Strong et al v. The Tennessee Bureau of Ethics and Campaign Finance Registry of Election Finance et al

Filing 22

MEMORANDUM & ORDER: For the reasons discussed herein, this action is hereby STAYED pending resolution of ongoing state proceedings (In the Matter of Williamson Strong, No. C-15-01 (Tenn. Bureau of Ethics and Campaign Fin. filed Jul. 1. 2015)). Th e parties shall file a joint report with this court within 30 days of the final judgment in the ultimate administrative enforcement proceeding or state judicial proceeding to advise the court as to the status of this matter. Accordingly, the Motion to Dismiss (Docket No. 7) is hereby DENIED AS MOOT. It is so ORDERED. Enter this 2nd day of October 2015. Signed by District Judge Aleta A. Trauger on 10/2/15. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIAMSON STRONG, SARAH
BARNARD, JIM CHENEY, SUSAN
DRURY, KIM HENKE, and
JENNIFER SMITH,

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Plaintiffs,
v.
TENNESSEE BUREAU OF
ETHICS AND CAMPAIGN FINANCE,
REGISTRY OF ELECTION FINANCE;
and TOM LAWLESS, PATRICIA HEIM,
NORMA LESTER, and TOM MORTON,
in their official capacities as members of the
Tennessee Bureau of Ethics and Campaign
Finance, Registry of Election Finance,
Defendants.

Case No. 3:15-cv-0739
Judge Aleta A. Trauger

MEMORANDUM & ORDER
Pending before the court is a Motion to Dismiss (Docket No. 7) filed by the defendants
Tennessee Bureau of Ethics and Campaign Finance, Registry of Election Finance (the
“Registry”) and Tom Lawless, Patricia Heim, Norma Lester, and Tom Morton (“Registry
Members”), to which the plaintiffs have filed a Response in opposition (Docket No. 16), and the
defendants have filed a Reply (Docket No. 18). For the foregoing reasons, the case will be
stayed pending the resolution of ongoing proceedings in the State of Tennessee. Accordingly,
the Motion to Dismiss will be denied as moot.

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BACKGROUND

The plaintiffs, Sarah Barnard, Jim Cheney, Susan Drury, Kim Henke, and Jennifer Smith,
are all Tennessee citizens and parents of students enrolled in the Williamson County School
District who are associated with the unincorporated group, plaintiff Williamson Strong (“WS”).
WS has been involved in encouraging voting in school board elections and disseminating
information and facilitating discussion about school board candidates and election issues.
The Registry was created by the Tennessee legislature to enforce the Campaign Financial
Disclosure Act (TENN. CODE ANN. § 2-10-101, et seq.). The Registry Members comprise four of
the members of the Registry who were involved in Registry proceedings against the plaintiffs.
On June 2, 2015, the Registry assessed two Class 2 civil penalties against WS, in the
amount of $2,500 each, for violations of TENN. CODE ANN. §§ 2-10-(105)(e)(1) and 2-10105(c)(1). These statutes require political campaign committees to file statements with the
Registry and to certify a treasurer, respectively. In finding that WS is a political campaign
committee subject to these requirements, the Registry relied on TENN. CODE ANN. § 2-10102(12)(A), which defines a political campaign committee as, among other things,: “A
combination of two (2) or more individuals, including any political party governing body,
whether state or local, making expenditures, to support or oppose any candidate for public office
or measure, but does not include a voter registration program.”
On July 1, 2015, WS filed with the Registry a Petition for Review and Hearing Regarding
Order Assessing Civil Penalties. 1

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A copy of this filing is attached to the defendants’ Motion to Dismiss. (Docket No. 7, Ex. 3.)
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On that same day, the plaintiffs filed the instant action against the defendants, naming the
Registry Members in their official capacities only (the “Complaint”). (Docket No. 1.)
The Complaint contains claims for violations of the First Amendment of the United
States Constitution and Article 1, § 19 of the Tennessee Constitution and seeks injunctive and
declaratory relief, as well as damages and attorneys’ fees. Specifically, the Complaint challenges
the enforceability of TENN. CODE ANN. § 2-10-102(12)(A), which was relied upon by the
Registry in its assessment of civil penalties. The Complaint also alleges a series of procedural
violations and other misconduct on the part of the Registry Members in conducting the
proceedings against WS, including the allegation that “the Registry has taken action against
Plaintiffs because of the Registry members’ disapproval of the content of their speech.” 2
(Complaint ¶ 102.)

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The court notes that, despite these allegations, the plaintiffs have not named as defendants any
of the Registry Members in their individual capacities, nor have they pled any grounds for
holding the Registry liable for the alleged misconduct of the Registry Members that may exceed
the scope of their authority. The plaintiffs argue that the court should read the Complaint to
include individual capacity claims against the Registry Members named in their official
capacities, to the extent that they acted outside of the scope of their official authority as
Tennessee officials, citing the Sixth Circuit case Moore v. City of Harriman, 272 F.3d 769 (6th
Cir. 2001). In Moore, however, defendants were named in the caption without any specification
as to either individual or official capacity and without mention of their official titles, and the
complaint referenced them as “individual defendants,” “acting for themselves.” Here, by
contrast, the Registry Members are expressly named in the Complaint caption in their official
capacities only and, while the allegations within the Complaint suggest there may be individual
liability, it is not entirely clear from the Complaint that Plaintiffs intend to pursue individual
liability claims. The plaintiffs, therefore, may wish to amend their complaint to name any or all
of the Registry Members in their individual capacities, especially in light of potential Eleventh
Amendment sovereign immunity concerns raised by the defendants with respect to the plaintiffs’
official capacity claims.
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On July 30, 2015, the defendants filed the pending Motion to Dismiss (Docket No. 7) for
lack of jurisdiction and failure to state a claim, along with a supporting Memorandum (Docket
No. 8), arguing that the plaintiffs’ claims are subject to dismissal 1) under the doctrine of
abstention set forth in Younger v. Harris, 401 U.S. 37 (1971) 2) under Eleventh Amendment
principles of sovereign immunity with respect to the claims for violations of the U.S.
Constitution, and 3) for failure to state a claim and state law sovereign immunity regarding the
plaintiffs’ claims for violation of the Tennessee Constitution.
YOUNGER ABSTENTION
In Younger, the Supreme Court held that, absent extreme circumstances, federal courts
should not intervene to review constitutional challenges to state statutes brought by parties
subject to pending state criminal proceedings under those statutes. Younger, 401 U.S. at 54
(1971) (“[T]he possible unconstitutionality of a statute ‘on its face’ does not in itself justify an
injunction against good faith attempts to enforce it.”). The Supreme Court later extended the
Younger doctrine to apply where certain state civil and administrative enforcement proceedings
are pending in which the state is a party and they involve enforcement of state law. See
Middlesex Cnty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423 (1982) (applying
Younger abstention where there were pending state bar disciplinary proceedings and holding that
application of the doctrine is appropriate where there are ongoing civil proceedings that
implicate an important state interest and provide an adequate opportunity to raise constitutional
challenges); see also Danner v. Bd. of Prof’l Responsibility of the Tenn. Supreme Court, 277 F.
App’x 575, 578 (6th Cir. 2008) (same). “[I]t is sufficient under Middlesex that constitutional
claims may be raised in state-court judicial review of the administrative proceeding.” Ohio Civil
Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629 (1986) (holding that
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Younger abstention applies where Ohio Civil Rights Commission proceedings were pending at
the time the federal district court action was filed).
In this case, it is clear that the parties are subject to ongoing state administrative
enforcement proceedings such that the application of Younger abstention is warranted here. The
Registry has statutory authority to enforce state laws through proceedings that include hearings,
review of evidence, and the issuance of orders and assessment of civil penalties. 3 TENN. CODE
ANN. § 2-10-207. Proceedings before the Registry related to this action are necessarily ongoing
because, on the same date that this action was filed, the plaintiffs also filed a request with the
Registry for rehearing and review of the civil penalties assessed against them, and those
proceedings are currently pending. The Registry proceedings necessarily implicate important
state interests because they relate to the enforcement of Tennessee’s campaign finance laws. See
Fieger v. Cox, 524 F. 3d 770, 775 (6th Cir. 2008) (holding that the regulation of campaign
financing is an important state interest under Younger). Finally, the plaintiffs will have an

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The plaintiffs argue that the action pending before the Registry is not akin to a criminal
prosecution and therefore not the type of civil action that should be subject to Younger
abstention, however they cite no case law that suggests that a civil enforcement proceeding must
have all of the elements of a criminal proceeding in order for Younger to apply. (Docket No. 16
at p. 12.) In support of this argument, the plaintiffs cite only to Huffman v. Pursue, Ltd., 420
U.S. 592 (1975). In fact, however, the Huffman Court held that Younger applied where there
were pending state civil proceedings involving violations of the state nuisance statutes, without
suggesting that the proceedings mirrored a criminal prosecution, consistent with the rule as laid
out in Middlesex and Ohio Civil Rights Comm’n. Huffman, 420 U.S. at 604. The other
arguments raised by the plaintiffs address extraneous reasons why it is important for the court to
review this matter, rather than the legal standard for abstention under Younger. The court
acknowledges the significance of the plaintiffs’ claims but is not convinced that these concerns
impact the abstention analysis. The court is not declining to review the plaintiffs’ claims in this
action but, rather, simply staying the matter until there has been an opportunity for complete
review in state court as required by precedent.
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opportunity to have their constitutional claims heard in state court judicial proceedings if the
Registry upholds the civil penalties assessed against them. (See Docket No. 7, Ex. 2 (the “Order
Assessing Civil Penalties” against the plaintiffs, which states that “[a] person aggrieved by this
Order may obtain a contested case hearing” and noting that this may be done after the Registry
has issued a determination with respect to the plaintiffs’ request for reconsideration)); see also
TENN. CODE ANN. § 4-5-322 (“A person who is aggrieved by a final decision in a contested case
is entitled to judicial review under this chapter. . . .”); TENN. CODE ANN. § 2-10-209 (indicating
that judicial review is conducted in state chancery courts). 4
Moreover, the Sixth Circuit has previously held that Younger abstention is applicable in
cases where there are pending investigations by other state administrative entities that – like the
Registry – oversee enforcement of state election laws. See Citizens for a Strong Ohio v. Marsh,
123 F. App’x 630, 634 (6th Cir. 2005) (holding that Younger abstention applies to parties subject
to an ongoing investigation before the Ohio Election Commission and that such hearings are
“judicial in nature” because they include a review of evidence, a formal decision, and the
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Despite raising allegations of misconduct and violations of procedural rules by Registry
Members in carrying out the proceedings against the plaintiffs, the plaintiffs do not allege that
the exception to Younger abstention for bad faith prosecutions or harassment is applicable here.
The court notes that such an exception does not apply because it is reserved for extreme
situations where a plaintiff has demonstrated that he or she cannot obtain relief in any state court,
not for cases where – as here – the plaintiff has not yet even sought state court review. See
Tindall v. Wayne Cnty. Friend of the Court, 269 F.3d 533, 539 (6th Cir. 2001) (reversing a
district court’s finding that bad faith precluded Younger abstention where the state defendant had
failed to follow established procedures in proceedings against plaintiff and stating: “Although the
Supreme Court has recognized that bad-faith prosecution of an individual may serve as a proper
exception to the Younger abstention doctrine, we have found no Supreme Court case that has
ever authorized federal intervention under this exception. Such cases thus are exceedingly rare,
particularly where a plaintiff seeking to defeat an abstention argument has failed to avail himself
first of state appellate processes before seeking relief in federal court.”)
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opportunity to appeal in the Ohio State courts); N. Ky Right to Life Comm., Inc. v. Ky Registry of
Election Fin., 134 F.3d 371 (table), 1998 WL 13405, at *5 (6th Cir. Jan 7, 1998) (citing Ohio
Civil Rights Comm’n, 477 U.S. at 627) (holding that Younger abstention applies where there is a
pending investigation into violations of campaign finance laws by the Kentucky Registry of
Election Finance, which included hearings and discovery that will ultimately be referred to the
state attorney general and be subject to complete judicial review).
Accordingly, the court finds that Younger abstention applies to this action and will stay
the proceedings until the matter has been fully resolved in state court. The court will thus not
reach immunity and jurisdictional issues at this time, or any other grounds for dismissal raised by
the defendants. The court notes, however, that these issues may provide a basis for dismissal of
some or all of the plaintiffs’ claims, if and when this action returns to federal court.
CONCLUSION
For the reasons discussed herein, this action is hereby STAYED pending resolution of
ongoing state proceedings (In the Matter of Williamson Strong, No. C-15-01 (Tenn. Bureau of
Ethics and Campaign Fin. filed Jul. 1. 2015)). The parties shall file a joint report with this court
within 30 days of the final judgment in the ultimate administrative enforcement proceeding or
state judicial proceeding to advise the court as to the status of this matter. Accordingly, the
Motion to Dismiss (Docket No. 7) is hereby DENIED AS MOOT.
It is so ORDERED.
Enter this 2nd day of October 2015.

______________________________
ALETA A. TRAUGER
United States District Judge
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