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stating that the Declaratory Judgment Act, 10 Del. C. Ch. 65, is "not to be used as a means of eliciting advisory opinions from the courts"
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Civ. No. 17453.
Submitted: April 13, 2000.
Decided: May 10, 2000.
David L. Finger, Esquire, of DAVID L. FINGER, P.A., Wilmington, Delaware; OF COUNSEL: Robbin G. Stewart, Esquire, of TAVEL STEWART, Indianapolis, Indiana, Attorneys for Plaintiff.
Malcolm S. Cobin, Esquire, C. Drue Chichi, Esquire, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorneys for Defendants.
MEMORANDUM OPINION
In this constitutional challenge brought pursuant to 42 U.S.C. § 1983 and Delaware law, an anonymous plaintiff ("Anonymous") argues that a Delaware statute, 15 Del. C. § 8023 (a), imposes an impermissible restraint on anonymous political speech by requiring that campaign literature, commercials, or other forms of political communication identify the person who paid for its production. Anonymous intends to set up a web site promoting political candidates, including candidates for Delaware office, that would be accessible from places throughout the world, including Delaware. Before doing so, Anonymous has brought suit to obtain an order from this court that would: (1) declare that 15 Del. C. § 8023 (a) is unconstitutional under the First Amendment to the United States Constitution and Article I, §§ 3 and 5 of the Constitution of the State of Delaware; and (2) enjoin the defendants, the State of Delaware and Delaware Attorney General M. Jane Brady (hereinafter collectively the "Attorney General"), from enforcing § 8023(a).
The Attorney General has moved to dismiss this action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) on the ground that no actual controversy ripe for judicial decision exists. More specifically, the Attorney General argues that Anonymous has failed to demonstrate a real and immediate threat that § 8203(a) will be enforced. For reasons explained below, I conclude that the Attorney General is correct in asserting that the requisite adversity does not exist in this litigation and that Anonymous's dispute with her is therefore not justiciable, or "ripe."
The Attorney General has also argued that the State itself is not a "person" under § 1983. Anonymous concedes that point, and dismissal of the § 1983 claim against the State is therefore appropriate on that ground as well. For the purposes of this motion alone, however, the Attorney General has conceded that the State of Delaware is subject to suit under Delaware's Declaratory Judgment Act for declaratory relief. See 10 Del. C. § 6501 (providing in relevant part that "[e]xcept where the Constitution of this State provides otherwise, courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed"). More generally, the Attorney General has also conceded that, to the extent Anonymous pleads a justiciable claim, this court has equitable jurisdiction over this suit by virtue of 15 Del. C. § 8042, regardless of whether a proper claim for injunctive relief has been pled. See Oral Argument on Defendants' Motion to Dismiss, tr. at 68 (Apr. 13, 2000); 15 Del. C. § 8042 ("For purposes of any civil remedy on behalf of any injured person, the Court of Chancery shall have jurisdiction.").
Finally, because I conclude that dismissal is appropriate in this matter, I also do not reach the Attorney General's claim that even if Anonymous were permitted to proceed with this action, the suit could not be maintained anonymously because the requisite exceptional circumstances do not exist. See Ct. Ch. R. 4(b) ("[t]he summons shall . . . contain the name of the Court and the names of the parties. . . .") (emphasis added); see also, e.g., Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) ("only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of a plaintiff's identity" will a plaintiffs substantial privacy right outweigh the "`customary and constitutionally-embedded presumption of openness in judicial proceedings'") ( quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. Unit A Aug. 1981)).
I. Factual Background
Anonymous is a politically active resident of Bennington, Vermont who wants to operate a web site on an anonymous basis in order to promote candidates for state and federal political office in various jurisdictions of the United States. According to Anonymous, many web servers' terms of service require that web site operators refrain from violating state or federal law. In addition, Anonymous complains, such terms of service also frequently require that web site operators indemnify the web server against any costs resulting from any violation of law caused by the web site operator's use of the server. Thus Anonymous alleges that he is constrained in the exercise of his First Amendment rights by the possibility that his proposed web site will violate § 8023(a) of Delaware's Campaign Financing and Disclosure Act. At oral argument, Anonymous's counsel conceded that Anonymous has not yet set up his web site nor even negotiated with a web server about setting up such a site.In 1990, the General Assembly enacted Chapter 80 of Title 15, including §§ 8021 and 8023, both of which concern the identification of purchasers of campaign literature or advertising. Section 8021, entitled "Identification of purchaser," provides that "[a]ll campaign literature or advertising, except on items with a surface of less than 9 square inches, shall display prominently the statement: "Paid for by (name of political committee or other person paying for such literature or advertising)." Section 8023(a), which is the sole focus of this constitutional challenge, similarly provides:
All campaign literature, advertising (except on items with a surface of less than 9 square inches) or other message paid for by independent expenditures shall prominently and at all times display the following statement: "Paid for by (name of person paying for the literature, advertising or other message). Not authorized nor paid for by any candidate or by any committee of any candidate. The cost of presenting this message is not subject to any campaign contribution limits." If the independent expenditure is made or reimbursed by a political action committee or other person other than an individual, the names of the president (or other chief officer) and treasurer or such organization shall be prominently displayed with the rest of the above statement.
Section 15 Del. C. § 8043 of Title 15, in turn, sets forth the penalties for violations of Chapter 80, making guilty of a class A misdemeanor any person "who knowingly makes an unlawful contribution or expenditure" in violation of §§ 8021 or 8023."
Finally, although neither party focused on this provision in their briefs, § 15 Del. C. § 8041(2) of Title 15 requires the Commissioner of Elections to give advisory opinions concerning the legality of proposed actions under Chapter 80 of Title 15. Specifically, § 8041(2) states that the Commissioner shall:
[a]t the request of any person, make a ruling that applies this chapter to a set of facts specified by the person. The entire such ruling shall be made in writing, and a copy thereof shall be made available to any person, except that the identity of the person that requested the ruling shall not be disclosed without the person's consent. Copies of the ruling shall be mailed immediately to the Governor, the Attorney General and the chair of each political party entitled to be listed on any general election ballot under § 3001 of this title. Within 7 days after any such ruling is made, a summary thereof shall be mailed to each candidate having a committee which has not completed its activities on file in the office of the Commissioner and shall be distributed to any person who has, within the previous 12 months, requested distribution of such summaries. Any candidate or treasurer who reasonably and in good faith acts in reliance upon any ruling requested by that candidate or treasurer pursuant to this section, shall not be liable nor subject to any penalty with respect to conduct conforming to the ruling, provided there was a full disclosure to the Commissioner of all material facts necessary for the ruling.
15 Del. C. § 8041 (2) (emphasis added).
Anonymous has acknowledged that he has never requested a § 8041(2) advisory opinion from the Commissioner of Elections concerning the potential application of 15 Del. C. § 8023 (a) to his proposed web site.
In 1995, the United States Supreme Court issued its opinion in McIntyre v. Ohio holding that an analogous Ohio statute violated the First Amendment to the United States Constitution. Like §§ 8021 and 8023 of Delaware's Title 15, the Ohio provision also prohibited the posting or distribution of political messages without the sponsor's identification. In its decision in McIntyre, the Supreme Court applied the strict scrutiny review required for limitations on political expression to find that Ohio had not "shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech" and that the Ohio statute constituted an impermissibly "indiscriminate outlawing [of] a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented."
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
The Ohio provision in question, § 3599.09(A) of the Ohio Code, provided as follows:
No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor. The disclaimer "paid political advertisement" is not sufficient to meet the requirements of this division. When such publication is issued by the regularly constituted central or executive committee of a political party, organized as provided in Chapter 3517. of the Revised Code, it shall be sufficiently identified if it bears the name of the committee and its chairman or treasurer. No person, firm, or corporation shall print or reproduce any notice, placard, dodger, advertisement, sample ballot, or any other form of publication in violation of this section. This section does not apply to the transmittal of personal correspondence that is not reproduced by machine for general distribution.
The secretary of state may, by rule, exempt, from the requirements of this division, printed matter and certain other kinds of printed communications such as campaign buttons, balloons, pencils, or like items, the size or nature of which makes it unreasonable to add an identification or disclaimer. The disclaimer or identification, when paid for by a campaign committee, shall be identified by the words "paid for by" followed by the name and address of the campaign committee and the appropriate officer of the committee, identified by name and title.McIntyre, 514 U.S. at 338 n. 3 ( quoting Ohio Rev. Code Ann. § 3599.09 (A) (1988)).
Id., 514 U.S. at 345-46 ( citing Meyer v. Grant, 486 U.S. 414, 420 (1988)).
Id., 514 U.S. at 357.
Shortly after the Supreme Court handed down the McIntyre decision, Delaware's Commissioner of Elections asked the Attorney General for her opinion as to whether 15 Del. C. § 8021 and 8023 were enforceable in light of McIntyre. On September 29, 1995, she responded with Attorney General's Opinion 95-FB01, stating that §§ 8021 and 8023 "would likely be held to violate the freedom of speech provision of the First Amendment of the United States Constitution under the decision in McIntyre." After discussing the Supreme Court opinion in some detail, the opinion letter concluded that "unless and until McIntyre is limited by subsequent case law, we believe it must be read to encompass statutes such as 15 Del. C. § 8021 and § 8023 and believe that such statutes are, at present, unenforceable."
Del. Atty Gen. Op. No. 95-FB01, Letter from Delaware State Solicitor Michael J. Rich and Assistant State Solicitor Malcolm S. Cobin to Delaware Commissioner of Elections Thomas J. Cook, at 2 (Sept. 29, 1995) (Defs. Motion to Dismiss Ex. A) (hereinafter "Attorney-General Advisory Opinion").
Id.
Thus the Department of Justice advised the Commissioner of Elections to "no longer attempt to enforce the statute to the extent it requires the identification of the person(s) responsible for such campaign literature, or advertising, which the Supreme Court has held to be `pure political speech.'" The opinion letter further stated that the Department of Justice "will not enforce these requirements by means of criminal prosecutions under 15 Del. C. § 8043 (b)." Anonymous does not allege that either the Election Commissioner or the Attorney General has ever attempted to enforce § 8023 against Anonymous or any other person.
Id. at 7.
Id.
At oral argument, the Assistant State Solicitor also stated his belief that the Department has not attempted to enforce § 8023 (a) by means of criminal prosecution since 1995 and, to his knowledge, has never attempted to enforce § 8023(a) since it was enacted. Oral Argument on Defendants' Motion to Dismiss, tr. at 3.
In the summer of 1999, Anonymous's counsel wrote a letter to the Attorney General announcing that he represented "individuals who own Internet websites devoted to discussion of political issues and promotion of political candidates" who intended "to promote certain candidates for political office in Delaware during the upcoming campaign season" on an anonymous basis. The letter requested the Attorney General's assurance that the Department of Justice's "former opinion still holds" and that "neither you nor anyone else from the Delaware Department of Justice will make any effort to prosecute for an alleged violation of 15 Del. C. § 8021 and/or 8023." The fact that the statutes "remain[ed] on the books" meant that his clients "face[d] the risk of a change in policy, leading to criminal penalties if they [went] forward as planned" and that "[t]his create[d] an environment chilling their constitutional free speech rights."
Letter from David L. Finger, Esq. to Delaware Attorney General M. Jane Brady, at 1 (July 20, 1999) (Compl. Ex. A).
Id. at 1-2.
Id. at 1.
In response, Assistant State Solicitor Malcolm S. Cobin explained in a letter dated July 29, 1999 that "only a final opinion by a court can ensure that the statutes in question are unenforceable and the facts always play a role in such a determination." As a consequence, the Assistant State Solicitor concluded, "while our [1995 Attorney General's Opinion 95-FB01] has not been superceded by any subsequent opinion you, as your clients' lawyer, will need to advise them as to whether the facts of their case and the law expose them to any risk." Shortly after receiving the Assistant State Solicitor's July 29, 1999 letter, Anonymous filed suit in this court seeking declaratory and injunctive relief with respect to 15 Del. C. § 8023 (a).
Letter from Assistant State Solicitor Malcolm S. Cobin to David L. Finger, Esq., at 1 (July 29, 1999) (Compl. Ex A).
Id.
II. Legal Analysis: Dismissal Is Required Because No Justiciable Controversy Exists
The Attorney General argues that I must dismiss this case pursuant to Court of Chancery Rule 12(b)(1) for lack of subject matter jurisdiction because this dispute does not constitute an actual controversy for the purposes of 42 U.S.C. § 1983 or Delaware's Declaratory Judgment Act.
In addressing a motion to dismiss, I must accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. Thus dismissal is inappropriate unless it appears to a "reasonable certainty" that the plaintiff would not be entitled to relief under any set of facts that could be proved to support the claim. Anonymous's complaint relies upon the Attorney General's formal opinion and the correspondence between his counsel and the Department of Justice. Because these materials are integral to Anonymous's claim and were incorporated into the complaint, I consider their plain terms.
Loudon v. Archer-Daniels-Midland Co., Del. Supr., 700 A.2d 135, 140 (1997).
In re Santa Fe Pacific Corp. Shareholder Litig., Del. Supr., 669 A.2d 59, 65 (1995).
Vanderbilt Income and Growth Assocs., L.L.C. v. Arvida/JMB Managers, L.P., Del. Supr., 691 A.2d 609, 613 (1996) ( citing In re Santa Fe, 669 A.2d at 69-70).
On the basis of these documents, I conclude that the Attorney General is correct that this case is not ripe for adjudication, as measured by the standards for justiciability outlined below.
A. Applicable Justiciability Standards
As Vice Chancellor Jacobs has explained the concept generally, "`[r]ipeness or `justiciability' . . . speaks to whether a given dispute lends itself to adjudication by any court[,]" with "ripeness" referring to the concept "that a controversy will not be adjudicated unless it involves truly adverse interests and actual rights." Thus controversies that are "hypothetical . . . would result in only an advisory opinion" and therefore are "not justiciable." The "basic function" of the justiciability requirement is "`to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.'"
Heathergreen Commons Condominium Ass'n v. Paul, Del. Ch., 503 A.2d 636, 639 (1985) (citation omitted).
Id. I note that several of the cases cited by the parties discuss the case or controversy requirement in terms of standing. E.g., KVUE, Inc. v. Moore, 709 F.2d 922, 927-28 (5th Cir. 1983), aff'd without op. sub nom. Texas v. KVUE-TV, Inc., 465 U.S. 1092 (1984); Milwaukee Mobilization for Survival v. Milwaukee County Park Comm'n, 477 F. Supp. 1210, 1215-16 (E.D.Wisc. 1979).
The U.S. Court of Appeals for the Third Circuit has explained the distinctions between — and the frequent conflation of — the standing and ripeness concepts as follows:
The concepts of standing and ripeness are related. Each is a component of the Constitution's limitation on the judicial power to real cases and controversies. Correct analysis in terms of ripeness tells us when a proper party may bring an action and analysis in terms of standing tells us who may bring the action. . . . Because these concepts are so closely related, they can be confused or conflated. "It is sometimes argued that standing is about who can sue while ripeness is about when they can sue, though it is of course true that if no injury has occurred, the plaintiff can be told either that she cannot sue, or that she cannot sue yet." ("`[r]ipeness properly should be understood as involving the question of when may a party seek preenforcement review of a statute or regulation'") ( quoting Smith v. Wisconsin Dep't of Agriculture, Trade Consumer Protection, 23 F.3d 1134, 1141 (7th Cir. 1994).Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) (internal citations omitted), cert. denied, 520 U.S. 1155 (1997). See also KVUE, 709 F.2d at 927 ("the dispute must be real, not hypothetical, and . . . the plaintiff must be personally affected and thus have standing to sue"). The Court of Appeals for the First Circuit has further explained that "the existence vel non of a credible threat of prosecution, critical to the injury-in-fact requirement for standing, factors into both branches of the ripeness equation[,]" which, the Court explained is "how it should be, for the reasonableness of the fear of enforcement is at the core of both standing and ripeness." Rhode Island Association of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). Thus where the First Amendment justiciability case law focusing on standing addresses the presence or absence of a threatened injury to the plaintiff in question, I will treat such analyses as applicable to this case.
Rhode Island Association of Realtors, 199 F.3d at 33 ( quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967)). See also Burlington Northern Railroad, Co. v. Allianz Underwriter Insurance Co., Del. Super., C.A. No. 90C-JL-108, mem. op., 1991 Del. Super. LEXIS 370, at *6-*7, Babiarz, J. (Oct. 15, 1991) ("The ripeness question is at bottom a question of practicality. It asks whether a court should burden itself and the other litigants it serves with determining questions which may never need answering and whether defendants should be burdened with defending a lawsuit which may prove ultimately to have no point.").
Pursuant to Article III, § 2 of the United States Constitution, "[t]he existence of a case and controversy is a prerequisite to all federal actions, including those for declaratory or injunctive relief." This requirement has given rise to a presumption "that federal courts lack jurisdiction `unless the contrary appears affirmatively from the record.'" Although § 1983 claims are typically adjudicated in federal courts, a state court may nevertheless hear § 1983 claims. Similarly, the Delaware Supreme Court has explained with respect to the Declaratory Judgment Act that although that statute "may be employed as a procedural device to `advance the stage at which a matter is traditionally justiciable,' the statute `is not to be used as a means of eliciting advisory opinions from the courts.'"
Presbytery of New Jersey, 40 F.3d at 1462.
Renne v. Geary, 501 U.S. 312, 316 (1991) ( quoting Bender v. Williamsport Area School District, 475 U.S. 534, 546 (1986)) (internal quotations and citations omitted).
Burge v. City of Dover, Del. Ch., C.A. No. 954-K, mem. op., 1987 Del. Ch. LEXIS 446, at *10, Allen, C. (June 8, 1987) (citations omitted).
Stroud v. Milliken Enterprises, Inc., Del. Supr., 552 A.2d 476, 479 (1989) ( quoting Rollins International, Inc. v. International Hydronics Corp., Del. Supr., 303 A.2d 660, 662 (1973); Ackerman v. Stemerman, Del. Supr., 201 A.2d 173, 175 (1964)). See also In re Burlington Resources, Inc. Shareholders Litig., Del. Ch., C.A. No. 10646, mem. op., 1989 Del. Ch. LEXIS 135, at *3, Jacobs, V.C. (Oct. 24, 1989) (stating that state court actions for § 1983 relief must also be justiciable, because "the courts of this State have power to decide only `actual controversies,' and will not issue advisory opinions" and that this rule "applies with full force to declaratory judgment actions, and the adoption of the Declaratory Judgment Act did not alter that principle") ( quoting Stroud v. Milliken, 552 A.2d at 479-80); Marshall v. Hill, Del. Super., 93 A.2d 524, 480-81 (1982) ("The Declaratory Judgments Act may not be invoked merely to seek legal advice.").
Federal § 1983 case law requires that "[i]n order to present a justiciable controversy in an action seeking a declaratory judgment to protect against a feared future event, the plaintiff must demonstrate that the probability of that future event occurring is real and substantial, `of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Or, as the United States Supreme Court put it in the case of Poe v. Ullman, "federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action."
Salvation Army v. Department of Community Affairs of the State of New Jersey, 919 F.2d 183, 192 (3d Cir 1990) ( quoting Steffel v. Thompson, 415 U.S. 452, 460 (1974)) (internal quotations and citations omitted).
Poe v. Ullman, 367 U.S. 497, 504 (1961) ( citing Stearns v. Wood, 236 U.S. 75 (1915); Texas v. Interstate Commerce Comm'n, 258 U.S. 158 (1922); United Public Workers v. Mitchell, 330 U.S. 75, 89-90 (1947)), reh'g denied, 368 U.S. 869 (1961), reh'g denied sub nom., Buxton v. Ullman, 368 U.S. 869 (1961).
The U.S. Court of Appeals for the Third Circuit uses a three-part test to determine whether to engage in pre-enforcement review of a statute, the first and most important element of which — for the purposes of this analysis — is "the adversity of the interest[s] of the parties." The Delaware standard is similar and requires, among other things, that a case consist of a "controversy" between parties "whose interests are real and adverse" and that "the issue involved in the controversy must be ripe for judicial determination."
Presbytery of New Jersey, 40 F.3d at 1463 (in full, the three elements of the § 1983 justiciability inquiry under Step-Saver v. Wyse are: "the adversity of the interest[s] of the parties, the conclusiveness of the judicial judgment and the practical help, or utility, of that judgment") ( quoting Step-Saver Data Systems, Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990)).
Somewhat confusingly, the Court of Appeals for the Third Circuit has used both the three-part Step-Saver test and the United States Supreme Court's two-part ripeness test. The Supreme Court inquiry "involves weighing two factors: (1) the hardship to the parties of withholding court consideration; and (2) the fitness of the issues for judicial review." Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235, 1247 (3d Cir. 1996) ( citing Abbott Laboratories, 387 U.S. at 149); see also id, 81 F.3d at 1247 n. 7 (stating that "[w]e have sometimes employed a three-part test for ripeness in the declaratory judgment context: (1) adversity of interest; (2) conclusivity; (3) utility" and that "the Supreme Court's two-part test is of course still good law, and we continue to use that formulation as well" but that "[w]e deem the two-part analysis more apt for this case"); Philadelphia Federation of Teachers, American Federation of Teachers, Local 3, AFL-CIO v. Ridge, 150 F.3d 319, 323 n. 4 (3d Cir. 1998) (stating that "since Step-Saver, we have employed both tests" but that in Philadelphia Federation "[w]e apply the Supreme Court's two-part test because we find that its framework better accommodates our analysis"); see also Presbytery of New Jersey, 40 F.3d at 1462-63 (referring to both tests); In re Rickel Home Centers, Inc., 2000 U.S. App. LEXIS 6267, at *46-47 (3d Cir. Apr. 6, 2000) (same). But the Circuit Court has explained that Step-Saver's three-part inquiry is merely "a refinement of the Supreme Court's test" that "simply alters the headings under which various factors are grouped." Philadelphia Federation, 150 F.3d at 323 n. 4.
The "adversity" and "hardship" elements of the respective tests are largely interchangeable, and thus both focus on whether or not a credible threat of prosecution exists. See Artway, 81 F.3d at 1247 ("The hardship factor inquires whether the threat of prosecution is `credible,' and not merely `speculative,' so as to be concrete for purposes of Article III."); Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp.2d 478, 488 (D.N.J. 1998) (finding hardship to plaintiffs in satisfaction of ripeness inquiry where they intended to engage in conduct that is "`arguably affected with a constitutional interest,'" "legislatively-proscribed," and "a credible threat of prosecution exists") ( quoting Babbitt, 442 U.S. at 298); Michael M. v. Verniero, 1997 U.S. Dist. LEXIS 12596, at *19 (D.N.J. May 29, 1997) (hardship requires "credible threat of prosecution") (citation omitted). Regardless of which test is used, it is their shared element of the credibility of the threat of prosecution that is the focus of my analysis here. See note 33 and Part II(A)-(B), infra.
Stroud v. Milliken, 552 A.2d at 470 ( quoting Rollins, 303 A.2d at 662-63).
Section 1983 plaintiffs — even those alleging infringements of First Amendment rights — are therefore required to demonstrate a "credible," or "real and immediate" threat of enforcement of the constitutionally objectionable statute in order to establish the requisite adversity. By contrast, "persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs[,]" such as when plaintiffs "do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or that a prosecution is remotely possible[.]" A plaintiff bears the burden of "clearly" alleging facts "`demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.'" Whether a threat is "real and immediate" must be determined objectively and will not be based on a plaintiff's unreasonable, subjective fear.
Salvation Army, 919 F.2d at 192 ("[w]here the plaintiff seeks a declaratory judgment with respect to the constitutionality of a state statute, even where the attack is on First Amendment grounds, there must be a `real and immediate' threat of enforcement against the plaintiff") ( quoting Hardwick v. Bowers, 760 F.2d 1202, 1206-07 (11th Cir. 1985)); McKay v. Heyison, 614 F.2d 899, 904 (3d Cir. 1980) ("`When the plaintiff has alleged an intention to engage in a course of conduct, arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."'") ( quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) ( quoting Doe v. Bolton, 410 U.S. 179, 188 (1973))) (emphasis added); Presbytery of New Jersey, 40 F.3d at 1463 (although actual adversity does not require that a plaintiff "have suffered a `completed harm,'" there must be "a substantial threat of real harm and the threat `must remain "real and immediate" throughout the course of the litigation'") ( quoting Salvation Army, 919 F.2d at 192) ("substantial threat"); Armstrong World Industries, Inc. v. Adams, 961 F.2d 405, 412 (3d Cir. 1992) ("completed harm")); Poe v. Ullman, 367 U.S. at 501 (requiring a "clear threat of imminent prosecution"). See also American Civil Liberties Union v. The Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993) ("Under Babbitt, a plaintiff must allege that either (1) he was threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution.") (citation omitted).
Younger v. Harris, 401 U.S. 37, 42 (1971). See also Babbitt, 442 U.S. at 298-99 (same) ( citing Younger v. Harris, 401 U.S. at 42); KVUE, 709 F.2d at 928 ("A litigant may not . . . challenge the constitutionality of a state criminal statute merely because he desires to wipe it off the books or even because he may some day wish to act in a fashion that violates it.").
In general, this court is reluctant to enjoin even an actual or imminently threatened criminal prosecution pursuant to a state statute if, when prosecuted, a defendant can fairly present a constitutional defense invalidating the statute in question. Crusader Enterprises, Inc. v. Delaware Comm'n on Massage Establishments Adult Book Stores, Del. Ch., C.A. No. 5603, mem. op., 1979 Del. Ch. LEXIS 373, at *5-*7, Hartnett, V.C. (Sept. 15, 1979); Hughes Tool Co. v. Fawcett Publications, Inc., Del. Supr., 315 A.2d 577, 579 (1974); McCabe v. Mayor and Council of the Town of Fenwick Island, Del. Ch., C.A. No. 1029-S, 1984 Del. Ch. LEXIS 526, at *3 (Oct. 30, 1984); The Stone Balloon, Inc. v. Delaware Alcoholic Beverage Control Comm'n, Del. Ch., C.A. No. 6390, 1981 Del. Ch. LEXIS 576, at *2, Hartnett, V.C. (Apr. 15, 1981).
Renne v. Geary, 501 U.S. at 316 ( quoting Bender v. Williamsport, 475 U.S. at 546 n. 8) (internal quotations and citations omitted).
New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996) ("A party's subjective fear that she may be prosecuted for engaging in expressive activity will not be held to constitute an injury for standing purposes unless that fear is objectively reasonable.").
When conducting this ripeness determination in the context of First Amendment rights, one must bear in mind the fundamental principle of constitutional law that "`[r]uling on federal constitutional matters in advance of the necessity of deciding them [is to be avoided].'" But weighing against that rule is the seriousness with which the United States Supreme Court views the danger of any "chill" of the exercise of First Amendment rights. Thus "[w]hen a facial challenge implicating First Amendment values is brought, the burden to show that a controversy is ripe for review is somewhat relaxed because of the danger that the challenged statute might otherwise result in the chilling of constitutionally protected speech."
Presbytery of New Jersey, 40 F.3d at 1462-63 ( quoting Armstrong, 961 F.2d at 413).
Salvation Army, 919 F.2d at 193; Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 3993 (1988) (describing "the danger" as being "in larger measure, one of self-censorship" and "a harm that can be realized without actual prosecution"); see also id. at 392-93 (1988) ("in the First Amendment context, `"[l]itigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression"'") ( quoting Secretary of State of Maryland v. J. H. Munson Co., 467 U.S. 947, 956-57 (1984) ( quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).
American Civil Liberties Union v. Johnson, 4 F. Supp.2d 1024, 1027 (D.N.M. 1998) ( citing New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499-1500 (10th Cir. 1995)); see also Gardner, 99 F.3d at 15; North Carolina Right to Life. Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) (same), cert. denied, ___ U.S. ___, 120 S.Ct. 1156 (2000).
Turning to the case law, it is well-established that the courts may assess the constitutionality of a statute in particular circumstances even though it has never been enforced. The cases are also clear that a plaintiff may challenge a statute "even absent a specific threat of enforcement."
E.g., Epperson v. Arkansas, 393 U.S. 97, 100-02 (1968) (finding justiciable plaintiff school teacher's challenge to Arkansas law prohibiting the teaching of the theory of evolution because, even though the statute had never been enforced, plaintiff faced "at least a literal dilemma because she was supposed to use the new textbook . . . but to do so would be a criminal offense and subject her to dismissal"); Doe v. Bolton, 410 U.S. 179, 188 (1973) (finding a justiciable controversy where plaintiff physicians challenged a Georgia statute that criminalized abortion even though "the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes"). See also KVUE, 709 F.2d at 930 ("[t]hat the statute has not been enforced and that there is no certainty that it will be does not establish the lack of case or controversy").
United Food and Commercial Workers International Union, AFL-CIO, CLC v. IBP, Inc., 857 F.2d 422, 428 (8th Cir. 1988) ("Where plaintiffs allege an intention to engage in a course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement."). See also Steffel, 415 U.S. at 459 (stating that "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights" and rejecting state's argument that action was not justiciable because no prosecution of plaintiff had taken place, where plaintiff attempted to distribute handbills protesting the United States' involvement in Vietnam, was confronted by the police, then returned to resume distribution of his materials with a companion, was again confronted by the police, at which point plaintiff left and his companion was arrested); Virginia v. American Booksellers, 484 U.S. at 393 ("We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise."); Babbitt, 442 U.S. at 302 (stating that "the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices" and that "[a]ppellees are thus not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity").
By contrast, however, where a prosecutor "expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed[,]" because the court "cannot be umpire to debates concerning harmless, empty shadows." Thus the U.S. Court of Appeals for the Third Circuit has held that the threat of prosecution was insufficient when the state had granted a plaintiff an express exemption from prosecution.
Poe v. Ullman, 367 U.S. at 508.
Salvation Army, 919 F.2d at 192-94. See also St. Martin's Press, Inc. v. Carey, 605 F.2d 41, 44-45 (2d Cir. 1979) (no case or controversy in suit challenging child pornography statute where prosecutors stated that they would not enforce statute in question with respect to plaintiffs book).
But the case law does not appear to directly address the justiciability of challenge to a statute in a case involving facts like the one presented here. Specifically, my review of the cases suggests that it is an open question whether a First Amendment challenge is justiciable where the prosecutor has never prosecuted anyone under the statute at issue, where she has indicated generally and publicly that she does not intend to enforce the statute because of its apparent unconstitutionality, and where she has indicated to a particular plaintiff — per his request — that her earlier opinion has not been superceded, but where she refuses to provide that particular plaintiff with the more explicit assurance he wants, which would appear to amount to no less than a personalized exemption from prosecution. I now confront that issue.
B. Plaintiff Has Failed To Demonstrate The Existence of A "Case or Controversy"
As the above discussion of the case law suggests, "the difference between a case or controversy and an abstract question" is "one of degree and `is not discernable by any precise test.'" The case law's failure to draw a bright line between justiciable and non-justiciable controversies necessarily requires that the human element of judicial judgment be applied to assess whether, given the facts at hand, a sufficient threat of enforcement exists such that judicial review is warranted. Applying that judgment to the question of whether Anonymous's objection to § 8023(a) is ripe for this court's review, I conclude that Anonymous has failed to establish the "credible threat of prosecution" necessary to show that his potential dispute with the Attorney General concerning § 8023(a) is justiciable.
KVUE, 709 F.2d at 927 ( quoting Babbitt, 442 U.S. at 297). See also Rhode Island Association of Realtors, 199 F.3d at 31 ("In practice, it is often difficult to distinguish between fears that are chimerical and those that are realistic.").
Although the justiciability inquiry is "case-specific" and the cases do not fall out neatly on different sides of a clearly marked border between justiciable and non-justiciable questions, I believe that the federal cases generally support the conclusion that the facts presented in this case do not add up to a justiciable controversy. That is, in the cases brought to my attention where the courts found pre-enforcement review appropriate, there was more than a theoretical likelihood of enforcement, even if a "specific" threat of enforcement was not required. Indeed, these cases strongly indicate that when an attorney general publicly issues an opinion disavowing any intent to enforce a statute and later reiterates the continued validity of that opinion, a court should not find a "credible threat of prosecution," absent concrete indications to the contrary. Even the two cases relied upon most heavily by Anonymous involved a greater possibility of enforcement than is present here. Finally, although a credible threat of prosecution can exist without actual prosecution, the law is clear that "allegations of chilling injury are not sufficient basis for standing to challenge a government action, at least when the chill is `subjective' and not substantiated by evidence that the government action has a present and concrete."
Wilson v. State Bar of Georgia, 132 F.3d 1422, 1428 (11th Cir. 1998) (citation omitted).
For example, I candidly acknowledge that the Court of Appeals for the Third Circuit, among other courts, has found a justiciable controversy when the possibility of enforcement seemed less than imminent. E.g., Presbytery of New Jersey, 40 F.3d at 1468 (where state refused to waive prosecution of pastor for violating New Jersey Law Against Discrimination when he acted outside his institutional capacity as a clergyman in criticizing homosexuality, court found that the threat of prosecution was "`real and substantial'") ( quoting Salvation Army, 919 F.2d at 192).
See, e.g., note 41, supra.
See also, e.g., Wilson, 132 F.3d at 1428-29 (finding that the "asserted belief" of plaintiff disbarred attorneys "that they have to forego constitutionally protected speech" to be "not objectively reasonable" where "the record indicates that the State Bar has repeatedly and consistently taken the position that the amendments have no application to the types of scenarios the disbarred attorneys have posed"); McCollester v. City of Keene, N.H., 668 F.2d 617, 620 (1st Cir. 1982) (observing that even Justice Brennan, who in Steffel v. Thompson had broadly construed Article III's grant of declaratory judgment jurisdiction to federal courts, had also stated that "`a credible threat of prosecution'" is necessary when challenging criminal statutes, which means "`a likelihood that a prosecution will ensue'") ( quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 n. 29 (1974), and citing Steffel, 415 U.S. 452).
United Food, 857 F.2d at 425 (prosecutor told the union "that until the Nebraska law was found unconstitutional or the law was changed, he would have to enforce it" and state patrol "specifically did not disavow an intention to enforce the law"); cf. id. (prosecutor stated "that he would not literally enforce the law unless there were `problems'"); Babbitt, 422 U.S. at 302 (permitting the plaintiff to challenge the criminal penalty portions of the Arizona Agricultural Employment Act before being prosecuted because "the State ha[d] not disavowed any intention of invoking the criminal penalty against unions that commit unfair labor practices").
E.g., Virginia v. American Booksellers Ass'n, Inc., 484 U.S. at 393.
Salvation Army, 919 F.2d at 193 (citations omitted). See also Laird v. Tatum, 408 U.S. 1, 13-14 (1972) ("Allegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm."), reg'd denied, 409 U.S. 901 (1972).
Having carefully reviewed Anonymous's allegations, I am unable to find any threat of prosecution of § 8023(a), let alone the "credible" or "real and immediate" threat required before I am permitted engage in a pre-enforcement review of that statute. Rather, I believe that Anonymous's fear of prosecution under § 8023(a) is one of "harmless, empty shadows."
Poe v. Ullman, 367 U.S. at 508.
In my view, the Attorney General's opinion letter of September 29, 1995 and the Assistant State Solicitor's letter of July 29, 1999 together establish that none of the relevant state officials consider § 8023 (a) to be enforceable and that none has any intention of prosecuting the plaintiff or anyone else under that statute. Instead, the Attorney General's opinion letter unequivocally advises the Commissioner of Elections not to attempt to enforce the statute civilly and states that the Department of Justice " will not enforce" the statute criminally. Similarly, the Assistant State Solicitor's letter of July 29, 1999 made very clear the Department of Justice's view that § 8023(a) remained unconstitutional — and therefore unenforceable — as of July 1999. The letter explicitly states that the Department of Justice would not enforce the statute absent a significant change to the law under McIntyre. Indeed, the letter opined that the 1995 Attorney General's Opinion 95-FB01 had not "been superceded by any subsequent opinion. . . ."
Attorney-General Advisory Opinion, at 7 (emphasis added).
Id.
Although the prospect of arbitrary changes in prosecutorial policy may be enough to constitute a "credible threat" in situations where the prosecutor's past conduct indicates the potential for such a change in policy, Anonymous has pointed to no conduct on the part of the Commissioner or the Attorney General indicating even a remote likelihood that they will change their position. Anonymous has not pled that the Commissioner has done anything that conflicts with the Attorney General's non-enforcement opinion or that the Attorney General herself has acted in a manner contrary to her declaration of non-enforceability. Nor is their any indication of these state officials' lack of bad faith in relation to their enforcement responsibilities. Indeed, the reverse appears to be the case, given that the state official in charge of civil enforcement of § 8023(a), the Commissioner of Elections, affirmatively sought out the Attorney General's view of the statute's constitutionality shortly after McIntyre was decided.
See, e.g., United Food, 857 F.2d at 429 (affirming district court's conclusion that affidavits submitted by state officials indicating that they had no "`present plan'" to enforce the provisions in question showed "`no more than a hesitant, qualified, equivocal and discretionary present intention not to prosecute,' the clear implication of which was that the state's position could well change," and relying on the "well settled" principle that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice") ( citing City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982); United States v. W.T. Grant Co., 345 U.S. 629 (1953)); see also id., 857 F.2d at 430 ("Defendants in this case did not disclaim their intent to enforce the Nebraska picketing statutes until the day of the hearing on the union's motion for a temporary restraining order, and then said only they had no present intention to enforce the statutes with respect to the then-current dispute between IBP and the union. Because defendants — even by their own statements — are `free to return to [their] old ways,' the public interest in having the legality of the statutes settled prevents a finding of nonjusticiability in this case.") ( quoting City of Mesquite, 455 U.S. at 289 n. 10).
In this respect, I disagree with Anonymous that the Department of Justice's refusal to provide him with a personalized waiver of enforcement of § 8023(a) can somehow be bootstrapped into a "credible" or "real and immediate" threat of prosecution. The plaintiff has failed to cite any authority suggesting that the Attorney General must provide individualized no-action letters such as those issued by the United States Securities and Exchange Commission in order for the Attorney General to avoid litigating over a statute she has generally declared unconstitutional. Rather, I believe the Attorney General is correct in asserting that "[i]t is unreasonable to expect the Department of Justice to entertain individual requests to review and evaluate every proposed course of conduct that a potential defendant may engage in, and to provide an individually tailored advisory opinion to anyone who desires a personal assurance that he will not be prosecuted for his conduct."
Defs. Br. at 9.
Anonymous's suggestion that he credibly fears a change in policy with respect to enforcement of § 8023(a) and is therefore entitled to a personalized waiver from the Department of Justice is all the less persuasive in light of his failure to seek the advisory opinion from the Commissioner of Elections available to him under § 15 Del. C. § 8041(2) of Title 15. Had Anonymous requested a "ruling that applies [Chapter 80] to a set of facts specified by the person" (i.e., the relevant facts concerning the plaintiffs proposed web site and communications) and had Anonymous "reasonably and in good faith act[ed] in reliance upon [the] ruling requested . . ." (i.e., set up his web site and began communications in conformity with the ruling), then he could not be held "liable [or] subject to any penalty with respect to conduct conforming to the ruling, provided there was a full disclosure to the Commissioner of all material facts necessary for the ruling." The reference in § 8041(2) to "any penalty" would appear to clearly insulate a person who has otherwise satisfied the requirements of that section against any criminal or civil penalty that state officials may attempt to impose for an alleged violation of § 8023 (a). It is also worth noting that § 8041(2) contains a provision protective of the privacy of those who request advisory opinions.
See id. (the Commissioner shall, "[a]t the request of any person, make a ruling that applies this chapter to a set of facts specified by the person" and that "[t]he entire such ruling shall be made in writing, and a copy thereof shall be made available to any person, except that the identity of the person that requested the ruling shall not be disclosed without the person's consent.").
Thus not only has the plaintiff failed to allege an insidious change in prosecutorial policy — or even the remote likelihood of such a change — with respect to the enforcement of § 8023(a), but § 8041(a) provides a seemingly bullet-proof mechanism for protecting oneself from any risk of such a policy change. At the very least, § 8041(a) substantially diminishes the already "Powerball"-like odds that § 8023(a) will be enforced. Indeed, I note that that Anonymous's failure to even begin negotiations concerning — let alone enter into — contracts with any web servers further diminishes the likelihood of imminent enforcement and therefore the need for judicial, rather than administrative, review. This is particularly true if he intends to obtain exemptions from prosecution under any and all state statutes comparable to § 8023(a) or declaratory judgments that such statutes are unconstitutional before engaging in any such negotiations.
Compare Letter from David L. Finger, Esq. to Delaware Attorney General M. Jane Brady, at 1 (July 20, 1999) (Compl. Ex. A) (stating that he represented " individuals who own Internet websites devoted to discussion of political issues and promotion of political candidates" who intended "to promote certain candidates for political office in Delaware during the upcoming campaign season" on an anonymous basis") (emphasis added).
Oral Argument on Defendants' Motion to Dismiss, tr. at 38-45.
Finally and as importantly, this court may not flout the process created by the General Assembly to resolve potential disputes under Title 15 within the political branch before they turn into justiciable ones. I therefore reject the plaintiffs argument that I may "bypass the middleman" — i.e., the Commissioner of Elections — and that official's exercise of his legal responsibilities under § 8041 (a). Indeed, were the plaintiff to receive an unfavorable opinion letter from the Commissioner concerning the legality of the proposed web site under § 8023(a), such a letter would create the adversity of interests that does not presently exist in this litigation and that is particularly critical where the constitutional validity of a state statute is concerned. Such an opinion would also frame the issues in the concrete, non-hypothetical form that is ordinarily expected in a litigable controversy.
Id., tr. at 26.
See, e.g., International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 818 (5th Cir. 1979) (remarking on the diminished likelihood that a defendant uninterested in enforcing a statute will mount a vigorous defense of the statute's constitutionality, on the wisdom of permitting or encouraging prosecutors to refuse to enforce unconstitutional laws, and on the appropriateness of diverting challenges to laws that have "fallen into disuse" to the political branch, with the judiciary intervening only when enforcement has resumed) (citations omitted).
As things presently stand, however, Anonymous has failed to establish that his constitutional interests in distributing literature anonymously are adverse to that of the Attorney General in prosecuting the enforceable laws of this state.
Rhode Island Association of Realtors, 199 F.3d at 34 ( quoting W. R. Grace Co. v. Environmental Protection Agency, 959 F.2d 360, 364 (1st Cir. 1992); Steffel, 415 U.S. at 462); Snell v. Engineered Systems Designs, Inc., Del. Ch., C.A. No. 12865, mem. op., 1994 Del. Ch. LEXIS 226, at *29, Chandler, V.C. (Nov. 18, 1994) (finding "no reasonable fear of prosecution"), rev'd in part on other grounds, Del. Supr., 669 A.2d 13 (1995).