Republican Party of New Mexico et al v. King et al

Filing 256

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson Denying in Part and Granting in Part Cross-Motions for Summary Judgment (Docs. 238 & 242). (cmm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
REPUBLICAN PARTY OF NEW MEXICO, et al.,
Plaintiffs,
vs.

No. 11-cv-900-WJ-KBM

HECTOR BALDERAS, in his official capacity, New
Mexico Attorney General; MAGGIE TOULOUSE
OLVER, in her official capacity, New Mexico
Secretary of State; and District Attorneys RAUL
TORREZ, GERALD BYERS, and DIANNA LUCE,
in their official capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING IN PART AND GRANTING IN PART
CROSS-MOTIONS FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court following the parties’ Cross-Motions for
Summary Judgment. See Docs. 238 & 242. Now eleven-years-old, this lawsuit challenges the
constitutionality of New Mexico’s campaign finance laws as codified in the Campaign Reporting
Act (“Campaign Reporting Act”), N.M. Stat. Ann. § 1-19-34.7 et seq.1 Having carefully reviewed
the pleadings and applicable law, the Court rules that (i) Plaintiffs have standing to assert all
claims, and that (ii) summary judgment is not appropriate for either party on the basis that there
are issues of fact that preclude the granting of any of the Cross-Motions for Summary Judgment
and neither party is clearly entitled to judgment as a matter of law.

1

The Campaign Reporting Act sets by law various political contribution limits and disclosure requirements and grants
the New Mexico Secretary of State the authority to promulgate rules to implement the Act. See N.M. Stat. § 1-1926.2; see also N.M.A.C. § 1.10.13.

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ANALYSIS
I.

Standing
Ten years ago, the Court relying only on the Complaint found that Plaintiffs had standing

to assert Counts I through V due to their justified fear of legal enforcement of the contributionlimit provisions. Republican Party of N.M. v. King, 850 F.Supp.2d 1206, 1211 (D.N.M. 2012).
The parties have since conducted voluminous discovery, and Plaintiffs have added Counts VI
through IX in the Third Amended Complaint. See Doc. 160. While Defendants do not contest
standing on Count I, the Court must determine, first, whether any relevant discovery—including
the parties’ depositions, interrogatories, and declarations—impacts the prior finding of standing
on Counts II through V. Second, the Court must ascertain whether Plaintiffs have standing on their
newly added claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (plaintiffs have
greater burden to establish standing at summary judgment than prior to discovery).
A. Legal Standard
Article III of the United States Constitution restricts the federal courts to the adjudication
of “Cases” or “Controversies.” U.S. Const. art. III, § 2. This principle requires Plaintiffs to
establish “standing,” which consists of three elements (as applied to each claim): (1) an injury-infact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)
(citations omitted). Defendants are New Mexico officials who have the authority to enforce the
Campaign Reporting Act. Declaratory and injunctive relief would redress Plaintiffs’ alleged harm
by allowing them to contribute beyond the Campaign Reporting Act’s limits, circulate certain ads
without fear of triggering the “independent expenditure” definition, and use unlimited funds to
finance “independent election activities.” Defendants thus do not dispute the second and third

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elements, and so the analysis below turns on whether Plaintiffs have alleged sufficient injuries in
fact for each count asserted.
In the First Amendment context, however, Plaintiffs “need not ‘expose [themselves] to
actual arrest or prosecution to be entitled to challenge a statute that [they] claim[ ] deters . . . [their]
constitutional rights.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1087–88 (10th Cir.
2006) (citation omitted). Therefore, in evaluating the injury in fact for each claim, the Court’s
essential inquiry is whether Plaintiffs maintain an “objectively justified fear of real consequences”
that produces a “chilling effect on [the Plaintiffs’] First Amendment rights.” Id. at 1088 (citations
and quotations omitted). One way in which Plaintiffs may satisfy this standard is by demonstrating:
(1) past engagement in the speech at issue; (2) a present desire to engage in such speech; and (3) a
plausible claim that they have no intention to do so because of a credible threat of enforcement.
Id. at 1089. Though evidence of “past engagement” is not always required, it lends concreteness
and specificity to a claim. Id. The Court now applies this standard to Counts II through IX.
B. Contributions from RNC to NM-GOP (Count II)
The Federal Election Campaign Act (“FECA”) allows national political parties to transfer
unlimited amounts of money to state political parties. 52 U.S.C. § 30116(a)(4); 11 C.F.R. §
102.6(a)(1)(ii). In Count II, Plaintiffs argue that N.M. Stat. §§ 1-19-34.7(A)(1), (C) & (E) of the
Campaign Reporting Act contradict this FECA provision by prohibiting the Republican Party of
New Mexico (“NM-GOP”) from soliciting or accepting contributions from a national political
party (specifically, the Republican National Committee (“RNC”)) in amounts greater than
$26,000. Thus, according to Plaintiffs, this prohibition violates the Supremacy Clause of the U.S.
Constitution.

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Under the “law of the case” doctrine, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.” United
States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quotation omitted); Kennedy v. Lubar,
273 F.3d 1293, 1298–99 (10th Cir. 2001) (“‘Law of the case rules have developed to maintain
consistency and avoid reconsideration of matters once decided during the course of a single
continuing lawsuit’ . . . [I]t is not uncommon for [an] ‘appellate court . . . [to] adhere [ ] to prior
rulings as the law of the case, at times despite substantial reservations as to the correctness of the
ruling.’”) (quotation omitted).
In granting the preliminary injunction, the Court concluded that Plaintiffs have Article III
standing to assert Count II due to their objectively justified fear of prosecution. Republican Party
of New Mexico v. King, 850 F.Supp.2d 1206, 1211 (D.N.M. 2012) (Doc. 38), aff’d 741 F.3d 1089
(10th Cir. 2013) (Doc. 57-1). Defendants appealed the granting of the preliminary injunction but
did not argue on appeal that the standing decision was error. The Tenth Circuit affirmed this
Court’s Memorandum Opinion and Order granting the preliminary injunction. Doc. 57-1. Based
on the Tenth Circuit’s affirmance, a few years thereafter, Defendants during a status conference
on December 2, 2016, went as far to agree that the Court should enter Judgment on this claim, an
agreement necessarily implicating Plaintiffs’ standing to assert Count II. See Doc. 79; Dobbs v.
Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1279–80 (10th Cir. 2010) (issue was necessarily
decided by implication during prior appeal). Yet, Defendants now take a contrary stance, arguing
that the RNC has never testified that it would have contributed to NM-GOP but for the limitations,
and that Plaintiffs thus have not suffered a concrete injury. Defendants, however, have presented
no intervening authority, new and different evidence, or clear error that would persuade the Court
to alter its prior ruling. Rimbert v. Eli Lilly Co., 647 F.3d 1247, 1251 (10th Cir. 2011). Therefore,

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pursuant to the “law of the case” doctrine, the Court concludes that its prior finding still governs,
and Plaintiffs therefore have standing to assert Count II.
C. Contributions from NM-GOP to Local Parties (Count III) and Candidates
(Counts IV & V)
NM-GOP’s contribution history reflects a concrete and specific intent to contribute
beyond the Campaign Reporting Act’s limits to candidates (Counts IV and V) as well as to local
parties (Count III). NM-GOP contributed $4,324.46 in 2012 to the Republican Party of Bernalillo
County and amounts varying from $500 to $1,000 ever since, including the 2020 election cycle.
See Doc. 246-9. As for its candidate contributions, NM-GOP prior to the Campaign Reporting
Act’s enactment contributed amounts greater than $5,000 (Doc. 117-3 at 3–6) and maxed out in
2016 by contributing $5,400 to “Keep Justice Nakamura.”2 Doc. 246-8 at 5–7. Combined with its
important role in New Mexico politics, NM-GOP’s history demonstrates a past engagement in
protected speech, a present desire to engage in such speech, and a plausible claim that they cannot
do so in fear of prosecution. See Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089
(10th Cir. 2006).
Defendants’ contrary arguments are unpersuasive. Defendants assert that Plaintiffs have
not consistently maxed out their contributions in recent history, nor have they specified who they
will contribute to in the future. According to Defendants, this warrants the conclusion that
Plaintiffs’ intent to contribute beyond the limits is insufficiently concrete. This argument, however,
fails to properly account for the nature of elections. Not all races are hotly contested or require
high levels of funding, and many candidates do not announce their candidacy until closer to the
applicable election day. Precisely the candidates and local party organizations requiring funding

2

For context, “Keep Justice Nakamura” was a campaign slogan recommending voters to retain now-retired State
Supreme Court Justice Judith Nakamura.

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and then how much funding they should receive are highly variable strategic decisions that
frequently are not made far in advance of election day. Doc. 123-7 at 3.
In other words, it’s not realistic to expect NM-GOP to contribute the maximum allowable
amount to specific local parties and candidates well ahead of every election.3 See McCutcheon v.
FEC, 572 U.S. 185, 194–95 (not questioning plaintiff’s standing when he averred an intent to
contribute beyond FECA’s limits, despite only having contributed half the allowable amount);
Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004) (finding plaintiff averred sufficient
intent to use bus by her past use and continuing need); FEC v. Wisconsin Right to Life, Inc., 551
U.S. 449, 462 (2007) (finding standing when reasonable expectation that same controversy would
arise in the future—when plaintiff had no way of predicting what future issues would lead it to run
particular ads).4
In sum, Plaintiffs have offered more than a “subjective chill,” Laird v. Tatum, 408 U.S. 1,
13–14 (1972); more than a “bare assertion that, as a result of government action, [they are]
discouraged from speaking . . .” Walker, 450 F.3d at 1089; and more than an abstract interest in
the Campaign Reporting Act’s constitutional validity. In fact, NM-GOP is one of the entities most
affected by the Campaign Reporting Act’s contribution limits because of its role as a major
political party in New Mexico. For these reasons, the Court stands by its original decision finding
that Plaintiffs have alleged an “objectively justified fear of real consequences” for violating the

3

Because of the Campaign Reporting Act’s contribution limits, NM-GOP provided non-monetary support to specific
candidates in the 2020 general election cycle; a representative stated: “it would have been great to be able to give more
to the candidates. However, we felt that being able to help in this manner was more beneficial because of the limits.”
Doc. 246-4 at 3–5.
4
For support, Defendants make two arguments. First, NM-GOP did not make any monetary contributions to
candidates in the 2020 election cycle and, second, Ryan Cangioloso (former NM-GOP chair) testified in April 2018
that “the resources [NM-GOP] ha[s] and the needs we have right now don’t allow for there to be an allocation to
specific candidates.” Doc. 122-18 at 3. While these points certainly cut against NM-GOP’s declaration that it is ready,
willing, and able to donate beyond the Campaign Reporting Act’s limits, they nevertheless comport with the Court’s
rationale above: that each election entails distinct and variable funding considerations.

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Campaign Reporting Act’s limits to candidates and local parties. Therefore, the Court concludes
that Plaintiffs have standing to assert Counts III through V. Crawford v. Marion County Election
Bd., 553 U.S. 181, 189 n.7 (2008) (where one petitioner had standing, “there is no need to decide
whether the other petitioners also have standing.”).
D. “Independent Expenditure” Definition Challenge (Counts VI, VII, and VIII)
Plaintiffs Right to Life Committee of New Mexico (“RTLCNM”) and Harvey Yates offer
two proposed ads to challenge the constitutionality of the “independent expenditure” definition in
the Campaign Reporting Act. See N.M. Stat. § 1-19-26(N).5 First, RTLCNM’s ad expresses
gratitude toward and includes the contact information for various New Mexico Senators that
furthered the anti-abortion movement. Doc. 149-10. Second, Plaintiff Yates’ ad explains retiring
Representative Brian Egolf’s participation in the purported travesty of New Mexico’s campaign
finance law, inviting readers to contact Yates with their disagreements. Doc. 149-11. Both omit
express language advocating the election or defeat of the mentioned politicians, and Plaintiffs
intended to circulate them within thirty days before a primary election or sixty days before a
general election.

5

N.M. Stat. § 1-19-26(N) defines an “independent expenditure” as an expenditure that is:
(1)

made by a person other than a candidate or campaign committee;

(2)

not a coordinated expenditure as defined in the Campaign Reporting Act; and

(3)

made to pay for an advertisement that:
a. expressly advocates the election or defeat of a clearly identified candidate
or the passage or defeat of a clearly identified ballot question [Count VIII];
b. is susceptible to no other reasonable interpretation than as an appeal to vote for
or against a clearly identified candidate or ballot question [Count VI]; or
c. refers to a clearly identified candidate or ballot question and is published and
disseminated to the relevant electorate in New Mexico within thirty days before the
primary election or sixty days before the general election at which the candidate or
ballot question is on the ballet [Count VII].

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Qualifying under the “independent expenditure” definition triggers costly registration and
disclosure requirements, and noncompliance with these requirements can result in a fine up to
$1,000 and/or one year of imprisonment. See N.M. Stat. § 1-19-36(A). Given these stakes,
Plaintiffs argue that three independent components of this definition—“appeal to vote” (Count
VI), “electioneering communication” (Count VII), and “expressly advocates” (Count VIII)—are
overbroad and vague. Plaintiffs’ fear of triggering these provisions prevents them from circulating
certain ads and chills them from engaging in materially similar future activity. Therefore, Plaintiffs
argue the provisions violate the First Amendment.
Again, Plaintiffs have established an objectively justified fear of prosecution. While the
Campaign Reporting Act’s independent expenditure definition is similar to the one set forth by the
Supreme Court,6 it is sufficiently distinct such that Plaintiffs have a colorable argument that the
disputed components are unconstitutionally vague and overbroad. Plaintiff Yates’ ad is couched
in terms of opinion, invites readers to disagree, and does not mention “voting,” “defeating,”
“rejecting,” or similar language. Likewise, Plaintiff RTLCNM’s ad is couched in terms of thanking
senators on both sides of the political aisle and, like Plaintiff Yates’ ad, does not use electionspecific language. Nevertheless, Defendants could subjectively interpret both as “advocating the
election . . . or defeat of . . . candidates,” being “an appeal to vote for or against a candidate,” and
constituting a “reference to a candidate.” N.M. Stat. § 1-19-26(N)(3)(a)–(c).
Defendants disagree for four primary reasons. At the outset, Defendants first argue that the
Court should not consider Plaintiffs’ detailed explanation of how their purported ads trigger these
provisions because Plaintiffs’ explanation appears for the first time in their reply brief. However,
Defendants are not being denied the opportunity to respond to Plaintiffs’ argument. Because the

6

The Supreme Court broadly defines an independent expenditure as “political speech presented to the electorate that
is not coordinated with a candidate.” Citizens United, 558 U.S. 310, 360 (20210).

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parties filed cross-motions and Defendants received the opportunity to respond to these arguments
in their subsequent reply brief, the Court can properly consider all arguments set forth by Plaintiffs.
Second, Defendants contend that Plaintiffs offer insufficient evidence to establish what, if
any, ads Plaintiffs Yates or RTLCNM wish to send in the future. Plaintiff Yates’ ad concerns a
retiring legislator, and a “bare assertion” that he wishes to engage in materially similar activity
cannot establish that the same controversy involving application of the challenged definitional
components will arise again. According to Defendants, this constitutes “too uncertain action”
under Tenth Circuit case law, and the Court lacks sufficient information to properly conduct a
balancing test. See Rio Grande Foundation v. City of Santa Fe, N.M., 7 F.4th 956, 961 n.2 (10th
Cir. 2021). The Court disagrees.
The ads offered by Plaintiffs Yates and RTLCNM are very similar to ads that were at issue
in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007). In that case, the plaintiff sought
to broadcast certain ads during a blackout period (thirty days before a Wisconsin primary election),
during which one could not broadcast “electioneering” communications. Id. at 458–60. The ads
encouraged Wisconsin voters to call and urge their U.S. Senators to oppose a filibuster delay tactic
to impede the confirmation of various judicial nominees. Id. Because of their content, the ads at
issue in Wisconsin Right to Life had the potential to be classified as illegal “electioneering
communications” under Federal Election Commission regulations, but the conclusion of the
relevant election had rendered them obsolete. Id. The Supreme Court nevertheless found standing
because there was a reasonable expectation that a similar controversy would arise going forward
and because the plaintiff had no way of predicting what other issues would prompt it to broadcast
ads in the future. Id. at 462–63. For similar reasons, this Court concludes that Plaintiffs Yates and

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RTLCNM have shown a reasonable probability that they would face a materially similar
controversy in the future.
Third, Defendants argue that both ads fall squarely within the “electioneering” provision
of the “independent expenditure” definition because they refer to a clearly identified candidate and
the ads would be published and disseminated within thirty days before a primary election, or sixty
days before a general election.7 Defendants thus assert that the ads’ “independent expenditure”
status does not turn on the challenged provisions of “express advocacy” or “appeals to vote.”
However, just because Plaintiffs’ ads clearly classify as “electioneering” communications does not
mean that they cannot also classify as “express advocacy” or “appeals to vote.” Defendants could
reasonably interpret all three challenged provisions of the “independent expenditure” definition to
subject Plaintiffs’ ads to the disclosure requirements.
Lastly, Defendants argue that Plaintiff RTLCNM’s past and future ads do not support
standing because they are sent by email at very little cost—well under the $1,000 minimum to
trigger the disclosure requirements. See N.M. Stat. §1-19-27.3. Even assuming Plaintiff RTLCNM
cannot trigger this minimum threshold, that would not undermine Plaintiff Yates’ separate standing
to also challenge the definitions. In other words, where one plaintiff has standing, “there is no need
to decide whether the other [plaintiffs] also have standing” on a certain count. Crawford v. Marion
County Election Bd., 553 U.S. 181, 189 n.7 (2008).
E. Limits on Independent Election Activity (Count IX)

7

Within the “independent expenditure” definition, an “electioneering” communication “refers to a clearly identified
candidate or ballot question and is published and disseminated to the relevant electorate in New Mexico within thirty
days before the primary election or sixty days before the general election at which the candidate or ballot question is
on the ballet.” N.M. Stat. § 1-19-26(N)(3)(c).

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In Count IX, Plaintiffs NM-GOP and New Mexico Turn Around (“NMTA”) argue that
N.M. Stat. § 1-19-34.7(I)8 unconstitutionally subjects contributions earmarked for “independent
election activities” and “administrative or overhead expenses associated with” independent
expenditures to the limitations set forth in N.M. Stat. § 1-19-34.7(A)(1), (C) & (E). Ultimately,
Plaintiffs wish to accept unlimited contributions for the purpose of financing the above-mentioned
activities and expenses, but cannot do so based on the wording in the Campaign Reporting Act.
Plaintiffs have met their burden to establish standing. Importantly, both NM-GOP and
NMTA have independent expenditure bank accounts9 and testify that they seek to use such funds
for “independent election activities” and “administrative or overhead expenses.” Specifically, NMGOP has administrative and overhead expenses related to these activities, and NMTA has
expressed an interest in sponsoring get-out-the-vote and voter registration events. However, the
Campaign Reporting Act—unlike its federal counterpart—does not expressly allow political
committees to pay for such expenses with an independent expenditure account capable of receiving
unlimited funds. Rather than dispute this fact, Defendants argue that New Mexico has the authority
to regulate in this manner. It follows that Plaintiffs have a colorable argument that they must resort
to their contribution account funds, thereby warranting an objectively justified fear of prosecution
for using their funds in the manner they seek.
Defendants counter with several unavailing arguments. First, NM-GOP only recently
created this independent expenditure account, and thus it cannot establish standing at the time it
filed the Third Amended Complaint. A NM-GOP representative, however, previously testified that
8

It reads: “The limitations on contributions to political committees provided for in Subsection A of this section shall
not apply to a political committee that makes only independent expenditures or to a contribution to a political
committee that is deposited in a segregated bank account that may only be used to make independent expenditures.”
N.M. Stat. Ann. § 1-19-34.7(I).
9
A “contribution account” is an account that is used to contribute directly to a political candidate running for office.
Because independent expenditures are not coordinated with political candidates, accounts holding independent
expenditures are often referred to as “non-contribution accounts.”

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it was in the process of opening such an account, and the Court deems that testimony sufficient to
support standing given NM-GOP’s role in New Mexico politics. Moreover, Defendants assert that
NM-GOP does not currently solicit such funds, nor does its current structure allow it to approve
expenditures without the direct involvement of someone also working with candidates. These
arguments advanced by Defendants do not overcome NM-GOP’s concrete intent to change its
practices in order to use its independent expenditure account to pay for these expenses.
Defendants also argue that NMTA lacks a concrete intent to engage in so-called
independent election activities because it has not previously done so. A plausible explanation for
this so-called lack of a concrete intent is that the disputed provisions of the Campaign Reporting
Act challenged in Count IX restrict NMTA from engaging in these activities in the first place.
That’s why Plaintiffs assert this claim. And as the Tenth Circuit has acknowledged, a history of
engagement in the disputed conduct is not always a requirement to establish a concrete intent,
though it does lend concreteness and specificity to the claim. Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1089 (10th Cir. 2006). Additionally, Defendants argue that NMTA has
only minimal expenses for both its contribution and independent expenditure accounts, and that it
cannot establish a fear of prosecution because it already pays for its administrative expenses from
its independent expenditure account. Assuming the truth of these assertions, this is insufficient to
overcome NMTA’s concrete desire to engage in independent election activities, which the
Campaign Reporting Act plausibly regulates.
Lastly, Defendants argue that the Campaign Reporting Act’s contribution limits may not
apply to “independent election activities” because those activities are not “for the purpose of
supporting or opposing a ballot question or the nomination of a candidate.” N.M. Stat. Ann. § 119-26(H)(1). At the same time, however, Defendants argue throughout the pleadings that New

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Mexico may regulate such activities under its broader authority to limit political committee
contributions earmarked for independent expenditures. The Court agrees that whether the
Campaign Report Act limits such activities is not readily apparent, but Plaintiffs do not forfeit
standing for this initial uncertainty. Such arguments are better reserved for decision on the merits.
II.

Merits
Genuine issues of material fact preclude granting to either party summary judgment on the

merits of the pending claims. As a non-exhaustive list, the following disputes cannot be resolved
as a matter of law: whether Defendants’ citations establish a conjectural history of actual or
apparent quid pro quo corruption in New Mexico, whether New Mexico passed the Campaign
Reporting Act for the impermissible purpose of “leveling the playing field,” and whether there
exists a sufficient risk of corruption between NM-GOP and county parties and candidates.
Further, the parties do not appear to agree on the type of constitutional challenge being
made in this case. Plaintiffs ask the Court to declare the Act’s limits unconstitutional “as applied.”
(Doc. 236 at 9). Defendants instruct the Court on the law regarding “facial challenges.” (Doc.
242 at 51). A plaintiff may challenge the constitutionality of a statute on an as applied basis, on a
facial basis, or both. Because the legal analysis differs depending on the nature of the challenge,
and the Court should not reach the question of facial validity unless necessary, the Court cannot
resolve the claims in this case as a matter of law without further clarification from the parties. See
United States v. Supreme Ct. of New Mexico, 839 F.3d 888, 907–08 (10th Cir. 2016) (explaining
difference between “as applied” and “facial” challenges).
The Court denies summary judgment on the merits because of the existence of genuine
issues of material fact and because the Court cannot decide the case as a matter of law as presently
postured. Because the disputed issues cannot be resolved as a matter of law, the Court determines

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it necessary for this matter to proceed to a bench trial. Pursuant to Fed. R. Civ. P. 39(b), the Court
gives notice that it intends to conduct a trial of the merits on the written record in this case. The
Court proposes the following trial procedures:
(1) within 30 days after entry of the Court’s pretrial order, the parties may submit any
additional written or documentary evidence the parties want the Court to consider;
(2) within 14 days after the deadline for submission of additional evidence, the parties may
file written objections to any additional evidence submitted by another party;
(3) 30 days after the deadline for objections to additional evidence, the parties shall
simultaneously submit written closing arguments and Fed. R. Civ. P. 52 requested findings and
conclusions; and
(4) based on the written record, the parties’ written closing arguments, and the requested
findings and conclusions, the Court will then enter its Fed. R. Civ. P. 52 findings, conclusions, and
judgment in this matter.
If any party objects to the Court’s proposal for a bench trial on the written record or the
procedures set out above, the party may file objections within 30 days of entry of this
Memorandum Opinion and Order. The Court will then set a hearing to consider any objections
and to consider any suggestions by the parties on how the bench trial in this case should proceed.

CONCLUSION
For the reasons stated in Section I, IT IS ORDERED that Defendants’ Cross Motion for
Summary Judgment (Doc. 242) is hereby DENIED IN PART, and Plaintiffs have standing to
assert all nine Counts.

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For the reasons stated in Section II, IT IS FURTHER ORDERED that the Cross Motions
for Summary Judgment (Docs. 238 & 242) are both DENIED IN PART, and all nine Counts shall
proceed to a bench trial based on the existing written record. For this reason, it is FURTHER
ORDERED that within 30 days after entry of this Memorandum Opinion and Order, the parties
may file any written objections to the Court’s proposal to conduct a trial of the merits on the written
record in this case and they may offer suggestions on how the bench trial in this case should
proceed.

_______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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