Williamson Strong Opposition To Dismiss

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE

WILLIAMSON STRONG,
SARAH BARNARD, JIM CHENEY,
SUSAN DRURY, KIM HENKE,
and JENNIFER SMITH,
)
)
)
No. 3:15-cv-0739
)
Judge Trauger
)
Magistrate Judge Brown
Plaintiffs,
)
v.
)
)
THE TENNESSEE BUREAU OF ETHICS
)
AND CAMPAIGN FINANCE REGISTRY
)
OF ELECTION FINANCE and
)
TOM LAWLESS, PATRICIA HEIM,
)
NORMA LESTER, and TOM MORTON,
)
in their official capacities as members of the
)
Tennessee Bureau of Ethics and Campaign
)
Finance Registry of Election Finance,
)
)
Defendants.
)
______________________________________________________________________________
PLAINTIFFS RESPONSE IN OPPOSITION TO
DEFENDANTS MOTION TO DISMISS
______________________________________________________________________________
Case 3:15-cv-00739 Document 16 Filed 08/24/15 Page 1 of 23 PageID #: 235
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 2
STANDARD OF REVIEW ............................................................................................................ 5
I. Defendants Suggestion That This Court Should Abdicate its Jurisdiction Over Federal
Constitutional Violations Would Lead to Ongoing Violations of Plaintiffs Rights. ............. 6
II. Plaintiffs Claims are Not Barred by the Eleventh Amendment. ............................................ 8
III.Defendants Misapply the Younger Abstention Doctrine, and Plaintiffs First Amendment
Rights to Free Speech and Free Association are Too Important for this Court to Abdicate
its Jurisdiction........................................................................................................................ 11
IV.Plaintiffs Claims Attacking the Constitutionality of the Application of a Statute is Not
Barred by Tennessees Sovereign Immunity Statute. ........................................................... 16
CONCLUSION ............................................................................................................................. 18
ii
TABLE OF AUTHORITIES
Cases
ACLU v. Tennessee, 496 F. Supp. 218 (M.D. Tenn. 1980) .......................................................... 10
Bogaert v. Land, 675 F. Supp. 2d 742, 746 (W.D. Mich. 2009) .................................................. 15
Bowden Building Corporation v. Tennessee Real Estate Commission, 15 S.W.3d 434, 446 (Tenn.
Ct. App. 1999) ........................................................................................................................... 19
Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................... 7
Burford v. Sun Oil Co., 319 U.S. 315 (1943)................................................................................ 15
Bush v. Gore, 531 U.S. 98, 110 (2000) ......................................................................................... 18
Citizens United v. FEC, 558 U.S. 310, 312 (2010)................................................................... 7, 17
Citizens United. Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 833 (7th Cir. Wis. 2014) ....... 7
Cornelius v. McWilliams, 641 S.W.2d 508, 514 (Tenn. Ct. App. 1982) ............................ 9, 18, 19
Cox v. Shelby State Cmty. College, 48 Fed. Appx. 500, 504 (6th Cir. 2002) ................................. 9
Erickson v. Pardus, 551 U.S. 89, 94 (2007) ................................................................................... 6
Hardin v. Straub, 954 F.2d 1193, 1200 (6th Cir. 1992) ............................................................... 12
Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975) ..................................................................... 13
Kansas for Life, Inc. v. Gaede, 38 F. Supp. 2d 928, 934 (D. Kan. 1999) ..................................... 16
Kentucky v. Graham, 473 U.S 159, 169 (1985) ............................................................................ 10
Lawson v. Shelby County, 211 F.3d 331, 335 (6th Cir. Tenn. 2000) ............................................ 11
McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000) ....................................................................... 9
Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. Tenn. 2001) ......................................... 11
Morrill v. Weaver, 224 F. Supp. 2d 882, 895 n.15 (E.D. Pa. 2002) ............................................. 16
Ross v. Mylan, Inc., No. 09-1094, 2009 U.S. Dist. LEXIS 88617 at *2 (W.D. Tenn. Aug. 20,
2009)............................................................................................................................................ 6
S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. Tenn. 2008) ........................................ 9
iii
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983)........................................................... 9

Sprint Communs., Inc. v. Jacobs, 134 S. Ct. 584, 588 (U.S. 2013) .................................. 12, 13, 15
Welch v. Texas Dep't of Highways & Public Transp., 483 U.S. 468 (U.S. 1987) ........................ 10
Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (U.S. 1989) ................................................. 10
Younger v. Harris, 401 U.S. 37 (1971) ......................................................................................... 13
iv
Come the Plaintiffs Williamson Strong, Sarah Barnard, Jim Cheney, Susan Drury, Kim
Henke, and Jennifer Smith, by and through their counsel of record, and hereby submit this
memorandum of law in opposition to Defendants Motion to Dismiss Plaintiffs complaint in its
entirety with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
INTRODUCTION
Plaintiff Williamson Strong is a group of parents that was created and facilitated by
Plaintiffs Sarah Barnard, Jim Cheney, Susan Drury, Kim Henke, and Jennifer Smith (the
Individual Plaintiffs) (collectively with Williamson Strong, Plaintiffs). Plaintiffs took an
active interest in their childrens schools, and in furtherance of this interest, the Individual
Plaintiffs created a linked website and Facebook page where members of the community could
share information and discuss issues facing Williamson County schools. (D.E. 1, Complaint
(Compl.), Page ID# 2). As could be expected in a forum for discussing public school activities,
school board members and their elections became a popular topic of conversation on Plaintiffs
online forums. (Id.) The Individual Plaintiffs would often re-post news articles about school
board candidates and issues, and any interested community members could post their thoughts in
response to these articles, regardless of whether they were in agreement with the Individual
Plaintiffs preferences.1 (See, e.g., D.E. 1-2, Curlees Complaint to the Registry, PageID# 75, 8184 ). The Individual Plaintiffs also sent correspondence to those in their personal networks
seeking information on candidates and inviting people to participate in Williamson Strong. The
act of reposting third party articles and content and sending personal emails about a group one is
involved are the very type of political speech that the First Amendment is designed to protect.
The Individual Plaintiffs would remove offensive or off-topic posts, but never censored
individuals views in any way, which created a vibrant forum for discussion and debate on
school board politics and issues. (D.E. 1, Compl., at PageID# 13).
2
Despite the fact that these communications are clearly protected by the First Amendment
of the United States Constitution, Susan Curlee (Curlee), a school board candidate who felt
that this dissemination of information and general policy-based discourse were not in her best
interest, filed a complaint against these parents with the Tennessee Bureau of Ethics and
Campaign Finance Registry of Election Finance (the Registry) alleging that Plaintiff
Williamson Strong was an unregistered political campaign committee. (Id.). Despite the fact
that Curlees complaint made no allegations of fundraising or candidate campaign expenditures,
and despite Tennessee law clearly indicating that only the local district attorney general,2 and not
the Registry, has jurisdiction over a purely local election such as the Williamson County School
Board election, Curlees baseless complaint was prosecuted by the Registry and Plaintiffs were
fined $5,000.00 under the Registrys presumed authority granted by Tenn. Code Ann. 2-10102(12)(A).3 (Id. at Page ID# 1-2).
This patently unjust outcome was the end result of a process that trampled on Plaintiffs
rights at every possible turn. These violations of Plaintiffs rights included, but are not limited to,
the following acts:
a. Exercising jurisdiction over a complaint for which the Registry explicitly
lacked jurisdiction;
b. Pursuing the complaint after the local district attorney general found no
violations of law;
c. Refusing to follow the Registrys own procedures to continue a hearing so the
hearing could be attended by Plaintiffs attorney;
In fact, Curlee presented her complaint to the district attorney general, who refused to
prosecute.
3
The Registry assessed penalties against the Individual Plaintiffs as the altar egos of
Williamson Strong, despite never having provided the individual Plaintiffs with notice that they
could be considered alter egos, nor having even raised this as a possible issue at any hearing.
3
d. Issuing a show cause order against Plaintiffs despite the Registrys lack of
jurisdiction and there being no substantive claims presented;
e. Allowing Curlee to submit conjectural evidence that did not comply with
Registry rules while refusing to acknowledge factual evidence submitted by
Plaintiffs according to Registry rules;
f. Refusing to allow Plaintiffs attorney to present defensive arguments at any
hearing;
g. Finding that Plaintiffs are a political campaign committee despite never
making a single reference to a single expenditure on behalf of a single
candidate;
h. Fining Plaintiffs $5,000.00;
i. Punishing Plaintiffs for expenditures made to increase voter turnout, behavior
which is explicitly exempted from being punishable under Tennessee
campaign finance laws;
j. Accusing Plaintiffs of spoliation and destruction of evidence sua sponte, after
all hearings had been concluded, based on internet posts that the Registry
alleged were deleted by Plaintiffs to hide facts from the Registrydespite the
fact that these very posts had been provided to the Registry by Plaintiffs and,
to date, are still available online right where they always have been;
k. Finding Plaintiffs guilty of violations such as spoliation and destruction of
evidence without ever giving Plaintiffs an opportunity to address these
baseless and spurious accusations;
l. Considering personal political opinions presented and private emails sent by
Plaintiffs Henke and Smith in their individual capacities to be official
declarations of Plaintiff Williamson Strongessentially stripping these two
parents of their individual identities simply by associating with other engaged
parents;
m. Insisting that a higher level of scrutiny apply to the acts of Plaintiff
Williamson Strong because one (1) of its members, Plaintiff Susan Drury
(Drury), happens to be employed by a Labor Union;
n. Refusing to acknowledge the only evidence on the record regarding said
Labor Union, a sworn affidavit from Drurys employer that Drurys
involvement with Williamson Strong had absolutely nothing to do with her
employment in any way and that the Labor Union had no financial
involvement in any Williamson County elections;
o. Deciding without any evidence whatsoever that Plaintiff Jennifer Smith was
the puppet of a union she has no association with, without giving Smith an
4
opportunity to defend herself against this sua sponte allegation and decision;
and
p. Determining that Plaintiffs efforts to procure counsel to defend themselves
against Curlees baseless allegations, an act that took place four months after
the election had taken place, should be considered in-kind donations made on
behalf of unidentified candidates.
(Id. at Page ID# 2-4).
In their Motion to Dismiss and Memorandum in Support, Defendants suggest that they
have an unmitigated right to ignore the protections provided to Plaintiffs rights under clearly
established United States and Tennessee laws. (D.E. 7, Motion to Dismiss; D.E. 8, Memorandum
in Support (Memo.), at PageID# 206).
Defendants have moved for the dismissal of Plaintiffs constitutional challenge in its
entirety with prejudice, essentially alleging that (a) federal courts should abstain from
interfering in a state proceeding, and (b) that the State of Tennessee is immune from suit
challenging the enforcement of Tennessee statutes that clearly conflict with the United States and
Tennessee Constitutions. (D.E. 8, Memo., Page ID# 210). Tennessee law is clear that (a) State
actors possess no immunity when it comes to constitutional challenges to Tennessee statutes, (b)
there is no Eleventh Amendment protection available to a Tennessee agency regarding the
declaratory and injunctive relief primarily sought in this case, and (c) the theory under which
Defendants move for this Court to abrogate its jurisdiction is entirely inappropriate in these
circumstances. Accordingly, Defendants Motion to Dismiss should be denied and Plaintiffs
Complaint should proceed.
STANDARD OF REVIEW
In order to meet the pleading requirements of the Federal Rules of Civil Procedure, Fed.
R. Civ. P. 8(a)(2) only requires that a Complaint include a short and plain statement of the claim
showing that the pleader is entitled to relief[.] Courts have held that, on a motion to dismiss,
5
the key inquiry is whether the facts in the complaint set out a claim to relief that is plausible
on its face. Ross v. Mylan, Inc., No. 09-1094, 2009 U.S. Dist. LEXIS 88617 at *2 (W.D. Tenn.
Aug. 20, 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). When ruling on
a defendants motion to dismiss, the court must accept as true all of the factual allegations
contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). A Complaint must give
fair notice of the claim and the grounds upon which it rests, but it does not need detailed factual
allegations. Twombly, 550 U.S. at 555.
Here, Defendants Motion to Dismiss relies upon inapposite law and standards that
account for neither Tennessee precedent regarding the justiciability of unconstitutional
Tennessee statutes nor Sixth Circuit precedent regarding federal jurisdiction over claims that
may be redressable through state civil processes. Importantly, Defendants never put forth an
argument that their conduct did not violate Plaintiffs First Amendment rights; instead, simply
arguing that (1) Defendants are immune despite violating Plaintiffs rights, and (2) that this
Court should abdicate its jurisdiction over federal First Amendment violations.
I. Defendants Suggestion That This Court Should Abdicate its Jurisdiction Over
Federal Constitutional Violations Would Lead to Ongoing Violations of
Plaintiffs Rights.
Defendants are presently chilling Plaintiffs from engaging in conduct that is clearly
protected by the First Amendment, and they will continue to do so until a court of competent
jurisdiction instructs them that their behavior is unconstitutional. See, e.g. Exhibit A, Czarnecki,
Collin, Williamson Strong lawsuit delays PAC hearings, THE TENNESSEAN (August 13, 2015).
Defendants now argue that because an administrative review hearing has been set for December
14, 2015, a hearing which Defendants admit in their own memorandum in support of dismissal
cannot address the constitutionality of their actions, this Court should abdicate its jurisdiction
6
and leave Plaintiffs and all Tennesseans Constitutional rights in jeopardy. Clarifying a doctrine
that has been in place since Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court has made it
abundantly clear that regulations on political speech must be narrowly tailored:
Because speech is an essential mechanism of democracy--it is the means to hold officials
accountable to the people--political speech must prevail against laws that would suppress
it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny,
which requires the Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest.
Citizens United v. FEC, 558 U.S. 310, 312 (2010) (internal quotation omitted). The Tennessee
statute being used to penalize Plaintiffs for discussing their local school boards policies and
chilling them from engaging in political speech going forward is clearly in violation of this
mandate. Additionally, all citizens rights are being chilled in that any married couple that
expends money to put a bumper sticker in support of a candidate on their car is arguably required
to pay $100 to the state and register as a political campaign committee to avoid being fined.
Informatively, the Seventh Circuit took a measured and expository approach in finding
that a similar Wisconsin law, defining a political committee as every committee which is
formed primarily to influence elections or which is under the control of a candidate" was overlybroad in the context of Citizens United. Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 833
(7th Cir. Wis. 2014). The Seventh Circuit acknowledged in Wis. Right to Life that Citizens
United had imposed a burden on states to reassess their campaign finance laws to ensure they
were narrowly tailored to an extent that they did not infringe on citizens First Amendment
protected political speech. Id. Here, Defendants used Tenn. Code Ann. 2-10-102(12)(A)s
definition of a political campaign committee to punish Plaintiffs for their protected conduct: A
combination of two (2) or more individuals, including any political party governing body,
whether state or local, making expenditures, to support or oppose any candidate for public office
7
or measure, but does not include a voter registration program.4 This statute is clearly not
narrowly tailored in light of Citizens United, and is arguably even broader than the Wisconsin
statute, and this Court must exercise its jurisdiction to right Plaintiffs constitutional harms.
II. Plaintiffs Claims are Not Barred by the Eleventh Amendment.
This is an action primarily seeking injunctive and declaratory relief. Plaintiffs have
requested that this Court enjoin Defendants from continuing to engage in behavior that violates
the First Amendment of the United States Constitution. (D.E. 1, Compl., PageID# 30).
Defendants actions have chilled Plaintiffs from engaging in First Amendment-protected
conduct, and Plaintiffs seek relief that will clarify that they are permitted to post content online
that touches upon political issues without being fined by the Registry. (Id.). "It is beyond dispute
that federal courts have jurisdiction over suits to enjoin state officials from interfering with
federal rights." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983) (citing Ex parte
Young, 209 U.S. 123, 160-62 (1908)); see also S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507
(6th Cir. Tenn. 2008). As Plaintiffs seek injunctive relief against Defendants, the Eleventh
Amendment is not an impediment to Plaintiffs action. McKay v. Thompson, 226 F.3d 752 (6th
Cir. 2000) ("The district court correctly determined that the Eleventh Amendment permits
prospective injunctive relief); see also Cox v. Shelby State Cmty. College, 48 Fed. Appx. 500,
Curlees complaint against Plaintiffs had been brought under Tenn. Code Ann. 2-10-
102(12)(C): Any committee, club, corporation, association or other group of persons which
receives contributions or makes expenditures to support or oppose any candidate for public
office or measure during a calendar quarter in an aggregate amount exceeding two hundred fifty
dollars ($250), and Plaintiffs proceeded at all times as if they needed only to respond to
allegations pursuant to this threshold. It was only after it became clear that Defendants could not
stretch Plaintiffs activities to meet the $250 threshold required by Tenn. Code Ann. 2-10102(12)(C) that Defendants shifted their strategy and applied the separate, broader definition of
Tenn. Code Ann. 2-10-102(12)(A) to Plaintiffs. To Plaintiffs knowledge, Tenn. Code. Ann.
2-10-102(12)(A) has never previously been applied to a citizens group.
8
504 (6th Cir. 2002). Damages are not permissible against the Tennessee government for
Plaintiffs claims regarding First Amendment violations, but general damages are still available
for Plaintiffs harms pursuant to the Tennessee Constitution. Cornelius v. McWilliams, 641
S.W.2d 508, 514 (Tenn. Ct. App. 1982).
Defendants use circular logic to suggest that the four state officials named as Defendants,
as sued in their official capacities, are deemed to be the State and therefore are immune from
suit. (D.E. 8, PageID# 208). Defendants suggestion that Plaintiffs cannot seek redress in federal
court for state officials violations of their rights guaranteed by the United States Constitution
flies in the face of centuries of federal jurisprudence and must be denied. Defendants
summations and parentheticals discussing Eleventh Amendment jurisprudence are highly
misleading. As an example, Defendants cite to Welch v. Texas Dep't of Highways & Public
Transp., 483 U.S. 468 (U.S. 1987), in support of its averment that citizens cannot bring suit
against their own state or one of its agencies (D.E.8, PageID# 206), despite Welch containing the
following pertinent discussion regarding State officials:
The dissent's statement that sovereign immunity "protect[s] the States from the
consequences of their illegal conduct" erroneously suggests that aggrieved individuals are
left with no remedy for harmful state actions. Relief often may be obtained through suits
against state officials rather than the State itself, or through injunctive or other
prospective remedies.
Id. at 488 (citing Edelman v. Jordan, 415 U.S. 651 (1974)).
Similarly, Defendants rely on ACLU v. Tennessee, 496 F. Supp. 218 (M.D. Tenn. 1980),
to claim that Plaintiffs claims should be dismissed in their entirety because Tennessee has not
waived its immunity under the Eleventh Amendment with respect to civil rights suits. (D.E. 8,
PageID# 206). However, four state officials have been named in this action and the ACLU court
9
found a state official is a proper defendant in a federal First Amendment action challenging a
Tennessee statute. ACLU, 496 F.Supp. at 221.
Defendants rely on Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (U.S. 1989), and
Kentucky v. Graham, 473 U.S 159, 169 (1985), to argue that Plaintiffs action seeking
declaratory and injunctive relief against Tennessee officials for violations of Plaintiffs rights
should be dismissed. (D.E. 8, PageID# 206-207). However, the Will court quoted the Kentucky
court in holding that such an action against state officials should proceed:
Of course a state official in his or her official capacity, when sued for injunctive relief,
would be a person under 1983 because "official-capacity actions for prospective relief
are not treated as actions against the State." Kentucky v. Graham, 473 U.S., at 167, n. 14;
Ex parte Young, 209 U.S. 123, 159-160 (1908).
Will, 491 U.S. at 571.
Defendants also cite Lawson v. Shelby County, which clearly states a federal court may
enjoin a state official from violating federal law. 211 F.3d 331, 335 (6th Cir. Tenn. 2000).
(D.E. 8, PageID# 206).
Finally, Defendants misstate that as Plaintiffs have only asserted claims against the
Defendants in their official capacities under 42 U.S.C. 1983, Plaintiffs complaint should be
dismissed in its entirety and with prejudice. (D.E. 8, PageID# 207-208). To the extent that this
Court may determine that these four individuals conduct was outside of their scope as
Tennessee officials, and they should have been sued in their individual capacities, the Sixth
Circuits pleading standard has been met regardless of these Defendants not being explicitly
named in their individual capacities, as each Defendant has been given adequate notice of the
claims set forth against him or her. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. Tenn.
2001) ([W]hile it is clearly preferable that plaintiffs explicitly state whether a defendant is sued
10
in his or her individual capacity, see, e.g., Hardin v. Straub, 954 F.2d 1193, 1200 (6th Cir.
1992), failure to do so is not fatal if the course of proceedings otherwise indicates that the
defendant received sufficient notice.).
III. Defendants Misapply the Younger Abstention Doctrine, and Plaintiffs First
Amendment Rights to Free Speech and Free Association are Too Important
for this Court to Abdicate its Jurisdiction.
Plaintiffs have presented facts that demonstrate Tennessee campaign laws are outdated
and inappropriate in a post-Citizens United world, and their application by the Registry has led to
the suppression of Plaintiffs First Amendment rights. (D.E. 1, Compl.). Defendants contend that
this Court should apply the Younger abstention doctrine and abdicate its federal question
jurisdiction over Plaintiffs claims of First Amendment violations until Tennessee courts have
fully resolved the issue. (D.E. 8, PageID # 210). Defendants fail to properly explain the Younger
abstention doctrine. Initially, Younger only applied to criminal cases. Defendants do not allege
or claim that this action is a criminal action.5 Long after the Younger decision, the Supreme
Court allowed limited exceptions to Youngers criminal only context. Defendants completely
disregard civil Younger abstention precedent: [T]he pendency of an action in [a] state court is
no bar to proceedings concerning the same matter in the Federal court having jurisdiction.
Sprint Communs., Inc. v. Jacobs, 134 S. Ct. 584, 588 (U.S. 2013) (citing Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (quoting McClellan v. Carland,
217 U.S. 268, 282 (1910))).
Obviously if this were a criminal action, Plaintiffs would have be entitled to a jury, to confront
their accuser, certain evidentiary standards and the fact finder would have to have found beyond
a reasonable doubt that Plaintiffs violated the law, etc. None of these rights or standards were
provided to Plaintiffs. It bears repeating that the district attorney general, who had jurisdiction
over this matter under Tennessee law, rejected Curlees initial complaint.
11
Younger abstention originated as a doctrine that encouraged federal courts to abstain from
criminal cases until state courts had finished interpreting their own criminal laws. Younger v.
Harris, 401 U.S. 37 (1971). In the criminal law context, Younger abstention is indeed the rule.
Eventually, Younger abstention was extended into the civil context, but only for truly exceptional
circumstances, primarily civil state court proceedings that closely resemble criminal proceedings.
See, Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). The Supreme Court has severely limited
these circumstances in which the Younger abstention doctrine should apply:
[O]nly exceptional circumstances, we reaffirmed, justify a federal courts
refusal to decide a case in deference to the States. [New Orleans Public Service,
Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (NOPSI)]. Those
exceptional circumstances exist, the Court determined after surveying prior
decisions, in three types of proceedings. First, Younger precluded federal
intrusion into ongoing state criminal prosecutions. See ibid. Second, certain civil
enforcement proceedings warranted abstention. Ibid. (citing, e.g., Huffman, 420
U.S., at 604). Finally, federal courts refrained from interfering with pending civil
proceedings involving certain orders . . . uniquely in furtherance of the state
courts ability to perform their judicial functions. 491 U.S., at 368 (citing Juidice
v. Vail, 430 U.S. 327, 336, n. 12 (1977), and Pennzoil Co. v. Texaco Inc., 481
U.S. 1, 13 (1987)). We have not applied Younger outside these three
exceptional categories, and today hold, in accord with NOPSI, that they define
Youngers scope.
Sprint Communs., Inc., 134 S. Ct. at 591. Thus, Younger abstention is the exception rather
than the rule, yet Defendants contend the burden should be placed on Plaintiffs to demonstrate
why Younger abstention should not apply. (D.E. 8, Defendants Memo., PageID# 214).
Defendants do not attempt to meet any of the exceptional circumstances that would justify a
federal courts refusal to decide a case in deference to the States.6
None of the specific exceptions for this Court to abdicate its federal jurisdiction pursuant
to the Younger abstention doctrine that have been delinated by the Supreme Court apply here: 1)
It would be the height of unfairness if Defendants now attempted to do so in a reply brief when
Plaintiffs are no longer allowed a response by right.
12
the underlying issue is not a criminal prosecution; 2) the underlying administrative hearing
process has not even reached Tennessee state courts, despite Plaintiffs ongoing constitutional
harms, and even if it were currently being litigated in state courts, enforcement of campaign
finance statutes and regulations are not akin to a criminal prosecution (see, e.g., Huffman, 420
U.S. at 604); and 3) a finding that Tenn. Code Ann. 2-10-102(12)(A) and/or any other
provision of the Tennessee campaign finance laws is unconstitutional has no bearing on
Tennessee courts ability to perform their judicial functions.
Importantly, Plaintiffs Complaint challenges whether the Registry even had jurisdiction
over Plaintiffs in the first instance regarding Plaintiffs First Amendment-protected conduct.
(D.E. 1, Compl., PageID# 17). Plaintiffs First Amendment rights have been abused by
Defendants, and Plaintiffs have suffered considerable losses in their efforts to thwart Defendants
abuses of their First Amendment rights. (D.E. 1, Comp., PageID# 30-34). In fact, in their Motion
to Dismiss, Defendants quote precedent that establishes the remaining administrative remedies
available to Plaintiffs preclude the primary injunctive relief which Plaintiffs request: an agency
has no authority to determine the constitutionality of a statute. (D.E. 8, PageID# 214 (quoting
Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 458 (Tenn. 1995)). Defendants
contend that because Plaintiffs can eventually seek judicial review in Tennessee chancery court,
after yet another round of administrative proceedings which will further compound Plaintiffs
harms and losses, this precludes Plaintiffs from seeking reprieve for their past and ongoing
federal constitutional harms in federal court. (Id.) Unfortunately, the States ongoing conduct is
forcing the Plaintiffs (and other Tennessee citizens) to curtail clearly protected First Amendment
activity in order to avoid additional fines and punishment. This is not the sort of matter that can
wait years to be resolved. The Defendants view is completely contradictory to the Supreme
13
Courts Younger abstention instruction that the pendency of an action in [a] state court is no bar
to proceedings concerning the same matter in the Federal court having jurisdiction. Sprint
Communs., Inc., 134 S. Ct. at 588.
Further, because no state court proceedings have begun, Burford abstention may be the
more appropriate standard to apply. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). Under
Burford abstention, a federal court should abstain under certain conditions [w]here timely and
adequate state-court review is available. Bogaert v. Land, 675 F. Supp. 2d 742, 746 (W.D.
Mich. 2009). Burford abstention has been deemed inappropriate in regards to First Amendment
challenges of state laws:
"Abstention is 'an extraordinary and narrow exception to the duty of a District Court to
adjudicate a controversy properly before it.'" Saginaw Housing Comm'n v. Bannum,
Inc., 576 F.3d 620, 625 (6th Cir. 2009) (quoting Answers in Genesis of Ky., Inc. v.
Creation Ministries Int'l., Ltd., 556 F.3d 459, 467 (6th Cir.2009)). The Supreme Court
has stated that it is "particularly reluctant to abstain in cases involving facial challenges
based on the First Amendment." Houston v. Hill, 482 U.S. 451, 467, 107 S. Ct. 2502, 96
L. Ed. 2d 398 (1987); see also Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 534
(3d Cir. 1988) (expressing "serious doubts as to whether Burford abstention ever would
be appropriate where substantial first amendment issues are raised").
Bogaert, 675 F.Supp.2d at 747; see also Morrill v. Weaver, 224 F. Supp. 2d 882, 895 n.15 (E.D.
Pa. 2002) (finding Burford abstention was "wholly inapplicable" to a First
Amendment challenge); Kansas for Life, Inc. v. Gaede, 38 F. Supp. 2d 928, 934 (D. Kan.
1999) (holding that Burford abstention is inappropriate in a First Amendment challenge of
state campaign finance laws).
There are currently election campaigns taking place in Tennessee, and Plaintiffs have a
right to openly discuss the elections, distribute information about the elections, demonstrate
favorable opinions about policies and issues, and associate with whomever they choose while
engaging in this discourse. This is particularly important given that the 2016 Presidential
14
campaign is already underway, and the citizens of Tennessee have a right to know whether they
are allowed to discuss Presidential candidates over Facebook or the Internet without a
requirement to register as a political campaign committee. However, the Registrys actions have
chilled Plaintiffs ability to engage in these First Amendment- protected activities. Defendants
argument that Plaintiffs should wait until the conclusion of their administrative appeals and any
potential state court appeals before seeking injunctive and declaratory rights from a Court with
original jurisdiction over these issues would lead to an unnecessary and inappropriate prolonging
of Plaintiffs ongoing constitutional harms.7
Further, the importance of this Court weighing in on Defendants wrongdoing is further
illustrated by the subsequent conduct of Defendants as a result of Plaintiffs challenge. On
August 12, 2015, the Registry made an unforced sua sponte decision to cease addressing
citizens complaints of unregistered political campaign committee activity until after the
resolution of Plaintiffs challenge. See Exhibit A. The Registrys decision to halt performing its
primary function has left the status of Tennessees campaign finance laws in doubt in the midst
of campaigns ranging from local city counsel to the President of the United States. Tennessee
citizens such as Plaintiffs have been chilled from engaging in political speech in fear that the
Registry may fine them for conduct that is clearly protected by the laws of the United States and
Tennessee. For instance, as illustrated in Plaintiffs Complaint, a married couple who jointly
decide to place a political bumper sticker on their family car would rise to the definition of a
political campaign committee as established by the Registry. (D.E. 1, Compl., PageID# 29-30).
Additionally, the state court proceedings could result in a finding that no jurisdiction existed for
the Registry to bring the claim. While such a decision would remove Plaintiffs fine, it would not
resolve the issue of whether Tenn. Code Ann. 2-10-102(12)(A) and how it was applied by the
Registry passes Constitutional muster.
15
This absurd result in violation of Plaintiffs and all Tennesseans federally-protected rights must
be addressed immediately, and federal courts have a longstanding tradition and expertise in
untangling the complicated webs of First Amendment jurisprudence. See, e.g., Citizens United,
558 U.S. 310.
There is no doubt that this Court has jurisdiction over Plaintiffs claims. Primarily at
issue in Plaintiffs Complaint are constitutional deprivations and damages stemming from
Defendants belief that Tenn. Code Ann. 2-10-102(12)(A) grants them the authority to fine any
pairing of individuals expressing opinions that might be deemed by the Registry as being in
favor or against any candidacy. (D.E. 1, Compl., PageID# 211). Plaintiffs have presented facts
that demonstrate Tenn. Code Ann. 2-10-102(12)(A), and particularly Defendants' application
of it, have deprived Plaintiffs and their fellow Tennesseans of their ability to engage in First
Amendment-protected speech and association. (D.E. 1, Compl., Page ID# 29-30). Furthermore,
Plaintiffs have never been granted an opportunity to defend themselves against the Registrys
conclusions of wrongdoing in violation of their due process rights guaranteed by the Fourteenth
Amendment. (D.E. 1, Compl., PageID# 28-29); Bush v. Gore, 531 U.S. 98, 110 (2000)
(discussing the importance of due process in terms of ensuring the application of state laws
respect all citizens Constitutional rights). These rights, and the harms suffered by Plaintiffs,
implicate fundamental interests protected by the United States Constitution, and accordingly, this
Court should exercise its jurisdiction over these important First Amendment issues.
IV. Plaintiffs Claims Attacking the Constitutionality of the Application of a Statute
is Not Barred by Tennessees Sovereign Immunity Statute.
Plaintiffs have challenged the constitutionality of a Tennessee statute that Defendants
have interpreted as allowing the Registry to prohibit Plaintiffs from engaging in discourse over
elections, Tenn. Code Ann. 2-10-102(12)(A), pursuant to Article I, Section 19 of the Tennessee
16
Constitution. (D.E. 1, Compl., PageID# 32-33). Under Tennessee law, a lawsuit attacking the
constitutionality of the application of a statute is not barred by the sovereign immunity statute.
Cornelius v. McWilliams, 641 S.W.2d 508, 512 (Tenn. Ct. App. 1982). In Cornelius, a plaintiff
judge challenged Tenn. Code Ann. 8-23-103(d), a Tennessee statute which limited judiciary
salary adjustments, as violating Article 6, Section 7 of the Tennessee Constitution. Id. at 514.
Before ultimately reaching a holding in the plaintiffs favor, the Tennessee Court of Appeals first
roundly and succinctly rejected the Cornelius defendants argument that the complaint should
have been dismissed pursuant to Tenn. Code Ann. 20-13-102(a), a statute that preserves much
of the Tennessee governments sovereign immunity. Id. at 512. The Cornelius court clearly held
that an official executing an unconstitutional act is not acting by authority of the state within
the meaning of the statute. Id. (quoting Stockton v. Morris and Pierce, 110 S.W.2d 480 (Tenn.
1937)). A law unconstitutional is void, and confers neither right nor authority. Id. (quoting
Lynn v. Polk, 76 Tenn. 121 (1881)).
Here, Plaintiffs have presented facts that demonstrate Tenn. Code Ann. 2-10102(12)(A)s overly-broad prohibition on political speech, as written and as applied by
Defendants, violates Article I, Section 19 of the Tennessee Constitutions declaration that [t]he
free communication of thoughts and opinions, is one of the invaluable rights of man and every
citizen may freely speak, write, and print on any subject (D.E. 1, Compl., PageID# 32-33).
Defendants have argued that Tenn. Code Ann. 20-13-102(a)s preservations of sovereign
immunity should control here and bar Plaintiffs claims from proceeding, but this approach is
untenable under Cornelius.8 Thus, under Tennessee law and contrary to Defendants argument
Defendants again misstate precedent regarding this argument, citing to Bowden Building
Corporation v. Tennessee Real Estate Commission, 15 S.W.3d 434, 446 (Tenn. Ct. App. 1999),
to argue that Tennessee courts do not recognize a private cause of action for violation of the
17
otherwise, sovereign immunity does not exist for Tennessee state officials regarding Plaintiffs
challenges to the constitutionality of Tennessees election laws. Cornelius, 641 S.W.2d at 512.
CONCLUSION
Plaintiffs have set forth claims that Defendants do not contest establish that if Plaintiff
can prove their allegations that the Plaintiffs First Amendment and Tennessee Constitutional
rights have been violated. Defendants do not contest that these harms are ongoing. Instead,
Defendants seek to shirk their liability by seeking to hide their constitutional violations behind
immunity and abstention doctrines. As shown above, Defendants have not established that they
are entitled to immunity for constitutional violations or that this Court should abstain from ruling
on this case. Accordingly, Defendants Motion to Dismiss should be denied.
Respectfully submitted,
/s/ J. Gerard Stranch, IV

J. Gerard Stranch, IV, BPR No. 23045
Benjamin A. Gastel, BPR No. 28699
Seamus T. Kelly, BPR No. 32202
BRANSTETTER, STRANCH
& JENNINGS, PLLC
The Freedom Center
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Phone: (615) 254-8801
Fax: (615) 255-5419
gerards@bsjfirm.com
beng@sjfirm.com
skelly@bsjfirm.com
Counsel for Plaintiffs
Tennessee Constitution. (D.E. 8, PageID # 208). Bowden actually states that there is no private
cause of action for damages without express statutory authority under Tennessee law such as
Bivens actions under federal law. Bowden, 15 S.W.3d at 446. This has no bearing on an action
for declaratory and injunctive relief and seeking general damages naturally flowing from the
underlying acts. Cornelius, 641 S.W.2d at 512.
18
19
CERTIFICATE OF SERVICE
I, J. Gerard Stranch, IV, hereby certify that I caused a copy of the above Response in
Opposition to Motion to Dismiss to be filed electronically via the Courts electronic filing
system. Those attorneys who are registered with the Courts electronic filing system may access
these filings through the Courts system, and notice of these filings will be sent to these parties
by operation of the Courts electronic filing system.
Dated: August 24, 2015
/s/ J. Gerard Stranch, IV
20
Case 3:15-cv-00739 Document 16-1 Filed 08/24/15 Page 1 of 4 PageID #: 258
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A

Williamson Strong Opposition To Dismiss

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Williamson Strong Opposition To Dismiss

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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

Case 3:15-cv-00739 Document 16 Filed 08/24/15 Page 1 of 23 PageID #: 235

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983)........................................................... 9

/s/ J. Gerard Stranch, IV

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