Swaffer v. Deininger et al

Filing 37

ORDER signed by Judge J P Stadtmueller on 3/16/09 as follows: denying as moot 19 plaintiffs' motion for leave to file an amended complaint; granting 32 defendants' motion to substitute parties - Victor Manian and Gordan Myse are hereby substituted for David Deininger and James Mohr; granting in part 20 plaintiffs' motion for summary judgment - Wis. Stat. §§ 11.23, 11.30 and Wis. Admin. Code [GAB] § 1.655 are unconstitutional as applied to plaintiffs; and, dismissing this action. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ J O H N SW A F F E R , JR. and MICHAEL RASMUSSEN, Plaintiffs, v. T H O M A S CANE, GERALD NICHOL, MICHAEL BRENNAN, W IL L IA M EICH, PHILLIP A. KOSS, VICTOR MANIAN a n d GORDAN MYSE,1 D e fe n d a n ts . ____________________________________________ C a s e No. 08-CV-208

ORDER
O n March 10, 2008, plaintiff John Swaffer, Jr. ("Swaffer") filed a complaint p u rs u a n t to 42 U.S.C. § 1983 seeking injunctive and declaratory relief against the n a m e d defendants, who are members of Wisconsin's Government Accountability B o a r d ("GAB"), and the W a lw o rth County District Attorney. The complaint alleged S w a ffe r's First and Fourteenth Amendment rights were infringed upon by certain W is c o n s in state election laws. Swaffer sought declaratory judgment and a p e rm a n e n t injunction barring defendants from enforcing the challenged laws, as well a s costs and attorney's fees. On March 20, 2008, the court granted Swaffer's m o tio n for a preliminary injunction pursuant to the parties' stipulation. (Order, March 2 0 , 2008, Docket #10). On March 27, 2008, Swaffer amended his complaint to in c lu d e plaintiff Michael Rasmussen ("Rasmussen"). (Docket #11). Defendants

Because the court will grant the defendants' m o tio n to substitute certain defendants, the court has m o d if ie d the case caption accordingly.

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m o ve d to dismiss plaintiffs' amended complaint for lack of subject matter jurisdiction a n d for failure to state a claim, which the court denied in an order issued on D e c e m b e r 17, 2008. ju d g m e n t. B AC K G R O U N D T h e parties do not dispute the material facts of this case, which the court set fo rth in its December 17, 2008 order: Swaffer is a resident of the Town of W h it ew a t er , a so-called "dry" to w n in W a lw o rth County, W is c o n s in . On April 1, 2008, residents of the T o w n of W h ite w a te r were asked to vote, via referendum, on whether to tu r n the town wet and allow liquor sales and licensing of liquor vendors. S w a ffe r alleges that he opposed the referendum, and wanted to mail p o s tc a rd s to fellow residents urging them to vote against the liquor p r o p o s a ls on the April 1, 2008, ballot.2 Swaffer also wanted to make ya rd signs advocating against passage of the referendum. Plaintiffs e s tim a te d the cost of producing and distributing the postcards and s ig n s to be approximately five hundred dollars. Plaintiff Rasmussen, a re s id e n t of nearby W a te rfo rd , W is c o n s in , alleges that he sought to c o n trib u te to Swaffer's effort to offset the cost of producing and d istrib u tin g the postcards and signs. Plaintiffs allege that these activities triggered an obligation under W is c o n s in state law to file a registration statement and make certain d is c lo s u re s . Specifically, W is . Stat. §11.23 requires individuals or
2

The court now considers plaintiffs' motion for summary

Plaintiffs included the contents of Swaffer's proposed m a i l e r as an exhibit to their Am e n d e d C o m p la in t , which the court reproduces: Side A T o w n of W h ite w a te r Residents: V o te NO on all liquor questions on April 1,2008 S id e B V O T E NO ON ALL LIQUOR SALES REFERENDUMS APRIL 1 M A IN T A IN PROPERTY VALUES H O L D DOW N PROPERTY TAXES S A V E ON LAW ENFORCEMENT P R E S E R V E THE INTEGRITY OF OUR TOW N V O T E NO TO ALL LIQUOR QUESTIONS ( A m . Com p l. Ex. A, Docket #11).

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g ro u p s promoting or opposing a referendum to file a registration s tate m e n t, designate a campaign depository account and treasurer, a n d disclose contributions and disbursements. W is . Stat. §11.30 and W is . Admin. Code § E1Bd 1.655 require persons who pay for, or are re s p o n s ib le for campaign communications to disclose their identity. R a s m u s s e n apparently filed a registration statement, complying with th e statutes. Swaffer, on the other hand, admits that he did not comply w ith the statutes. Instead, Swaffer commenced this action challenging th e validity of the statutes on its face and as it applies to Swaffer and R a s m u s s e n as individuals. (O rd e r, December 17, 2008, 2-3, Docket #31; Plaintiffs' Proposed Findings of Fact, D o c k e t #21) (footnote added). AN AL Y S IS T o prevail on a motion for summary judgment, the moving party must first e s ta b lis h that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986). Material facts are those facts that "might affect th e outcome of the suit," and a dispute about a material fact is "genuine" if a re a s o n a b le finder of fact could find in favor of the nonmoving party. See Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party meets this in itia l burden, a nonmoving party opposing summary judgment must set forth specific fa c ts showing that there is a genuine issue for trial, and may not rely on allegations o r denials in the nonmoving party's pleadings. Fed.R.Civ.P. 56(e). In conducting its re vie w , the court views all facts and draws all reasonable inferences in favor of the n o n m o vin g party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir. 2006).

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H e re , the parties do not dispute the material facts of this case, and d e fen d a n t s ' appear to concede that the statutes plaintiffs challenge are u n c o n s titu tio n a l as applied to the plaintiffs' circumstances. Rather, defendants o p p o s e the scope of the remedy plaintiffs seek, arguing that a permanent injunction b a rrin g them from enforcing the challenged statutes against plaintiffs under any c irc u m s ta n c e s would be inappropriate in this case. Defendants also suggest that the c o u r t issue an order enjoining defendants from enforcing the statutes against p la in tiffs only to the extent plaintiffs' campaign expenditures on future referenda are le s s than $1,000.00. Before addressing a possible remedy, the court considers w h e th e r Wis. Stat. §§ 11.23 and 11.30, as applied to the plaintiffs' circumstances, vio la te the First Amendment of the Constitution. T h e First Amendment prohibits the states from enacting laws that abridge the fre e d o m of speech, the right to peaceably assemble, or the right to petition the g o ve rn m e n t to redress grievances. See U.S. Const. amend. I; First Nat'l Bank of B o s to n v. Bellotti, 435 U.S. 765, 779-80 (1978) (discussing the First Amendment's a p p lic a b ili ty to the states through the Due Process Clause of the Fourteenth A m e n d m e n t). Because §§ 11.23 and 11.30 each raise distinct issues under the First A m e n d m e n t, the court will analyze each section separately. 1. W is . Stat. § 11.23 P la in tiffs assert that W is . Stat. § 11.23 places unconstitutional burdens on th e ir right, as individuals, to express their views on local and statewide referendum q u e s tio n s . Section 11.23 provides the following: -4-

(1) Any group or individual may promote or oppose a particular vote at a n y referendum in this state. Before making disbursements, receiving c o n trib u tio n s or incurring obligations in excess of $25 in the aggregate in a calendar year for such purposes, the group or individual shall file a registration statement under s. 11.05(1), (2) or (2r). In the case of a g ro u p the name and mailing address of each of its officers shall be g ive n in the statement. Every group and every individual under this s e c tio n shall designate a campaign depository account under s. 11.14. E v e ry group shall appoint a treasurer, who may delegate authority but is jointly responsible for the actions of his or her authorized designee fo r purposes of civil liability under this chapter. The appropriate filing o ffic e r shall be notified by a group of any change in its treasurer within 1 0 days of the change under s. 11.05(5). The treasurer of a group shall c e rtify the correctness of each statement or report submitted by it under this chapter. (2 ) Any anonymous contribution exceeding $10 received by an in d ivid u a l or group treasurer may not be used or expended. The c o n trib u tio n shall be donated to the common school fund or to any c h a rita b le organization at the option of the treasurer. (3 ) All contributions, disbursements and incurred obligations exceeding $ 1 0 shall be recorded by the group treasurer or the individual. He or s h e shall maintain such records in an organized and legible manner, for n o t less than 3 years after the date of a referendum in which the group o r individual participates. If a report is submitted under s. 11.19(1), the re c o rd s may be transferred to a continuing group or to the appropriate filin g officer for retention. Records shall include the information required u n d e r s. 11.06(1). (4 ) Each group or individual shall file periodic reports as provided in ss. 1 1 .0 6 , 11.19 and 11.20. Every individual acting for the purpose of in flu e n c in g the outcome of a referendum shall be deemed his or her o w n treasurer. No disbursement may be made or obligation incurred by o r on behalf of a group without the authorization of the treasurer or the tre a s u re r's designated agents. No contribution may be accepted and no d isb u rs e m e n t may be made or obligation incurred by any group at a tim e when there is a vacancy in the office of treasurer. (5 ) If a group which operates as a political committee has filed a single re g is tra tio n statement, any report of that group which concerns a c tivitie s being carried on as a political committee under this chapter

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s h a ll contain a separate itemization of such activities, whenever ite m iz a tio n is required. (6 ) If any contribution or contributions of $500 or more cumulatively are re c e iv e d by a group or individual supporting or opposing the adoption o f a referendum question from a single contributor later than 15 days p rio r to an election such that it is not included in the preprimary or p re e le c tio n report submitted under s. 11.20(3), the treasurer of the g ro u p or the individual receiving the contribution shall within 24 hours o f receipt inform the appropriate filing officer of the information required u n d e r s. 11.06(1) in such manner as the board may prescribe. The in form a tio n shall also be included in the treasurer's or individual's next re g u la r report. For purposes of the reporting requirement under this s u b s e c tio n , only contributions received during the period beginning with th e day after the last date covered on the preelection report, and ending w ith the day before the election need be reported. W is. Stat. § 11.23. The Supreme Court has recognized that compelled disclosure of campaignre la te d activities "can seriously infringe on privacy of association and belief g u a ra n tee d by the First Amendment." Buckley v. Valeo (Buckley I), 424 U.S. 1, 64 (1 9 7 6 ) (citations omitted). When disclosure laws regulate the "independent

e x p e n d it u re s made to further individuals' political speech," the court must closely s c ru tin ize the law to ensure it comports with the First Amendment's commands. See D a v is v. Fed. Election Comm'n, 128 S.Ct. 2759, 2774-75 (2008). To survive the c o u rt's scrutiny, "there must be a relevant correlation or substantial relation between th e governmental interest and the information required to be disclosed, and the g o ve rn m e n ta l interest must survive exacting scrutiny." Id. at 2775 (citations and in te rn a l quotation marks omitted). Exacting scrutiny requires the state have a

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c o m p e llin g interest in obtaining the disclosures it seeks. See Buckley I, 424 U.S. at 6 4 n.74 (citing NAACP v. Alabama, 357 U.S. 449, 463 (1958)). In support of their motion, plaintiffs argue that § 11.23 significantly burdens F irs t Amendment activities, and fails "strict scrutiny," as plaintiffs call it, because any g o ve rn m e n t interest the defendants have in enforcing § 11.23 on individuals wishing t o spend over $25.00 to advocate the passage or defeat of a referendum may be a c h ie ve d through less restrictive means. Plaintiffs assert that the registration, record k e e p in g and reporting requirements of § 11.23 are onerous on individuals seeking to make their voice heard on a referendum issue. Plaintiffs further argue that the tra d itio n a l interests proffered in support of election disclosure laws, including p ro m o tio n of an informed electorate, preventing fraud and corruption and detecting e le c tio n law violations, are not compelling when applied to individuals advocating th e ir position on a referendum. In opposing plaintiffs' motion, defendants appear to have opted not to argue in favor of upholding § 11.23, and defendants never explicitly put forth any g o ve rn m e n ta l interests that are furthered by § 11.23. To be sure, the court is under n o obligation to make the defendants' case for them. See Pelfresne v. Village of W illia m s Bay, 917 F.2d 1017, 1023 (1990) ("A litigant who fails to press a point by s u p p o rtin g it with pertinent authority, or by showing why it is sound despite a lack of s u p p o rtin g authority or in the face of contrary authority, forfeits the point"). However, d e fe n d a n ts do argue that in certain circumstances, voters may have a compelling in te re s t in knowing the identity of individuals who have both personal and financial -7-

in te re s ts in the outcome of a referendum, and who are attempting to influence the re s u lt of that referendum. As an example, defendants posit that if plaintiffs in this c a s e had been commercial purveyors of liquor, presumably in a neighboring town, v o te r s would have a compelling interest in knowing about plaintiffs' attempt to in flu e n c e the referendum vote. T h e court finds that the disclosure requirements set forth in W is . Stat. § 11.23 re g u la te plaintiffs' independent expenditures in furtherance of their political speech, a n d in doing so significantly encroach on plaintiffs' First Amendment interests. On its face, this section, along with its correlating sections in chapter 11 of the W is c o n s in Statutes, requires any individual disbursing, receiving or incurring o b lig a tio n s in excess of $25.00 in a calendar year for the purpose of promoting or o p p o s in g a referendum in W is c o n s in : (1) file a registration statement with a d e s ig n a te d filing official; (2) keep a dedicated bank account; (3) refuse anonymous c o n trib u tio n s greater than $10.00; (4) keep records of all contributions received, d is b u rs e m e n ts made and obligations incurred for at least three years after the r e f e r e n d u m ; and (5) file preelection reports and a termination statement with the G A B . See W is. Stat. §§ 11.23, 11.06, 11.19, 11.20(3)(k-l). The registration

s ta te m e n t must include the individual's name, address, the "nature of any r e fe re n d u m which is supported or opposed," and the name and address of the d e d ica te d depository account. W is. Stat. § 11.05 (2). These requirements act to in h ib it the open exchange of ideas and political conversations on referendum issues, a t least with respect to individual W is c o n s in ite s , like plaintiffs, who seek to inject their -8-

o p in io n s into the public debate. Therefore, § 11.23 warrant the court's exacting s c ru tin y. See generally Buckley v. Am. Constitutional Law Found., Inc. (Buckley II), 5 2 5 U.S. 182, 192 (1999). A p p lyin g exacting scrutiny, the court finds that § 11.23, as currently written, fa ils to address the matter of a relevant correlation or substantial relation between a compelling governmental interest and the information required to be disclosed. T h e only interest that the state, via the defendants, has put forth is the interest of the vo te rs knowing who is seeking to influence a referendum vote. Indeed, the court has n o doubt that the electorate's interest in knowing "where political money comes from a n d how it is spent," can be sufficiently compelling to warrant mandatory campaign fin a n c e disclosure laws. Buckley I, 424 U.S. at 66-67. The court also recognizes th a t campaign finance disclosure may meet the important goal of bringing light to p o litic a l corruption, although the Supreme Court has held that the potential for c o rrup tio n "simply is not present in a popular vote on a public issue." Bellotti, 435 U .S . at 790. However, the court finds that the public's interest in knowing where political m o n e y is coming from and how it is spent is substantially diminished in the context o f § 11.23. Referendum questions and candidate elections may often appear on the s a m e ballot, but they are fundamentally different. As the Supreme Court noted, "[t]h e direct participation of the people in a referendum . . . increases the need for the w id e s t possible dissemination of information from diverse and antagonistic sources." B e llo tti, 435 U.S. at 790 n.29 (citations and internal quotation marks omitted). In this -9-

c a s e , the referendum questions asked voters in the Town of W h ite w a te r to weigh in o n whether to keep their town dry, a question towns and states throughout the c o u n try have grappled with since the ratification of the Twenty-First Amendment of th e Constitution in 1933. See U.S. Const. amend. XXI, § 2; Philly's v. Byrne, 732 F .3 d 87, 93-94 (7th Cir. 1984) (upholding the constitutionality of using a referendum to regulate local sales of liquor). The government's interest in keeping the public in fo rm e d of where and how the teetotalers of W h ite w a te r are spending their money to rally support against a liquor referendum is not commensurate with the g o ve rn m e n t 's interest in knowing which candidates for public office those same te e to ta le rs financially support. See Buckley II, 525 U.S. at 203-04 (noting that fin a n c in g advocacy of ballot initiatives do not involve the same risks of corruption a n d fraud as financing individual candidate campaigns). W h ile states have "considerable leeway to protect the integrity and reliability o f the [election] process," they cannot place "undue hindrances to political c o n ve rsa t io n s and the exchange of ideas." Buckley II, 525 U.S. at 191-92.

R e q u irin g a private individual who expends as little as $26.00 to register with the s tate , open a dedicated bank account, keep detailed financial records for three years a n d file preelection reports with the state creates an undue hindrance to that in d ivid u a l's ability to advocate a position on a public referendum. Moreover, such d is c lo s u re requirements are not sufficiently related to the government's interest in p r o v id in g the public electorate with information to pass muster under the First A m e n d m e n t. See Volle v. Webster, 69 F.Supp. 171 (D. Me. 1999) (holding similar -10-

M a in e statute unconstitutional as applied). As a result, the court finds that § 11.23 is unconstitutional as applied to plaintiffs in this case. The court now turns to W is . S ta t. § 11.30. 2. W is . Stat. § 11.30 P la in tiffs next argue that W is . Stat. § 11.30 is unconstitutional under the First A m e n d m e n t based on the Supreme Court's decision in McIntyre v. Ohio Elections C o m m 'n , 514 U.S. 334 (1995). In McIntyre, the Supreme Court held unconstitutional a n Ohio statute prohibiting anonymous political campaign literature. Id. at 357. The p la in tiff in McIntyre had distributed leaflets at a public meeting in which the local s c h o o ls superintendent was discussing a school tax levy proposal. Id. at 337. In the le a fle ts , plaintiff advocated against the tax proposal, and she left some of the leaflets u n s ig n e d . Id. After a complaint was lodged against the plaintiff by a supporter of the ta x levy, Ohio's Elections Commission fined the plaintiff for failing to sign the leaflets in violation of an Ohio statute prohibiting anonymous political campaign literature. Id . at 338. In holding the statute unconstitutional, the Supreme Court emphasized th e importance of anonymous publications in our national political discourse, noting tha t "[a]nonymity is a shield from the tyranny of the majority." Id. at 357. The Court fo u n d that Ohio had "not shown that its interest in preventing the misuse of a n o n ym o u s election-related speech justifies a prohibition of all uses of that speech." Id . T h e court agrees that McIntyre applies to this case, and directs the result with re s p e c t to § 11.30. In relevant part, § 11.30 provides the following: -11-

(1 ) No disbursement may be made or obligation incurred anonymously, a n d no contribution or disbursement may be made or obligation in c u rre d in a fictitious name or by one person or organization in the n a m e of another for any political purpose. (2 )( a ) The source of every printed advertisement, billboard, handbill, s a m p le ballot, television or radio advertisement or other communication w h ic h is paid for by or through any contribution, disbursement or in c u rre d obligation shall clearly appear thereon. This paragraph does n o t apply to communications for which reporting is not required under s . 11.06(2). ... (c ) Every such communication which is directly paid for or reimbursed b y an individual, including a candidate without a personal campaign c o m m itte e who is serving as his or her own treasurer, or for which an in d ivid u a l assumes responsibility, whether by the acceptance of a c o n trib u tio n or by the making of a disbursement, shall be identified by th e words "Paid for by" followed by the name of the candidate or other in d ivid u a l making the payment or reimbursement or assuming re s p o n s ib ility for the communication. No abbreviation may be used in id e n tifyin g the name of a committee or group under this paragraph. W is . Stat. § 11.30. The GAB have interpreted "communication" to include "any p rin te d advertisement, billboard, handbill, sample ballot, television or radio a d ve rtis e m e n t, telephone call, and any other form of communication that may be u tiliz e d by a registrant for the purpose of influencing the election or nomination of a n y individual to state or local office or for the purpose of influencing a particular vote a t a referendum." W is . Admin. Code [GAB] § 1.655. D e fe n d a n ts appear to concede that § 11.30, as applied to plaintiffs in this c a s e , is unconstitutional under McIntyre. The court agrees. The statute in McIntyre p r o h ib ite d persons from making general publications which were designed to p ro m o te the election of a candidate or the adoption or defeat of any issue, or from

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fin a n c in g political communications, unless the author's name and address were c o n s p icu o u s ly placed in the publication or communication. See McIntyre, 514 U.S. a t 338 n.3 (quoting Ohio Rev. Code Ann. § 3599.09(A) (1988)). As with the Ohio statute in McIntyre, § 11.30 creates a broad prohibition of a n o n ym o u s political speech, and the possible state interests of preventing fraud, c o rru p tio n and providing the public with information on the sources of campaign fin a n c in g do not apply to the type of independent activities pursued by plaintiffs. See id . at 350-55. The only notable difference between the two statutes is that § 11.30 re q u ire s only the name of the source be disclosed, as opposed to the author's name a n d address in the Ohio statute. The court does not consider this sufficient to d is tin g u is h plaintiffs' case from McIntyre. See Majors v. Abell, 361 F.3d 349, 351-55 (7 th Cir. 2004) (upholding a statute that prohibited anonymous political a d ve rtis e m e n ts advocating a candidate). As a result, the court finds that § 11.30, a n d § 1.655 of its correlative administrative rule, run afoul of the First Amendment a s applied to plaintiffs in this case. 3. T h e Remedy H a vin g found both § 11.23 and § 11.30 of the W is c o n s in Statutes u n c o n s titu tio n a l as applied to plaintiffs in this case, the court now turns to plaintiffs' re q u e s te d relief. Plaintiffs' summary judgment motion includes a proposed order w h ic h would permanently enjoin defendants from enforcing §§ 11.23, 11.30 and W is . A d m in . Code [GAB] § 1.655, and order that defendants expunge any reports and the re g is tra tio n statement filed by Rasmussen. -13The proposed order also seeks a

d e c la ra tio n that the aforementioned statutory provisions are unconstitutional on their fa c e and as applied to plaintiffs. D e fe n d a n ts argue that the injunctive relief plaintiffs seek is not appropriate in th is case because it would allow plaintiffs to conduct anonymous political activities b e yo n d the scope of McIntyre. Defendants assert that they may have a compelling in te re s t to prohibit anonymous campaigning on future referenda in which plaintiffs h a ve a personal interest. Defendants also assert that it may have a compelling in te re s t in enforcing these sections against plaintiffs if they spend "large amounts of m o n e y" on a referendum campaign. In the alternative, defendants ask that the court lim it the application of any permanent injunction to plaintiffs' future expenditures of $ 1 ,0 0 0 .0 0 or less on a referendum. In reply, plaintiffs assert that defendants' proposed limitation would require the c o u rt to effectively rewrite W is c o n s in state law, and that any limited interpretation of § § 11.23 and 11.30 made by the court would not be binding on W isc o n s in state c o u rts . Plaintiffs also argue that defendants have not shown that their proposed fu tu re applications of §§ 11.23 and 11.30 would be constitutional. B e fo r e the court may grant a permanent injunction, a plaintiff seeking such re lie f must satisfy the following four factors: (1 ) that it has suffered an irreparable injury; (2) that remedies available a t law, such as monetary damages, are inadequate to compensate for th a t injury; (3) that, considering the balance of hardships between the p la in tiff and defendant, a remedy in equity is warranted; and (4) that the p u b lic interest would not be disserved by a permanent injunction.

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e B a y Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations omitted). P la in tiffs have not met this burden. In fact, plaintiffs' briefs do not even address th e s e factors, or the appropriateness of permanent injunctive relief in this case. W ith o u t a showing by plaintiffs of their entitlement to permanent injunctive relief, the c o u rt is unable to exercise its discretion in granting such relief. See generally e360 In s ig h t v. The Spamhaus Project, 500 F.3d 594, 603-04 (7th Cir. 2007) (requiring d is tric t courts explain their reasoning for issuing a permanent injunction). Moreover, d e fe n d a n ts ' request that the court construct a permanent injunction effectively re w ritin g W is c o n s in statutory law is beyond the court's power of under Article III of th e Constitution. See W is c o n s in Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1 1 8 6 -8 7 (7th Cir. 1998) (holding that district courts may not prescribe through an in ju n c tio n how a state must deal with future disputes arising under a statute). On plaintiffs' entitlement to declaratory relief, the court has set forth its re a s o n in g why §§ 11.23 and 11.30 are unconstitutional as applied to plaintiffs' c ir c u m s ta n c e s . However, plaintiffs assert that both provisions are also In determining whether statutory provisions are

u n c o n s titutio n a l on their face.

fa c ia lly overbroad or vague, the court must find that the provisions reach a s u b s ta n tia l amount of constitutionally protected conduct. See Village of Hoffman E s ta te s v, Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982). If the court fin d s they do, the court must then determine whether the statute is incapable of any va lid application. See id. at 494 n.5. Because of the relatively unsettled and e v o lvin g nature of First Amendment jurisprudence in the area of campaign finance -15-

la w s , and because it appears that the W is c o n s in Supreme Court has not addressed th e scope of these statutory provisions, the court declines to reach the issue of w h e th e r §§ 11.23 and 11.30 are unconstitutional on their face. See Doe v. Heck, 3 2 7 F.3d 492 (7th Cir. 2003) (holding that courts should decide as-applied c o n s titu tio n a l challenges before facial challenges); Commodity Trend Serv., Inc. v. C o m m o d ity Futures Trading Comm'n, 149 F.3d 679, 683 (7th Cir. 1998) (holding that if plaintiff succeeds on an as-applied challenge, district court need not consider a fa c ia l challenge). Plaintiffs also seek to have all records Rasmussen filed with state or local o ffic ia ls pursuant to §§ 11.23 and 11.30 expunged. However, the court's equitable p o w e r to order expungement of records is narrow, and most often sought when a c o n vic tio n is overturned on constitutional grounds. See United States v. Flowers, 3 8 9 F.3d 737, 739 (7th Cir. 2004) (applying a balancing test for expunging of c rim in a l records); Reyes v. Supervisor of Drug Enforcement Admin., 834 F.2d 1093 (1 s t Cir. 1987); Bromley v. Crisp, 561 F.2d 1351, 1364 (10th Cir. 1977) (holding that c o u rt's equitable power to expunge record is "reserved for extreme cases"). B e c a u s e plaintiffs have not shown that they have attempted to exhaust state a d m in is tra tive remedies to remove any applicable records defendants may retain, th e court declines to order defendants to remove such records today. Finally, plaintiffs' amended complaint seeks costs and attorneys' fees under 4 2 U.S.C. § 1988. In general, a prevailing party is entitled to costs, but not

a tto rn e ys ' fees. See Fed.R.Civ.P. 54(d). However, the Civil Rights Attorney's Fees -16-

A w a rd s Act of 1976, as amended, 42 U.S.C. § 1988, grants the court discretion to a w a rd reasonable attorneys' fees to the prevailing party in an action brought p u rs u a n t to 42 U.S.C. § 1983. A prevailing party is one that succeeds "on any s ig n ific a n t issue in litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (citation omitted) (in te rp re tin g 42 U.S.C. § 1988). Although the court has not granted all the relief p la in t if f s sought in this case, the court considers plaintiffs to be prevailing parties u n d e r 42 U.S.C. § 1988(b), and will allow plaintiffs to seek reasonable attorneys' fe e s as part of its costs. See King v. Illinois State Bd. of Elections, 410 F.3d 404, 4 1 6 (7th Cir. 2005) (noting that "prevailing civil rights plaintiffs are entitled to their a tto r n e y s ' fees as a matter of course"). In seeking attorneys' fees and costs,

p la in tiffs are directed to follow the court's procedures for filing a bill of costs. See C ivil L.R. 54.1 and 54.2. The court will also deny as moot plaintiffs' motion to amend their complaint to in c lu d e the clerk of the Town of W h ite w a te r, W is c o n s in . (Docket #19). In light of the c o u rt's decision not to order expungement, plaintiffs have not demonstrated that the c le rk is an interested party, and the addition of a new party-defendant at this late h o u r in litigation would only cause needless delay. The court will, however, grant d e fe n d a n ts ' motion to substitute certain defendants sued in their official capacity as m e m b e rs of the GAB. See Fed.R.Civ.P. 25(d). A c c o r d in g ly ,

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IT IS ORDERED that plaintiffs' motion for leave to file an amended complaint (D o c k e t #19) be and the same is hereby DENIED as moot; IT IS FURTHER ORDERED that defendants' motion to substitute parties (D o c k e t #32) be and the same is hereby GRANTED; Victor Manian and Gordan M ys e are hereby substituted for David Deininger and James Mohr. IT IS FURTHER ORDERED that plaintiffs' motion for summary judgment (D o c k e t #20) be and the same is hereby GRANTED in part; it is hereby DECLARED tha t W is. Stat. §§ 11.23, 11.30 and W is . Admin. Code [GAB] § 1.655 are u n c o n s titu tio n a l as applied to plaintiffs. I T IS FURTHER ORDERED that this action be and the same is hereby D IS M IS S E D . T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 16th day of March, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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