Tuesday, September 16, 2003
This, below, is the document that the 7th circuit refused to allow to be filed, without explanation.
Next step, move for temporary injunction?
Next step, move for temporary injunction?
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIAN MAJORS et al., Plaintiff-Appellants, v.MARSHA ABELL et al., Defendants-Appellees. ))))))))) Case No. 02-2204792 N.E.2d 22 (IN 2003)Hon. William J. Bauer, Senior United States Circuit Judge, and Hon. Richard J. Posner and Hon. Frank H. Easterbrook, United States Circuit Judges
PLAINTIFF-APPELLANTS’ STATEMENT REGARDING CERTIFIED QUESTION
Come now plaintiffs by counsel and for their statement regarding certified question state as follows.
Introduction: Now that the state court has construed the statute to mean what it says, this court could simply mechanically proceed to rule, as it suggested that it might, that the statute is unconstitutional per Talley and McIntyre. The state has indicated in its response that it does not intend to brief further, and the county has been silent. However, because the Indiana Supreme Court, in unanimous dicta, suggested that the statute is constitutional, we respond in detail.
In this filing, we summarize the action below, explain why controlling cases mandate invalidating the statute, generally criticize the state court’s analysis of McIntyre, offer a series of specific criticisms of the state ruling, urge the court to find the statute unconstitutional and void, and request that plaintiffs be declared a prevailing party, based on footnote 11 if for no other reason. Related filings include a motion to supplement the complaint.
Proceedings below:
The district court below had dismissed the case without ruling on the merits, based upon representations by the state and county that a) the only conceivable meaning of the statute IC 3-9-3-2.5 is that “persons” was limited by IC 3-9-3-1 to mean only candidates and committees and b) that none of the plaintiffs were candidates or committees at that exact moment, and therefore the case was moot. Erroneous actions of the district court below included dismissal of plaintiff Anonymous, failure to transmit certified questions, dismissal of pendant state claims, denial of preliminary injunctive relief, failure to rule within a reasonable time, failure to grant partial summary judgment as to internet claims, dismissal of the case, and failure to declare Plaintiffs a prevailing party based on the narrowing construction of the statute on which it premised the mootness finding.
On the other hand, the Seventh Circuit upheld, on other grounds, dismissal of personal capacity claims.
On appeal, Plaintiffs concentrated on reversing the erroneous dismissal.
The Seventh Circuit suggested that resolution of the case might hinge on the meaning of “persons”, and certified the case. Plaintiffs believe this was erroneous, since Republican Party of Minnesota v. White is controlling precedent that the state may not ban candidate speech, and see Chandler v. Miller, 520 U.S. 305 (1997) for the proposition that running for office does not waive basic rights. However, we welcomed the opportunity to address the state constitutional claims, which have always been at the heart of this case. In part because of the way the certified question was phrased to address only one of the many interpretation problems of the vague and complex statute, the Indiana Supreme Court, unfortunately, declined to explicitly address the state constitutional issues. While Marbury v. Madison said that the duty of the court is to say what the law is, Justice Shepard’s concurrence seems to say that the duty of the court is to not say what the law is.
This Court has suggested, without deciding, if the Indiana Supreme Court were to construe the statute in its plain meaning, that it would proceed to find the statute unconstitutional.
But if instead as the plaintiffs argue the statute reaches all persons, then it is a blanket prohibition of anonymous campaign-related speech … and thus puts a crimp in political speech by exposing persons who want to express themselves for or against a particular candidate to the risk of retaliation. The McIntyre decision holds that government cannot forbid the distribution of anonymous campaign literature. Id. at 357; see also Talley v. California, 362 U. S. 60, 64-65 (1960). Majors v. Abell, 317 F.3d 719 (7th Cir. 2003).
And so it should. The Indiana Supreme Court answered the certified question as follows.
As a matter of statutory interpretation, there is little wiggle room here…. Accordingly, we answer the Seventh Circuit's question as follows:
The term "person" in Indiana Code section 3-9-3-2.5(b) and (d) is not
limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such committees or
subcommittees. Rather, it includes any individual or organization.
The Indiana Court then went on to discuss whether constitutional considerations required that the plain meaning of the statute be disregarded and that the statute should be narrowly interpreted. To the extent that the Court concluded no narrowing construction was required, we agree. While ambiguous statutes can be interpreted to avoid constitutional issues, this is not authority to rewrite statutes at whim, or to ignore plain meanings. Here there was no “wiggle room.” Thus the state court’s conclusions about McIntyre come in a very different procedural setting than those same conclusions would have in this court, which is charged with resolving the federal question, guided by controlling precedents including but not limited to McIntyre. Additionally, a previous opinion by a different panel of the Seventh Circuit, Denius v. Dunlap, applying McIntyre, carries some weight, although it would be possible to distinguish it on the facts.
The state court is the final authority as to questions of state law, but here has no authority to resolve the federal question, and there is no basis to give deference to the Indiana court’s analysis of the federal question. Nor is the analysis persuasive – it gets McIntyre and ACLF wrong, as discussed below, and essentially ignores Talley and Watchtower. Principles of comity suggest that the unanimous opinion of a state’s highest court should not be ignored, so we respond in some detail below, so that this court can persuasively explain why it must rule that Indiana cannot compel or prohibit campaign speech.
The Merits:
Majors and the other plaintiffs contend that the criminalization of their innocent campaign speech offends the First and Fourteenth Amendment rights to privacy, press, speech, association, petition, and suffrage. The modern right to privacy, recently extended in Lawrence v. Texas, has its origins largely in a trio of civil rights cases, NAACP v. Alabama ex rel Patterson, Talley v. California, and Bates v. Little Rock.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. Lawrence v. Texas.
NAACP and Bates are disclosure cases relying on freedom of association, while Talley is a disclaimer case.
Disclaimer and disclosure are terms of art, and we ask this court to use them carefully and not get them confused, as did the Indiana Court and, for example, Sorrell.
Disclaimers are part of a document themselves, and are protected under the speech and press clauses.
Rather than review the Supreme Court’s freedom of the press cases, we refer the Court to the Ron Paul Plaintiffs briefs in McConnell v FEC, which slightly overstate the case, but list the applicable precedents. Several other of the plaintiff and amicus briefs in McConnell also speak to the issues here, but are directed at BCRA rather than IC 3-9.
Judge Henderson in McConnell relied on Talley, McIntyre, ACLF, and Watchtower. Amicus Common Cause points out that the McConnell court appears to have upheld a disclaimer provision, but it is one that was not briefed or argued by any of the parties.
Http://electionlaw.blogspot.com has links to several sites that host these briefs. Candidate election literature also involves the petition and assembly clauses from which are derived freedom of association. A majority of the court uses a strict scrutiny test, what Justice Scalia in McIntyre calls the kiss of death. Justice Thomas, concurring in McIntyre, looks instead to the original intent of the founders, and concludes that both anonymous speech and campaign speech were understood to be within the freedom of speech and press cited in the First Amendment. He recounts the impact of the Peter Zenger case as cause of the adoption of the bill of rights.
Disclosure, on the other hand, generally involves producing documents to a government agency, such as the campaign finance reports required of some office-seekers under IC 3-9 In its widest vague and general sense, disclaimers are a form of disclosure, but so are coerced confessions. So it is never dispositive to say X is disclosure, and disclosure is ok under Valeo, so X is ok. McIntyre specifically distinguished Valeo, an expressive conduct case using a laxer mode of scrutiny. In Valeo, both sides supported disclosure, but disagreed about the scope and extent of its exceptions.
Manual Talley was fined $10 (1960 dollars) for distributing a brochure calling for a civil rights boycott of certain merchants.
The handbills urged readers to help the organization carry on a boycott against certain merchants and businessmen, whose names were given, on the ground that, as one set of handbills said, they carried products of "manufacturers who will not offer equal employment opportunities to Negroes. Mexicans, and Orientals….” Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose…. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes…. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. Talley v. California, 362 U.S. 60 (1960).
Because the case used the “not narrowly tailored” formula, it has sometimes been misunderstood to be an overbreadth case, in which a poorly drafted ordinance has a legitimate objective. Instead, the core function of the ordinance, to outlaw anonymous speech, was found to violate the freedom of speech.
Following Talley, a majority of courts struck down election disclaimer statutes, but a significant minority saw election speech as different. I refer to this as the Kentucky exception to the right of anonymous speech. Morefield v. Moore, Wilkinson v. Jones,
Kentucky Right to Life v. Terry,108 F.3d 637 (6th Cir. 1997), Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), Freedom’s Heritage v. FEC, are examples from Kentucky, but also Peterslie (NC), State v. Acey (TN), McIntyre v. Ohio Elections Commission (OH), FEC v. Public Citizen, 268 F.3d 1283,1285 (11th Cir. 2001), Seymour v. Election Enforcement Comm'n, 762 A.2d 880, 892-94 (Conn. 2000),
KVUE, Inc. v. Moore, 709 F.2d 922, 937 (5th Cir. 1983), aff'd on other grounds, 465 U.S. 1092 (1984), Op. Md. Att'y Gen. No. 95-015 (May 16, 1995), 1995 WL 313052 and now Majors v. Abell (IN 7/25/2003) are in this tradition. Daniel Griset v. California Fair Political Practices Commission, 69 Cal.App.4th 818 (1999), overruled on other grounds (2001), had conflicting opinions in 1992, 1994, 1999, and 2001, and the underlying issue remains unresolved.
In hopes of resolving this split, the court accepted cert in McIntyre.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a "law . . . abridging the freedom of speech" within the meaning of the First Amendment…. The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation….debate on the qualifications of candidates is integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people…. There is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, of course including discussions of candidates. This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office .… Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school-tax referendum that Mrs. McIntyre sought to influence through her handbills Though such mandatory reporting [in Buckley] undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings…. Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill , On Liberty, It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society….
The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. [Citations omitted.] McIntyre v. Ohio Elections Commission. 514 U.S 334 (1995).
“Stewart contends that McIntyre is controlling. Stewart is correct.” Stewart v. Taylor.
McIntyre considered whether there is an elections exception to the rule in Talley, and found none. McIntyre is controlling when the issue, as here, is a ban an anonymous campaign literature, not limited to fraud. If we didn’t know this already, in ACLF all nine justices agree that McIntyre prohibits election disclaimer requirements, and Watchtower v. Village of Stratton rejects the Sixth Circuit’s limited understanding of McIntyre.
Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills….It is offensive--not only to the values protected by the First Amendment, but to the very notion of a free society--that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.
[Note 14] Although the Jehovah's Witnesses do not themselves object to a loss of anonymity, they bring this facial challenge in part on the basis of overbreadth. We may, therefore, consider the impact of this ordinance on the free speech rights of individuals who are deterred from speaking because the registration provision would require them to forgo their right to speak anonymously….
The Sixth Circuit's reasoning is undermined by our decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)…. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official. Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance…. [W]hile discussing the history of the Free Press Clause of the First Amendment, the Court stated that the evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. Watchtower v. Village of Stratton.
These four cases are each controlling here. Other Supreme Court cases , less precisely on point, express the same commitment to free speech and free elections and against well-intentioned political censorship. No Supreme Court cases hold that candidate speech can be compelled or banned in the absence of falsity and malice or fraud. There is nothing remotely fraudulent about express advocacy of the sort, “Vote for Smith.”
The Indiana Supreme Court opinion: Majors v. Abell, 792 N.E.2d 22 (IN 2003).
In part I, the Indiana Court examines “person” in pari materia and as defined in the statute, and concludes that person means person. In part II, beginning “in the face of this,” the Court looks at whether the statute should be bent out of shape to avoid the constitutional concerns, and declines to do so. There are twenty paragraphs of this opinion with which we, and, I think, the state, agree, listed as an appendix. There are however, both broad and specific errors of fact, procedure, and law, which prevent this Court from being able to adopt the Indiana Supreme Court’s logic.
The Court courts confusion by referring to disclaimers as disclosure; it is not always clear which they mean. It is true that regulation of political speech requires a compelling governmental interest, but this is not the end of the test. Every election case involves compelling interests in election integrity and avoidance of the appearance of corruption. Such cases focus on the fit between the problem and the remedy, which must be narrowly tailored, and perhaps employ least restrictive means. Here the tailor is Omar the tentmaker – nothing in Indiana’s political censorship regime limits its scope to malicious falsehoods, and for this reason Stewart v. Taylor found the policy of banning pure core speech unconstitutional, as did Ogden v. Marendt. While the statute has a new number, this is the same unconstitutional policy, and almost the same brochure, as in Stewart v. Taylor. Because political censorship imperils the integrity of the election process, and creates an appearance of corruption, the statute and policy do not advance those worthy objectives, and the state offers no other compelling interest. When incumbent legislators ban their opponents’ speech, we do not defer to their findings, but employ exacting scrutiny. Just as we are skeptical that good government requires racial discrimination, we are skeptical that banning information increases the information available to voters. While 2.5 was enacted after Stewart v. Taylor, it fails to respond at all to the concerns of Stewart, but instead responds to Valeo and the related express advocacy cases of the James Madison Center for Free Speech. Stewart emphatically held that McIntyre applies with equal force to candidate elections, as is evident from the passages cited above. Griset, 1999, overruled on other grounds, has the best discussion of this issue. The claim that “before its 1997 revision, the Indiana disclaimer requirement had none of the exemptions found in subsection 2.5(a), which now exempts small direct mailings” is false, although the 100 copy exemption is new, added during the course of this litigation, as are several other exemptions such as skywriting. None of these help save the statute, indeed they add to its already complex structure. If the state cannot ban one bible, it cannot ban 101 bibles. (The Bible is anonymous, but probably does not contain express advocacy of a candidate. I’d have to re-read Judges. Nothing in the text of the statute limits it to current candidates, or to Indiana candidates. The statute may, for all we know, criminalize anonymous express advocacy about elections in Iraq, where the threat of reprisal is real and deadly.)
The failure to distinguish between disclaimers and disclosure colors the Court’s analysis of ACLF, which upheld a disclosure provision, but struck down disclaimers. All nine justices agreed that McIntyre was controlling as to election disclaimers.
It was an obvious effort to tailor a more narrowly drawn
statute that would serve core state interests in the integrity of
candidate races while avoiding the concerns that resulted in the
invalidation of the Ohio statute. We also think that the distinctions
between Ohio's statute and Indiana's revised version are substantial.
If so it was a failed effort. The most important distinction between the Ohio statute, which was facially invalid for mandating candidate disclaimers, and the Indiana statute, is that Ohio’s penalty was a $100 fine, while Indiana’s statute is penal, greatly enhancing the chilling effect. McIntyre specifically rejected Valeo and Belloti, so the Court’s attempted reliance on Valeo is misplaced, and its understanding of that case is flawed. Valeo did not find corruption to be a compelling interest, but rather a legitimate interest, employing a laxer mode of scrutiny. McConnell holds that strict scrutiny now applies to disclosure cases. “As Buckley noted, the anonymous advertisement may be a surreptitious campaign contribution violation. Id. at 81.” There is no such claim on p. 81 of Buckley v. Valeo. But if it were, we do not allow censorship of political speech for the mere administrative convenience of election officials, just as we do not allow warrantless drug roadblocks to aid a general interest in law enforcement. Edmonds v. Indianapolis. There is no drug exception to the Fourth Amendment, and there is no elections exception to the first amendment. The Court then goes on to discuss the dangers of anonymous speech, making it clear that such speech is dangerous not because it might be false, but because it might be true.
The discussion of the 2000 Attorney General race is out of the blue, appears nowhere in the record, and is wrong on its facts, law, and policy, indicating that not even the Indiana Supreme Court understands how 2.5 works, much less the average political speaker. I.C 3-9-3-2.5 does not regulate broadcast media, and does not regulate implied advocacy. Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir. 2002) The Chamber of Commerce, possibly funded by Microsoft, spoke truth to power. The truth hurt, and the tyrannical Attorney General lost. Her opponent, Sean Harshey, did not disclaim or disavow the speech, although another opponent did. Harshey has had his signs confiscated for lack of disclaimer in the 2002 primary.
The Democrats filed a frivolous complaint against the Chamber with the Election Commission, based on disclosure rather than disclaimer. In that case, Jan Baran’s firm, representing the Chamber, moved to dismiss, because Indiana does require disclosure of independent communications, but the Commission twice split 2-2 on partisan grounds and the case is deadlocked. The Indiana Court’s gratuitous reference to this case in which the parties are not before it may send an inappropriate signal. We can’t tell if the Court is discussing disclaimers or disclosure. IC 3-9-3-2.5 does not deter well-funded interest groups. The First Amendment is not a loophole. Those with lawyers and spin doctors can plan winning campaigns no matter how the legislature amends the statutes. It deters the lone pamphleteer, the modern Tomas Paine, people like Brian Majors who used his own modest resources, crude handmade signs, an expense that while de minimus is enough to trigger the statute. He raised no funds, formed no committee, was beholden to no special interests, and had no quid to trade for a quo. He received less than 10% of the vote, but considers that he won, because he was able to spread the gospel of liberty and human rights, and criticize the incumbent. If “one can conceive of some applications that might be invalid”, Majors’ situation is such a case. He challenges the statute and policy both on its face and as applied to him. The other plaintiffs, no more organized than were the McIntyre family’s Parents and Tax Payers, are similarly more like lone pamphleteers than like corrupt special interests.
Because Majors placed no more than 100 signs, it turns out he is not within the statute, as narrowed by footnote 11. To this extent his lawsuit has changed the legal relations between the parties, and Majors should be declared a prevailing party, but this does not moot his larger concerns.
But in a candidate election, there is a powerful countervailing consideration in … the public's interest in election integrity. That interest extends beyond controlling direct corruption to minimizing damage to the integrity of the dynamic and multifaceted marketplace of ideas that drives a candidate election.
Political censorship threatens election integrity, creating an appearance of corruption. Free elections require a free press. Banning core political speech damages the integrity of the dynamic flow of information essential to both markets and democracy. Even under a commercial speech analysis as in 44 Liquormart, the statute goes too far when it bans the truth. The Court next shows it doesn’t understand candidate speech. Brian Majors is neither a sneak nor a fool in making signs that say “Vote for Brian Majors”. He simply wishes to choose the text of his message himself, rather than have the government dictate his content. Because the statute has no mens rea requirement, and is therefore unconstitutional under Smith and Keubal, it mostly catches innocent speakers like McIntyre, who forgot the disclaimer on a few copies of her flyer. We are puzzled by the Court’s statement that it does not have the record before it, since Plaintiffs spent over $100 to transcribe copy and ship the record.
And, of course, facts matter a great deal in the work judges customarily perform. Here, for example, the statute in question looks very different when one contemplates a lone pamphleteer, some latter-day Thomas Paine, than it does as applied to a regular party candidate.
At this stage of the case, appeal of dismissal, the facts are as stated in the complaint. It is not clear whether or not the Court had read the complaint, which makes clear that Majors is a latter-day Thomas Paine, and that that his speech is protected by the constitution is just Common Sense.
Respectfully submitted,
__________________
Robbin Stewart.
227 N. Temple Avenue
BRIAN MAJORS et al., Plaintiff-Appellants, v.MARSHA ABELL et al., Defendants-Appellees. ))))))))) Case No. 02-2204792 N.E.2d 22 (IN 2003)Hon. William J. Bauer, Senior United States Circuit Judge, and Hon. Richard J. Posner and Hon. Frank H. Easterbrook, United States Circuit Judges
PLAINTIFF-APPELLANTS’ STATEMENT REGARDING CERTIFIED QUESTION
Come now plaintiffs by counsel and for their statement regarding certified question state as follows.
Introduction: Now that the state court has construed the statute to mean what it says, this court could simply mechanically proceed to rule, as it suggested that it might, that the statute is unconstitutional per Talley and McIntyre. The state has indicated in its response that it does not intend to brief further, and the county has been silent. However, because the Indiana Supreme Court, in unanimous dicta, suggested that the statute is constitutional, we respond in detail.
In this filing, we summarize the action below, explain why controlling cases mandate invalidating the statute, generally criticize the state court’s analysis of McIntyre, offer a series of specific criticisms of the state ruling, urge the court to find the statute unconstitutional and void, and request that plaintiffs be declared a prevailing party, based on footnote 11 if for no other reason. Related filings include a motion to supplement the complaint.
Proceedings below:
The district court below had dismissed the case without ruling on the merits, based upon representations by the state and county that a) the only conceivable meaning of the statute IC 3-9-3-2.5 is that “persons” was limited by IC 3-9-3-1 to mean only candidates and committees and b) that none of the plaintiffs were candidates or committees at that exact moment, and therefore the case was moot. Erroneous actions of the district court below included dismissal of plaintiff Anonymous, failure to transmit certified questions, dismissal of pendant state claims, denial of preliminary injunctive relief, failure to rule within a reasonable time, failure to grant partial summary judgment as to internet claims, dismissal of the case, and failure to declare Plaintiffs a prevailing party based on the narrowing construction of the statute on which it premised the mootness finding.
On the other hand, the Seventh Circuit upheld, on other grounds, dismissal of personal capacity claims.
On appeal, Plaintiffs concentrated on reversing the erroneous dismissal.
The Seventh Circuit suggested that resolution of the case might hinge on the meaning of “persons”, and certified the case. Plaintiffs believe this was erroneous, since Republican Party of Minnesota v. White is controlling precedent that the state may not ban candidate speech, and see Chandler v. Miller, 520 U.S. 305 (1997) for the proposition that running for office does not waive basic rights. However, we welcomed the opportunity to address the state constitutional claims, which have always been at the heart of this case. In part because of the way the certified question was phrased to address only one of the many interpretation problems of the vague and complex statute, the Indiana Supreme Court, unfortunately, declined to explicitly address the state constitutional issues. While Marbury v. Madison said that the duty of the court is to say what the law is, Justice Shepard’s concurrence seems to say that the duty of the court is to not say what the law is.
This Court has suggested, without deciding, if the Indiana Supreme Court were to construe the statute in its plain meaning, that it would proceed to find the statute unconstitutional.
But if instead as the plaintiffs argue the statute reaches all persons, then it is a blanket prohibition of anonymous campaign-related speech … and thus puts a crimp in political speech by exposing persons who want to express themselves for or against a particular candidate to the risk of retaliation. The McIntyre decision holds that government cannot forbid the distribution of anonymous campaign literature. Id. at 357; see also Talley v. California, 362 U. S. 60, 64-65 (1960). Majors v. Abell, 317 F.3d 719 (7th Cir. 2003).
And so it should. The Indiana Supreme Court answered the certified question as follows.
As a matter of statutory interpretation, there is little wiggle room here…. Accordingly, we answer the Seventh Circuit's question as follows:
The term "person" in Indiana Code section 3-9-3-2.5(b) and (d) is not
limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such committees or
subcommittees. Rather, it includes any individual or organization.
The Indiana Court then went on to discuss whether constitutional considerations required that the plain meaning of the statute be disregarded and that the statute should be narrowly interpreted. To the extent that the Court concluded no narrowing construction was required, we agree. While ambiguous statutes can be interpreted to avoid constitutional issues, this is not authority to rewrite statutes at whim, or to ignore plain meanings. Here there was no “wiggle room.” Thus the state court’s conclusions about McIntyre come in a very different procedural setting than those same conclusions would have in this court, which is charged with resolving the federal question, guided by controlling precedents including but not limited to McIntyre. Additionally, a previous opinion by a different panel of the Seventh Circuit, Denius v. Dunlap, applying McIntyre, carries some weight, although it would be possible to distinguish it on the facts.
The state court is the final authority as to questions of state law, but here has no authority to resolve the federal question, and there is no basis to give deference to the Indiana court’s analysis of the federal question. Nor is the analysis persuasive – it gets McIntyre and ACLF wrong, as discussed below, and essentially ignores Talley and Watchtower. Principles of comity suggest that the unanimous opinion of a state’s highest court should not be ignored, so we respond in some detail below, so that this court can persuasively explain why it must rule that Indiana cannot compel or prohibit campaign speech.
The Merits:
Majors and the other plaintiffs contend that the criminalization of their innocent campaign speech offends the First and Fourteenth Amendment rights to privacy, press, speech, association, petition, and suffrage. The modern right to privacy, recently extended in Lawrence v. Texas, has its origins largely in a trio of civil rights cases, NAACP v. Alabama ex rel Patterson, Talley v. California, and Bates v. Little Rock.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. Lawrence v. Texas.
NAACP and Bates are disclosure cases relying on freedom of association, while Talley is a disclaimer case.
Disclaimer and disclosure are terms of art, and we ask this court to use them carefully and not get them confused, as did the Indiana Court and, for example, Sorrell.
Disclaimers are part of a document themselves, and are protected under the speech and press clauses.
Rather than review the Supreme Court’s freedom of the press cases, we refer the Court to the Ron Paul Plaintiffs briefs in McConnell v FEC, which slightly overstate the case, but list the applicable precedents. Several other of the plaintiff and amicus briefs in McConnell also speak to the issues here, but are directed at BCRA rather than IC 3-9.
Judge Henderson in McConnell relied on Talley, McIntyre, ACLF, and Watchtower. Amicus Common Cause points out that the McConnell court appears to have upheld a disclaimer provision, but it is one that was not briefed or argued by any of the parties.
Http://electionlaw.blogspot.com has links to several sites that host these briefs. Candidate election literature also involves the petition and assembly clauses from which are derived freedom of association. A majority of the court uses a strict scrutiny test, what Justice Scalia in McIntyre calls the kiss of death. Justice Thomas, concurring in McIntyre, looks instead to the original intent of the founders, and concludes that both anonymous speech and campaign speech were understood to be within the freedom of speech and press cited in the First Amendment. He recounts the impact of the Peter Zenger case as cause of the adoption of the bill of rights.
Disclosure, on the other hand, generally involves producing documents to a government agency, such as the campaign finance reports required of some office-seekers under IC 3-9 In its widest vague and general sense, disclaimers are a form of disclosure, but so are coerced confessions. So it is never dispositive to say X is disclosure, and disclosure is ok under Valeo, so X is ok. McIntyre specifically distinguished Valeo, an expressive conduct case using a laxer mode of scrutiny. In Valeo, both sides supported disclosure, but disagreed about the scope and extent of its exceptions.
Manual Talley was fined $10 (1960 dollars) for distributing a brochure calling for a civil rights boycott of certain merchants.
The handbills urged readers to help the organization carry on a boycott against certain merchants and businessmen, whose names were given, on the ground that, as one set of handbills said, they carried products of "manufacturers who will not offer equal employment opportunities to Negroes. Mexicans, and Orientals….” Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose…. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes…. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. Talley v. California, 362 U.S. 60 (1960).
Because the case used the “not narrowly tailored” formula, it has sometimes been misunderstood to be an overbreadth case, in which a poorly drafted ordinance has a legitimate objective. Instead, the core function of the ordinance, to outlaw anonymous speech, was found to violate the freedom of speech.
Following Talley, a majority of courts struck down election disclaimer statutes, but a significant minority saw election speech as different. I refer to this as the Kentucky exception to the right of anonymous speech. Morefield v. Moore, Wilkinson v. Jones,
Kentucky Right to Life v. Terry,108 F.3d 637 (6th Cir. 1997), Gable v. Patton, 142 F.3d 940 (6th Cir. 1998), Freedom’s Heritage v. FEC, are examples from Kentucky, but also Peterslie (NC), State v. Acey (TN), McIntyre v. Ohio Elections Commission (OH), FEC v. Public Citizen, 268 F.3d 1283,1285 (11th Cir. 2001), Seymour v. Election Enforcement Comm'n, 762 A.2d 880, 892-94 (Conn. 2000),
KVUE, Inc. v. Moore, 709 F.2d 922, 937 (5th Cir. 1983), aff'd on other grounds, 465 U.S. 1092 (1984), Op. Md. Att'y Gen. No. 95-015 (May 16, 1995), 1995 WL 313052 and now Majors v. Abell (IN 7/25/2003) are in this tradition. Daniel Griset v. California Fair Political Practices Commission, 69 Cal.App.4th 818 (1999), overruled on other grounds (2001), had conflicting opinions in 1992, 1994, 1999, and 2001, and the underlying issue remains unresolved.
In hopes of resolving this split, the court accepted cert in McIntyre.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a "law . . . abridging the freedom of speech" within the meaning of the First Amendment…. The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation….debate on the qualifications of candidates is integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people…. There is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, of course including discussions of candidates. This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office .… Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school-tax referendum that Mrs. McIntyre sought to influence through her handbills Though such mandatory reporting [in Buckley] undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings…. Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill , On Liberty, It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society….
The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. [Citations omitted.] McIntyre v. Ohio Elections Commission. 514 U.S 334 (1995).
“Stewart contends that McIntyre is controlling. Stewart is correct.” Stewart v. Taylor.
McIntyre considered whether there is an elections exception to the rule in Talley, and found none. McIntyre is controlling when the issue, as here, is a ban an anonymous campaign literature, not limited to fraud. If we didn’t know this already, in ACLF all nine justices agree that McIntyre prohibits election disclaimer requirements, and Watchtower v. Village of Stratton rejects the Sixth Circuit’s limited understanding of McIntyre.
Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills….It is offensive--not only to the values protected by the First Amendment, but to the very notion of a free society--that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.
[Note 14] Although the Jehovah's Witnesses do not themselves object to a loss of anonymity, they bring this facial challenge in part on the basis of overbreadth. We may, therefore, consider the impact of this ordinance on the free speech rights of individuals who are deterred from speaking because the registration provision would require them to forgo their right to speak anonymously….
The Sixth Circuit's reasoning is undermined by our decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)…. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official. Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance…. [W]hile discussing the history of the Free Press Clause of the First Amendment, the Court stated that the evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. Watchtower v. Village of Stratton.
These four cases are each controlling here. Other Supreme Court cases , less precisely on point, express the same commitment to free speech and free elections and against well-intentioned political censorship. No Supreme Court cases hold that candidate speech can be compelled or banned in the absence of falsity and malice or fraud. There is nothing remotely fraudulent about express advocacy of the sort, “Vote for Smith.”
The Indiana Supreme Court opinion: Majors v. Abell, 792 N.E.2d 22 (IN 2003).
In part I, the Indiana Court examines “person” in pari materia and as defined in the statute, and concludes that person means person. In part II, beginning “in the face of this,” the Court looks at whether the statute should be bent out of shape to avoid the constitutional concerns, and declines to do so. There are twenty paragraphs of this opinion with which we, and, I think, the state, agree, listed as an appendix. There are however, both broad and specific errors of fact, procedure, and law, which prevent this Court from being able to adopt the Indiana Supreme Court’s logic.
The Court courts confusion by referring to disclaimers as disclosure; it is not always clear which they mean. It is true that regulation of political speech requires a compelling governmental interest, but this is not the end of the test. Every election case involves compelling interests in election integrity and avoidance of the appearance of corruption. Such cases focus on the fit between the problem and the remedy, which must be narrowly tailored, and perhaps employ least restrictive means. Here the tailor is Omar the tentmaker – nothing in Indiana’s political censorship regime limits its scope to malicious falsehoods, and for this reason Stewart v. Taylor found the policy of banning pure core speech unconstitutional, as did Ogden v. Marendt. While the statute has a new number, this is the same unconstitutional policy, and almost the same brochure, as in Stewart v. Taylor. Because political censorship imperils the integrity of the election process, and creates an appearance of corruption, the statute and policy do not advance those worthy objectives, and the state offers no other compelling interest. When incumbent legislators ban their opponents’ speech, we do not defer to their findings, but employ exacting scrutiny. Just as we are skeptical that good government requires racial discrimination, we are skeptical that banning information increases the information available to voters. While 2.5 was enacted after Stewart v. Taylor, it fails to respond at all to the concerns of Stewart, but instead responds to Valeo and the related express advocacy cases of the James Madison Center for Free Speech. Stewart emphatically held that McIntyre applies with equal force to candidate elections, as is evident from the passages cited above. Griset, 1999, overruled on other grounds, has the best discussion of this issue. The claim that “before its 1997 revision, the Indiana disclaimer requirement had none of the exemptions found in subsection 2.5(a), which now exempts small direct mailings” is false, although the 100 copy exemption is new, added during the course of this litigation, as are several other exemptions such as skywriting. None of these help save the statute, indeed they add to its already complex structure. If the state cannot ban one bible, it cannot ban 101 bibles. (The Bible is anonymous, but probably does not contain express advocacy of a candidate. I’d have to re-read Judges. Nothing in the text of the statute limits it to current candidates, or to Indiana candidates. The statute may, for all we know, criminalize anonymous express advocacy about elections in Iraq, where the threat of reprisal is real and deadly.)
The failure to distinguish between disclaimers and disclosure colors the Court’s analysis of ACLF, which upheld a disclosure provision, but struck down disclaimers. All nine justices agreed that McIntyre was controlling as to election disclaimers.
It was an obvious effort to tailor a more narrowly drawn
statute that would serve core state interests in the integrity of
candidate races while avoiding the concerns that resulted in the
invalidation of the Ohio statute. We also think that the distinctions
between Ohio's statute and Indiana's revised version are substantial.
If so it was a failed effort. The most important distinction between the Ohio statute, which was facially invalid for mandating candidate disclaimers, and the Indiana statute, is that Ohio’s penalty was a $100 fine, while Indiana’s statute is penal, greatly enhancing the chilling effect. McIntyre specifically rejected Valeo and Belloti, so the Court’s attempted reliance on Valeo is misplaced, and its understanding of that case is flawed. Valeo did not find corruption to be a compelling interest, but rather a legitimate interest, employing a laxer mode of scrutiny. McConnell holds that strict scrutiny now applies to disclosure cases. “As Buckley noted, the anonymous advertisement may be a surreptitious campaign contribution violation. Id. at 81.” There is no such claim on p. 81 of Buckley v. Valeo. But if it were, we do not allow censorship of political speech for the mere administrative convenience of election officials, just as we do not allow warrantless drug roadblocks to aid a general interest in law enforcement. Edmonds v. Indianapolis. There is no drug exception to the Fourth Amendment, and there is no elections exception to the first amendment. The Court then goes on to discuss the dangers of anonymous speech, making it clear that such speech is dangerous not because it might be false, but because it might be true.
The discussion of the 2000 Attorney General race is out of the blue, appears nowhere in the record, and is wrong on its facts, law, and policy, indicating that not even the Indiana Supreme Court understands how 2.5 works, much less the average political speaker. I.C 3-9-3-2.5 does not regulate broadcast media, and does not regulate implied advocacy. Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir. 2002) The Chamber of Commerce, possibly funded by Microsoft, spoke truth to power. The truth hurt, and the tyrannical Attorney General lost. Her opponent, Sean Harshey, did not disclaim or disavow the speech, although another opponent did. Harshey has had his signs confiscated for lack of disclaimer in the 2002 primary.
The Democrats filed a frivolous complaint against the Chamber with the Election Commission, based on disclosure rather than disclaimer. In that case, Jan Baran’s firm, representing the Chamber, moved to dismiss, because Indiana does require disclosure of independent communications, but the Commission twice split 2-2 on partisan grounds and the case is deadlocked. The Indiana Court’s gratuitous reference to this case in which the parties are not before it may send an inappropriate signal. We can’t tell if the Court is discussing disclaimers or disclosure. IC 3-9-3-2.5 does not deter well-funded interest groups. The First Amendment is not a loophole. Those with lawyers and spin doctors can plan winning campaigns no matter how the legislature amends the statutes. It deters the lone pamphleteer, the modern Tomas Paine, people like Brian Majors who used his own modest resources, crude handmade signs, an expense that while de minimus is enough to trigger the statute. He raised no funds, formed no committee, was beholden to no special interests, and had no quid to trade for a quo. He received less than 10% of the vote, but considers that he won, because he was able to spread the gospel of liberty and human rights, and criticize the incumbent. If “one can conceive of some applications that might be invalid”, Majors’ situation is such a case. He challenges the statute and policy both on its face and as applied to him. The other plaintiffs, no more organized than were the McIntyre family’s Parents and Tax Payers, are similarly more like lone pamphleteers than like corrupt special interests.
Because Majors placed no more than 100 signs, it turns out he is not within the statute, as narrowed by footnote 11. To this extent his lawsuit has changed the legal relations between the parties, and Majors should be declared a prevailing party, but this does not moot his larger concerns.
But in a candidate election, there is a powerful countervailing consideration in … the public's interest in election integrity. That interest extends beyond controlling direct corruption to minimizing damage to the integrity of the dynamic and multifaceted marketplace of ideas that drives a candidate election.
Political censorship threatens election integrity, creating an appearance of corruption. Free elections require a free press. Banning core political speech damages the integrity of the dynamic flow of information essential to both markets and democracy. Even under a commercial speech analysis as in 44 Liquormart, the statute goes too far when it bans the truth. The Court next shows it doesn’t understand candidate speech. Brian Majors is neither a sneak nor a fool in making signs that say “Vote for Brian Majors”. He simply wishes to choose the text of his message himself, rather than have the government dictate his content. Because the statute has no mens rea requirement, and is therefore unconstitutional under Smith and Keubal, it mostly catches innocent speakers like McIntyre, who forgot the disclaimer on a few copies of her flyer. We are puzzled by the Court’s statement that it does not have the record before it, since Plaintiffs spent over $100 to transcribe copy and ship the record.
And, of course, facts matter a great deal in the work judges customarily perform. Here, for example, the statute in question looks very different when one contemplates a lone pamphleteer, some latter-day Thomas Paine, than it does as applied to a regular party candidate.
At this stage of the case, appeal of dismissal, the facts are as stated in the complaint. It is not clear whether or not the Court had read the complaint, which makes clear that Majors is a latter-day Thomas Paine, and that that his speech is protected by the constitution is just Common Sense.
Respectfully submitted,
__________________
Robbin Stewart.
227 N. Temple Avenue
Annotated state court opinion.
Annotations are attorney work product, protected by the first amendment, and are intended as criticisms of the opinion, not its authors.
BOEHM, Justice.
The United States Court of Appeals for the Seventh Circuit has
requested our response to the following certified question:
Is the term "persons" in Ind. Code §§ 3-9-3-2.5(b)(1), (d) limited to
candidates, authorized political committees or subcommittees of
candidates, and the agents of such committees or subcommittees, or
does it have a broader scope, and, if so, how much broader?
The certified question arises in a lawsuit brought by several
individuals challenging Indiana Code section 3-9-3-2.5 (Supp. 2001)
as violating their rights to free speech guaranteed under the First
Amendment to the Constitution of the United States. The United States
District Court for the Southern District of Indiana dismissed the
complaint for lack of standing as to some plaintiffs and mootness as
to others. The Seventh Circuit concluded that neither standing nor
mootness precluded consideration of the merits of the plaintiffs'
claims, but noted that resolution of an issue of interpretation of
the statute might control the disposition of the constitutional
issues the plaintiffs seek to raise. Accordingly, the Seventh Circuit
certified this question to this Court pursuant to 7th Cir. Rule 52
and Ind. R. App. Proc. 64.
Majors v. Abell, 317 F.3d 719, 725 (7th Cir. 2003).
Section 2.5 is a part of the Indiana Election Laws. In broad brush,
it provides that any "person" must include a "disclaimer" in "general
public political advertising" if the person either "solicits a
contribution" or finances "communications expressly advocating the
election or defeat of a clearly identified candidate."
This "disclaimer" must disclose who paid for the ad, and, under some
circumstances, who authorized it. The section provides a number of
exemptions and definitions and includes detailed provisions requiring
different disclosures depending on whether the material is authorized
and/or financed by a candidate, a candidate's committee, a political
committee (PAC), or a party organization. See footnote
The issue as framed by the Seventh Circuit appears as an abstract
question of statutory construction. Indeed, as that court observed,
on its face, the statute seems quite plainly to apply to
communications financed by every individual and every form of legal
entity. That is the meaning ordinarily given to "person" in statutes,
and is the meaning provided by section 36 of the "Definitions"
Chapter of the Election Laws. According to Indiana Code section 3-5-2-
36, "`person' means an individual or an organization." Section 1 of
the same Chapter provides that its definitions "apply throughout this
title," and "this title" inescapably refers to Title 3 ("Elections").
See footnote This definition has been in the Election Laws since the
election laws were overhauled in 1986. See footnote It is in
substance the same as earlier more prolix but equally broad
definitions of "person." See footnote
The State points out that Section 2.5 is found in Article 9, Chapter
3, and Section 1 of that Chapter entitled "Application of chapter"
See footnote includes the following provision:
(a) . . . this chapter applies to candidates in all elections and
caucuses and to the following types of committees:
(1) Candidate's committees.
(2) Regular party committees.
(3) Political action committees.
(4) An auxiliary party organization.
(5) A legislative caucus committee.
Ind. Code § 3-9-3-1 (1998). See footnote The State contends that this
section has the effect of including only candidates and the listed
types of committees among the "persons" required by Section 2.5 to
include a disclaimer. Indeed, the State claims the "Application"
section is meaningless unless given that construction. We find this
contention difficult to fit within the statutory framework. We have
already noted the seemingly ironclad and purposeful use of "person"
as all-inclusive. The "Application" section the State cites is not
inconsistent with the conclusion that "person" has its usual meaning.
Language identical to the quoted portion of Chapter 3, Section 1(a)
appears in Section 1(a) of each of the other four Chapters in Article
9. See footnote It seems clear that these "Application" provisions
serve to identify the types of elections to which the various
chapters apply, but do not limit the reference to "persons" within
those chapters. Several of the provisions in these statutes would
make no sense whatever if "person" were limited as the State
suggests. For example, the Treasurer of a committee is required to
file a report listing every "person" who contributed over $100. See
footnote A committee may remove a "person" as chair or treasurer
without cause. See footnote Every "person" who accepts a contribution
for a committee must get it to the Treasurer within thirty days. See
footnote And so on. "Person" in section 2.5 is the same term
introduced by the same application section found in other sections of
the same "Election Campaigns" Chapter where it can only be read to
mean everybody and everything.
As a matter of statutory interpretation, there is little wiggle room here.
In the face of this rather overwhelming statutory evidence, both the
plaintiffs and the State nevertheless contend that constitutional
doctrine should govern our interpretation of the statute. As the
Seventh Circuit noted, courts, including this one, sometimes find
elasticity to preserve constitutionality. See, e.g., A Woman's Choice-
East Side Women's Clinic v. Newman, 671 N.E.2d 104, 107 (Ind. 1996)
("we would construe the . . . [statute] in a constitutional manner
insofar as the statutory language would permit."). Accordingly, we
consider whether constitutional considerations drive us to find the
statute to be more limited than appears on its face.
The State argues for its less expansive reading on the ground that
the statute, if applicable to political advertising by anyone, may
fall under the plaintiffs' First Amendment attack. In order to
understand the State's contention it is necessary to review the
federal constitutional doctrine surrounding regulation of campaign
literature.
In McIntyre v. Ohio Elections Comm'n, 514 U.S. 334
(1995), the Supreme Court invalidated an Ohio statute regulating
campaign literature.
Mrs. McIntyre was a classic "lone pamphleteer"
who printed up some materials opposing her local school tax levy.
Some of these identified her as the author and others bore only the
legend "CONCERNED PARENTS AND TAX PAYERS". She was convicted and
fined $100 under an Ohio statute making it a misdemeanor to omit
identification of the source of any campaign materials in any
candidate or public question election. Although she died before the
case reached the Supreme Court of the United States, her estate
carried on and ultimately prevailed in her contention that her
activity was constitutionally protected.
McIntyre recognized that election disclosure laws raised different
considerations from those presented by the general prohibition of
anonymous pamphlets that had been held unconstitutional in Talley v.
California, 362 U.S. 60 (1960).
Laws prohibiting anonymous
communications at least to some extent burden speech and raise First
Amendment concerns. If the speech is political, as it undoubtedly is
in an election, it enjoys the highest level of protection, and any
restriction of that speech requires a compelling governmental
interest.
Ohio sought to justify what is obviously an abridgment of
speech principally on the ground that its statute guarded against
misinformation in campaigns, and was therefore narrower than the
general ban that Talley had invalidated. This contention did not
carry the day.
The election in McIntyre was a school tax referendum. The focus of
that election was a single issue, not individual candidates and their
character or their stances on multiple issues. In such an election,
the Supreme Court viewed the state interest as principally "[t]he
simple interest in providing voters with additional relevant
information." McIntyre, 514 U.S. at 348. So viewed, McIntyre found
little force to the state interest asserted to justify its regulation
of speech.
The state cannot compel a speaker to add items of
information to those the speaker chooses to present. To the extent
completeness of information is the State's concern, requiring
identification of the source adds little to the state's
justification, and fails to survive the strict scrutiny required of
statutes burdening political speech. As the Seventh Circuit noted,
the majority in McIntyre described the identity of the author as just
one more item of information that the author may choose to include or
omit. Majors, 317 F.3d at 724 (citing McIntyre, 514 U.S. at 348).
Accordingly, the source of the statement was not particularly useful
in evaluating its merits on a referendum issue. The Supreme Court
found the state's interest in preserving the accuracy of statements
in elections to be "on a different footing" from the general interest
in providing more information.
Despite its greater force, that
interest was not furthered by the Ohio statute, which provided no exemption for truthful communications, and other statutory provisions and common law remedies were available to redress false communications.
Based on its reading of the Seventh Circuit's opinion to suggest that Section 2.5 will be found unconstitutional under McIntyre if it
regulates speech by "every individual and organization," the State argue(d) for a construction that would require a "disclaimer" only from those candidates and committees.
Because the disclaimer statute burdens core political speech, it is subject to "strict scrutiny." McIntyre, 514 U.S. at 347.
However, we are not persuaded that
McIntyre necessarily implies that the Indiana statute violates the
First Amendment. Section 2.5 was added to the Indiana Code in 1997 in
response to McIntyre and the decision of the United States District
Court for the Southern District in Stewart v. Taylor, 953 F. Supp.
1047 (S.D. Ind. 1997). Previous versions of the Indiana Election Laws
had, like the Ohio statute, applied to both candidate elections and
votes on public questions, but Section 2.5 is limited to candidate
elections. Before its 1997 revision, the Indiana disclaimer
requirement had none of the exemptions found in subsection 2.5(a),
which now exempts small direct mailings See footnote and
communications with regard to public questions, See footnote among
other things.
McIntyre dealt with leafleting in a local referendum. We think
somewhat different considerations apply in evaluating a disclaimer
requirement in advertising in candidate elections. Indeed, in First
Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme
Court expressly noted that although corruption concerns were a
compelling state interest in candidate elections, they were not
significant in the context of a referendum. Id. at 790. McIntyre
itself pointed out that in candidate elections the state "can
identify a compelling state interest in avoiding the corruption that
might result from campaign expenditures." McIntrye, 514 U.S. at 356.
The state has a legitimate concern that anonymous campaign support
will become a quid for the quo of post election largesse. Id.; see
also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290,
297 (1981). Thus, McIntyre expressly noted that a "more narrowly
drawn statute" might pass constitutional muster. McIntyre, 514 U.S.
at 356.
In McIntyre, Justice Ginsburg, concurring separately, expressly noted
that the Supreme Court did "not thereby hold that the State may not
in other, larger circumstances require the speaker to disclose its
interest by disclosing its identity." McIntyre, 514 U.S. at 358.
Four
years later, in Buckley v. Am. Constitutional Law Found., 525 U.S.
182 (1999), Justice Ginsburg wrote for a five-justice majority that
struck down some aspects of Colorado's regulation of solicitors in
petition drives to place an issue on the ballot in a referendum. Once
again the Court noted the distinction between candidate elections and
referenda. Id. at 203. The majority found unconstitutional a
requirement that solicitors wear badges with their names. But even in
a referendum the majority found constitutional the requirement that a
public affidavit disclose the name and address of the solicitor. A
post-solicitation affidavit did not expose the solicitor to the risk
of intimidation that an identifying badge presented in a face-to-face
encounter with potential voters. The affidavit was thus "the type of
regulation for which McIntyre left room." Id. at 200.
We think there is a very strong state policy reflected in the 1997
amendment. It was an obvious effort to tailor a more narrowly drawn
statute that would serve core state interests in the integrity of
candidate races while avoiding the concerns that resulted in the
invalidation of the Ohio statute. We also think that the distinctions
between Ohio's statute and Indiana's revised version are substantial.
The most important of these are that Indiana's law permits some
individual pamphleteering and applies only to candidate elections.
The Supreme Court in McIntyre noted some, but not all of the
differences for these purposes between issue elections and candidate
elections. The Supreme Court pointed out the State's proper concern
for the potential of election corruption through anonymous candidate
support. This interest was identified as "on a different footing"
from the mere desire for more complete information. McIntyre
discussed this state interest largely as concern for election finance
violations. In distinguishing the Ohio statute from the interests
validated in federal campaign finance law in Buckley v. Valeo, See
footnote the Court identified the "compelling state interest in
avoiding the corruption that might result from campaign
expenditures." McIntyre, 514 U.S. at 356.
Deterrence of corruption in candidate elections was first identified
as a compelling government interest in Buckley v. Valeo, which found
that concern sufficient to justify federal election law restrictions
on campaign contributions and the requirement of disclosure of
contributors. Buckley, 424 U.S. at 66. As Buckley noted, the
anonymous advertisement may be a surreptitious campaign contribution
violation. Id. at 81. But in addition to concern for outright
campaign finance violations and quid pro quo corruption, we think
there is also a related but very important state interest in the
integrity of public statements in candidate elections that differs
from elections in which public questions are put to voters. Several
potential abuses are presented by anonymous advertising in a
candidate race. Anonymous statements about candidates for public
office, even if true, can be very damaging, particularly if launched
in the waning days of an election when it may be difficult or even
impossible to achieve broad communication of any response. Indiana
saw such an attack in the 2000 election when one candidate for
attorney general was described in ads by a third-party organization
as one who represented convicted drug dealers. This may have been a true statement, but it was an attack that the candidate's opponent disclaimed and disavowed. Its effect was presumably mitigated by the
disclosure of the source in compliance with Indiana law. At least the
voters could see who was making this claim, and form an assessment as
to what its agenda was likely to be. They could then form their own
views as to whether the candidate's having served as defense attorney
in a case that resulted in conviction for dealing had anything at all
to do with the motivation to defeat the candidate. This example of a
well-funded interest group taking out advertisements to run a
statewide media blitz shortly before an election is a far cry from
the "modest resources" of Mrs. McIntyre mustered to oppose her school
levy.
There is a second concern with anonymous ads in candidate elections.
Charges can be leveled that no candidate would make because the
claims would be deemed irresponsible, or would generate support from
some groups, but a backlash from others. Anonymity permits personal
charges to be leveled at one candidate that may be equally true of
another. The voters have redress at the polls if a candidate, the
candidate's committee, or a political party engages in irresponsible
campaigning. If an identified third party wishes to sling some mud,
there is still no practical remedy against the source, but at least
the voters can evaluate the claim in light of its source.
Finally, in a candidate election, anonymous advertising permits a
candidate to run on an issue without espousing it. By tacit agreement
or even without implicit support from the candidate, the anonymous
supporter can challenge an opponent's position on a given issue
without putting the candidate's position in play. Several pernicious
results occur. The candidate may not differ from the views that are
being attacked, but does not need to declare a position. Or the
candidate may have unspoken ties or obligations to groups whose
agendas are well known, but who choose to fund advertising on
completely unrelated issues. Only the disclosure of the identity of
the funding agency prevents this.
For all of these reasons, we are not persuaded that Section 2.5 as
written violates the First Amendment on its face, though one can
conceive of some applications that might be invalid.
As McIntyre and
Talley make clear, to require identification of the source is to
burden the core value of free speech.
But in a candidate election,
there is a powerful countervailing consideration in the State's and
the public's interest in election integrity. That interest extends
beyond controlling direct corruption to minimizing damage to the
integrity of the dynamic and multifaceted marketplace of ideas that
drives a candidate election.
We think the 1997 amendment represented a very clear statement by the
General Assembly that it regarded campaign disclosure as important.
As a matter of separation of powers, we think setting that priority
is well within the purview of the legislative body as an expression
of state policy. If we construe the statute as the State suggests, we
agree it removes most doubt as to the constitutionality of the
statute, but we think it also eliminates most of what the statute was
seeking to accomplish. In practice we do not have candidates or
committees taking out anonymous advertising. It may be the deterrent
effect of the law, but it also seems that anonymous advertising by a
candidate would be a very high-risk strategy. If a message is such
that the candidate would not be willing to be identified with it,
presumably if its authorship leaked the effect of the leak would be
to brand the candidate a sneak as well as a fool. We think the
statute is primarily concerned with anonymous advertising by third
parties. Limiting its identification to candidates and committees
would free up the very actors the law was written to curtail. State
and federal courts have held a variety of views on issues similar, if
not identical, to the constitutional claims presented here. See
footnote We think the Indiana statute is clear and we do not believe
that current decisions of the Supreme Court of the United States
compel the conclusion that the statute as we construe it is invalid.
Accordingly, we answer the Seventh Circuit's question as follows:
The term "person" in Indiana Code section 3-9-3-2.5(b) and (d) is not
limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such committees or
subcommittees. Rather, it includes any individual or organization.
Finally, the plaintiffs invite us to invalidate the statute on
Indiana Constitutional grounds, in effect responding to the Seventh
Circuit with "never mind, the statute about which you inquire is
void." The plaintiffs note authority that an ambiguous statute should
be interpreted in such a manner as to preserve its constitutionality.
From this they draw the broader principle that the court should
always consider the constitutional implications of a statute and
should invalidate a statute if it finds it unconstitutional. This
seems quite a stretch to us, but we need not resolve that question
because the plaintiffs' contention is more easily disposed of. No
state constitutional issue was presented in the district court , and
we are not asked by the Seventh Circuit whether the statute runs
afoul of either the state or federal constitution. We have no record
of the facts of this case before us , and no basis to evaluate whether
other grounds may render consideration of the broad state
constitutional issue unnecessary. City of New Haven v. Reichhart, 748
N.E.2d 374, 378 (Ind. 2001). Neither the state nor the amicus has
addressed any state constitutional issue. Under these circumstances,
we will not reach out to answer a question we are not asked.
DICKSON, SULLIVAN, and RUCKER, JJ., concur.
SHEPARD, C.J., concurs with separate opinion in which DICKSON, J.,
joins.
----------------------------------------------------------------------
----------
Appendix
Ind. Code § 3-9-3-2.5 (Supp. 2001).
(a) This section does not apply to any of the following:
(1) A communication relating to an election to a federal office.
(2) A communication relating to the outcome of a public question.
(3) A communication described by this section in a medium regulated
by federal law to the extent that federal law regulates the
appearance, content, or placement of the communication in the medium.
(4) Bumper stickers, pins, buttons, pens, and similar small items
upon which the disclaimer required by this section cannot be
conveniently printed.
(5) Skywriting, water towers, wearing apparel, or other means of
displaying an advertisement on which the inclusion of a disclaimer
would be impracticable.
(6) Checks, receipts, and similar items of minimal value that do not
contain a political message and are used for purely administrative
purposes.
(7) A communication by a political action committee organized and
controlled by a corporation soliciting contributions to the political
action committee by the stockholders, executives, or employees of the
corporation and the families of those individuals.
(8) A communication by a political action committee organized and
controlled by a labor organization soliciting contributions to the
political action committee by the members or executive personnel of
the labor organization and the families of those individuals.
(9) A direct mailing of one hundred (100) or less substantially
similar pieces of mail.
(b) This section applies whenever a person:
(1) makes an expenditure for the purpose of financing communications
expressly advocating the election or defeat of a clearly identified
candidate; or
(2) solicits a contribution; through a newspaper, a magazine, an
outdoor advertising facility, a poster, a yard sign, a direct
mailing, or any other type of general public political advertising.
(c) For purposes of this section, a candidate is clearly identified
if any of the following apply:
(1) The name of the candidate involved appears.
(2) A photograph or drawing of the candidate appears.
(3) The identity of the candidate is apparent by unambiguous
reference.
(d) A communication described in subsection (b) must contain a
disclaimer that appears and is presented in a clear and conspicuous
manner to give the reader or observer adequate notice of the identity
of persons who paid for and, when required, who authorized the
communication. A disclaimer does not comply with this section if the
disclaimer is difficult to read or if the placement of the disclaimer
is easily overlooked.
(e) A communication that would require a disclaimer if distributed
separately must contain the required disclaimer if included in a
package of materials.
(f) This subsection does not apply to a communication, such as a
billboard, that contains only a front face. The disclaimer need not
appear on the front or cover page of the communication if the
disclaimer appears within the communication.
(g) Except as provided in subsection (h), a communication described
in subsection (b) must satisfy one (1) of the following:
(1) If the communication is paid for and authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication has been
paid for by the authorized political committee.
(2) If the communication is paid for by other persons but authorized
by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication is paid
for by the other persons and authorized by the authorized political
committee.
(3) If the communication is not authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state the name of the person who paid
for the communication and state that the communication is not
authorized by any candidate or candidate's committee.
(4) If the communication is a solicitation directed to the general
public on behalf of a political committee that is not a candidate's
committee, the solicitation must clearly state the full name of the
person who paid for the communication.
(h) A communication by a regular party committee consisting of:
(1) a printed slate card, a sample ballot, or other printed listing
of three (3) or more candidates for public office at an election;
(2) campaign materials such as handbills, brochures, posters, party
tabloids or newsletters, and yard signs distributed by volunteers and
used by the regular party committee in connection with volunteer
activities on behalf of any nominee of the party; or
(3) materials distributed by volunteers as part of the regular
party's voter registration or get-out-the-vote efforts;
must clearly state the name of the person who paid for the
communication but is not required to state that the communication is
authorized by any candidate or committee.
----------------------------------------------------------------------
----------
SHEPARD, Chief Justice, concurring.
I join fully in the Court's opinion, and write separately to
address a point ably lifted up by the lawyers for Common Cause of
Indiana and the Brennan Center for Justice.
The device of certifying questions of state law that are central
to a case being litigated in federal court is productive for state
and federal tribunals alike. Knowing that our federal colleagues do
not make these referrals casually, we have accepted every
certification from our District Courts and the Seventh Circuit, as
best I can recall. I expect that we will continue to do so.
Still, the mechanism has its limitations. As amici point out, the
questions necessarily come in rather abstract form. We answer a
question of law, rather than resolve a case. And, of course, facts
matter a great deal in the work judges customarily perform.
Here, for example, the statute in question looks very different
when one contemplates a lone pamphleteer, some latter-day Thomas
Paine , than it does as applied to a regular party candidate.
This problem of abstraction is especially troublesome when the
question at hand is, say, one of state constitutional law, or, as
today, a statutory question with palpable constitutional
implications. On such occasions, it seems to me, we state judges must
be especially mindful of the jurisprudential rules we would employ if
the full case were pending for resolution in state court – like
avoidance of avoidable constitutional declarations.
We have brushed up against such considerations in the present
case, but the language and statutory framework of the law under
examination have so strongly suggested an answer that fancier
footwork has been unnecessary.
DICKSON, J., joins.
----------------------------------------------------------------------
----------
Footnote: Section 2.5 is rather lengthy. Because its
constitutionality may be viewed as turning on the extent to which it
is "narrowly tailored" we reproduce the statute in its entirety as an
Appendix to this opinion.
----------------------------------------------------------------------
----------
Footnote: For those unfamiliar with Indiana statutes, the hierarchy
of the Indiana Code, in descending order, is Title, Article, Chapter,
Section.
----------------------------------------------------------------------
----------
Footnote: Public Laws 5-1986 and its companions, 6-1986, 7-1986 and 8-
1986 fill 315 pages of the 1986 Acts. 1986 Ind. Acts 25-340.
----------------------------------------------------------------------
----------
Footnote: Public Law 6-1976 included the following definitions for
purposes of the then current election law: "[P]erson" includes
individuals, business organizations, labor organizations, religious
organizations, political organizations, trustees, receivers and any
other organization, association, cooperative or group of persons
whatsoever. 1976 Ind. Acts 13.
----------------------------------------------------------------------
----------
Footnote: West Annotated Code uses the same title for this section as
the official Indiana Code, ("Application of chapter"). Burns
Annotated Code calls it "Applicability."
----------------------------------------------------------------------
----------
Footnote: Subsection (b) excepted federal candidates from the
limitation on the use of contributions imposed by Section (4).
Effective July 1, 2003, a new subsection (c) was added to Indiana
Code 3-9-3-1 providing that Section 2.5 does not apply to candidates
for precinct committeeman or state convention delegate. None of these
exceptions are relevant for our purposes.
----------------------------------------------------------------------
----------
Footnote: All five Subsections (a) are identical except for the
exceptions unique to each provision. The only differences, which are
irrelevant for these purposes, appear in subsections (b) and (c) of
the various Application sections. These have the effect of exempting
different types of elections (e.g. school boards) from certain
requirements, but not others. Compare I.C. § 3-9-3-1 with I.C. § 3-9-
1-1, I.C. § 3-9-2-1, I.C. § 3-9-4-1 and I.C. § 3-9-5-1.
----------------------------------------------------------------------
----------
Footnote: I.C. § 3-9-5-14(3)(A).
----------------------------------------------------------------------
----------
Footnote: I.C. § 3-9-1-19.
----------------------------------------------------------------------
----------
Footnote: I.C. § 3-9-2-9.
----------------------------------------------------------------------
----------
Footnote: Section2.5(a)(9) exempts mailings of up to 100 pieces
of "mail" that are "substantially similar." We take "mailing"
and "mail" to include any form of delivery of any written material,
including personal delivery or use of some service other than use of
the United States Postal Service. Reading the exemption as limited to
materials distributed through the U.S. mail would impose arbitrary
and indeed unconstitutional conditions on the exemption in violation
of the basic equal protection doctrines invoked by both parties.
----------------------------------------------------------------------
----------
Footnote: Section 2.5(a)(2). The web site referred to by the Seventh
Circuit in Majors, 317 F.3d at 721, (Revised May 2002), is incorrect
to the extent it suggests that all of the matters discussed apply
equally to both candidate and public question elections. Although
many parts of the Indiana Election Laws do apply to political
question elections, Indiana Code section 3-9-3-2.5 does not by virtue
of Section 2.5(a)(2).
----------------------------------------------------------------------
----------
Footnote: 424 U.S. 1 (1976).
----------------------------------------------------------------------
----------
Footnote: Compare Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d
1088, 1107 (9th Cir. 2003); FEC v. Public Citizen, 268 F.3d 1283,
1285 (11th Cir. 2001); Ky. Right to Life v. Terry, 108 F.3d 637, 648
(6th Cir. 1997); FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 298
(2d. Cir. 1995); McConnell v. FEC, 2003 U.S. Dist. LEXIS 7816 at *182
(D.D.C. May 1, 2003); Seymour v. Election Enforcement Comm'n, 762
A.2d 880, 892-94 (Conn. 2000); Doe v. Mortham, 708 So. 2d 929, 931-35
(Fla. 1998); with Citizens for Responsible Gov't State PAC v.
Davidson, 236 F.3d 1174, 2000 (10th Cir. 2000); Vt. Right to Life
Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000); Wilson v.
Stocker, 819 F.2d 943, 950 (10th Cir. 1987); N.C. Right to Life, Inc.
v. Leake, 108 F. Supp. 2d 498, 510 (E.D. N.C. 2000); Ark. Right to
Life State PAC v. Butler, 29 F. Supp. 2d 540, 550 (W.D. Ark. 1998);
Stewart, 953 F. Supp. at 1055; W. Va. for Life, Inc. v. Smith, 960 F.
Supp. 1036, 1042 (S.D. W. Va. 1996); Doe v. Texas, 2003 Tex. Crim.
App. LEXIS 88 at *14 (Tex. Crim. App. May 14, 2003).
-----------------------------------------------------------
Annotations are attorney work product, protected by the first amendment, and are intended as criticisms of the opinion, not its authors.
BOEHM, Justice.
The United States Court of Appeals for the Seventh Circuit has
requested our response to the following certified question:
Is the term "persons" in Ind. Code §§ 3-9-3-2.5(b)(1), (d) limited to
candidates, authorized political committees or subcommittees of
candidates, and the agents of such committees or subcommittees, or
does it have a broader scope, and, if so, how much broader?
The certified question arises in a lawsuit brought by several
individuals challenging Indiana Code section 3-9-3-2.5 (Supp. 2001)
as violating their rights to free speech guaranteed under the First
Amendment to the Constitution of the United States. The United States
District Court for the Southern District of Indiana dismissed the
complaint for lack of standing as to some plaintiffs and mootness as
to others. The Seventh Circuit concluded that neither standing nor
mootness precluded consideration of the merits of the plaintiffs'
claims, but noted that resolution of an issue of interpretation of
the statute might control the disposition of the constitutional
issues the plaintiffs seek to raise. Accordingly, the Seventh Circuit
certified this question to this Court pursuant to 7th Cir. Rule 52
and Ind. R. App. Proc. 64.
Majors v. Abell, 317 F.3d 719, 725 (7th Cir. 2003).
Section 2.5 is a part of the Indiana Election Laws. In broad brush,
it provides that any "person" must include a "disclaimer" in "general
public political advertising" if the person either "solicits a
contribution" or finances "communications expressly advocating the
election or defeat of a clearly identified candidate."
This "disclaimer" must disclose who paid for the ad, and, under some
circumstances, who authorized it. The section provides a number of
exemptions and definitions and includes detailed provisions requiring
different disclosures depending on whether the material is authorized
and/or financed by a candidate, a candidate's committee, a political
committee (PAC), or a party organization. See footnote
The issue as framed by the Seventh Circuit appears as an abstract
question of statutory construction. Indeed, as that court observed,
on its face, the statute seems quite plainly to apply to
communications financed by every individual and every form of legal
entity. That is the meaning ordinarily given to "person" in statutes,
and is the meaning provided by section 36 of the "Definitions"
Chapter of the Election Laws. According to Indiana Code section 3-5-2-
36, "`person' means an individual or an organization." Section 1 of
the same Chapter provides that its definitions "apply throughout this
title," and "this title" inescapably refers to Title 3 ("Elections").
See footnote This definition has been in the Election Laws since the
election laws were overhauled in 1986. See footnote It is in
substance the same as earlier more prolix but equally broad
definitions of "person." See footnote
The State points out that Section 2.5 is found in Article 9, Chapter
3, and Section 1 of that Chapter entitled "Application of chapter"
See footnote includes the following provision:
(a) . . . this chapter applies to candidates in all elections and
caucuses and to the following types of committees:
(1) Candidate's committees.
(2) Regular party committees.
(3) Political action committees.
(4) An auxiliary party organization.
(5) A legislative caucus committee.
Ind. Code § 3-9-3-1 (1998). See footnote The State contends that this
section has the effect of including only candidates and the listed
types of committees among the "persons" required by Section 2.5 to
include a disclaimer. Indeed, the State claims the "Application"
section is meaningless unless given that construction. We find this
contention difficult to fit within the statutory framework. We have
already noted the seemingly ironclad and purposeful use of "person"
as all-inclusive. The "Application" section the State cites is not
inconsistent with the conclusion that "person" has its usual meaning.
Language identical to the quoted portion of Chapter 3, Section 1(a)
appears in Section 1(a) of each of the other four Chapters in Article
9. See footnote It seems clear that these "Application" provisions
serve to identify the types of elections to which the various
chapters apply, but do not limit the reference to "persons" within
those chapters. Several of the provisions in these statutes would
make no sense whatever if "person" were limited as the State
suggests. For example, the Treasurer of a committee is required to
file a report listing every "person" who contributed over $100. See
footnote A committee may remove a "person" as chair or treasurer
without cause. See footnote Every "person" who accepts a contribution
for a committee must get it to the Treasurer within thirty days. See
footnote And so on. "Person" in section 2.5 is the same term
introduced by the same application section found in other sections of
the same "Election Campaigns" Chapter where it can only be read to
mean everybody and everything.
As a matter of statutory interpretation, there is little wiggle room here.
In the face of this rather overwhelming statutory evidence, both the
plaintiffs and the State nevertheless contend that constitutional
doctrine should govern our interpretation of the statute. As the
Seventh Circuit noted, courts, including this one, sometimes find
elasticity to preserve constitutionality. See, e.g., A Woman's Choice-
East Side Women's Clinic v. Newman, 671 N.E.2d 104, 107 (Ind. 1996)
("we would construe the . . . [statute] in a constitutional manner
insofar as the statutory language would permit."). Accordingly, we
consider whether constitutional considerations drive us to find the
statute to be more limited than appears on its face.
The State argues for its less expansive reading on the ground that
the statute, if applicable to political advertising by anyone, may
fall under the plaintiffs' First Amendment attack. In order to
understand the State's contention it is necessary to review the
federal constitutional doctrine surrounding regulation of campaign
literature.
In McIntyre v. Ohio Elections Comm'n, 514 U.S. 334
(1995), the Supreme Court invalidated an Ohio statute regulating
campaign literature.
Mrs. McIntyre was a classic "lone pamphleteer"
who printed up some materials opposing her local school tax levy.
Some of these identified her as the author and others bore only the
legend "CONCERNED PARENTS AND TAX PAYERS". She was convicted and
fined $100 under an Ohio statute making it a misdemeanor to omit
identification of the source of any campaign materials in any
candidate or public question election. Although she died before the
case reached the Supreme Court of the United States, her estate
carried on and ultimately prevailed in her contention that her
activity was constitutionally protected.
McIntyre recognized that election disclosure laws raised different
considerations from those presented by the general prohibition of
anonymous pamphlets that had been held unconstitutional in Talley v.
California, 362 U.S. 60 (1960).
Laws prohibiting anonymous
communications at least to some extent burden speech and raise First
Amendment concerns. If the speech is political, as it undoubtedly is
in an election, it enjoys the highest level of protection, and any
restriction of that speech requires a compelling governmental
interest.
Ohio sought to justify what is obviously an abridgment of
speech principally on the ground that its statute guarded against
misinformation in campaigns, and was therefore narrower than the
general ban that Talley had invalidated. This contention did not
carry the day.
The election in McIntyre was a school tax referendum. The focus of
that election was a single issue, not individual candidates and their
character or their stances on multiple issues. In such an election,
the Supreme Court viewed the state interest as principally "[t]he
simple interest in providing voters with additional relevant
information." McIntyre, 514 U.S. at 348. So viewed, McIntyre found
little force to the state interest asserted to justify its regulation
of speech.
The state cannot compel a speaker to add items of
information to those the speaker chooses to present. To the extent
completeness of information is the State's concern, requiring
identification of the source adds little to the state's
justification, and fails to survive the strict scrutiny required of
statutes burdening political speech. As the Seventh Circuit noted,
the majority in McIntyre described the identity of the author as just
one more item of information that the author may choose to include or
omit. Majors, 317 F.3d at 724 (citing McIntyre, 514 U.S. at 348).
Accordingly, the source of the statement was not particularly useful
in evaluating its merits on a referendum issue. The Supreme Court
found the state's interest in preserving the accuracy of statements
in elections to be "on a different footing" from the general interest
in providing more information.
Despite its greater force, that
interest was not furthered by the Ohio statute, which provided no exemption for truthful communications, and other statutory provisions and common law remedies were available to redress false communications.
Based on its reading of the Seventh Circuit's opinion to suggest that Section 2.5 will be found unconstitutional under McIntyre if it
regulates speech by "every individual and organization," the State argue(d) for a construction that would require a "disclaimer" only from those candidates and committees.
Because the disclaimer statute burdens core political speech, it is subject to "strict scrutiny." McIntyre, 514 U.S. at 347.
However, we are not persuaded that
McIntyre necessarily implies that the Indiana statute violates the
First Amendment. Section 2.5 was added to the Indiana Code in 1997 in
response to McIntyre and the decision of the United States District
Court for the Southern District in Stewart v. Taylor, 953 F. Supp.
1047 (S.D. Ind. 1997). Previous versions of the Indiana Election Laws
had, like the Ohio statute, applied to both candidate elections and
votes on public questions, but Section 2.5 is limited to candidate
elections. Before its 1997 revision, the Indiana disclaimer
requirement had none of the exemptions found in subsection 2.5(a),
which now exempts small direct mailings See footnote and
communications with regard to public questions, See footnote among
other things.
McIntyre dealt with leafleting in a local referendum. We think
somewhat different considerations apply in evaluating a disclaimer
requirement in advertising in candidate elections. Indeed, in First
Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Supreme
Court expressly noted that although corruption concerns were a
compelling state interest in candidate elections, they were not
significant in the context of a referendum. Id. at 790. McIntyre
itself pointed out that in candidate elections the state "can
identify a compelling state interest in avoiding the corruption that
might result from campaign expenditures." McIntrye, 514 U.S. at 356.
The state has a legitimate concern that anonymous campaign support
will become a quid for the quo of post election largesse. Id.; see
also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290,
297 (1981). Thus, McIntyre expressly noted that a "more narrowly
drawn statute" might pass constitutional muster. McIntyre, 514 U.S.
at 356.
In McIntyre, Justice Ginsburg, concurring separately, expressly noted
that the Supreme Court did "not thereby hold that the State may not
in other, larger circumstances require the speaker to disclose its
interest by disclosing its identity." McIntyre, 514 U.S. at 358.
Four
years later, in Buckley v. Am. Constitutional Law Found., 525 U.S.
182 (1999), Justice Ginsburg wrote for a five-justice majority that
struck down some aspects of Colorado's regulation of solicitors in
petition drives to place an issue on the ballot in a referendum. Once
again the Court noted the distinction between candidate elections and
referenda. Id. at 203. The majority found unconstitutional a
requirement that solicitors wear badges with their names. But even in
a referendum the majority found constitutional the requirement that a
public affidavit disclose the name and address of the solicitor. A
post-solicitation affidavit did not expose the solicitor to the risk
of intimidation that an identifying badge presented in a face-to-face
encounter with potential voters. The affidavit was thus "the type of
regulation for which McIntyre left room." Id. at 200.
We think there is a very strong state policy reflected in the 1997
amendment. It was an obvious effort to tailor a more narrowly drawn
statute that would serve core state interests in the integrity of
candidate races while avoiding the concerns that resulted in the
invalidation of the Ohio statute. We also think that the distinctions
between Ohio's statute and Indiana's revised version are substantial.
The most important of these are that Indiana's law permits some
individual pamphleteering and applies only to candidate elections.
The Supreme Court in McIntyre noted some, but not all of the
differences for these purposes between issue elections and candidate
elections. The Supreme Court pointed out the State's proper concern
for the potential of election corruption through anonymous candidate
support. This interest was identified as "on a different footing"
from the mere desire for more complete information. McIntyre
discussed this state interest largely as concern for election finance
violations. In distinguishing the Ohio statute from the interests
validated in federal campaign finance law in Buckley v. Valeo, See
footnote the Court identified the "compelling state interest in
avoiding the corruption that might result from campaign
expenditures." McIntyre, 514 U.S. at 356.
Deterrence of corruption in candidate elections was first identified
as a compelling government interest in Buckley v. Valeo, which found
that concern sufficient to justify federal election law restrictions
on campaign contributions and the requirement of disclosure of
contributors. Buckley, 424 U.S. at 66. As Buckley noted, the
anonymous advertisement may be a surreptitious campaign contribution
violation. Id. at 81. But in addition to concern for outright
campaign finance violations and quid pro quo corruption, we think
there is also a related but very important state interest in the
integrity of public statements in candidate elections that differs
from elections in which public questions are put to voters. Several
potential abuses are presented by anonymous advertising in a
candidate race. Anonymous statements about candidates for public
office, even if true, can be very damaging, particularly if launched
in the waning days of an election when it may be difficult or even
impossible to achieve broad communication of any response. Indiana
saw such an attack in the 2000 election when one candidate for
attorney general was described in ads by a third-party organization
as one who represented convicted drug dealers. This may have been a true statement, but it was an attack that the candidate's opponent disclaimed and disavowed. Its effect was presumably mitigated by the
disclosure of the source in compliance with Indiana law. At least the
voters could see who was making this claim, and form an assessment as
to what its agenda was likely to be. They could then form their own
views as to whether the candidate's having served as defense attorney
in a case that resulted in conviction for dealing had anything at all
to do with the motivation to defeat the candidate. This example of a
well-funded interest group taking out advertisements to run a
statewide media blitz shortly before an election is a far cry from
the "modest resources" of Mrs. McIntyre mustered to oppose her school
levy.
There is a second concern with anonymous ads in candidate elections.
Charges can be leveled that no candidate would make because the
claims would be deemed irresponsible, or would generate support from
some groups, but a backlash from others. Anonymity permits personal
charges to be leveled at one candidate that may be equally true of
another. The voters have redress at the polls if a candidate, the
candidate's committee, or a political party engages in irresponsible
campaigning. If an identified third party wishes to sling some mud,
there is still no practical remedy against the source, but at least
the voters can evaluate the claim in light of its source.
Finally, in a candidate election, anonymous advertising permits a
candidate to run on an issue without espousing it. By tacit agreement
or even without implicit support from the candidate, the anonymous
supporter can challenge an opponent's position on a given issue
without putting the candidate's position in play. Several pernicious
results occur. The candidate may not differ from the views that are
being attacked, but does not need to declare a position. Or the
candidate may have unspoken ties or obligations to groups whose
agendas are well known, but who choose to fund advertising on
completely unrelated issues. Only the disclosure of the identity of
the funding agency prevents this.
For all of these reasons, we are not persuaded that Section 2.5 as
written violates the First Amendment on its face, though one can
conceive of some applications that might be invalid.
As McIntyre and
Talley make clear, to require identification of the source is to
burden the core value of free speech.
But in a candidate election,
there is a powerful countervailing consideration in the State's and
the public's interest in election integrity. That interest extends
beyond controlling direct corruption to minimizing damage to the
integrity of the dynamic and multifaceted marketplace of ideas that
drives a candidate election.
We think the 1997 amendment represented a very clear statement by the
General Assembly that it regarded campaign disclosure as important.
As a matter of separation of powers, we think setting that priority
is well within the purview of the legislative body as an expression
of state policy. If we construe the statute as the State suggests, we
agree it removes most doubt as to the constitutionality of the
statute, but we think it also eliminates most of what the statute was
seeking to accomplish. In practice we do not have candidates or
committees taking out anonymous advertising. It may be the deterrent
effect of the law, but it also seems that anonymous advertising by a
candidate would be a very high-risk strategy. If a message is such
that the candidate would not be willing to be identified with it,
presumably if its authorship leaked the effect of the leak would be
to brand the candidate a sneak as well as a fool. We think the
statute is primarily concerned with anonymous advertising by third
parties. Limiting its identification to candidates and committees
would free up the very actors the law was written to curtail. State
and federal courts have held a variety of views on issues similar, if
not identical, to the constitutional claims presented here. See
footnote We think the Indiana statute is clear and we do not believe
that current decisions of the Supreme Court of the United States
compel the conclusion that the statute as we construe it is invalid.
Accordingly, we answer the Seventh Circuit's question as follows:
The term "person" in Indiana Code section 3-9-3-2.5(b) and (d) is not
limited to candidates, authorized political committees or
subcommittees of candidates, and the agents of such committees or
subcommittees. Rather, it includes any individual or organization.
Finally, the plaintiffs invite us to invalidate the statute on
Indiana Constitutional grounds, in effect responding to the Seventh
Circuit with "never mind, the statute about which you inquire is
void." The plaintiffs note authority that an ambiguous statute should
be interpreted in such a manner as to preserve its constitutionality.
From this they draw the broader principle that the court should
always consider the constitutional implications of a statute and
should invalidate a statute if it finds it unconstitutional. This
seems quite a stretch to us, but we need not resolve that question
because the plaintiffs' contention is more easily disposed of. No
state constitutional issue was presented in the district court , and
we are not asked by the Seventh Circuit whether the statute runs
afoul of either the state or federal constitution. We have no record
of the facts of this case before us , and no basis to evaluate whether
other grounds may render consideration of the broad state
constitutional issue unnecessary. City of New Haven v. Reichhart, 748
N.E.2d 374, 378 (Ind. 2001). Neither the state nor the amicus has
addressed any state constitutional issue. Under these circumstances,
we will not reach out to answer a question we are not asked.
DICKSON, SULLIVAN, and RUCKER, JJ., concur.
SHEPARD, C.J., concurs with separate opinion in which DICKSON, J.,
joins.
----------------------------------------------------------------------
----------
Appendix
Ind. Code § 3-9-3-2.5 (Supp. 2001).
(a) This section does not apply to any of the following:
(1) A communication relating to an election to a federal office.
(2) A communication relating to the outcome of a public question.
(3) A communication described by this section in a medium regulated
by federal law to the extent that federal law regulates the
appearance, content, or placement of the communication in the medium.
(4) Bumper stickers, pins, buttons, pens, and similar small items
upon which the disclaimer required by this section cannot be
conveniently printed.
(5) Skywriting, water towers, wearing apparel, or other means of
displaying an advertisement on which the inclusion of a disclaimer
would be impracticable.
(6) Checks, receipts, and similar items of minimal value that do not
contain a political message and are used for purely administrative
purposes.
(7) A communication by a political action committee organized and
controlled by a corporation soliciting contributions to the political
action committee by the stockholders, executives, or employees of the
corporation and the families of those individuals.
(8) A communication by a political action committee organized and
controlled by a labor organization soliciting contributions to the
political action committee by the members or executive personnel of
the labor organization and the families of those individuals.
(9) A direct mailing of one hundred (100) or less substantially
similar pieces of mail.
(b) This section applies whenever a person:
(1) makes an expenditure for the purpose of financing communications
expressly advocating the election or defeat of a clearly identified
candidate; or
(2) solicits a contribution; through a newspaper, a magazine, an
outdoor advertising facility, a poster, a yard sign, a direct
mailing, or any other type of general public political advertising.
(c) For purposes of this section, a candidate is clearly identified
if any of the following apply:
(1) The name of the candidate involved appears.
(2) A photograph or drawing of the candidate appears.
(3) The identity of the candidate is apparent by unambiguous
reference.
(d) A communication described in subsection (b) must contain a
disclaimer that appears and is presented in a clear and conspicuous
manner to give the reader or observer adequate notice of the identity
of persons who paid for and, when required, who authorized the
communication. A disclaimer does not comply with this section if the
disclaimer is difficult to read or if the placement of the disclaimer
is easily overlooked.
(e) A communication that would require a disclaimer if distributed
separately must contain the required disclaimer if included in a
package of materials.
(f) This subsection does not apply to a communication, such as a
billboard, that contains only a front face. The disclaimer need not
appear on the front or cover page of the communication if the
disclaimer appears within the communication.
(g) Except as provided in subsection (h), a communication described
in subsection (b) must satisfy one (1) of the following:
(1) If the communication is paid for and authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication has been
paid for by the authorized political committee.
(2) If the communication is paid for by other persons but authorized
by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication is paid
for by the other persons and authorized by the authorized political
committee.
(3) If the communication is not authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state the name of the person who paid
for the communication and state that the communication is not
authorized by any candidate or candidate's committee.
(4) If the communication is a solicitation directed to the general
public on behalf of a political committee that is not a candidate's
committee, the solicitation must clearly state the full name of the
person who paid for the communication.
(h) A communication by a regular party committee consisting of:
(1) a printed slate card, a sample ballot, or other printed listing
of three (3) or more candidates for public office at an election;
(2) campaign materials such as handbills, brochures, posters, party
tabloids or newsletters, and yard signs distributed by volunteers and
used by the regular party committee in connection with volunteer
activities on behalf of any nominee of the party; or
(3) materials distributed by volunteers as part of the regular
party's voter registration or get-out-the-vote efforts;
must clearly state the name of the person who paid for the
communication but is not required to state that the communication is
authorized by any candidate or committee.
----------------------------------------------------------------------
----------
SHEPARD, Chief Justice, concurring.
I join fully in the Court's opinion, and write separately to
address a point ably lifted up by the lawyers for Common Cause of
Indiana and the Brennan Center for Justice.
The device of certifying questions of state law that are central
to a case being litigated in federal court is productive for state
and federal tribunals alike. Knowing that our federal colleagues do
not make these referrals casually, we have accepted every
certification from our District Courts and the Seventh Circuit, as
best I can recall. I expect that we will continue to do so.
Still, the mechanism has its limitations. As amici point out, the
questions necessarily come in rather abstract form. We answer a
question of law, rather than resolve a case. And, of course, facts
matter a great deal in the work judges customarily perform.
Here, for example, the statute in question looks very different
when one contemplates a lone pamphleteer, some latter-day Thomas
Paine , than it does as applied to a regular party candidate.
This problem of abstraction is especially troublesome when the
question at hand is, say, one of state constitutional law, or, as
today, a statutory question with palpable constitutional
implications. On such occasions, it seems to me, we state judges must
be especially mindful of the jurisprudential rules we would employ if
the full case were pending for resolution in state court – like
avoidance of avoidable constitutional declarations.
We have brushed up against such considerations in the present
case, but the language and statutory framework of the law under
examination have so strongly suggested an answer that fancier
footwork has been unnecessary.
DICKSON, J., joins.
----------------------------------------------------------------------
----------
Footnote: Section 2.5 is rather lengthy. Because its
constitutionality may be viewed as turning on the extent to which it
is "narrowly tailored" we reproduce the statute in its entirety as an
Appendix to this opinion.
----------------------------------------------------------------------
----------
Footnote: For those unfamiliar with Indiana statutes, the hierarchy
of the Indiana Code, in descending order, is Title, Article, Chapter,
Section.
----------------------------------------------------------------------
----------
Footnote: Public Laws 5-1986 and its companions, 6-1986, 7-1986 and 8-
1986 fill 315 pages of the 1986 Acts. 1986 Ind. Acts 25-340.
----------------------------------------------------------------------
----------
Footnote: Public Law 6-1976 included the following definitions for
purposes of the then current election law: "[P]erson" includes
individuals, business organizations, labor organizations, religious
organizations, political organizations, trustees, receivers and any
other organization, association, cooperative or group of persons
whatsoever. 1976 Ind. Acts 13.
----------------------------------------------------------------------
----------
Footnote: West Annotated Code uses the same title for this section as
the official Indiana Code, ("Application of chapter"). Burns
Annotated Code calls it "Applicability."
----------------------------------------------------------------------
----------
Footnote: Subsection (b) excepted federal candidates from the
limitation on the use of contributions imposed by Section (4).
Effective July 1, 2003, a new subsection (c) was added to Indiana
Code 3-9-3-1 providing that Section 2.5 does not apply to candidates
for precinct committeeman or state convention delegate. None of these
exceptions are relevant for our purposes.
----------------------------------------------------------------------
----------
Footnote: All five Subsections (a) are identical except for the
exceptions unique to each provision. The only differences, which are
irrelevant for these purposes, appear in subsections (b) and (c) of
the various Application sections. These have the effect of exempting
different types of elections (e.g. school boards) from certain
requirements, but not others. Compare I.C. § 3-9-3-1 with I.C. § 3-9-
1-1, I.C. § 3-9-2-1, I.C. § 3-9-4-1 and I.C. § 3-9-5-1.
----------------------------------------------------------------------
----------
Footnote: I.C. § 3-9-5-14(3)(A).
----------------------------------------------------------------------
----------
Footnote: I.C. § 3-9-1-19.
----------------------------------------------------------------------
----------
Footnote: I.C. § 3-9-2-9.
----------------------------------------------------------------------
----------
Footnote: Section2.5(a)(9) exempts mailings of up to 100 pieces
of "mail" that are "substantially similar." We take "mailing"
and "mail" to include any form of delivery of any written material,
including personal delivery or use of some service other than use of
the United States Postal Service. Reading the exemption as limited to
materials distributed through the U.S. mail would impose arbitrary
and indeed unconstitutional conditions on the exemption in violation
of the basic equal protection doctrines invoked by both parties.
----------------------------------------------------------------------
----------
Footnote: Section 2.5(a)(2). The web site referred to by the Seventh
Circuit in Majors, 317 F.3d at 721, (Revised May 2002), is incorrect
to the extent it suggests that all of the matters discussed apply
equally to both candidate and public question elections. Although
many parts of the Indiana Election Laws do apply to political
question elections, Indiana Code section 3-9-3-2.5 does not by virtue
of Section 2.5(a)(2).
----------------------------------------------------------------------
----------
Footnote: 424 U.S. 1 (1976).
----------------------------------------------------------------------
----------
Footnote: Compare Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d
1088, 1107 (9th Cir. 2003); FEC v. Public Citizen, 268 F.3d 1283,
1285 (11th Cir. 2001); Ky. Right to Life v. Terry, 108 F.3d 637, 648
(6th Cir. 1997); FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 298
(2d. Cir. 1995); McConnell v. FEC, 2003 U.S. Dist. LEXIS 7816 at *182
(D.D.C. May 1, 2003); Seymour v. Election Enforcement Comm'n, 762
A.2d 880, 892-94 (Conn. 2000); Doe v. Mortham, 708 So. 2d 929, 931-35
(Fla. 1998); with Citizens for Responsible Gov't State PAC v.
Davidson, 236 F.3d 1174, 2000 (10th Cir. 2000); Vt. Right to Life
Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000); Wilson v.
Stocker, 819 F.2d 943, 950 (10th Cir. 1987); N.C. Right to Life, Inc.
v. Leake, 108 F. Supp. 2d 498, 510 (E.D. N.C. 2000); Ark. Right to
Life State PAC v. Butler, 29 F. Supp. 2d 540, 550 (W.D. Ark. 1998);
Stewart, 953 F. Supp. at 1055; W. Va. for Life, Inc. v. Smith, 960 F.
Supp. 1036, 1042 (S.D. W. Va. 1996); Doe v. Texas, 2003 Tex. Crim.
App. LEXIS 88 at *14 (Tex. Crim. App. May 14, 2003).
-----------------------------------------------------------
MOTION FOR EXTENSION OF TIME IN WHICH TO FILE RESPONSE
Come now plaintiffs by counsel and for the motion for an extension of time in which to file a response to the ruling of the Indiana Supreme Court state as follows.
In its prior ruling the Seventh Circuit certified a question of state law to the Indiana Supreme Court, which issued its ruling July 25 2003, Cause No. 94S00-0303-CQ-94.
In that ruling, in footnote 11, the court narrowed the statute to not apply to less than 100 copies of any document, rather than just those sent through the mail. Since plaintiff Brian Majors posted less than 100 copies of his hand-made signs, this ruling is sufficient to protect Majors from the threat of prosecution under the statute. While less then the full relief sought, this ruling is sufficient to trigger prevailing party status under section 1983.
For this reason, we are exploring the possibility of settling the case at this time, although it seems likely that the state and county will remain unwilling to settle. In order to have additional time to discuss settlement, plaintiffs request a thirty-day extension of time in which to file our response to the Indiana Court’s ruling. Ex. 1 is a letter offering settlement.
Counsel for the State and for Common Cause are not opposed to an extension.
Defendants will not be prejudiced by delay, rather, any irreparable harm caused by the delay falls on plaintiffs, and on the general public. This motion is not made solely for the purpose of delay, and is in the interests of justice.
Respectfully submitted,
__________________
Come now plaintiffs by counsel and for the motion for an extension of time in which to file a response to the ruling of the Indiana Supreme Court state as follows.
In its prior ruling the Seventh Circuit certified a question of state law to the Indiana Supreme Court, which issued its ruling July 25 2003, Cause No. 94S00-0303-CQ-94.
In that ruling, in footnote 11, the court narrowed the statute to not apply to less than 100 copies of any document, rather than just those sent through the mail. Since plaintiff Brian Majors posted less than 100 copies of his hand-made signs, this ruling is sufficient to protect Majors from the threat of prosecution under the statute. While less then the full relief sought, this ruling is sufficient to trigger prevailing party status under section 1983.
For this reason, we are exploring the possibility of settling the case at this time, although it seems likely that the state and county will remain unwilling to settle. In order to have additional time to discuss settlement, plaintiffs request a thirty-day extension of time in which to file our response to the Indiana Court’s ruling. Ex. 1 is a letter offering settlement.
Counsel for the State and for Common Cause are not opposed to an extension.
Defendants will not be prejudiced by delay, rather, any irreparable harm caused by the delay falls on plaintiffs, and on the general public. This motion is not made solely for the purpose of delay, and is in the interests of justice.
Respectfully submitted,
__________________
Appendix:
While there is much in the Indiana Supreme Court’s opinion Plaintiffs disagree with, there are also areas of agreement. The state defendants indicate that they find the construction of the statute authoritative, and fully agree with the constitutional analysis.
Therefore, we will invite the state defendants to join this document as a proposed joint stipulation of law, or clarify any passages it will not stipulate to.
1) The term “person” in Indiana Code section 3-9-3-2.5 (b) and (d) is not limited to candidates, authorized political committees or subcommittees. Rather, it includes any individual or organization. Majors v. Abell, 792 N.E.2d 22, 30 (Ind. 2003.)
2) The certified question arises in a lawsuit brought by several individuals challenging Indiana Code section 3-9-3-2.5 (Supp. 2001) as violating their rights to free speech guaranteed under the First Amendment to the Constitution of the United States. The United States District Court for the Southern District of Indiana dismissed the
complaint for lack of standing as to some plaintiffs and mootness as to others. The Seventh Circuit concluded that neither standing nor mootness precluded consideration of the merits of the plaintiffs' claims, but noted that resolution of an issue of interpretation of the statute might control the disposition of the constitutional issues the plaintiffs seek to raise. Accordingly, the Seventh Circuit certified this question to [the Indiana Supreme] Court pursuant to 7th Cir. Rule 52 and Ind. R. App. Proc. 64.
3) Section 2.5 is a part of the Indiana Election Laws. In broad brush, it provides that any "person" must include a "disclaimer" in "general public political advertising" if the person either "solicits a contribution" or finances "communications expressly advocating the election or defeat of a clearly identified candidate." This "disclaimer" must disclose who paid for the ad, and, under some circumstances, who authorized it. The section provides a number of exemptions and definitions and includes detailed provisions requiring different disclosures depending on whether the material is authorized and/or financed by a candidate, a candidate's committee, a political committee (PAC), or a party organization.
4.) In McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), the Supreme Court invalidated an Ohio statute regulating campaign literature.
5.) Laws prohibiting anonymous communications at least to some extent burden speech and raise First Amendment concerns. If the speech is political, as it undoubtedly is
in an election, it enjoys the highest level of protection, and any restriction of that speech requires a compelling governmental interest.
6.) Ohio sought to justify what is obviously an abridgment of speech principally on the ground that its statute guarded against misinformation in campaigns, and was therefore narrower than the general ban that Talley had invalidated. This contention did not
carry the day.
7.) The state cannot compel a speaker to add items of information to those the speaker chooses to present. To the extent completeness of information is the State's concern, requiring identification of the source adds little to the state's justification, and fails to survive the strict scrutiny required of statutes burdening political speech. As the Seventh Circuit noted, the majority in McIntyre described the identity of the author as just one more item of information that the author may choose to include or omit. Majors, 317 F.3d at 724 (citing McIntyre, 514 U.S. at 348).
8. Despite its greater force, that interest was not furthered by the Ohio statute, which provided no exemption for truthful communications, and other statutory provisions and common law remedies were available to redress false communications
9. Based on its reading of the Seventh Circuit's opinion to suggest that Section 2.5 will be found unconstitutional under McIntyre if it regulates speech by "every individual and organization," the State argue[d] for a construction that would require a "disclaimer" only from those candidates and committees. Because the disclaimer statute burdens core political speech, it is subject to "strict scrutiny." McIntyre, 514 U.S. at 347.
10.) Four years later, in Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999), Justice Ginsburg wrote for a five-justice majority that struck down some aspects of Colorado's regulation of solicitors in petition drives to place an issue on the ballot in a referendum. The majority found unconstitutional a requirement that solicitors wear badges with their names.
11.) Anonymous statements about candidates for public office, even if true, can be very damaging, particularly if launched in the waning days of an election when it may be difficult or even impossible to achieve broad communication of any response.
12.) Indiana saw such an attack in the 2000 election when one candidate for attorney general was described in ads by a third-party organization as one who represented convicted drug dealers. This may have been a true statement.
13. This example of a well-funded interest group taking out advertisements to run a statewide media blitz shortly before an election is a far cry from the "modest resources" of Mrs. McIntyre mustered to oppose her school levy.
14.) There is a second concern with anonymous ads in candidate elections.
Charges can be leveled that no candidate would make because the claims would be deemed irresponsible, or would generate support from some groups, but a backlash from others. Anonymity permits personal charges to be leveled at one candidate that may be equally true of another.
15.) Finally, in a candidate election, anonymous advertising permits a candidate to run on an issue without espousing it. By tacit agreement or even without implicit support from the candidate, the anonymous supporter can challenge an opponent's position on a given issue without putting the candidate's position in play. Several pernicious results occur. The candidate may not differ from the views that are being attacked, but does not need to declare a position. Or the candidate may have unspoken ties or obligations to groups whose agendas are well known, but who choose to fund advertising on completely unrelated issues
16.) As McIntyre and Talley make clear, to require identification of the source is to
burden the core value of free speech.
17.) But in a candidate election, there is a powerful countervailing consideration in …the public's interest in election integrity. That interest extends beyond controlling direct corruption to minimizing damage to the integrity of the dynamic and multifaceted marketplace of ideas that drives a candidate election.
18.) Here, for example, the statute in question looks very different when one contemplates a lone pamphleteer, some latter-day Thomas Paine than it does as applied to a regular party candidate.
19.) Section2.5(a)(9) exempts mailings of up to 100 pieces of "mail" that are "substantially similar." We take "mailing" and "mail" to include any form of delivery of any written material, including personal delivery or use of some service other than use of
the United States Postal Service. Reading the exemption as limited to materials distributed through the U.S. mail would impose arbitrary and indeed unconstitutional conditions on the exemption in violation of the basic equal protection doctrines invoked by both parties.
Compare Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1107 (9th Cir. 2003); FEC v. Public Citizen, 268 F.3d 1283,1285 (11th Cir. 2001); Ky. Right to Life v. Terry, 108 F.3d 637, 648 (6th Cir. 1997); FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 298 (2d. Cir. 1995); McConnell v. FEC, 2003 U.S. Dist. LEXIS 7816 at *182 (D.D.C. May 1, 2003); Seymour v. Election Enforcement Comm'n, 762 A.2d 880, 892-94 (Conn. 2000); Doe v. Mortham, 708 So. 2d 929, 931-35 (Fla. 1998); Majors v. Abell, 317 F.3d 719, 725 (7th Cir. 2003); with Citizens for Responsible Gov't State PAC v. Davidson, 2 36 F.3d 1174, 2000 (10th Cir. 2000); Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000); Wilson v. Stocker, 819 F.2d 943, 950 (10th Cir. 1987); N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498, 510 (E.D. N.C. 2000); Ark. Right to Life State PAC v. Butler, 29 F. Supp. 2d 540, 550 (W.D. Ark. 1998); Stewart, 953 F. Supp. at 1055; W. Va. for Life, Inc. v. Smith, 960 F. Supp. 1036, 1042 (S.D. W. Va. 1996); Doe v. Texas, 2003 Tex. Crim. App. LEXIS 88 at *14 (Tex. Crim. App. May 14, 2003).
While there is much in the Indiana Supreme Court’s opinion Plaintiffs disagree with, there are also areas of agreement. The state defendants indicate that they find the construction of the statute authoritative, and fully agree with the constitutional analysis.
Therefore, we will invite the state defendants to join this document as a proposed joint stipulation of law, or clarify any passages it will not stipulate to.
1) The term “person” in Indiana Code section 3-9-3-2.5 (b) and (d) is not limited to candidates, authorized political committees or subcommittees. Rather, it includes any individual or organization. Majors v. Abell, 792 N.E.2d 22, 30 (Ind. 2003.)
2) The certified question arises in a lawsuit brought by several individuals challenging Indiana Code section 3-9-3-2.5 (Supp. 2001) as violating their rights to free speech guaranteed under the First Amendment to the Constitution of the United States. The United States District Court for the Southern District of Indiana dismissed the
complaint for lack of standing as to some plaintiffs and mootness as to others. The Seventh Circuit concluded that neither standing nor mootness precluded consideration of the merits of the plaintiffs' claims, but noted that resolution of an issue of interpretation of the statute might control the disposition of the constitutional issues the plaintiffs seek to raise. Accordingly, the Seventh Circuit certified this question to [the Indiana Supreme] Court pursuant to 7th Cir. Rule 52 and Ind. R. App. Proc. 64.
3) Section 2.5 is a part of the Indiana Election Laws. In broad brush, it provides that any "person" must include a "disclaimer" in "general public political advertising" if the person either "solicits a contribution" or finances "communications expressly advocating the election or defeat of a clearly identified candidate." This "disclaimer" must disclose who paid for the ad, and, under some circumstances, who authorized it. The section provides a number of exemptions and definitions and includes detailed provisions requiring different disclosures depending on whether the material is authorized and/or financed by a candidate, a candidate's committee, a political committee (PAC), or a party organization.
4.) In McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), the Supreme Court invalidated an Ohio statute regulating campaign literature.
5.) Laws prohibiting anonymous communications at least to some extent burden speech and raise First Amendment concerns. If the speech is political, as it undoubtedly is
in an election, it enjoys the highest level of protection, and any restriction of that speech requires a compelling governmental interest.
6.) Ohio sought to justify what is obviously an abridgment of speech principally on the ground that its statute guarded against misinformation in campaigns, and was therefore narrower than the general ban that Talley had invalidated. This contention did not
carry the day.
7.) The state cannot compel a speaker to add items of information to those the speaker chooses to present. To the extent completeness of information is the State's concern, requiring identification of the source adds little to the state's justification, and fails to survive the strict scrutiny required of statutes burdening political speech. As the Seventh Circuit noted, the majority in McIntyre described the identity of the author as just one more item of information that the author may choose to include or omit. Majors, 317 F.3d at 724 (citing McIntyre, 514 U.S. at 348).
8. Despite its greater force, that interest was not furthered by the Ohio statute, which provided no exemption for truthful communications, and other statutory provisions and common law remedies were available to redress false communications
9. Based on its reading of the Seventh Circuit's opinion to suggest that Section 2.5 will be found unconstitutional under McIntyre if it regulates speech by "every individual and organization," the State argue[d] for a construction that would require a "disclaimer" only from those candidates and committees. Because the disclaimer statute burdens core political speech, it is subject to "strict scrutiny." McIntyre, 514 U.S. at 347.
10.) Four years later, in Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999), Justice Ginsburg wrote for a five-justice majority that struck down some aspects of Colorado's regulation of solicitors in petition drives to place an issue on the ballot in a referendum. The majority found unconstitutional a requirement that solicitors wear badges with their names.
11.) Anonymous statements about candidates for public office, even if true, can be very damaging, particularly if launched in the waning days of an election when it may be difficult or even impossible to achieve broad communication of any response.
12.) Indiana saw such an attack in the 2000 election when one candidate for attorney general was described in ads by a third-party organization as one who represented convicted drug dealers. This may have been a true statement.
13. This example of a well-funded interest group taking out advertisements to run a statewide media blitz shortly before an election is a far cry from the "modest resources" of Mrs. McIntyre mustered to oppose her school levy.
14.) There is a second concern with anonymous ads in candidate elections.
Charges can be leveled that no candidate would make because the claims would be deemed irresponsible, or would generate support from some groups, but a backlash from others. Anonymity permits personal charges to be leveled at one candidate that may be equally true of another.
15.) Finally, in a candidate election, anonymous advertising permits a candidate to run on an issue without espousing it. By tacit agreement or even without implicit support from the candidate, the anonymous supporter can challenge an opponent's position on a given issue without putting the candidate's position in play. Several pernicious results occur. The candidate may not differ from the views that are being attacked, but does not need to declare a position. Or the candidate may have unspoken ties or obligations to groups whose agendas are well known, but who choose to fund advertising on completely unrelated issues
16.) As McIntyre and Talley make clear, to require identification of the source is to
burden the core value of free speech.
17.) But in a candidate election, there is a powerful countervailing consideration in …the public's interest in election integrity. That interest extends beyond controlling direct corruption to minimizing damage to the integrity of the dynamic and multifaceted marketplace of ideas that drives a candidate election.
18.) Here, for example, the statute in question looks very different when one contemplates a lone pamphleteer, some latter-day Thomas Paine than it does as applied to a regular party candidate.
19.) Section2.5(a)(9) exempts mailings of up to 100 pieces of "mail" that are "substantially similar." We take "mailing" and "mail" to include any form of delivery of any written material, including personal delivery or use of some service other than use of
the United States Postal Service. Reading the exemption as limited to materials distributed through the U.S. mail would impose arbitrary and indeed unconstitutional conditions on the exemption in violation of the basic equal protection doctrines invoked by both parties.
Compare Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1107 (9th Cir. 2003); FEC v. Public Citizen, 268 F.3d 1283,1285 (11th Cir. 2001); Ky. Right to Life v. Terry, 108 F.3d 637, 648 (6th Cir. 1997); FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 298 (2d. Cir. 1995); McConnell v. FEC, 2003 U.S. Dist. LEXIS 7816 at *182 (D.D.C. May 1, 2003); Seymour v. Election Enforcement Comm'n, 762 A.2d 880, 892-94 (Conn. 2000); Doe v. Mortham, 708 So. 2d 929, 931-35 (Fla. 1998); Majors v. Abell, 317 F.3d 719, 725 (7th Cir. 2003); with Citizens for Responsible Gov't State PAC v. Davidson, 2 36 F.3d 1174, 2000 (10th Cir. 2000); Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000); Wilson v. Stocker, 819 F.2d 943, 950 (10th Cir. 1987); N.C. Right to Life, Inc. v. Leake, 108 F. Supp. 2d 498, 510 (E.D. N.C. 2000); Ark. Right to Life State PAC v. Butler, 29 F. Supp. 2d 540, 550 (W.D. Ark. 1998); Stewart, 953 F. Supp. at 1055; W. Va. for Life, Inc. v. Smith, 960 F. Supp. 1036, 1042 (S.D. W. Va. 1996); Doe v. Texas, 2003 Tex. Crim. App. LEXIS 88 at *14 (Tex. Crim. App. May 14, 2003).
RESPONSE TO OBJECTION TO MOTION TO FILE OUT OF TIME
Come now plaintiffs by counsel and for their response to objections state as follows.
The state defendants have filed an objection, under penalty of perjury, to our motion for leave to file a response per rule 52.
1. Rule 52(b) states: If the state court decides the certified issue, then within 21 days after the issuance of its opinion the parties must file in this court statements of their positions about what action this court should take to complete the resolution of the appeal.
2. In a conversation with opposing counsel this morning, September 8, 2003, she admitted she had overlooked receipt of our letter of settlement sent 8/12/2003. Therefore the statement in paragraph 2 that no offer was received, while a false statement made under penalty of perjury, was not an intentional false statement, and should not be held against her. It is my understanding that she will amend her filing. The State’s overlooking of our settlement offer is of a similar nature to our not having received the scheduling order until the 27th, fully excusable for good cause.
3. Disputed statements that Plaintiff’s counsel has acted improperly, and that no good excuse for untimely filing has been offered, are best understood as expressions of opinion and argument, rather than as falsifiable statements of fact.
4. Rule 52 (b) is ambiguous as to whether it calls for a substantive or procedural response. Since this is the first case in which counsel has had a question certified by the Seventh Circuit, counsel is unfamiliar with custom and practice of how this is usually handled. We have no objection to the Court setting a briefing schedule if it chooses. Since the State has been in the habit of raising procedural objections to every attempt to reach the merits, we suspect that if we had not responded substantively, the state would have argued that we waived our right to do so. The State presents no authority for its interpretation of rule 52. The obvious intent of our request for an extension of time was to have a reasonable time to prepare a responsive statement of position if the settlement offer was rejected; no extension would have been needed to merely say the court should set a briefing schedule.
5. The state is well aware that the initial briefing to the Seventh Circuit focused on procedural issues related to the erroneous dismissal, and while listing the controlling and supporting cases, did not discuss them in detail due to page limitations. Similarly, plaintiff Brian Majors was denied the opportunity to file his reply brief, which discussed the merits in relation to the County’s qualified immunity claims. There has been as yet no opportunity to submit a brief addressed solely to the merits. Plaintiffs continue to request that their response be accepted, or in the alternative that a briefing schedule be set. We have no objection to the defendants’ tactical decision to refrain from further briefing.
6. The state is within its prerogatives to decline to join the proposed stipulation of law. The filing of the appendix, with the portion of the Indiana Court’s opinion that Plaintiffs believe correctly sets out the applicable law, remains proper.
7. Paragraphs 1, 2, 3, and 4 of the state defendants objections are each erroneous, and do not support the conclusion. Paragraph 5 is proper, but does constitute a reason to object to Plaintiffs’ filing. The court should grant the motion for leave to file out of time, or in the alternative set a briefing schedule.
Respectfully submitted,
__________________
Robbin Stewart.
Come now plaintiffs by counsel and for their response to objections state as follows.
The state defendants have filed an objection, under penalty of perjury, to our motion for leave to file a response per rule 52.
1. Rule 52(b) states: If the state court decides the certified issue, then within 21 days after the issuance of its opinion the parties must file in this court statements of their positions about what action this court should take to complete the resolution of the appeal.
2. In a conversation with opposing counsel this morning, September 8, 2003, she admitted she had overlooked receipt of our letter of settlement sent 8/12/2003. Therefore the statement in paragraph 2 that no offer was received, while a false statement made under penalty of perjury, was not an intentional false statement, and should not be held against her. It is my understanding that she will amend her filing. The State’s overlooking of our settlement offer is of a similar nature to our not having received the scheduling order until the 27th, fully excusable for good cause.
3. Disputed statements that Plaintiff’s counsel has acted improperly, and that no good excuse for untimely filing has been offered, are best understood as expressions of opinion and argument, rather than as falsifiable statements of fact.
4. Rule 52 (b) is ambiguous as to whether it calls for a substantive or procedural response. Since this is the first case in which counsel has had a question certified by the Seventh Circuit, counsel is unfamiliar with custom and practice of how this is usually handled. We have no objection to the Court setting a briefing schedule if it chooses. Since the State has been in the habit of raising procedural objections to every attempt to reach the merits, we suspect that if we had not responded substantively, the state would have argued that we waived our right to do so. The State presents no authority for its interpretation of rule 52. The obvious intent of our request for an extension of time was to have a reasonable time to prepare a responsive statement of position if the settlement offer was rejected; no extension would have been needed to merely say the court should set a briefing schedule.
5. The state is well aware that the initial briefing to the Seventh Circuit focused on procedural issues related to the erroneous dismissal, and while listing the controlling and supporting cases, did not discuss them in detail due to page limitations. Similarly, plaintiff Brian Majors was denied the opportunity to file his reply brief, which discussed the merits in relation to the County’s qualified immunity claims. There has been as yet no opportunity to submit a brief addressed solely to the merits. Plaintiffs continue to request that their response be accepted, or in the alternative that a briefing schedule be set. We have no objection to the defendants’ tactical decision to refrain from further briefing.
6. The state is within its prerogatives to decline to join the proposed stipulation of law. The filing of the appendix, with the portion of the Indiana Court’s opinion that Plaintiffs believe correctly sets out the applicable law, remains proper.
7. Paragraphs 1, 2, 3, and 4 of the state defendants objections are each erroneous, and do not support the conclusion. Paragraph 5 is proper, but does constitute a reason to object to Plaintiffs’ filing. The court should grant the motion for leave to file out of time, or in the alternative set a briefing schedule.
Respectfully submitted,
__________________
Robbin Stewart.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIAN MAJORS et al., Plaintiff-Appellants, v.MARSHA ABELL et al., Defendants-Appellees. )))))))))) Case No. 02-2204Hon. William J. Bauer, Senior United States Circuit Judge, and Hon. Richard J. Posner and Hon. Frank H. Easterbrook, United States Circuit Judges
MOTION TO FILE OUT OF TIME
Come now plaintiffs by counsel and for their motion to file out of time state as follows.
1. On August 27, 2003 at 4 PM plaintiffs’ counsel received notice that their motion for an extension of time in which to file response had been denied except to the extent that appellants’ statement of position should be due August 26th, 2003.
2. Appellants’ statement regarding the certified question is enclosed, prepared with utmost haste, and this motion seeks leave to file it out of time.
3. The order was dated August 20th, and probably arrived sooner than 8/27, but was not seen until then. If a response had been instantaneously written and mailed first class, it might or might not have arrived by 8/26.
4. The reason for the request for an extension was so that Defendants would have an opportunity to respond to an offer of settlement, which would, if accepted, promoted judicial economy by making it unnecessary for the court to resolve the merits of the case. The previous briefing, while touching on the merits, focused on the procedural issues of reversing erroneous dismissal, so the merits remain largely un-briefed.
5. Although counsel for the state indicated that a prompt response would be forthcoming, neither the state nor county has responded to the settlement offer.
6. The Court’s local rules and web page seem to indicate that settlement negotiations are favored and reasonably accommodated.
7. It would be a grave injustice to Plaintiffs, and the public whose interests they represent, to be denied a right of reply.
8. The Indiana Supreme Court ruling, while at odds with controlling precedents of the United States Supreme Court, raises serious issues of policy and law that are due a considered response.
9. The word count of the response is 4408 words. If this is longer than the rules allow, we seek leave to file a response of 4408 words. We wrote a long brief because we didn’t have time to write a short one.
10. This filing is being sent via hand delivery from Indianapolis to Chicago.
Wherefore, Plaintiffs ask leave to file the enclosed statement.
Respectfully submitted,
__________________
Robbin Stewart.
227 N. Temple Avenue
Indianapolis
BRIAN MAJORS et al., Plaintiff-Appellants, v.MARSHA ABELL et al., Defendants-Appellees. )))))))))) Case No. 02-2204Hon. William J. Bauer, Senior United States Circuit Judge, and Hon. Richard J. Posner and Hon. Frank H. Easterbrook, United States Circuit Judges
MOTION TO FILE OUT OF TIME
Come now plaintiffs by counsel and for their motion to file out of time state as follows.
1. On August 27, 2003 at 4 PM plaintiffs’ counsel received notice that their motion for an extension of time in which to file response had been denied except to the extent that appellants’ statement of position should be due August 26th, 2003.
2. Appellants’ statement regarding the certified question is enclosed, prepared with utmost haste, and this motion seeks leave to file it out of time.
3. The order was dated August 20th, and probably arrived sooner than 8/27, but was not seen until then. If a response had been instantaneously written and mailed first class, it might or might not have arrived by 8/26.
4. The reason for the request for an extension was so that Defendants would have an opportunity to respond to an offer of settlement, which would, if accepted, promoted judicial economy by making it unnecessary for the court to resolve the merits of the case. The previous briefing, while touching on the merits, focused on the procedural issues of reversing erroneous dismissal, so the merits remain largely un-briefed.
5. Although counsel for the state indicated that a prompt response would be forthcoming, neither the state nor county has responded to the settlement offer.
6. The Court’s local rules and web page seem to indicate that settlement negotiations are favored and reasonably accommodated.
7. It would be a grave injustice to Plaintiffs, and the public whose interests they represent, to be denied a right of reply.
8. The Indiana Supreme Court ruling, while at odds with controlling precedents of the United States Supreme Court, raises serious issues of policy and law that are due a considered response.
9. The word count of the response is 4408 words. If this is longer than the rules allow, we seek leave to file a response of 4408 words. We wrote a long brief because we didn’t have time to write a short one.
10. This filing is being sent via hand delivery from Indianapolis to Chicago.
Wherefore, Plaintiffs ask leave to file the enclosed statement.
Respectfully submitted,
__________________
Robbin Stewart.
227 N. Temple Avenue
Indianapolis
Yahoo, without warning, deleted groups.yahoo.com/group/majorsvabell.
The seventh circuit has rejected our statement of position following the Indiana Supreme Court's opinion on the certified question.
So this is a new place to post such documents.
The seventh circuit has rejected our statement of position following the Indiana Supreme Court's opinion on the certified question.
So this is a new place to post such documents.
