The Fund For Louisiana's Future v. Louisiana Board of Ethics et al
Filing
32
ORDER & REASONS denying 20 Motion to Dismiss for Failure to State a Claim; Motion to Dismiss for Lack of Jurisdiction; and Motion to Change Venue. Signed by Judge Martin L.C. Feldman on 4/16/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE FUND FOR LOUISIANA'S FUTURE
CIVIL ACTION
v.
NO. 14-0368
LOUISIANA BOARD OF ETHICS, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the defendants' motion to dismiss or,
alternatively, transfer venue.
For the reasons that follow, the
motion is DENIED.
Background
This civil rights litigation arises out of a constitutional
challenge to a Louisiana campaign finance law that limits the
amount of money that may be contributed to, or accepted by,
political committees regardless of the committee's independence.
The Fund for Louisiana's Future is a political organization;
it is registered with the Federal Election Commission as a federal
independent expenditure-only committee, commonly referred to as a
"Super PAC", and with the Louisiana Supervisory Committee on
Campaign Finance Disclosure as a state "political committee." FFLF
was
established
by
Charles
R.
Spies
to
make
independent
expenditures in support of conservative candidates in federal,
state, and local elections in Louisiana, in the form of television,
radio, print, internet, and telephone advertisements. According to
1
Mr. Spies, FFLF does not and will not make contributions to, or
coordinated expenditures on behalf of, candidates or political
party committees; all decisions concerning expenditures of FFLF's
funds are made independent of any candidate, campaign, party
committee, or their agents.1
FFLF wants to solicit and accept
contributions in amounts greater than $100,000 per person so that
it can make independent expenditures to support Louisiana state and
local
candidates;
it
alleges
that
it
would
do
so
but
for
Louisiana's statutory prohibition on (and penalties for) soliciting
and accepting such contributions that exceed $100,000 every four
years.2
FFLF filed a complaint for declaratory and injunctive relief
against the Louisiana Board of Ethics and its members:
it seeks
(a) a declaration that the $100,000 contribution limit contained in
La.R.S. 18:1505.2(K) is unconstitutional as applied to committees
like FFLF that engage in independent expenditures only; and (b)
preliminary and permanent injunctions enjoining the defendants from
enforcing La.R.S. 18:1505.2(K) as applied to contributions to
political committees making only independent expenditures; and (c)
costs and attorneys' fees pursuant to 42 U.S.C. § 1988.
1
Defendants dispute FFLF's independence. At this stage
of the proceedings, the Court takes the plaintiff's allegations as
true.
2
FFLF alleges that, in fact, at least one prospective
donor, Donald T. Bollinger, wants to contribute at least $125,000,
but he cannot do so in light of Louisiana's contribution cap.
2
Campaign finance in Louisiana is governed by the Louisiana
Campaign Finance and Disclosure Act, La.R.S. 18:1481, et seq.
La.R.S. 18:1483(a)(i) defines "political committee" as
two or more persons, other than a husband and wife, and
any corporation organized for the primary purpose of
supporting or opposing one or more candidates,
propositions, recalls of a public officer, or political
parties, which accepts contributions in the name of the
committee, or makes expenditures from committee funds or
in the name of the committee, or makes a transfer of
funds to or receives a transfer of funds from another
committee, or receives or makes loans in an aggregate
amount in excess of five hundred dollars within any
calendar year....
A "contribution" means
a gift, conveyance, payment or deposit of money or
anything of value, or the forgiveness of a loan or of a
debt, made for the purpose of supporting, opposing, or
otherwise influencing the nomination or election of a
person to public office, for the purpose of supporting or
opposing a proposition or question submitted to the
voters, or for the purpose of supporting or opposing the
recall of a public officer, whether made before or after
the election.
La.R.S.
18:1483(6)(a).
Under
La.R.S.
18:1483(6)(b)(i),
"expenditures made by any person in cooperation, consultation or
concert, with, or at the request or suggestion of, a candidate, his
authorized
political
committees,
or
their
agents...shall
considered to be a contribution to such candidate."
be
(The Act does
not define "independent expenditure" and fails to include an
exception for political committees that make only independent
expenditures.)
La.R.S. 18:1505.2(K), entitled "Contributions; expenditures;
3
certain prohibitions and limitations", the target of plaintiff's
constitutional challenge, provides:
K. (1) During any four year calendar period commencing
January 1, 1991 and every fourth year thereafter, no
person shall contribute more than one hundred thousand
dollars to any political committee or any subsidiary
committee of such political committee, other than the
principal or any subsidiary committee of a candidate.
Such limitation on a contribution shall not apply to any
contribution from a national political committee to an
affiliated regional or state political committee.
(2) During the time period provided for in Paragraph (1)
of this Subsection, no political committee or subsidiary
of such political committee, other than the principal any
subsidiary committee of a candidate, shall accept more
than one hundred thousand dollars from any person.
A violation of the contribution limits carries with it penalties up
to $1,000 per violation.
La.R.S. 18:1505.5(B)(5).
The Louisiana Board of Ethics for Elected Officials acts as
the Supervisory Committee on Campaign Finance Disclosure; it is the
state agency responsible for administrative and enforcement of the
Louisiana Campaign Finance and Disclosure Act. La.R.S. 18:1511.1
provides:
A.
The Supervisory Committee on Campaign Finance
Disclosure is established.
The Board of Ethics, as
established in R.S. 42:1132, shall function as the
supervisory committee to administer and enforce the
provisions of this Chapter and the rules, regulations,
and orders issued hereunder. The members of the Board of
Ethics shall constitute the supervisory committee.
...
C. The members of the supervisory committee shall be
immune from any civil liability for any official action
taken in the exercise of their functions pursuant to or
in connection with the provisions of this Chapter, except
any wrongful and malicious act or gross negligence.
To enable it to investigate alleged violations effectively and
4
enforce compliance with the Act's provisions, the Board has the
authority to "hold hearings, to subpoena witnesses, administer
oaths, compel the production of books, records, and papers, public
and private, require the submission under oath of written reports
or answers to questions." La.R.S. 18:1511.4(C)(1). The Board also
has
the
authority
18:1511.2(B).
information
to
render
advisory
opinions.
La.R.S.
And, the Board has the authority to "forward all
concerning
the
alleged
violation
to
the
district
attorney of the judicial district in which the alleged violation
has occurred who shall review such information and make such
investigation and initiate such prosecution as he shall deem
necessary."
La.R.S. 18:1511.6(A).
In light of La.R.S. 18:1505.2(K)'s contribution limit, FFLF
sought an advisory opinion from the Board pursuant to La.R.S.
42:1134
to
determine
the
extent
to
which
it
could
raise
contributions and make independent expenditures after Citizens
United v. Federal Election Commission, 558 U.S. 310 (2010) and its
progeny.
In addressing FFLF's request at its January 17, 2014
public meeting, the Board stated its intention to continue to apply
and
enforce
La.R.S.
18:1505.2(K).
Thereafter,
the
Board
"decline[d] to render an opinion regarding the constitutionality of
provisions of the Campaign Finance Disclosure Act."
On February 18, 2014 FFLF filed a complaint for declaratory
and injunctive relief against the Board and its members in their
5
official capacities, M. Blake Monrose, in his official capacity as
Chair of the Board; Julie E. Blewer, in her official capacity as
Vice Chair of the Board; Terry Backhaus, in his official capacity
as Board member; Charles Emile Bruneau, Jr., in his official
capacity as Board member; Jean Ingrassia, in her official capacity
as Board member; William J. Larzelere, Jr., in his official
capacity as Board member; Louis Leggio, in his official capacity as
Board member; Steve Lemke, in his official capacity as Board
member; Bob McAnelly, in his official capacity as Board member;
Ashley Kennedy Shelton, in her official capacity as Board member;
and Grove Stafford, in his official capacity as Board member. FFLF
seeks to enjoin the Board defendants' application and enforcement
of La.R.S. 18:1505.2(K), which bans contributions for independent
expenditures in excess of $100,000 every four years.
FFLF alleges
that, as applied to it, the Code's contribution limit serves no
legitimate governmental interest and is neither narrowly tailored
nor closely drawn to further such an interest, and therefore
violates
FFLF's
rights
to
freedom
of
speech
and
freedom
of
association under the First and Fourteenth Amendments to the U.S.
Constitution.
The defendants now seek to dismiss the plaintiff's complaint
for declaratory and injunctive relief pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(b)(6); defendants also request a stay
and alternatively seek to transfer this matter to the Middle
6
District of Louisiana.
I.
A.
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction.
Fed.R.Civ.P. 12(b)(1).
The defendants, the
Board and its members sued in their official capacities, challenge
this Court’s subject matter jurisdiction over them, invoking the
doctrine of sovereign immunity.
The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The
Court may find a plausible set of facts to support subject matter
jurisdiction
by
considering
any
of
the
following:
“(1)
the
complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.”
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996).
B.
The defendants also seek dismissal for failure to state a
claim under Rule 12(b)(6).
The standard of review applicable to
motions
Rule
to
dismiss
under
12(b)(1)
is
similar
to
that
applicable to motions to dismiss under Rule 12(b)(6). See Williams
v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)(observing that
the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but
7
noting that applying the Rule 12(b)(1) standard permits the Court
to consider a broader range of materials in resolving the motion).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
In considering a Rule 12(b)(6)
motion, the Court “accepts ‘all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.’” See Martin K.
Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464 (5th
Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)).
But, in deciding whether dismissal is warranted, the
Court will not accept conclusory allegations in the complaint as
true.
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Indeed, the Court must
first identify allegations that are conclusory and, thus, not
entitled to the assumption of truth.
662, 129 S.Ct. 1937, 1949 (2009).
Ashcroft v. Iqbal, 556 U.S.
A corollary: legal conclusions
“must be supported by factual allegations.” Id. at 1950.
Assuming
the veracity of the well-pleaded factual allegations, the Court
must then determine “whether they plausibly give rise to an
entitlement to relief.” Id.
8
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600,
603
(5th
Cir.
2009)(quoting
Iqbal,
(2009))(internal quotation marks omitted).
129
S.Ct.
at
1949
“Factual allegations
must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quotation marks, citations, and footnote
omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949
(“The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”). This is a
“context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id.
pleads
facts
that
are
merely
consistent
“Where a complaint
with
a
defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”
U.S.
at
557)(internal
quotations
Id. (citing Twombly, 550
omitted).
“[A]
plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’”, thus, “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
9
do.”
Twombly, 550 U.S. at 555 (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings” -- that is,
any documents attached to or incorporated in the plaintiffs’
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).
Also, the Court is permitted to
consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.
See United States ex rel. Willard v. Humana
Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003).
II.
The defendants advance a familiar litany of grounds for
dismissing the plaintiff's complaint. The Court first takes up the
threshold issues of subject matter jurisdiction and justiciability.
A.
Sovereign Immunity
The defendants contend that the Court lacks subject matter
jurisdiction based on Eleventh Amendment sovereign immunity.
The
Court disagrees.
"Sovereign immunity is the privilege of the sovereign not to
be sued without its consent."
Va. Office for Prot. & Advocacy v.
Stewart, --- U.S. ---, 131 S.Ct. 1632, 1637, 179 Led.2d 675 (2011).
The Eleventh Amendment to the U.S. Constitution bars suits by
10
private citizens against a state in federal court.
K.P. v.
LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)(citing Hutto v. Finney,
437 U.S. 678, 700 (1978)).
This immunity extends to protect state
actors who are acting in their official capacities. Id.
There is,
of course, a narrow exception to this immunity from suit: the Ex
parte Young exception, which “is based on the legal fiction that a
sovereign state cannot act unconstitutionally[; t]hus, where a
state actor enforces an unconstitutional law, he is stripped of his
official clothing and becomes a private person subject to suit.”
See id. (emphasis added)(citing Ex parte Young, 209 U.S. 123
(1908)); see also Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 n.10 (1989)(noting “[o]f course a state official in his or
her official capacity, when sued for injunctive relief, would be a
person
under
§
1983
because
‘official-capacity
actions
for
prospective relief are not treated as actions against the State’”).
Ex parte Young limits the plaintiff to prospective relief, and bars
money damages.
Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535
U.S. 635, 645 (2002).
The Ex parte Young exception applies and "state officers c[an]
be sued in federal court despite the Eleventh Amendment ... [if]
the officers have 'some connection with the enforcement of the act'
in question or [are] 'specially charged with the duty to enforce
the statute' and [are] threatening to exercise that duty."
See
Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014)(quoting
11
Okpalobi v. Foster, 244 F.3d 405, 414-415 (5th Cir. 2001)(en
banc)(quoting Ex parte Young, 209 U.S. at 157)).
"The required
'connection' is not 'merely the general duty to see that the laws
of the state are implemented,' but 'the particular duty to enforce
the statute in question and a demonstrated willingness to exercise
that duty.'"
Id. (citations omitted).
The defendants suggest that they neither have the ability to
enforce
the
statute
at
issue,
nor
willingness to enforce the statute.
frivolous.
Ex
parte
Young
have
they
demonstrated
a
Their argument borders on
applies.
It
is
clear
that
the
defendants are tasked with the particular duty to administer and
enforce La.R.S. 18:1505.2(K), the challenged statute.
18:1511.1
("The
Board
of
Ethics
...
shall
See La.R.S.
function
as
the
supervisory committee to administer and enforce the provisions of
this Chapter...."). It is equally clear, and the defendants do not
dispute, that FFLF specifically alleges that the Board made clear
during its January 17 public meeting that it intends to continue to
apply La.R.S. 18:1505.2(K) to limit contributions to political
committees
like
expenditures.
the
enforcement
FLFF
that
allegedly
make
only
independent
The defendants have the requisite connection with
of
the
contribution
limitation
necessary
to
establish the applicability of the Ex parte Young exception to
their sovereign immunity; the Board and its members therefore do
12
not enjoy sovereign immunity from suit.3
B.
Article III
"Article
III
of
the
Constitution
limits
federal
jurisdiction to certain 'Cases' and 'Controversies.'"
courts'
Clapper v.
Amnesty Int'l USA, --- U.S. ---, 133 S.Ct. 1138, 1146, 185 Led.2d
264 (2013).
The plaintiff bears the burden of establishing
standing and ripeness under Article III.
DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 (2006); Miss. State Democratic Party v.
Barbour, 529 F.3d 538, 545 (5th Cir. 2008).
1.
Standing
To resolve the next threshold issue, the Court must be
satisfied
that
the
contribution limit.
plaintiff
has
standing
to
challenge
the
The Court finds that it does.
"One element of the case-or-controversy requirement" commands
that a litigant must have standing to invoke the power of a federal
court. See Clapper, 133 S.Ct. at 1146 (citation omitted); see also
Nat’l Fed’n of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202,
208 (5th Cir. 2011).
The doctrine of standing requires that the
Court satisfy itself that “the plaintiff has ‘alleged such a
3
The defendants advance a separate, even weaker, argument
in which they invoke "federal immunity." To the extent that the
Court understands the defendants' argument, the fact that Ex parte
Young applies, and that the plaintiff requests declaratory relief,
seems to be dispositve of the defendants' suggestion that they
enjoy immunity from being enjoined from taking action that is not
otherwise the subject of a declaratory judgment.
13
personal stake in the outcome of the controversy’ as to warrant his
invocation of federal-court jurisdiction.”
See Summers v. Earth
Island Institute, 555 U.S. 488, 493 (2009); see also Doe v.
Beaumont Indep. Sch. Dist., 240 F.3d 462, 466 (5th Cir. 2001)(citing
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975)).
“Standing to sue must be proven, not merely asserted, in
order to provide a concrete case or controversy and to confine the
courts’ rulings within our proper judicial sphere.”
Doe v.
Tangipahoa Parish School Bd., 494 F.3d 494, 499 (5th Cir. 2007)
(noting that “[n]o amount of creative inferences from the pretrial
order or ‘stipulations’ can overcome [the necessary proof in the
record required to show standing]” and that the Board’s failure to
contest standing cannot create jurisdiction because standing is not
subject to waiver by the parties).
The plaintiff must demonstrate the “irreducible constitutional
minimum of standing”, which is informed by three elements: (1) that
it personally suffered some actual or threatened “injury in fact”
(2)
that is “fairly traceable” to the challenged action of the
defendants; (3) that likely “would be redressed” by a favorable
decision in Court.
555,
560-61,
112
See Lujan v. Defenders of Wildlife, 504 U.S.
S.Ct.
2130,
119
4
L.Ed.2d
351
(1992).4
The
The actual injury requirement ensures that issues will
be resolved “not in the rarified atmosphere of a debating society,
but in a concrete factual context.” Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc., 454
U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
14
defendants challenge FFLF's ability to satisfy the first and second
requirements:
the
defendants
insist
that
FFLF's
injury
is
speculative and the Board has taken no action to deprive FFLF of
its free speech rights.
The defendants misconstrue the standing
calculus in the First Amendment context.
With respect to injury-in-fact, the defendants' arguments
ignore case literature applicable to the pre-enforcement challenge
context present here. “The loss of First Amendment freedoms,” the
Fifth
Circuit
instructs,
“for
even
minimal
unquestionably constitutes irreparable injury.”
periods
of
time,
Croft v. Governor
of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976)). One who is challenging a statute
“must demonstrate a realistic danger of sustaining a direct injury
as a result of the statute’s operation or enforcement[;] . . . one
does not have to await the consummation of threatened injury to
obtain preventive relief.”
Babbit v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979).
for self-censorship.
FFLF draws attention to the need
In the freedom of speech context, a harm of
“self-censorship . . . can be realized even without an actual
prosecution.”
Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S.
383, 393 (1988)(citations omitted).5 “Chilling a plaintiff’s speech
5
It is also worth noting that, in the First Amendment
context, there is an exception to the usual rule that a party may
assert only a violation of his own rights: "'[l]itigants ... are
permitted to challenge a statute not because their own rights of
free expression are violated, but because of a judicial prediction
15
is a constitutional harm adequate to satisfy the injury-in-fact
requirement.” Houston Chronicle Publ’g Co. v. City of League City,
Texas, 488 F.3d 613, 618 (5th Cir. 2007).
“A credible threat of
present or future prosecution is an injury sufficient to confer
standing, even if there is no history of past enforcement.” Rangra
v. Brown, 566 F.3d 515, 519 (5th Cir. 2009).
Fifth Circuit
literature on this point takes a generous view.
The phrase
“credible threat of prosecution is quite forgiving.
When dealing
with statutes that facially restrict expressive activity by the
class to which the plaintiff belongs, courts will assume a credible
threat
of
evidence.”
prosecution
in
the
absence
of
compelling
contrary
Id.
The Court is satisfied that the plaintiff has met its Article
III burden; FFLF has alleged a personal stake in the outcome of
this litigation that is traceable to defendants and would be
redressed by a favorable decision in Court.
First, the plaintiff
alleges an injury that is concrete and actual or imminent, not
hypothetical.
Lujan, 504 U.S. at 560.
The plaintiff alleges that
its free speech rights have been infringed.
FFLF desires to
solicit and accept contributions in amounts greater than $100,000
for the purpose of making independent expenditures to support
or assumption that the statute's very existence may cause others
not before the court to refrain from constitutionally protected
speech or expression." Virginia v. Am. Booksellers Ass'n, Inc.,
484 U.S. 383 (1988)(citations omitted).
16
Louisiana candidates.
that
a
specific
More specifically, the plaintiff submits
prospective
donor,
Donald
Bollinger,
would
contribute to FFLF (and FFLF would accept) a $125,000 contribution
but both Bollinger and FFLF have declined to take such action to
avoid being subjected to criminal and civil penalties; FFLF alleges
that the election law restriction violates its First Amendment
rights, and compliance forces self-censorship. With respect to the
threat of enforcement action, the plaintiff points to statements
made by Chairman Monrose during the January 7, 2014 meeting of the
Board of Ethics addressing FFLF's request for advisory opinion, in
which Monrose stated:
The law is utterly clear. And the law I'm talking about
that is utterly clear is La.R.S. 18:1505.2(K). That is
what my legislature, the legislature of the state I am
in, and the Board of Ethics that I'm sitting in enacted.
That is the law that they told us as the Board of Ethics
to apply ... I believe that we need to apply the law ...
I am going to apply it as written ... I'm just going to
apply it as written until I am told that I should not do
so.
The plaintiff has "alleged an actual and well-founded fear that the
law will be enforced against" it. See Am. Booksellers Ass'n, Inc.,
484 U.S. at 393.
Second, the plaintiff alleges that the First Amendment injury
is directly caused by Louisiana election law and the defendants'
enforcement power. La.R.S. 18:1505.2(K), the challenged provision,
bars persons from contributing, and political committees like FFLF
from accepting, contributions exceeding $100,000 every four years.
17
The
campaign
finance
law
charges
compliance with La.R.S. 18:1505.2(K).
defendants
with
enforcing
And, plaintiff submits, the
Board has stated that it must apply and enforce the law -- which
contains no explicit exception for contributions to independent
expenditure committees -- as it is written.
This places the
defendants among those who contribute to the plaintiff’s claimed
harm;
thus,
the
plaintiff’s
injuries
are
traceable
to
the
defendants’ conduct.
Third, and finally, FFLF alleges that the injury to its free
speech rights would be redressed by the requested injunction, which
would comport Louisiana election law with constitutional mandates
and U.S. Supreme Court rulings.
Assuming that FFLF demonstrates
that it is indeed an independent expenditure-only committee, a
favorable
ruling
by
this
Court
would
enjoin
the
Board
from
enforcing the contribution limit, thereby permitting FFLF to accept
contributions from donors like Bollinger in amounts greater than
$100,000; a favorable ruling would thus permit FFLF to carry out
its desired speech acts without fear that the Board would initiate
an enforcement proceeding.
2.
Ripeness
Taking up another justiciability doctrine that is closely
related to standing, the defendants advance arguments consistent
with
their
standing
objection
in
the
context
of
this
pre-
enforcement challenge to Louisiana's election law: they contend
18
that this case is not ripe because there is no actual controversy;
defendants suggest that because the CFDA provisions have not been
applied to FFLF, "[t]he situation presented by this case is purely
hypothetical."
The Court disagrees.
"The 'basic rationale [behind the ripeness doctrine] is to
prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements.'"
Roark &
Hardee LP v. City of Austin, 522 F.3d 533, 544 (quoting Abbott
Labs.
v.
Gardner,
387
U.S.
136,
148
(1967)).
The
two
key
considerations for a ripeness determination are “the fitness of the
issues for judicial decision and the hardship to the parties of
withholding court consideration.”
Roark & Hardee LP v. City of
Austin, 522 F.3d 533, 545 (5th Cir. 2008).
“A case is generally
ripe if any remaining questions are purely legal ones . . . .”
This case is ripe for adjudication.
Id.
The issues presented to
this Court are “purely legal” and “further factual development of
the issues” would not aid the Court in its determination. See Ohio
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998).
FFLF
challenges the constitutionality of La.R.S. 18:1505.2(K) as applied
to independent expenditure only committees; FFLF sued the Board of
Ethics and its members, who are tasked with enforcing Louisiana's
election law.
FFLF seeks a declaration that La.R.S. 18:1505.2(K)
as applied to independent expenditure-only committees like FFLF is
unconstitutional, and requests that the Court declare as such
19
and
enjoin the Board from enforcing this financial limit on FFLF.
To
resolve this substantive legal issue, the Court need only inquire
whether La.R.S. 18:1505.2(K) passes constitutional muster.
This
matter is fit for judicial decision; indeed, the Court "would be in
no better position to adjudicate the issues in the future than it
is now."
And
See Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010).
the
plaintiff
has
asserted
injuries
sufficient
to
establish hardship if the Court delays adjudication. See Thomas v.
Union
Carbide
Agric.
Products
Co.,
473
U.S.
568,
581
(1985)(requiring a regulated party "to proceed without knowing
whether
the
considerable
[statute]
is
valid
hardship.").
As
would
the
impose
Court
a
palpable
previously
and
observed:
“[t]he loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.”
Cf.
Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009)
(citation omitted).
FFLF's dilemma between, on the one hand,
choosing to continue to self-censor itself by complying with the
challenged provision, or, on the other hand, accepting donations
exceeding the $100,000 limit, reporting them in compliance with the
Act, and facing enforcement proceedings and accompanying penalties.
Even
if
FFLF
chooses
to
risk
enforcement
proceedings,
those
proceedings would not resolve the federal constitutional issue
presented to the Court.
600,
604
(D.C.
Cir.
See Chamber of Commerce v. FEC, 69 F.3d
1995).
The
20
plaintiff
has
asserted
the
hardship.6
requisite
The
constitutional
validity
of
La.R.S.
18:1505.2(K) is ripe.
III.
Because
the
Court
has
jurisdiction,
the
plaintiff
has
standing, and the matter is ripe for judicial review, the Court
turns to the defendants’ remaining arguments: that the plaintiff's
claim is technically insufficient to state a claim, that abstention
is appropriate, and that venue is improper or inconvenient.
A.
The defendants seek dismissal of the plaintiff's complaint for
declaratory and injunctive relief on the ground that FFLF fails to
state a claim for relief. The defendants urge the Court to dismiss
FFLF's lawsuit because the plaintiff has not demonstrated that it
is an independent expenditure political committee.
The defendants
miss the mark and ignore the clear instructions of Twombly and
Iqbal.
FFLF quite directly alleges that it "is an independent
expenditure-only political action committee" that "does not and
will not make contributions to, or coordinated expenditures on
behalf of, candidates or political party committees", and that
6
Because a violation of the contribution limits carries
with it a penalty of up to $1,000 per violation, La.R.S.
15:18505.5(B)(5), defendants suggest in their papers that the
$1,000 sanction levied against FFLF or Mr. Bollinger would simply
reduce the desired contribution of $125,000 to $124,000. Arguments
like this compel the Court to remind counsel of their professional
obligations under Rule 11 of the Rules of Civil Procedure and 28
U.S.C. § 1927.
21
"[a]ll decisions concerning expenditures of FFLF's funds are made
independent of any candidate, campaign, party committee, or their
agents." Further, FFLF alleges that at least one named prospective
donor would make, and it would accept, a contribution above
Louisiana's contribution limit "but for Louisiana's prohibition on
soliciting and accepting contributions and the penalties for doing
so."
These
allegations
include
"sufficient
factual
matter,
accepted as true, to state a claim to relief that is plausible on
its
face.’”
Gonzalez
v.
Kay,
577
F.3d
600,
603
(5th
Cir.
2009)(quoting Iqbal, 129 S.Ct. at 1949 (2009))(internal quotation
marks omitted);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (“Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the
allegations
in
the
complaint
are
true
(even
if
doubtful
in
fact).”).
Notably, the defendants do not dispute that truly independent
expenditure committees qualify for a free speech safe harbor such
that,
assuming
FFLF
proves
its
allegations
that
it
is
an
independent expenditure-only committee, Louisiana's prohibitory
limit
on
contributions
to
such
independent
withstand First Amendment scrutiny.
committees
cannot
See, e.g., Citizens United v.
FEC, 558 U.S. 310, 357 (2010)("independent expenditures...do not
give rise to corruption or the appearance of corruption"); Ariz.
Free Enter. Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806,
22
2826-27 (2011)(noting that, with independent expenditures, "[t]he
candidate-funding circuit is broken," thereby "negat[ing] the
possibility that [the] expenditures will result in the sort of quid
pro quo corruption with which our case law is concerned"); see also
SpeechNow.org v. FEC, 599 F.3d 686, (D.C.Cir. 2010)(holding that
provision
limiting
contributions
by
individuals
to
political
committees that made only independent expenditures violated the
First Amendment).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949. At this stage, to survive a Rule
12(b)(6) challenge to the technical sufficiency of its allegations,
FFLF
must
simply
state,
not
prove,
its
claim.
Thus,
the
defendants' arguments concerning whether or not FFLF is independent
are better directed to a merits inquiry. “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
B.
The defendants would hope that the Court can be persuaded to
abstain under Burford or Younger.
But the Court is not presented
with extraordinary circumstances warranting abstention.
Federal courts have a "virtually unflagging obligation ... to
23
exercise the jurisdiction given them."
Colorado River Water
Conservation
424
Dist.
v.
United
States,
U.S.
800,
817
(1976)(abstention is an extraordinary and narrow exception to the
court's duty to adjudicate a controversy properly before it).
Burford abstention may be appropriate when the case involves
unsettled state law and federal adjudication would disrupt a
state's effort to establish a coherent administrative policy in
areas that are traditionally subject to state regulation.
v. Sun Oil Co., 319 U.S. 315, 318 (1943).
Burford
The defendants submit
that the Court should be reluctant to intrude into the complex
state regulatory system governing campaign finance.
But the
defendants fail to show that sufficient state court review is
available, or that a special case is presented here, where the
Court
is
confronted
with
a
discrete
constitutional
issue,
implicating federal constitutional rights, that is not entangled in
a state regulatory process.
This case presents a question of
federal law; no unsettled issues of state law are implicated.
Defendants couple this argument with Younger
abstention.
Younger v. Harris, 401 U.S. 37 (1971). "When there is a parallel,
pending state criminal proceeding [or state civil proceedings akin
to criminal prosecutions]," the Supreme Court has explained Younger
abstention, "federal courts must refrain from enjoining the state
prosecution."
Spring Communications, Inc. v. Jacobs, 134 S.Ct.
584, 588 (2013). Three factors must be met in order for the Younger
24
abstention doctrine to apply: “(1) the dispute must involve an
‘ongoing
state
interest
in
judicial
the
subject
proceeding,’
matter
of
(2)
an
important
the
proceeding
state
must
be
implicated, and (3) there should be an ‘adequate opportunity in the
state proceeding to raise constitutional challenges.’” Wightman v.
Tex. Supreme Ct., 84 F.3d 188, 189 (5th Cir. 1996)(citations
omitted).
Younger abstention is not warranted here.
presents no exceptional circumstances.
This case
Furthermore, there is no
ongoing state proceeding and, even assuming an important state
interest (in the federal constitutional issue raised here), the
defendants fail to even suggest what opportunity the plaintiff has
to raise its federal constitutional challenge.
C.
Defendants next seek the shelter of venue and dismiss the
Eastern District as inconvenient.
But because the plaintiff has
carried its burden to establish proper venue, and because venue is
not "clearly more convenient" in the Middle District, the Court
disagrees.
Venue is governed by 28 U.S.C. § 1391(b), which provides that
a civil action may be brought in
(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated; or
(3) if there is no district in which an action may
25
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to
the court's personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b).
Plaintiff submits that venue is proper here
under § 1391(b)(2), because a substantial part of the events or
omissions giving rise to the claim occurred in the Eastern District
of Louisiana.
"When venue is challenged, the burden is on the
plaintiff to establish that the district he chose is a proper
venue."
Ross v. Digioia, No. 11-1827, 2012 WL 72703, at *2 (E.D.
La. Jan. 10, 2012) (citing Perez v. Pan Am. Life Ins. Co., 70 F.3d
1268 (5th Cir. 1995)(unpublished, per curiam)).
For purpose of a
Rule 12(b)(3) motion, the Court must accept as true all allegations
in
the
complaint
plaintiff.
and
resolve
all
conflicts
in
favor
of
the
Braspetro Oil Servs., Co. v. Modec (USA), Inc., 240 F.
App'x 612, 615 (5th Cir. 2007). Further, in deciding whether venue
is proper, the Court may look outside the complaint and its
attachments.
Amraco Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th
Cir. 2009).
The defendants contend that venue is improper and inconvenient
in this district and the case should be transferred to the Middle
District.
They submit that no acts were performed in the Eastern
District, that any argument that FFLF seeks to secure contributions
in the Eastern District is irrelevant, and that any infringement in
the form of an enforcement proceeding would occur in Baton Rouge,
26
the Middle District.
As to venue, FFLF counters:
22.
Venue is proper in this Court under 28 U.S.C. §
1391(b) because FFLF is located within this District,
FFLF's constitutional rights have been and continue to be
violated by Defendants in this District, and Defendants
the Board and Members of the Board reside in the State of
Louisiana.
FFLF contends that venue is proper in this District because a
substantial part of the events or omissions giving rise to its
claims occurred here; FFLF reminds that its principal place of
business is in the Eastern District, that Mr. Bollinger resides in
the Eastern District, that plaintiff's First Amendment rights have
been denied in the Eastern District due to its inability to accept
a contribution of $125,000 from Bollinger.
Plaintiff has met its burden at this stage to show that a
substantial part of the events giving rise to FFLF's claims
occurred in the Eastern District.
The defendants suggest that
plaintiff improperly focues only on where it is located and fails
to acknowledge where the defendants reside.
But the focus on the
venue provision invoked by plaintiff is on where a substantial part
of the events or omissions giving rise to the claim occurred; here,
uniquely in the context of pre-enforcement self-censorship, the
location of the plaintiff is relevant to the § 1391(b) inquiry.
Defendants ignore the reality here, which is that venue may be
proper in more than one District.
Turning to the defendants' argument of inconvenience, they
27
urge the Court to transfer this matter to the Middle District of
Louisiana.
The Court may transfer an action to a more convenient forum as
long as the transferee court is one in which the action could have
been initially brought. 28 U.S.C. § 1404(a)(“For the convenience of
parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division
where it might have been brought.”). Indeed, the Court has broad
discretion in determining whether to transfer a case pursuant to
§ 1404(a).
Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.
1998)(quoting Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916,
919 (5th Cir. 1987)). The plaintiff’s choice of forum places a
“good cause” burden on the defendant seeking transfer. In re
Vokswagen of America, Inc., 545 F.3d 304, 315 n.10 (5th Cir.
2008)(en banc)(“Volkswagen II”); In re TS Tech USA Corp., 551 F.3d
1315, 1320 (Fed. Cir. 2008). That means the moving party must show
that transfer is “clearly more convenient.” Volkswagen II, 545 F.3d
at 315.
The defendants have not done so.
The Court must determine whether defendants have demonstrated
that the Middle District of Louisiana is “clearly more convenient”
than the Eastern District of Louisiana.7
7
To do so, the Court
It is undisputed that this lawsuit could have been
brought in the Middle District of Louisiana; venue would be proper
there under § 1391(b)(1) because the defendants reside in the
Middle District. The parties dispute whether the Middle District
is a clearly more convenient venue than the Eastern District.
28
balances relevant private and public interest factors.
To weigh
the convenience of the two forums, the Fifth Circuit has observed,
the Court considers private interest factors such as:
(1)
(2)
(3)
(4)
the relative ease of access to sources of proof;
the availability of compulsory process to secure the
attendance of witnesses;
the cost of attendance for willing witnesses;
all other practical problems that make trial of a case,
easy, expeditious, and inexpensive;
as well as public interest factors such as:
(1)
(2)
(3)
(4)
the administrative difficulties flowing from court
congestion;
the local interest in having localized interests decided
at home;
the familiarity of the forum with the law that will
govern the case; and
the avoidance of unnecessary problems of conflict of laws
[or in] the application of foreign law.
Volkswagen II, 545 F.3d at 314.
Just as this list of factors is
not exhaustive, nor is any one factor of dispositive weight. Id.
Also, importantly, the plaintiff’s choice of venue is not a factor
in the analysis; rather, it informs the defendant’s burden in
proving that the transferee venue is “clearly more convenient” than
the transferor venue. Id. at 315.
While the defendants pick and
choose which factors they suggest favor transfer, the defendants'
argument is sparsely supported; they fall short of carrying their
burden to show that venue in the Middle District is clearly more
convenient in this case, which focuses a purely legal challenge;
the transferor and transferee districts are only 82 miles apart;
and most of the factors, to the extent they apply, are neutral.
29
Accordingly, the defendants' motion to dismiss or abstain or
transfer is DENIED.
New Orleans, Louisiana, April 16, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
30
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