Republican Party of N.M. v. King

• Decision Date: 05 January 2012
• Docket Number: No. 11–CV–900 WJ/KBM.,11–CV–900 WJ/KBM.
• Citation: 850 F.Supp.2d 1206
• Parties: REPUBLICAN PARTY OF NEW MEXICO, Republican Party of Dona Ana County, Republican Party of Bernalillo County, New Mexico Turn Around, New Mexicans for Economic Recovery PAC, Harvey Yates, Rod Adair, Conrad James, Howard James Bohlander, and Mark Veteto, Plaintiffs, v. Gary KING, in his official capacity, New Mexico Attorney General, Dianna Duran, in her official capacity, New Mexico Secretary of State, and District Attorneys Kari Brandenburg, Janetta Hicks, Amy Orlando, and Angela R. Pacheco, in their official capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

850 F.Supp.2d 1206

REPUBLICAN PARTY OF NEW MEXICO, Republican Party of Dona Ana County, Republican Party of Bernalillo County, New Mexico Turn Around, New Mexicans for Economic Recovery PAC, Harvey Yates, Rod Adair, Conrad James, Howard James Bohlander, and Mark Veteto, Plaintiffs,

v.Gary KING, in his official capacity, New Mexico Attorney General, Dianna Duran, in her official capacity, New Mexico Secretary of State, and District Attorneys Kari Brandenburg, Janetta Hicks, Amy Orlando, and Angela R. Pacheco, in their official capacities, Defendants.

No. 11–CV–900 WJ/KBM.

United States District Court,

D. New Mexico.

Jan. 5, 2012.

James Bopp, Bopp Coleson & Bostrom, Noel H. Johnson, The Bopp Law Firm, Terre Haute, IN, Paul M. Kienzle, III, Scott & Kienzle, PA, Albuquerque, NM, for Plaintiffs.

Phillip P. Baca, New Mexico Attorney General's Office, Robert M. Doughty, III, Doughty & West, P.A., Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

WILLIAM P. JOHNSON, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Motion for Preliminary Injunction (doc. 9) filed October 12, 2011. Plaintiffs seek a preliminary injunction against enforcement of certain provisions of the New Mexico Campaign Reporting Act (the “Act”) codified at N.M. Stat. § 1–19–25 et seq. (1978). Having considered the parties' written and oral arguments and the applicable law, the Court GRANTS Plaintiffs' motion in part, and hereby issues this Preliminary Injunction.

BACKGROUND

I. The New Mexico Campaign Reporting Act.

The Act was passed in 2009. There are three provisions of the Act which are at issue in this litigation. First, the Act prohibits persons ¹ from making contributions greater than $5,000 to political committees,² including political parties ( N.M.Stat. § 1–19–34.7(A)(1)); second, it prohibits political committees from making contributions greater than $5,000 to other political committees or candidates ( id. at 34.7(A)(2)); and finally it prohibits both persons and political committees from soliciting or accepting contributions greater than $5,000 ( id. at 34(C)).

II. The Parties.The Plaintiffs are:

• Plaintiff Republican Party of New Mexico (“NM–GOP”), is registered with the Secretary of State as a political party headquartered in Albuquerque, Bernalillo County, New Mexico;

• Plaintiff Republican Party of Dona Ana County and the Republican Party of Bernalillo County (“Local Parties”), political parties independent of NM–GOP or any other party;

• Plaintiff New Mexicans for Economic Recovery Political Action Committee

(“NMER PAC”), a political committee registered with the Secretary of State and headquartered in Albuquerque, Bernalillo County, New Mexico, which was established solely for the purpose of making independent expenditures;

• Plaintiff New Mexico Turn Around (“NMTA”), is registered with the Secretary of State as a political committee headquartered in Albuquerque, Bernalillo County, New Mexico, which engages in both coordinated and independent expenditures, earmarking donations for one or the other and segregating the funds;

• Plaintiff Harvey Yates is an individual who resides in Albuquerque, Bernalillo County, New Mexico.

• Plaintiff Rod Adair is an individual who resides in Roswell, Chaves County, New Mexico.

• Plaintiff Conrad James is an individual who resides in Albuquerque, Bernalillo County, New Mexico.

• Plaintiff Howard James Bohlander is an individual who resides in Santa Fe, Santa Fe County, New Mexico.

• Plaintiff Mark Veteto is an individual who resides in Hobbs, Lea County, New Mexico.

The Defendants are:

• New Mexico Attorney General, Defendant Gary King, who has enforcement power granted by the Act to “institute a civil action in district court,” assess fines, and institute criminal prosecutions for violations of the Act. N.M. Stat. §§ 1–19–34.6(A)–(C).

• New Mexico Secretary of State, Defendant Dianna Duran, who has enforcement power granted by the Act to “adopt and promulgate rules and regulations” in order “to implement the provisions of the [Act];” “initiate investigations to determine whether any provision of the [Act] has been violated,” and to “conduct[ ] a thorough examination ... of reports filed” in order “to determine compliance with the provisions of the [Act.]” Id. at §§ 1–19–26.2, –32.1, –34.4.

• Defendant District Attorneys, Kari Brandenburg, Janetta Hicks, Amy Orlando, and Angela R. Pacheco, have enforcement power granted by the Act to “institute a civil action in district court” and assess fines for violations of the Act. Id. at § 1–19–34.6(B)–(C). These Defendants also have authority to institute criminal prosecutions for violations of the Act. Id. at § 1–19–36(A).

Two of the six Defendants in the case, Secretary of State Dianna Duran and Third Judicial District Attorney Amy Orlando, have stipulated to the preliminary injunction, conceding that Plaintiffs have satisfied their burden and shown entitlement to the requested relief. (Doc. 20.) The other four Defendants contest the issuance of a preliminary injunction.³

Plaintiffs seek a preliminary injunction against enforcement of the Act. They desire to engage in various activities prohibited by the aforementioned provisions of the Act, which fall—for purposes of the present analysis—into three categories: making and accepting contributions to be used (1) in state campaigns, (2) for independent expenditures, and (3) in federal campaigns.

A. State Campaigns

• Plaintiff Harvey Yates, Jr., an individual, desires to make a contribution to NM–GOP exceeding $5,000, and NM–GOP desires to solicit and accept that contribution.

• NM–GOP desires to make contributions greater than $5,000 to Plaintiffs Republican Party of Dona Ana County and the Republican Party of Bernalillo County (the “Local Parties”), and the Local Parties desire to solicit and accept those contributions.

• NM–GOP desires to make contributions greater than $5,000 to Plaintiffs Rod Adair and Conrad James, who are candidates for state office in the 2012 elections.

B. Independent Expenditures

• Plaintiff NMER PAC desires to solicit and accept contributions greater than $5,000 to be used for independent expenditures, and Plaintiff Mark Veteto desires to make such a contribution.

• Plaintiff NMTA desires to solicit and accept contributions of more than $5,000 to be used for independent expenditures, and Plaintiff Howard Bohlander desires to make such a contribution, to be designated for use in independent expenditures and kept segregated from any funds used for coordinated expenditures or contributed to candidates.

C. Federal Campaigns

• Plaintiff NM–GOP desires to solicit and accept funds greater than $5,000 from the Republican National Committee (“RNC”) and other individuals, entities, and political committees, which funds it would use to support candidates for election to federal office.

ANALYSIS

I. Standing.

Article III of the United States Constitution restricts the judicial power to adjudicating “cases” and “controversies.” U.S. Const. art. III, § 2. Therefore, a plaintiff must demonstrate that it possesses proper standing by showing that:

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Nevertheless, “a plaintiff need not ‘expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.’ ” Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1087–88 (10th Cir.2006) (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)).

Plaintiffs collectively bring suit against Defendants in their official capacities seeking declaratory and injunctive relief prohibiting Defendants from enforcing the contribution limits in the Act on the basis that these contribution limits unconstitutionally restrict Plaintiffs' First Amendment free speech and association rights by preventing them from engaging in their desired speech and association. Considering that 2012 is a presidential election year, Plaintiffs also contend that they have a limited time-frame in which their desired speech and association can have influence and thus a preliminary injunction should immediately issue so that Plaintiffs' desired First Amendment activities will not be stifled.

The Tenth Circuit has recognized that “... a chilling effect on the exercise of a plaintiff's First Amendment rights may amount to a judicially cognizable injuryin fact, as long as it ‘arise[s] from an objectively justified fear of real consequences.’ ” Walker, 450 F.3d at 1088 (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.2004)). Plaintiffs' verified Complaint sufficiently alleges that they have a justified fear of legal enforcement of the Act's contribution-limit provisions. Accordingly, Plaintiffs have established Article III standing to challenge the provisions of the Act at issue in this litigation.

II. Standard for Preliminary Injunction.

The Tenth Circuit requires that a plaintiff seeking a preliminary injunction establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary injunctive relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). Defendants have thus far contested only the “success on the merits” prong in their brief and oral argument, and...