Hetherington v. Madden

640 F.Supp.3d 1265

Kells HETHERINGTON, Plaintiff, v. Ginger Bowden MADDEN, in her official capacityas State Attorney for the First Judicial Circuit in andfor Escambia County, et al., Defendants.

Case No. 3:21cv671-MCR-ZCB

United States District Court, N.D. Florida, Pensacola Division

Signed November 8, 2022

Owen Dennis Yeates, Multnomah County District Attorney'S Office, Portland, OR, Ryan Morrison, Pro Hac Vice, Institute for Free Speech, Washington, DC, for Plaintiff.

Jennifer Sniadecki, Mark Leonard Bonfanti, Bonfanti & Sniadecki PA, Destin, FL, for Defendants.

ORDER

M. CASEY RODGERS, UNITED STATES DISTRICT JUDGE

Plaintiff Kells Hetherington, a candidate for the nonpartisan office of school board member in the 2018 and 2022 elections, brought this suit pursuant to 42 U.S.C. § 1983, asserting that his First Amendment political speech rights are violated by Florida's law prohibiting candidates for nonpartisan office from advertising or campaigning based on party affiliation. See Fla. Stat. § 106.143(3). By prior Order, the Court granted a preliminary injunction against Defendants Ginger Bowden Madden, State Attorney for the First Judicial Circuit in and for Escambia County ("the State Attorney), and the Vice Chair of the Florida Elections Commission ("FEC"), Joni Alexis Poitier, together with various FEC members in their official capacities¹ (the "FEC Defendants"), precluding further enforcement of the statute during the pendency of this case, ECF No. 51. See Hetherington v. Madden, 558 F. Supp. 3d 1187, 1193 (N.D. Fla. 2021). Now pending are the parties' cross motions for summary judgment on the merits of whether the statute, Fla. Stat. § 106.143(3), impermissibly restricts core political speech during an election campaign in violation of the First Amendment. ECF Nos. 67, 68, 69. Additionally, the FEC Defendants filed a Motion to Strike Portions of Plaintiff's Motion for Summary Judgment, ECF No. 76, and Hetherington moved, in the alternative, to amend the Complaint to the extent that is deemed necessary to provide him full redress, ECF No. 74. Having fully considered the matter, the Court concludes that Hetherington is entitled to declaratory and injunctive relief; the motion to strike is due to be denied in part and granted in part; and the motion to amend is moot.²

I. Background

A. Florida's Law on Nonpartisan School Board Elections

In Florida, elections are regulated through the Florida Election Code (the "Code"), which encompasses Florida Statutes, Chapters 97—106. The Code "generally contemplates partisan elections," in which political parties nominate candidates who are then selected for the general election ballot through a primary election. See Orange Cnty. v. Singh, 268 So. 3d 668, 671 (Fla. 2019). However, certain offices—including the office of school board member—must be elected through nonpartisan elections, see id. at 672, which are regulated under Chapter 105 of the Code.³ In particular, Chapter 105 establishes the qualification process for nonpartisan candidates (which is free from party nominations) and defines the form of the ballot (which requires nonpartisan offices to appear on a separate portion of the general election ballot, requires listing of candidates for each nonpartisan office in alphabetical order, allows write-in candidates, and prohibits any reference to political party affiliation on the ballot with respect to any nonpartisan office or candidate), among other things.⁴ See e.g., Fla. Stat. §§ 105.031 (nonpartisan qualifications); 105.041 (nonpartisan form of ballot).

Chapter 106 of the Code focuses on campaign financing and communications during campaigns. The provision at issue in this case is Fla. Stat. § 106.143(3), which deals with political advertisements⁵ and states in full:

Any political advertisement of a candidate running for partisan office shall express the name of the political party of which the candidate is seeking nomination or is the nominee. If the candidate for partisan office is running as a candidate with no party affiliation, any political advertisement of the candidate must state that the candidate has no party affiliation. A political advertisement of a candidate running for nonpartisan office may not state the candidate's political party affiliation. This section does not prohibit a political advertisement from stating the candidate's partisan-related experience. A candidate for nonpartisan office is prohibited from campaigning based on party affiliation.

Fla. Stat. § 106.143(3) (emphasis added to highlight the portion challenged). The Code defines "nonpartisan office" as "an office for which a candidate is prohibited from campaigning or qualifying for election or retention in office based on party affiliation." Fla. Stat. § 97.021(23). Nothing in the definition requires a candidate for school board member to discontinue his or her membership with a political party,⁶ and the term "campaigning" is not specially defined.

The Florida Division of Elections ("Division") provides advisory opinions on the Code, which the FEC must follow.⁷ As relevant here, the Division has advised candidates for nonpartisan office that based on § 106.143(3), they "may not publicly represent or advertise [themselves] as . . . member[s] of any political party" but may "list partisan related experience such as 'executive committee of ___ party' in campaign advertisements." ECF No. 67-3 at 2 (Fla. Div. of Elections, Advisory Opinion DE 2003-02 (Feb. 21, 2003)). Also, when asked for an opinion regarding whether an elected nonpartisan officeholder or a candidate could post his or her party affiliation on a personal Facebook page, the Division noted that the Code's definition of nonpartisan office includes a prohibition on campaigning based on party affiliation but does not define "campaigning." The Division thus looked to Black's Law Dictionary for the ordinary meaning, which broadly includes "all acts done to bring about a candidate's election." ECF No. 67-4 at 2 (Fla. Div. of Elections, Advisory Opinion DE 2010-02 at 2 (Mar. 3, 2010)). Consistent with that broad definition, the Division concluded that the Code prohibits "doing any act to bring about the candidate's election based upon party affiliation," and advised that this precludes "campaigning for a nonpartisan office based upon party affiliation on an Internet social networking site," even if the posting is not a paid political advertisement. Id. at 2 & n.2 (emphasis in original). The Division explained that this restriction only applies to "candidates" for nonpartisan office, and once elected, nonpartisan officeholders "are not prohibited from publicly representing their party affiliation unless and until they again become a 'candidate' at which point they are precluded from campaigning based upon party affiliation." Id. at 2.

B. Facts

The undisputed record reflects that in 2018, Hetherington ran for a nonpartisan seat on the Escambia County School Board. During his campaign, Hetherington, while aware of Fla. Stat. § 106.143(3), described himself as a "lifelong Republican" in a candidate statement published on the Escambia County Supervisor of Elections' website. In May 2018, the FEC initiated an investigation after receiving a complaint that Hetherington's candidate statement violated Florida law with respect to nonpartisan campaigns. See ECF No. 68-2 (Michelle Salzman complaint). In particular, Salzman complained, among other things, that Hetherington's candidate statement identifying himself as a "lifelong Republican" (which was published on the website of the Supervisor of Elections) violated Florida's nonpartisan elections law. See id. On May 1, 2019, the FEC issued a Report of Investigation, and on July 11, 2019, a Staff Recommendation, which the FEC adopted, found probable cause to charge Hetherington with one count of violating Fla. Stat. § 106.143(3), "when he campaigned based on party affiliation" in a nonpartisan election. See ECF Nos. 68-3, 68-4, 68-5.

On November 19, 2019, following an informal hearing, the FEC entered a final order, finding Hetherington's candidate statement a willful violation of § 106.143(3), and imposing a $500 civil fine, which, on reconsideration, the FEC later reduced to $200. ECF Nos. 67-5, 68-6. Hetherington paid the fine, and on March 30, 2021, established his candidacy for the 2022 Escambia County School Board election.

Hetherington filed suit on April 15, 2021, challenging the constitutionality of § 106.143(3)'s ban on nonpartisan candidates stating a party affiliation, contending the statute is an impermissible restraint on his core First Amendment free speech rights and also that the threat of continued enforcement chills his free speech in the current and future elections. See 42 U.S.C. § 1983; ECF No. 1. Hetherington moved for a preliminary injunction, and in support, he stated by declaration that he again intended to state his party affiliation as a lifelong Republican during his current and future campaigns and share his candidate statement on social media, in mailings, and other campaign literature. Hetherington further stated that this speech is important to him because his party affiliation gives voters an overview and representation of his values in situations where he does not have the time or opportunity to share every aspect of his platform. He stated that as of the date of his declaration, April 22, 2021, he was refraining from sharing his party affiliation out of fear that he would again face investigation, hearings, and fines for violating Fla. Stat. § 106.143(3).

In prior orders, the Court determined that Hetherington has standing to bring this pre-enforcement suit against the State Attorney and the FEC, ECF No. 50, see Hetherington v. Lee, No. 3:21-CV-671-MCR-EMT, 2021 WL 6882441, at *4 (N.D. Fla. July 12, 2021), and granted a preliminary injunction against further enforcement of the statute in July 2021, ECF No. 51. See Hetherington v. Madden, 558 F. Supp. 3d...