NH Right to Life v. Gardner CV-96-212-JD 06/21/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

New Hampshire Right to Life Political Action Committee

v. Civil No. 96-212-JD

William Gardner, et al.

O R D E R

The plaintiff. New Hampshire Right to Life Political Action

Committee ("NHRLPAC")a brought this action under

against the New Hampshire Secretary of State and Attorney General

in their official capacities, seeking declaratory and injunctive

relief. Before the court is the plaintiff's amended motion for a

preliminary injunction (document no. 11).

Background

New Hampshire Rev. Stat. Ann. ("RSA") § 664:5,V (Supp. 1995)

provides:

No political committee shall make independent expenditures in excess of $1,000 for or against any candidate running for a particular office in a state primary election, and a like amount in a state general election, in support of or to oppose any candidate.

RSA § 664:3,1 (Supp. 1995) reguires political committees to

register with the Secretary of State and to declare that they

will not exceed the expenditure limitations of RSA § 664:5,V. RSA § 664:3,11 (1994) provides that political committees may not

make independent campaign expenditures without complying with the

declaration reguirement of RSA § 664:3,1.

Relying on Buckley v. Valeo,

(1976) (per curiam),

NHRLPAC brought this action seeking declaratory and injunctive

relief against enforcement of the statutory provisions outlined

above on the ground that they violate the First Amendment to the

United States Constitution. NHRLPAC alleged that it is a

political committee within the meaning of the relevant statutes,

and that it intends to spend more than $1,000 in independent

expenditures advocating the election of a clearly identified

candidate for state office. NHRLPAC also stated its intention

not to comply with the declaration reguirement of RSA § 664:3,I.1

Following the commencement of this lawsuit, the defendants

reguested information concerning the plaintiff's planned

expenditures and the plaintiff's relationship to the candidate it

intends to support. On June 6, 1996, the defendants' attorneys

deposed NHRLPAC's chairperson, Barbara Hagan, who described her

1The defendants have filed a copy of a political committee registration form for the 1996 primary and general elections signed by Barbara Hagan, the plaintiff's chairperson, on November 17, 1995. The form indicates the plaintiff's intent to make independent expenditures with respect to candidate(s) to be named at a later date, and contains the following declaration: "We, the undersigned, declare that any independent expenditures made by this political committee will not exceed the expenditure limitations as set forth in RSA § 664:5,V."

2 committee's plans to purchase two advertisements in the New

Hampshire Right to Life News and to distribute 30,000 flyers, all

in support of the candidate and at a cost well in excess of

$1,000. Hagan also described her organization's relationship

with the candidate, stating, inter alia, that the candidate

currently is a member of NHRLPAC, has attended rallies sponsored

by NHRLPAC, and communicates with Hagan several times a week

about the campaign. Hagan further stated that several members

and trustees of NHRLPAC are currently working on or plan to help

the candidate's campaign in some manner.

The defendants, acting through attorneys from the office of

the Attorney General, have filed an objection to the instant

motion. Based on Hagan's deposition testimony, they have stated

that they do not consider the expenditures NHRLPAC intends to

make on behalf of the candidate to be "independent," and have

represented that the state will take no enforcement action under

RSA § 664:5,V with respect to such expenditures. The defendants

also have represented that the plaintiff is not subject to

prosecution under RSA § 664:5, II (1994), which prohibits

political committees from making expenditures or contributions

for the purpose of advocating a candidate without obtaining and

filing with the Secretary of State the candidate's consent.

3 Discussion

The defendants argue that the plaintiff's request for

injunctive relief should be denied because the plaintiff is not

threatened with prosecution and thus lacks standing to raise its

First Amendment claims. The plaintiff has challenged the

defendants' construction of the statutes at issue and the

defendants' authority to determine prospectively whether an

expenditure is independent, and claims that the chilling effect

caused by the statutory scheme, even without the threat of

prosecution, is sufficient to confer standing.

The case and controversy requirement of Article III of the

United States Constitution places upon the plaintiff the burden

of proving (1) some actual or threatened injury as a result of

the putatively illegal conduct; (2) that the injury may fairly be

traced to the challenged action; and (3) that a favorable

decision is likely to redress the injury. Vote Choice, Inc. v.

DiStefano,

(1st Cir. 1993); United States v. AVX

Corp.,

(1st Cir. 1992) . To satisfy the first

prong of this test, a party contesting the validity of a statute

prior to its enforcement must allege more than a mere "subjective

chill," e.g., Meese v. Keene,

(1987), and must

demonstrate a credible threat of prosecution. Babbitt v. United

Farm Workers Nat. Union,

(1979); see also

4 Younger v. Harris,

(1971) ("[PJersons having no

fears of state prosecution except those that are imaginative or

speculative . . . are not to be accepted as appropriate

plaintiffs."). Enjoining the enforcement of a state statute is a

matter of serious import and the prereguisites for doing so must

be strictly complied with. Although non-constitutional rules of

standing such as the prohibition against asserting another

person's legal rights may be relaxed where a plaintiff asserts a

First Amendment claim, see, e.g., Virginia v. American

Booksellers Ass'n,

(1988), the existence of

actual or threatened injury is a prereguisite to federal

jurisdiction, regardless of the claim asserted. See, e.g..

Village of Schaumburg v. Citizens for a Better Environment,

(1980) ("Given a case or controversy, a litigant

whose own activities are unprotected may nevertheless challenge a

statute by showing that it substantially abridges the First

Amendment rights of other parties not before the court."

(emphasis added)).

Here, the Attorney General, a named party in this action,

has represented both to this court and to the plaintiff that the

plaintiff will not be prosecuted for making expenditures on

behalf of the candidate at issue under RSA § 664:5, V or RSA §

664:5, II. The Attorney General also has submitted an affidavit

5 from an employee in the Office of the Secretary of State

indicating that the plaintiff currently is in full compliance

with the declaration requirement of RSA § 644:3, I. See

Affidavit of Ellen C. Dube at 5 4. Although the plaintiff

disputes the authority of the Attorney General to make such

representations, the court considers the representations to be

binding and the plaintiff to be protected by them. The Attorney

General is entrusted by statute with enforcement of the election

laws in general, see RSA § 7:6-c (1988), and of the political

expenditure and contribution laws in particular, see RSA § 664:18

(1994), and has unequivocally represented to the court that the

plaintiff will not be subject to prosecution for the acts it

intends to undertake. As enforcer of the election laws, the

Attorney General has bound the state to his representations. As

such, there is no credible threat of prosecution under the

statutory provisions at issue, and the court has no authority

under Article III to adjudicate the constitutionality of the

statutes as written or applied.2

2Ihe plaintiff relies on American Booksellers for the proposition that the danger caused by self-censorship is sufficient to confer standing on a plaintiff, even where there is no threat of actual prosecution. The argument is unavailing. Although the American Booksellers court did recognize that the harms of self-censorship "can be realized without an actual prosecution," the court was not confronted with a situation where, as here, there is not only no prosecution, but not even the threat of one. See

.

6 The court's conclusion presents a constitutional barrier not

only to the adjudication of the instant motion but also to the

court's consideration of the merits of the case. As the First

Circuit has noted, "[s]tanding poses the potential for a domino

effect. If a party lacks standing to bring a matter before the

court, the court lacks jurisdiction to decide the merits of the

underlying case." AVX Corp., 962 F.2d at 113. The court has no

jurisdiction over the subject matter of the case. The

plaintiff's motion for a preliminary injunction is denied and the

case is dismissed.

Conclusion

The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge June 21, 1996

cc: Stephen F. Queeney, Esguire James Bopp Jr., Esguire Lucy C. Hodder, Esguire

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