Opinion
Civ. No. 03-0256-E-BLW.
July 3, 2003.
MEMORANDUM DECISION AND ORDER
INTRODUCTION
The Court has before it a motion for temporary restraining order filed by plaintiffs. The Court heard oral argument from all parties on July 3, 2003, and the motion is at issue. The Court will grant the motion for the reasons expressed below.
FACTUAL BACKGROUND
Plaintiffs — labor organizations whose political activities are regulated by the Voluntary Contributions Act (VCA) — filed suit to challenge the constitutionality of the VCA, 2003 Session Laws Chapters 97 and 340 (codified at Idaho Code §§ 44-2601 through 44-2605 and 44-2004), under the United States Constitution. The VCA became effective on July 1, 2003.
The VCA regulates the political activities of labor organizations not "governed by the national labor relations act . . . or the railway labor act" in myriad ways. I.C. § 44-2602(d). First, covered labor organizations are prohibited from expending union dues on political activities other than lobbying or member political education. Idaho Code § 44-2603(4). Thus these unions are prohibited from spending dues on independent expenditures related to political campaigns, administration of their union political action committees (PACs), or contributions to ballot measure campaigns. Second, the Act provides that covered unions may only fund other political activities through a separate segregated fund (SSF). Idaho Code § 44-2603. Third, any such SSF must be registered as a PAC, as required by chapter 66, title 67, Idaho Code, and must provide related, required financial disclosure filings. Idaho Code 44-2605. Fourth, individuals soliciting funds for such an SSF/PAC must recite or provide in writing a series of specific disclosures "[a]t the time the labor organization is soliciting contributions for the fund." Idaho Code § 44-2603(1) (2). Fifth, the VCA prohibits voluntary paycheck deductions to fund covered unions' PACs. Idaho Code § 44-2004(2).
A covered labor union or individual who solicits funds for their union PAC without providing the requisite disclosure or expends union dues moneys on political activities other than those allowed by § 44-2603(4) can be convicted of a misdemeanor. Idaho Code § 44-2604. Under the VCA, a defendant charged under § 44-2604 "has the burden of proof to establish" that they have conformed with the law. Idaho Code § 44-2603(3). In addition, individuals who violate the paycheck deduction prohibition can be convicted of a misdemeanor which carries a penalty of up to 90 days in jail and/or a fine of up to $1,000. Idaho Code § 44-2007.
Plaintiffs claim that the VCA violates several rights guaranteed them by the U.S. Constitution: (1) various provisions violate their First Amendment and Fourteenth Amendment rights to petition the government, freedom of speech, and freedom of association; (2) several of these constitute discriminatory regulation in violation of the Equal Protection Clause of the Fourteenth Amendment; (3) the burden of proof language in 1.C. § 44-2603(3) violates the Due Process Clause of the Fourteenth Amendment; and (4) the Act's regulation of political activities related to federal elections runs afoul of the Supremacy Clause. To block enforcement of the Act, Plaintiffs have sued the Bannock County Prosecutor, the Attorney General for the State of Idaho, and the Secretary of State of the State of Idaho.
ANALYSIS
1. Eleventh Amendment Immunity
The Eleventh Amendment shields state officers, such as the Attorney General and Secretary of State, from suit against them in their official capacities. See Quern v. Jordan, 440 U.S. 332, 339-40 (1979). An exception to this rule, first announced in Ex parte Young, 209 U.S. 123 (1908), allows suit "against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law." Seminole Tribe v. Florida, 517 U.S. 44, 73 (1996).
The present suit is seeking prospective injunctive relief to end an alleged continuing violation of federal law. In that sense, this action falls within Ex parte Young's exception. But Ex parte Young also requires "a connection between the official sued and enforcement of the allegedly unconstitutional statute." Long v. Vant de Kamp, 961 F.2d 151, 152 (9th Cir. 1992). The issue in the present case is whether the Attorney General and Secretary of State are sufficiently "connected" to enforcement of the VCA.
The Attorney General has a direct connection to enforcement of the payroll deduction provisions of the VCA. The VCA amended Idaho's Right-to-Work law by inserting a prohibition against payroll deductions for political activities. T.C. § 44-2004. The Attorney General has the independent authority to prosecute violations of the Right-to-Work law. T.C. § 44-2009. Thus, with regard to the payroll deduction aspects of VCA, the Attorney General has a clear connection to enforcement of the statute.
Another connection is provided by statutes giving the Attorney General authority to assist local prosecutors. County prosecutors are the primary enforcers of Idaho's criminal laws. See I.C. § 31-2227. The Attorney General has no authority to compel or control a county prosecutor over that prosecutor's objection. Newman v. Lance, 922 P.2d 395 (Id. 1996). However, the Attorney General does have authority to assist local prosecutors. I.C. § 67-1401(8) permits the Attorney General "[w]hen required by the public service" to "assist the prosecuting attorney thereof in the discharge of duties." The Governor may require the Attorney General to aid a local prosecutor in the discharge of his duties. I.C, § 67-802(7). A Board of County Commissioners may call upon the Attorney General to take over the duties of a local prosecutor when the prosecutor is "unable to attend to his duties." I.C. §§ 31-2603(a).
In Weyhrich v. Lance, Civ. No. 98-0117-S-BLW, the Court held that this authority to conduct prosecutions under well-defined circumstances gave the Attorney General a sufficient connection to enforcement of a statute to render Ex parte Young applicable. The reasoning of that case applies with equal force here.
The Court is more concerned with the connection of the Secretary of State. That office has the authority to enforce campaign contribution laws. T.C. § 67-6623. It is unclear to the Court, however, whether this authority, or other authority the office may hold, is a sufficient connection to render the Eleventh Amendment inapplicable. The Court has not received full briefing on this issue, and thus cannot render a final decision on the Eleventh Amendment issue with regard to the Secretary of State. The Court will deny the motion to dismiss at this time without prejudice to the Secretary's right to re-raise the motion at a later point.
2. Ripeness and Standing
The Attorney General argues that there is no threat of enforcement. He points to the lack of any evidence that the Attorney General has been asked to prosecute local violations of the VCA.
This argument, the Court has recognized, raises issues of ripeness and standing. Idaho Coalition United for Bears v. Cennarusa, Civ. No. 00-668-S-BLW (March 27, 1998). Whether the First Amendment issues are analyzed under the doctrines of ripeness or standing, the inquiry is whether "the plaintiffs face a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement or whether the alleged injury is too `imaginary' or `speculative' to support jurisdiction." Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc), cert. denied, 531 U.S. 1143 (2001) (internal quotations omitted).
Thomas does add a gloss to the ripeness inquiry, directing courts to examine whether "the plaintiffs have articulated a `concrete plan' to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged statute." Id.
The plaintiffs here have not declared that they intend to violate the law. They do assert, however, that they are intimidated by the criminal sanctions from exercising specific First Amendment rights. For example, Ron Davies, President of plaintiff International Association of Fire Fighters Local 743(IAFF) states that the IAFF wants to use general fund monies to support an effort to repeal Idaho's Right-to-Work laws in the November 2004 elections. In addition, the IAFF is presently engaged in collective bargaining over a new contract, and would be forced by the VCA to cease the present practice of allowing members to contribute to the IAFF PAC through voluntary payroll deductions.
These and other allegations show that plaintiffs' asserted harm is not "imaginary" or "speculative." The plaintiffs are curtailing certain specific activity, allegedly protected by the First Amendment, because they are concerned about criminal liability. It is this chilling effect, rather than any actual criminal prosecution or a prosecutor's threats to prosecute, that renders the case ripe for resolution: "[T]he alleged danger is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution." Virginia v. American Booksellers Ass'n Inc., 484 U.S. 383, 393 (1988).
Defendants counter that an injunction will not remove the chill because local prosecutors will still be free to bring criminal actions. This argument addresses the Article III requirement that plaintiffs' injuries must be redressed by a favorable decision. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). Plaintiffs meet that standard here; their injuries will be redressed by a decision that the VCA is unconstitutional. First, with regard to the plaintiffs located in Bannock County, the prosecutor with authority over them has consented to being enjoined and hence these plaintiffs will receive a direct benefit from the injunction. With regard to plaintiffs located elsewhere, the practical effect will be that other prosecutors will wait until the constitutionality of the VCA is finally determined. For these reasons, the Court finds that plaintiffs have standing and that this action is ripe for review.
3. Legal Standard for the Issuance of an Injunction
Plaintiffs are entitled to a temporary restraining order if they either demonstrate that they are likely to succeed on the merits and may suffer irreparable injury, or that serious questions exist on the merits and the balance of hardships tips in their favor. See Self-Realization Fellowship Church v. Ananda, 59 F.3d 902, 913 (9th Cir. 1995). The two tests are not separate but represent a sliding scale in which the required probability of success on the merits decreases as the degree of harm increases. Id. "Under any formulation of the test, the plaintiff must demonstrate that there exists a significant threat of irreparable injury." Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir. 1985).
4. Legal Analysis of Motion for TRO
Due to the expedited nature of the hearing in this case, the defendants had no real opportunity to respond to plaintiffs' 38 page brief. Thus, defendants reserved their arguments on the merits for a later hearing. Given these circumstances, the Court's ruling on the merits is highly provisional, and without precedential effect.
To determine what showing on the merits plaintiffs must make, the Court examines the balance of hardships. The harm to the plaintiffs consists of the presence of criminal sanctions that chill their exercise of constitutionally-protected political speech. Conversely, none of the defendants have indicated that a delay in enforcement of the VCA will impose any hardship upon them. The defendants' principle argument was that being subject to suit constituted injury under the Eleventh Amendment. The Court, however, has resolved this issue against the defendants above, and hence it cannot constitute injury for purposes of the hardship balancing test.
In this case, the balance of hardships clearly tips in the plaintiffs' favor. Thus, plaintiffs need only raise serious questions on the merits. The Court's cursory examination of the case law indicates that the plaintiffs have met their burden. There is at least a serious question whether the VCA restricts political expression in violation of the First Amendment. See Austin v. Michigan Chamber of Commerce, 494 U.S. 654 (1990). Thus, on the basis of an admittedly cursory review of the case law, the Court finds that the plaintiffs have carried their burden.
ORDER
In accordance with the terms of the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for temporary restraining order (docket no. 3, part 1) is GRANTED.
IT IS FURTHER ORDERED, that the TRO shall be binding on those entities listed in Federal. Rule of Civil Procedure 65(d).
IT IS FURTHER ORDERED, that the defendants are enjoined from enforcing the Idaho Voluntary Contribution Act.
IT IS FURTHER ORDERED, that a hearing shall be held on the preliminary injunction issues for July 14, 2003, at 10:00 a.m. in the Federal Courthouse in Pocatello, Idaho. Counsel should discuss among themselves whether this hearing could be a final hearing on a permanent injunction. Counsel may discuss with the Court's staff whether a later hearing date would be mutually agreeable, so long as they agree to maintain the TRO through that hearing date.
IT IS FURTHER ORDERED that the TRO shall remain in effect through the preliminary injunction hearing.
IT IS FURTHER ORDERED, that plaintiffs shall post a bond of $1,000 with the Clerk of the Court pursuant to Federal Rule of Civil Procedure 65(c).
IT IS FURTHER ORDERED, that the motion to dismiss (docket no. 19) is hereby DENIED without prejudice to the rights of the Secretary of State to re-raise the issues at a later point.