United States District Court, D. Vermont
DEAN CORREN, the VERMONT PROGRESSIVE PARTY, STEVEN HINGTGEN, RICHARD KEMP, and MARJORIE POWER, Plaintiffs,
WILLIAM SORRELL, Vermont Attorney General in his official capacity, Defendant
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,
William Sorrell, Vermont Attorney General, in his official
capacity, Defendant: Eve R. Jacobs-Carnahan, Megan J.
Shafritz, Esq., Vermont Office of the Attorney General,
K. Sessions, III, District Judge.
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.
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.
Background and Procedural History
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
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
. . .
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 firstname.lastname@example.org
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
ECF No. 1-1.
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
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.
March 25, 2015, the Attorney General's Office filed the
enforcement action against Corren in Vermont Superior Court.
ECF No. 2-2. 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
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.
The Second Amended Complaint
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.
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
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.
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
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).
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
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.
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, and to award him attorney's fees