Schickel et al v. Dilger et al

Filing 138

MEMORANDUM OPINION & ORDER: That Defs' motion to reconsider and amend order, or to stay enforcement of order 125 is DENIED. A permanent injunction enforcing the Court's prior Memorandum Opinion and Order shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 12/1/2017.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:15-cv-155 (WOB-JGW)
JOHN SCHICKEL, ET AL.
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

CRAIG C. DILGER, ET AL.

DEFENDANTS

This matter is before the Court on the motion to reconsider
and amend order, or to stay enforcement of order, by the Kentucky
Registry of Election Finance (“KREF”) defendants (Doc. 125), the
plaintiff’s response thereto (Doc. 130), and the defendants’ reply
brief (Doc. 135). The Court has reviewed this matter and concludes
that oral argument is unnecessary.
On June 6, 2017, this Court issued a Memorandum Opinion and
Order granting in part and denying in part the parties’ motions
for

summary

injunction.

judgment

and

(Doc. 122).

plaintiffs’

motion

for

a

permanent

The Court held, as relevant here, that

KRS 121.015(3)(b) is unconstitutional as viewpoint discrimination
in violation of the Equal Protection Clause.
is,

by

defining

“caucus

campaign

committee”

Id. at 6-9.
to

include

That
only

Democratic and Republican caucus campaign committees, the statute
prevents any other caucus campaign committees from enjoying the
higher contribution limits found in KRS 121.150(11).

Here, the KREF defendants argue that the Court improperly
found

that

“the

Democratic

and

Republican

political

parties

control caucus campaign committees.” (Doc. 125 at 3). In support,
defendants cite the Court’s statement that “KRS § 121.150(11)
allows two specific political parties to receive the highest
contributions:

executive

committees

campaign caucus committees.”

of

political

(Doc. 122 at 7).

parties

and

It is true that

caucus campaign committee are not “political parties,” and to that
extent the statement was inaccurate.
However, the Court did not make the “finding” that defendants
assert.

Nor would it have been necessary to the Court’s legal

conclusion, as defendants imply.
declares

the

121.015(3)(b))

definition
to

be

of

See Doc. 125 at 1 (“The Order

caucus

facially

campaign

committee

unconstitutional

based

(KRS

on

the

mistaken assumption that caucus campaign committees are controlled
by the Democratic and Republican parties.”) (emphasis added).
In
campaign

fact,

the

committees

Court
are

executive committees.

specifically
separate

from

(Id. at 9).

recognized
the

that

political

caucus

parties’

The Court held that this

distinction did not, however, “explain the exclusionary definition
found in subsection (3)(b).”

(Id.).

Nor did any such misapprehension determine the level of
scrutiny applied by the Court.
applied,

the

same

legal

But even if a lesser standard

conclusion
2

ensues

because

the

KREF

defendants have identified no state interest that is served by
limiting the definition of caucus campaign committees to those
labelled only Republican and Democratic.

The testimony cited in

plaintiffs’ opposition brief makes this abundantly clear.

See

Doc. 130 at 7.
Moreover, the fact that KRS § 121.015(3)(b) excludes all but
Republican and Democratic-labelled caucus campaign committees from
its definition aligns the statute squarely with one of the dangers
identified in Buckley: that “contribution restrictions could have
a severe impact on political dialogue if the limitations prevented
candidates and political committees from amassing the resources
necessary for effective advocacy.”

Buckley v. Valeo, 424 U.S. 1,

21 (1976).
This is exactly plaintiffs’ point here. Because this statute
includes only the committees identified with the two main political
parties, committees identified with any other political party are
unable to avail themselves of the higher contribution limits found
in KRS § 121.150(11).

Any such committees are thereby prevented

from raising campaign funds on a level playing field.
The

Court

“affiliated”

or

uses

the

term

“associated,”

“labelled”
in

above,

recognition

of

rather

than

defendants’

argument that these committees are independent bodies who are free
to donate their funds to candidates of any political persuasion.
The Court also notes that defendants have identified two instances
3

where

the

Republican-labelled

committees

have

donated

to

Independent candidates.
This, however, does not advance defendants’ cause.
reasonably

assumes

that

donors

give

their

money

to

One

campaign

committees with whom they have a political affinity, and further
that they assume their donations will be spent accordingly.

If

not, why label the caucus campaign committees with party names at
all?

Putting aside that rhetorical question, the Court concludes

that two instances of out-of-party candidate contributions do not
neutralize the facial unconstitutionality of the statute.
Further,

defendants’

suggestion

that

this

constitutional

infirmity might be remedied by simply labelling the caucus campaign
committees “majority” and “minority” committees is fallacious.
Any citizen who is politically minded enough to donate their money
to a caucus campaign committee will know which of the two main
parties is in power at the time, and they will donate accordingly.
And this suggestion also assumes — like KRS § 121.015(3)(b) — that
only two political parties are in the caucus campaign ring.
Moving on, defendants also lament that invalidating KRS §
121.015(3)(b) while leaving KRS § 121.150(11) intact “creates a
significant

void

in

the

campaign

finance

legislature has the authority to fix.”
be true.

law

that

only

(Doc. 125 at 2).

the

That may

But KRS § 121.150(11) is not unconstitutional, and the

Court thus has no authority to strike or alter it.
4

Obviously,

then, the task falls to the Kentucky legislature to address these
issues and the others identified by this Court.
The Court further finds defendants’ request for a stay to be
unwarranted. Staying the effect of these rulings would irreparably
harm plaintiff Watson, who is running for office in 2018 and
states, understandably, that he needs to engage in fundraising
now.
Further,

defendants

may

immediately

appeal

this

Court’s

injunction to the United States Court of Appeals for the Sixth
Circuit.

This would not prohibit the Kentucky General Assembly

from acting in the meantime to address these issues.

Indeed, the

Court takes judicial notice that the legislature is scheduled to
convene

on

January

2,

2018,

in

the

very

near

future.

See

www.ballotpedia.org/Kentucky_General_Assembly.
The Court also rejects defendants’ argument that plaintiffs
failed

to

give

121.015(3)(b).

fair

notice

of

their

challenge

to

KRS

§

First, defendants only raise this argument for the

first time in their reply brief in support of the present motion
to amend.

(Doc. 135 at 4).

Second, plaintiffs explicitly argued

the unconstitutionality of KRS 121.015(3)(b) in their motion for
summary judgment and for permanent injunction (Doc. 63 at 34-35),
and the KREF defendants addressed it in their response (Doc. 67 at
19).

This argument is belated and without merit.

5

Finally,

a

word

about

the

permanent

injunction.

The

injunction entered concurrently herewith is drafted narrowly to
address only the unconstitutionality of KRS § 121.015(3)(b).

As

noted, KRS § 121.150(11) is not unconstitutional on its face, and
it is not addressed.

The Court also will not adopt plaintiff’s

suggestion to include an affirmative obligation for the KREF
defendants to allow alternate parties to create their own caucus
campaign committees.
1678,

1698-1700

See Sessions v. Morales-Santana, 137 S. Ct.
(2017)

(noting

that

nullification

of

unconstitutional statute that benefits one class is better course
in some circumstances than extending benefits to other class).
That matter, as noted, is for the Kentucky legislature.

Therefore, having reviewed this matter, and the Court being
sufficiently advised,
IT IS ORDERED that defendants’ motion to reconsider and amend
order, or to stay enforcement of order (Doc. 125) be, and is
hereby, DENIED. A permanent injunction enforcing the Court’s prior
Memorandum Opinion and Order shall enter concurrently herewith.
This 1st day of December, 2017.

6