Virginia Soc. for Human Life, Inc. v. Caldwell

• Decision Date: 21 July 1998
• Docket Number: No. 97-1292,97-1292
• Citation: 152 F.3d 268
• Parties: VIRGINIA SOCIETY FOR HUMAN LIFE, INCORPORATED; Andrea Sexton, Plaintiffs-Appellants, v. Donald S. CALDWELL, Attorney for the Commonwealth of Virginia for the City of Roanoke, in his official capacity and as a representative of the class of Attorneys for the Commonwealth of Virginia; Pamela M. Clark, in her official capacity as Chairman of the Virginia Board of Elections; George M. Hampton, Sr., Dr., in his official capacity as Vice-Chairman of the Virginia Board of Elections; M. Bruce Meadows, in his official capacity as Secretary of the Virginia Board of Elections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 268

152 F.3d 268

VIRGINIA SOCIETY FOR HUMAN LIFE, INCORPORATED; Andrea Sexton, Plaintiffs-Appellants, v. Donald S. CALDWELL, Attorney for the Commonwealth of Virginia for the City of Roanoke, in his official capacity and as a representative of the class of Attorneys for the Commonwealth of Virginia; Pamela M. Clark, in her official capacity as Chairman of the Virginia Board of Elections George M. Hampton, Sr., Dr., in his official capacity as Vice-Chairman of the Virginia Board of Elections; M. Bruce Meadows, in his official capacity as Secretary of the Virginia Board of Elections, Defendants-Appellees.

No. 97-1292.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1997.

Decided July 21, 1998.

ARGUED: James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellants. Alice Ann Berkebile, Assistant Attorney General, Richmond, Virginia, for Appellees. ON BRIEF: John K. Abegg, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellants. Richard Cullen, Attorney General of Virginia, Richmond, Virginia, for Appellees.

Before MURNAGHAN and WILKINS, Circuit Judges, and HERLONG, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge WILKINS and Judge HERLONG joined.

MURNAGHAN, Circuit Judge:

This case involves a challenge to Virginia's election laws, Va.Code Ann. §§ 24.2-901, -908, -910 & -1014 (Michie 1997). Those laws require certain people or organizations who spend money "for the purpose of influencing the outcome of any election," Va.Code Ann. § 24.2-901 (Michie 1997), to file a statement of organization, see Va.Code Ann. § 24.2-908 (Michie 1997), and report their expenditures, see Va.Code Ann. § 24.2-910 (Michie 1997), and also require any writings made "for the purpose of influencing the outcome of an election for public office" to identify the author, Va.Code Ann. § 24.2-1014 (Michie 1997).

The Virginia Society for Human Life (VSHL), the plaintiff-appellant, is a nonprofit organization that conducts issue advocacy by periodically preparing voter guides that do not expressly advocate the election or defeat of any candidate but rather state the candidates' views on public issues. ¹ VSHL and one of its members sued Virginia's Commonwealth's Attorneys, alleging that these laws chill the plaintiffs' constitutionally protected speech because predecessors to the current statutes had been used to impose unconstitutional prior restraints on issue advocacy groups in the past. The plaintiffs sought a declaration that the referred-to provisions of the election law facially violate the First Amendment to the United States Constitution under the Supreme Court's decisions in Buckley v. Valeo, 424 U.S. 1, 78-80, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (interpreting federal election laws that require the disclosure of expenditures to apply only to expenditures used expressly to advocate the election or defeat of a clearly identified candidate, thereby avoiding the First Amendment problems that would arise from a reporting requirement that applied to funds expended in issue discussion), and McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (holding that an Ohio statute prohibiting anonymous issue advocacy was an unconstitutional abridgment of speech), if the statutes apply to issue advocacy groups like VSHL. Plaintiffs also sought an injunction barring the laws' enforcement.

The district court recognized that the plain language of the statutes suggests that they apply to issue advocacy groups such as VSHL. See Virginia Soc'y for Human Life, Inc. v. Caldwell, 906 F.Supp. 1071, 1075-76 (W.D.Va.1995). Because there was little Virginia case law interpreting the statutes, the court certified to the Supreme Court of Virginia the question whether they were susceptible to a narrowing construction that would save their constitutionality. See id. at 1075; Virginia Soc'y for Human Life, Inc. v. Caldwell, No. 95-1042-R (W.D.Va. Nov. 27, 1995) (order of certification to the Supreme Court of Virginia). But the Supreme Court of Virginia "rejected" the certified questions without explanation. See Virginia Soc'y for Human Life, Inc. v. Caldwell, No. 95-2122 (Va. Jan. 18, 1996). About four months later, the Virginia General Assembly amended the statutes (the parties contest the materiality of the amendments).

To save their constitutionality, the district court then narrowly construed the new provisions based on the Supreme Court's interpretation of the federal election laws in Buckley, 424 U.S. at 79-80, 96 S.Ct. 612. The district court found that the phrase "for the purpose of influencing" in the Virginia statutes was "a term of art whose well-established meaning excludes issue advocacy." Virginia Soc'y for Human Life, Inc. v. Caldwell, No. 95-1042-R, slip op. at 4 (W.D.Va. Feb. 19, 1997). It did so because it believed that where a "statute[is] reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that a[sic] construction which will save the statute from constitutional infirmity." Id. at 5 (quoting United States ex rel. Attorney General of the United States v. Delaware and Hudson Co., 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836 (1909) (regarding a federal statute)) (internal quotation marks omitted). Because VSHL conducts only issue advocacy and not express candidate advocacy, the district court dismissed VSHL's claim for lack of standing. See id. at 7.

But such a ruling by a federal district court is not binding upon state courts. A federal district court "lack[s] jurisdiction authoritatively to construe state legislation." United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). As the Seventh Circuit has explained:

[A]n important difference between interpretation of a state statute by a federal court and by a state court is that only the latter interpretation is authoritative. If the district judge [reads the state's] statute so narrowly as to obviate all constitutional questions, it would still be possible for the state to prosecute people for violating the statute as broadly construed, because the enforcement of the statute would not have been enjoined.

Kucharek v. Hanaway, 902 F.2d 513, 517 (7th Cir.1990). The district court's holding, that the Virginia statutes at issue did not apply to VSHL, could not prevent a private party from suing to enjoin VSHL's distribution of campaign literature based on the statutes, nor could it prevent the state from prosecuting VSHL for failing to comply with the statutes. Because the scope of the statutes' applicability had not authoritatively been narrowed and by their plain terms they applied to VSHL, VSHL's speech was still chilled by the statutes. VSHL therefore brought this appeal.

Federal courts have the power and the duty to adopt narrowing constructions of federal statutes to avoid constitutional difficulties "if such a construction is fairly possible," but "federal courts are without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent." Boos v. Barry, 485 U.S. 312, 330-31, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (emphasis added). It was not apparent to us that the election laws at issue were readily susceptible to a construction by which they did not apply to VSHL. In fact, a de novo review of the text, structure and history of the election laws at issue suggested to us that they did apply to issue advocacy groups such as VSHL.

A straightforward reading of the text supported VSHL's claims that its issue advocacy is encompassed within "expenditures for the purpose of influencing the outcome of any election." Va.Code Ann. § 24.2-901 (Michie 1997). Black's Law Dictionary defines "influence" as "[t]o affect, modify or act upon by physical, mental or moral power, especially in some gentle, subtle, and gradual way," id. at 779 (6th ed.1990). Webster's Third New International Dictionary defines "influence" as "to affect or alter the conduct, thought, or character of by indirect or intangible means," id. at 1160 (1993). Under either definition, the voter guides published by VSHL setting out candidates' positions on public issues such as abortion were distributed for the purpose of influencing the outcome of an election.

Furthermore, section 901(B) specifically excludes from the definition of "political committee" ² those organizations that do not engage in express candidate advocacy if they are also tax-exempt under 26 U.S.C § 501(c)(3). ³ The most logical reading of this provision, we believed, is that an organization that does not engage in express advocacy but is not tax-exempt under § 501(c)(3) is implicitly included in the definition of "political committee." Expressio unius est exclusio alterius. VSHL does not engage in express advocacy, but is tax exempt under 26 U.S.C. § 501(c)(4), not § 501(c)(3), and thus appears to be included in the definition of "political committee."

The district court asserted that the Virginia General Assembly "presumably was aware of Buckley 's construction of the phrase 'for the purpose of influencing' to include only express candidate advocacy" when the Assembly enacted and amended sections 24.2-901 to -1014. Virginia Soc'y for Human Life, Inc., No. 95-1042-R, slip op. at 5. However, it appeared to us extremely unlikely that the General Assembly, after reading Buckley and learning that the term "for the purpose of influencing" was unconstitutionally vague and required a narrowing construction to save it, would then decide to use that term, without explanation, in its statute. If the General Assembly meant to define "political committee" as an organization which expended funds "for express candidate advocacy" only, it presumably would have said...