MULHOLLAND v. MARION COUNTY ELECTION BOARD

Filing 26

ORDER - granting Defendant's 14 Motion to Dismiss *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 9/11/2013. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ZACHARY MULHOLLAND,

)
)
Plaintiff,
)
)
vs.
)
)
MARION COUNTY ELECTION BOARD, )
)
Defendant.
)

No. 1:12-cv-01502-SEB-MJD

ORDER GRANTING DEFENDANT’S MOTION TO DIMISS
This cause is before the Court on Defendant’s Motion to Dismiss [Docket No. 14],
filed on November 8, 2012. Plaintiff Zachary Mulholland brought this suit against
Defendant Marion County Election Board (“the Election Board”) alleging that the
Election Board violated his constitutional rights by enforcing Indiana Code § 3-14-12(a)(2) and (a)(3) (“the Slating Statute”) and seeking an injunction prohibiting the
Election Board both from enforcing the Slating Statute against him and from subpoenaing
him to a hearing before the Board to further investigate the matter. For the reasons
detailed below, we GRANT Defendant’s Motion to Dismiss.
Factual Background
On May 8, 2012, the day of the primary election in Marion County, Indiana, the
Election Board issued a determination that Mr. Mulholland, a candidate for local office,
had violated the Slating Statute1 by printing and distributing a campaign advertisement

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Indiana Code § 3-14-1-2 provides:

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containing a listing, with photographs, of a number of Democratic candidates (including
himself) who were running for various offices in the election.2 Having determined that
the slating materials prepared by Mr. Mulholland violated the Slating Statute, the Board

(a) A person who:
(1) prints, publishes, or distributes a slate during a primary election campaign without
authority from and:
(A) over the name of an organization of voters, including the name of the organization
and its officers; or
(B) if it is not an organized group of voters, over the names of at least ten (10) voters
in the political subdivision in which the primary election is being held;
together with the name of the printer who printed the slate;
(2) prints on a slate during a primary election campaign the name or number of a
candidate without the candidate’s written consent; or
(3) prints, publishes, or distributes a slate during a primary election campaign unless at
least five (5) days before it is printed and published the written consent of voters over
whose names it is published and the written consent of the candidates in whose behalf
it is distributed are filed in the office of the county election board where the election
is held;
commits a Class A misdemeanor.
(b) As used in this section, “slate” means a sample ballot, reproduction of an official ballot,
or a listing of candidates:
(1) having the names or number of more than one (1) candidate for nomination at a
primary election; and
(2) that expresses support for more than one (1) of the candidates set forth on the ballot
or list.
2
Mr. Mulholland apparently does not dispute that the election materials he submitted violated
the Slating Statute. However, Mr. Mulholland argues that the Slating Statute has already been
declared unconstitutional, and thus, cannot be enforced against him. In support of this
contention, Mr. Mulholland relies in part on our court’s decision in Ogden v. Marendt, 264 F.
Supp. 2d 785 (S.D. Ind. 2003), in which an action was brought against the Marion County
Election Board and the Indiana Election Commission in which the plaintiffs sought a declaration
that the Slating Statute was unconstitutional on the grounds that it infringed the First Amendment
rights of a candidate and an organization that wished to print lists of candidates that it endorsed
without seeking permission from the candidates. In that case, our court granted the plaintiffs
preliminary injunctive relief, finding that they had established a likelihood of success on their
claim that the statute was unconstitutional. Id. at 795. The parties in Ogden eventually reached a
settlement and agreed to a consent decree providing in relevant part that “I.C. § 3-14-1-2(a)(2)(3) is declared facially unconstitutional” and that the defendants “are permanently enjoined from
enforcing the provisions of I.C. § 3-14-1-2(a)(2)-(3) against Plaintiffs, their agents, campaign
committees, or anyone who might print, publish or distribute copies of ‘slates’ prepared by one
of the Plaintiffs.”

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authorized “both its special deputies and the Marion County Sheriff to assist the election
board to enforce [the Slating Statute] by confiscating any and all materials substantially
similar to the attached slate and returning the same to the Election Board.” Compl. Exh.
2.
On May 30, 2012, almost five months before the instant suit was initiated in our
court, Mr. Mulholland and his campaign committee filed suit in Marion Circuit Court to
challenge the Election Board’s May 8 Order and the seizure of his materials, and to seek
an injunction prohibiting the Board from enforcing the Slating Statute. See Zach
Mulholland, Hoosiers for Zachary Mulholland v. Marion County Election Board, Cause
No. 49D03-1205-PL-21680. Although filed in Marion Circuit Court, Mr. Mulholland’s
state court lawsuit currently pends in Marion Superior Court. On July 3, 2012, Mr.
Mulholland filed a motion for partial summary judgment in that action, which, to our
knowledge, has not yet been ruled upon because of a stay issued by the state court on
October 29, 2012.
On September 13, 2012, the Election Board issued an order scheduling a hearing
for December 5, 2012 to hear from all interested persons, including Mr. Mulholland,
concerning its May 8th order. The Board’s September 13th Order provided that “[s]taff
or counsel for the Marion County Election Board shall be and is hereby directed to issue
subpoenas to Zach Mulholland” concerning the May 8 election materials he submitted
and “any other matters relating to the applicable election laws.” Compl. Exh. 3. As
noted above, the state court lawsuit was ordered stayed on October 29, 2012 pending
further proceedings before the Election Board.
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Mr. Mulholland filed the instant lawsuit in our court on October 16, 2012,
advancing a parallel request for relief to that requested in his state court lawsuit and
additionally requesting that our court enjoin the Election Board from subpoenaing him to
the December 5 hearing and from taking “any adverse actions” against him based on
alleged violations of Indiana Code §§ 3-4-1-2(a)(2) and (a)(3). The Election Board filed
the motion to dismiss now before us on November 8, 2012, arguing that Mr.
Mulholland’s federal lawsuit should be dismissed based on the abstention doctrine set
forth by the Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). A few weeks after
filing its motion to dismiss, the Election Board voluntarily agreed to postpone the
December 5 hearing. These stop orders in the state court case have thus brought it to a
complete halt.
Legal Analysis
The Election Board argues that this case should be dismissed pursuant to the
Younger abstention doctrine under which “federal courts must abstain from taking
jurisdiction over federal constitutional claims that may interfere with ongoing state
proceedings.” Gakuba v. O’Brien, 711 F.3d 751, 753 (7th Cir. 2013) (citing SKS &
Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010)). The prototypical Younger case
“requires federal courts to abstain when a criminal defendant seeks a federal injunction to
block his state court prosecution on federal constitutional grounds.” SKS & Assocs., 619
F.3d at 678 (citing Younger, 401 U.S. at 53-54). The Younger doctrine has been extended

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in limited circumstances to civil proceedings,3 but only to federal suits “filed by a party
that is the target of state court or administrative proceedings in which the state’s interests
are so important that exercise of federal judicial power over those proceedings would
disregard the comity between the states and federal government.” Id. (citations omitted).
When the state proceeding is civil, federal courts are required “to abstain from
enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate important
state interests, and (3) offer an adequate opportunity for review of constitutional claims,
(4) so long as no extraordinary circumstances—like bias or harassment—exist which
auger against abstention.” Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998)
(citing Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 429
(1982)). It is clear that “the quasi-criminal prosecution of the violation of an ordinance
… is an adequate state proceeding for the purposes of Younger….” Forty One News, Inc.
v. County of Lake, 491 F.3d 662, 666 (7th Cir. 2007) (citations omitted).
Mr. Mulholland’s request that this Court enjoin the Election Board from
subpoenaing him to testify at an administrative hearing and from taking “any adverse
action” against him for his alleged violation of the Slating Statute interferes with both the
state administrative hearing as well as the state court lawsuit, both of which are judicial in
nature.4 Indiana law empowers the Election Board to subpoena witnesses to its hearing,

3

The Supreme Court extended the Younger doctrine in Ohio Civil Rights Commission v. Dayton
Christian Schools, Inc. to include quasi-judicial administrative proceedings because the same
state rights issues recognized in Younger were implicated. 477 U.S. 619, 628 (1986).
4
As noted above, the Election Board agreed to postpone the December 5, 2012 hearing after Mr.
Mulholland filed his federal lawsuit, but there has been no indication that the Board no longer
intends to hold the hearing on a date after the resolution of the instant motion to dismiss.

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which is held pursuant to Indiana law.5 As the Election Board argues, if the federal court
were to step in and determine which witnesses the Board could call at the investigatory
hearing, such action would clearly interfere with the ongoing state administrative
proceedings. Because such a determination directly affects what evidence and
information the Election Board and ultimately the state court is able to consider, Mr.
Mulholland essentially is asking the federal court to manage and oversee the state’s
administrative and judicial enforcement proceedings.
Mr. Mulholland’s arguments to the contrary are unavailing. He relies heavily on
the Seventh Circuit’s decision in Nader v. Keith, 385 F.3d 729 (7th Cir. 2004), in which
the court held that Younger abstention was not applicable because the plaintiff in the
federal suit was “not accused of having violated any state law, and the state ha[d] not
instituted any proceedings against him; he merely [was] pursuing parallel remedies” in
his state and federal suits. Id. at 732. Such is not the case here, however. Mr.
Mulholland is alleged to have violated a state statute, to wit, the Slating Statute, and the
Election Board’s May 8 Order constitutes an enforcement action, which in turn
precipitated Mulholland’s state court lawsuit. Mr. Mulholland seeks to have our court
enjoin the Election Board’s subpoena powers as well as prevent the Board from taking

Accordingly, the hearing is still pending for purposes of the Younger inquiry. Similarly,
although the state court lawsuit is currently stayed, “state proceedings are ‘ongoing’ for Younger
abstention purposes, notwithstanding the state court’s stay of proceedings,” Addiction
Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005), because the state
proceedings were pending at the time Mr. Mulholland filed his initial complaint in federal court.
5
The Election Board has the statutory authority to “subpoena persons and papers and compel the
witnesses to answer under oath any questions that properly come before the board.” IND. CODE §
3-6-5-27. Indiana law also requires the Election Board to make an investigation if there is a
substantial reason to believe an election law violation has occurred. IND. CODE § 3-6-5-31.

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“any adverse actions” against Mulholland, presumably including the enforcement or
defense of the Slating Statute as it applies to him. Thus, contrary to Mr. Mulholland’s
characterization of the situation, his federal lawsuit is not simply a parallel proceeding
with his state court lawsuit.
The injunction Mr. Mulholland seeks, if granted, would completely undermine the
ongoing state administrative and judicial proceedings, thereby creating a federal
alternative to the jurisdiction of the Indiana state courts to oversee the state’s
administrative process. Cf. Majors, 149 F.3d at 713 (“[A]llowing what in effect would be
a federal alternative to state appellate process would, besides disrupting and duplicating
an ongoing proceeding, cast doubt on the ability of state appellate courts to oversee their
trial courts.”) (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 598 (1975)). In short, Mr.
Mulholland’s federal lawsuit seeks to have this federal court tell the state court how to
supervise the state administrative body and its administrative processes. The Seventh
Circuit Court of Appeals has recognized that this type of federal oversight “implicates the
principles of equity, comity, and federalism that are the foundation for Younger
abstention.” SKS Assocs., 619 F.3d at 677-79.
Mr. Mulholland also contends that, even if the Election Board can show that his
federal lawsuit would improperly interfere with a state proceeding, it has failed to
establish that the state action “implicate[s] important state interests.” Schall v. Joyce, 885
F.2d 101, 106 (7th Cir. 1989). In determining whether the important state interest
requirement is met, courts must “not look narrowly to [the State’s] interest in the outcome
of the particular case …. Rather, what we look to is the importance of the generic
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proceedings to the State.” New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 365 (1989) (emphasis in original). Thus, “[i]n Younger, for
example, [the Supreme Court] did not consult California’s interest in prohibiting John
Harris from distributing handbills, but rather its interest in carrying out the important and
necessary task of enforcing its criminal laws.” Id. (citing Younger, 401 U.S. at 51-52)
(internal quotation marks omitted). In other words, “[t]he goal of Younger abstention is
to avoid federal court interference with uniquely state interests such as preservation of
these states’ peculiar statutes, schemes, and procedures.” AmerisourceBergen Corp. v.
Roden, 495 F.3d 1143, 1150 (9th Cir. 2007) (emphasis in original). We regard it as
beyond dispute that Indiana has an important interest in the regulation, enforcement, and
adjudication of its election laws through its own administrative and judicial processes.
Finally, Mr. Mulholland argues that this case falls within the “exceptional
circumstances” exception to the Younger doctrine. “[W]hen ‘(1) the state proceeding is
motivated by a desire to harass or is conducted in bad faith, (2) there is an extraordinarily
pressing need for immediate equitable relief, or (3) the challenged provision is flagrantly
and patently violative of express constitutional prohibitions,’ federal intervention in the
state proceeding is appropriate.” Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 664
(7th Cir. 2007) (quoting Jacobson v. Village of Northbrook Mun. Corp., 824 F.2d 567,
569-70 (7th Cir. 1987)). Mr. Mulholland argues that the Slating Statute is “flagrantly and
patently” violative of the Constitution, and that creates an exceptional circumstance
which renders abstention under Younger inappropriate.

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As noted above, the constitutionality of the Slating Statute was previously
addressed in a lawsuit captioned Paul Ogden and Indiana Right to Life Political Action
Committee v. Candance Marendt and others, No. 1:03-cv-00415-JDT-TAB (“the Ogden
Lawsuit”). In that case, our former colleague, Judge Tinder, granted the plaintiff’s
motion for a preliminary injunction to enjoin the enforcement of the Slating Statute on
First Amendment grounds. Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003).
The Ogden Lawsuit was eventually resolved through a consent judgment, in which the
parties stipulated that the Slating Statute was facially unconstitutional and that the
Election Board was permanently enjoined from enforcing the Slating Statute against the
plaintiffs in that case.
We disagree with Mr. Mulholland that the consent decree in the Ogden Lawsuit
thereby definitively established that the Slating Statute is “flagrantly and patently
violative of express constitutional prohibitions in every clause, sentence and paragraph
and in whatever manner and against whomever an effort may be made to apply it.”
Younger, 401 U.S. at 53-54 (internal quotation and citation omitted). The consent decree
entered into in the Ogden Lawsuit settled the issue only between the parties to that case,
and nothing indicates that their agreement was intended to reach beyond that dispute and
those parties. Although the consent decree indicates the parties stipulated that the Slating
Statute is facially unconstitutional, the permanent injunction prohibiting its enforcement
specifically referenced only the plaintiffs in the Ogden Lawsuit. Mr. Mulholland is free
to raise his arguments regarding the estoppel effect of the consent decree with the state
court, but we do not view that negotiated consent decree to constitute an “exceptional
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circumstance” within the contemplation of the Supreme Court’s holding in Younger to
warrant its remaining on our docket. Accordingly, having found for the reasons detailed
above that all of the Younger requirements have been satisfied and no exceptions to the
abstention doctrine apply, we GRANT Defendant’s Motion to Dismiss.
IT IS SO ORDERED.

09/11/2013
Date: ________________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
Kenneth J. Falk
ACLU OF INDIANA
[e-mail]
Alan S. Townsend
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Gregory Forrest Hahn
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Joel T. Nagle
BOSE MCKINNEY & EVANS, LLP
[e-mail]
David M. Brooks
BROOKS KOCH & SORG
[e-mail]

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