LIMIT v. MALENG No. C94-162R.
874 F.Supp. 1138 (1994)
LIMIT; Sherry Bockwinkel, Plaintiffs, v. Norm MALENG, King County Prosecuting Attorney, in his Official Capacity, et al., Defendants.
United States District Court, W.D. Washington, at Seattle.
October 17, 1994.
James E. Lobsenz, Carney Badley Smith & Spellman, Seattle, WA, for plaintiffs.
Susan Nathalie Slonecker, Pros. Atty. of King County, Seattle, WA, Roger J. Miener, Pierce County Pros. Attorney's Office, Civ. Div., Tacoma, WA, James P. Emacio, Spokane County Prosecutor's Office, Spokane, WA, Thomas Herrick Robertson, Snohomish County Pros. Atty., Civ. Div., Everett, WA, John W. Hough, Atty. General's Office; David V. Klumpp, Thurston County Prosecutor's Office, Olympia, WA, and Randall J. Watts, Whatcom County Pros. Attorney's Office, Bellingham, WA, for defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT
ROTHSTEIN, District Judge.
THIS MATTER comes before the court on plaintiffs' and defendants' cross-motions for summary judgment. Having reviewed the motions together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:
I. FACTUAL BACKGROUND
Plaintiffs in this case challenge the constitutionality of RCW 29.79.490(2), which makes it illegal to pay gatherers of signatures on initiative and referendum petitions on a per signature basis.
Plaintiffs include LIMIT, a political action group originally formed to pass laws mandating term limits for state legislators which has continued to engage in other political activities, and Sherry Bockwinkel, president of LIMIT and owner of a business called "Camera Ready." Personally and through her business, she has overseen several petition drives, including one for the Citizens for Affordable Denture Care. Pursuant to her contract with that organization, she organized the collection of signatures for a 1994 initiative allowing the licensing of denturists. Bockwinkel paid at least some of the signature gatherers per signature rather than at a flat hourly rate.
Defendants are the prosecutors of various counties in the state of Washington and the chairperson of the Public Disclosure Commission, all sued in their official capacity.
Plaintiffs state three causes of action against defendants, namely that the statute (1) violates plaintiffs' First and Fourteenth
II. LEGAL ANALYSIS
1. Freedom of Political Speech
As amended in 1993 by House Bill 1645, RCW 29.79.490 provides in relevant part as follows:
Plaintiffs challenge the legality of this provision on the grounds that it unconstitutionally restricts the ways in which political speech in support of ballot measures can be funded. Plaintiffs insist that the provision violates their fundamental freedom of political speech protected by the First Amendment.
In support of their argument, plaintiffs cite Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), aff'g, 828 F.2d 1446 (10th Cir. en banc 1987). In Meyer, the Court considered the constitutionality of a Colorado criminal statute which prohibited any payment of initiative signature gatherers. Because the statute involved a direct limitation on political expression, which is at the heart of the types of speech protected by the First Amendment, the Court held that a strict scrutiny standard was applicable. In fact, the Court noted that "[f]or that reason the burden that Colorado must overcome to justify this criminal law is well-nigh insurmountable." 486 U.S. at 425, 108 S.Ct. at 1893. The Meyer Court went on to conclude that the state had failed to show that the prohibition was justified and struck down the statute as unconstitutional.
Given the holding in Meyer, defendants in this case do not dispute that the circulation of initiative petitions is protected by the First Amendment and that those sponsoring an initiative may pay signature gatherers. But they contend that the challenged Washington statute survives constitutional scrutiny because, instead of totally banning payment of signature gatherers, it operates as a narrowly focused, content-neutral regulation intended to further the policy of protecting the integrity of the initiative process. Defendants argue that the prohibition on per signature payment serves to prevent fraud and to maintain citizen confidence in the initiative process.
Plaintiffs in turn agree that protecting the integrity of the initiative process is a legitimate objective which the legislature is entitled to promote through appropriately crafted legislation. But plaintiffs point out that defendants have shown no evidence of fraud linked to the payment per signature method of compensating signature gatherers.
Defendants concede that they have no actual proof of fraud stemming specifically from the payment per signature method of collection. But they maintain that actual proof is not necessary because the issue is whether the state has voiced a legitimate
Based on the clear mandate from the United States Supreme Court in this area of First Amendment law, the court concludes that a formal legislative finding is not sufficient unless it is supported by some actual evidence. In Meyer, the Court recognized the state's interest in protecting the integrity of the initiative process, but held that "the state had failed to demonstrate that it is necessary to burden appellees' ability to communicate their message in order to meet its concerns." 486 U.S. at 426, 108 S.Ct. at 1894. The Court went on to say:
Id. (emphasis supplied).
This requirement of actual evidence in Meyer is entirely consistent with prior caselaw considering the constitutionality of legislation restricting expenditures in ballot referenda and initiative campaigns. Unless there is some proof of fraud or actual threat to citizens' confidence in government which would provide a compelling justification, the right of public discussion of issues may not be infringed by laws restricting expenditures on referenda and initiative campaigns. See, e.g., Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981); (limitation on contributions to committees formed to support or oppose ballot measures held unconstitutional); First National Bank v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (statute prohibiting corporations from spending corporate funds to influence a vote on referendum proposals found unconstitutional).
Defendants cite a number of cases for the proposition that they do not need to show any actual evidence supporting the need for the legislation. All of those cases are distinguishable on their facts because they do not involve restrictions on expenditures to disseminate information on political issues.
For example, the constitutionality of laws governing the mechanics of the electoral process (i.e., minimum requirements for candidates to appear on the ballot, campaigning in the vicinity of a polling place) is judged by a different, less stringent standard. See, e.g., Burson v. Freeman, ___ U.S. ___, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Burdick v. Takushi, ___ U.S. ___, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992); and Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986).
Likewise, courts deciding the constitutionality of regulations pertaining to candidate contributions have shown more reluctance to "second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared." Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 560, 74 L.Ed.2d 364 (1982). See also, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981); and Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990).
2. Right to Vote and State Constitutional Claims
Given the conclusion that RCW 29.79.490(2) is invalid because it unconstitutionally infringes on the freedom of political speech guaranteed by the First Amendment, the court need not reach plaintiffs' remaining arguments regarding violation of the First Amendment right to vote and the invalidity of the challenged statute under the Washington state constitution.
Plaintiffs' motion for summary judgment as to the unconstitutionality of RCW 29.79.490(2) is GRANTED. Defendants' cross-motion for summary judgment is DENIED.
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