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Corren v. Sorrell

United States District Court, D. Vermont

December 8, 2015

WILLIAM SORRELL, Vermont Attorney General in his official capacity, Defendant

          For Dean Corren, Marjorie Power, the Vermont Progressive Party, Richard Kemp, Steven Hingtgen, Plaintiffs: John L. Franco, Jr., Esq., Law Offices of John L. Franco, Jr., Burlington, VT.

         For William Sorrell, Vermont Attorney General, in his official capacity, Defendant: Eve R. Jacobs-Carnahan, Megan J. Shafritz, Esq., Vermont Office of the Attorney General, Montpelier, VT.


         William K. Sessions, III, District Judge.

         Dean Corren, formerly a publicly-funded candidate for Vermont Lieutenant Governor, was accused in 2014 of receiving an unlawful contribution from the Vermont Democratic Party in violation of the state's campaign finance law. The Vermont Attorney General's Office investigated the matter and initiated a civil enforcement action against Corren in state court. That case is currently pending.

         Corren now comes to federal court challenging several provisions in the state campaign finance law as it pertains to publicly-funded candidates. Also appearing as Plaintiffs are the Vermont Progressive Party, Steven Hingtgen, Richard Kemp, and Marjorie Power. Hingtgen, Kemp, and Power are each former Progressive Party candidates and past political contributors. Candidate David Zuckerman has moved to intervene. The Defendant, Attorney General William Sorrell, moves to dismiss the case on the basis of Younger abstention and lack of standing, and opposes Zuckerman's intervention motion. For the reasons set forth below, Sorrell's motion to dismiss is granted in part and denied in part, and Zuckerman's motion to intervene is granted.

         I. Background and Procedural History

         In 2014, Plaintiff Dean Corren ran unsuccessfully for Lieutenant Governor as the candidate of the Vermont Democratic and Progressive parties. Corren financed his campaign with primarily public funds, granted to him through Vermont's public financing option, 17 V.S.A. Chapter 61, subchapter 5. Under that statute, a candidate for Lieutenant Governor may receive public financing if he first raises at least $17,500 from not fewer than 750 individuals. The public financing grants offer up to $32,500 for the primary election period and $150,000 during the general election period, amounting to a potential total of $200,000 in campaign funds. Corren qualified for public financing for both the primary and the general elections, and received over $180,000 in campaign finance grants.

         Vermont's campaign finance law prohibits publicly-funded candidates from soliciting, accepting, or expending campaign contributions other than qualifying contributions. 17 V.S.A. § 2853(b). During the course of Corren's campaign, the office of Attorney General Sorrell received a complaint that the Corren campaign had accepted an unlawful, in-kind contribution in the form of an October 24, 2014 email sent by the Vermont Democratic Party (" VDP" ). The email was sent by Dottie Deans, chair of the VDP, and was entitled " How you can help me help Dean Corren." The email stated in part:

Many of you know I'm a strong supporter of Dean Corren for Lt. Governor but maybe you don't know why. Dean has the skills and experience to support our Vermont Democratic Party Platform and overcome some of the greatest challenges we face.
. . .
I believe Dean would make an excellent Lt. Governor, but to make this happen we all need to pitch in. Here are a few ways you can help.
1. Come to a Rally! This weekend we are joining Senator Bernie Sanders, Governor Peter Shumlin, Dean and local candidates at four [Get Out The Vote] rallies across the state. [The email went on to list four rallies in Bristol, Proctor, Hinesburg, and St. Albans.]
. . .
3. Tell Your Neighbors! We are working every day to talk to voters in Vermont into getting to the polls on Election Day. Sign up to volunteer for a shift here. For other ways to help, please email
I appreciate all the work you are doing on behalf of our candidates around the state and look forward to celebrating great victories with you on the 4th. Now get out and vote for Congressman Peter Welch, Governor Peter Shumlin, Dean Corren for Lieutenant Governor, and the rest of our amazing Democratic ticket!

ECF No. 1-1.

         On October 30, 2014, the Attorney General's Office notified the Corren campaign and the Vermont Democratic Party that the email constituted an uncompensated contribution prohibited by 17 V.S.A. § 2853(b)(1). The alleged value of the contribution - representing the value of the email list - was $255.

         After conducting an investigation, the Attorney General's Office provided Corren with a draft of a civil enforcement pleading it was prepared to file in state court. The state court action would seek $20,000 in fines and the return of the approximately $52,000 in public funds that the Corren campaign had in its accounts as of the date of the email. Corren disputed the claims, and alternatively offered to pay the $255 value of the contribution out of his campaign funds. That offer was rejected. As of December 12, 2014, the Corren campaign had spent all of its campaign funds with the exception of $73.60, which was returned to the State.

         On March 25, 2015, the Attorney General's Office filed the enforcement action against Corren in Vermont Superior Court. ECF No. 2-2.[1] As the Attorney General had warned, the action seeks $20,000 in fines and a refund of the $52,000 in public funds held by the Corren campaign as of October 24, 2014. Vermont Superior Court Judge Teachout has stayed the state court case until this Court resolves the question of abstention.

         Corren filed the instant lawsuit on March 20, 2015. On April 6, 2015, he filed a motion for a preliminary injunction. Sorrell responded with a motion to dismiss, asking the Court to abstain from hearing Corren's claims in light of the pending state court action. Corren has since filed two amended Complaints, adding new Plaintiffs and supplementing his pleadings. After each amendment, Sorrell again moved to dismiss. The most recent motion to dismiss, filed in response to Corren's Second Amended Complaint, contends that abstention is still warranted and that all Plaintiffs lack standing to bring their claims.

         II. The Second Amended Complaint

         The Second Amended Complaint consists of four counts. Count I challenges the constitutionality of 17 V.S.A. § 2983(b)(1), which makes it unlawful for a publicly-funded candidate to (i) solicit, accept, or expend any campaign contributions or (ii) make any expenditures not covered by either the public financing grant or the private money raised in order to qualify for that financing. Prohibited contributions include money spent by political parties on behalf of the publicly-financed candidate.

         Plaintiffs allege that this complete prohibition on contributions violates the ruling in Randall v. Sorrell, 548 U.S. 230, 261, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006), which held that Vermont could not prohibit contributions of less than $400 to candidates for statewide office. Plaintiffs also claim that the statute interferes with the candidate's right to associate with, and receive assistance from, political parties. This harm, they claim, is exacerbated by the fact that as of 2015, Vermont allows traditionally-funded candidates to receive unlimited contributions from political parties.

         In a related argument, Plaintiffs contend that by limiting a candidate's spending to the amount of the public grant, the law puts a publicly-funded candidate at an unfair disadvantage when facing a well-financed opponent. The solution, they suggest, is a " rescue" provision that would allow publicly-funded candidates to raise additional private funds if necessary.

         Count II attacks the constitutionality of 17 V.S.A. § 2944(c)(1) and (2), which state that a political party expenditure qualifies as a " related campaign expenditure" by an individual candidate if it primarily benefits six or fewer candidates. Plaintiffs claim that the statute violates the rights of association of both the publicly-funded candidates and their parties, that the six-candidate threshold has no constitutional significance, and that this prohibition on party speech is unconstitutionally ambiguous and invites arbitrary enforcement.

         Count III contends that the October 24, 2014 email was not a " contribution" as defined by Vermont law. Title 17, Section 2901(4) states that a " 'contribution' shall not include any of the following . . . (F) the use of a political party's offices, telephones, computers, and similar equipment . . . ." Because the email in question was sent on a party computer, Plaintiffs submit that it fell within the Section 2901(4)(F) exception. Count III also alleges that because the email invited readers to attend one of four campaign events, each of which was attended by three candidates, it fell within the exception for an expenditure " by a political party in connection with a campaign event at which three or more candidates are present." 17 V.S.A. § 2901(4)(L).

         Count III further claims that the statute - as currently enforced by the Attorney General with respect to the October 24, 2014 email and potentially other communications - puts political parties and their supporters at risk of prosecution if they fail to report such party activities as contributions. Accordingly, the Second Amended Complaint claims that the law creates a chilling effect on the speech and associational rights of publicly-funded candidates, political parties, and party members.

         Count IV alleges that the refund of $52,000 demanded by the Attorney General's Office violates the Excessive Fines Clause of the Constitution; would be " grossly disproportional to the gravity of any offense and violates the Eighth Amendment" ; is excessively punitive in violation of the Due Process Clause; is not rationally related to the offense in violation of the Fourteenth Amendment; and violates the narrow tailoring required under the First Amendment.

         For relief, Plaintiffs seek declaratory and preliminary and permanent injunctive relief with respect to actual or threatened enforcement of 17 V.S.A. § 2944(c)(1) and (2) (defining related expenditures) and § 2983(b)(1) (limiting publicly-financed candidates to only authorized contributions). The declaratory judgment would also apply to the exclusions set forth at 17 V.S.A. § 2901(4)(F) (allowing contributions on behalf of multiple candidates). Additionally, Corren asks the Court to declare the refund provision in the former 17 V.S.A. § 2903(b) unconstitutional,[2] and to award him attorney's fees and costs.

         III. ...

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