Virginia Society for Human Life, Inc. v. Caldwell

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA SOCIETY FOR HUMAN LIFE,

INCORPORATED; ANDREA SEXTON,

Plaintiffs-Appellants,

v.

DONALD S. CALDWELL, Attorney for

the Commonwealth of Virginia for

the City of Roanoke, in his official

capacity and as a representative of

the class of Attorneys for the

Commonwealth of Virginia;

No. 97-1292

PAMELA M. CLARK, in her official

capacity as Chairman of the

Virginia Board of Elections;

GEORGE M. HAMPTON, SR., Dr., in

his official capacity as Vice-

Chairman of the Virginia Board of

Elections; M. BRUCE MEADOWS, in

his official capacity as Secretary of

the Virginia Board of Elections,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CA-95-1042-R)

Argued: October 2, 1997

Decided: July 21, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and

HERLONG, United States District Judge for the

District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Murnaghan wrote the opinion,

in which Judge Wilkins and Judge Herlong joined.

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COUNSEL

ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre

Haute, Indiana, for Appellants. Alice Ann Berkebile, Assistant Attor-

ney General, Richmond, Virginia, for Appellees. ON BRIEF: John

K. Abegg, BOPP, COLESON & BOSTROM, Terre Haute, Indiana,

for Appellants. Richard Cullen, Attorney General of Virginia, Rich-

mond, Virginia, for Appellees.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

This case involves a challenge to Virginia's election laws, Va.

Code Ann. §§ 24.2-901, -908, -910 & -1014 (Michie 1997). Those

laws require certain people or organizations who spend money "for

the purpose of influencing the outcome of any election," Va. Code

Ann. § 24.2-901 (Michie 1997), to file a statement of organization,

see Va. Code Ann. § 24.2-908 (Michie 1997), and report their expen-

ditures, see Va. Code Ann. § 24.2-910 (Michie 1997), and also

require any writings made "for the purpose of influencing the out-

come of an election for public office" to identify the author, Va. Code

Ann. § 24.2-1014 (Michie 1997).

The Virginia Society for Human Life (VSHL), the plaintiff-

appellant, is a nonprofit organization that conducts issue advocacy by

periodically preparing voter guides that do not expressly advocate the

election or defeat of any candidate but rather state the candidates'

views on public issues.1 VSHL and one of its members sued Virgin-

ia's Commonwealth's Attorneys, alleging that these laws chill the

plaintiffs' constitutionally protected speech because predecessors to

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1 We have assumed for purposes of this appeal that VSHL conducts

only issue advocacy, as asserted in its pleadings.

2

the current statutes had been used to impose unconstitutional prior

restraints on issue advocacy groups in the past. The plaintiffs sought

a declaration that the referred-to provisions of the election law

facially violate the First Amendment to the United States Constitution

under the Supreme Court's decisions in Buckley v. Valeo, 424 U.S. 1,

78-80 (1976) (per curiam) (interpreting federal election laws that

require the disclosure of expenditures to apply only to expenditures

used expressly to advocate the election or defeat of a clearly identi-

fied candidate, thereby avoiding the First Amendment problems that

would arise from a reporting requirement that applied to funds

expended in issue discussion), and McIntyre v. Ohio Elections

Comm'n, 514 U.S. 334, 357 (1995) (holding that an Ohio statute pro-

hibiting anonymous issue advocacy was an unconstitutional abridg-

ment of speech), if the statutes apply to issue advocacy groups like

VSHL. Plaintiffs also sought an injunction barring the laws' enforce-

ment.

The district court recognized that the plain language of the statutes

suggests that they apply to issue advocacy groups such as VSHL. See

Virginia Soc'y for Human Life, Inc. v. Caldwell, 906 F. Supp. 1071,

1075-76 (W.D. Va. 1995). Because there was little Virginia case law

interpreting the statutes, the court certified to the Supreme Court of

Virginia the question whether they were susceptible to a narrowing

construction that would save their constitutionality. See id. at 1075;

Virginia Soc'y for Human Life, Inc. v. Caldwell, No. 95-1042-R

(W.D. Va. Nov. 27, 1995) (order of certification to the Supreme Court

of Virginia). But the Supreme Court of Virginia"rejected" the certi-

fied questions without explanation. See Virginia Soc'y for Human

Life, Inc. v. Caldwell, No. 95-2122 (Va. Jan. 18, 1996). About four

months later, the Virginia General Assembly amended the statutes

(the parties contest the materiality of the amendments).

To save their constitutionality, the district court then narrowly con-

strued the new provisions based on the Supreme Court's interpreta-

tion of the federal election laws in Buckley, 424 U.S. at 79-80. The

district court found that the phrase "for the purpose of influencing" in

the Virginia statutes was "a term of art whose well-established mean-

ing excludes issue advocacy." Virginia Soc'y for Human Life, Inc. v.

Caldwell, No. 95-1042-R, slip op. at 4 (W.D. Va. Feb. 19, 1997). It

did so because it believed that where a "statute[is] reasonably suscep-

3

tible of two interpretations, by one of which it would be unconstitu-

tional and by the other valid, it is our plain duty to adopt that a [sic]

construction which will save the statute from constitutional infirmity."

Id. at 5 (quoting United States ex rel. Attorney General of the United

States v. Delaware and Hudson Co., 213 U.S. 366, 407 (1909)

(regarding a federal statute)) (internal quotation marks omitted).

Because VSHL conducts only issue advocacy and not express candi-

date advocacy, the district court dismissed VSHL's claim for lack of

standing. See id. at 7.

But such a ruling by a federal district court is not binding upon

state courts. A federal district court "lack[s] jurisdiction authorita-

tively to construe state legislation." United States v. Thirty-Seven (37)

Photographs, 402 U.S. 363, 369 (1971). As the Seventh Circuit has

explained:

[A]n important difference between interpretation of a state

statute by a federal court and by a state court is that only the

latter interpretation is authoritative. If the district judge

[reads the state's] statute so narrowly as to obviate all con-

stitutional questions, it would still be possible for the state

to prosecute people for violating the statute as broadly con-

strued, because the enforcement of the statute would not

have been enjoined.

Kucharek v. Hanaway, 902 F.2d 513, 517 (7th Cir. 1990). The district

court's holding, that the Virginia statutes at issue did not apply to

VSHL, could not prevent a private party from suing to enjoin VSHL's

distribution of campaign literature based on the statutes, nor could it

prevent the state from prosecuting VSHL for failing to comply with

the statutes. Because the scope of the statutes' applicability had not

authoritatively been narrowed and by their plain terms they applied

to VSHL, VSHL's speech was still chilled by the statutes. VSHL

therefore brought this appeal.

Federal courts have the power and the duty to adopt narrowing

constructions of federal statutes to avoid constitutional difficulties "if

such a construction is fairly possible," but"federal courts are without

power to adopt a narrowing construction of a state statute unless such

a construction is reasonable and readily apparent." Boos v. Barry, 485

4

U.S. 312, 330-31 (1988) (emphasis added). It was not apparent to us

that the election laws at issue were readily susceptible to a construc-

tion by which they did not apply to VSHL. In fact, a de novo review

of the text, structure and history of the election laws at issue sug-

gested to us that they did apply to issue advocacy groups such as

VSHL.

A straightforward reading of the text supported VSHL's claims that

its issue advocacy is encompassed within "expenditures for the pur-

pose of influencing the outcome of any election." Va. Code Ann.

§ 24.2-901 (Michie 1997). Black's Law Dictionary defines "influ-

ence" as "[t]o affect, modify or act upon by physical, mental or moral

power, especially in some gentle, subtle, and gradual way," id. at 779

(6th ed. 1990). Webster's Third New International Dictionary defines

"influence" as "to affect or alter the conduct, thought, or character of

by indirect or intangible means," id. at 1160 (1993). Under either def-

inition, the voter guides published by VSHL setting out candidates'

positions on public issues such as abortion were distributed for the

purpose of influencing the outcome of an election.

Furthermore, section 901(B) specifically excludes from the defini-

tion of "political committee"2 those organizations that do not engage

in express candidate advocacy if they are also tax-exempt under 26

U.S.C. § 501(c)(3).3 The most logical reading of this provision, we

believed, is that an organization that does not engage in express advo-

cacy but is not tax-exempt under § 501(c)(3) is implicitly included in

the definition of "political committee." Expressio unius est exclusio

alterius. VSHL does not engage in express advocacy, but is tax

exempt under 26 U.S.C. § 501(c)(4), not § 501(c)(3), and thus appears

to be included in the definition of "political committee."

The district court asserted that the Virginia General Assembly "pre-

sumably was aware of Buckley's construction of the phrase `for the

purpose of influencing' to include only express candidate advocacy"

when the Assembly enacted and amended sections 24.2-901 to -1014.

_________________________________________________________________

2 And from the definitions of"political action committee" and "person"

as well.

3 The exclusion is only for the purpose of certain sections of the chap-

ter, including sections 24.2-908 & 910.

5

Virginia Soc'y for Human Life, Inc., No. 95-1042-R, slip op. at 5.

However, it appeared to us extremely unlikely that the General

Assembly, after reading Buckley and learning that the term "for the

purpose of influencing" was unconstitutionally vague and required a

narrowing construction to save it, would then decide to use that term,

without explanation, in its statute. If the General Assembly meant to

define "political committee" as an organization which expended funds

"for express candidate advocacy" only, it presumably would have said

so explicitly.

The language of section 24.2-910, in conjunction with the defini-

tion of "expenditure" in section 24.2-901, provided further evidence

that the Virginia election code was intended to regulate issue advo-

cacy groups. Section 24.2-910(B) requires any person who makes

independent expenditures of a minimum amount to maintain records

and report those expenditures. The expenditures to be reported explic-

itly include not only "funds expended for the purpose of influencing

the outcome of any election for public office," Va. Code Ann. § 24.2-

910(B)(1) (Michie 1997), but also funds expended to publish "any

material referring to a candidate by name, description, or other refer-

ence and (i) advocating his election or defeat, (ii) setting forth his

position on any public issue, voting record, or other official acts, or

(iii) otherwise designed to influence individuals to cast their votes for

or against him," Va. Code Ann. § 24.2-910(B)(2) (Michie 1997). We

concluded that these subsections were obviously intended to refer not

only to express candidate advocacy, but also to materials which sim-

ply describe a candidate's voting record in the hopes of influencing

people's votes, that is, issue discussion.

A look at the recent amendments to section 24.2-910 confirmed the

unlikelihood of the district court's interpretation. When this case was

originally filed, the statute required "any person or political commit-

tee making independent expenditures" to "maintain records and report

. . . expenditures made of: . . . 3. Any funds in any amount expended

to publish or broadcast to the public any material promoting or oppos-

ing a question submitted to the voters in a referendum." Va. Code

Ann. § 24.2-910(B)(3) (Michie 1995); see also 1996 Va. Acts ch.

1042. The district court held that the Virginia General Assembly

intended the phrase "for the purpose of influencing the outcome of an

election" in the definition of "expenditure" to mean only "expendi-

6

tures for express candidate advocacy." Virginia Soc'y for Human Life,

Inc., No. 95-1042-R, slip op. at 6. If this were correct, then the pre-

amendment section 24.2-910(B)(3) would have meant that a person

must report funds spent for express candidate advocacy regarding

questions submitted to the voters in a referendum. The pre-

amendment version of the statute was not readily susceptible of this

interpretation.

We believed that, as with the definition of "political committee,"

if the General Assembly had meant to require reporting only of funds

expended on materials that expressly advocated the election or defeat

of a candidate, it would have said so explicitly. In fact it says just that

in subsection 24.2 910(B)(2)(i) -- and then goes on in subsections (ii)

and (iii) to require the reporting of funds spent on other materials. It

appeared to us that the Assembly meant to regulate those other mate-

rials as well.

However, no Virginia appellate court had interpreted the statutes at

issue. The statutes had been applied by Virginia trial courts, but those

decisions were based on previous versions of the since-amended law.

Despite VSHL's repeated assertions that the old"statutory language

. . . is identical in all substantive respects to the provisions at issue

here," we were uncertain whether the intervening amendments along

with recent advisory opinions of the Virginia Attorney General might

not influence Virginia courts to interpret the current statutes differ-

ently.

Rather than simply reversing the district court's dismissal and

remanding for an evaluation of the merits of VSHL's constitutional

challenge, therefore, we believed that the Supreme Court of Virginia

should be given another chance authoritatively to interpret its laws so

as to cure any constitutional infirmity. We accordingly certified to the

Supreme Court of Virginia the following question:

Whether Va. Code Ann. §§ 24.2-901, -908, -910 & -1014

apply to issue advocacy groups, or whether the use of the

phrase "for the purpose of influencing the outcome of an

election" and related phrases limits the application of those

statutes to groups that expressly advocate the election or

defeat of a particular candidate.

7

The Supreme Court of Virginia replied, in pertinent part, as follows:

In light of certain concerns expressed in the order of certi-

fication and in order to conform to our policy of responding

to certified questions in the affirmative or the negative, we

will exercise our discretion under Rule 5:42(d) to restate the

question as follows: Whether the use of the phrase"for the

purpose of influencing the outcome of an election" in Code

§§ 24.2-901, -908, -910, and -1014 may be narrowly con-

strued to limit the application of those statutes to groups that

expressly advocate the election or defeat of a clearly identi-

fied candidate.

Within the statement supporting the determinative nature

of the certified question, Rule 5:42(b)(6), the Court of

Appeals has expressed grave doubts as to the method used

by the district court in arriving at the narrowing construction

of these statutes. The district court found that the phrase "for

the purpose of influencing the outcome of an election" as

used in these statutes "is a term of art whose well-

established meaning excludes issue advocacy" based upon

the rationale of Buckley.

Citing Boos v. Barry, 485 U.S. 312, 330, 108 S.Ct. 1157,

99 L.Ed.2d 333 (1988), the Court of Appeals notes that fed-

eral courts may not "`adopt a narrowing construction of a

state statute unless such a construction is reasonable and

readily apparent.'" Continuing, the Court of Appeals

expressed doubts that a narrowing construction of these stat-

utes is readily apparent and that the structure and history of

the Act suggest that it applies to issue advocacy groups such

as VSHL. The Court of Appeals correctly notes, however,

that under the broader rules of statutory construction avail-

able in this Court we "may impose a narrowing construction

upon these statutes if [we determine] that such a construc-

tion would be correct." For the reasons that follow, we con-

clude that such is the case here.

The rules of statutory construction pertinent to our analy-

sis here are firmly settled. Principal among these rules is

8

that we determine, and adhere to, the intent of the legislature

reflected in or by the statute being construed. As an initial

and primary proposition, that intent is to be determined by

the words in the statute. See Marsh v. City of Richmond, 234

Va. 4, 11, 360 S.E.2d 163, 167 (1987). Where the words

used in the statute are not sufficiently explicit, we may

determine the intent of the legislature "from the occasion

and necessity of the statute being passed [or amended]; from

a comparison of its several parts and of other acts in pari

materia; and sometimes from extraneous circumstances

which may throw light on the subject." Richmond v.

Sutherland, 114 Va. 688, 691, 77 S.E. 470, 471 (1913).

Additionally, when, as here, the constitutionality of a stat-

ute is challenged, our determination of legislative intent is

guided by the recognition that "[a]ll actions of the General

Assembly are presumed to be constitutional." Hess v. Sny-

der Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 820

(1990). Thus, "a statute will be construed in such a manner

as to avoid a constitutional question wherever this is possi-

ble." Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897

(1940); see also Jacobs v. Meade, 227 Va. 284, 287, 315

S.E.2d 383, 385 (1984). In this context, we will narrowly

construe a statute where such a construction is reasonable

and avoids a constitutional infirmity.a Pedersen v. City of

Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979).

_________________________________________________________________

aVSHL asserts that without an ambiguity in the language of the stat-

utes in question we may not resort to extrinsic aids of construction. See

Wall v. Fairfax County School Board, 252 Va. 156, 159, 475 S.E.2d 803,

805 (1996). This assertion is without merit in the present case. While an

ambiguity of language may serve as the basis for rejecting an unconstitu-

tional interpretation of a statute in favor of one that survives constitu-

tional scrutiny, see, e.g., Miller v. Commonwealth, 172 Va. 639, 648, 2

S.E.2d 343, 347 (1939), a finding of ambiguity is not a prerequisite for

applying a narrowing construction to preserve a statute's constitutional-

ity. To the contrary, we may construe the plain language of a statute to

have limited application if such a construction will tailor the statute to

a constitutional fit. Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103,

31 L.Ed.2d 408 (1972).

9

The parties do not dispute, and it is readily apparent, that

absent a narrowing construction of the phrase "for the pur-

pose of influencing the outcome of an election" as used by

the General Assembly in the statutes in question, these stat-

utes would apply to individuals and groups that engage

solely in issue advocacy, and, thus, would be unconstitution-

ally overbroad. However, a narrowing construction is rea-

sonable because it is consistent with the manner in which

the United States Supreme Court construed very similar fed-

eral election statutes in Buckley. Moreover, a narrowing

construction avoids a constitutional infirmity and is consis-

tent with the legislative intent that we are able to determine

from the words used by the General Assembly under the cir-

cumstances existing at the time these statutes were enacted

or amended.

Each of the statutes in question has either been enacted or

amended subsequent to the decision in Buckley . Without

question, the General Assembly is presumed to have knowl-

edge of decisions of the United States Supreme Court on

constitutional issues that bind actions of the states when

enacting statutes that potentially invoke such issues.

Accordingly, here the General Assembly is presumed to

have had knowledge that the Buckley decision narrowly con-

strued the phrase "for the purpose of influencing" as used in

federal election laws to apply only to expenditures used to

advocate the election or defeat of a clearly identified candi-

date and, thus, to exclude groups that engage solely in issue

advocacy. Similarly, that presumption of knowledge extends

to the more recent McIntyre decision that a state statute can-

not constitutionally prohibit anonymous issue advocacy by

groups that engage solely in issue advocacy.

Additionally, the General Assembly, when amending a

statute, is presumed to have knowledge of the Attorney Gen-

eral's interpretation of that statute in its existing form. See

Lee Gardens Arlington Limited Partnership v. Arlington

County Board, 250 Va. 534, 540, 463 S.E.2d 646, 649

(1995). In 1995, the Attorney General, in response to an

inquiry concerning the constitutionality of Code§ 24.2-1014

10

in light of the McIntyre decision, issued a formal opinion,

consistent with prior opinions on related issues, expressly

construing the phrase "for the purpose of influencing" as

having the same definition as that adopted in Buckley. See

1995 Op. Va. Att'y Gen. 170.

In light of the General Assembly's knowledge of the

opinions in Buckley and McIntyre and the Attorney Gener-

al's opinion adopting a narrowing construction of the broad

sweep of the phrase "for the purpose of influencing" at the

time the General Assembly enacted or amended the statutes

in question, we conclude that the General Assembly

intended to limit that phrase and related phrases so as to

have no application to individuals or groups that engage

solely in issue advocacy and that do not expressly advocate

the election or defeat of a clearly identified candidate.

We now consider the effect of this narrowing construction

on each of the statutes in question. In doing so we will

address only those provisions of the Act pertinent to the

present case.

Code § 24.2-901(A) provides definitions for various

terms used throughout the Act that control the meaning of

specific sections. "Contribution" is defined as "money ...

given ... for the purpose of influencing the outcome of an

election" and "Expenditure" is defined as"money ... paid ...

for the purpose of influencing the outcome of an election."

"Independent expenditure" is defined as "an expenditure

made by any person or political committee which is not

made to ... a candidate" or generally on behalf of a candi-

date. "Political committee" is defined as a"person or group

of persons which receives contributions or makes expendi-

tures for the purpose of influencing the outcome of any elec-

tion."

We first apply these definitions to Code § 24.2-908,

which requires a "political committee which anticipates

receiving contributions or making expenditures in excess of

$200 in a calendar year" to file a statement of organization

11

with the State Board of Elections. As narrowly construed, a

group that engages solely in issue advocacy and does not

receive "contributions" or make "expenditures" to expressly

advocate the election or defeat of a clearly identified candi-

date is not a "political committee" as defined in Code

§ 24.2-901(A), and, consequently, is not included in the

mandate of Code § 24.2-908. The same rationale applies to

the provisions of Code § 24.2-910(B) that require any group

that "is not a political committee and who makes indepen-

dent expenditures" to report these expenditures to the State

Board of Elections. An "independent expenditure" contem-

plated by this section and as defined in Code § 24.2-901(A)

excludes expenditures made solely for issue advocacy.b

Similarly, Code § 24.2-1014, when narrowly construed in

this manner, requires identification of authorship only on

writings "made for the purpose of influencing the outcome

of an election for public office" and excludes writings that

are limited to issue advocacy.

Finally, we consider the terms of Code § 24.2-901(B) that

have evoked express concerns by the Court of Appeals in its

order of certification and are asserted by VSHL to prohibit

the narrowing construction we adopt in this case. For the

purpose of applying the filing requirements of Code§ 24.2-

908 and the reporting requirements of Code § 24.2-910,

Code § 24.2-901(B) expressly excludes from the definition

of a "political committee" "an organization holding tax-

exempt status under § 501(c)(3) of the United States Internal

Revenue Code which, in providing information to voters,

does not advocate or endorse the election or defeat of a par-

ticular candidate, group of candidates, or the candidates of

a particular political party."

Citing the maxim expressio unius est exclusio alterius,

that is, the expression of one thing is the exclusion of

another, the Court of Appeals questions whether this express

_________________________________________________________________

bBecause we construe Code § 24.2-910(B) to exclude expenditures

made solely for issue advocacy, we find no inconsistency in the language

of subsections (B)(1) and (B)(2).

12

statement would not result in the definition of a"political

committee" necessarily including organizations, such as

VSHL, which do not have § 501(c)(3) status, but which

nonetheless provide information to voters that "does not

advocate or endorse the election or defeat of a particular

candidate, group of candidates, or the candidates of a partic-

ular political party."c Assuming that this is a correct applica-

tion of this maxim of construction, it does not preclude the

application of a narrowing construction to the definition of

a "political committee" as contemplated by the General

Assembly. Thus, we conclude that even if organizations

lacking § 501(c)(3) status, such as VSHL, are subsumed

within that definition, under the narrowing construction such

groups would be subject to its application elsewhere in the

Act only if their activities were to exceed the bounds of

issue advocacy.

Accordingly, we hold that the phrase "for the purpose of

influencing the outcome of an election," as used in Code

§§ 24.2-901, -910, and -1014, as well as its implication for

terms used in Code § 24.2-908, may be narrowly construed

to limit the application of those statutes to groups that

expressly advocate the election or defeat of a clearly identi-

fied candidate.

Certified question answered in the affirmative.

As authoritatively construed by the Supreme Court of Virginia, the

challenged election laws do not reach groups such as VSHL so long

as they engage purely in issue advocacy. The judgment of the district

court dismissing the case for lack of standing is, therefore,

AFFIRMED.

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cVSHL does enjoy tax-exempt status under § 501(c)(4) of the United

States Internal Revenue Code.

13