Corren v. Sorrell
OPINION AND ORDER denying 60 Motion for Attorney Fees; denying 63 Motion for Reconsideration ; denying 63 Motion for Relief from Judgment. Signed by Judge William K. Sessions III on 3/29/2017. (jam)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
DEAN CORREN, the VERMONT
PROGRESSIVE PARTY, STEVEN
HINGTGEN, RICHARD KEMP,
and MARJORIE POWER,
THOMAS J. DONOVAN, Vermont
Attorney General in his
official capacity, and
JAMES CONDOS, Vermont
Secretary of State in his
Case No. 2:15-cv-58
OPINION AND ORDER
Plaintiffs are challenging the constitutionality of
Vermont’s campaign finance statute as it applies to publiclyfinanced candidates.
In an Opinion and Order dated March 9,
2016, the Court found no constitutional infirmity in the statute
and dismissed the case without prejudice.
The scope of the
Court’s ruling was necessarily limited, as it had previously
abstained from deciding any issues presented in the civil
enforcement action being brought in state court against Plaintiff
Plaintiffs now contend that although their federal case was
dismissed, they prevailed on certain issues and are entitled to
attorneys’ fees and related costs.
They also move the Court for
reconsideration and/or relief from judgment.
For the reasons set
forth below, Plaintiffs’ motions are denied.
The Court has issued two fundamental rulings in this case.
The first, docketed on December 8, 2015, determined that the
Court must abstain from hearing any constitutional challenges
raised by Dean Corren “insofar as those challenges relate to the
enforcement action currently pending against him in state court.”
ECF No. 68 at 3.
The ruling allowed several other claims to
proceed, including those of Corren’s co-Plaintiffs and intervenor
On March 9, 2016, the Court ruled on all remaining claims
and found no basis for granting Plaintiffs relief.
In doing so,
the Court offered its opinion about those activities that are
exempt from being “contributions” under 17 V.S.A. § 2901(4), and
their relationship to the related expenditures provision in 17
V.S.A. § 2983(b)(1).
Accepting Defendants’ concessions with
respect to that relationship, the Court found that the exemptions
in Section 2901(4) apply throughout the campaign finance statute,
thus allowing “candidates to communicate freely with, and receive
meaningful assistance from, their supporters.
in particular may provide publicly-financed candidates with
office space, voter lists, training sessions, and other forms of
traditional party support without violating any statutory
ECF No. 58 at 26.
Consistent with its abstention ruling, the Court did not
determine whether a specific email, sent by the Vermont
Democratic Party (“VDP”) to approximately 19,000 people and
entitled “How you can help me help Dean Corren,” violated the
public financing portions of Vermont’s campaign finance law.
That question and any related defenses remain for the state
courts to resolve.
The Court understands that its interpretation of Section
2901(4) is based upon its assessment of how the Vermont Supreme
Court would interpret that provision.
Under this Court’s
interpretation, the email in question may fall within the
statutory exemptions and may thus resolve the dispute.
however, the state courts disagree with that interpretation, the
Plaintiffs may need to re-file this action such that the Court
can review the constitutionality of the entire public financing
Motion for Reconsideration
Plaintiffs now ask the Court to reconsider its March 9, 2016
Opinion and Order, claiming (1) that the Attorney General’s
conduct after the Court issued its ruling warrants additional
federal review, and (2) that the Court did not adequately address
the question of self-financing by publicly-financed candidates.
Plaintiffs have filed their motion pursuant to Federal Rules of
Civil Procedure 59(e) and 60(b).
Rule 59(e) may be used to alter
or amend a judgment, while Rule 60(b) provides relief from a
Under either rule, the accepted standard for
granting a motion for reconsideration “is strict, and
reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court
Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (citation omitted).
The Second Circuit has further instructed that a district
court may grant reconsideration if the movant demonstrates an
“intervening change in controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
Kolel Beth Yechiel Mechil of Tartikov, Inc.
v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (citing
Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245
(2d Cir. 1992)).
A motion for reconsideration is “not a vehicle
for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking
a ‘second bite at the apple.’”
Analytical Surveys, Inc., 684
F.3d at 52 (internal citation omitted).
The decision whether to
grant a motion for reconsideration rests within the “sound
discretion of a district court judge.”
Aczel v. Labonia, 584
F.3d 52, 61 (2d Cir. 2009); see McCarthy v. Manson, 714 F.2d 234,
237 (2d Cir. 1983).
Post-Judgment Enforcement Position
Plaintiffs first contend that after the Court issued its
March 9, 2016 Opinion and Order, the Attorney General adopted a
“new and heretofore undisclosed enforcement position” that
requires additional federal court relief.
ECF No. 63 at 1.
the state court case, the Attorney General has consistently
alleged that the email sent by the VDP constituted a coordinated
in-kind contribution to the Corren campaign.
Because Corren was
publicly-funded, and did not report or pay for the value of the
email, he allegedly violated his pledge to receive only public
Plaintiffs claim that after the Court issued its March 9,
2016 ruling, the Attorney General argued – reportedly for the
first time – that the statutory exemptions from the term
“contribution” do not apply to the VDP email because the email
urged voters to support a particular candidate.
As the Attorney
General wrote in his state court briefing, “[w]here, as here, an
‘objective observer’ would conclude that the purpose of a
communication ‘is to influence voters to vote yes or no on a
candidate,’ § 2901(4)’s definition of a contribution is
See ECF No. 63-1 at 4 (quoting State v. Green
Mountain Future, 2013 VT 87, ¶ 54, 194 Vt. 625, 86 A.3d 981).
Plaintiffs argue that this new position would essentially bar all
communications advocating for a publicly-funded candidate, and
that such a bar would severely restrict free speech rights as
well as the “rights of [publicly-funded candidates], supporters
and political parties to associate and to engage in collective
ECF No. 63 at 5.
Plaintiffs further submit
that the Court’s prior ruling, with its focus on the statutory
exemptions under Section 2901(4), is no longer sufficient to
protect their rights.
Defendants dispute Plaintiffs’ characterization of their
state court position.
While Plaintiffs suggest that the Attorney
General is proposing a complete ban on advocacy for publiclyfinanced candidates, Defendants respond that the Attorney General
must still show the sort of coordination between supporter and
candidate that would qualify the communication as a related
ECF No. 68 at 6 (“Because, as alleged in the
Complaint, the mass email was solicited, drafted, and accepted by
Corren and by his campaign staff, the State contends it is a
related expenditure and a contribution under the law.”).
Attorney General’s state court briefing also acknowledges the
Section 2901(4) exemptions, arguing that none apply to the VDP
ECF No. 63-1 at 5-6.
The state court enforcement action is premised upon the
allegation that the Corren campaign received a related
expenditure, yet failed to report it as a contribution.
the email did, in fact, constitute a related expenditure, and
whether any of the Section 2901(4) exemptions apply, are
questions for the state courts to determine.
This Court has
abstained, and will continue to abstain, from resolving those
Plaintiffs warn that the Attorney General’s current position
raises the prospect of new constitutional harms that will reach
beyond any state court ruling.
The Attorney General insists that
its arguments focus narrowly upon the Corren campaign’s conduct.
While broad constitutional issues may arise from a single case,
the construction of the Vermont campaign finance statute is
currently in the hands of the state courts, and beyond the
guidance provided in its May 9, 2016 Opinion and Order, this
Court will not, and indeed may not, interfere.
As to any specific grounds for reconsideration as
established in this Circuit’s case law, Plaintiffs point to no
intervening change in the law, no new evidence, and no data or
other information that the Court overlooked.
See Kolel Beth
Yechiel Mechil of Tartikov, Inc., 729 F.3d at 104.
Nor is there
a need to protect against manifest injustice.
To the extent
that Plaintiffs have concerns about the Attorney General’s state
court arguments, Dean Corren may raise those concerns in that
The motion for reconsideration on the basis of allegedly-
new arguments raised in state court is denied.
C. Self-Financing By Publicly-Funded Candidates
Plaintiffs’ second argument for reconsideration is that the
Court did not adequately address the question of self-financing.
Plaintiffs first raised the issue of self-financing as part of
their demand for a “rescue” provision that would allow publiclyfinanced candidates to spend beyond the statutory cap if they are
outspent by a traditionally-financed opponent.
ECF No. 11 at 6-
The Court found no constitutional basis for requiring such a
provision, and Plaintiffs do not seek reconsideration of that
The question of self-financing was most clearly presented in
the pleading submitted by Intervenor/Plaintiff Zuckerman, who
claimed a right to self-finance as part of his general attack on
See ECF No. 40 at 4 (alleging that “[t]he
fixed cap of §2983(b)(1) also violated Sen. Zuckerman’s right as
a candidate to self-finance his campaign”).
The Court’s March 9,
2016 Opinion and Order upheld those limits, noting that when
candidates accept public financing, they also agree to certain
See ECF No. 58 at 18 (citing Buckley v. Valeo, 424
U.S. 1, 57 n.65 (1976) for the proposition that the legislature
“may condition acceptance of public funds on an agreement by the
candidate to abide by specified expenditure limitations”).
Court further noted, albeit in the context of private
fundraising, that allowing unlimited expenditures in combination
with public funding would “render public financing meaningless,
since public funds would be just another means of funding” a
ECF No. 58 at 21 n.6.
Plaintiffs again cite no controlling decisions or data that
the Court overlooked.
Plaintiffs rely in part upon Davis v. FEC,
554 U.S. 724, 738-39 (2008), in which the Supreme Court
considered a statute, known as the “Millionaire’s Amendment,”
that offered certain benefits to candidates whose self-financed
opponents spent in excess of $350,000 in personal funds.
Supreme Court held that those benefits were unconstitutional
because they discouraged spending, and therefore speech, by the
Davis, 554 U.S. at 743-44.
provision at issue in Davis said nothing about a publiclyfinanced candidate contributing to his or her own campaign.
Plaintiffs also cite McCutcheon v. FEC, 134 S. Ct. 1434,
1442 (2014), which considered the constitutionality of a law that
restricted the amount a single donor could contribute “in total
to all candidates or committees.”
The Supreme Court struck down
these so-called aggregate limits, concluding that such limits, in
combination with the base limits on contributions to individual
candidates, forced donors to choose how many candidates they
That limitation, the Court held, furthered “the
impermissible objective of simply limiting the amount of money in
McCutcheon, 134 S. Ct. at 1456.
Davis, the ruling in McCutcheon has little application to this
The Court therefore finds that Plaintiffs have failed to
show valid grounds for reconsideration on the question of selffinancing.
To the extent that the issue was raised previously,
it was addressed in the Court’s prior Opinion and Order and
nothing in the Plaintiffs’ current briefing mandates a second
The motion for reconsideration is therefore denied.
III. Motion for Attorneys’ Fees and Related Costs
Although their case was dismissed, Plaintiffs have moved the
Court to award them attorneys’ fees and related costs under 42
U.S.C. § 1988.
As noted above, the Court’s May 9, 2016 Opinion
and Order accepted Defendants’ concessions and opined that the
exemptions set forth in 17 V.S.A. § 2901(4) apply throughout the
campaign finance statute.
The Court did not issue any sort of
injunction or declaratory relief, as Plaintiffs had requested.
A party is considered a prevailing party for purposes of
Section 1988 if the party “succeed[ed] on any significant issue
in litigation which achieves some of the benefit the parties
sought in bringing suit.”
Farrar v. Hobby, 506 U.S. 103, 109
(1992); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
“To qualify for attorney’s fees, there must be a ‘judicially
sanctioned change in the legal relationship of the parties.’”
Kirk v. N.Y. State Dep’t of Educ., 644 F.3d 134, 137 (2d Cir.
2011) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t
of Health & Human Res., 532 U.S. 598, 605 (2001)).
“In short, a
plaintiff prevails when actual relief on the merits of his claim
materially alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that directly
benefits the plaintiff.”
Farrar, 506 U.S. at 111–12; see also
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792–93 (1989) (“The touchstone of the prevailing party
inquiry must be the material alteration of the legal relationship
of the parties.”).
“The Plaintiff must obtain an enforceable
judgment against the defendant from whom fees are sought, or
comparable relief through a consent decree or settlement.”
Farrar, 506 U.S. at 111.
Plaintiffs submit that their case sought, among other
things, a ruling on the rights of political supporters to
associate with candidates.
The Court’s reading of Section
2901(4) addressed those rights, concluding that the statute
allowed for multiple forms of association between candidates and
Consistent with that view of the law, the
Court found no constitutional violation.
In setting forth its opinion about the role of the Section
2901(4) exemptions, the Court may have clarified, but did not
alter, the legal relationship between the parties.
had conceded in their briefing that the exemptions in Section
2901(4) applied throughout the statute, and in particular to the
related expenditures provisions.
Though Plaintiffs now claim
that Defendants’ concessions constituted a change in position,
and testimony before the Court suggested inconsistent enforcement
positions, the State’s filings in the enforcement action have
consistently acknowledged the possibility of a Section 2901(4)
See, e.g., ECF No. 2-2 at 2.
Plaintiffs’ claims were ultimately dismissed, albeit without
No injunction was ordered, and no declaratory
The legal relationships between the parties
remained unchanged, as the Court declined Plaintiffs’ invitation
to either strike down or re-write portions of Vermont’s campaign
The Court did offer a reading of the statute that
was, in its opinion, in keeping with the intent of the Vermont
That reading, though perhaps to the Plaintiffs’
liking, does not entitle them to attorneys’ fees and related
costs under Section 1988.
Their motion is therefore denied.
Dated at Burlington, in the District of Vermont, this 29th
day of March, 2017.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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