Corren v. SorrellCorren v. Sorrell
OPINION AND ORDER
Dean Corren, formerly a publicly-funded candidate for Vermont Lieutenant Governor, was accused in 2014 of receiving an unlawful contribution from the Vermont Democratic Party in violation of the state’s campaign finance law. The Vermont Attorney General’s Office -investigated the matter and initiated a civil enforcement action against Corren in state court. That case is currently pending. ‘ ■
Corren now comes to federal court challenging several ‘provisions in the state campaign finance law as it pertains to publicly-funded candidates Also' appearing'as Plaintiffs are the Vermont Progressive Party, Steven Hingtgen, Richard Kemp, and Marjorie Power. Hingtgen, Kemp, and Power are each former Progressive Party candidates and past political contributors. Candidate David Zückerman has moved to intervene. The Defendant,'Attorney General William Sorrell, moves to dismiss the case on the basis of Younger abstention and lack of standing, and opposes Zucker-man’s intervention motion. For the reasons set forth below, Sorrell’s motion to dismiss is granted in part and denied in part, and Zuckerman’s motion to intervene' is granted.
I. Background and Procedural History
In 2014, Plaintiff Dean Corren ran unsuccessfully for Lieutenant Governor as the candidate- of the Vermont Democratic and Progressive parties. Corren financed his campaign With primarily public funds, granted to him through Vermont’s public financing option, 17 V.S.A. Chapter 61, subchapter 5. Under that statute, a candidate for Lieutenant Governor may receive public financing if he first raises at least
Vermont’s campaign finance law prohibits publicly-funded candidates from soliciting, accepting, or expending campaign contributions other than qualifying contributions. 17 V.S.A. § 2853(b). During the course of Corren’s campaign, the office of Attorney General Sorrell received a complaint that the Corren campaign had accepted an unlawful, in-kind contribution in the form of an October 24, 2014 email sent by the Vermont Democratic Party (“VDP”). The email was sent by Dottié Deans, chair of the VDP, and was entitled “How you can help me help Dean Corren.” The email stated in part:
Many of you know I’m a strong supporter of Dean Corren for Lt. Governor but maybe you don’t know why. Dean has the skills and experience to support our Vermont Democratic Party Platform and overcome some of the greatest challenges we face.
I believe Dean would make an excellent Lt. Governor, but to make this happen we all need to pitch in. Here are a few ways you can help.
1. Come to a Rally! This weekend we are joining Senator. Bernie Sanders, • Governor Peter Shumlin, Dean and local candidates at four [Get Out The Vote] rallies across the state. [The email went on to list four rallies in Bristol, Proctor, Hinesburg,.and St. Albans.]
3. Tell Your Neighbors! We are working every day to talk to voters in Vermont into getting to the polls on Election Day. Sign up to volunteer for a shift here. For other ways to help, please email volunteer@deancorren.com
I appreciate all the work you are doing on behalf of our candidates around the state and look forward to celebrating great victories with you on the 4th. Now get out and vote for. Congressman Peter Welch, Governor Peter Shumlin, Dean Corren for Lieutenant - Governor, and the rest of our amazing Democratic ticket!
ECF No. 1-1.
On October 30, 2014, the Attorney General’s--Office notified the Corren campaign and the Vermont Democratic Party that the email constituted an uncompensated contribution prohibited by 17 : V.S.A. § 2853(b)(1). The alleged valué of the contribution — representing the value of the email list — was $255. ,
After conducting' an investigation, the Attorney General’s Office provided Corren with a draft of a civil enforcement pleading it was prepared to file in state court. The state -court action would seek $20,000 in fines - and the return of the approximately $52,000 in public funds that the Corren campaign had in its accounts as of the date of the email. Corren disputed the claims, and alternatively offered to pay the $255 value of the contribution out of his campaign funds. That offer was rejected. As of December 12, 2014, the Corren campaign had spent all of its campaign funds with the exception of $73.60, which was returned to the State.
On March 25, 2015, the Attorney General’s Office filed the enforcement action against Corren in Vermont Superior
Corren filed the- instant lawsuit on March -20, 2015. On April 6, 2015,-he filed a motion for a preliminary injunction. Sorrell responded with a motion to dismiss, asking the Court to abstain from hearing Correris claims in light, of the pending state court action. Corren has since filed two amended Complaints, adding new Plaintiffs and supplementing his pleadings. After each amendment, Sorrell again moved to dismiss. The most recent motion to dismiss, filed in response to Corren’s Second Amended Complaint, contends that abstention is still warranted and that all Plaintiffs lack standing to bring their claims.
II. The Second Amended Complaint
The Second Amended Complaint consists of four counts. Count I challenges the constitutionality of 17 V.S.A. § 2983(b)(1), which makes it unlawful for a publicly-funded candidate to (i) solicit, accept, or expend any campaign contributions or. (ii) make any expenditures not covered by .either the public financing grant or the private money raised in order to qualify for that financing. Prohibited contributions include money spent by political parties on behalf of the publicly-financed candidate.
Plaintiffs allege that this complete prohibition on contributions violates the ruling in Randall v. Sorrell,
In a related argument, Plaintiffs contend that by limiting a candidate’s spending to the -amount of-the public grant, the law puts a publicly-funded candidate at an unfair disadvantage • when facing a well-financed opponent; The solution, they suggest, is a “rescue” provision that would allow publicly-funded candidates to raise additional private -funds if necessary.
Count II attacks the constitutionality of 17 V.S.A. § 2944(c)(1) and (2), which state that a political party expenditure qualifies as a “related campaign expenditure” by an individual candidate if it primarily benefits six or! fewer candidates. Plaintiffs claim that ’the statute violates the rights of association of both the publicly-funded candidates and their parties, that the six-candidate threshold has" no constitutional significance, and that this prohibition on party speech is unconstitutionally ambiguous and invites arbitrary enforcement.
Count III contends that the October 24, 2014 email was not a “contribution” as defined by Vermont law. Title 17, Section 2901(4) states that a “‘contribution’ shall not include any of the following ... (F) the use of a political party’s offices, telephones, computers, and similar equipment —” Because the email in question was sent on a party computer, Plaintiffs submit that it fell within the Section 2901(4)(F) exception. Count III also alleges that because the email invited readers to attend one of four campaign events, each of which was
Count III further claims that the statute^ — as currently enforced by the Attorney General with respect to the October 24, 2014 email and potentially other communications — puts political parties and their supporters at risk of -prosecution if they fail to report such party activities as contributions. Accordingly, the Second Amended Complaint claims that the law creates a chilling effect on the speech and associational rights of publicly-funded candidates, political parties, and party members.
Count IV alleges that the refund of $52,000 demanded by the Attorney General’s Office violates the Excessive Fines Clause of the Constitution; would be “grossly disproportional to the gravity of any offense and violates ,the Eighth Amendment”; is excessively punitive in violation of the Due Process Clause; is not rationally related to the offense in violation of the Fourteenth Amendment; and violates. the narrow tailoring required under the First Amendment.
For relief, Plaintiffs seek declaratory and preliminary and permanent injunctive relief with respect to actual or threatened enforcement of 17 V.S.A. § 2944(c)(1) and (2) (defining related expenditures) and § 2983(b)(1) (limiting publicly-financed candidates to only authorized contributions). The declaratory' judgment wóuld also apply to the exclusions set forth at 17 V.S.A. § 2901(4)(F) (allowing contributions on behalf of multiple candidates). Additionally, Corren asks the Court to declare the refund provision in the former 17 V.S.A. § 2903(b) unconstitutional,
III. Abstention
The Attorney General’s motion to dismiss raises the fundamental questions of (1) whether this Court should abstain from hearing Corren’s claims because of the pending state court enforcement action, and (2) whether the various Plaintiffs have standing to challenge the state’s campaign finance laws. Turning first to the question of abstention, in Younger v. Harris the Supreme Court held that a federal court may not enjoin á pending state criminal proceeding in the absence of special circumstances suggesting bad faith, harassment, or irreparable injury that is both serious and immediate.
The Second Circuit previously set forth a test for abstention under Younger, requiring (1) a pending state proceeding (2) that implicates an important state interest, and (3) that “the state proceeding affords the federal plaintiff an adequate opportuni
In 2013 the Supreme Court revised the test, holding that Younger abstention is limited to ' three classes of parallel proceedings: (1) “pending state criminal proceeding[s]”; (2) “particular state. civil proceedings that are akin to criminal prosecutions”; and (3) civil proceedings “that implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint Commc’ns, Inc. v. Jacobs, — U.S. -,
Our decisions applying Younger to instances of civil enforcement have generally concerned state proceedings akin to a criminal prosecution in important respects. Such enforcement actions are characteristically initiated to sanction the federal plaintiff, i.é., the party challenging the state action, for some wrongful act. In cases of this genre, a state actor is routinely a party to the state proceeding and often initiates the action. Investigations are commonly involved, often culminating in the filing of a formal complaint or charges.
In this case, the Attorney General’s enforcement of Vermont’s campaign finance law against Corren meets the Sprint criteria for abstention and is consistent with the Supreme Court’s prior applications of Younger. The state court enforcement action seeks to impose civil penalties and recover public money as punishment for alleged violations of the campaign finance law. As described in Sprint, the state court action is being brought by a “state actor,” and was initiated after an investigation. Id.
Sprint also noted that while the Middlesex factors are not dispositive, they may be considered. Id. at 593. Here, the first two factors are satisfied as there is a pending state proceeding that implicates the important state interest' of enforcing Vermont campaign finance laws. With réspect to the third Middlesex factor, there is no dispute that the state courts will provide Corren with ample opportunity to present his federal constitutional claims. See, e.g., State v. Green Mountain Future,
Corren does not dispute either that the pending state court action is one for enforcement, or that the state court is fully able to hear his federal claims. Instead, his early briefing — in response to the initial motion to dismiss — relies on Rapid Rubbish Removal v. Ripley,
Emphasizing the First Amendment interests inherent in the enforcement of campaign finance laws, Corren also seeks to bring this case within the “extraordinary circumstances” exception to the Younger doctrine. Diamond “D” Const. Corp. v. McGowan,
Corren currently contends that the Randall decision provides this Court with ongoing jurisdiction under the doctrines of res judicata, collateral estoppel, and ancillary jurisdiction. Specifically, Corren claims that any campaign finance law preventing a party contribution of less than $400 violates Randall; and that this Court has continuing jdrisdictiorl to enforce the Supreme Court’s ruling. That jurisdiction, he contends, overrides Younger.
None of the doctrines cited by Cor-ren apply here. Randall considered contribution, limits, to, and expenditures by, Verr mont candidates under a former Vermont statute. The question of publicly-financed candidates was riot at issue. Randall,
Furthermore, res judicata and collateral estoppel- are not independent sources of federal, subject matter jurisdiction. See, e.g., Johnson v. Freeburn,
Corren also seeks to invoke ancillary jurisdiction as a means for this Court to enforce a prior “ ‘judgment or décree.’ ” ECF No. 33 at 2 (quoting Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
-This case is fundamentally different from the types of enforcement actions cited in Peacock. Here, Plaintiffs seek to invoke, or enforce, the holding in Randall. While Randall may be relevant to the merits of this case, it is not the sort of “judgement or decree” that would be enforced by “attachment, mandamus, garnishment” or other sort of post-judgment remedy that would require ancillary jurisdiction. Id. at 356-57,
Finally,. Corren submits that some of his prospective claims are not a part of the state court enforcement action and therefore survive Younger abstention. The Attorney General’s enforcement action pertains primarily to political party contributions barred by 17 V.S.A. §§ 2944(b)(1) and 2983(b)(1). The action also requires interpretation of the contribution exceptions as applied to parties under 17 V.S.A. § 2901(4), and the refund provision in Section 2903(b). Corren’s federal claims go further, challenging the bar on “rescue” contributions .to publiclyrfunded candidates in the event of a well-financed opponent, and the prohibition on his ability to contribute to his. own campaign. Sorrell does not dispute that these latter claims would survive the Younger analysis.
Accordingly, abstention bars consideration of some, but not all, of Corren’s claims. Specifically, the Court will abstain from hearing Corren’s claims with respect to authorized contributions under 17 Y.S.A. § 2983; the contribution definitions in Section 2985; related expenditures under Section 2944; limits on spending under Section 2963; challenges to the refund pro
IV. Standing
. Sorrell moves to dismiss all of the Plaintiffs’ claims, including the claims brought by Corren that are not barred by abstention, for lack of standing. Under Article III of the Constitution, federal courts may resolve only actual cases or controversies. “One element of the bedrock case-or-cOntroversy requirement is that - plaintiffs must establish that they have standing to sue.” McConnell v. FEC,
To establish standing generally, a plaintiff must (1) “have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;” and (2) the injury must be “fairly traee[able] to the challenged action 'of the' defendant.” Lujan v. Defenders of Wildlife,
A. Overbreadth
Plaintiffs argue that they are entitled- to challenge ■ Vermont campaign finance-laws as overbroad. A law is over-broad if “‘a’substantial number’ of its applications are unconstitutional, ‘judged in relation to the statute’s plainly -legitimate sweep.-’” Wash. State Grange v. Wash. State Republican Party,
Plaintiffs’ reliance upon the over-breadth doctrine is misplaced. While the doctrine allows Plaintiffs to assert claims on behalf of both themselves and hypothetical third parties, Farrell v. Burke,
Plaintiffs repeatedly refer to the First Amendment overbreadth doctrine as it if were relevant to whether they have established Article III standing. It is not. ... [T]he overbreadth doctrine speaks to whose interests a plaintiff suffering Article III injury may.represent. It does not provide a reason to, find such injury where none is present -or imminently threatened in the first instance.
Hedges v. Obama,
Plaintiffs each ask for prospective relief to prevent the alleged chilling of their constitutional rights and future state enforcement of the challenged statutes. “To establish standing to obtain prospective relief,” such as the injunctive and declaratory relief sought here, “a plaintiff must show a likelihood that he [or she] will be injured in the future.” Carver v. City of New York,
When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging - the law. See Steffel v. Thompson,415 U.S. 452 , 459,94 S.Ct. 1209 ,39 L.Ed.2d 505 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); see also MedImmune, Inc. v. Genentech, Inc.,549 U.S. 118 , 128-29,127 S.Ct. 764 ,166 L.Ed.2d 604 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the"'basis for the threat”). Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent.’ Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges “an intention to'engage in a course of conduct arguably .affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers,442 U.S. 289 , 298,99 S.Ct. 2301 ,60 L.Ed.2d 895 (1979).
Susan B. Anthony List v. Driehaus, — U.S. -,
i. Corren
Corren has already been the subject of an enforcement - action. He now challenges the lack of a “rescue” provision, as well as his ability to self-finance, arguing that .the current limitations hinder, his ability to run a successful campaign against a well-financed opponent. Corren also claims that such limitations restrict his political speech. . . . , ,;
With regard to his standing as a candidate, Corren is currently'Contemplating a run for governor in 2016. He has not formally announced his candidacy, in part because» he is awaiting this 'Court’s rulings on the challenged provisions. More significantly,. Vermont • law prohibits him from announcing or making expenditures of over $2000 as a publicly-financed candidate prior to - February 15, 2016. 17 V.S.A. § 2983(a). In’ light of the restriction in Section, 2983(a), Corren cannot take any additional formal action at the present time to support his standing as a publicly-financed candidate for governor.
The Attorney General contends that Corren cannot challenge the public-financing system because public financing is optional. The argument is that by accepting public money, Corren agrees to abide by the, rules and restrictions that .'go along with-it, and that any injury suffered is therefore self-inflicted. ■ Such self-inflicted injury .allegedly breaks the causation chain, as the State is not» the direct cause of harm.
The. Court finds this’” argument unpersuasive with regard to the question of standing. In Buckley v. Valeo,
This Court may ultimately conclude that by accepting public financing, a candidate waives the right relief on the basis of an alleged constitutional injury. However, that argument does not deprive the candidate of standing at the outset. Indeed, when restrictions on publicly-financed candidates arguably run afoul of the First Amendment, there must be an avenue for judicial review. Cf. Arizona Free Enter. Club’s Freedom Club PAC v. Bennett,
Finally, Corren has shown that the threat of. enforcement by the Attorney General’s Office is real. If he were to either collect contributions or self-finance beyond the limitations set for publicly-financed candidates, he would surely render himself vulnerable to a second - enforcement action. The Court therefore finds, based upon the current record, that the threat of prosecution is credible, and that Corren, has standing to challenge Vermont’s public-financing scheme. See Babbitt,
ii. Vermont Progressive Party
The Vermont. Progressive Party (“VPP”) claims to have standing on the basis of its ongoing monetary and in-kind support for candidates, including publicly-funded candidates. In Landell v. Sorrell, this Court found that the Vermont Libertarian Party had standing to challenge limits on political party contributions because of its “inten[t] to carry out [its] supporting role for Vermont political candidates this year and in the future.”
Furthermore, the Second Amended Complaint alleges that because of Vermont’s limitations on publicly-funded candidates, “both, the VPP and Mr. Corren extensively self-censored, erecting, a communication barrier between VPP and his campaign ____” ECF No. 28, ¶ 24. Such communications are one way in which the VPP expresses its views, and “[t]he independent expression of á political party’s views is- ‘core’ First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees.” Colorado Republican Fed. Campaign Comm. v. Fed. Election Comm’n,
This latter principle holds true even when a newly-enacted statute has not yet been .enforced, as “the alleged danger of [the] statute [was], in large .measure, one of self-censorship; a harm that can be realized even without an actual prosecution.” Id. at 393,
iii. Hingtgen, Kemp, and Power
Plaintiffs Hingtgen, Kemp, and Power'claim standing on the basis of past and future contributions to the VPP. The right to associate in a political party has been deemed “a particularly important right.” Randall,
\ These Plaintiffs also claim standing as contributors to individual candidates. Powers in.particular claims a right-to contribute-to the Corren campaign in excess of current limitations if Corren, is being outspent by an opponent. The Supreme Court has acknowledged that
[t]he First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. When an individual contributes money to a candidate, he exercise both of those rights. The contribution “serves as a general expression of support for the candidate and his views.” and “serves to affiliate a person with a candidate.”
McCutcheon v. FEC, — U.S. —,
It is therefore well, established that contributors to political parties and campaigns engage in protected First Amendment activities. Those activities are allegedly being curtailed by the limitations in Vermont’s campaign finance law as it pertains to publicly-funded candidates. Plaintiffs Hingtgen, Kemp, and Power, as contributors to both the VPP and individual candidates, have standing to challenge those limitations. See Landell,
That said, there is an allegation in the Second Amended Complaint that the lack of a “rescue” provision will hinder “any of the plaintiffs should they decide to run again.” ECF No. 28, ¶ 41. Hingtgen, Kemp, and Power are each past candidates for Lieutenant Governor. There is ho allegation, however, that any ene of them is actively considering running for office as a publicly-financed candidate in the future.- The mere potential of a “foray into electoral politics” is “too speculative to provide the basis for an injury to [the candidates’s] competitive interests.” Nader v. FEC,
V. Motion to Intervene
; The, most recent motion-before the Court is one for intervention filed by State Senator David Zuckerman. Zucker-man has announced his entry into the 2016 race for the office of Lieutenant Governor. His.-intervention pleading seeks to join the Plaintiffs’ challenges to the expenditure and fundraising caps set forth in 17 V.S.A §.,2983(b)(1), the lack-of a “rescue” provision, and the restrictions on related expenditures in 17 V.S.A. § 2944. Zuckerman also hopes .to challenge 17 V.S.A. § 2983(a), which prohibits a publicly-financed candidate from announcing his or her candidacy, or raising or expending more than $2,000, prior to February 15, 2016. This restriction, he claims, will be particularly harmful in the upcoming 2016 race, as two-traditionally-funded candidates - for Lieutenant Governor have already declared and are raising money.
... claims an interest relating to the property or transaction that is the subject of the action, and' is so situated that disposing of the action may as a practical matter, impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
Fed. R. Civ.' P. 24(a)(2). This provision has been described as a four-part test, requiring each of the following conditions to be satisfied before intervention can be granted: ■ !
(1) that the motion is timely;
(2) that the applicant asserts an interest relating to the property or transaction that is the subject of the action;
(3) that the applicant is so situated that without intervention, disposition of the action may, as a practical matter,, impair or impede the applicant’s ability to protect its interest; and
(4) that the applicant’s interest "is not adequately represented- by the other parties. • ■ .
See MasterCard Int’l v. Visa Int’l Serv. Ass’n,
With respect to' permissive intervention,
The court “considers substantially the , same factors” for intervention as of right or permissive intervention. R Best Produce, Inc. v. Shulman-Rabin Marketing Corp.,
Here, Zuckerman’s motion displays sufficient grounds for permissive intervention. As a declared candidate for 2016, he has a clear interest in the resolution of the issues in this case. Furthermore, his petition sets him apart from Plaintiffs Hingtgen, Kemp, and Power, none of whom have standing as future candidates. Zucker-man’s ability to pursue, the Plaintiffs’ claims is also distinct from that of Corren, who is barred in several respects by the Court’s need to abstain. As a consequence, Zuckerman’s presence in the case will not only be free of prejudice to the original parties, but will actually enhance their ability — through common counsel — to pursue the requested relief. Zuckerman’s motion to intervene is therefore granted.
VI. Conclusion
The Attorney General’s most recent motion to dismiss (ECF No. 32) is granted in part and denied in part. The Court will abstain from hearing Corren’s challenges to Vermont’s campaign finance law insofar as those challenges relate to the enforcement action currently pending.against him in state court. Because the refund provision is one. such challenge, and that provision has since, been repealed such that there can be no effective prospective relief, Count IV of the Second Amended Complaint is dismissed without prejudice. Cor-ren may proceed in this case with his challenges to the bar on “rescue” contributions to publicly-funded candidates, and to the prohibition on his ability to contribute to his own campaign. Plaintiffs have standing to bring the remaining claims as set forth above.
Notes
. The Attorney General’s Office previously reached a settlement with the Vermont Democratic Party with regard to its alleged, violation.
. The Vermont Legislature recently amended Section 2903(b) and removed the refund provision. See 2015 Vt. Acts & Resolves, No. 30. The statute currently calls for the refund of “an amodnt equivalent to any contributions or expenditures that violate subdivision 2983(b)(1) of this chapter.” . 17 V.S.A. § 2903(b).
. The -fact that this case was filed shortly before the state court enforcement action is of , no concern, as the Court has not considered ' the merits of Corren’s claims. See Middlesex,
. The citation appears in Corren’s opposition to Sorrell’s first motion to dismiss. That opposition is incorporated into the Plaintiffs' current briefing by reference. ECF No. 33 at 1.
. Under the Pullman doctrine, abstention is appropriate in cases presenting federal constitutional issues which might be avoided. or modified by a state court ruling on state law issues. See Colorado River Water Conservation Dist. v. United States,
. The Attorney General also argues that Cor-ren lacks standing to argue for a “rescue” provision because he has-no right to a level financial playing field. The Court views this as a merits argument, and not a bar to standing.