Frank v. Buchanan

550 F.Supp.3d 1230

John C. FRANK and Grassfire, LLC, Plaintiffs,

v.Ed BUCHANAN, Wyoming Secretary of State, Leigh Anne Manlove, Laramie County District Attorney, Debra Lee, Laramie County Clerk, in their official capacities, Defendants.

Case No. 20-CV-138-F

United States District Court, D. Wyoming.

Signed July 22, 2021

Benjamin T. Barr, Pro Hac Vice, Barr & Klein PLLC, Chicago, IL, Casandra A. Craven, Longhorn Law LLC, Cheyenne, WY, Stephen R. Klein, Pro Hac Vice, Barr & Klein PLLC, Washington, DC, Seth A. Johnson, Slow & Steady Law Office PLLC, Saratoga, WY, for Plaintiffs.

James LaRock, James Bradley Peters, MacKenzie Williams, Wyoming Attorney General's Office, Cheyenne, WY, for Defendants Wyoming Secretary of State, Laramie County District Attorney.

Catherine M. Young, Jon Mark Stewart, Davis & Cannon LLP, Cheyenne, WY, for Defendant Laramie County Clerk.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

NANCY D. FREUDENTHAL, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the parties’ cross-motions for summary judgment. Plaintiffs John C. Frank and Grassfire, LLC filed a motion for summary judgment and a memorandum in support (CM/ECF Documents [Docs.] 41, 42). Defendants Buchanan et al. filed a response to the motion. (Doc. 56). Defendants also filed a motion for summary judgment and a memorandum in support. (Docs. 52, 53). Plaintiffs filed a response to the motion. (Doc. 60). The Court has carefully considered the motions, responses, and the parties’ oral arguments from the hearing which took place on July 19, 2021.

FACTUAL BACKGROUND

The cross-motions before the Court regard the constitutionality of Wyoming Statute § 22-26-113, which regulates electioneering near polling places. Plaintiffs seek declaratory and injunctive relief on the basis that the statute is unconstitutional (facially and as-applied to Plaintiffs and third parties) and significantly impinges First Amendment rights. Defendants seek judgment that Plaintiffs’ claims are barred by sovereign immunity under the Eleventh Amendment, that Plaintiffs lack standing to bring suit, and that Wyo. Stat. § 22-26-113 is a reasonable, not significant impingement to First Amendment rights, and is therefore a constitutional content-based restriction on speech.

The statute provides:

(a) Electioneering too close to a polling place or absentee polling place under W.S. 22-9-125 when voting is being conducted, consists of any form of campaigning, including the display of campaign signs or distribution of campaign literature, the soliciting of signatures to any petition or the canvassing or polling of voters, except exit polling by news media, within one hundred (100) yards on the day of a primary, general or special election and within one hundred (100) feet on all other days, of any public entrance to the building in which the polling place is located. This section shall not apply to bumper stickers affixed to a vehicle while parked within or passing through the distance specified in this subsection, provided that:

(i) There is only one (1) bumper sticker per candidate affixed to the vehicle;

(ii) Bumper stickers are no larger than four (4) inches high by sixteen (16) inches long; and

(iii) The vehicle is parked within the distance specified in this subsection only during the time the elector is voting.

Wyo. Stat. Ann. § 22-26-113.

The statute was enacted in 1890, with amendments in 1973, 1983, 1990, 2006, 2011, and 2018. The most recent 2018 amendment implemented the 100-foot buffer zone around polling places on absentee voting days and added language exempting qualifying bumper stickers from the restrictions on campaigning within the buffer zone.

The following facts are undisputed. Plaintiff John C. Frank, a Cheyenne resident, wishes to display and share various campaign signs, literature, bumper stickers, and other materials within the limits of the 100-yard electioneering buffer zone in future election cycles. Specifically, Frank wants to engage in these activities on the campus of the Laramie County Community College ("LCCC"), a locale which is within 100 yards of the Center for Conferences and Institutes Building polling place. But for Wyo. Stat. § 22-26-113, he would distribute campaign literature, affix bumper stickers and/or signs larger than those allowed by the statute to his vehicle (which would be driven into buffer zones) and engage in other acts considered electioneering in the future during and in the areas and times proscribed by the statute. Frank has not electioneered within buffer zones in Wyoming in the past.

Plaintiff Grassfire, LLC is a political consulting firm, registered in Wyoming, which offers services including signature gathering. Grassfire has not gathered signatures in Wyoming in the past. However, Grassfire seeks to engage in this activity throughout Wyoming generally, and specifically on the sidewalks adjacent to the public entrances of the Laramie County Governmental Complex ("LCGC"). Grassfire hopes to gather signatures for petitions for candidates, initiatives, and referenda. The LCGC is a designated absentee polling place, and the 100-foot, absentee electioneering buffer zone captures much of the sidewalk area around the complex. But for the contested statute, Grassfire would offer its signature gathering services in Wyoming in the areas and during the times proscribed by Wyo. Stat. § 22-26-113.

Neither Frank nor Grassfire allege that they have been cited, convicted, or threatened with a citation for violating Wyo. Stat. § 22-26-113. They do not own or rent property within any buffer zone and do not currently have permission to engage in electioneering on private property within any buffer zone. Plaintiffs do not allege that any person has been found guilty of a misdemeanor under the statute.

They do, however, present evidence that campaign signs on private property have been forcibly removed on past election days, and that there have been complaints about offending bumper stickers on vehicles within the buffer zones which have been resolved by asking the owner to move the vehicle. During the 2020 primary season, and in past election cycles, signature gatherers have been asked to leave buffer zones. They present specific evidence of this occurring to non-party Jennifer Horal, who was cited on August 18, 2020 at the LCCC for violating the 100-yard election day buffer zone while signature gathering.

After relocating to a spot outside the zone, she attempted to flag down vehicles entering and exiting the buffer zone and was cited for disrupting a polling place. Defendants do not dispute these assertions.

STANDARD OF REVIEW

The Court shall grant a motion for summary judgment if the movant has demonstrated that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). This standard requires more than the "mere existence of some alleged factual dispute between the parties." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, it requires "there be no genuine issue of material fact." Id. "A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented." Smothers v. Solvay Chems., Inc. , 740 F.3d 530, 538 (10th Cir. 2014) (citing Tabor v. Hilti, Inc. , 703 F.3d 1206, 1215 (10th Cir. 2013) ). Conversely, summary judgment is inappropriate where there is a genuine dispute over a material fact, i.e., "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Roberts v. Jackson Hole Mountain Resort Corp. , 884 F.3d 967, 972 (10th Cir. 2018) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ).

DISCUSSION

Defendants assert that Plaintiffs lack standing and that the case is barred by the Eleventh Amendment. The Court will address these issues first.

I. Eleventh Amendment

Defendants argue that the State of Wyoming, its agencies, and its officials acting in their official capacity are immune from suit under the Eleventh Amendment. They acknowledge that there exist three exceptions to the doctrine (consent to suit, abrogation, and Ex parte Young ) but assert that none apply to the case at hand. The Court agrees that the State has not consented to suit in this instance, nor has Congress expressly abrogated immunity. However, the argument regarding Ex parte Young requires more analysis.

In Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), "the Court held that the Eleventh Amendment generally will not operate to bar suits so long as they (i) seek only declaratory and injunctive relief rather than monetary damages for alleged violations of federal law, and (ii) are aimed against state officers acting in their official capacities, rather than against the State itself." Hill v. Kemp , 478 F.3d 1236, 1255-56 (10th Cir. 2007). "[I]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Id. (quoting Verizon Maryland v. Public Service Commission of Maryland , 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) ).

Plaintiffs seek declaratory and injunctive relief and do not seek monetary damages. The suit is also aimed against state officers acting in their official capacities. Thus, the remaining inquiry is whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Defendants argue that Plaintiffs do not "demonstrate" an ongoing violation of federal law. But that is not the test. "[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim." Verizon Md. , 535...