McClure Peters, Susan Kelly Nichols, N.C. Department of Justice, Raleigh, NC, for Defendants.
This matter comes before the court on plaintiffs motion for judgment on the pleadings (DE # 17). Defendant has filed a response, to which plaintiff has replied. In this posture, the issues raised are ripe for ruling.
Plaintiff, a lobbyist for the American Civil Liberties Union of North Carolina, filed complaint on August 19, 2008, alleging that N.C. Gen.Stat. § 163-278.13C(a) (the "Campaign Contribution Prohibition") is unconstitutional both facially and as applied to her, on the grounds that it violates rights of free speech and association as protected by the First and Fourteenth Amendments to the United States Constitution. Defendants filed answer on October 1, 2008, denying these contentions. Two months later, on December 12, 2008, plaintiff filed the instant motion for judgment on the pleadings, now fully ripened.
Plaintiff is registered as a lobbyist with the North Carolina Secretary of State, and there appears no dispute that she is authorized to engage in lobbying activities under Chapter 120C of the North Carolina General Statutes. Defendants in this action, sued in their official capacities only, are members of the North Carolina State Board of Elections. Plaintiff is challenging the constitutionality of the Campaign Contribution Prohibition, adopted by the North Carolina General Assembly in 2006. The challenged statute provides:
§ 163-278.13C. Campaign contributions prohibition
(a) No lobbyist may make a contribution defined in G.S. 163-278.6 to a candidate or candidate campaign committee as defined in G.S. 163-278.38Z when that candidate meets any of the following criteria:
(1) Is a legislator as defined in G.S. 120C-100
(2) Is a public servant as defined in G.S. 138A-3(30)a. and G.S. 120C-104.
(b) No lobbyist may collect contributions from multiple contributors, take possession of such multiple contributions, or transfer or deliver the collected multiple contributions to the intended recipient. This section shall apply only to contributions to a candidate or candidate campaign committee as defined in G.S. 163-278.38Z when that candidate is a legislator as defined in G.S. 120C-100 or a public servant as defined in G.S. 138A-3(30)a.
(c) This section shall not apply to a lobbyist, who has filed notice of candidacy for office under G.S. 163-106 or Article 11 of Chapter 163 of the General Statutes or has been nominated under G.S. 163-114 or G.S. 163-98, making a contribution to that lobbyist's candidate campaign committee.
(d) For purposes of this section, the term "lobbyist" shall mean an individual registered as a lobbyist under Chapter 120C of the General Statutes.
N.C. Gen.Stat. § 163-278.13C. In passing the legislation, the General Assembly noted "to maintain the public trust, it is essential that government function honestly and fairly, free from all forms of impropriety, threats, favoritism, and undue influence" and that the power entrusted to government officials "should not be used to advance narrow interests for oneself or others." 2006 N.C. Sess. Laws 201. The General Assembly further stated that "it is inevitable that conflicts of interest and appearances of conflicts will occur," and so "at every turn those public officials who represent the people of [North Carolina] must ensure that it is the interests of the people, and not their own, that are being served." Id.
For the purposes of the prohibition, "contribution" is defined as follows:
The terms "contribute" or "contribution" mean any advance, conveyance, deposit, distribution, transfer of funds, loan, payment, gift, pledge or subscription of money or anything of value whatsoever, to a candidate to support or oppose the nomination or election of one or more clearly identified candidates, to a political committee, to a political party, or to a referendum committee, whether or not made in an election year, and any contract, agreement, promise or other obligation, whether or not legally enforceable, to make a contribution. These terms include, without limitation, such contributions as labor or personal services, postage, publication of campaign literature or materials, in-kind transfers, loans or use of any supplies, office machinery, vehicles, aircraft, office space, or similar or related services, goods, or personal or real property. These terms also include, without limitation, the proceeds of sale of services, campaign literature and materials, wearing apparel, tickets or admission prices to campaign events such as rallies or dinners, and the proceeds of sale of any campaign-related services or goods. Notwithstanding the foregoing meanings of "contribution," the word shall not be construed to include services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate, political committee, or referendum committee. The term "contribution" does not include an "independent expenditure." If:
a. Any individual, person, committee, association, or any other organization or group of individuals, including but not limited to, a political organization (as defined in section 527(e)(1) of the Internal Revenue Code of 1986) makes, or contracts to make, any disbursement for any electioneering communication, as defined in G.S. 163-278.80(2) and (3) and G.S. 163-278.90(2) and (3); and
b. That disbursement is coordinated with a candidate, an authorized political committee of that candidate, a State or local political party or committee of that party, or an agent or official of any such candidate, party, or committee
that disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate's party and as an expenditure by that candidate or that candidate's party.
N.C. Gen.Stat. § 163-278.6(6). Accordingly, under the Campaign Contribution Prohibition and the relevant definition of "contribution," there is no general de minimis exception to the ban.
If an individual, candidate, political committee, or other entity violates the Campaign Contribution Prohibition, the Board of Elections is authorized to impose a fine that does not exceed three times the amount of the unlawful contribution. N.C. Gen.Stat. § 163-278.34(b). The Board of Elections is also directed to report any violation of Article 22A of the North Carolina General Statutes, which includes the Campaign Contribution Prohibition, to the district attorney, who in turn is directed to prosecute the individual or persons alleged to have violated the article. N.C. Gen. Stat. § 163-278.27(b) and (c).
Prior to the enactment of the Campaign Contribution Prohibition, the only statutory restriction on state campaign contributions that applied to lobbyists but not the public at large was N.C. Gen.Stat. § 163-278.13B(c). That statute, upheld by the Fourth Circuit on a constitutional challenge,1 remains in effect. In relevant part, it provides:
Prohibited Contributions.—While the General Assembly is in regular session:
(1) No limited contributor shall make or offer to make a contribution to a limited contributee.
(2) No limited contributor shall make a contribution to any candidate, officeholder, or political committee, directing or requesting that the contribution be made in turn to a limited contributee.
(3) No limited contributor shall transfer any amount of money or anything of value to any entity, directing or requesting that the entity use what was transferred to contribute to a limited contributee.
N.C. Gen.Stat. § 163-278.13B(c). Under the statute, "limited contributor" is defined to include registered lobbyists and "limited contributee" is defined to include a member of or candidate for either the Council of State or the General Assembly. N.C. Gen.Stat. 163-278.13B(a). While the contribution bans of N.C. Gen.Stat. § 163-278.13B(c) apply only when the General Assembly is in session, the prohibition at issue in this matter is not subject to such a temporal limitation.
Plaintiff contends N.C.Gen.Stat. § 163-278.13C(a) is unconstitutional, and seeks declaratory and injunctive relief under 42 U.S.C. § 1983 and the United States Constitution.
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings, "[a]fter the pleadings are closed—but early enough not to delay trial." Fed.R.Civ.P. 12(c). A Rule 12(c) motion is designed to dispose of cases when the material facts are not in dispute and the court can judge the case on its merits by considering the pleadings and any attachments to the pleadings and materials referenced, which are incorporated into the pleadings by Rule 10(c). See Fed. R.Civ.P. 10(c). In general, such motions are disfavored unless the movant clearly establishes that no material fact is disputed and that movant is entitled to judgment as a matter of law. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1368 (Sup...
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