Williamson Strong Opposition to Dismiss

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

WILLIAMSON STRONG, ) SARAH BARNARD, JIM CHENEY, ) SUSAN DRURY, KIM HENKE, ) No. 3:15-cv-0739 and JENNIFER SMITH, ) Judge Trauger ) Magistrate Judge Brown Plaintiffs, ) v. ) ) THE TENNESSEE BUREAU OF ETHICS ) AND CAMPAIGN FINANCE REGISTRY ) OF ELECTION FINANCE and ) TOM LAWLESS, PATRICIA HEIM, ) NORMA LESTER, and TOM MORTON, ) in their official capacities as members of the ) Tennessee Bureau of Ethics and Campaign ) Finance Registry of Election Finance, ) ) Defendants. ) ______________________________________________________________________________

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

______________________________________________________________________________

Case 3:15-cv-00739 Document 16 Filed 08/24/15 Page 1 of 23 PageID #: 235

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 2

STANDARD OF REVIEW ............................................................................................................ 5

I. Defendants’ Suggestion That This Court Should Abdicate its Jurisdiction Over Federal Constitutional Violations Would Lead to Ongoing Violations of Plaintiffs’ Rights. ............. 6

II. Plaintiffs’ Claims are Not Barred by the Eleventh Amendment. ............................................ 8

III.Defendants Misapply the Younger Abstention Doctrine, and Plaintiffs’ First Amendment Rights to Free Speech and Free Association are Too Important for this Court to Abdicate its Jurisdiction. ....................................................................................................................... 11

IV.Plaintiffs’ Claims Attacking the Constitutionality of the Application of a Statute is Not Barred by Tennessee’s Sovereign Immunity Statute. ........................................................... 16

CONCLUSION ............................................................................................................................. 18


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TABLE OF AUTHORITIES

Cases

ACLU v. Tennessee, 496 F. Supp. 218 (M.D. Tenn. 1980) .......................................................... 10

Bogaert v. Land, 675 F. Supp. 2d 742, 746 (W.D. Mich. 2009) .................................................. 15

Bowden Building Corporation v. Tennessee Real Estate Commission, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999) ........................................................................................................................... 19

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................... 7

Burford v. Sun Oil Co., 319 U.S. 315 (1943)................................................................................ 15

Bush v. Gore, 531 U.S. 98, 110 (2000) ......................................................................................... 18

Citizens United v. FEC, 558 U.S. 310, 312 (2010) ................................................................... 7, 17

Citizens United. Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 833 (7th Cir. Wis. 2014) ....... 7

Cornelius v. McWilliams, 641 S.W.2d 508, 514 (Tenn. Ct. App. 1982) ............................ 9, 18, 19

Cox v. Shelby State Cmty. College, 48 Fed. Appx. 500, 504 (6th Cir. 2002) ................................. 9

Erickson v. Pardus, 551 U.S. 89, 94 (2007) ................................................................................... 6

Hardin v. Straub, 954 F.2d 1193, 1200 (6th Cir. 1992) ............................................................... 12

Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975) ..................................................................... 13

Kansas for Life, Inc. v. Gaede, 38 F. Supp. 2d 928, 934 (D. Kan. 1999) ..................................... 16

Kentucky v. Graham, 473 U.S 159, 169 (1985) ............................................................................ 10

Lawson v. Shelby County, 211 F.3d 331, 335 (6th Cir. Tenn. 2000) ............................................ 11

McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000) ....................................................................... 9

Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. Tenn. 2001) ......................................... 11

Morrill v. Weaver, 224 F. Supp. 2d 882, 895 n.15 (E.D. Pa. 2002) ............................................. 16

Ross v. Mylan, Inc., No. 09-1094, 2009 U.S. Dist. LEXIS 88617 at *2 (W.D. Tenn. Aug. 20, 2009)............................................................................................................................................ 6

S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. Tenn. 2008) ........................................ 9


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Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983) ........................................................... 9

Sprint Communs., Inc. v. Jacobs, 134 S. Ct. 584, 588 (U.S. 2013) .................................. 12, 13, 15

Welch v. Texas Dep't of Highways & Public Transp., 483 U.S. 468 (U.S. 1987) ........................ 10

Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (U.S. 1989) ................................................. 10

Younger v. Harris, 401 U.S. 37 (1971) ......................................................................................... 13


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Come the Plaintiffs Williamson Strong, Sarah Barnard, Jim Cheney, Susan Drury, Kim

Henke, and Jennifer Smith, by and through their counsel of record, and hereby submit this

memorandum of law in opposition to Defendants’ Motion to Dismiss Plaintiffs’ complaint in its

entirety with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

INTRODUCTION

Plaintiff Williamson Strong is a group of parents that was created and facilitated by

Plaintiffs Sarah Barnard, Jim Cheney, Susan Drury, Kim Henke, and Jennifer Smith (the

“Individual Plaintiffs”) (collectively with Williamson Strong, “Plaintiffs”). Plaintiffs took an

active interest in their children’s schools, and in furtherance of this interest, the Individual

Plaintiffs created a linked website and Facebook page where members of the community could

share information and discuss issues facing Williamson County schools. (D.E. 1, Complaint

(“Compl.”), Page ID# 2). As could be expected in a forum for discussing public school activities,

school board members and their elections became a popular topic of conversation on Plaintiffs’

online forums. (Id.) The Individual Plaintiffs would often re-post news articles about school

board candidates and issues, and any interested community members could post their thoughts in

response to these articles, regardless of whether they were in agreement with the Individual

Plaintiffs’ preferences.1 (See, e.g., D.E. 1-2, Curlee’s Complaint to the Registry, PageID# 75, 81-

84 ). The Individual Plaintiffs also sent correspondence to those in their personal networks

seeking information on candidates and inviting people to participate in Williamson Strong. The

act of reposting third party articles and content and sending personal emails about a group one is

involved are the very type of political speech that the First Amendment is designed to protect.

1 The Individual Plaintiffs would remove offensive or off-topic posts, but never censored individuals’ views in any way, which created a vibrant forum for discussion and debate on school board politics and issues. (D.E. 1, Compl., at PageID# 13).


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Despite the fact that these communications are clearly protected by the First Amendment

of the United States Constitution, Susan Curlee (“Curlee”), a school board candidate who felt

that this dissemination of information and general policy-based discourse were not in her best

interest, filed a complaint against these parents with the Tennessee Bureau of Ethics and

Campaign Finance Registry of Election Finance (the “Registry”) alleging that Plaintiff

Williamson Strong was an unregistered “political campaign committee.” (Id.). Despite the fact

that Curlee’s complaint made no allegations of fundraising or candidate campaign expenditures,

and despite Tennessee law clearly indicating that only the local district attorney general,2 and not

the Registry, has jurisdiction over a purely local election such as the Williamson County School

Board election, Curlee’s baseless complaint was prosecuted by the Registry and Plaintiffs were

fined $5,000.00 under the Registry’s presumed authority granted by Tenn. Code Ann. § 2-10-

102(12)(A).3 (Id. at Page ID# 1-2).

This patently unjust outcome was the end result of a process that trampled on Plaintiffs’

rights at every possible turn. These violations of Plaintiffs’ rights included, but are not limited to,

the following acts:

a. Exercising jurisdiction over a complaint for which the Registry explicitly lacked jurisdiction;

b. Pursuing the complaint after the local district attorney general found no violations of law;

c. Refusing to follow the Registry’s own procedures to continue a hearing so the hearing could be attended by Plaintiffs’ attorney;

2 In fact, Curlee presented her complaint to the district attorney general, who refused to prosecute.

3 The Registry assessed penalties against the Individual Plaintiffs as the “altar egos” of Williamson Strong, despite never having provided the individual Plaintiffs with notice that they could be considered alter egos, nor having even raised this as a possible issue at any hearing.


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d. Issuing a show cause order against Plaintiffs despite the Registry’s lack of jurisdiction and there being no substantive claims presented;

e. Allowing Curlee to submit conjectural “evidence” that did not comply with Registry rules while refusing to acknowledge factual evidence submitted by Plaintiffs according to Registry rules;

f. Refusing to allow Plaintiffs’ attorney to present defensive arguments at any hearing;

g. Finding that Plaintiffs are a political campaign committee – despite never making a single reference to a single expenditure on behalf of a single candidate;

h. Fining Plaintiffs $5,000.00;

i. Punishing Plaintiffs for expenditures made to increase voter turnout, behavior which is explicitly exempted from being punishable under Tennessee campaign finance laws;

j. Accusing Plaintiffs of spoliation and destruction of evidence sua sponte, after all hearings had been concluded, based on internet posts that the Registry alleged were deleted by Plaintiffs to hide facts from the Registry—despite the fact that these very posts had been provided to the Registry by Plaintiffs and, to date, are still available online right where they always have been;

k. Finding Plaintiffs guilty of violations such as spoliation and destruction of evidence without ever giving Plaintiffs an opportunity to address these baseless and spurious accusations;

l. Considering personal political opinions presented and private emails sent by Plaintiffs Henke and Smith in their individual capacities to be official declarations of Plaintiff Williamson Strong—essentially stripping these two parents of their individual identities simply by associating with other engaged parents;

m. Insisting that a higher level of scrutiny apply to the acts of Plaintiff Williamson Strong because one (1) of its members, Plaintiff Susan Drury (“Drury”), happens to be employed by a Labor Union;

n. Refusing to acknowledge the only evidence on the record regarding said Labor Union, a sworn affidavit from Drury’s employer that Drury’s involvement with Williamson Strong had absolutely nothing to do with her employment in any way and that the Labor Union had no financial involvement in any Williamson County elections;

o. Deciding without any evidence whatsoever that Plaintiff Jennifer Smith was the puppet of a union she has no association with, without giving Smith an


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opportunity to defend herself against this sua sponte allegation and decision; and

p. Determining that Plaintiffs’ efforts to procure counsel to defend themselves against Curlee’s baseless allegations, an act that took place four months after the election had taken place, should be considered in-kind donations made on behalf of unidentified candidates.

(Id. at Page ID# 2-4).

In their Motion to Dismiss and Memorandum in Support, Defendants suggest that they

have an unmitigated right to ignore the protections provided to Plaintiffs’ rights under clearly

established United States and Tennessee laws. (D.E. 7, Motion to Dismiss; D.E. 8, Memorandum

in Support (“Memo.”), at PageID# 206).

Defendants have moved for the dismissal of Plaintiffs’ constitutional challenge in its

entirety with prejudice, essentially alleging that (a) federal courts should “abstain from

interfering in a state proceeding,” and (b) that the State of Tennessee is immune from suit

challenging the enforcement of Tennessee statutes that clearly conflict with the United States and

Tennessee Constitutions. (D.E. 8, Memo., Page ID# 210). Tennessee law is clear that (a) State

actors possess no immunity when it comes to constitutional challenges to Tennessee statutes, (b)

there is no Eleventh Amendment protection available to a Tennessee agency regarding the

declaratory and injunctive relief primarily sought in this case, and (c) the theory under which

Defendants move for this Court to abrogate its jurisdiction is entirely inappropriate in these

circumstances. Accordingly, Defendants’ Motion to Dismiss should be denied and Plaintiffs’

Complaint should proceed.

STANDARD OF REVIEW

In order to meet the pleading requirements of the Federal Rules of Civil Procedure, Fed.

R. Civ. P. 8(a)(2) only requires that a Complaint include “a short and plain statement of the claim

showing that the pleader is entitled to relief[.]” Courts have held that, on a motion to dismiss,


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“the key inquiry” is whether the facts in the complaint set out “a claim to relief that is plausible

on its face.” Ross v. Mylan, Inc., No. 09-1094, 2009 U.S. Dist. LEXIS 88617 at *2 (W.D. Tenn.

Aug. 20, 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When ruling on

a defendant’s motion to dismiss, the court must accept as true all of the factual allegations

contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). A Complaint must give

fair notice of the claim and the grounds upon which it rests, but it does not need detailed factual

allegations. Twombly, 550 U.S. at 555.

Here, Defendant’s Motion to Dismiss relies upon inapposite law and standards that

account for neither Tennessee precedent regarding the justiciability of unconstitutional

Tennessee statutes nor Sixth Circuit precedent regarding federal jurisdiction over claims that

may be redressable through state civil processes. Importantly, Defendants never put forth an

argument that their conduct did not violate Plaintiffs’ First Amendment rights; instead, simply

arguing that (1) Defendants are immune despite violating Plaintiffs’ rights, and (2) that this

Court should abdicate its jurisdiction over federal First Amendment violations.

I. Defendants’ Suggestion That This Court Should Abdicate its Jurisdiction Over Federal Constitutional Violations Would Lead to Ongoing Violations of Plaintiffs’ Rights.

Defendants are presently chilling Plaintiffs from engaging in conduct that is clearly

protected by the First Amendment, and they will continue to do so until a court of competent

jurisdiction instructs them that their behavior is unconstitutional. See, e.g. Exhibit A, Czarnecki,

Collin, “Williamson Strong lawsuit delays PAC hearings,” THE TENNESSEAN (August 13, 2015).

Defendants now argue that because an administrative review hearing has been set for December

14, 2015, a hearing which Defendants admit in their own memorandum in support of dismissal

cannot address the constitutionality of their actions, this Court should abdicate its jurisdiction


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and leave Plaintiffs and all Tennesseans’ Constitutional rights in jeopardy. Clarifying a doctrine

that has been in place since Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court has made it

abundantly clear that regulations on political speech must be narrowly tailored:

Because speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people--political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.

Citizens United v. FEC, 558 U.S. 310, 312 (2010) (internal quotation omitted). The Tennessee

statute being used to penalize Plaintiffs for discussing their local school boards’ policies and

chilling them from engaging in political speech going forward is clearly in violation of this

mandate. Additionally, all citizens’ rights are being chilled in that any married couple that

expends money to put a bumper sticker in support of a candidate on their car is arguably required

to pay $100 to the state and register as a political campaign committee to avoid being fined.

Informatively, the Seventh Circuit took a measured and expository approach in finding

that a similar Wisconsin law, defining a “political committee” as “every committee which is

formed primarily to influence elections or which is under the control of a candidate" was overly-

broad in the context of Citizens United. Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 833

(7th Cir. Wis. 2014). The Seventh Circuit acknowledged in Wis. Right to Life that Citizens

United had imposed a burden on states to reassess their campaign finance laws to ensure they

were narrowly tailored to an extent that they did not infringe on citizens’ First Amendment

protected political speech. Id. Here, Defendants used Tenn. Code Ann. § 2-10-102(12)(A)’s

definition of a political campaign committee to punish Plaintiffs for their protected conduct: “A

combination of two (2) or more individuals, including any political party governing body,

whether state or local, making expenditures, to support or oppose any candidate for public office


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or measure, but does not include a voter registration program.”4 This statute is clearly not

narrowly tailored in light of Citizens United, and is arguably even broader than the Wisconsin

statute, and this Court must exercise its jurisdiction to right Plaintiffs’ constitutional harms.

II. Plaintiffs’ Claims are Not Barred by the Eleventh Amendment.

This is an action primarily seeking injunctive and declaratory relief. Plaintiffs have

requested that this Court enjoin Defendants from continuing to engage in behavior that violates

the First Amendment of the United States Constitution. (D.E. 1, Compl., PageID# 30).

Defendants’ actions have chilled Plaintiffs from engaging in First Amendment-protected

conduct, and Plaintiffs seek relief that will clarify that they are permitted to post content online

that touches upon political issues without being fined by the Registry. (Id.). "It is beyond dispute

that federal courts have jurisdiction over suits to enjoin state officials from interfering with

federal rights." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983) (citing Ex parte

Young, 209 U.S. 123, 160-62 (1908)); see also S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507

(6th Cir. Tenn. 2008). As Plaintiffs seek injunctive relief against Defendants, the Eleventh

Amendment is not an impediment to Plaintiffs’ action. McKay v. Thompson, 226 F.3d 752 (6th

Cir. 2000) ("The district court correctly determined that the Eleventh Amendment permits

prospective injunctive relief…”); see also Cox v. Shelby State Cmty. College, 48 Fed. Appx. 500,

4 Curlee’s complaint against Plaintiffs had been brought under Tenn. Code Ann. § 2-10-102(12)(C): “Any committee, club, corporation, association or other group of persons which receives contributions or makes expenditures to support or oppose any candidate for public office or measure during a calendar quarter in an aggregate amount exceeding two hundred fifty dollars ($250),” and Plaintiffs proceeded at all times as if they needed only to respond to allegations pursuant to this threshold. It was only after it became clear that Defendants could not stretch Plaintiffs’ activities to meet the $250 threshold required by Tenn. Code Ann. § 2-10-102(12)(C) that Defendants shifted their strategy and applied the separate, broader definition of Tenn. Code Ann. § 2-10-102(12)(A) to Plaintiffs. To Plaintiffs’ knowledge, Tenn. Code. Ann. § 2-10-102(12)(A) has never previously been applied to a citizens’ group.


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504 (6th Cir. 2002). Damages are not permissible against the Tennessee government for

Plaintiffs’ claims regarding First Amendment violations, but general damages are still available

for Plaintiffs’ harms pursuant to the Tennessee Constitution. Cornelius v. McWilliams, 641

S.W.2d 508, 514 (Tenn. Ct. App. 1982).

Defendants use circular logic to suggest that the four state officials named as Defendants,

as sued in their official capacities, are deemed to be the State and therefore are immune from

suit. (D.E. 8, PageID# 208). Defendants’ suggestion that Plaintiffs cannot seek redress in federal

court for state officials’ violations of their rights guaranteed by the United States Constitution

flies in the face of centuries of federal jurisprudence and must be denied. Defendants’

summations and parentheticals discussing Eleventh Amendment jurisprudence are highly

misleading. As an example, Defendants cite to Welch v. Texas Dep't of Highways & Public

Transp., 483 U.S. 468 (U.S. 1987), in support of its averment that citizens cannot bring suit

against their own state or one of its agencies (D.E.8, PageID# 206), despite Welch containing the

following pertinent discussion regarding State officials:

The dissent's statement that sovereign immunity "protect[s] the States from the consequences of their illegal conduct" erroneously suggests that aggrieved individuals are left with no remedy for harmful state actions. Relief often may be obtained through suits against state officials rather than the State itself, or through injunctive or other prospective remedies.

Id. at 488 (citing Edelman v. Jordan, 415 U.S. 651 (1974)).

Similarly, Defendants rely on ACLU v. Tennessee, 496 F. Supp. 218 (M.D. Tenn. 1980),

to claim that Plaintiffs’ claims should be dismissed in their entirety because “Tennessee has not

waived its immunity under the Eleventh Amendment with respect to civil rights suits.” (D.E. 8,

PageID# 206). However, four state officials have been named in this action and the ACLU court


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found a state official is a proper defendant in a federal First Amendment action challenging a

Tennessee statute. ACLU, 496 F.Supp. at 221.

Defendants rely on Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (U.S. 1989), and

Kentucky v. Graham, 473 U.S 159, 169 (1985), to argue that Plaintiffs’ action seeking

declaratory and injunctive relief against Tennessee officials for violations of Plaintiffs’ rights

should be dismissed. (D.E. 8, PageID# 206-207). However, the Will court quoted the Kentucky

court in holding that such an action against state officials should proceed:

Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because "official-capacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S., at 167, n. 14; Ex parte Young, 209 U.S. 123, 159-160 (1908).

Will, 491 U.S. at 571.

Defendants also cite Lawson v. Shelby County, which clearly states “a federal court may

enjoin a ‘state official’ from violating federal law.” 211 F.3d 331, 335 (6th Cir. Tenn. 2000).

(D.E. 8, PageID# 206).

Finally, Defendants misstate that “as Plaintiffs have only asserted claims against the

Defendants in their official capacities under 42 U.S.C. § 1983, Plaintiffs’ complaint should be

dismissed in its entirety and with prejudice.” (D.E. 8, PageID# 207-208). To the extent that this

Court may determine that these four individuals’ conduct was outside of their scope as

Tennessee officials, and they should have been sued in their individual capacities, the Sixth

Circuit’s pleading standard has been met regardless of these Defendants not being explicitly

named in their individual capacities, as each Defendant has been given adequate notice of the

claims set forth against him or her. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. Tenn.

2001) (“[W]hile it is clearly preferable that plaintiffs explicitly state whether a defendant is sued


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in his or her ‘individual capacity,’ see, e.g., Hardin v. Straub, 954 F.2d 1193, 1200 (6th Cir.

1992), failure to do so is not fatal if the course of proceedings otherwise indicates that the

defendant received sufficient notice.”).

III. Defendants Misapply the Younger Abstention Doctrine, and Plaintiffs’ First Amendment Rights to Free Speech and Free Association are Too Important for this Court to Abdicate its Jurisdiction.

Plaintiffs have presented facts that demonstrate Tennessee campaign laws are outdated

and inappropriate in a post-Citizens United world, and their application by the Registry has led to

the suppression of Plaintiffs’ First Amendment rights. (D.E. 1, Compl.). Defendants contend that

this Court should apply the “Younger abstention” doctrine and abdicate its federal question

jurisdiction over Plaintiffs’ claims of First Amendment violations until Tennessee courts have

fully resolved the issue. (D.E. 8, PageID # 210). Defendants’ fail to properly explain the Younger

abstention doctrine. Initially, Younger only applied to criminal cases. Defendants do not allege

or claim that this action is a criminal action.5 Long after the Younger decision, the Supreme

Court allowed limited exceptions to Younger’s criminal only context. Defendants completely

disregard civil Younger abstention precedent: “[T]he pendency of an action in [a] state court is

no bar to proceedings concerning the same matter in the Federal court having jurisdiction.”

Sprint Communs., Inc. v. Jacobs, 134 S. Ct. 584, 588 (U.S. 2013) (citing Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (quoting McClellan v. Carland,

217 U.S. 268, 282 (1910))).

5 Obviously if this were a criminal action, Plaintiffs would have be entitled to a jury, to confront their accuser, certain evidentiary standards and the fact finder would have to have found beyond a reasonable doubt that Plaintiffs violated the law, etc. None of these rights or standards were provided to Plaintiffs. It bears repeating that the district attorney general, who had jurisdiction over this matter under Tennessee law, rejected Curlee’s initial complaint.


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Younger abstention originated as a doctrine that encouraged federal courts to abstain from

criminal cases until state courts had finished interpreting their own criminal laws. Younger v.

Harris, 401 U.S. 37 (1971). In the criminal law context, Younger abstention is indeed the rule.

Eventually, Younger abstention was extended into the civil context, but only for truly exceptional

circumstances, primarily civil state court proceedings that closely resemble criminal proceedings.

See, Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). The Supreme Court has severely limited

these circumstances in which the Younger abstention doctrine should apply:

“[O]nly exceptional circumstances,” we reaffirmed, “justify a federal court’s refusal to decide a case in deference to the States.” [New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (NOPSI)]. Those “exceptional circumstances” exist, the Court determined after surveying prior decisions, in three types of proceedings. First, Younger precluded federal intrusion into ongoing state criminal prosecutions. See ibid. Second, certain “civil enforcement proceedings” warranted abstention. Ibid. (citing, e.g., Huffman, 420 U.S., at 604). Finally, federal courts refrained from interfering with pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” 491 U.S., at 368 (citing Juidice v. Vail, 430 U.S. 327, 336, n. 12 (1977), and Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 13 (1987)). We have not applied Younger outside these three “exceptional” categories, and today hold, in accord with NOPSI, that they define Younger’s scope. Sprint Communs., Inc., 134 S. Ct. at 591. Thus, Younger abstention is the exception rather

than the rule, yet Defendants contend the burden should be placed on Plaintiffs to demonstrate

why Younger abstention should not apply. (D.E. 8, Defendants’ Memo., PageID# 214).

Defendants do not attempt to meet any of the “exceptional circumstances” that would justify a

federal court’s refusal to decide a case in deference to the States.6

None of the specific exceptions for this Court to abdicate its federal jurisdiction pursuant

to the Younger abstention doctrine that have been delinated by the Supreme Court apply here: 1)

6 It would be the height of unfairness if Defendants now attempted to do so in a reply brief when Plaintiffs are no longer allowed a response by right.


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the underlying issue is not a criminal prosecution; 2) the underlying administrative hearing

process has not even reached Tennessee state courts, despite Plaintiffs’ ongoing constitutional

harms, and even if it were currently being litigated in state courts, enforcement of campaign

finance statutes and regulations are not akin to a criminal prosecution (see, e.g., Huffman, 420

U.S. at 604); and 3) a finding that Tenn. Code Ann. § 2-10-102(12)(A) and/or any other

provision of the Tennessee campaign finance laws is unconstitutional has no bearing on

Tennessee courts’ ability to perform their judicial functions.

Importantly, Plaintiffs’ Complaint challenges whether the Registry even had jurisdiction

over Plaintiffs in the first instance regarding Plaintiffs’ First Amendment-protected conduct.

(D.E. 1, Compl., PageID# 17). Plaintiffs’ First Amendment rights have been abused by

Defendants, and Plaintiffs have suffered considerable losses in their efforts to thwart Defendants’

abuses of their First Amendment rights. (D.E. 1, Comp., PageID# 30-34). In fact, in their Motion

to Dismiss, Defendants quote precedent that establishes the remaining administrative remedies

available to Plaintiffs preclude the primary injunctive relief which Plaintiffs request: “an agency

has no authority to determine the constitutionality of a statute.” (D.E. 8, PageID# 214 (quoting

Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 458 (Tenn. 1995)). Defendants

contend that because Plaintiffs can eventually seek judicial review in Tennessee chancery court,

after yet another round of administrative proceedings which will further compound Plaintiffs

harms and losses, this precludes Plaintiffs from seeking reprieve for their past and ongoing

federal constitutional harms in federal court. (Id.) Unfortunately, the State’s ongoing conduct is

forcing the Plaintiffs (and other Tennessee citizens) to curtail clearly protected First Amendment

activity in order to avoid additional fines and punishment. This is not the sort of matter that can

wait years to be resolved. The Defendants’ view is completely contradictory to the Supreme


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Court’s Younger abstention instruction that “the pendency of an action in [a] state court is no bar

to proceedings concerning the same matter in the Federal court having jurisdiction.” Sprint

Communs., Inc., 134 S. Ct. at 588.

Further, because no state court proceedings have begun, Burford abstention may be the

more appropriate standard to apply. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). Under

Burford abstention, a federal court should abstain under certain conditions “[w]here timely and

adequate state-court review is available.” Bogaert v. Land, 675 F. Supp. 2d 742, 746 (W.D.

Mich. 2009). Burford abstention has been deemed inappropriate in regards to First Amendment

challenges of state laws:

"Abstention is 'an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.'" Saginaw Housing Comm'n v. Bannum, Inc., 576 F.3d 620, 625 (6th Cir. 2009) (quoting Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l., Ltd., 556 F.3d 459, 467 (6th Cir.2009)). The Supreme Court has stated that it is "particularly reluctant to abstain in cases involving facial challenges based on the First Amendment." Houston v. Hill, 482 U.S. 451, 467, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987); see also Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 534 (3d Cir. 1988) (expressing "serious doubts as to whether Burford abstention ever would be appropriate where substantial first amendment issues are raised"). Bogaert, 675 F.Supp.2d at 747; see also Morrill v. Weaver, 224 F. Supp. 2d 882, 895 n.15 (E.D.

Pa. 2002) (finding Burford abstention was "wholly inapplicable" to a First

Amendment challenge); Kansas for Life, Inc. v. Gaede, 38 F. Supp. 2d 928, 934 (D. Kan.

1999) (holding that Burford abstention is inappropriate in a First Amendment challenge of

state campaign finance laws).

There are currently election campaigns taking place in Tennessee, and Plaintiffs have a

right to openly discuss the elections, distribute information about the elections, demonstrate

favorable opinions about policies and issues, and associate with whomever they choose while

engaging in this discourse. This is particularly important given that the 2016 Presidential


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campaign is already underway, and the citizens of Tennessee have a right to know whether they

are allowed to discuss Presidential candidates over Facebook or the Internet without a

requirement to register as a political campaign committee. However, the Registry’s actions have

chilled Plaintiffs’ ability to engage in these First Amendment- protected activities. Defendants’

argument that Plaintiffs should wait until the conclusion of their administrative appeals and any

potential state court appeals before seeking injunctive and declaratory rights from a Court with

original jurisdiction over these issues would lead to an unnecessary and inappropriate prolonging

of Plaintiffs’ ongoing constitutional harms.7

Further, the importance of this Court weighing in on Defendants’ wrongdoing is further

illustrated by the subsequent conduct of Defendants as a result of Plaintiffs’ challenge. On

August 12, 2015, the Registry made an unforced sua sponte decision to cease addressing

citizens’ complaints of unregistered political campaign committee activity until after the

resolution of Plaintiffs’ challenge. See Exhibit A. The Registry’s decision to halt performing its

primary function has left the status of Tennessee’s campaign finance laws in doubt in the midst

of campaigns ranging from local city counsel to the President of the United States. Tennessee

citizens such as Plaintiffs have been chilled from engaging in political speech in fear that the

Registry may fine them for conduct that is clearly protected by the laws of the United States and

Tennessee. For instance, as illustrated in Plaintiffs’ Complaint, “a married couple who jointly

decide to place a political bumper sticker on their family car would rise to the definition of a

political campaign committee as established by the Registry.” (D.E. 1, Compl., PageID# 29-30).

7 Additionally, the state court proceedings could result in a finding that no jurisdiction existed for the Registry to bring the claim. While such a decision would remove Plaintiffs’ fine, it would not resolve the issue of whether Tenn. Code Ann. § 2-10-102(12)(A) and how it was applied by the Registry passes Constitutional muster.


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This absurd result in violation of Plaintiffs and all Tennesseans’ federally-protected rights must

be addressed immediately, and federal courts have a longstanding tradition and expertise in

untangling the complicated webs of First Amendment jurisprudence. See, e.g., Citizens United,

558 U.S. 310.

There is no doubt that this Court has jurisdiction over Plaintiffs’ claims. Primarily at

issue in Plaintiffs’ Complaint are constitutional deprivations and damages stemming from

Defendants’ belief that Tenn. Code Ann. § 2-10-102(12)(A) grants them the authority to fine any

pairing of individuals expressing opinions that might be deemed by the Registry as being in

favor or against any candidacy. (D.E. 1, Compl., PageID# 211). Plaintiffs have presented facts

that demonstrate Tenn. Code Ann. § 2-10-102(12)(A), and particularly Defendants' application

of it, have deprived Plaintiffs and their fellow Tennesseans of their ability to engage in First

Amendment-protected speech and association. (D.E. 1, Compl., Page ID# 29-30). Furthermore,

Plaintiffs have never been granted an opportunity to defend themselves against the Registry’s

conclusions of wrongdoing in violation of their due process rights guaranteed by the Fourteenth

Amendment. (D.E. 1, Compl., PageID# 28-29); Bush v. Gore, 531 U.S. 98, 110 (2000)

(discussing the importance of due process in terms of ensuring the application of state laws

respect all citizens’ Constitutional rights). These rights, and the harms suffered by Plaintiffs,

implicate fundamental interests protected by the United States Constitution, and accordingly, this

Court should exercise its jurisdiction over these important First Amendment issues.

IV. Plaintiffs’ Claims Attacking the Constitutionality of the Application of a Statute is Not Barred by Tennessee’s Sovereign Immunity Statute.

Plaintiffs have challenged the constitutionality of a Tennessee statute that Defendants

have interpreted as allowing the Registry to prohibit Plaintiffs from engaging in discourse over

elections, Tenn. Code Ann. § 2-10-102(12)(A), pursuant to Article I, Section 19 of the Tennessee


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Constitution. (D.E. 1, Compl., PageID# 32-33). Under Tennessee law, a “lawsuit attacking the

constitutionality of the application of a statute is not barred by the sovereign immunity statute.”

Cornelius v. McWilliams, 641 S.W.2d 508, 512 (Tenn. Ct. App. 1982). In Cornelius, a plaintiff

judge challenged Tenn. Code Ann. § 8-23-103(d), a Tennessee statute which limited judiciary

salary adjustments, as violating Article 6, Section 7 of the Tennessee Constitution. Id. at 514.

Before ultimately reaching a holding in the plaintiff’s favor, the Tennessee Court of Appeals first

roundly and succinctly rejected the Cornelius defendants’ argument that the complaint should

have been dismissed pursuant to Tenn. Code Ann. § 20-13-102(a), a statute that preserves much

of the Tennessee government’s sovereign immunity. Id. at 512. The Cornelius court clearly held

that “an official executing an unconstitutional act is not ‘acting by authority of the state’ within

the meaning of the statute.” Id. (quoting Stockton v. Morris and Pierce, 110 S.W.2d 480 (Tenn.

1937)). “A law unconstitutional is void, and confers neither right nor authority.” Id. (quoting

Lynn v. Polk, 76 Tenn. 121 (1881)).

Here, Plaintiffs have presented facts that demonstrate Tenn. Code Ann. § 2-10-

102(12)(A)’s overly-broad prohibition on political speech, as written and as applied by

Defendants, violates Article I, Section 19 of the Tennessee Constitution’s declaration that “[t]he

free communication of thoughts and opinions, is one of the invaluable rights of man and every

citizen may freely speak, write, and print on any subject…” (D.E. 1, Compl., PageID# 32-33).

Defendants have argued that Tenn. Code Ann. § 20-13-102(a)’s preservations of sovereign

immunity should control here and bar Plaintiffs’ claims from proceeding, but this approach is

untenable under Cornelius.8 Thus, under Tennessee law and contrary to Defendants’ argument

8 Defendants again misstate precedent regarding this argument, citing to Bowden Building Corporation v. Tennessee Real Estate Commission, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999), to argue that “Tennessee courts do not recognize a private cause of action for violation of the


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otherwise, sovereign immunity does not exist for Tennessee state officials regarding Plaintiffs’

challenges to the constitutionality of Tennessee’s election laws. Cornelius, 641 S.W.2d at 512.

CONCLUSION

Plaintiffs have set forth claims that Defendants do not contest establish that if Plaintiff

can prove their allegations that the Plaintiffs’ First Amendment and Tennessee Constitutional

rights have been violated. Defendants do not contest that these harms are ongoing. Instead,

Defendants seek to shirk their liability by seeking to hide their constitutional violations behind

immunity and abstention doctrines. As shown above, Defendants have not established that they

are entitled to immunity for constitutional violations or that this Court should abstain from ruling

on this case. Accordingly, Defendants’ Motion to Dismiss should be denied.

Respectfully submitted, /s/ J. Gerard Stranch, IV J. Gerard Stranch, IV, BPR No. 23045 Benjamin A. Gastel, BPR No. 28699 Seamus T. Kelly, BPR No. 32202 BRANSTETTER, STRANCH & JENNINGS, PLLC The Freedom Center 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Phone: (615) 254-8801 Fax: (615) 255-5419 [email protected] [email protected] [email protected] Counsel for Plaintiffs

Tennessee Constitution.” (D.E. 8, PageID # 208). Bowden actually states that there is no private cause of action for damages without express statutory authority under Tennessee law such as “Bivens actions” under federal law. Bowden, 15 S.W.3d at 446. This has no bearing on an action for declaratory and injunctive relief and seeking general damages naturally flowing from the underlying acts. Cornelius, 641 S.W.2d at 512.


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CERTIFICATE OF SERVICE

I, J. Gerard Stranch, IV, hereby certify that I caused a copy of the above Response in

Opposition to Motion to Dismiss to be filed electronically via the Court’s electronic filing

system. Those attorneys who are registered with the Court’s electronic filing system may access

these filings through the Court’s system, and notice of these filings will be sent to these parties

by operation of the Court’s electronic filing system.

Dated: August 24, 2015

/s/ J. Gerard Stranch, IV


Case 3:15-cv-00739 Document 16-1 Filed 08/24/15 Page 1 of 4 PageID #: 258




EXHIBIT A


EXHIBIT A


EXHIBIT A


EXHIBIT A


Williamson Strong Opposition to Dismiss

Documents

plaintiffs claims

plaintiffs response

tennessee bureau of

defendants motion

defendants suggestion

citizens united

united states district

amendment rights