Registry Motion To Dismiss

7/23/2019 Registry Motion To Dismiss

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

WILLIAMSON STRONG, et al., )

)Plaintiffs, ))

v. ) No. 3:15-cv-0739)

THE TENNESSEE BUREA OF ETHICS ) Judge TraugerAND CAMPAIGN FINANCE, REGISTRY )OF ELECTION FINANCE, et al., ) Magistrate Judge Brown

)Defendants. )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

Come the Defendants, the Tennessee Bureau of Ethics and Campaign Finance, Registry of

Election Finance (hereinafter referred to as the Registry), and Tom Lawless, Patricia Heim,

Norma Lester and Tom Morton, in their official capacities as members of the Registry, by and

through their counsel of record, the Attorney General and Reporter for the State of Tennessee, and

hereby submit this memorandum of law in support of their motion to dismiss Plaintiffs complaint

in its entirety and with prejudice for lack of subject matter jurisdiction and failure to state a claim

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

INTRODUCTION AND BACKGROUND

Plaintiff, Williamson Strong, is unincorporated parent organization, whose mission is to

educate, inform and encourage the community to vote in favor of its schools. Plaintiffs Sarah

Barnard, Jim Cheney, Susan Drury, and Kim Henke are all parents of students in the Williamson

County School District and are also members of and/or are associated with Williamson Strong.

Plaintiff Jennifer Smith is a member of and/or associated with Williamson Strong. (DE 1 Page

ID# 6-7).

Case 3:15-cv-00739 Document 8 Filed 07/30/15 Page 1 of 18 PageID #: 200


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In December 2014, a sworn complaint was filed with the Registry alleging that Williamson

Strong had violated Tennessees campaign financial disclosure laws by failing to register as a

political campaign committee and filing disclosure reports with the Defendant Registry. The

Registry was created by the Tennessee General Assembly in 1989 to ensure enforcement of

statutes providing for the adequate financial disclosure by public officials, candidates for public

office and lobbyists. See Tenn. Code Ann. 2-10-202. The Registry has the jurisdiction to

administer and enforce the provisions of Tennessees Campaign Financial Disclosure Act (the

Act), compiled in part 1 of chapter 10 of title 2 of the Tennessee Code. In administering the

provisions of the Act, the Registry is specifically given the authority to [i]nvestigate any alleged

violation upon sworn complaint and [a]ssess a civil penalty for any violation of the disclosure

laws as provided by [the Act]. Tenn. Code Ann. 2-10-206(a)(7) and 207(7). Defendants Tom

Lawless, Patricia Heim, Norma Lester and Tom Morton (the individual Defendants) are all duly

appointed members of the Registry. (DE 1 Page ID# 9-10).

On December 11, 2014, the Registry notified Williamson Strong that it would be

conducting a preliminary review of the sworn complaint filed against Williamson Strong at its

meeting on January 14, 2015, and informed Plaintiffs that they were welcome to attend the

meeting. (DE 1-2 Page ID# 40). After reviewing the sworn complaint and attached materials, the

Registry determined that there was sufficient cause to issue a Show Cause Notice to Williamson

Strong to show cause why civil penalties should not be assessed for failure to comply with the

Campaign Finance Disclosure laws, and in particular, the failure to appoint a political treasurer

before making expenditures in support of or in opposition to candidates for public office and the

failure to file required campaign financial disclosure reports. (DE 1 Page ID# 19-20); seealso



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Show Cause Notice issued January 23, 2015, attached as Exhibit 1 to Defendants Motion to

Dismiss and incorporated herein by this reference.1

A hearing on the Show Cause Notice was subsequently held on May 13, 2015, and at the

conclusion of the hearing, the Registry found that Williamson Strong was a multi-candidate

political campaign committee as defined in Tenn. Code Ann. 2-10-102(12)(A); that Williamson

Strong had failed to appoint a political treasurer before making any expenditures as required by

Tenn. Code Ann. 2-10-105(e)(1); and, that Williamson Strong had failed to file the campaign

financial disclosure reports required by Tenn. Code Ann. 2-10-105(c)(1). Accordingly, the

Registry assessed a civil penalty of $2,500 for violation of each statute (total penalty of $5,000)

against Williamson Strong. (DE 1 Page ID# 27-28); see alsoOrder Assessing Civil Penalties

attached as Exhibit 2 to Defendants Motion for Summary Judgment and incorporated herein by

this reference.2 The Registrys Order assessing civil penalties against Williamson Strong

specifically states as follows:

A person aggrieved by this Order may obtain a contested casehearing by filing within thirty (30) days of the date of entry of thisorder a written request with the Registry. By timely filing such arequest, Respondent will be entitled to all rights afforded to

participants in a contested case proceeding as provided by the

Uniform Administrative Procedures Act, T.C.A. 4-5-101 4-5-

325.

In the alternative, and without waiving the right to timely request acontested case proceeding at a later time, A person aggrieved by thisOrder may asked the Registry to reconsider this Order by filing arequest for reconsideration with the Registry within fifteen (15) daysof the date of entry of this Order. If the person aggrieved by thisOrder timely files a request for reconsideration, that person willhave an additional thirty (30) days from receipt of the Registrys

1As Plaintiffs repeatedly reference and discuss the Registrys Show Cause Notice in their Complaint (see D.E. 1,PageID#19-20), under Fed. R. Civ. P. 10(c), the Court can properly consider the Show Cause Order for the purposeof Defendants Motion to Dismiss. See Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994).

2Though not attached as an exhibit to their Complaint, Plaintiffs repeated reference, discuss, and summarize thecontent of Registrys Assessing Civil Penalties. (D.E. 1, PageID#28-29).



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response to the request for reconsideration in which to file a requestfor a contested case hearing.

SeeExhibit 2 (emphasis added).

On July 1, 2015, Williamson Strong filed a Petition for Review and Hearing Regarding

Order Assessing Civil Penalties pursuant to the Tennessee Uniform Administrative Procedures

Act, Tenn. Code Ann. 4 5-301, et seq., and the Tennessee Campaign Financial Disclosure

Act, Tenn. Code Ann. 2-10-101, et seq., seeking review of the Registrys order assessing civil

penalties and appealing all findings made in that order. SeePlaintiff Williamson Strongs Petition

for Contested Case Hearing attached as Exhibit 3 to Defendants Motion to Dismiss and

incorporated herein by this reference.3 The Petition specifically states that it does not contain an

exhaustive list of the grounds and reasons for Petitioners objections to the Order, and Petitioner

reserves the right hereafter to raised additional grounds and reasons by amendment of this Petition

or otherwise. Id.

That same day, Plaintiffs filed this lawsuit under 42 U.S.C. 1983 asserting a facial and

as-applied challenged to Tennessees definition of a multi-candidate political campaign committee

contained in Tenn. Code Ann. 2-10-102(12)(A) on the grounds that it violates Tennesseans

rights of free speech and association under the First Amendment to the Federal Constitution, that

it constitutes a prior restraint on speech in violation of the First Amendment, and violates the

freedom of speech rights under Article I, Section 19 of the Tennessee Constitution. (DE 1 Page

ID# 31-34). Plaintiffs complaint seeks, among other things, the following relief:

An award of all damages resulting from the need for Plaintiffs to respond to Curlees

baseless allegations and attend numerous inappropriate Registry hearings;

3When reviewing a factual attack on the Courts subject matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), the Courtmay consider evidence outside the pleadings and both parties are free to supplement the record by affidavits. Rogersv. Stratton Industries, 798 F.2d 913, 916 (6th Cir. 1986).



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A permanent injunction prohibiting further violations of Plaintiffs civil rights and

requiring the Defendants to recognize Plaintiffs rights of free speech and association and

Defendant Registry to rescind its judgment against Plaintiffs;

A declaration that Tenn. Code Ann. 2-10-101, et seq. impermissibly violates the First

Amendment of the United States Constitution, both as it is written and how it has been

applied by the Registry, and must be stricken.

(DE 1 Page ID# 34-35).

Defendants submit that Plaintiffs claims against them under 42 U.S.C. 1983 are barred

by the Eleventh Amendment and sovereign immunity, or otherwise fail to state a claim.

Defendants further submit that this Court should abstain from exercising its jurisdiction under

Younger v. Harris, 401 U.S. 37 (1971), as there is an ongoing state administrative proceeding.

STANDARD OF REVIEW FOR 12(b) MOTION TO DISMISS

I. Dismissal for Lack of Subject Matter Jurisdiction

A challenge to the courts subject-matter jurisdiction under Rule 12(b)(1) may be either a

facial attack or a factual attack. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320,

330 (6th Cir. 2007). A facial attack questions merely the sufficiency of the pleadings. Id. When

reviewing a facial attack, this Court must take the allegations in the complaint to be true. Id.

But when there is a factual attack, the Court must weigh conflicting evidence provided by

the plaintiff and the defendant to determine whether subject-matter jurisdiction exists. Id. Thus

in reviewing a factual attack, the Court may consider evidence outside the pleadings and both

parties are free to supplement the record by affidavits. Id.



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II. Dismissal for Failure to State a Claim

To state a claim upon which relief can be granted, a complaint must contain either direct

or inferential allegations respecting all material elements to sustain a recovery under some viable

legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005); Wittstock v. Mark A Van Sile,

Inc., 330 F.3d 889, 902 (6th Cir. 2003). While the factual allegations in a complaint need not be

detailed, they must do more than create speculation or suspicion of a legally cognizable cause of

action; they must show entitlement to relief. League of United Latin Am. Citizens v. Bredesen,

500 F.3d 523, 527 (6th Cir. 2007) (citingBell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-

95 (2007)).

The United States Supreme Court has recently encapsulated the appropriate standard to be

applied in considering a motion to dismiss for failure to state a claim:

Two working principles underlie our decision in [Bell Atlantic v.]Twombly. First, the tenet that a court must accept as true all of theallegations contained in a complaint is inapplicable to legalconclusions. Threadbare recitals of the elements of the cause ofaction, supported by mere conclusory statements, do not suffice. . .. Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlockthe doors of discovery for plaintiff armed with nothing more thanconclusions. Second, only a complaint that states a plausible claimfor relief survives a motion to dismiss. . . . Determining whether acomplaint states a plausible claim for relief will, as the Court ofAppeals observed, be a context-specific task that requires thereviewing court to draw on its judicial experience and commonsense. . . . But where the well-pleaded facts do not permit the courtto infer more than the mere possibility of misconduct, the complainthas alleged but it has not show[n] that the pleader is entitledto relief.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-1950 (2009) (citations omitted).

Likewise, when faced with a threshold question of whether to apply the Youngerabstention

doctrine and refrain from exercising jurisdiction over a pending state administrative proceeding, a



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court must first address the Youngerissue before to engaging in any analysis on the merits of the

case. Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005); Steel Co. v. Citizens for Better Environment, 523

U.S. 83, 100 n.3 (1998).

ARGUMENT

I. Plaintiffs 42 U.S.C. 1983 Claims against Defendants in their Official

Capacity are Barred by the Eleventh Amendment.

The Eleventh Amendment has been construed by the Supreme Court to bar actions by

citizens against their own state or one of its agencies in federal court unless there has been a waiver

by the state. Hans v. Louisiana, 134 U.S. 1 (1890); Pennhurst State School & Hosp. v. Halderman,

465 U.S. 89, 100-01 (1984); Welch v. Texas Dept of Highways and Pub. Transp., 483 U.S. 468

(1987); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Alden v. Maine, 527 U.S.

706 (1999).

Tennessee has not waived its immunity under the Eleventh Amendment with respect to

civil rights suits. Tenn. Code Ann. 20-13-102(a);American Civil Liberties Union v. Tennessee,

496 F.Supp.2d 218 (M.D. Tenn. 1980); Hair v. Tennessee Consol. Ret. Sys., 790 F. Supp. 1358

(M.D. Tenn. 1992). The State is absolutely immune from liability under the Eleventh Amendment.

Id.; Wells v. Brown, 891 F.2d 591, 592 (6thCir. 1989). The immunity afforded by the Eleventh

Amendment prohibits even suits against states for injunctive relief. Alabama v. Pugh, 438 U.S.

781 (1978); Will v. Michigan Dept of State Police, 491 U.S. 58, 66 (1989) (the Eleventh

Amendment bars a claim against the State, plus the State is not a person pursuant to 42 U.S.C.

1983); Lawson v. Shelby Cnty., 211 F.3d 331 (6thCir. 2000) (injunctive relief is not available

against the State). A suit against a state official in his official capacity is considered to be a suit

against the state. Will, 491 U.S. at 66; Wells, 891 F.2d at 591.



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In Kentucky v. Graham,the Supreme Court stated that absent waiver by the State or valid

congressional override, the Eleventh Amendment bars a damages action against a State in federal

court. 473 U.S. 159, 169 (1985), citing, Ford Motor Co. v. Dept. of Treasury of Ind.,323 U.S.

459, 464 (1945). The Court found that [t]his bar remains in effect when State officials are sued

for damages in their official capacity.Id.,citing, Cory v. White,457 U.S. 85, 90 (1982);Edelman

v. Jordan,415 U.S. 651, 663 (1974). This is because a judgment against a public servant in his

official capacity imposes liability on the entity that he represents....Brandon v. Holt,469 U.S.

464, 471 (1985).

Defendant Registry is a state agency and the individual Defendants are all state officials,

all of whom have been sued for damages in their official capacities only. (DE 1 Page ID# 8-10).

As such, Plaintiffs claim for damages against the Defendants in their official capacities is barred

by the Eleventh Amendment.

In addition, 42 U.S.C. 1983 only authorizes the imposition of liability against every

person who, acting under color of state law, violated another persons rights. As a matter of

law, the term person in Section 1983 does not include states, state agencies, or state employees

sued in their official capacities. Will, 491 U.S. at 71;Howlett v. Rose,496 U.S. 356, 365 (1990).

While state officials literally are persons[,] . . . a suit against the official in his or her official

capacity is not a suit against the official but rather is a suit against the officials office. As such, it

is no different from a suit against the state itself. Will, 491 U.S. at 71. As a result, the Defendants

are not deemed to be persons subject to suit under 42 U.S.C. 1983, and all causes of action

against them in their official capacities must be dismissed. Will, 491 U.S. at 71; Wells, 891 F.2d

at 592; Walker v. Norris, 917 F.2d 1449, 1457 (6thCir. 1990). Moreover, as Plaintiffs have only



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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.

II. Plaintiffs Complaint Fails to State a Claim for Violation of Art. I, 19, of the

Tennessee Constitution.

Plaintiffs seek to sue Defendants in their official capacities under 42 U.S.C. 1983 for

monetary damages and equitable relief allegedly resulting from Defendants unconstitutional

application of Tennessees campaign financial disclosure laws. (DE 1 Page ID# 33-35). The

initial inquiry in a Section 1983 action is whether the plaintiff has been deprived of a right secured

by the Constitution and laws of the United States. 42 U.S.C. 1983. Baker v. McCollan,443

U.S. 137, 140 (1979). Violations of state law alone are not sufficient to state a Section 1983 claim.

Although official conduct may violate state law, it does not necessarily rise to the level of a

constitutional injury. Id.at 146. A state ought to follow its law, but to treat a violation of state

law as a violation of the Constitution is to make the federal government the enforcer of state law.

State rather than federal courts are the appropriate institutions to enforce state rules.Archie v.

Racine,847 F.2d 1211, 1217 (7th Cir.1988), cert. denied,489 U.S. 1065 (1989). Accordingly,

Plaintiffs have failed to state a claim under 42 U.S.C. 1983 for violation of Art. I, 19, of the

Tennessee Constitution and such claim should be dismissed.

Moreover, Tennessee courts do not recognize a private cause of action for violation of the

Tennessee Constitution. Bowden Building Corporation v. Tennessee Real Estate Commission,15

S.W.3d 434, 446 (Tenn. Ct. App. 1999), app. denied (Tenn. 2000) (Tennessee...has not

recognized any such implied cause of action for damages based upon violations of the Tennessee

Constitution.). As such, Plaintiffs cannot state a claim for violation of the Tennessee

Constitution over which this Court would have pendant jurisdiction. In Cline v. Rogers,87 F.3d

176, 179 (6th Cir.), cert. denied,519 U.S. 1008 (1996), the Sixth Circuit, analyzing Tennessee



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law, concluded that [t]he plaintiff can state no claim of a state constitutional violation in this case

because Tennessee does not recognize a private cause of action for violations of the Tennessee

Constitution. (citingLee v. Ladd,834 S.W.2d 323 (Tenn. Ct. App. 1992), app. denied, (Tenn.

1992)); Parker v. Henderson Cnty., Tennessee, 450 F. Supp. 2d 842, 856 (W.D. Tenn. 2006);

Boling v. Gibson County,No. 051129TAN, 2005 WL 1936299, *2 (W.D. Tenn. Aug. 1, 2005).

Finally, even if Plaintiff could state a private cause of action for violation of the Tennessee

Constitution over which this Court has jurisdiction, any state law claim for damages would be

barred by sovereign immunity. Article I, section 17 of the Tennessee Constitution provides that

suits may be brought against the State in such manner and in such courts as the Legislature may

by law direct. Article I, section 17 has been interpreted as a grant of sovereign immunity to the

State, and accordingly no suit against the State may be sustained absent express authorization from

the Legislature. Coffman v. City of Pulaski, 422 S.W.2d 429 (Tenn. 1967). The Tennessee

Legislature has provided that no court in the State shall have any power, jurisdiction, or authority

to entertain any suit against the State. Tenn. Code Ann. 20-13-102(a). The Legislature of the

State of Tennessee has authorized the bringing of certain actions against the State exclusively in

the Tennessee Claims Commission. See Tenn. Code Ann. 9-8-307, et seq. There has been no

provision allowing suits for state law claims in federal court.

And as with federal claims, a claim against a state employee or official in his or her official

capacity is an action against the State. Cox v. State, 399 S.W.2d 776, 778 (Tenn. 1965). Thus,

sovereign immunity prohibits any state law claims against these Defendants in their official

capacities and such claims should be dismissed.



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III. This Court Should Abstain From Exercising Its Jurisdiction Over Any

Remaining Claims Under the YoungerAbstention Doctrine.

In Younger v. Harris, the Supreme Court held that federal courts should refrain from

interfering in a pending state criminal law enforcement process. 401 U.S. at 37. This doctrine of

Youngerabstention is borne out of a proper respect for state functions, a recognition of the fact

that the entire county is made up of a Union of separate state governments, and a continuance of

the belief that the National government will fare best if the States and their institutions are left free

to perform their separate functions in their separate ways. Danner v. Bd. of Profl Responsibility

of the Tenn. Supreme Court, 277 F.Appx 575, 576 (6thCir. 2008) (citing Younger v. Harris, 401

U.S. at 44)). It has been extended to apply to both ongoing state civil and administrative

proceedings. Trainor v. Hernandez, 431 U.S. 434 (1977) (Youngerabstention doctrine applies to

all civil proceedings in which government is a party); Ohio Civil Rights Commn v. Dayton

Christian Schools, Inc., 477 U.S. 619, 627 (1986) (Youngerabstention doctrine applies to state

administrative proceedings).

A federal court must consider three factors in determining whether to abstain from

interfering in a state proceeding under Youngerabstention:

(1) the underlying proceedings constitute an ongoing state judicialproceeding; (2) the proceedings implicate important state interests;and (3) there is an adequate opportunity to raise constitutionalchallenges in the course of the underlying proceeding.

Danner, 277 F.Appx at 576 (citingLoch v. Watkins, 337 F.3d 574, 578 (6thCir. 2003); Tindall v.

Wayne Cnty. Friend of the Court, 269 F.3d 533, 538 (6thCir. 2001)). All three factors are clearly

met in this case.



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A. Ongoing Judicial Proceeding

Generally, in determining whether a state proceeding is ongoing, the Court looks to the day

of the federal complaints filing. See Loch, 337 F.3d at 578. If the state proceeding was pending

at the time of the filing, then the matter is ongoing for purposes of Younger abstention. Id.

(citingZalman v. Armstrong, 802 F.2d 199, 204 (6thCir. 1986)). It remains pending until a litigant

has exhausted his state appellate remedies. Id. Moreover, in Hicks v. Miranda, the Supreme

Court held that even if state proceedings were not pending at the time the federal suit is initiated,

Younger abstention doctrine will apply if the state proceeding is commenced before any

proceedings of substance on the merits in the federal case. 422 U.S. 332, 349 (1975), overruled

on other grounds by Mandel v. Bradley, 432 U.S. 173 (1977).

Here, a state administrative proceeding clearly was commenced and ongoing prior to the

filing of this lawsuit in federal court. As previously discussed, the Registry has the authority to

[i]nvestigate any alleged violation upon sworn complaint and [a]ssess a civil penalty for any

violation of the disclosure laws as provided by [the Act]. . . after notice and opportunity for

hearing. Tenn. Code Ann. 2-10-206(a)(7) and 207(7). As alleged in the complaint, the

Registry received a sworn complaint alleging that Plaintiff Williamson Strong had violated the

Campaign Financial Disclosure Act. The Registry proceeded to investigate that sworn complaint

and issued a Show Cause Notice to Plaintiff Williamson Strong. (DE 1 Page ID# 19-20). A

hearing on the Show Cause Notice was held on May 13, 2015, and at the conclusion of the hearing,

Registry issued an order assessing a civil penalty of $5,000 against Williamson Strong for violation

of Tenn. Code Ann. 2-5-101(c)(1) and (e)(1). (DE 1 Page ID# 27-28). That order specifically

informed Plaintiff Williamson Strong of its right to appeal the civil penalty by filing a request for

a contested case hearing under the Uniform Administrative Procedures Act, Tenn. Code Ann.



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4-5-301, et seq. (UAPA). SeeExhibit 2. Plaintiffs exercised that right by filing a petition with

the Registry on July 1, 2015 the same date that they filed this lawsuit. SeeExhibit 3.

These facts demonstrate that an administrative proceeding was commenced by the Registry

against Plaintiff Williamson Strong with the issuance of the Show Cause Notice on January 23,

2015, well before the filing of this suit on July 1, 2015. See Exhibit 1. At the very latest, an

administrative proceeding was commenced on July 1, 2015 when Plaintiff Williamson Strong filed

a petition requesting a contested case hearing under the UAPA. And, while Plaintiffs filed this

lawsuit that same day, clearly this Court has not reached any proceedings of substance on the

merits. Accordingly, the ongoing judicial proceeding factor of Youngerabstention is met in this

case.

B. Important State Interest

With respect to the second factor whether the ongoing state judicial proceeding implicates

an important state interest, the Supreme Court has found that states have a compelling state interest

in notifying the public of the source of campaign funds and preventing actual and perceived

corruption in the political process. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 647 (6th

Cir. 1997) (citingBuckley v. Valeo, 424 U.S. 1, 64-68 (1976)); see also Frank v. City of Akron,

290 F.3d 813, 819 (6thCir. 2002) (finding that campaign contribution disclosure provisions serve

a significant governmental interest in providing an accountability mechanism to track campaign

donors and safeguard against corruption).



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In addition, the Tennessee Supreme Court in Bemis Pentecostal Church v. State, 731

S.W.2d 897 (Tenn. 1987)4the States interest in requiring disclosure of campaign contributions,

stating:

that the State's interest is compelling is shown by the State'sConstitutional provisions protecting the integrity and fairness of thepolitical process. Moreover, assuring public avenues fordisseminating information to protect the electoral process furthersthe public interest in open government. The availability of suchinformation not only underwrites the reliability of election results asa reflection of popular will, but it also preserves the integrity of thesystem by deterring corruption and the appearance of corruption.Disclosure assures contributors that their money has been spent inthe manner for which it was solicited or for which it was donated.

Prevention of fraudulent fund-raising or of funding of campaignactivity by front organizations is made more feasible, justifyingdisclosure both of contributions and expenditures as two sides of thesame coin. Records-keeping and routine disclosure further theseState interests by preserving a paper trail by which the conversionof contributions into legitimate expenditures may be traced. Oneneed only recall the infamous Watergate slush fund to recognize thenecessity of such records and of periodic disclosure requirements.The recent history of campaign financial abuses as well as thegrowth and possible dominance of special interest political actioncommittees make the State's disclosure requirements necessary toallow the public to have some gauge by which to assess the sources,content, and frequency of campaign publicity and activity.

Vigorous, free, well-informed, and public debate can only beenhanced by disclosure of campaign financing in both referenda andcandidate elections. No faction with access to substantial financialresources should be able to distort the process by flooding the forumwith media campaigns without at least disclosing this fact to thevoters. Any group that wishes to participate in the process throughthe financing of election outcome specific advocacy should revealthe extent of this financial involvement to the public. This is all thatthe people of Tennessee have asked of groups directly participatingin an election campaign through the mechanism of the CampaignFinancial Disclosure Act.

4It should be noted that the Tennessee Supreme Court also addressed the constitutionality of Tennessees campaignfinancial disclosure laws and found that they did not violate the First Amendment, but were constitutional in everyaspect. 731 S.W.2d at 905.



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Id. at 904. The second element of the Youngerabstention doctrine is satisfied.

C. Adequate Opportunity to Raise Constitutional Challenge

Regarding the third factor, the Sixth Circuit has stated:

Abstention is appropriate unless state law clearly bars theinterposition of the constitutional claims. The plaintiff bears theburden of showing that state law barred presentation of his or herconstitutional claims. Once this third and final requirement is met,abstention is appropriate unless the plaintiff can show that one ofthe exceptions to Younger applies, such as bad faith, harassment, orflagrant unconstitutionality.

Danner, 277 F. Appx at 579 (citing Squire v. Coughlan, 469 F.3d 551, 556 (6thCir. 2006) (internal

citations omitted)). In this case, state law clearly provides full opportunity for Plaintiffs to raise

both their facial and as-applied challenges to Tennessees campaign financial disclosure laws.

Indeed, inRichardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995), the

Tennessee Supreme Court addressed the very issue of whether and when constitutional challenges

could be raised in a contested case hearing under the UAPA, and concluded that:

administrative agencies have no authority to determine the facialconstitutionality of a statute. They are authorized, however, todetermine the constitutionality of the application of statutes or rulesand of the procedures employed. The agency resolution of thoseissues is subject to judicial review in the chancery court. Tenn. CodeAnn. 4-5-322 (1995 Supp.).

913 S.W.2d at 455. With respect to facial challenges to the constitutionality of a statute, the Court

reiterated that since an administrative agency has no authority under Tennessee law to consider

the constitutionality of a statute, it must refuse to address a facial challenge. As such, there is no

requirement that a party raise a facial challenge in the administrative proceeding, but can raise it

for the first time in chancery court. Id.at 456. Finally, the Tennessee Supreme Court concluded

that:

although an agency has no authority to determine theconstitutionality of a statute, an agency may rule on constitutional



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challenges to the application of a statute, to a rule, and to proceduresused in a contested case proceeding. Nevertheless, the failure toraise these constitutional issues before the agency will not precludea party in a contested case from raising the issue for the first timeupon judicial review.

Id. at 458.

The Tennessee Supreme Courts decision in Richardsonmakes clear that Plaintiffs will

have every opportunity to raise their facial and as-applied constitutional challenges at either the

administrative hearing level or on judicial review to the chancery court. In Ohio Civil Rights

Commn v. Dayton Christian Schools, Inc., 477 U.S. at 629, the Supreme Court has held that the

opportunity to have a facial constitutional challenge heard during the state judicial review process

of the administrative proceedings under Tenn. Code Ann. 4-5-322 is adequate.

Accordingly the third factor of Youngerabstention is satisfied and this Court should abstain

from hearing Plaintiffs claims and should dismiss Plaintiffs complaint. Defendants recognize

that in cases in Youngerabstention is applicable and there is a claim for damages, that a stay of the

damage claim rather than dismissal is normally the appropriate course of action, particularly when

the plaintiffs constitutional claims are at issue in the underlying state proceedings yet damages

are not an available form of relief in those proceedings. See, e.g., Watts v. Burkhart, 854 F.2d 839,

849 (6thCir. 1988). However, as discussed supra, Plaintiffs damages claims in this case are barred

by Eleventh Amendment immunity, and thus dismissal of those claims would not result in any

preclusive effect on the Plaintiffs request for equitable relief in their state administrative hearing,

nor would it cause any interference with that ongoing proceeding. Accordingly, dismissal of

Plaintiffs complaint under Youngerabstention is appropriate. See Dhillon v. Tennessee Health

Related Bd. of Medical Examiners, No. 3-12-0151, 2013 WL 866945, at *6 (M.D. Tenn. Mar. 7,

2013).



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CONCLUSION

For these reasons, Defendants respectfully request that this Court dismiss Plaintiffs

complaint in its entirety and with prejudice for lack of subject matter jurisdiction and failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

Respectfully submitted,

HERBERT H. SLATERY IIIAttorney General and Reporter

/s/ Janet M. KleinfelterJANET M. KLEINFELTER (BPR 13889)Deputy Attorney General

Public Interest DivisionOffice of Tennessee Attorney GeneralP.O. Box 20207Nashville, TN 37202(615) [email protected]

/s/ Ryan A. LeeRYAN A. LEE (BPR 31937)Assistant Attorney GeneralPublic Interest DivisionP.O. Box 20207Nashville, TN 37202-20207(615) [email protected]

CERTIFICATE OF SERVICE

The undersigned hereby certifies on the 30thday of July 2015 that a copy of the abovedocument has been served upon the following persons by:

X Electronic Case Filing (ECF) System to:

J. Gerard Stranch IVBenjamin A. GastelSeamus T. KellyBranstetter, Stranch & Jennings, PLLCThe Freedom Center223 Rosa L. Parks AvenueSuite 200

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


18/18

18

Nashville, TN 37203(615) [email protected]@bsjfirm.com

/s/ Janet M. KleinfelterJANET M. KLEINFELTER
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Documents

Registry Motion To Dismiss