Opinion
IP 96-1357-C H/G
July 31, 2000.
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
The parties' motions for summary judgment call on the court to decide whether to exercise its discretionary jurisdiction under the Declaratory Judgment Act to declare whether plaintiffs' activities in 1996 violated Indiana election laws. As explained below, the court finds that the decision of the Supreme Court of Indiana in this case removes any compelling need for federal declaratory relief in this case. See Brownsburg Area Patrons Affecting Change v. Baldwin, 714 N.E.2d 135 (Ind. 1999) (answering certified question). The court therefore declines to exercise further jurisdiction under the Declaratory Judgment Act and dismisses the case.
The Facts and Procedural Background
The material facts are not in dispute. Plaintiff Brownsburg Area Patrons Affecting Change (BAPAC) is an organization in Hendricks County, Indiana, that works to inform local citizens about political issues and advise them of local political figures' positions on those issues. BAPAC also works to serve as a voice for citizens to their local public officials. Plaintiff John Patten is a founder and leader of BAPAC. Before the May 1996 primary election, BAPAC used a telephone hotline and distributed flyers to inform the public about candidates' positions on various issues. BAPAC did so for the purpose of affecting the outcome of the primary elections, and it spent more than $100 in its efforts. However, BAPAC's messages did not contain express words advocating the nomination, election, or defeat of any candidate. See Buckley v. Valeo, 424 U.S. 1, 44 n. 52 (1976) (per curiam) (distinguishing between what are now called "express advocacy" and "issue advocacy").
At all relevant times, Indiana law has defined a "political action committee," with exceptions not relevant here, as an organization that "proposes to influence" state or local elections and that accepts contributions or makes expenditures of more than $100 "to influence" state or local elections. Ind. Code § 3-5-2-37(a). Indiana law requires political action committees to register with state or county authorities, to file certain reports, and to comply with other requirements as set forth in Ind. Code § 3-9-4-16 and other provisions referenced therein.
This section of the statute has been amended several times, but the key elements of "influence" and the $100 threshold have not changed.
BAPAC did not register as a political action committee. After the 1996 primary, defendant Patricia Baldwin, the prosecuting attorney for Hendricks County, received a complaint about BAPAC's activities. She referred that complaint to the Hendricks County Election Board. The board chairman, William E. Daily, investigated the circumstances to determine whether election laws had been violated. On June 6, 1996, Daily wrote a letter to plaintiff John Patten asking him to "indicate why you believe that the laws which I have cited do not apply to BAPAC." An attorney for BAPAC responded by asking Daily for copies of any materials that had raised the board's concerns. Daily sent copies to BAPAC's lawyer.
BAPAC's lawyers then wrote to Daily on August 6, 1996, asserting that BAPAC was not a political action committee because its "major purpose is not to expressly advocate the election or defeat of any candidate."
Daily responded with a letter on August 28, 1996. He reported that the election board had met to discuss BAPAC and had not reached "a final decision." He continued:
A political action committee is a nonpartisan organization that makes expenditures in excess of $100.00 during a calendar year to influence the election of a state or local candidate (IC 3-5-2-37). The contents of the audio tape appear to be an attempt to influence the election of a candidate. If BAPAC spent in excess of $100.00 to influence the outcome of a particular contested race, BAPAC should file the reports which are required by the Indiana election laws. An organization may be a political action committee even if the major purpose of the organization is not to advocate the election or defeat of a candidate.
BAPAC did not respond directly to Daily but filed this action on September 20, 1996. At the time this action was filed, the county election board had not made any final decision about BAPAC's status and had not initiated any enforcement action against BAPAC.
Plaintiffs' complaint asked the court to declare the definition of "political action committee" in Ind. Code § 3-5-2-37 unconstitutional on its face and to enjoin defendants from enforcing against plaintiffs the substantive requirements that apply to political action committees. The complaint also prayed for "such other relief as may be just and equitable." Plaintiffs moved for a preliminary injunction to prevent enforcement of what BAPAC believed to be an unconstitutional election law provision. After an evidentiary hearing, this court denied BAPAC's motion in a written entry. This court found that BAPAC did not demonstrate a likelihood of success on the merits because, when properly interpreted, the Indiana definition of a political action committee "does not apply to an organization like BAPAC, which has engaged, and wishes to engage, only in issue advocacy." Brownsburg Area Patrons Affecting Change v. Baldwin, 943 F. Supp. 975, 993 (S.D.Ind. 1996).
Since that decision, this case has followed an unusual course. BAPAC appealed this court's denial of a preliminary injunction, arguing that this court misinterpreted the statute. The Seventh Circuit observed:
"BAPAC is in the peculiar position of challenging the constitutionality of the Indiana election statute in this court when it essentially prevailed in the district court on statutory interpretation grounds." Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 505 (7th Cir. 1998). The Seventh Circuit elected to certify the legal question to the Supreme Court of Indiana to obtain a definitive answer to the statutory issue. 137 F.3d at 509-10.
The Supreme Court of Indiana accepted the question and then provided its answer: "the definition of `political action committee' in Ind. Code § 3-5-2-37 should be narrowly construed to encompass `only those organizations which make contributions or expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for office or the victory or defeat of a public question.'" 714 N.E.2d at 142. In essence, the state court agreed with this court that the statutory definition of a political action committee incorporated the distinction between express advocacy and issue advocacy adopted by the Supreme Court of the United States in Buckley v. Valeo, supra, 424 U.S. at 44.
After receiving that answer from the state court, the Seventh Circuit issued an unpublished order affirming this court's denial of BAPAC's motion for a preliminary injunction. Brownsburg Area Patrons Affecting Change v. Baldwin, No. 96-3981 (7th Cir. Sept. 17, 1999).
The case had been dormant in this court while the appeal and certification proceeded. In light of the state court's decision, it is clear there is no basis for the specific relief BAPAC had sought in its complaint. The Indiana statute is not unconstitutional on its face. It applies to groups that satisfy its definition, as construed by the Supreme Court of Indiana, based on "express advocacy," as distinct from "issue advocacy."
After the appeal was concluded, however, the case returned to life in this court. BAPAC filed a motion for summary judgment that asks the court to grant a different type of relief: a declaratory judgment declaring that BAPAC's flyers and recorded telephone messages before the 1996 primary in Hendricks County constituted issue advocacy protected by the First Amendment from regulation under the state law on political action committees. Defendants responded with their own motion arguing the case should be dismissed as moot. The court held a hearing on these motions on April 28, 2000.
Discussion
Under the Declaratory Judgment Act, "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). The Act "does not dispense with the Article III case or controversy requirement . . ., nor does it supply the court with subject matter jurisdiction." Nationwide Insurance v. Zavalis, 52 F.3d 689, 692 (7th Cir. 1995) (citations omitted).
Even assuming for purposes of argument that a case still presents a live case or controversy within the scope of Article III of the United States Constitution, the court has discretion in determining whether to entertain an action under the Declaratory Judgment Act. See Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995); Brillhart v. Excess Insurance Co. of America, 316 U.S. 491, 494 (1942); accord, Tempco Electric Heater Corp. v. Omega Engineering, Inc., 819 F.2d 746, 747 (7th Cir. 1987) ("It is well settled that the federal courts have discretion to decline to hear a declaratory judgment action, even though it is within their jurisdiction."). In deciding whether it is appropriate to issue a declaratory judgment, the court should consider "whether a declaratory judgment will settle the particular controversy and clarify the legal relations in issue." NUCOR Corp. v. Aceros y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 579 (7th Cir. 1994), quoting Sears, Roebuck and Co. v. American Mutual Liability Insurance Co., 372 F.2d 435, 438 (7th Cir. 1967).
BAPAC argues that a declaratory judgment is appropriate despite defendants' assurances in this court that they have no plans to try to compel BAPAC to comply with the reporting and disclosure requirements. BAPAC points out that the county election board has never officially declared that its activities before the 1996 primary were constitutionally protected issue advocacy. BAPAC therefore concludes there is still a risk that the board might attempt to compel it to comply with the act's requirements at some point in the future based on its 1996 activities. BAPAC seeks a declaratory judgment to eliminate this perceived risk.
In support of its argument, BAPAC relies upon two decisions that dealt with similar issues, but both cases presented more compelling needs for declaratory relief than are present here. The first is American Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973), vacated sub nom. Staats v. American Civil Liberties Union, Inc., 422 U.S. 1030 (1975). In Jennings, the ACLU attempted to publish an advertisement in a newspaper voicing its disagreement with the president's position on a matter of public policy. The advertisement also listed the names of the members of the House of Representatives who had voted against the president's position on the issue. The newspaper refused to run the advertisement because it believed that the ACLU needed first to comply with the Federal Election Campaign Act of 1971 (FECA). The ACLU filed suit against the Clerk of the House of Representatives and other government officials charged with supervising and enforcing the act, seeking both injunctive and declaratory relief. The district court granted the ACLU's motion for a preliminary injunction. The newspaper then published the advertisement.
Following the publication, the defendants moved for either dismissal or summary judgment. The defendants presented the affidavits of two individuals charged with enforcing FECA stating that in their judgment, the advertisement at issue did not subject the ACLU to FECA's reporting and disclosure requirements. The defendants argued that the affidavits eliminated any justiciable issue because they established there was no longer a danger that the ACLU's advertisement would subject it to government regulation. The court disagreed with defendants and considered the case on the merits.
In dealing with the section of FECA that is similar to the Indiana provision at issue here, the court found that injunctive relief was not appropriate because the ACLU did not face any present threat of prosecution for not complying with FECA's reporting requirements. The district court did find, however, that a declaration by the court narrowing the scope of the law was appropriate. The court found that some of the language of FECA was so broad that it could be applied in an unconstitutional manner by requiring independent issue advocacy groups to comply with the law's reporting requirements. Rather than take the more intrusive step of declaring part of FECA unconstitutional, the court issued a declaratory judgment giving the broad language a narrow construction that did not subject the ACLU and other issue advocacy groups to regulation if their activity was independent of candidates' campaigns. The court stated:
In light of the foregoing, we now conclude that plaintiff organizations, on the basis of the advertisement, are not subject to Title III regulation. The government's acquiescence in that conclusion notwithstanding, the protection of constitutional rights requires that the vagueness surrounding Title III complained of in this suit be removed. The clarification of the Title and the declaratory judgment are designed to meet that end.
Id. at 1057.
The obvious difference between Jennings and this case is that any "vagueness" surrounding the Indiana definition of a political action committee has already been removed. It has been removed by the Supreme Court of Indiana. There is no remaining need for this court to supplement that resolution of the matter.
BAPAC's second case is Kansans For Life, Inc. v. Gaede, 38 F. Supp.2d 928 (D.Kan. 1999), in which an anti-abortion group ran a radio advertisement prior to a primary election stating that, while both candidates had declared they were pro-life, one of the candidates was in fact pro-choice. The commission responsible for enforcing the state campaign finance laws received notice of the advertisement. It informed Kansans For Life that it should seek an advisory opinion from the commissioner to determine if the advertisement complied with the law. Kansans For Life did seek an advisory opinion. The commissioner issued an advisory opinion stating that the group's advertisement amounted to express advocacy, thus requiring Kansans For Life to comply with the law's disclosure requirements. Kansans For Life complied with the disclosure requirements but also filed a federal lawsuit requesting injunctive relief.
The court found that Kansans For Life was entitled to a declaration that its advertisement constituted issue advocacy protected from state regulation by the First Amendment. The court then ordered the state to expunge the disclosures that Kansans For Life made from the public record. 38 F. Supp. 2d at 936. The court also declared that the state's enforcement policy was unconstitutionally vague and over broad, and the court enjoined defendants' use of the policy against Kansans For Life in the future. See id. at 936-37.
The need for federal court relief in Kansans For Life was more compelling than it is in this case. The court was confronting an official enforcement policy that plainly did not comply with the bright-line distinction drawn by the Supreme Court in Buckley v. Valeo between express advocacy and issue advocacy. In addition, the state commission was retaining in its public files information that the group should not have been required to disclose. Thus, the court in that case was dealing with a continuing controversy and imminent threats of harm that simply are not present in this case, at least at this late stage.
Plaintiffs in this case, as in many federal constitutional cases, invite this federal court to give instructions to state and local authorities, for the purpose of protecting federal constitutional rights, as they execute an important area of state policy and regulation. Federal courts do so, of course, where there is a substantial reason to do so, but the delicacy of federal-state relations requires the court to ask first whether such instructions and oversight are necessary as a practical matter. At this stage of this case, after the decision by the Supreme Court of Indiana, plaintiffs have not shown a continuing need for such instruction or oversight. This court simply has no reason to expect any defendant to disregard the authoritative interpretation of Indiana law provided by the Supreme Court of Indiana.
There is always the possibility that BAPAC's future activities could venture into or even cross the (narrow) grey area between issue advocacy and express advocacy. The prospect that the county election board might monitor BAPAC's or other advocacy organizations' future activities to see if they have crossed that line does not, by itself, unconstitutionally chill BAPAC's or anyone else's First Amendment activities. It is the board's responsibility to monitor political advertisements and to require groups that engage in express advocacy to comply with the law's reporting and disclosure requirements. See Buckley v. Valeo, 424 U.S. at 44 (government may regulate express advocacy regarding political candidates). Indiana law gives the county election board the authority and duty to inquire into compliance with the election laws. See Ind. Code §§ 3-9-4-13 to -15.
A declaratory judgment is not appropriate at this point in the case because it would not "settle the particular controversy and clarify the legal relations in issue." NUCOR Corp. v. Aceros y Maquilas de Occidente, 28 F.3d at 579. As the case now stands, BAPAC and the defendants agree that BAPAC's 1996 pre-primary activity was issue advocacy. Both parties also agree that the Supreme Court of Indiana ruling puts issue advocacy beyond the reach of the state's statute. A declaratory judgment from this court at this point would add nothing to the resolution of the controversy. If the court were to issue the requested declaratory judgment, it would essentially be saying (incorrectly) that the court expects that the defendants may be somehow unable or unwilling to understand the state court's ruling.
For these reasons, the court exercises its discretion under the Declaratory Judgment Act to decline to issue any such relief. Accordingly, plaintiffs' motion for summary judgment is DENIED, and the case is dismissed for lack of jurisdiction. Final judgment to that effect will be issued immediately. Plaintiffs have indicated they may seek an award of attorneys' fees under 42 U.S.C. § 1988 as prevailing parties. Under this court's Local Rule 54.1, as amended effective January 1, 2000, such an application must be filed within 14 days after entry of final judgment.
So ordered.