Gordon v. City Of Houston et al
Filing
17
MEMORANDUM OPINION AND ORDER denying 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM under 12(b)(1) and 12(b)(6) AND MOTION to Dismiss under 12(b)(1) and 12(b)(6), granting 2 Opposed MOTION for Preliminary Injunction. The Ci ty of Houston, Texas, and Annise Parker, Mayor of the City of Houston, Texas, are preliminarily enjoined from enforcing the temporal ban on soliciting or receiving contributions in City of Houston Code of Ordinances § 18-35(a). (Scheduling Conference set for 1/16/2015 at 02:30 PM in Courtroom 9B before Judge Sim Lake) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRENT TREBOR GORDON,
Plaintiff,
v.
CITY OF HOUSTON, TEXAS, and
ANNISE PARKER, in Her Official
Capacity as Mayor of the City
of Houston, Texas,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-14-3146
MEMORANDUM OPINION AND ORDER
Plaintiff,
Brent Trebor Gordon,
brings this action against
defendants, the City of Houston, Texas, and Mayor Annise Parker in
her official capacity,
for violation of rights protected by the
First and Fourteenth Amendments of the United States Constitution.
Gordon alleges that a temporal ban on soliciting and receiving
contributions imposed on candidates for city elective office by
Chapter 18, Article IV,
Ordinances
activity
§
18-35(a) of the City of Houston Code of
("COH Ordinance
and
prevents
§
18-35 (a)")
candidates
from
"stifles core political
raising
funds
to
run
effective campaigns, yet it does not further the only legitimate
governmental interest relevant in this area, i.e., the prevention
of
corruption
or
its
appearance."l
judgment that COH Ordinance
§
Gordon
seeks
declaratory
18-35(a) is unconstitutional on its
face and as applied to him and to his potential contributors.
lPlaintiff's Verified Complaint ("Verified Complaint"), Docket
Entry No.1, p. 2 ~ 1.
Gordon also seeks to enjoin defendants from enforcing COH Ordinance
§
18-35(a),
nominal damages for violation of his constitutional
rights, reasonable costs and attorney's fees.
2
Pending before the
court are Plaintiff's Motion for Preliminary Inj unction
Entry No.2),
Defendants'
Rule 12 (b) (1)
and 12 (b) (6)
(Docket
Motion to
Dismiss for Failure to State a Claim (Docket Entry No.
11), and
Defendants' Motion for Summary Judgment (Docket Entry No. 15).
For
the reasons stated below, defendants' motions to dismiss and for
summary
judgment
will
be
and
denied,
Gordon's
motion
for
preliminary injunction will be granted.
I. Factual Background
The
ordinance
that
Gordon
seeks
to
have
declared
unconstitutional both on its face and as applied to him and his
potential contributors, COH Ordinance
~
18-35(a), is found in the
chapter of the City of Houston Code of Ordinances that governs
Ethics and Financial Disclosure.
The subject ordinance provides:
A candidate for city office at a city general election
may neither solicit nor receive contributions except
during a period commencing on the 1st day of February
prior to the day of the election, and ending on the 4th
day of March following the election date for the race
that the candidate has entered.
In the event that the
candidate should be in a run-off election, the final date
to receive or solicit contributions shall be the 4th day
of April following the election date.
2Id.
at 22.
2
COH Ordinance § 18-35(a).3
The subject ordinance is one of several
restrictions on solicitations and contributions that Chapter 18,
Article
IV
of
the
City
of
Houston
Code
of
Ordinances
makes
"applicable to all candidates and persons making contributions to
candidates."
COH Ordinance §
18-31 (a) .
Gordon's statement of
definite intent to run for an at-large position on Houston City
Council in the November 2015 election,4 makes Gordon a "candidate"
for
"ci ty elective
Ordinance § 18-2.5
office"
as
those
terms
are
defined
in
COH
Pursuant to COH Ordinance § 18-41, violations
3"City Council members are elected every two years, in oddnumbered years." Defendants' Rule 12(b) (1) and 12(b) (6) Motion to
Dismiss for Failure to State a Claim and Memorandum of Law in
Support ("Defendants' Motion to Dismiss"), Docket Entry No. 11,
pp. 10-11 (citing Houston City Charter, Article V, § 5).
The
period during which candidates are allowed to solicit and receive
contributions extends from February 1st of election years to March
4th of non-election years.
Because the city's elections are held
in November, candidates have from February 1st to election day in
November to solicit and receive contributions immediately prior to
an election,
i.e.,
a period of approximately nine months.
Candidates are allowed to continue soliciting and receiving
contributions until March 4th of the next year, i.e., for a postelection period of approximately four months. Candidates are then
banned from soliciting and receiving contributions from March 4th
of the non-election year to February 1st of the next election year,
i.e., a period of approximately eleven months.
4Verified Complaint, Docket Entry No.1, 3
~
5 at 4
~
8.
5City of Houston Code of Ordinances Chapter 18, Article I,
provides in pertinent part:
§
2
Candidate means a person who knowingly and willingly
takes affirmative action for the purpose of gaining
election to city office.
. Examples of affirmative
action include:
(4) The making of a public
announcement of a definite intent to run for city office
(continued ... )
3
of all provisions of Article IV 35(a) Code."
including COH Ordinance § 18-
"shall be punishable as provided in section 1-6 of this
COH Ordinance
§
1-6 provides for a fine not exceeding $500,
and also provides that "[e]ach day any violation of this Code or of
any ordinance shall continue shall constitute a separate offense."
II. Defendants' Motions to Dismiss
Defendants argue that this action is subject to dismissal for
lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b) (1), and for failure to state a claim under Federal
Rule of Civil Procedure 12 (b) (6) .6
continued)
in a particular election, regardless of whether the
specific office is mentioned in the announcement;
(5) Before a public announcement of intent, the making of
a statement of definite intent to run for city office and
the soliciting of support by letter or other mode of
communication; .
5( •••
City elective office means the offices of the mayor, the
various city council positions and the city controller.
See also Verified Complaint, Docket Entry No.1, pp. 3 ~ 5 (stating
Gordon's definite intent to run for city elective office);
Defendant City of Houston's Responses to Plaintiff's Second Set of
Discovery Requests, Exhibit 17 to Plaintiff's Reply in Support of
Motion for Preliminary Injunction, Docket Entry No. 13-1, p. 15 of
23 (stating "[i]t is not our contention that Mr. Gordon is not a
candidate at this time"); Defendant's Annise Parker, in her
official capacity as Mayor of the City of Houston, Tex., Responses
to Plaintiff's Second Set of Discovery Requests, Docket Entry
No. 13-1, p. 20 (same).
6Defendants' Motion to Dismiss, Docket Entry No. 11, p. 7.
4
A.
Rule l2(b) (1) Does Not Require Dismissal
Defendants argue that this action is subject to dismissal for
lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12 (b) (1) because
Gordon lacks standing because he can show no more than a
"subj ecti ve chill" of his First Amendment rights as a
potential candidate - he cannot show a personal stake in
the outcome of the controversy so as to "warrant his
invocation of federal-court jurisdiction and to justify
exercise of the court's remedial powers on his behalf."7
1.
Standard of Review
Federal Rule of Civil Procedure 12(b) (1) governs challenges to
the
court's
subject matter
jurisdiction.
"A case
is
properly
dismissed for lack of subject matter jurisdiction when the court
lacks
the
case."
statutory or
constitutional
power
to
adjudicate
the
Home Builders Association of Mississippi, Inc. v. City of
Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 1998).
"Courts
may dismiss for lack of subject matter jurisdiction on the basis of
(1)
the
complaint
alone;
(2)
the
complaint
supplemented
by
undisputed facts in the record; or (3) the complaint supplemented
by undisputed facts plus the court's resolution of disputed facts."
Clark v. Tarrant County, Texas, 798 F.2d 736, 741 (5th Cir. 1986).
7Id. at 5 (quoting Warth v. Seldin, 95 S. Ct. 2197, 2205
(1975) ). See also id. at 7 ("Gordon lacks standing because he does
not demonstrate that his political speech is prohibited conduct
under the Ordinance and because, at best, he can only allege a
'subjective chill' of his First Amendment rights").
5
Rule 12(b) (1) challenges to subject matter jurisdiction come in two
forms:
See Paterson v.
"facial" attacks and "factual" attacks.
Weinberger,
644 F.2d 521,
consists of a
523
Rule 12 (b) (1)
A facial attack
(5th Cir. 1981).
motion unaccompanied by supporting
evidence that challenges the court's jurisdiction based solely on
the pleadings.
subject
Id.
matter
A factual attack challenges the existence of
jurisdiction
in
fact
irrespective
of
the
pleadings -- and matters outside the pleadings -- such as testimony
and affidavits -- are considered.
Id.
ci ted evidence outside the pleadings
Because defendants have
in
support
of their Rule
12(b) (1) motion to dismiss, the motion is a factual attack, and the
court's review is not limited to whether the complaint sufficiently
alleges
jurisdiction.
Gordon,
as
the
party asserting
federal
jurisdiction, bears the burden of showing that the jurisdictional
requirements have been met.
Alabama-Coushatta Tribe of Texas v.
United States, 757 F.3d 484,
487
(5th Cir. 2014).
When facing a
challenge to subject matter jurisdiction and other challenges on
the merits, courts must consider the Rule 12(b) (1)
challenge before addressing the merits of the case.
2.
Id.
Gordon Has Standing
(a)
"Article
Power,'
jurisdictional
that
Applicable Law
III
is,
of the Constitution limits
federal-court
6
jurisdiction,
federal
to
'Judicial
'Cases'
and
'Controversies.'"
United States Parole Commission v.
100 S. Ct. 1202, 1208 (1980).
have
standing
is
case-or-controversy
an
Geraghty,
"[T]he requirement that a claimant
essential
requirement
and
of
unchanging
Article
part
III."
of
the
National
Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208
(5th Cir.
2011)
(quoting Davis v.
128 S. Ct. 2759, 2768 (2008)).
proceed.
Federal Election Commission,
Thus, Gordon must have standing to
To establish standing, Gordon must show that:
(1) he has
suffered, or imminently will suffer, a concrete and particularized
injury-in-fact;
defendants'
(2) the injury-in-fact is fairly traceable to the
conduct;
and
(3)
redress the injury-in-fact.
(5th
Cir.
2014).
See
a
favorable
judgment is likely to
Justice v. Hosemann, 771 F.3d 285, 291
also
Lujan
v.
Defenders
of
Wildlife,
112 S. Ct. 2130, 2136 (1992).
(b)
Application of Law to the Facts
Defendants argue that Gordon lacks standing to pursue this
action in federal court "because he cannot link the
o]rdinance to any harm.
"8
[challenged
Defendants argue that Gordon has failed
to establish standing because
Gordon can show no harm that [is] traceable to the
Defendants'
challenged behavior and likely to be
redressed by a favorable ruling.
Gordon complains his
freedom of speech is restricted because Section 18-35(a)
of the Code precludes him from soliciting and receiving
8Id.
at 10.
7
campaign contributions prior to February 1,
2015.
However, the limitation on his free speech is selfimposed. Gordon chooses not to speak and chooses not to
self-fund his campaign at this stage.
(Ex. 1 at 21:1020) .
The Ordinance does not prohibit Gordon from
campaigning, including making speeches, meeting with
voters, and speaking on social media websites like
Twitter and Facebook.
(Ex. 1 at 74:13-17, 19:4-22:4).
Nor does the Ordinance preclude Gordon from expending
undisbursed funds from his prior campaign for City
Council At-Large Position 2.9
Asserting
that
self-censorship
without actual prosecution,
is
a
harm that
can
be
Gordon argues that he has
alleged
standing
because he has alleged an
intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed.
by law.
That is, Gordon desires to immediately
solicit and receive contributions related to his campaign
for City of Houston City Council at large, and at present
six individuals have verified their intent to immediately
contribute to Gordon's campaign, but these contributions
have not been solicited, made or accepted because such
activity is proscribed by Houston's contribution blackout
period. 1o
(1)
Injury-in-Fact
The First Amendment to the United States Constitution declares
that "Congress shall make no law .
speech."
. abridging the freedom of
United States Constitution, Amendment I.
The Supreme
Court has observed that "[s] peech is an essential mechanism of
democracy, for it is the means to hold officials accountable to the
9Id. at 12-13.
lOPlaintiff's Response to Defendants' Motion to Dismiss, Docket
Entry No. 14, p. 2 (citing Babbitt v. United Farm Workers National
Union, 99 S. Ct. 2301, 2309 (1979)).
8
Citizens
people,"
United
v.
Federal
Election
Commission,
130 S. Ct. 876, 898 (2010), and that "[t]he First Amendment has its
fullest and most urgent application to speech uttered during a
campaign for political office."
Id.
(quotations omitted).
"In
First Amendment pre-enforcement challenges, chilling a plaintiff's
speech is a constitutional harm adequate to satisfy the injury-infact requirement."
Justice, 771 F.3d at 291 (quotations omitted).
Both the Supreme Court and the Fifth Circuit have explained that
"it is not necessary that
[a plaintiff]
first expose himself to
actual arrest or prosecution to be entitled to challenge a statue
that he claims deters the exercise of his constitutional rights."
Id.
(quoting Steffel v. Thompson,
94 S. Ct. 1209, 1216
(1974)).
"Instead, once a plaintiff has shown more than a 'subjective chill'
- that is, that he 'is seriously interested in disobeying, and the
defendant seriously intent on enforcing, the challenged measure' the case presents a viable
III."
'case or controversy'
under Article
Id. (quoting International Society for Krishna Consciousness
of Atlanta v. Eaves, 601 F.2d 809, 815 (5th Cir. 1979)).
See also
Virginia v. American Booksellers Association, Inc., 108 S. Ct. 636,
643
(1988)
(" [T] he alleged danger of this statute is,
in large
measure, one of self-censorship; a harm that can be realized even
without an actual prosecution.").
In
Babbitt
v.
United
Farm
Workers
National
Union,
99 S. Ct. 2301, 2309 (1979), the Supreme Court stated that a threat
9
of enforcement is concrete enough to establish an injury-in-fact
when the plaintiff demonstrates three conditions:
(1) an intent to
engage in actions that are "arguably affected with a constitutional
interest,"
(2)
a
statute,
regulation,
"arguably" prohibits those actions,
prosecution.
Inc.
in
engage
647 F.3d 202,
fact
challenge .
to
and (3)
other
provision
that
a credible threat of
See also National Federation of the Blind of Texas,
v. Abbott,
injury
or
sufficient
209
to
(5th Cir.
raise
a
2011)
First
("To prove an
Amendment
facial
a plaintiff must produce evidence of an intention
in
a
course
of
conduct
arguably
affected
with
a
constitutional interest, but proscribed by statute.").
Gordon alleges in his Verified Complaint that he "will run for
Houston City Council at-large at the November 2015 election,,,l1 that
he "cannot self-fund his campaign, ,,12 that "[w] i thout the ability
to raise contributions,
[he]
cannot pay for activities that he
would otherwise immediately undertake, such as .
distributing campaign materials,
,,13
on
18-35 (a) ,
fundraising
under
section
. printing and
that" [b] ut for the absolute ban
[he]
would
immediately
solicit and accept contributions to support his campaign for City
11Verified Complaint, Docket Entry No.1, p. 4 en 8.
12Id. at en 11.
l3Id.
at 4-5 en 12.
10
Council,"14 and that "but for the absolute ban on fundraising under
would
immediately
contribute funds to support [him] in his campaign. "15
Gordon also
section
18-35(a),
many
alleges that he "faces a
individuals
credible threat
of prosecution if he
solicits or accepts contributions for his City Council campaign
prior to February 1, 2015, "16 and that he
is not willing to expose himself and his supporters to
criminal and civil penalties and thus he has been forced
to refrain from engaging in core political activity soliciting and collecting contributions to campaign for
City Office - pending vindication of his constitutional
rights. 17
Defendants do not dispute - and, in fact, acknowledge - that
in an effort to avoid violating COH Ordinance 18-35(a), Gordon has
self-censored
his
campaign
acti vi ties. 18
Moreover,
defendants
neither dispute Gordon's assertion that the prohibitions against
soliciting and receiving contributions imposed on candidates for
city elective office by COH Ordinance
§
18-35 (a)
apply to him
because he is a candidate for city office, nor represent that they
would decline to enforce COH Ordinance
14Id. at 5
<]I
15Id. at
§
18-35(a) against Gordon
14.
<]I
16Id. at 18
17Id. at
<]I
13.
<]I
60.
61.
18Defendants' Motion to Dismiss, Docket Entry No. 11, pp. 1213. Violations of COH Ordinance 18-35(a) are punishable by a fine
of up to $500 per day. See above, § I (citing COH Ordinances § 1-6
and § 18-41).
11
should he solicit or accept campaign contributions in contravention
thereto.
Instead,
defendants
argue
that
the
temporal
ban
on
soliciting and receiving contributions causes Gordon no cognizable
harm because Gordon does not have a right to receive contributions
protected by the First Amendment,
and because Gordon has other
opportunities to engage in political speech and association during
the period of the temporal ban that he has voluntarily chosen not
to pursue, i.e., he may spend his own funds or funds left over from
his previous campaign, and he may use free social media. 19
Defendants' arguments that Gordon has failed to demonstrate an
injury-in-fact sufficient to satisfy that requirement for standing
either because the First Amendment does not protect a candidate's
right to receive contributions,
or because the temporal ban on
soliciting and receiving contributions imposed by the challenged
ordinance does not prohibit Gordon from engaging in other forms of
poli tical
speech
and
association,
have
Leadership Coalition of Texas v. Reisman,
Cir.
2014),
the
Fifth
Circuit
no
merit.
In
764 F.3d 409,
recognized
that
Catholic
423
(5th
"both
the
contributing and contributed-to party have sufficient injuries-infact to challenge campaign finance restrictions."
Observing that
the limitations challenged in that case "must rise or fallon their
own merits," id. at 431, the Fifth Circuit rejected the State of
19Defendants' Motion to Dismiss, Docket Entry No. 11, pp. 1213.
12
Texas's argument that a 60-day waiting period was narrowly tailored
"because
interested speakers have many other opportunities
speaking during the 60-day period."
for
Id. at 430.
Because Gordon has censored his political speech to avoid
violating COH Ordinance
§
18-35(a), and because defendants neither
dispute that the temporal restrictions on soliciting and receiving
contributions imposed on candidates for city elective office by COH
Ordinance
enforce
18-35 (a)
§
that
apply to Gordon,
ordinance
against
nor disavow an intent to
Gordon
should
he
act
in
contravention of it by soliciting or accepting contributions before
February 1, 2015, Gordon has shown all of the conditions identified
by the Supreme Court
in Babbitt for
demonstrating a
threat of
enforcement that is concrete enough to establish an injury-in-fact
are satisfied in this case.
See Babbitt,
99 S.
Ct.
at 2309
(a
threat of enforcement is concrete enough to establish an injury-infact
when
the
plaintiff demonstrates
three
conditions:
(1)
an
intent to engage in actions that are "arguably affected with a
consti tutional
provision
interest,"
that
"arguably"
(2)
a
statute,
prohibits
credible threat of prosecution).
those
regulation,
actions,
or
and
other
(3)
a
Accordingly, the court concludes
that Gordon has shown more than a "subjective chill," and has,
instead, demonstrated a chilling of his political speech sufficient
to
satisfy
Article III.
the
injury-in-fact
See Justice,
requirement
771 F. 3d at 291
13
for
standing
under
("In First Amendment
pre-enforcement challenges,
constitutional
requirement."').
(1972)
harm
'chilling a plaintiff's speech is a
adequate
to
satisfy
See also Laird v.
Tatum,
the
92 S.
injury-in-fact
Ct.
2318,
2324
("[C]onstitutional violations may arise from the deterrent,
or 'chilling,' effect of governmental regulations that fall short
of a direct prohibition against the exercise of First Amendment
rights."); Hill v. City of Houston, Texas, 789 F.2d 1103, 1106 (5th
Cir.
1986) (en banc) ("where
speech,
there
is
a
danger
of chilling
free
the concern that constitutional adjudication be avoided
whenever possible may be outweighed by society's interest in having
the statute challenged").
The court's conclusion that Gordon has
demonstrated an injury-in-fact
for
the purpose of establishing
standing under Article III is buttressed by the Sixth Circuit's
recent decision in Platt v. Board of Commissioners on Grievances
and Discipline of the Ohio Supreme Court, 769 F.3d 447
2014).
(6th Cir.
In Platt the plaintiff wanted to run for judicial office.
The judicial canons prohibited candidates from soliciting funds in
person and engaging in other conduct.
Because the plaintiff had to
"censor himself to avoid violating" the Ohio canons,
the Sixth
Circuit concluded that the canons created what "amount [ed]
credible fear of enforcement."
Gordon.
Id. at 452.
to a
The same is true of
And, as here, the Platt court relied on the defendants'
failure to disavow enforcement against the plaintiff.
14
Id.
(2)
Causal Connection and Redressability
Because threatened enforcement of COH Ordinance
18-35(a)
§
arguably chills Gordon's exercise of his First Amendment rights to
freedom
of
speech
and association by
soliciting and
receiving
campaign contributions, a causal connection exists between Gordon's
alleged injury-in-fact and the challenged ordinance.
warranted,
challenged
Because if
the court may issue a declaratory judgment that the
ordinance
is
unconstitutional,
enforcement of that ordinance,
redressed by a
favorable
and
may
enjoin
Gordon's alleged injury could be
judgment in this
suit.
See Justice,
771 F.3d at 291; Lujan, 112 S. Ct. at 2136.
3.
Conclusion
Defendants' motion to dismiss for lack of standing under Rule
12(b) (1) will be denied because Gordon has established an injuryin-fact, a causal connection between his injury and the challenged
ordinance, and that a favorable judgment will redress his injury.2o
20A footnote in Gordon's Verified Complaint asserts that
"Plaintiff Gordon has standing to assert not only his right as [a]
candidate to receive contributions, but also the rights of persons
who would contribute to him but for the prohibition challenged
here. "
Docket Entry No.1, p. 5, n. 2.
However, during his
deposition, Gordon admitted that he has no authority to act as a
representative of any of his potential contributors.
See Oral
Deposition of Brent Trebor Gordon, Docket Entry No. 13-1, pp. 43:814). Gordon, therefore, has no standing to pursue this action on
behalf of his potential contributors.
15
B.
Rule 12 (b) (6) Does Not Require Dismissal
Count
1,
only
count
alleges
Complaint,
the
asserted
that
"Section
in
18-35 (a)
Gordon's
imposes
a
Verified
temporal
aggregate limit of zero dollars on political contributions that is
facially
unconstitutional
because
it
is
unsupported
by
any
cognizable government interest and because it is not appropriately
tailored. ,,21
Citing Ohio Council 8 American Federation of State,
County & Municipal Employees, AFL-CIO v. Brunner,
912 F. Supp.2d
556 (S.D. Ohio 2012), and Thalheimer v. City of San Diego, 645 F.3d
1109 (9th Cir. 2011), defendants argue that "Gordon does not cite
any
case
holding
that
the
First
Amendment
broadly
protects
a
candidate's right to solicit or receive campaign contributions.
Indeed, several cases hold otherwise.,,22
1.
Standard of Review
Under
Rule
8
of
the
Federal
Rules
of
Civil
Procedure,
a
pleading must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
P. 8 (a) (2).
Fed.
R.
Civ.
A Rule 12 (b) (6) motion tests the formal sufficiency of
the pleadings and is "appropriate when a
defendant attacks the
complaint because it fails to state a legally cognizable claim."
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert.
21Verified Complaint, Docket Entry No.1, p. 19.
22Defendant's Motion to Dismiss, Docket Entry No. 11, p. 14.
16
denied sub nom Cloud v. United States, 122 S. Ct. 2665 (2002).
The
court must accept the factual allegations of the complaint as true,
view them in a light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff's favor.
Id.
To defeat a
motion to dismiss pursuant to Rule 12(b) (6), a plaintiff must plead
"enough facts to state a claim to relief that is plausible on its
face."
Bell Atlantic Corp.
(2007).
"A claim has facial plausibility when the plaintiff pleads
factual
content
that
allows
v.
Twombly,
the
court
127 S.
to
draw
Ct.
1955,
the
1974
reasonable
inference that the defendant is liable for the misconduct alleged."
Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949
(2009)
(citing Twombly,
127 S. Ct. at 1965).
2.
Gordon Has Stated a Claim for Which Relief May Be Granted
Defendants' contention that Gordon has failed to state a claim
for which relief may be granted because the First Amendment does
not protect a candidate's right to solicit or receive contributions
has no merit, and defendants' reliance on out of circuit cases such
as Ohio Council, 912 F. Supp.2d at 556, and Thalheimer, 645 F.3d at
1109,
is
misplaced because
neither
case
involved
a
motion
to
dismiss but, instead, cross-motions for summary judgment.
In United States v.
Kokinda,
110
S.
Ct.
3115
(1990),
the
Supreme Court stated that "[s]olicitation is a recognized form of
speech protected by the First Amendment."
17
Id.
at 3118
(citing
Schaumberg v. Citizens for a Better Environment,
832
(1980),
and Riley v.
100 S. Ct. 826,
National Federation of Blind of North
Carolina, Inc., 108 S. Ct. 2667, 2673-74
(1988)).
Although these
cases involved solicitations and free speech rights asserted by
charitable organizations, the rights at issue here - rights of free
speech and association asserted by a candidate for elective office
implicate
Amendment.
fundamental
See Buckley v. Valeo,
curiam) ("Discussion
of
protected
by
96 S. Ct. 612,
632
activities
public
issues
the
(1976)
debate
and
on
First
(per
the
qualifications of candidates are integral to the operation of the
system of government established by our Constitution.
The First
Amendment
political
expression
affords
the
. ") .
broadest
Thus,
protection
to
such
in the context of political speech,
statutory "contribution and expenditure limitations operate in an
area of the most fundamental First Amendment acti vi ties. "
Id.
See
also ide at 634 ("A restriction on the amount of money a person or
group
can
spend
on
political
communication
during
a
campaign
necessarily reduces the quantity of expression by restricting the
number of issues discussed, the depth of their exploration, and the
size of the audience reached.").
Moreover, both state and federal courts have long recognized
the ability of candidates
for
elective office
to
assert
First
Amendment challenges to restrictions imposed on their rights to
solicit and receive contributions.
18
See~,
Carey v. Wolnitzek,
614 F.3d 189,
204
(6th Cir.
2010)
asking for money suppresses
("Prohibiting candidates from
speech in the most
conspicuous of
ways."); Zeller v. The Florida Bar, 909 F. Supp. 1518
(S.D. Fla.
1995) (holding unconstitutional prohibitions on contributions made
more
than one year before
561 So. 2d 263
(Fla.
1990)
judicial elections);
State v.
Dodd,
(holding unconstitutional law banning
candidates for legislative or statewide office from soliciting or
accepting any campaign contributions during
regular or special
session of the state legislature).
In Thalheimer,
which defendants describe as "the case that
most closely resembles the facts of this case,
"23
the candidate
plaintiff challenged the City of San Diego's 12-month limitation on
soliciting or accepting contributions.
The district court denied
the plaintiff's motion for preliminary injunction, Thalheimer v.
City of San Diego, 706 F. Supp.2d 1065, 1078-79 (S.D. Cal. 2010),
and the Ninth Circuit affirmed that denial.
at 1121-24.
summary
Thalheimer, 645 F.3d
Upon remand the parties submitted cross-motions for
judgment,
and
the
district
court
upheld
the
12-month
limitation on soliciting or accepting contributions after finding
that
the
limitation
was
anti-corruption interest."
"closely
drawn
to
serve
the
City's
Thalheimer, 2012 WL 177414 at *11.
At
issue was whether the ordinance was closely drawn to advance a
sufficiently important governmental interest.
23Id.
at 17.
19
The fact that the
challenged ordinance
restricted
Amendment was not in dispute.
1079
(finding
"temporal
rights
protected by
the
First
See Thalheimer, 706 F. Supp.2d at
limits
do
burden
free
speech
and
association"); Thalheimer, 645 F.3d at 1122 (expressly stating that
"the district court reasonably found that '. . . temporal limits do
burden free speech and association.'").
In
Ohio
candidates,
Council
a
labor
organization,
three
judicial
and a political party challenged a rule of the Ohio
Code of Judicial Conduct that prohibited candidates from personally
soliciting
campaign
contributions
except
in
writing
or
when
speaking to groups of 20 or more individuals as violating their
rights under the First Amendment.
Upon the submission of cross-
motions for summary judgment, the court held that the challenged
restriction
interests
was
in
narrowly
preserving
preventing coercion,
extent
that
soliciting
it
tailored
the
to
advance
appearance
of
compelling
state
impartiality
and
but was unconstitutional as applied to the
prevented
contributions
judicial
from
candidates
family
members.
from
personally
Thus,
as
in
Thalheimer, at issue was whether the ordinance was closely drawn to
advance a sufficiently important governmental interest.
The fact
that the challenged ordinance restricted rights protected by the
First Amendment was not in dispute.
After stating its holding the Ohio Council court made
[0] ne final observation:
4.4(A)'s prohibition on
Plaintiffs assert that Rule
their personal receipt of
20
campaign contributions violates their rights under the
First Amendment. However, the Court is unaware of any
legal support for a conclusion that candidates have a
First Amendment right to personally receive campaign
contributions. While the Supreme Court has stated that
limits placed on public campaign expenditure and
contributions "implicate fundamental First Amendment
interests," it made no such finding with respect to
receipt of campaign contributions. Buckley v. Valeo, 424
U.S. 1, 23, 96 S. Ct. 612, 46 L. Ed.2d 659 (1976). This
Court will not simply suppose that the Supreme Court
would hold that the political expression inherent in
spending and contributing money is likewise present in a
candidate's personal receipt of money. See, e.g., Dean v.
Blumenthal, 577 F.3d 60, 70 (2d Cir.2009) (discussing
Randall v. Sorrell, 548 U.S. 230, 126 S. Ct. 2479, 165 L.
Ed.2d 482 (2006), in which the Supreme Court held that
Vermont's campaign finance statute's expenditure limits
for candidates and contribution limits for individuals,
organizations, and political parties violated First
Amendment free speech protections but did not recognize
a
First
Amendment
right
to
receive
campaign
contributions) .
912 F. Supp.2d at 572.
legal
support
for
The fact that the court was unaware of any
the conclusion that
candidates have a
First
Amendment right to personally receive campaign contributions did
not prevent the court from reaching the merits of the plaintiffs'
claims,
exists.
and does
not
support
a
conclusion
that
no
such
right
In Dean, 577 F.3d at 569, one of the cases cited in Ohio
Council, the court acknowledged that although the Supreme Court's
opinion in Randall, 126 S. Ct. at 2479, did not recognize a First
Amendment right to receive campaign contributions, its analysis did
not
foreclose
such
recognition.
See
Libertarian
National
Committee, Inc. v. Federal Election Commission, 930 F. Supp.2d 154,
21
171
(D. D.C. 2013)
(characterizing as non-frivolous argument that
First Amendment right to receive campaign contributions exists) .
The Fifth Circuit has arguably recognized a First Amendment
right to accept contributions for the purpose of funding political
speech.
In Catholic Leadership Coalition,
764
F.3d at
423,
the
Fifth Circuit stated that "[b]oth the contributing and contributedto party have sufficient injuries-in-fact to challenge campaign
finance restrictions."
Likewise, in Texans for Free Enterprise v.
Texas Ethics Commission, 732 F.3d 535
(5th Cir. 2013), the Fifth
Circuit held that a political committee formed to advocate for
candidates in Texas elections had shown a substantial likelihood of
success on the merits of its claim that "the Texas Election Code
violates its right to free speech by prohibiting it from accepting
funds from corporations."
rd. at 537.
Moreover, in In re Cao, 619
F.3d 410, 421 (5th Cir. 2010), cert. denied, 131
(en banc)
s.
Ct. 1718 (2011)
the Fifth Circuit reached the merits of a candidate's
constitutional challenge to a law that banned him from receiving
contributions in the form of coordinated expenditures.
Although
defendants attempt to distinguish Catholic Leadership by arguing
that it involved an entity seeking to accept funds for the purpose
of making independent expenditures, 24 also at issue there and in
Texans
for
sufficient
Free
Enterprise,
interests
for
was
whether
restricting
24Id. at 7-8, 16-17.
22
the
a
government
right
to
had
accept
contributions to fund political speech,
challenged
laws
advanced
that
interest
and,
if so,
using
whether the
means
that
were
sufficiently tailored.
3.
Conclusion
Defendants have failed to cite any controlling or persuasive
authority that supports their contention that this action should be
dismissed for failure to state a claim for which relief may be
granted because the First Amendment does not protect the rights of
candidates for elective office, like Gordon, to solicit and receive
campaign contributions.
Accordingly, defendants' motion to dismiss
under Rule 12 (b) (6) will be denied.
III. Defendants' Motion for Summary Judgment
Acknowledging that "the facts are disputed and the evidence is
contradictory,"
defendants
argue
that
they
are
nevertheless
entitled to summary judgment because "Gordon has not shown he has
an unqualified First Amendment entitlement to solicit or receive
contributions as a candidate. ""25
Defendants argue that "[ s] ummary
judgment is warranted because the restriction Gordon challenges
does not violate his First Amendment rights and is not facially
25Defendants' Motion for Summary Judgment, Docket Entry No. 15,
p. 2.
23
unconstitutional. ,,26
Asserting that "[t] he Ordinance's temporal
limitation is narrow in scope and designed to minimize quid pro quo
corruption or the appearance thereof,,,27 defendants argue that this
case should be dismissed because "Gordon's First Amendment rights
are not violated by the Ordinance. ,,28
A.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material
facts
are
Fed. R. Civ. P. 56(c).
"genuine"
if
the
evidence
Disputes about
is
such
that
a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing
sufficient
to
against a party who fails to make a
establish
the
existence
of
an
element
essential to that party's case, and on which that party will bear
the
burden
of
proof
at
trial."
106 S. Ct. 2548, 2552 (1986).
26Id.
27Id. at 8.
28Id.
24
Celotex
Corp.
v.
Catrett,
A party moving for summary judgment "must
'demonstrate the
absence of a genuine issue of material fact,' but need not negate
the elements of the nonmovant's case."
37 F.3d 1069,
1075
(5th Cir.
106 S. Ct. at 2553).
Little v. Liquid Air Corp.,
1994)
(en banc)
(quoting Celotex,
If the moving party meets this burden, Rule
56(c) requires the nonmovant to go beyond the pleadings and show by
admissible evidence that facts exist over which there is a genuine
issue for trial.
" [T] he nonmoving party's burden is not
affected by the type of case; summary judgment is appropriate in
any case
where
critical evidence
is
so weak or tenuous
on
an
essential fact that it could not support a judgment in favor of the
nonmovant."
Id.
A party opposing summary judgment must point to
an evidentiary conflict in the record.
Factual controversies are
to be resolved in favor of the nonmovant, "but only when . . . both
parties have submitted evidence of contradictory facts."
37 F.3d at 1075.
Little,
"[T]he court must draw all reasonable inferences
in favor of the nonmoving party, and it may not make credibility
determinations
or
weigh
the
evidence."
Reeves
v.
Sanderson
Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000).
B.
Applicable Law
For the reasons stated above in
§
II.A.2(b) (1) and
§
II.B.2,
the court has already concluded that the rights at issue in this
case are the right to free speech (including political speech), and
25
association
rights
(including.
implicate
Amendment.
political
fundamental
association),
that
these
protected by the
acti vi ties
First
See Buckley, 96 S. Ct. at 632.
and
A campaign finance law
that burdens these First Amendment rights must pass constitutional
Moreover,
muster.
"[w]hen the Government restricts speech,
the
Government bears the burden of proving the constitutionality of its
actions."
134 S.
McCutcheon
Ct.
1434,
1452
v.
(2014)
Election
Federal
(quoting United States v.
Entertainment Group, Inc., 120 S. Ct. 1878, 1888
Generally,
Commission,
Playboy
(2000)).
laws that burden political speech are subject to
strict scrutiny, which requires governmental defendants to prove
that
least
the challenged law "promotes a compelling interest and is the
restrictive means
Catholic
Leadership,
134 S. Ct. at 1444).
to
further
764
F.3d
the articulated interest."
at
424
(quoting
McCutcheon,
But where the challenged law limits only the
amount that anyone person or group may contribute directly to a
candidate, governmental defendants bear a lesser burden of proving
only
that
interest
the
and
challenged
employs
law
means
abridgment of associational
serves
closely
"a
sufficiently
drawn
to
freedoms."
avoid
important
unnecessary
See also Buckley,
96 S. Ct. at 638; Arizona Free Enterprise Club's Freedom Club PAC
v. Bennett, 131 S. Ct. 2806, 2817
(2011)
(noting that lower level
of scrutiny requiring that challenged law be "closely drawn" to
serve
a
"sufficiently
important
26
interest"
has
been
applied
to
limits on contributions to candidates).
expenditure
identified
and
only
contribution
one
limits,
legitimate
For purposes of "defending
the
Supreme
governmental
Court
interest
preventing corruption or the appearance of corruption.'"
Leadership,
1450).
764 F.3d at 425
'has
(quoting McCutcheon,
134 S.
Catholic
Ct.
at
Moreover, "[r]ecent Supreme Court case law clarifies that
the government's interest in preventing corruption is limited to
preventing quid pro quo corruption or its appearance."
McCutcheon, 134 S. Ct. at 1450-51).
Id.
(citing
"[I]n determining whether the
government has demonstrated a legitimate interest in preventing
quid pro quo corruption or its appearance, a court cannot 'accept[]
mere conjecture as adequate to carry a First Amendment burden.'"
Id.
c.
(quoting McCutcheon, 134 S. Ct. at 1452).
Application of Law to the Facts
Asserting
that
"City Council
passed
the
restriction [s
at
issue] to 'eliminate any undue influence,'"29 and that
[t]he stated policy of Chapter 18 of the City's Code of
Ordinances, regarding campaign ethics and financial
disclosures, is to address improprieties such as quid pro
quo, that, is, "the granting and exchanging of favored
treatment to persons, businesses, or organizations," and
"conflicts of interest such as use of offices or
employment for private gain, "30
29Id. at 12.
30Id. at 12-13. See also id. at 16 ("The challenged Ordinance
serves a sufficiently important government interest by preventing
(continued ... )
27
defendants argue that "[t]he challenged Ordinance is closely drawn
to
avoid
unnecessary
abridgement
of
associational
freedoms. ,,31
Without disputing that defendants have a legitimate interest in
preventing
corruption
or
its
appearance,32
Gordon
argues
that
defendants are not entitled to summary judgment because they have
failed to cite evidence establishing that the temporal restrictions
at
issue
either
advance
that
interest
or
constitute
means 'to
advance that interest that are closely drawn to avoid unnecessary
abridgment of rights protected by the First Amendment. 33
Defendants'
interest
in
preventing
corruption
Id.
or
its
appearance is a "compelling" or "sufficiently important" interest,
but defendants have failed to present evidence that the ten-month
temporal ban on soliciting and receiving contributions imposed by
the challenged ordinance either advances that interest or does so
through
means
that
are
closely
drawn
to
avoid
unnecessary
abridgment of rights protected by the First Amendment.
30 ( ... continued)
quid pro quo corruption or the appearance thereof.").
31Id. at 17.
32Plaintiff's Response to Defendants'
Judgment, Docket Entry No. 16, p. 11.
33Id. at 11-25.
28
Motion
for
Summary
1.
Defendants Fail to Present Evidence Showing that Temporal
Ban Advances Quid Pro Quo Corruption or Its Appearance
Defendants argue that
the City's legislative body passed the challenged
provision to address "undue influence."
As the Ninth
Circuit found in Thalheimer v. City of San Diego, 645
F.3d 1109 (9th Cir. 2011), a legislative body may validly
determine that the more remote from the election day that
contributions are made, the greater risk of quid pro quo
corruption or the appearance thereof.
Id. at 1121-22.
Here, candidates for City offices serve a two-year term.
The limitation on soliciting or receiving contributions
prior to February of the election year limits the
likelihood of quid pro quo corruption or its appearance
by restricting a candidate from soliciting or receiving
contributions made at a remote time period from the
election. Instead, the limitation requires candidates to
solicit or receive contributions proximate to an
imminently
approaching
election.
The
challenged
provision serves to prevent "undue influence".
. and
to discourage such improprieties as "conflicts of
interest such as use of offices or employment for private
gain, the granting and exchanging of favored treatment to
persons, businesses, or organizations, and the conduct of
activities that engender opportunities to influence
government decisions for personal gain.
"34
Defendants also argue that
[a] temporal limit on contributions, as opposed to
expendi tures, that effectively requires candidates to use
their own funds to campaign for some period of time, as
Gordon contends,
acts to "reduce[]
the threat of
corruption" because "the use of personal funds reduces
the candidate's dependence on outside contributions and
thereby counteracts the coercive pressures and attendant
risks of abuse of money in politics. 35
34Defendants' Motion for Summary Judgment, Docket Entry No. 15,
at 2-3 (quoting COH Ordinance § 18-1).
35Id. at 13 (quoting Bennett, 131 S. Ct. at 2826).
29
Defendants argue that the temporal ban at issue advances the
ci ty' s
interest of preventing quid pro quo
appearance
by barring
contributions made
candidates
remote
in
from
time
corruption and its
soliciting
from an
or
receiving
election,
requiring
candidates to solicitor receive contributions proximate to an
imminently approaching election, and thus requiring candidates to
use their own personal funds to campaign at other times.
Missing,
however,
from defendants' briefing is a citation to any evidence
showing
a
nexus
between
the
ordinance's
almost
eleven-month
from
temporal ban on soliciting and receiving contributions -
March of the off-election year through January of the election year
and
any
activity
corruption or
its
arguably
posing
a
risk
Also missing
appearance.
of
quid
pro
quo
from defendants'
briefing is a citation to any evidence showing how contributions
given before February 1st of an election year present a different
threat of quid pro quo corruption or its appearance from those
gi ven after February 1st. 36
Instead of presenting evidence showing how or why the temporal
ban
imposed
by
COH
Ordinance
§
lS-35(a)
advances
the
city's
36See Plaintiff's Response to Defendant's Motion for Summary
Judgment, Docket Entry No. 16, p. 19 ("Houston claims that its law
imposing a temporal ban, which is completely unrelated to any
threat of large financial transfers, fights corruption, but has not
offered any evidence of a single corrupting instance, or any
evidence to illustrate how contributions given during the blackout
period would present any different a threat than those given after
February 1.").
30
interest of preventing quid pro quo corruption or the appearance of
such corruption, defendants cite Thalheimer, 645 F.3d at 1122, and
argue that the Ninth Circuit and a California District Court have
upheld a 12-month temporal limitation on contributions prior to
elections similar to the temporal ban at issue here.
that
the
rationale
reduces
court
courts
that
in
the
limiting
Thalheimer
case
'off-year'
"accepted
contributions
to
Asserting
the
city's
candidates
actual and perceived corruption, ,,37 defendants urge the
to
do
the
same
here.
A
crucial
distinction
between
Thalheimer and this case is that in Thalheimer the City of San
Diego presented evidence that remote contributions are more likely
to create an appearance of corruption; the City of Houston has not
presented
any
such
evidence
in
this
"[I]n
case.
determining
whether the government has demonstrated a legitimate interest in
preventing
cannot
quid pro quo corruption or its
'accept []
mere conj ecture as
Amendment burden.'"
appearance,
adequate
to
a
court
carry a
First
Catholic Leadership, 764 F.3d at 425 (quoting
McCutcheon, 134 S. Ct. at 1452).
Accordingly, the court concludes
that defendants have failed to establish that the temporal ban on
soliciting and receiving contributions imposed by the challenged
ordinance advances the city's interest in preventing quid pro quo
corruption or its appearance.
37Defendants' Motion for Summary Judgment, Docket Entry No. 15,
pp. 14-15.
31
2.
Defendants Fail to Present Evidence that Temporal Ban Is
Closely Drawn to Avoid Infringement of First Amendment
Rights
Defendants argue that
[t] he challenged Ordinance is closely drawn to avoid
unnecessary abridgement of associational freedoms.
Far
from being an absolute ban on soliciting or accepting
contributions, the challenged ordinance is narrow in its
scope, merely setting a time frame in which individual
candidates may solicit or accept those contributions, and
does not limit the amount of contributions overall, nor
does it provide so short a window for robust campaigning
to occur. The Ordinance allows more than nine months of
fundraising before an election and four months after the
election is held.
There is no prohibition on generalpurpose political action committees soliciting or
accepting funds, nor is there any prohibition on any
candidate expending funds. There is no impingement on a
candidate's freedom of association or speech prior to the
fundraising period, as Gordon shows by his use of
FaceBook and Twitter and by his complaint that Ben Hall
is currently campaigning for Mayor.
There is no
limitation on Gordon's First Amendment rights under the
challenged provision. 38
Defendants argue that the temporal ban at issue is not an
absolute ban on soliciting or accepting contributions but, instead,
acts merely to delay collection of contributions
until
a
time
closer to an election,39 and does not provide too short a window for
robust campaigning to occur.
Defendants do not and cannot dispute,
however, that the challenged ordinance absolutely bans soliciting
38Id. at 17.
39See also id. at 9 (asserting that "the temporal limitation
does not operate as a 'ban' of all contributions for the election
cycle.
. but rather acts as a mere delay of the collection of
contributions until a time frame closer to the election").
32
or accepting contributions for a period of almost eleven months. 40
Although the temporal ban allows candidates to solicit and receive
contributions
for
a
thirteen-month
period,
only
nine
of
those
thirteen months precede an election while four months succeed an
election.
Missing
from
defendants'
briefing
is
any
evidence
showing that the nine-month period during which the challenged
ordinance allows candidates to solicit and receive contributions
before an election allows Gordon and other candidates to amass
resources needed to wage effective
campaigns.
See
In
re Cao,
619 F.3d at 420 (recognizing that whether restrictions impose too
stringent
of
a
burden
on
political
speech
depends
in
part
on
whether the restrictions prevent the candidate from "effectively
amassing the resources necessary to wage an effective campaign").
See
also
Buckley,
96
S.
Ct.
636
(explaining
that
whether
a
contribution limit is unconstitutionally low depends in part on
whether the limitation prevents the candidate from "amassing the
resources necessary for effective [campaign] advocacy").
To the extent that defendants argue that they are entitled to
summary judgment because Gordon has other opportunities for speech
and association during the period of the temporal ban, i.e., he may
spend his own funds, he may spend funds left over from his previous
40See n. 3, above, explaining the calculation of the number of
months that candidates for city elective office are respectively
banned from soliciting and receiving contributions and allowed to
solicit and receive contributions.
33
campaign, or he may use free social media,
merit.
this argument has no
The Fifth Circuit and the Supreme Court have both expressly
rejected
the
idea
that
scrutiny by citing
Catholic Leadership,
defendants
al ternati ve
764
can
avenues
F. 3d at
escape
of
430-31
First
Amendment
communication.
See
(rejecting the Texas's
argument that 60-day waiting period is narrowly tailored because
"interested speakers have many other opportunities for speaking
during the 60-day period") .
COH Ordinance
contributions
by
§
18-35(a) prohibits solicitation and receipt of
candidates
for
city
elective
office
for
a
significant eleven-month period of time spanning most of the offelection
year,
and
allows
candidates
to
solicit
and
receive
contributions for only nine months before an election and four
months after an election.
rights
of
free
speech
This prohibition impacts First Amendment
and
association
elective office such as Gordon.
of
candidates
for
city
See Buckley, 96 S. Ct. at 636-44.
Because defendants have failed to present any evidence establishing
that the challenged ordinance (1) advances the city's interest of
preventing quid pro quo corruption or its appearance,
closely drawn to advance that
interest,
summary judgment will be denied.
34
defendants'
or
(2)
is
motion for
IV. Plaintiff's Motion for
Prel~inary
Injunction
Gordon moves for a preliminary injunction to enjoin defendants
from
enforcing
the
temporal
ban
on
soliciting
and
receiving
contributions contained in COH Ordinance § 18-35(a) so that he can
exercise "fundamental rights to speech and association, protected
under the First Amendment to the United States Constitution, in the
immediate period leading up to the November 2015 City of Houston
elections."41
Gordon
also
moves
the
court
to
waive
the
bond
remedy
that
requirement of Federal Rule of Civil Procedure 65(c) .42
A.
Standard of Review
A preliminary
injunction
is
an
extraordinary
should be granted only if the movant clearly establishes:
substantial likelihood of success on the merits;
threat
(3)
of irreparable
that
the
inj ury if the
threatened
injury
if
inj unction
the
(1)
a
(2) a substantial
is
injunction
not
is
issued;
denied
outweighs any harm that will result if the injunction is granted;
and
(4)
that the grant of an inj unction will not disserve the
public interest.
Sells v. Livingston, 750 F.3d 478, 480 (5th Cir.
2014) (citing Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011)).
See also Jackson Women's Health Organization v. Currier, 760 F.3d
41Plaintiff's Motion for Preliminary Injunction, Docket Entry
No.2, p. 4.
42Id. at 25.
35
448, 452 (5th Cir. 2014).
The decision to grant or deny a motion
for preliminary injunction is left to the sound discretion of the
district court.
B.
Id. at 451 (citing Janvey, 647 F.3d at 591-92).
Analysis
1.
Substantial Likelihood of Success on the Merits
Gordon raises facial and as-applied challenges to the temporal
ban on soliciting and receiving contributions that COH Ordinance
§
18-35(a) imposes on candidates for city elective office.
Gordon
argues that he is likely to succeed on the merits because the
temporal ban at issue violates rights to freedom of speech and
association that the First Amendment guarantees to him and to other
candidates
for
unable
cite
to
city elective office,
any
evidence
capable
and that
of
defendants
establishing
that
are
the
challenged ordinance represents means that are closely drawn for
advancing
the
sufficiently
important
governmental
interest
of
preventing quid pro quo corruption or its appearance.
Defendants argue that Gordon is unlikely to succeed on the
merits
because
ordinance
facially
does
or
he
not
lacks
standing
violate
as-applied.
his
and
First
Defendants
because
the
Amendment
argue
that
challenged
rights
Gordon
either
lacks
standing because he cannot link the challenged ordinance to any
harm, but for the reasons stated above in
§
II.A,
the court has
already concluded that Gordon has standing to pursue this action in
36
federal court.
Defendants argue that the challenged ordinance does
not violate Gordon's First Amendment rights either facially or as
applied, but for the reasons stated above in § II.A and § II.B the
court has already concluded that defendants' motion to dismiss for
failure to establish standing under Article III and for failure to
state a claim for which relief may be granted should be denied
because Gordon has sufficiently alleged that COH Ordinance
§
18-
35(a) violates his First Amendment rights to freedom of speech and
association.
Although Gordon alleges both facial and as-applied challenges
to COH Ordinance §
18-35(a),
the Supreme Court has stated that
"[t]he label is not what matters.
The important point is that
plaintiffs' claim and the relief that would follow - an injunction
barring [enforcement of the challenged ordinance] the particular circumstances of th [is]
No.1 v. Reed, 130 S. Ct. 2811, 2817
reach beyond
plaintiff [] . "
(2010)
v. Stevens, 130 S. Ct. 1577, 1587 (2010)).
John Doe
(citing United States
Because Gordon seeks a
preliminary injunction that would enjoin defendants from enforcing
the temporal ban on soliciting or receiving contributions found in
City of Houston Code of Ordinances § 18-35(a) not just against him
but against all candidates for city elective office, Gordon must
satisfy the standards for a facial challenge.
To
present
a
colorable
claim
in
a
Id.
facial
challenge,
a
plaintiff must demonstrate that no set of circumstances exists
37
under which the challenged law would be valid, that the law lacks
any plainly legitimate sweep, or that a substantial number of the
law's applications are unconstitutional as judged in relation to
its plainly legitimate sweep.
Catholic Leadership, 764 F.3d at 426
(citing Stevens,
at 1587).
130 S.
Ct.
Defendants have already
moved for summary judgment arguing that the challenged ordinance
advances a sufficiently important interest, i.e., preventing quid
pro quo corruption and its appearance,
ordinance
is
closely
drawn
to
abridging First Amendment rights.
§
and that the challenged
advance
this
interest
without
For the reasons stated above in
III, the court has concluded that defendants' motion for summary
judgment should be denied because defendants have failed to cite
evidence showing that the challenged ordinance advances the city's
interest in preventing quid pro quo corruption or its appearance,
or that
it
is
closely drawn to do so.
The
court,
therefore,
concludes that Gordon has demonstrated a substantial likelihood of
success on the merits.
2.
Likelihood of Irreparable Injury
The
court
established
that
also
he
concludes
will
that
sustain
Gordon
irreparable
has
adequately
injury
unless
defendants are enjoined from enforcing COH Ordinance 18-35(a).
Defendants seek to minimize the harm caused to Gordon by arguing
that "the temporal limitation .
. does not operate to limit the
38
number of candidates a donor may support and does not force a donor
to choose which of several policy concerns he may advance," but
"acts as a mere delay of the collection of contributions until a
time frame close to the election.,,43
But both the Supreme Court and
the Fifth Circuit have said that "[t] he loss of First Amendment
freedoms for even minimal periods of time constitutes irreparable
injury justifying the grant of a preliminary injunction."
Texans
for
Burns,
Free
Enterprise,
732
F.3d at
96 S. Ct. 2673, 2689-90 (1976)).
539
(citing
Elrod v.
Moreover, the Fifth Circuit has
recognized that the ability to speak is limited when money cannot
be raised to pay for speech.
§
18-35(a)
See id.
The fact that COH Ordinance
abridges Gordon's rights of political expression and
association weighs in favor of finding irreparable harm.
3.
Balance Between Harm to Gordon and Harm to Defendants
Defendants have failed to articulate what, if any, harm they
will suffer if they are enj oined from enforcing the challenged
ordinance.
Instead, defendants merely repeat the same unsupported
anti-corruption grounds for enforcement.
The court concludes that
any harm caused to defendants by issuing the injunction does not
outweigh the more serious harm that will be suffered by Gordon if
the challenged ordinance is enforced against him.
43Defendants' Motion for Summary Judgment, Docket Entry No. 15,
p. 9.
39
•
4.
Balancing of Public Interest
The court
concludes
that
the public
interest will
disserved by issuance of a preliminary injunction.
Circuit stated in Texans for Free Enterprise,
not be
As the Fifth
732 F.3d at 539,
"injunctions protecting First Amendment freedoms are always in the
public interest."
5.
Conclusion
Because defendants have failed to present any evidence that
the temporal ban on soliciting and receiving contributions imposed
on candidates for city elective office by COH Ordinance
§
18-35(a)
is necessary to prevent corruption or the appearance of corruption,
and
because
Gordon
has
sufficiently
demonstrated
prerequisites to issuance of a preliminary injunction,
all
the
Gordon's
motion for preliminary injunction will be granted.
6.
Bond Requirement of Rule 65(c)
Gordon moves
Federal
Rule
of
the
Civil
court
to
Procedure
waive
the
65 (c) .44
bond
requirement
Defendants
have
of
not
responded to Gordon's request that the bond be waived.
Federal Rule of Civil Procedure 65(c) provides: "The court may
issue a preliminary inj unction
only if the movant gives
44Plaintiff's Motion for Preliminary Injunction, Docket Entry
No.2, p. 25.
40
security in an amount that the court considers proper to pay the
costs
and
damages
sustained
wrongfully enj oined."
by
any
party
found
to
have
been
Despite the apparently mandatory language of
Rule 65(c), the Fifth Circuit has held that a court, in the proper
exercise of its discretion, "may elect to require no security at
all"
in
an
appropriate
Kaepa,
case.
76 F.3d 624, 628 (5th Cir. 1996)
Inc.
v.
Achilles
Corp.,
(quoting Corrigan Dispatch Co. v.
Because there is
Casa Guzman, 569 F.2d 300, 303 (5th Cir. 1978).
no risk of monetary loss to the defendants as a result of this
preliminary inj unction, and because defendants have not, responded
to Gordon's request that the bond be waived, Gordon's request that
the bond be waived will be granted.
v. Conclusions and Order
For the
12 (b) (1)
reasons
and 12 (b) (6)
stated in
§
II.A and B,
Motion to Dismiss for
Claim and Memorandum of Law in Support,
Defendants'
Rule
Failure to State a
Docket Entry No.
11,
is
DENIED.
For the reasons stated in
§
III, above, Defendants' Motion for
Summary Judgment, Docket Entry No. 15, is DENIED.
For the reasons stated in
§
IV, above, Plaintiff's Motion for
Preliminary Injunction and request to waive the bond requirement of
Federal Rule of Civil Procedure 65 (c),
GRANTED.
Docket Entry No.2,
are
The City of Houston, Texas, and Annise Parker, Mayor of
41
the
City
of
Houston,
Texas,
are
PRELIMINARILY
ENJOINED
from
enforcing the temporal ban on soliciting or receiving contributions
in City of Houston Code of Ordinances
The court will conduct a
January 16,
2015,
§
18-35(a).
scheduling conference on Friday,
at 2:30 p.m.,
in Courtroom 9B of the Federal
Courthouse, 515 Rusk, Houston, Texas, 77002.
SIGNED at Houston, Texas, this
~~'th day of January, 2015.
Len
SIM LAKE
UNITED STATES DISTRICT JUDGE
7
42
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