Kennedy v. Gardner, et al.

Kennedy v. Gardner, et a l . CV-96-574-B 05/28/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard E . Kennedy

v. C-96-574-B

William M. Gardner, et a l .

MEMORANDUM AND ORDER

Richard E. Kennedy brings this action, pursuant to 42 U.S.C.A. § 1983 (West Supp. 1998), against the New Hampshire

officials responsible for administering the state's election and

campaign-finance laws. He argues that New Hampshire's voluntary

campaign and expenditure laws and the state's outright ban on

corporate campaign contributions violate his rights under the

First and Fourteenth Amendments. At a hearing on February 24,

1998, I denied Kennedy's motion for summary judgment on the

ground that the record would not support a conclusion that he had

standing to sue. Rather than dismissing his claims, however, I

gave him a final chance to demonstrate standing on a more

complete record. Having received his recent submissions, I

conclude that Kennedy has standing to maintain his challenge to

New Hampshire's voluntary campaign expenditure laws. However, I

dismiss his attack on the state's corporate contribution statute. I. BACKGROUND

At issue in this case is whether several of New Hampshire's

election and campaign-finance laws violate the First and

Fourteenth Amendments to the United States Constitution. Three

of the challenged provisions affect candidates for state and

federal office who do not voluntarily agree to limit campaign

expenditures. These provisions reguire such candidates to submit

petitions and pay a filing fee when declaring their candidacies,

see N.H. Rev. Stat. Ann. §§ 655:19, 655:22 (1996), and reguire

the petitions to include statements informing signatories that

the candidate seeking the petitions may not have agreed to a

voluntary spending cap, see N.H. Rev. Stat. Ann. § 655:20 (11)

(1996). Candidates who voluntarily agree to a spending cap

pursuant to N.H. Rev. Stat. Ann. §§ 664:5-a and 664:5-b (1996)

are exempted from complying with these reguirements. N.H. Rev. Stat. Ann. § 655:19-b (1996). The fourth provision at issue bans

all corporate political contributions to candidates, including

those made by an officer or director of a corporation on behalf

of a corporation. N.H. Rev. Stat. Ann. § 664:4 (1) (1996).

Kennedy recently informed the court that he intends to enter

the 1998 Republican primary as a candidate for the State

2 legislature. Because he will not voluntarily agree to limit his

campaign expenditures, Kennedy will have to comply with New

Hampshire's petition and filing-fee reguirements unless he

succeeds in having the reguirements declared unconstitutional.

Kennedy also claims that he will be injured by the statutory ban

on corporate contributions because the ban is preventing him

from: (1) making contributions to other candidates on behalf of

corporations with which he is affiliated; and (2) soliciting

contributions from corporations for his own campaign.

II. DISCUSSION

Both constitutional and prudential considerations

potentially constrain a plaintiff's standing to sue in federal

court. Bennett v. Spear, 117 S. C t . 1154, 1161 (1997). The

"irreducible constitutional minimum of standing" consists of

three reguirements: (i) the plaintiff must have suffered an

"injury in fact," (ii) the cause of the alleged injury must be

"fairly . .. . traceable" to the defendant, and (iii) the injury

must be "redress[able] by a favorable decision." Bennett, 117 S.

C t . at 1163 (internal citations omitted) (guoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The

plaintiff bears the burden of meeting these reguirements. Berner

3 v. Delahantv, 129 F.3d 20, 23-24 (1st Cir. 1997), cert. denied,

118 S. C t . 1305 (1998) .

To satisfy the Constitution's injury-in-fact requirement, a

plaintiff must demonstrate (i) the deprivation of a "legally

protected interest," (ii) that is "concrete" and "particularized"

in the sense that the alleged injury must affect the plaintiff in

a "personal and individual way," and (iii) that is either

"actual" or "imminent." Defenders of Wildlife, 504 U.S. at 560-

61 & n.l. When a plaintiff seeks prospective relief, as Kennedy

does here, past exposure to illegal conduct will not suffice to

show imminent harm. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96

(1974)). Rather, in order to establish imminence at the summary

judgment stage, a plaintiff must set forth facts showing that the

"injury is certainly impending," Adarand Constructors, Inc. v.

Pena, 115 S. C t . 2097, 2105 (1995) (internal quotations omitted)

(quoting Defenders of Wildlife, 504 U.S. at 565 n.2), such that

there is "a sufficient likelihood that he will . .. . be wronged,"

Lyons, 461 U.S. at 111; Berner, 129 F.3d at 24. 1

1 I informed Kennedy when I denied his motion for summary judgment that I would award summary judgment to the defendants unless he could produce sufficient evidence to support a conclusion that he had standing to maintain his claims. Since I have given Kennedy "appropriate notice and a chance to present

4 Accordingly, to satisfy the constitution's injury-in-fact

requirement at this stage of the case, Kennedy must set forth

specific facts showing that he has a concrete, particularized,

and imminent stake in the outcome of the case. I examine in turn

whether Kennedy has set forth facts sufficient to show that

he has standing to challenge New Hampshire's petition and filing-

fee requirements as well as its ban on corporate contributions.

A. Petition and Filing-Fee Recruirements

The evidence Kennedy sets forth to support his standing to

challenge the state's petition and filing-fee requirements

satisfies all three parts of the injury-in-fact test. A declared

candidate for public office has a legally-protected interest in

becoming a candidate sufficient to satisfy Article III standing

requirements. See Clements v. Fashing, 457 U.S. 957, 961-62

(1982); Gralike v. Cook, -- F. Supp. ---- , No. 96-4417-CV-C-9,

1998 WL 59231, at *4 (W.D. Mo. Jan. 15, 1998) .Here, Kennedy has

shown that he has a legally-protected interest at stake by

stating that he intends to enter the 1998 Republican primary as a

[his] evidence on the essential elements of [his] claim," it is appropriate to address the standing issue under Fed. R. Civ. P. 5 6 even though defendants have not moved for summary judgment. Vazquez v. Lopez-Rosario, 134 F.3d 28, 36 (1st Cir. 1998) (quoting Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996)).

5 candidate for the Merrimack District No. 7 seat.

In addition, because a declared candidate has a greater

interest in seeking office than a member of the general public,

legislation that places a barrier in such a candidate's way

constitutes a deprivation of the candidate's "particularized"

legal interest in seeking elective office. See Clements, 457 U.S. at 961-62; Gralike, 1998 WL 59231, at *4. The state's

petition and filing-fee reguirements thus will cause Kennedy to

suffer a particularized injury.

Finally, Kennedy has demonstrated that his claimed injury is

sufficiently imminent to gualify as an injury-in-fact. In

Clements, the Supreme Court held that where a potential candidate

becomes subject to the challenged statutory provisions by

declaring his candidacy, the candidate faces an impending injury

sufficient to satisfy the imminence prong of the injury-in-fact

reguirement. See 457 U.S. at 962; Gralike, 1998 WL 59231, at *6;

Zielasko v. Ohio, 693 F. Supp. 577, 581-82 (N.D. Ohio 1988); see

also Berner, 129 F.3d at 24 (where strong probability exists that

plaintiff will again be subject to speech-limiting conditions,

plaintiff faces imminent harm sufficient to satisfy injury-in-

fact reguirement of standing doctrine); cf. Vote Choice, Inc. v.

DiStefano, 4 F.3d 26, 36-37 (1st Cir. 1993) (choice of whether to

6 accept or decline public financing when declaring candidacy gave

rise to actual injury sufficient to satisfy injury-in-fact

reguirement of standing doctrine). Kennedy's recently announced

decision to seek elective office this year satisfies this

reguirement.

As Kennedy has demonstrated that the state's petition and

filing-fee reguirements will cause him to suffer an injury-in-

fact and there is no dispute both that Kennedy's alleged injury

is "fairly traceable" to the defendants' conduct and that it

could be redressed by a favorable ruling, I conclude that Kennedy

has standing to challenge the petition and filing-fee

reguirements.

B. Corporate-Officer Political-Contribution Ban

Kennedy also seeks to challenge the New Hampshire law

barring corporations from making campaign contributions to

candidates for public office. See e.g., N.H. Rev. Stat. Ann. § 664:4. He argues that § 664:4 will cause him actual,

particularized and imminent injury to a protected legal interest

because the statute is preventing him from: (1) making a

contribution to a candidate for state senate on behalf of a

corporation with which he is affiliated; and (2) soliciting

corporate contributions for his own campaign. I find neither

7 argument persuasive.

While an officer or shareholder may assert a corporation's

interests in litigation in certain limited circumstances, the

officer or shareholder must himself have suffered an injury-in-

fact to his or her own protected interest in order to have

standing to sue on the corporation's behalf. See Des Verqnes v.

Seekonk Water Dist., 601 F.2d 9, 15 (1st Cir. 1979); Searcy v.

Houston Lighting & Power Co., 907 F.2d 562, 564-65 (5th Cir.),

cert. denied, 498 U.S. 970 (1990); Flynn v. Merrick, 881 F.2d 446, 449-50 (7th Cir. 1989); Soranno's Gasco Inc. v. Morgan, 874 F.2d 1310, 1318-19 (9th Cir. 1989). Kennedy claims that the ban

on corporate contributions injures him personally because it

prevents him from making contributions on a corporation's behalf.

Merely being deprived of the opportunity to serve as a conduit

for a corporation's contributions, however, does not implicate

the type of legally protected interest contemplated by Article

III.2 Therefore, he cannot base his standing to sue on his

status as a corporate officer.

2 I note that the record contains no evidence suggesting that the corporation on whose behalf Kennedy plans to make the contribution is unable to sue to protect its own interests. Thus, this is not a case where Kennedy is the only person or entity who is in a position to protect the interests he is seeking to vindicate in this action.

8 Kennedy's claim that he has standing as a candidate to

challenge the ban on corporate contributions fares no better.

While Kennedy has stated his desire to solicit contributions from

a specific corporation, he has failed to allege any facts that

would support a conclusion that he would be successful in

obtaining a contribution from the corporation if the ban were not

in place. Without some evidence to support a finding that, but

for the ban, one or more corporations are prepared to make a

contribution to his campaign, Kennedy's allegation that the

defendants have injured him in his capacity as a candidate for

public office is too conjectural to satisfy Article Ill's injury-

in-fact reguirement. See, e.g.. Defenders of Wildlife, 504 U.S. at 564 ("Such 'some day' intentions -- without any description of

concrete plans, or indeed even any specification of when the some

day will be -- do not support a finding of the 'actual or

imminent' injury that our cases reguire."). As Kennedy has

failed to allege sufficient facts to support a finding that he

has standing to challenge the corporate contribution statute, I

dismiss his challenge for lack of standing.

III. CONCLUSION

For the reasons described herein, I conclude that Kennedy

9 has standing to challenge New Hampshire's petition and filing-fee

laws. However, I dismiss his challenge to the corporate

contribution statute.

SO ORDERED.

Paul Barbadoro Chief Judge

May 28, 1998

cc: Philip Cobbin, Esg. William Knowles, Esg. Wynn Arnold, Esg.

10