281 Care Comm. v. Arneson

766 F.3d 774

281 CARE COMMITTEE; Ron Stoffel; Citizens for Quality Education; Joel Brude, Plaintiffs–Appellants

v.Ross ARNESON, in his official capacity as County Attorney for Blue Earth County, Minnesota, or his successor; Mike Freeman, in his official capacity as County Attorney for Hennepin County, Minnesota, or his successor; Lori Swanson, in her official capacity as the Minnesota Attorney General or her successor, Defendants–Appellees.

No. 13–1229.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 13, 2014.

Filed: Sept. 2, 2014.

Rehearing and Rehearing En Banc Denied Oct. 2, 2014.

Held Unconstitutional

M.S.A. § 211B.06

William F. Mohrman, argued, Minneapolis, MN (Erick G. Kaardal and James V.F. Dickey, on the brief), for appellants.

John Steven Garry, AAG, argued and on the brief, Saint Paul, MN, for appellee-Lorri Swanson.

Daniel Patrick Rogan, argued and on the brief, Minneapolis, MN (Beth Ann Stack, on the brief), for appellees-Ross Arneson and Mike Freeman.

Before SMITH, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

On appeal for the second time,¹ Appellants challenge the district court's denial of their motion for summary judgment, its corresponding grant of summary judgment in favor of Appellees, and the court's dismissal of all claims in the complaint with prejudice. For the reasons stated herein, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Appellants in this action are two Minnesota-based, grassroots advocacy organizations along with their corresponding leaders.² Each organization was founded to oppose school-funding ballot initiatives, which Minnesota law authorizes individual school boards to propose. Appellants claim that a provision of the Minnesota Fair Campaign Practices Act (FCPA) inhibits Appellants' ability to speak freely against these ballot initiatives and, thereby, violates their First Amendment rights. Minn.Stat. §§ 211B.01 et seq. Appellees are two Minnesota county attorneys and the Minnesota Attorney General, all sued in their official capacities (“Appellees” or “the county attorneys”).³

In relevant part, the challenged provision of the FCPA provides:

A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material ... with respect to the effect of a ballot question, that is designed or tends to ... promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.

Minn.Stat. § 211B.06, subd. 1. Other than a source protected by the FCPA exemption for “news items or editorial comments by the news media,” anyone can lodge a claim under § 211B.06 with the Minnesota Office of Administrative Hearings (OAH) within one year after the alleged occurrence of the act that is the subject of the complaint. Minn.Stat. §§ 211B.01, subd. 2; 211B.32, subd. 2. The OAH immediately assigns an administrative law judge (ALJ) to the matter, who then determines if there is a prima facie violation and, if so, probable cause supporting the complaint. Minn.Stat. § 211B.33, subd. 1, 2. If the complaint alleging a § 211B.06 violation is filed “within 60 days before the primary or special election or within 90 days before the general election to which the complaint relates, the ALJ must conduct an expedited probable cause hearing.” Minn.Stat. § 211B.33, subd. 2. If a complaint survives a probable cause assessment, the chief ALJ assigns the complaint to a three-judge panel for an evidentiary hearing, which could realistically necessitate the employment of legal counsel by the accused. Minn.Stat. § 211B.35, subd. 1. A final decision and/or civil penalty (up to $5,000) imposed by an ALJ panel is subject to judicial review. Minn.Stat. §§ 211B.35, subd. 2(d); 211B.36, subd. 5. Only when a complaint is finally disposed of by the OAH, is it subject to further prosecution by the county attorney. Minn.Stat. § 211B.32, subd. 1. One possible resolution by the ALJ panel is to refer the complaint to the appropriate county attorney without rendering its own opinion on the matter, or in addition to its own resolution. Minn.Stat. § 211B.35, subd. 2(e).

As noted in 281 Care Committee I:

Minnesota has a long history of regulating knowingly false speech about political candidates; it has criminalized defamatory campaign speech since 1893. However, the FCPA's regulation of issue-related political speech is a comparatively recent innovation. Minnesota did not begin regulating knowingly false speech about ballot initiatives until 1988. Between 1988 and 2004, the FCPA's regulation of speech regarding ballot initiatives allowed for only one enforcement mechanism: mandatory criminal prosecution of alleged violators by county attorneys. In 2004, the Minnesota legislature amended the FCPA to provide that alleged violations of section 211B.06 initially be dealt with through civil complaints filed with the [OAH].

638 F.3d 621, 625 (8th Cir.2011).

Upon remand from 281 Care Committee I, the district court faced various issues: (1) a renewed challenge by Appellees to Appellants' standing on the basis of a failure of proof, (2) a decision regarding the level of scrutiny to apply to this First Amendment action, and (3) whether the Minnesota statute survived under such an analysis. As to the first issue, the county attorneys argued that even if Appellants sufficiently alleged standing at the motion to dismiss stage, they failed to prove standing sufficient to survive summary judgment because they failed to identify a specific ballot initiative they intended to oppose, nor had they, argued Appellees, provided examples of statements they intended to use (i.e., failure of proof). The district court held that this circuit's prior conclusion—that Appellants had standing because a credible threat of prosecution existed by virtue of the recent enactment of § 211B.06—persisted at the summary judgment stage, and thus the court rejected Appellees' argument as to the first issue.

Regarding the appropriate level of scrutiny to apply in this action, even though this court in 281 Care Committee I directed the district court to apply strict scrutiny upon remand, 638 F.3d at 636, the district court determined that the intervening Supreme Court opinion, United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), altered the landscape. Discussing Alvarez, the district court noted that the four-Justice plurality, led by Justice Kennedy, applied strict scrutiny and found the Stolen Valor Act unconstitutional. The district court accurately noted that Justice Breyer wrote a concurring opinion in Alvarez, joined by Justice Kagan, in which he agreed that the Stolen Valor Act was unconstitutional but arrived at that holding applying intermediate, not strict, scrutiny. See Alvarez, 132 S.Ct. at 2551–56 (Breyer, J., concurring). Appellees argued to the district court that Justice Breyer's concurrence controlled in Alvarez because when “a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation omitted). Accordingly, applying the Marks rule, Appellees argued that the appropriate level of scrutiny to apply in this case is intermediate scrutiny. The district court agreed that intermediate scrutiny applied according to Alvarez, but conducted its determinative analysis applying strict scrutiny because the court held that no matter the level of scrutiny, Minnesota Statute § 211B.06 survives even the most stringent.

Applying a strict scrutiny analysis to the instant facts, the district court held § 211B.06 serves a “compelling interest” (i.e., preserving fair and honest elections and preventing a fraud upon the electorate through the deliberate spreading of material, false information) and that, on balance, that interest was important enough to justify the speech § 211B.06 has restricted in pursuit of that interest. This appeal followed.

II. DISCUSSIONA. Standard of Review

“This court reviews de novo a grant of summary judgment.” Iowa Right To Life Comm., Inc. v. Tooker, 717 F.3d 576, 583 (8th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 1787, 188 L.Ed.2d 757 (2014). “This court affirms where there are no genuine issues of material fact, and judgment is appropriate as a matter of law.” Minn. Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106, 1109 (8th Cir.2005).B. Standing

We first dispose of the county attorneys' claim that the district court erred in its conclusion that Appellants had standing to pursue their claims at summary judgment. In 281 Care Committee I, this court held that Appellants had standing, in part, because a credible threat of prosecution existed by virtue of the recent enactment of § 211B.06. 638 F.3d at 627–31. Upon remand, the county attorneys revisited that claim. Before the district court, the county attorneys argued that Appellants lacked standing due to a failure of proof on that issue—that Appellants failed to offer specific facts to support standing at summary judgment. For example, the county attorneys claimed Appellants failed to identify a specific ballot initiative they intended to oppose nor did they provide examples of specific statements they intended to use.

Despite the fact that Appellants filed declarations describing their opposition to particular ballot initiatives, the county attorneys maintain that the posited statements “are beyond the reach of the statute” and appear to be exaggerations, conjecture, or illogical inferences that, according to the county attorneys, are not within the scope of the statute. Thus, the county attorneys...