Richey v. Tyson
| Citation | 120 F.Supp.2d 1298 |
| Decision Date | 13 November 2000 |
| Docket Number | No. CIV. A. 99-0824-RVS.,CIV. A. 99-0824-RVS. |
| Parties | David RICHEY, et al., Plaintiffs, v. John TYSON, Jr., etc., et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Vaughan Drinkard, Jr., Mark R. Ulmer, Ulmer, Hillman, Ballard and Nikolakis, Michael L. Cumpton, Drinkard, Newton, Cumpton & Lassiter, Charles H. Hillman, Mobile, James Bopp, Jr., Brandon Chad Bungard, Bopp, Coleson & Bostrom, Terre Haute, IN, for David A. Richey, Margie Richey, Christian Coalition of Alabama, plaintiffs.
Courtney W. Tarver, Alabama Department of Mental, Health and Mental Retardation, Montgomery, AL, John J. Park, Jr., Deputy, Attorney Gen., Bill Clifford, Office of the Attorney General, State of Alabama, Montgomery, AL, Raymond Lewis Jackson, Jr., Jackson & Armstrong, P.C., Auburn, AL, for John M. Tyson, Jr., District Attorney, in his official capacity as the District Attorney for the 13th Circuit in Mobile, Alabama, and as a representative of the class of District Attorneys in the State of Alabama, William Pryor, in his official capacity as Attorney General of the State of Alabama, defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the parties' competing motions for summary judgment. (Docs.53, 57). The parties have submitted numerous briefs addressing their respective motions. (Docs.54, 58, 61-64, 66, 68, 75-76).1 After careful consideration of the parties' arguments as set forth in these filings and at oral argument, as well as all other relevant materials in the file, the Court concludes that both motions are due to be granted in part and denied in part.
This case requires the Court to explore the complex and often subtle contours of the First Amendment as it pertains to restrictions on election financing.
Suit was brought by David and Margie Richey (collectively, the "Richeys") and the Christian Coalition of Alabama, Inc. ("CCA"). CCA is a non-profit, tax-exempt Alabama corporation whose purpose is to educate, inform and mobilize Christians to become active in the public arena in support of causes reflecting Christian values and to uphold, propagate and disseminate Christian principles and values by all lawful means. (Doc. 70 at 3). The Richeys apparently are not members of CCA but have received CCA communications in the past. (Doc. 1 at 6).
CCA has in the past spent over $1,000 a year to produce and distribute communications concerning public issues and candidates' positions on them. CCA has never expressly advocated the election or defeat of a candidate for public office, and any such communication would exceed its mission. (Doc. 70 at 4).
CCA has not historically expended funds to expressly advocate the passage or defeat of any constitutional amendment or other ballot measure. However, in 1999 the Alabama Legislature submitted to popular vote a proposed constitutional amendment to allow a state lottery. See generally Ala. Const. Art. IV, § 65 (); id. amend. 24 (). CCA formed the intention to distribute, at a cost exceeding $1,000, voter guides explicitly urging voters to reject the proposed constitutional amendment. However, CCA elected not to do so because it understood that taking such action would subject it to the provisions of Alabama's Fair Campaign Practices Act ("FCPA"), Ala.Code §§ 17-22A-1 to -23, which carries consequences and imposes obligations that CCA was unwilling to accept. (Doc. 70 at 4).
On September 8, 1999, approximately five weeks before the scheduled vote on the proposed constitutional amendment, the plaintiffs filed this action. (Doc. 1).2 At the same time, they filed motions for a temporary restraining order and for a preliminary injunction to enjoin enforcement of the FCPA. (Docs.2, 3). Following extensive briefing, the Court heard oral argument of the plaintiff's motions on September 16, 1999 and, by order dated September 20, 1999, the Court denied both motions. On October 12, 1999, the proposed constitutional amendment was defeated.
The FCPA, enacted in 1988, imposes requirements on candidates, principal campaign committees and political committees. A "political committee" is defined to include "[a]ny ... association ... or other group of one or more persons which receives or anticipates receiving contributions or makes or anticipates making expenditures to or on behalf of any ... proposition ...." Id. § 17-22A-2(a)(10). A "proposition" includes any proposal submitted to popular vote. Id. § 17-22A-2(12). A "contribution" or an "expenditure" includes, with certain exceptions, "anything of value ... made for the purpose of influencing the result of an election." Id. § 17-22A-2(a)(2)a, -2(a)(4)a. An "election" includes "any election at which a constitutional amendment or other proposition is submitted to the popular vote." Id. § 17-22A-2(a)(3).
As noted, political committee status arises upon the anticipated or actual receipt of contributions or making of expenditures on behalf of any proposition. A political committee is thereafter required to comply with certain registration, organizational, recordkeeping and reporting requirements. In brief, a political committee must file a statement of organization, Ala. Code § 17-22A-5; open a bank account and appoint a treasurer to keep an account of contributions, expenditures, contributors and recipients, id. §§ 17-22A-3, -6; and file periodic reports, open for public inspection, that disclose the identity of each person making contributions or receiving expenditures of over $100 within the calendar year. Id. §§ 17-22A-8, -10(a), -11(2).
The plaintiffs allege that these provisions of the FCPA violate the First Amendment in the following ways:
• they purport to apply to groups, such as CCA, that engage exclusively in issue advocacy;
• they purport to apply to groups, such as CCA, whose major purpose is not to expressly advocate an election result;
• they purport to apply to groups, such as CCA, that expressly advocate the passage or defeat of a ballot measure, without any compelling state interest in such regulation;
• they purport to apply to groups, such as CCA, that expressly advocate the passage or defeat of a ballot measure without employing narrowly tailored means;
• they abridge the Richeys' right to receive speech from CCA.
The plaintiffs seek a declaration that the challenged portions of the FCPA are unconstitutional on their face and as applied and an injunction permanently barring their enforcement against CCA. (Doc. 1 at 14-19).
CCA is a non-profit, non-stock corporation incorporated in the State of Alabama. It is exempt from federal income tax under 26 U.S.C. § 501(c)(4). It is not associated with any political candidate, political party or campaign committee. Its purposes are to educate, inform and mobilize Christians to become active in the public arena in support of causes which reflect Christian values, and to uphold, propagate and disseminate by all lawful means Christian principles and values. CCA's total budget for the two-year election cycle 1998-1999 is approximately $230,000. (Doc. 70 at 3).
To further its purposes, CCA has in the past spent more than $1,000 in a single calendar year to produce and distribute communications about important public issues and candidates' positions on them, without in explicit words or by express terms advocating the election or defeat of a clearly identified candidate. CCA has not in the past expressly advocated the nomination or election or defeat of any clearly identified candidate. It has no intention of doing so in the future, and any such communication would exceed CCA's mission. (Doc. 70 at 3-4).
A ballot measure regarding gambling was voted on by the people of Alabama on October 12, 1999. CCA desired to receive contributions regarding the gambling ballot measure in excess of $1,000 and to expend over $1,000 during 1999 to prepare and distribute voter guides expressly urging voters to reject the gambling proposal. CCA decided not to publish the voter guides because it did not want to comply with all of the political committee requirements in the FCPA and did not want to suffer what it believes to be the adverse consequences of complying with the Act. (Doc. 70 at 4).
The November 7, 2000 ballot includes a ballot measure concerning use of certain state trust funds. CCA desires to spend over $1,000 to produce and distribute voter guides expressly advocating passage or defeat of this measure, but will not do so for the same reasons it did not expressly advocate defeat of the November 1999 gambling proposal. (Doc. 76, Exhibit 1). CCA anticipates that future ballot measures will be submitted to the voters and that CCA will desire to spend over $1,000 in a calendar year to expressly advocate passage or defeat of such measures. (Doc. 61 at 3).
Spending money to urge voters to vote for or against a ballot measure, or otherwise engaging in express advocacy, is not, and will not become, the major purpose for which CCA exists. (Doc. 61 at 2; Doc. 70 at 3-4).
The primary method of distribution for CCA's voter guides has been, and remains, as inserts to church bulletins, which are handed out to various congregations during church services. This is the primary method of distribution CCA plans to use for its voter guides urging the passage or defeat of any future ballot measure. (Doc. 70 at 9). Some churches that have previously distributed CCA voter guides would refuse to do so if CCA is deemed a political committee out of fear that their legal status would be negatively affected, as by losing tax-exempt status under 26 U.S.C. § 501(c)(3). (Doc. 54, Exhibits I-M).
CCA has about 2,500 contributors per calendar year. Some individuals give over...
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