Petition for Writ of Certiorari — Wang v. Lind

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‘) ga 897 Nov 151994

No. e-THE CLERM

In The

Supreme Court of the United States

October Term, 1994

JAMES C.F. WANG, Chairman, Campaien Spending

Commission, State of Hawaii, et al.,

Petitioners,

IAN LIND,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Rosert A. Marks

Attorney General

State of Hawaii

STEVEN S. MICHAELS*

Deputy Attorney General

State of Hawait

*Counsel of Record

Department of the

Attorney General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1360

Counsel for Petitioners

James C.F. Wang, Chairman,

Campaign Spending

Commission, State of Hawaii,

et al.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Hawaii allows private parties to file complaints over

campaign spending practices with a commission, which

enforces Hawaii’s campaign spending law. Section

11-216(d) of that law provides:

Until a determination of probable cause is made

by the commission, all proceedings, including

the filing of the complaint, investigation, and

hearing shall be confidential unless the person

complained of requests an open hearing. In the

event the commission determines that probable

cause does not exist, the complaint shall be dis-

missed and the entire record of the proceedings

shall be kept confidential at the option of the

person complained of.

The Questions Presented by this Petition are:

1. Whether Haw. Rev. Stat. § 11-216(d), as applied to

a “charging party” prior to a determination of probable

cause, is unconstitutional under the First and Fourteenth

Amendments?

2. Whether Haw. Rev. Stat. § 11-216(d) is facially

void, and never enforceable, on First Amendment “over-

breadth” grounds?

3. Whether the courts below breached rules of com-

ity and restraint in failing to indulge limiting construc-

tions of § 11-216(d), and in refusing to certify questions to

the Hawaii Supreme Court, so a limiting view of the law

might be had?

PARTIES TO THE PROCEEDING

Petitioners are James C.F. Wang, Chairman of the

Campaign Spending Commission, State of Hawaii, and

Lissa Andrews, William Gillardy, Philip Li, and Mary

Oshiro, members of the Commission, as well as Robert Y.

Watada, acting Executive Director of the Campaign

Spending Commission. Each of these Petitioners appears

in his or her official capacity, and as successors in office

to the original Defendants in this action, i.e., Robert Y.

Watada, former Chairman, and Linda K. Rosehill, James

C.F. Wang, Gary G. Grimmer, former Members, and Jack

M.K. Gonzales, former Executive Director, of the Com-

mission. Petitioner Wang, along with Defendants Grim-

mer, Rosehill, Watada, and Gonzales, were also named in

their individual capacities in the District Court, but no

damages were ever sought from them. See Kentucky v.

Graham, 473 U.S. 159 (1985). Nonetheless, each of the

original defendants, i.e., Mssrs. Grimmer, Watada,

Gonzales, and Ms. Rosehill, also appear here in their

individual capacities, as does Chairman Wang, in an

abundance of caution.

Respondent Ian Lind is a private citizen of the State

of Hawaii, and, at the times at issue, was the author,

editor, and publisher of the “Hawaii Monitor,” an inde-

pendent non-partisan newsletter devoted to discussing

election campaign issues.

ili

TABLE OF CONTENTS

Page

Rg eR gi gg te i

PARIIGS TO THE PROCEEDEMS ..... esc ccccences ii

ee Cc keh kin sea see Rabu w ss ]

ee ei sn G6 Np eats ad bee wa ve deve tareses 2

STATUTORY PROVISIONS INVOLVED............. 2

se el Mey a a Ser eae 7

REASONS FOR GRANTING THE WRIT ........... 16

I. Review Should Be Granted to Correct the

Ninth Circuit’s Invalidation, on First Amend-

ment Grounds, of Confidentiality Provisions

that Require “Charging Parties” and Other

“Participants to the Inquiry” to Await a Deter-

mination of Probable Cause Before Disclosing

Information Gained Solely As a Result of the

Government’s Creation of a Forum For

Administrative Litigation of Campaign

Spending Complaints ............-....+-+55- 18

II. Review Should Be Granted to Correct the

Ninth Circuit’s Disregard of Settled Principles

of Comity and Restraint, Which the Court of

Appeals Ignored in Summarily Nullifying

Haw. Rev. Stat. § 11-216(d) as Facially and

Unconstitutionally Overbroad ............... 22

TABLE OF CONTENTS - Continued

Page

III. Review Should be Granted to Settle the Deep

and Continuing Conflicts in the Lower Courts

Over the Constitutionality of Confidentiality

Provisions that Bar Disclosure of the Course

of Administrative Action; the Issue, Which

Affects Not only Administration of the Fed-

eral Election Campaign Act, but Also the

Laws of at Least Ten Other States, is of

Pr rererr vere ty Tre tery. 24

Cee APE b dauc cd deee dosed poheensabpaewedacas 27

TABLE OF AUTHORITIES

Page

CASEs:

Airport Comm'rs v. Jews for Jesus, 482 U.S. 569

1g pe erer perien mp retin miners HRI OTA Se, perme, te 23

Baugh v. Judicial Inquiry and Review Commission,

oe £ fee ee | rer 14, 15

Bill Johnson's Restaurants, Inc. v. NLRB, 461 US.

FEE CES i KAShdea Aa ee eae 12

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........... 17

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)....... 8

Burson v. Freeman, 112 S. Ct. 1846 (1992) ............ 22

Butterworth v. Smith, 494 U.S. 624 (1990) ....7, 9, 13, 19

Conen v. Cowles Media Co., 501 U.S. 663 (1991) 7, 13, 19

Cornelius v. NAACP Legal Defense & Educational

FUE, GES TAG FOr Ce iA vo ok S00 bok eb asd eeeenws 20

DeBartolo v. Florida Gulf Coast Trades Council, 485

Sr Se CO 5 kb a5 0s Cen dki ee Foe eoe eee aeeees 17

FEC v. National Conservative Political Action Com-

menties, 4FO TD. GIO CIRO ovate vasdecavvesecs 10, 17

FDIC v. Mallen, 486 U.S. 230 (1988) ................. 10

First Amendment Coalition v. Judicial Inquiry and

Review Board, 784 F.2d 467 (3d Cir. 1986) (en

NN s ken Ra hrsd ds xia cabetackl ic aesceeeean a 14, 24

Frisby v. Schultz, 487 U.S. 474 (1988) ................ 23

Heckler v. Chaney, 470 U.S. 821 (1985) ............... 11

Hoopii v. Sinclair, 40 Haw. 452 (1954)................ 12

TABLE OF AUTHORITIES - Continued

Page

Horner v. Criminal Injuries Compensation Comm‘n,

54 Haw. 294, 506 F.2d 444 (19G5) ......csncccscees 12

Johnson Newspaper Corp. v. Melino, 77 N.Y.2d 1, 564

N.E.2d 1046, 563 N.Y.S.2d 380 (1990).............. 25

Kamasinski v. Judicial Review Council, 797 F. Supp.

Soe Ca. SO, Pee oo bk dknwe Cock vwesison 13, 22, 24

Kentucky v. Graham, 473 U.S. 159 (1985) .............. ii

Lakewood v. Plain Dealer Publishing Co., 486 U.S.

Fae CROMER 0 cb ndunepeekdbeanseh suhe bebebantvaveses 23

Landmark Communications, Inc. v. Virginia, 435 U.S.

Bae CEO E a 5k en kcks pekapeaeeaesariaet eee 7, 12, 18

Lind v. Grimmer, 859 F. Supp. 1317 (D. Haw. 1993),

ay Gd, SA FOE LATS CG SAE TOG cence ss ccsveawesys 13

Marshall Construction Co. Ltd. v. Bigelow, 29 Haw.

GD SEDI < os v.vvcnas s vadeca dest ninss ieee 12

McDonald v. Smith, 472 U.S. 479 (1985)....... 10, 12, 22

McIntyre v. Ohio Elections Comm'n, No. 93-986

(US. argued Oct. 12, 1996) ......cceesvene. 17, 18, 27

New York Times Co. v. United States, 403 U.S. 713

CRGEES vv vccswisusccnnsicaked bees eeeneenewete een 20

NCAA v. Tarkanian, 488 U.S. 179 (1988).............. 20

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340

CSOT OD 0 vce ngvenn evden wes eet Reese sane eae emeeeneed 10

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). .20, 25

Secretary of State v. ].H. Munson Co., 467 U.S. 947

CIGGG) f. 0 oes inncdapane 40eeeeeleteeeeens 23

TABLE OF AUTHORITIES - Continued

Page

Tennessee v. Elliott, 478 U.S. (1986)................... 12

Turner Broadcasting System v. FCC, 114 S. Ct. 2445

nn, EE EEE Oe EEE CT OTe Pe Pe ree nn re 16, 20

Virginia v. American Booksellers, Inc., 484 U.S. 383

SN Wis bask bE deen Gaus WEES bs ade Ob obndbdeiuks 24

Waimea Falls Park, Inc. v. Brown, 6 Haw. App, 83,

FO Se WH MS 6.0545 604 ORES S NE hi wnds 60% acs; 20

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .... 21

STATUTES:

2 U.S.C. § 437g(a)(4)(B)(i) (1992) ..... 2.20.22 e 8, 7, 9, 26

& UDA.. & SORA Ue) CANE) oo dsc cccess 7, 9, 26

EE I 6c 05 4y 55s cbc un wos c bbweaaeany, 2

Pe Bs. Ea 9 Fh Gwen kha wk vue esen x bwaxaakoons 2

a RE ie sw hee 8G Wh 04d a oe eas one kev ees 2

Be Wee Bh ON on bn ahhh dene ccdevwiscceaheeue 2

Ark. Code Ann. § 7-6-218(b)(3) (1990)............... 26

Haw. Rev. Stat. § 11-216 (1985 & Supp. 1992) 2, 3, 7, 14

Haw. Rev. Stat. § 11-216(d) (1985)............... passim

paaw. Rev. Stat. § 12-228 (1965) .... 2... ccc ccc cance 5

paaw. Maw. Stat. © 10-229 (1905) 2... once cccccecas 5

Ill. Comp. Stat. Ann. Ch. 10, § 5/9-21 (1993)........ 26

Iowa Code Ann. § 56.11.2 (1993).................... 26

Kan. Stat. Ann. § 25-4161 (Supp. 1992).............. 26

Vill

TABLE OF AUTHORITIES —- Continued

Page

La. Stat. Ann. § 15118 (Supp. 1993)..............0.: 26

Mo. Stat. Ann. (Vernon) Tit. IX, Ch. 130, § 130.066

SEE Lis'ae Pid eed Bad hE ewe A aOR ae a ee Ke 26

N.D. Cent. Code Tit. 16.1, § 16.1-09-06 (1992) ....... 26

R.I. Gen. L. Ann. § 17-25-5(a)(7) (1992).............. 26

S.C. Code Ann. § 8-13-320(c) (1991) ..............0.. 26

Tenn. Code Ann. § 2-11-202(5) (1992) ............... 26

REGULATIONS:

oe! Re Bee Es. | er rere erry rey 9, 26

sew ere. RL. eee ery ere 9, 26

SS CRE. © i ke i ee 9, 26

In The

Supreme Court of the United States

October Term, 1994

JAMES C.F. WANG, Chairman, Campaign Spending

Commission, State of Hawaii, et al.,

Petitioners,

IAN LIND,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners James C.F. Wang, individually and in his

official capacity as Chairman of the Campaign Spending

Commission, State of Hawaii, et al., pray that a writ of

certiorari issue to review the opinion and judgment of the

United States Court of Appeals for the Ninth Circuit

entered in this proceeding on July 22, 1994.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit, entered July 22, 1994, is reported at 30

F.3d 1115 (9th Cir. 1994), and is reprinted in Appendix

(“App.”) “A,” infra. The order of the Court of Appeals,

filed August 17, 1994, denying Petitioners’ petition for

rehearing, is unreported and is reprinted in App. “E.”

The order of the District Court from which appeal was

taken is reported at 859 F. Supp. 1317 (D. Haw. 1993), and

is printed in App. “B.” The final judgment of the District

Court is unreported and printed at App. “C.”

aaanen ¢

JURISDICTION

The opinion and judgment of the United States Court

of Appeals for the Ninth Circuit was entered July 22,

1994, see Pet. App. 1, and a timely petition for rehearing

and suggestion of the appropriateness of rehearing en

banc was filed on August 5, 1994. The petition for rehear-

ing was denied, and the suggestion for rehearing en banc

was rejected, on August 17, 1994, see Pet. App. “E,” and

the time in which this Petition may be filed extends to

and includes November 15, 1994. This Petition is timely.

The jurisdiction of this Court is invoked here under 28

U.S.C. § 1254(1). Jurisdiction in the District Court was

alleged to have been conferred by 28 U.S.C. §§ 1331 and

1343(a)(3,. Jurisdiction to review the judgment of the

District Court lay in the Ninth Circuit under 28 U.S.C.

§ 1291.

STATUTORY PROVISIONS INVOLVED

Haw. Rev. Stat. § 11-216 (1985 & Supp. 1992) provides

that:

§ 11-216 Complaints, investigation, and notice.

(a) Complaints of violations of this subpart

against any person shall be filed with the com-

mission. The complaint shall be in writing and

shall be signed under oath by the complainant.

Complaints initiated by the commission shall be

in writing and signed by the commission.

(b) The commission shall give notice of receipt

of the complaint together with a copy of the

complaint to the person cited and shall afford

the person an opportunity to explain or other-

wise respond to the complainant. The commis-

sion may also cause an investigation to be made

of the complaint.

cited, if the person elects to respond to the com-

plaint, and upon completion of any investiga-

tion, the commission shall make a prompt

determination as to whether probable cause

exists that a violation has been committed.

(1) Any person who appears before the

commission shall have all of the rights,

privileges, and responsibilities of a witness

appearing before the courts of this State. All

witnesses summoned before the commis-

sion shall receive reimbursements as paid in

like circumstances in the courts of this State.

Any person whose name is mentioned dur-

ing a proceeding of the commission and

who may be adversely affected thereby, may

appear personally before the commission on

the person’s own behalf or file a written

statement for incorporation into the record

of the proceedings.

(2) The commission shall cause a record to

be made of all proceedings pursuant to this

subsection. At the conclusion of proceed-

ings concerning an alleged violation, the

commission shall immediately begin delib-

erations on the evidence and then proceed

to determine by majority vote of the mem-

bers whether probable cause exists that a

violation has been committed.

(d) Until a determination of probable cause is

made by the commission, all proceedings,

including the filing of the complaint, investiga-

tion, and hearing shall be confidential unless the

person complained of requests an open hearing.

In the event the commission determines that

probable cause does not exist, the complaint

shall be dismissed and the entire record of the

proceedings shall be kept confidential at the

option of the person complained of.

(e) The commission shall give written notice to

the person complained of and to the complain-

ant as to whether probable cause of a violation

exists or whether the complaint has been dis-

missed.

(f) In the event a determination is made that

probable cause of a wilful violation exists, the

commission shall promptly advise the lieutenant

governor of its findings and also the applicable

clerk of the state legislature in the case of a state

office, or the clerk of the respective county legis-

lative body in the case of a county office. In the

event a determination is made that probable

cause of an unintentional violation exists, the

commission shall issue an order that may

require the violator to:

(1) Temporarily cease and desist violation

of this subpart; or

(2) File any report, statement, or other

information as required by this subpart.

(g) The Commission may only initiate prosecu-

tion as provided in section 11-229 when it finds

that probable cause of a wilful violation exists.

Sections 11-228 and 11-229, Haw. Rev. Stat.

(1985), state:

11-228 Penalties; relief. (a) Any person violat-

ing any provision of this subpart other than in

section 11-193(b)(1), shall be punishable in the

manner prescribed as follows:

(1) If a natural person, the person shall be

guilty of a petty misdemeanor and shall be

subject to the penalties specified therefor; or

(2) If a corporation, organization, associa-

tion, or labor union, it shall be punished by

a fine not exceeding $1,000; and

(3) Whenever a corporation, organization,

association, or labor union violates this sub-

part, the violation shall be deemed to be

also that of the individual directors, officers,

or agents of the corporation, organization,

association, or labor union, who have know-

ingly authorized, ordered, or done any of

the acts constituting the violation.

(b) Any person may sue for injunctive relief to

compel compliance with this subpart.

construed to prohibit prosecution under any

appropriate provision of the Hawaii Penal Code,

including, but not limited to, sections 708-852

and 708-853 (forgery); section 708-855 (criminal

simulation); section 708-856 (obtaining signature

by deception); section 708-872 (falsifying busi-

ness records); and section 708-874 (misapplica-

tion of entrusted property).

11-229 Prosecution. (a) For purposes of viola-

tion of this subpart, the offices of the attorney

general and the prosecuting attorney of the

respective counties shall be deemed to have con-

current jurisdiction to be exercised as follows:

(1) Prosecution shall commence with a

written request from the commission or

upon the issuance of an order of the court;

(2) In the case of state offices, parties, or

issues, the attorney general or the prosecut-

ing attorney for the city and county of Hon-

olulu shall prosecute any violation; and

(3) In the case of all other offices, parties,

or issues, the attorney general or the pros-

ecuting attorney for the respective county

shall prosecute any violation.

In the commission’s choice of prosecuting

agency, it shall be guided by whether there will

be any conflicting interest between the agency

and the appointive authority.

(b) The court shall give priority to the expe-

ditious processing of suits under this section.

of this subpart shall not be commenced after

two years have elapsed from the date of the

violation or date of filing of the report covering

the period in which the violation occurred.

STATEMENT OF THE CASE

In Landmark Communications, Inc. v. Virginia, 435 U.S.

829 (1978), which involved a prohibition on “third-party”

disclosure of information obtained concerning judicial

misconduct proceedings, this Court expressly reserved

the question whether the First Amendment prohibits the

application of statutory confidentiality provisions to

“Commission members and staff employees, and wit-

nesses or putative witnesses not officers or employees of

the Commission” or other “participants” who initiate

proceedings within wholly state-created administrative

fora. Id. at 837 & n.10.

The validity of such application - if a State did not

seek to whitewash the facts of which a witness had

knowledge - was suggested in Butterworth v. Smith, 494

U.S. 624 (1990), and, more generally, in Cohen v. Cowles

Media Co., 501 U.S. 663 (1991). But, the federal District

Court in Hawaii, and the Ninth Circuit, summarily invali-

dated the confidentiality provisions (§ 11-216(d)) of

Hawaii’s campaign spending law - provisions that, in

material respect, track those of the Federal Election Cam-

paign Act, 2 U.S.C. §§ 4372(a)(4)(B)(i), 437¢(a)(12) (1992),

and of a host of other State laws, see infra, p. 26 — as

applied to a “charging party,” who sought to publicize

the fact of his initiation of Commission proceedings

before any determination of probable cause had been

made. The District Court, and the Ninth Circuit, then

went on to enjoin § 11-216(d)’s enforcement against any-

one on the basis of the “facial overbreadth” doctrine.

The courts below applied this “strong medicine”

despite numerous text-based and specific reasons why

the statute did not apply to “third parties,” did not signif-

icantly limit speech in the post-cause-determination

phase, and plainly did not limit the discussion of facts

that might be presented to the Commission. Rejecting

even a request to have questions certified to the Supreme

Court of Hawaii under its Appellate Rule 13, so that that

Court’s authoritative construction of § 11-216(d) might be

had so as to moot or reshape the important underlying

constitutional issues, the Ninth Circuit accepted (at least

in lip service) many of the limiting constructions, and

found the statutory language “fairly subject” to other

suggested limits, but facially nullified the law anyway on

the basis of its own view of the Act’s “broad purposes.”

Whether this Court will permit to stand the summary

nullification of one of the critical components of Hawaii's

election law, which, until the decision of the District

Court, had stood on the books for more than a dozen

years, is the principal question presented by this case.

1. Like their federal counterparts, Hawaii's cam-

paign laws create elaborate requirements for document-

ing and reporting campaign contributions and

expenditures, set contribution limits, and define, in strict

terms, the conditions upon which public funds may be

obtained to support campaign activities. See, e.g., Haw.

Rev. Stat. §§ 11-195, 11-199, 11-201, 11-204, 11-209. All of

these regulations operate “in an area of the most funda-

mental First Amendment activities,” Buckley v. Valeo, 424

U.S. 1, 14, 28 (1976) (per curiam). Mindful of the effects

that campaign finance regulation can have in stultifying

free and robust debate in the political arena, and partic-

ularly concerned that the State’s regulatory machinery

could be abused by strategic litigation in the closing days

of a campaign, Hawaii, like the United States, enacted

confidentiality provisions which govern proceedings

before the body charged with enforcing the spending and

contribution laws. Haw. Rev. Stat. § 11-216(d), which was

modeled after 2 U.S.C. § 437g(a)(4) & (12) (West Supp.

1993), and 11 C.FR. §§ 111.20(a), 111.21(a), 111.21(c)

(1993), provides for confidentiality to respondents as fol-

lows:

Until a determination of probable cause is made

by the commission, all proceedings, including

the filing of the complaint, investigation, and

hearing shall be confidential unless the person

complained of requests an open hearing. In the

event the commission determines that probable

cause does not exist, the complaint shall be dis-

missed and the entire record of the proceedings

shall be kept confidential at the option of the

person complained of.

Haw. Rev. Stat. § 11-216(d). The statute thus creates two

distinct sets of limitations: limitations on “pre-cause find-

ing” disclosure, and limitations on “post-cause finding”

disclosure.

a. As in the case of grand jury proceedings, the

confidentiality provisions § 11-216(d) Operate most

broadly before a determination of probable cause is

made. Significantly, as the courts below agreed,

§ 11-216(d) makes no attempt to limit disclosure of the

underlying facts of which a petitioner may complain

about to the Commission, or of which a witness may

know before participating in Commission proceedings.

Pet. App. 8a; cf. Butterworth, 494 U.S. at 635-36 (Florida’s

“whitewash” law). The only “facts” which complainants

and witnesses may even arguably be barred from disclos-

ing are those which come into their possession solely as a

result of the State’s creation of the administrative enforce-

ment scheme. Thus, only “the proceedings” before the

Commission are required to be confidential. As was con-

tended below, it is also clear that the statute has no

impact on third-party non-participants, because once a

disclosure has been made beyond those who may have

participated in “the proceedings,” the facts contained

therein are no longer “confidential,” and further dis-

closure cannot be a violation of the law.

b. So far as they go, however, the confiden-

tiality rules, in the pre-cause-determination stage, serve

numerous compelling purposes, by limiting the associa-

tional confusion that would otherwise obtain in the pub-

lic eye between accusers and the State, by limiting the

incentive to file charges for collateral purposes during the

heat of a campaign, see Oppenheimer Fund, Inc. v. Sanders,

437 U.S. 340, 353 n.17 (1978), by similarly discouraging

meritless complaints, see McDonald v. Smith, 472 U.S. 479,

484 (1985), and by allowing the Commission to focus its

efforts precisely and exclusively on the facts, and to avoid

the need to make clarifying statements responding to the

status, scope, and possible outcomes of pending cases

and investigations. Thus, in addition to lifting burdens

that might fall on protected First Amendment activities,

see FEC v. National Conservative Political Action Committee,

470 U.S. 480, 493-95 (1985), the confidentiality rules vindi-

cate a respondent’s “interest in seeing that a decision

concerning his or her [protected interests] is not made

with excessive haste.” FDIC v. Mallen, 486 U.S. 230, 243

(1988). Indeed, the Hawaii Legislature was particularly

Te MON TT nea

concerned that “due process shall be provided to any-

body complained of,” when it enacted its own campaign

reform laws. 1979 Haw. H.J. 368 (remarks of Rep.

Roehrig) (Clerk’s Record (“CR”) 18). Confidentiality in

the pre-cause stage also promotes settlement, and, for this

reason, wise deployment of the Commission’s limited

enforcement resources. See Heckler v. Chaney, 470 U.S. 821,

831 (1985).

c. In the post-cause-decision stage, the statute

has far less impact. Disclosure is freely permitted when a

finding of probable cause is made, and, if a finding of no

probable cause is made, only “the entire record of the

proceedings” is subject to confidentiality. § 11-216(d).

Read in light of the entire statute, it is clear that the

phrase, “the entire record of the proceedings” does not

include any facts “about the proceedings” or even records

(plural) of the proceedings that may have been made by

private parties either as the proceedings went along, or as

extra copies of filed documents were served. For exam-

ple, the Commission, under subsection 11-216(c)(2), is

mandated to “cause a record to be made of all proceed-

ings pursuant to this subsection,” and there is no reason

to believe that § 11-216(d) applies to anything other than

that record. This is particularly true in that all “govern-

ment” records in Hawaii are presumptively open to the

public under Haw. Rev. Stat. ch. 92F (Supp. 1992), and the

confidentiality mandates of the second sentence of

§ 11-216(d) are necessary to prevent an automatic duty to

force disclosure of all Commission documents. Finally,

although Commission discretion to find “probable cause”

or its lack is broad, Hawaii has long-recognized judicial

remedies to compel the Commission to make a “cause”

finding where there has been a showing that the Commis-

sion “acted fraudulently, maliciously, arbitrarily and

capriciously.” Marshall Construction Co. Ltd. v. Bigelow, 29

Haw. 48, 59 (1926). See also Hoopii v. Sinclair, 40 Haw. 452,

458-59 (1954); Horner v. Criminal Injuries Compensation

Comm'n, 54 Haw. 294, 506 P.2d 444 (1985). These remedies

provide significant assurance that any speech in support

of rejected charges is unmeritorious, and “ ‘is not immu-

nized by the First Amendment right to petition.’ ”

McDonald v. Smith, 472 U.S. 479, 484 (1985) (quoting Bill

Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743

(1983)); see also Tennessee v. Elliott, 478 U.S. 788 (1986) (on

preclusion).

2. In 1992, after he filed a complaint with the

Hawaii Campaign Spending Commission alleging illegal

campaign contributions by the University of Hawaii Pro-

fessional Assembly, Respondent Ian Lind published the

fact that this complaint had been so filed in the “Hawaii

Monitor,” a non-partisan newsletter. See Pet. App. 3a. At

the time of this publication, the Commission had not

made a finding of probable cause. The union, before the

Commission, invoked Haw. Rev. Stat. § 11-216(d), and the

Commission viewed the objection as “a complaint against

Lind for violation of section 11-216(d).” Pet. App. 3a.

Lind then sued, and the United States District Court,

which initially ruled that the decision in Landmark Com-

munications, Inc. v. Virginia, 435 U.S. 829 (1978), “indicated

a willingness to uphold a statute aimed at those who

actually participate in the inquiry,” Pet. App. 78a,!

! In this initial order, the District Court rejected a stipula-

tion that had been prepared under the auspices of a former

Aamefinteem sere

Si ke lie

ultimately nullified § 11-216(d) both as applied and on its

face, in a lengthy decision. Lind v. Grimmer, 859 F. Supp.

1317 (D. Haw. 1993), Pet. App. 19a-73a. The District Court

rejected Defendants’ claim that “the reasoning of Cohen v.

Cowles Media Company, 111 S. Ct. 2513 (1991), controls this

case,” Pet. App. 47a, reasoning that “Plaintiff in no way

has entered into a contractual relation with the Campaign

Spending Commission,” and “the Cowles Court did not

apply the compelling interest test,” as a review of the

precedents on confidentiality provisions in state ethics

and judicial discipline cases suggested to the Court

“should be applied to this case.” Id. at 48a. The Court also

rejected the reasoning of District Judge Jose Cabranes’

extensive opinion in Kamasinski v. Judicial Review Council,

797 F. Supp. 1083 (D. Conn. 1992), which relied on Justice

Scalia’s concurrence in Butterworth v. Smith, 494 U.S. 624

(1990), which clarifies that Butterworth holds only that a

State may not prohibit a witness who testifies before a

confidential proceeding (i.e., a Grand Jury), from

“makl[ing] a truthful statement of information he

acquired on his own.” Id. at 636. See Pet. App. 43a-45a.

Attorney General, in which the parties stipulated to dismiss the

lawsuit with prejudice if the District Court would indepen-

dently find the statute unconstitutional. The District Court

refused to approve the stipulation, being “reluctant to overturn

an enactment of the Hawaii Legislature without careful consid-

eration and solid caselaw in support of its decision.” Pet. App.

80a. The parties then vacated all previous stipulations, the

Defendants answered, and all parties submitted cross-motions

for summary judgment. See Pet. App. 4a, 19a-20a. In light of this

vacatur, both the District Court and the Court of Appeals

treated the case fully as if the earlier stipulations had never been

made.

The District Court never addressed Judge Cabranes’ rea-

soning, or that of the Third Circuit in First Amendment

Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467

(3d Cir. 1986) (en banc), on which Judge Cabranes had

also relied, and which had flatly held that a confiden-

tiality rule “may be enforced insofar as it would prevent a

person, whether a Board member, employee, or counsel,

from disclosing proceedings taking place before the

Board,” and may even validly apply “to witnesses with

the exception of their own testimony.” Id. at 479. Apply-

ing the position of the Fourth Circuit in Baugh v. Judicial

Inquiry and Review Commission, 907 F.2d 440 (4th Cir.

1990), the District Court held that § 11-216(d) was a

“content-based” limitation on speech, and was subject to

“strict scrutiny.” Pet. App. 38a, 48a. The District Court

found none of the State’s proffered interests “compel-

ling,” asserting that the State had no interest in control-

ling “information of the State’s own creation” (id. at

60a-62a). The Court rejected any analogy to Grand Jury

Proceedings (id. at 63a), and found that the statute,

despite the Attorney General’s protestations, not only

applied to third-party, non-participants, but also required

total confidentiality of all facts concerning Commission

proceedings if the Commission issued a “no cause” find-

ing (id. at 64a-66a). On this basis, the Court found

§ 11-216 unconstitutionally over broad, refusing to give

the statute any limiting construction or certify questions

to the state Supreme Court. Id. at 48a-50a, 66a-71a. The

Court enjoined all enforcement of the law.

3. The Ninth Circuit, in an opinion by Judge Canby,

and joined by Judges D.W. Nelson and Schroeder,

affirmed in all respects. 30 F.3d 1115 (9th Cir. 1994), Pet.

App. la-18a. The panel rejected Defendants’ Cowles argu-

ment, holding “[t]he fact that a complaint has been filed

is in no meaningful sense information acquired only by

virtue of the government's assistance or intervention.”

Pet. App. 7a. The Ninth Circuit, like the court below it,

found the burden-lifting provisions of the statute to be

“antithetical” to First Amendment values, and “insuffi-

cient to justify restrictions on Lind’s speech.” Pet. App.

8a. The Court found that there was no “imprimatur of

official suspicion” attending the pendency of a complaint

before the Commission,” Pet. App. 9a, and held that

everyone who contributes to a campaign is a “public

figure,” and “must be prepared to endure a heightened

level of criticism - including charges of campaign spend-

ing improprieties - precisely in order to promote First

Amendment values.” Id. at 10a. The Court said that

Hawaii's interest in discouraging unmeritorious com-

plaints could be remedied by “hiring more staff,” id. at

12a, and discounted Hawaii's desire to avoid the influ-

ence of public pressure on the “probable cause” deter-

mination. Id. The Court thus found that the law was

invalidly applied to an individual who discloses “the fact

that he filed a complaint” before the Commission could

act. Id.

4. The Ninth Circuit then proceeded to invalidate

§ 11-216(d) on its face under the overbreadth doctrine.

The Court rejected pleas for abstention or certification of

questions to the Supreme Court of Hawaii, holding that a

“complete rewrite” was necessary to save § 11-216(d)

from facial invalidity. Pet. App. 14a. Like the District

Court, the Ninth Circuit conjectured that the Commission

and the state courts, in the absence of any precedent so

indicating, would reject the Attorney General’s submis-

sion that the language of the statute does not encompass

third-party disclosures because such disclosures, by defi-

nition, are of “non-confidential” information. Pet. App.

16a-17a. The Court also rejected “a narrowing construc-

tion restricting application of the post-probable cause

confidentiality provision to release of the official record.”

Id. at 17a n.8. The Court found the statutory language “to

be ‘fairly subject’ to the construction the State urges,” id.,

but then rejected that view because the “context of the

entire statute” was somehow to the contrary, and a nar-

rowing construction “makes little sense.” Id. Ultimately,

despite the Defendants’ efforts to limit the statute to pre-

decisional disclosures by “participants to the inquiry,”

the Ninth Circuit held that “[t]he State has failed even to

offer examples of plainly constitutional applications of

the section,” id. at 18a, and struck the law down in foto.

5. Ina petition for rehearing, Defendants urged the

Court to reconsider its decision in light of the intervening

ruling of this Court in Turner Broadcasting System v. FCC,

114 S. Ct. 2445 (1994). That effort was denied. Pet. App.

82a.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s decision carves away Govern-

ment’s discretion in an area of state-created litigation that

is fraught with constitutional difficulty: campaign spend-

ing. Totally ignoring any interest Hawaii might have in

protecting, from burdens that the State itself created in

enacting campaign spending regulations, “those of

Neri a eee Well anid

modest means” who have “pool[ed] their resources to

amplify their voices,” FEC v. National Conservative Political

Action Committee, 470 U.S. 480, 493-95 (1985), the Ninth

Circuit branded as unconstitutional “content discrimina-

tion” not only the sort of routine condition on state-

authorized litigation that this Court has expressly

upheld, Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984),

but the sort of limitation on intrusive state action whose

acceptance should have been “beyond debate.” DeBartolo

Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575

(1988). Deeming all political contributors “public fig-

ures,” and essentially manufacturing, in defiance of all

precepts of comity and judicial restraint, a broad range of

uncontemplated, uninvoked, and strained applications of

§ 11-216(d) in order to force a “complete rewrite” of a

quite sensible and limited confidentiality provision, the

Ninth Circuit’s ruling not only turns the First Amend-

ment upside down, but reflects a disturbing result-driven

desire to prescribe the “manifestly strong medicine” (see

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)) of facial

nullification for “overbreadth.”

This Court’s grant of a review in McIntyre v. Ohio

Elections Commission, No. 93-986 (U.S. argued Oct. 12,

1994), shows in itself why the decision below should not

be permitted to stand, and one appropriate course would

be to hold this case pending a decision in McIntyre, where

Ohio’s failure to accord confidentiality to participants in

the political process has drawn a substantial constitu-

tional challenge. If, as seems likely, this Court grants

relief against the Ohio statute, the Court may wish to

grant the petition, vacate the Ninth Circuit’s judgment,

and remand for further consideration in light of that

ruling.

Even if McIntyre did not present the opportunity to

guide the Ninth Circuit to a more appropriate resolution

of this case, the judgment below should not be permitted

to stand. That judgment sharply conflicts with the deci-

sions of this Court, exacerbates a division in the courts of

appeals over the constitutionality of confidentiality rules

such as those at stake here, and at a minimum raises

issues of nationwide importance, threatening not only the

validity of the Federal Election Campaign Act, but the

laws of at least ten other States that also prescribe confi-

dentiality for ethics or campaign spending commission

cases.

I. Review Should Be Granted to Correct the Ninth

Circuit’s Invalidation, on First Amendment

Grounds, of Confidentiality Provisions that Require

“Charging Parties” and Other “Participants to the

Inquiry” to Await a Determination of Probable

Cause Before Disclosing Information Gained Solely

as a Result of the Government’s Creation of a Forum

For Administrative Litigation of Campaign Spend-

ing Complaints.

As the District Court forthrightly recognized, this

Court, in striking down application of a confidentiality

provision to third-party disclosures in Landmark Commu-

nications, Inc. v. Virginia, 435 U.S. 829 (1978), expressly

reserved issues concerning “a State’s power to keep the

Commission’s proceedings confidential or to punish par-

ticipants for breach of this mandate.” Id. at 837. Of all the

potential claimants who could have attacked § 11-216(d),

Respondent accordingly stood in the weakest of all possi-

ble positions. Not only was he a “participant” to the

inquiry, he was its main proponent. Moreover, Mr. Lind

avowedly disclosed facts that “he acquire[d] not ‘on his

own,’ “ but only by virtue of the government’s creation of

the forum. Butterworth v. Smith, 494 US. 624, 636 (1990)

(Scalia, J., concurring). The wisdom of the distinction

drawn by Justice Scalia in his Butterworth concurrence

cannot be gainsaid. Had Hawaii sought to whitewash

“facts” of which Mr. Lind “knew before he entered” the

Campaign Spending Commission, Hawaii's law properly

would be deemed invalid on First Amendment grounds.

Id. As both the Ninth Circuit and the District Court

recognized, however, Hawaii's law does not operate in

that way. Rather, particularly at the pre-cause-determina-

tion stage, it prevents Mr. Lind only from appropriating

information that came into existence “only by virtue of

the government’s assistance or intervention.” See Snepp v.

United States, 444 U.S. 507 (1980).

It was for this reason, of course, that Petitioners

relied in the courts below on this Court’s decision in

Cohen v. Cowles Media Co., 501 U.S. 663 (1991), as offering

a helpful analogy to the instant situation. Both the Ninth

Circuit, and the District Court, made much of the fact that

Mr. Lind did not sign any contract agreeing to confiden-

tiality. But neither did the Minneapolis Star & Tribune,

yet Minnesota law, without regard to party or ideology,

could nonetheless, consistent with the First Amendment,

estop the newspaper from breaching an implied promise

to honor the understanding of its source. Indeed, in every

meaningful sense, Hawaii has structured litigation before

the Campaign Spending Commission as a place of “lim-

ited discourse,” Cornelius v. NAACP Legal Defense and

Educational Fund, 473 U.S. 788, 802 (1985), and Mr. Lind

was bound to honor those limits. See also Waimea Falls

Park, Inc. v. Brown, 6 Haw. App. 83, 98, 712 P.2d 1136, 1146

(1985) (Hawaii law of estoppel). As this Court ruled in

Seattle Times Co. v. Rhinehart, 467 U.S. 29 (1984), the pro-

cesses for obtaining discovery “are a matter of legislative

grace,” and “[t]he prevention of the abuse that can attend

the coerced production of information under a State’s

discovery rule is sufficient justification for the authoriza-

tion of protective orders.” Id. at 32, 35-36. Here, too, Mr.

Lind’s ability to litigate before the Commission was

entirely “a matter of legislative grace.” Mr. Lind did not

have the right to appropriate the Commission’s name, in

violation of the statutory conditions on his suit. See New

York Times Co. v. United States, 403 U.S. 713, 728-30 (1971)

(Stewart, J., concurring); id. at 733 (White, J., concurring);

id. at 741-43 (Marshall, J., concurring). The Ninth Circuit's

ipse dixit - that Mr. Lind “in no meaningful sense” dis-

closed “information acquired only by virtue of the gov-

ernment’s assistance or intervention” (Pet. App. 7a n.2) -

“fundamentally misconstrue[s] the facts of this case,”

NCAA v. Tarkanian, 488 U.S. 179, 192 (1988), and should

not bar review.

Indeed, even on the panel’s own terms, this case

could not be one of impermissible “content discrimina-

tion.” Recently, in Turner Broadcasting System, Inc. v. FCC,

114 S. Ct. 2445 (1994), the Court clarified that the pejora-

‘ cannot apply when-

” “over another,”

tive label, “content discrimination,’

ever the law favors “one set of speakers

unless the law “reflects the Government's preference for

St ae Wh NS A Da cee acta

the substance of what the favored speakers have to say (or

aversion to what the disfavored speakers have to say).”

Id. at 2467 (emphasis added). Here, however, the confi-

dentiality requirement affects not only “charging par-

ties,” but Commission members and staff, as well as

witnesses, whatever side of the controversy they might

be on. The law is neutral as to both inculpatory and

exculpatory information, and therefore does not reflect “a

content preference.” Id. Indeed, given the limits on post-

decision confidentiality, Hawaii’s law is nothing more

than a classic “time, place, and manner” regulation that

need only serve a substantial government interest in a

narrowly tailored way. See Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989).

Hawaii’s law not only meets that standard, but, as

against “charging parties” particularly, would meet

“strict scrutiny” as well. As Judge Cabranes noted in a

related context:

[The Baugh court's analysis of whether a com-

pelling state interest is properly served by confi-

dentiality] is neither controlling nor persuasive,

for it fails to capture the panoply of state inter-

ests at stake. There can be no doubt that, if

given the opportunity, mischievous litigants

would file complaints with a judicial review

commission, criticize the commission for failing

to investigate the complaint aggressively or to

make the threshold finding of probable cause. In

such circumstances, an accused judge and

potential witnesses could fall under a media

spotlight, thus hampering the commission’s

investigation as well as limiting the possibility

of voluntary retirement or other corrective

steps. The ready availability and attractiveness

of this option to irresponsible complainants

would doubtless greatly increase the number of

meritless complaints, thus overburdening the

commission and hindering investigations of

potentially legitimate complaints.

Kamasinski v. Judicial Review Council, 797 F. Supp. 1083,

1095 (D. Conn. 1992). The Ninth Circuit, recognizing the

force of this argument, sought to diminish it on the basis

of the unjustified notion that, in essence, judges somehow

deserve more “privacy” than other “public figures,”

when it comes to “strong evidence of corruption or of

ethical violations.” See Pet. App. lla-12a & n.4.

This cannot be the law. Indeed, Hawaii has not only a

“compelling interest in preserving the integrity of its

election process,” Burson v. Freeman, 112 S. Ct. 1846, 1852

(1992), it has a critical interest in avoiding distortion of

that process through abuse of the State’s regulatory

machinery. Mr. Lind, after all, did not even show in the

District Court that his own petition had probable cause to

back it; thus, there was no showing that his speech

enjoyed Constitutional protection at all. McDonald v.

Smith, 472 U.S. 479, 484 (1985). For all of these reasons,

the Ninth Circuit’s as-applied nullification of Haw. Rev.

Stat. § 11-216(d), is wrong, and a writ should issue.

II. Review Should Be Granted to Correct the Ninth

Circuit’s Disregard of Settled Principles of Comity

And Restraint, Which the Court of Appeals Ignored

in Summarily Nullifying Haw. Rev. Stat. § 11-216(d)

as Facially and Unconstitutionally Overbroad.

This Court has repeatedly admonished that “applica-

tion of the overbreadth doctrine is, ‘manifestly strong

icine iii

medicine.’ ” Airport Comm'rs v. Jews for Jesus, 482 U.S. 569,

574 (1987). )

The Ninth Circuit’s judgment fails to heed this set-

tled precept, on numerous different fronts. First, for the

reasons stated in Part I, the Ninth Circuit failed to recog-

‘a whole range of easily identifiable and constitu-

4é

nize

tionally . . . proscribable . . - conduct’” to which

§ 11-216(d) may be applied. Secretary of State v. ].H. Mun-

son Co., 467 U.S. 947, 965 (1984). Mr. Lind’s case, and

those of all pre-decisional disclosures, undoubtedly are

situations where § 11-216(d) is validly applied. Review of

the Ninth Circuit's “as-applied” ruling will demonstrate

that the facial nullification also was plainly wrong, and

should be reversed by this Court.

More importantly, the Ninth Circuit disregarded set-

tled rules of construction, which this Court has consis-

tently employed to save Statutes from federal

nullification. Indeed, the Ninth Circuit’s “broad reading”

of the prohibitory effect of § 11-216(d) “ran afoul of the

well-established Principle that statutes will be interpreted

to avoid constitutional difficulty,” and amounts to “plain

error.” Frisby v. Schultz, 487 U.S. 474, 483 (1988). The

Ninth Circuit's mandatory duty was to “presume any

narrowing construction or practice to which the law is

‘fairly susceptible.’ ” Lakewood v. Plain Dealer Publishing

Co., 486 U.S. 750, 770 n1 (1988). Certainly the Ninth

Circuit’s diaphanous appeal to the statute’s “purpose”

failed to heed this admonition. Hawaii law, by reasonable

construction of the terms “confidential” and “entire

record,” eliminates the two central “overbreadth” prob-

lems identified by the Ninth Circuit, i.e., third-party dis-

closures, and _post-decisional confidentiality. The Ninth

Circuit’s decision provides no good rationale for avoiding

those constructions itself, or for avoiding a certified ques-

tion proceeding pursuant to Haw. R. App. P. 13. See

Virginia v. American Booksellers, Inc., 484 U.S. 383, 395-96

(1988). Certiorari should be granted to reaffirm this

Court’s commitment to precepts of comity and restraint.

The judgment below dangerously overprescribes the

“strong medicine” of facial nullification, and this Court’s

resources are necessary to correct such cavalier interven-

tion.

III. Review Should Be Granted to Settle the Deep and

Continuing Conflicts in the Lower Courts Over the

Constitutionality of Confidentiality Provisions

that Bar Disclosure of the Course of Administra-

tive Action; the Issue, which Affects Not Only

Administration of the Federal Election Campaign

Act, but Also the Laws of at Least Ten Other

States, is of National Import.

The Ninth Circuit’s decision purports to dress the

lower courts’ opinions in this area as largely in agree-

ment. See Pet. App. 5a n.1, 12a n.5. But the disagreement

among the lower courts extends much farther than

merely with Judge Cabranes’ opinion in Kamasinski, dis-

cussed supra. In First Amendment Coalition v. Judicial

Inquiry & Review Board, 794 F.2d 467 (3d Cir. 1986) (en

banc), the en banc Third Circuit expressly held that even

involuntary witnesses, who “did not seek to avail them-

selves of the Board’s processes,” id. at 478, could be

prevented “from disclosing proceedings before the

board,” including the substance of testimony “of another

witness whom they may hear testify,” or “the comments

;

of Board members or staff that are overheard during their

appearance.” Id. at 479. This rule of decision, the Court

held, applied a fortiori to those who “availfed] them-

selves of the Board’s processes,” finding mandatory con-

fidentiality in that context wholly supported, even absent

“compelling state interests,” by Seattle Times Co. v. Rhine-

hart, 467 U.S. 20 (1984). See 784 F.2d at 478. Similarly, as

the New York Court of Appeals wrote in Johnson News-

paper Corp. v. Melino, 77 N.Y.2d 1, 564 N.E.2d 1046, 563

N.Y.S.2d 380 (1990), “there is no suggestion that profes-

sional disciplinary hearings have any tradition of being

open to the public and no showing that the public access

plays ‘a significant positive role’ in the functioning of the

Proceedings,” and hence “there is no First Amendment

right of access.” 77 N.Y.2d at 9, 564 N.E.2d at 1049. Both

the Ninth Circuit and the District Court relied heavily on

Baugh v. Judicial Inquiry and Review Comm'n, 907 F.2d 440

(4th Cir. 1990), which held that any time a State effects a

“direct ban on speech concerning [a] single topic,” such a

ban “can only be justified by the content of the speech.”

Id. at 444. Although this analysis is both wrong and inapt

to the Hawaii case, the reliance of the Ninth Circuit, the

Nation’s largest, on Baugh demonstrates a compelling

need for this Court to step in and provide guidance to the

lower federal courts.

Resolution of the issues Presented is also warranted

by the truly national Significance of this case. Hawaii's

confidentiality provision is very similar, Particularly as

we construe it, to federal statutes and regulations which

prohibit publication of any “complaint filed with the

Commission,” “any notification [of complaint] sent by the

Commission [to a respondent,] any investigation con-

ducted by the Commission, [and] any findings made by

the Commission,” unless the Commission “makes a find-

ing of no reason to believe or otherwise terminates its

proceedings,” except insofar as may be necessary to “the

introduction of evidence in the Courts of the United

States which could properly be introduced pursuant to

the Federal Rules of Evidence or Federal Rules of Civil

Procedure.” 11 C.F.R. §§ 111.20(a), 111.21(a), 111.21(c)

(1993) (construing 2 U.S.C. § 437g(a)(4) & (12) (West

Supp. 1993)). The judgment below also calls into doubt

the campaign finance or ethics laws of Arkansas (Ark.

Code Ann. § 7-6-218(b)(3) (1990)), Illinois (Ill. Comp. Stat.

Ann. Ch. 10, § 5/9-21 (1993)), Iowa (lowa Code Ann.

§ 56.11.2 (1993)), Kansas (Kan. Stat. Ann. 25-4161 (Supp.

1992)), Louisiana (La. Stat. Ann. § 1511.8 (Supp. 1993)),

Missouri (Mo. Stat. Ann. (Vernon) Tit. IX, Ch. 130,

§ 130.066 (1992)), North Dakota (N.D. Cent. Code Tit.

16.1, § 16.1-09-06 (1992)), Rhode Island (R.I. Gen. L. Ann.

§ 17-25-5(a)(7) (1992)), South Carolina (S.C. Code Ann.

§ 8-13-320(0) (1991)), and Tennessee (Tenn. Code Ann.

§ 2-11-202(5) (1992)). Given the broad array of statutes

threatened by the Ninth Circuit’s decision in this case, the

factors warranting this Court’s exercise of the power of

review are compellingly present. Certiorari should issue.

ne ee ne ee ee

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for certiorari. The Court may wish to hold this

Petition pending a decision in McIntyre v. Ohio Elections

Commission, No. 93-986 (U.S. argued Oct. 12, 1994) but in

any event the Court should grant the petition for cer-

tiorari.

Dated: Honolulu. Hawaii, November 15, 1994.

Rosert A. Marks

Attorney General

State of Hawaii

STEVEN S. MICHAELS*

Deputy Attorney General

State of Hawaii

*Counsel of Record

Department of the

Attorney General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1360

Counsel for Petitioners

James C.F. Wang, Chairman,

Campaign Spending

Commission, State of Hawaii,

et al.

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IAN Y. LIND,

Plaintiff-Appellee,

)

G G. G L K. R

sARY G. GRIMMER; LINDA K. Rose- ;

Hitt; James C.F. Wanc; Roserrt Y. . No. 93-16021

Watapa, Individually, and in their ) D.C. No.

capacities as Commissioners of the ) CV-92-00415-ACK

Campaign Spending Commission, ;

State of Hawaii: and Jack MK. aesiaaii

Gonzates, Individually, and in his )

capacity as the Executive Director )

of the Campaign Spending )

Commission, State of Hawaii, )

Defendants-Appellants. )

)

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted

April 12, 1994 - San Francisco, California

(Filed July 22, 1994)

Before: Mary M. Schroeder, Dorothy W. Nelson and

William C. Canby, Jr., Circuit Judges.

OPINION

CANBY, CIRCUIT JUDGE:

Hawaii Rev. Stat. § 11-216(d) prohibits disclosure of

information concerning investigations undertaken by

Hawaii's Campaign Spending Commission. The State of

Hawaii appeals the district court's grant of summary

judgment, which enjoined enforcement of the statute on

the ground that it violates the First Amendment of the

United States Constitution, both as applied to appellee

Lind and on its face. We affirm.

I. BACKGROUND

When a complaint is filed with Hawaii’s Campaign

Spending Commission, the Commission is required to

determine whether there is probable cause that a cam-

paign spending violation occurred, and if so, whether

that violation was unintentional or willful. Haw. Rev.

Stat. § 11-216. If the Commission finds probable cause

that a willful violation occurred, it must advise the lieu-

tenant governor, and it may initiate a prosecution. Haw.

Rev. Stat. § 11-216(f)-(g). If it finds probable cause that an

unintentional violation occurred, it must order the cited

party to remedy that violation. Haw. Rev. Stat. § 11-216(f).

If it finds no probable cause, it need take no further

action. See id.

At issue in this appeal is Haw. Rev. Stat. § 11-216(d),

which requires that all aspects of the Commission’s activ-

ities remain confidential while an investigation is pend-

ing, and that the entire record of an investigation remain

confidential if the Commission determines that there is

No probable cause that a violation occurred:

Until a determination of Probable cause is made

by the commission, all Proceedings, including

the filing of the complaint, investigation, and

hearing shall be confidential unless the person

complained of requests an open hearing. In the

event the commission determines that Probable

Cause does not exist, the complaint shall be dis-

missed and the entire record of the Proceedings

shall be kept confidential] at the option of the

Person complained of. Breach of this provision

is a crime punishable by up to thirty days in jail

and a fine of up to $1,000. Haw. Rey. Stat.

§ 11-228; § 706-663.

Appellee Ian Lind was author, editor, and Publisher

of the “Hawaii Monitor,” an independent non-partisan

newsletter devoted to discussing election campaign

issues. In June of 1992, Lind published in his newsletter

the fact that he had filed a complaint against the Univer-

sity of Hawaii Professional Assembly alleging that the

Assembly failed to disclose certain Campaign contribu-

tions during the 1999 election and that it made excessive

and prohibited contributions in Support of Governor John

D. Waihee’s election. The Assembly responded by asking

the Commission to clarify the applicability of section

11-216(d) to Lind’s complaint. The Commission, in turn,

decided to treat this request as a complaint against Lind

for violation of section 11-216(d). Lind responded by

bringing this action in federal district court seeking a

declaration that section 11-216(d) Violated his rights

under the First Amendment, and an injunction against its

enforcement.

‘a Just fifteen days after Lind’s complaint was filed, the

parties submitted to the district court a stipulation of

settlement, proposing that the court dismiss Lind’s com-

plaint with prejudice and declare that section 11-216(d)

violated the First Amendment and was unenforceable.

The district court, however, refused to do so without

additional briefing. Thereafter, the State changed its posi-

tion and decided to defend the statute. Following cross

motions for summary judgment, the district court held

section 11-216(d) unconstitutional as applied to Lind,

held it unconstitutionaHy overbroad, and permanently

enjoined its enforcement. This appeal followed.

Il. LEVEL OF SCRUTINY

[1] A statute regulating speech is content-neutral

only if the state can justify it without reference either to

the content of the speech it restricts or to the direct effect

of that speech on listeners. Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989). Here, the State asserts a variety

of purposes for section 11-216(d): it serves: (a) to prevent

the Commission’s credibility from being invoked to sup-

port “scandalous charges,” (b) to protect “fledgling politi-

cal groups and candidates [from] the publicity that would

befall them from open proceedings,” (c) to prevent candi-

dates and their supporters from being “unduly tarred by

a vindictive complaint,” (d) to promote settlement of

disputes over violations of spending laws, and (e) to

eliminate distractions and collateral concerns that would

exist if commission proceedings were made public.

Because these concerns all stem from the direct communi-

cative impact of speech, we conclude that section

11-216(d) regulates speech on the basis of its content.!

Moreover, the speech it restricts, speech about political

processes and governmental investigations of wrongdo-

ing by public officials, falls near to the core of the First

Amendment. See New York Times v. Sullivan, 376 U.S. 254,

270-71 (1964). Therefore, the statute is presumptively

unconstitutional. See R.A.V. v. City of St. Paul, 112 S. Ct.

2538, 2542 (1992). It will survive scrutiny only if it is

narrowly drawn andé is necessary to serve a compelling

state interest, Boos v. Barry, 485 U.S. 312, 321 (1988), or if

the speech it regulates otherwise is undeserving of full

protection, see e.g., R.A.V., 112 S. Ct. at 2543 (listing cate-

gories); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)

(devaluing information acquired through civil discovery).

Ill. AS APPLIED TO LIND

It is clear that the speech restricted by section

11-216(d) does not fall into any of the traditional catego-

ries, such as fighting words and obscenity, that are unde-

serving of full First Amendment protection. Nonetheless,

' This conclusion comports with that reached by the major-

ity of courts that have considered comparable statutes. See e.g.,

Butterworth v. Smith, 494 U.S. 624 (1990) (confidentiality of

grand jury testimony); Landmark Communications, Inc. v. Virginia,

435 U.S. 829 (1978) (testimony before judicial review board);

Baugh v. Judicial Inquiry & Review Comm'n, 907 F.2d 440 (4th Cir.

1990) (same); First Amendment Coalition v. Judicial Inquiry &

Review Board, 784 F.2d 467 (3d Cir. 1986) (en banc) (same);

Kamasinski v. Judicial Review Council, 797 F. Supp. 1083 (D.Conn.

1992) (same).

Hawaii contends that the First Amendment does not pro-

tect individuals who divulge the fact that they have filed

a complaint with its Campaign Spending Commission. It

relies on Cohen v. Cowles Media Co., 111 S. Ct. 2513 (1991).

In Cowles, the Supreme Court considered whether the

First Amendment barred a plaintiff from recovering dam-

ages under Minnesota’s promissory estoppel law when a

newspaper breached its promise of confidentiality given

to the plaintiff in exchange for information. The Court

held that the First Amendment did not bar recovery, for

two reasons. First, it noted that promissory estoppel is a

law of general applicability, and its application to the

press posed only an “incidental” and “constitutionally

insignificant” burden on speech. Id. at 2519. Second, the

Court observed that the agreement between Cohen and

the newspaper was in the nature of a contract, and that

any legal obligations and restrictions on publication of

truthful information therefore were “self-imposed.” Id.

The State argues that Lind similarly struck a bargain with

the Commission when he filed a complaint knowing that,

by doing so, he would be subject to section 11-216(d)’s

confidentiality provisions. The State contends that he

therefore imposed section 11-216(d)’s restrictions on him-

self, and like the newspaper in Cowles, cannot now com-

plain that those restrictions violate his First Amendment

rights.

This novel argument is based upon a dramatic mis-

conception of both the import of Cowles and the effect of

section 11-216(d). Section 11-216(d) is not a content-neu-

tral law of general applicability, but one intended to

impose direct and significant restrictions on speech.

Thus, the State is not relieved of its burden (as was the

a nce

plaintiff in Cowles) of demonstrating that the challenged

provisions are necessary to serve a compelling interest.

As we point out below, it has failed to carry that burden.

Furthermore, the restrictions placed on Lind’s speech,

embodied in section 11-216(d), are state-created, and exis-

ted independently of, and prior to, any interaction

between Lind and the Campaign Spending Commission.

Therefore, the interaction between Lind and the Commis-

sion cannot be characterized as a simple bargain in which

Lind obtained use of the Commission’s investigatory

machinery in exchange for his silence. The State may not

condition Lind’s ability to trigger an investigation on the

theory that by filing a complaint he bargained away his

First Amendment rights. Cf. Sherbert v. Verner, 374 US.

398 (1963). Cowles, in short, is irrelevant to the case at

hand.

We conclude that section 11-216(d) regulates fully

protected speech.? Unless it is narrowly tailored and nec-

essary to promote compelling state interests, it cannot

stand.

* We reject the State’s alternative assertion that section

11-216(d) only restricts speech concerning information a

speaker acquires with the assistance or intervention of the gov-

ernment, and that such speech is unprotected by the First

Amendment. The fact that a complaint has been filed is in no

meaningful sense information acquired only by virtue of the

government's assistance or intervention.

[2] According to Hawaii, section 11-216(d) promotes

its interest in “the free functioning of the electoral sys-

tem,” and in “fostering an ‘uninhibited, robust, and wide-

open’ debate out in the political arena.” We have no

doubt that these are compelling interests. We conclude,

however, that prohibiting disclosure that a complaint has

been filed does little to serve these interests, and indeed

in many ways is antithetical to them.

[3] The State is concerned primarily that, without

section 11-216(d), candidates might be discouraged from

entering political races; they are “not paid public ser-

vants, who can be expected to endure the slings and

arrows of criticism in the press and elsewhere.” The State

acknowledges that section 11-216(d) does not prevent

anyone from publicly charging candidates or their sup-

porters with violations of spending regulations, and that

it does not prevent people from publicly airing whatever

evidence they may have to support their allegations. It

contends, however, that disclosure of the fact that a com-

plaint has been filed somehow lends the State’s

imprimatur to such charges, dramatically increasing their

effectiveness. In the State’s words, “At its core, the confi-

dentiality requirement precludes the Commission’s cred-

ibility from being invoked to buttress scandalous charges

in the heat of a campaign.”

[4] These concerns are insufficient to justify restric-

tions on Lind’s speech. The effect that the State fears can

be countered by the truthful assertion that anyone can file

FEM 2 ees he hein ert ih eeat, te)

a complaint with the Commission, for any reason, regard-

less of its merit. Because the State has no influence over

when or whether a complaint is filed, the fact of filing

simply cannot signal the State’s approval of a complain-

ant’s charges.? As Justice Brandeis observed nearly sev-

enty years ago, “If there be time to . . . avert the evil by

the processes of education, the remedy to be applied is

more speech, not enforced silence.” Whitney v. California,

274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

In fact, what the State is attempting to do is exactly

the sort of thing that the First Amendment is designed to

guard against. See Landmark, 435 US. at 845. Hawaii

argues, in effect, that it is justified in restricting political

speech about complaints before the Campaign Spending

Commission in order to promote other political speech.

However, it is not the function of government to promote

speech it deems more valuable and to suppress speech it

deems less valuable. See Whitney, 274 U.S. at 375-376. The

speech that Hawaii seeks to restrict may have a discour-

aging effect on certain candidates and their supporters.

And as the State observes, some of those affected by that

> In this respect, the confidentiality provisions at issue here

differ from secrecy provisions in the grand jury context. Grand

jury investigations are triggered either by the grand jury itself

or by a request from a prosecutor. Consequently, the mere fact of

a grand jury investigation carries with it the imprimatur of

official suspicion.

Another reason to keep secret the existence of a grand jury

investigation is to prevent those being investigated from flee-

ing. Butterworth v. Smith, 494 U.S. 624, 632 (1990). This justifica-

tion is irrelevant here as well, because those being investigated

by the Campaign Spending Commission must be notified when

a complaint is filed. See Haw. Rev. Stat. § 11-216(a)-(c).

10a

speech may not (yet) be paid public servants. But they

surely are public figures, and therefore they must be

prepared to endure a heightened level of criticism -

including charges of campaign spending improprieties —

precisely in order to promote First Amendment values.

See New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).

Candidates’ supporters, by injecting theinselves into pub-

lic debate and attempting financially to influence its out-

come, also must be prepared to suffer what to them may

be unpleasant discussion of their contribution practices.

See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

With regard to the danger that people knowingly

may bring unmeritorious charges of campaign spending

improprieties in order to harass, the State has not shown

that the victim will be without civil tort remedies. See

generally New York Times v. Sullivan, 376 U.S. 254 (1964).

Moreover, even if criminal sanctions were necessary to

discourage vexatious complaints, section 11-216(d) is not

narrowly drawn to achieve that purpose; it also prohibits

disclosure of complaints legitimately and truthfully alleg-

ing serious improprieties.

Secondarily, the State asserts that confidentiality

facilitates the Commission’s work. It predicts that permit-

ting disclosure that a complaint has been filed would

encourage people to lodge unmeritorious complaints,

stimulate public inquiries concerning the status of pend-

ing investigations, and bring public pressure to bear in

attempts to influence the Commission’s investigations, all

of which will overburden and distract the Commission.

iii

sate PS Tahe

lla

The State also contends that disclosure that a complaint

has been filed would remove an important incentive for

cited parties to settle, thereby further increasing the Com-

mission’s work load.

In Landmark, the Supreme Court held unconstitu-

tional a Virginia statute that prevented third parties from

divulging truthful information regarding proceedings

before the state Judicial Inquiry and Review Commission.

Virginia advanced many of the arguments that Hawaii

presses here, claiming that its statute was necessary to

preserve the “orderly administration of justice.” Land-

mark, 435 U.S. at 843. In rejecting Virginia’s position, the

Court noted that, although the state asserted a compel-

ling interest, it had failed to produce a “solidity of evi-

dence” showing that the proscribed speech posed a

sufficiently imminent threat to that interest. Id at 845.

Hawaii similarly has failed to carry that burden here. It

has “offered little more than assertion and conjecture to

Support its claim that without criminal sanctions the

objectives of the statutory scheme would be seriously

undermined.” Id. at 841.

[5] In the event that the Commission becomes over-

burdened with unmeritorious complaints, public

inquiries, or cases that fail to settle,4 it could solve this

* The dynamics of settlement here differ from those in judi-

cial review board inquiries. In that context, if there is strong

evidence of corruption or of ethical violations, a review board’s

primary goal is to remove the offending judge from the bench

rapidly. See First Amendment Coalition v. Judicial Inquiry & Rev.

Bd., 784 F.2d 467, 476 (3d Cir. 1986). Experience has shown that a

particularly effective method to achieve this goal is to provide a

12a

problem without impairing First Amendment rights by

streamlining its investigatory processes or hiring more

staff. See id. at 843 (requiring consideration of less restric-

tive alternatives). As for public pressure’s influencing the

Commission’s decisions, such possibilities rarely justify

abridgment of First Amendment rights. See Landmark, 435

U.S. 829; Nebraska Press Ass'n v. Stuart, 427 U.S. 539

(1976); Wood v. Georgia, 370 U.S. 375 (1962). The vast

majority of deliberative bodies undertake investigations

with full exposure to the public, and with no apparent ill

effects. The State offers no reason to doubt that the situa-

tion would be any different here.

[6] We conclude that to the extent Haw. Rev. Stat.

§ 11-216(d) prevents as individual from disclosing the

fact that he filed a complaint with the Campaign Spend-

ing Commission, it is unconstitutional.°

judge with the ability quietly to retire in exchange for confiden-

tiality concerning the charges brought against him. /d. In con-

trast, the Campaign Spending Commission has as its goal the

cessation of nonwillful spending violations and the prosecution

of willful violations; its goal is not to remove probable violators

from a race. Therefore, the prospect of settlement is valuable

mainly only to decrease the Commission’s work load.

> The majority of courts that have addressed this question

(all in the context of judicial review board of ethics Commission

proceedings) have come to the same conclusion. See First

Amendment Coalition v. Judicial Inquiry & Review Board, 784 F.2d

467 (3d Cir. 1986); Doe v. Florida Judicial Qualifications Comm'n,

748 F. Supp. 1520 (S.D. Fla. 1990); Providence Journal Co. v. New-

ton, 723 F. Supp. 846 (D.R.I. 1989). But see, Kamasinski v. Judicial

Review Council, 797 F. Supp. 1083 (D. Conn. 1992).

erin

13a

IV. OVERBREADTH

In addition to holding section 11-216(d) invalid as

applied to Lind, the district court found the section

unconstitutionally overbroad, and enjoined its enforce-

ment in all circumstances. As a preliminary matter, the

State argues that the district court erred in reaching this

issue for a variety of reasons, none of which we find

meritorious.

First, Hawaii insists that the district court’s over-

breadth determination must be reversed because the

court granted summary judgment on the issue sua

sponte, depriving the State of the notice required by Fed.

R. Civ. Proc. 56. We need not decide whether the district

court erred in this regard. Whether a statute is facially

unconstitutional is a matter of law, which this court

reviews de novo. Therefore, any lack of notice would not

compel reversal. See Schwartz v. Pillsbury, Inc., 969 F.2d

840, 845 n.3 (9th Cir. 1992).6

Next, the State argues that the district court should

have abstained under Railroad Comm'n of Texas v. Pullman

Co., 312 U.S. 496 (1941), and certified the question of the

filed a Rule 56(f) motion in order to present statistics that most

complaints to the Commission are resolved informally (and

alleging that section 11-216(d) restrictions do not apply to infor-

mally resolved complaints). The district court properly rejected

this motion, noting that these statistics have no bearing on

whether the statute is overbroad. The issue is not how many

times section 11-216(d) has been applied, but rather the extent

to which it potentially may impair First Amendment rights.

14a

statute’s construction to the Hawaii Supreme Court. We

review for abuse of discretion a district court's decision

not to abstain under Pullman, Ripplinger v. Collins, 868

F.2d 1043, 1048 (9th Cir. 1989), and find no error.

A federal court should abstain only in exceptional

circumstances. Houston v. Hill, 482 U.S. 451, 467 (1987)

and only where the complaint involves sensitive areas of

social policy that federal courts ought not to enter, Rip-

plinger, 868 F.2d at 1048. While campaign spending regu-

lation may qualify as an area that federal courts should

avoid if possible, section 11-216(d) does not regulate cam-

paign spending. It regulates speech about campaign

spending. This is not an area of peculiarly local concern,

but an area primarily of federal concern. See id. (“absten-

tion is inappropriate for cases where statutes are justifia-

bly attacked on their face as abridging free expression”

(citations and quotations omitted)). Furthermore, absten-

tion is appropriate only if the statute at issue is “fairly

subject” to an interpretation that will save it from

invalidation. Harmon v. Forssenius, 380 U.S. 528, 534-35

(1965). In view of the variety of applications of section

11-216(d) that are unconstitutional (see below), we agree

with the district court that nothing short of a complete

rewrite of the statute will save it. In these circumstances,

neither abstention nor certification is appropriate.

Houston v. Hill, 482 U.S. at 470-71. The district court did

not abuse its discretion in refusing to abstain, and we

reject the State’s suggestion that we stay our hand and

certify the matter to the Supreme Court of Hawaii.”

7 Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988),

is not to the contrary. Although the Supreme Court abstained in

ena el

15a

Finally, the State contends that we may not reach the

question of overbreadth because, if the Statute is uncon-

stitutional as applied to Lind, he has no standing to

challenge it as overbroad. See e.g., Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 501-04 (1985):

[While facial invalidation due to overbreadth

may be proper when the statute is constitutional

as applied to the party before the court, it] is

otherwise where the parties challenging the stat-

ute are those who desire to engage in protected

Speech that the overbroad statute purports to

punish. ... There is then no want of a proper

party to challenge the statute, no concern that

an attack on the statute will be unduly delayed

Or protected speech discouraged. The statute

may forthwith be declared invalid to the extent

that it reaches too far, but otherwise left intact.

Id. at 504. See also Renne v. Geary, 501 U.S. 312, 324 (1991).

Brockett and Geary, however, deal with an issue different

from that presented by Lind. Overbreadth doctrine is an

exception to the usual rules of Standing, designed to

prevent the chilling effect overbroad statutes may have

on parties not before the court. See Board of Airport

Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,

575-76 (1987). Where a Statute’s overbreadth is substan-

tial, its chilling effect is likely to be significant, and conse-

quently the entire statute may be invalidated to protect

that First Amendment case, it noted that it did so because of

several “unique” factors. Id. at 393. Among these factors was

that the state conceded that the statute at issue was unconstitu-

tional on the plaintiff’s construction and that it therefore

declined to defend it against that construction. Such is not the

case here.

l6a

First Amendment interests. See id. Brockett and Geary sim-

ply recognize that when a statute’s only unconstitutional

application is the one directed at a party before the court,

invalidation of that portion of the statute obviates any

chilling effect the statute may have, and thus eliminates

any justification for declaring the statute invalid in all its

applications.

[7] Here, in contrast, after striking the portion of

section 11-216(d) that is unconstitutional as applied to

Lind, and even assuming that the statute inay have some

constitutional applications, we are left with the fact that

section 11-216(d) has numerous other potential applica-

tions that are unconstitutional. In this circumstance, the

dangers that the overbreadth doctrine is designed to

avert — a potential chilling effect on speech and lack of a

proper party before the court — are present. Consequently

Lind has standing to raise the issue.

[8] We tind that section 11-216(d) imposes criminal

penalties for a substantial range of constitutionally pro-

tected conduct, while its “plainly legitimate sweep” is

quite limited. See Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973). Accordingly, the statute must be invalidated on its

face. See id.

[9] Not only does section 11-216(d) prohibit com-

plainants from divulging the fact that they have filed a

complaint, but it also prohibits third parties, who are

strangers to the Commission’s investigation, from divulg-

ing anything that they might lawfully learn about an

investigation, both before and after the Commission

17a

makes a probable cause determination. This prohibition is

patently unconstitutional. See Landmark, 435 US. 829. If

the Commission makes a finding of no probable cause,

the statute prohibits those same third parties, should they

legally acquire a portion of the record of the Commis-

sion’s proceedings, from releasing it. This, too, is uncon-

stitutional. See id.; see also New York Times Co. v. United

States, 403 U.S. 713 (1971). Section 11-216(d) also prohibits

all persons appearing before the Commission, not just the

complainant, from divulging both the fact that a com-

plaint has been filed and what they told the Commission

~ both before and after the Commission makes a probable

cause determination.® While the validity of some of these

® The State urges us to apply a narrowing construction

restricting application of the post-probable cause confiden-

tiality provision to release of the official record. This provision

reads:

In the event the Commission determines that proba-

ble cause does not exist, . . . the entire record of the

proceedings shall be kept confidential at the option of

the person complained of.

Read in isolation, this sentence appears to be “fairly subject” to

the construction the State urges. See Harmon v. Forssenius, 380

U.S. 528, 535 (1965). However, in the context of the entire stat-

ute, which seeks to keep confidential not just official docu-

ments, but all information about the Commission’s proceedings,

we agree with the district court that the construction the State

urges makes little sense. That construction is even less plausible

in light of the broad purposes that the State insists underlie the

Statute. Cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 217

(1975) (“Particularly where . . . appellee offers several distinct

justifications for the ordinance in its broadest terms, there is no

need to assume the ordinance can or will be decisively nar-

rowed.”).

18a

prohibitions as applied during the pendency of the inves-

tigation may be arguable, we need not rule on that ques-

tion because the prohibitions are not so limited. Once the

Commission has made its probable cause determination,

their application clearly is unconstitutional. Cf. Butter-

worth, 494 U.S. at 626. Section 11-216(d) plainly prohibits

a wide range of constitutionally protected conduct.

[10] The State has failed even to offer examples of

plainly constitutional applications of the section. Accord-

ingly, on this record we must conclude that the over-

breadth of section 11-216(d) is “not only .. . real, but

substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Broadrick, 413 U.S. at 615.

Whether the State, with a showing of more substantial

interests, could sustain a far more narrowly drawn stat-

ute, is a question we need not address today. All we hold

is that the statute before us, on the record presented, is

fatally overbroad.

V. CONCLUSION

Section 11-216(d) of the Hawaii Revised Statutes is

unconstitutional both on its face and as applied to appel-

lee Lind. Accordingly, the judgment of the district court is

affirmed, and the case remanded to the district court for a

determination of the reasonable attorney’s fees to be

awarded to Lind in connection with his efforts in the

district court and on this appeal. See 42 U.S.C. § 1988.

AFFIRMED and REMANDED.

ees ee ot Oo Wats ele SS eee eee,

2 PIE OP, hoe cts WP

19a

APPENDIX “B”

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

IAN Y. LIND,

Plaintiff,

VS.

GARY G. GRIMMER, LINDA K.,

ROSEHILL, JAMES C.F. WANG,

ROBERT Y. WATADA, Individually,

and in their capacities as

Commissioners of the Campaign

Spending Commission, State of

Hawaii, and JACK MLK.

GONZALES, Individually, and in

his capacity as the Executive

Director of the Campaign

Spending Commission, State of

Hawaii,

CIVIL NO.

92-00415 ACK

tet tte de dy de he oe a

Defendants.

(Filed Apr. 20, 1993)

ORDER GRANTING PLAINTIFF’S MOTIONS

FOR SUMMARY JUDGMENT AND FOR A

PERMANENT-INJUNCTION AND DENYING

DEFENDANTS’ MOTIONS FOR JUDGMENT ON THE

PLEADINGS, OR, IN THE ALTERNATIVE,

FOR SUMMARY JUDGMENT

INTRODUCTION

This case is now before the Court on Plaintiff’s

motion for summary judgment and Defendants’ cross-

20a

motions for judgment on the pleadings, or, in the alterna-

tive, for summary judgment.

Plaintitf seeks: (1) a declaratory ruling that Section

11-216(d)!, Hawaii Revised Statutes (“HRS”), is uncon-

stitutional and invalid because it violates the Plaintiff’s

1 Hawaii Revised Statutes, Section 11-216(d) reads as

follows:

§ 11-216. Complaints, investigation, and notice.

* * *

(d) Until a determination of probable cause is

made by the commission, ali proceedings, including

the filing of the complaint, investigation, and hearing

shall be confidential unless the person complained of

requests an open hearing. In the event the

commission determine. that probable cause does not

exist, the complaint shall be dismissed and the entire

record of the proceedings shall be kept confidential at

the option of the person complained of.

Haw. Rev. Stat. § 11-216(d) (1988 & Supp. 1992).

Violations of HRS § 11-216(d) are covered by HRS § 11-228

which reads:

§ 11-228. Penalties; relief.

(a) Any person violating any provision of this

subpart [B. Election Campaign Contributions and

Expenditures; HRS 11-191 through HRS § 11-229]

other than in section 11-193(b) (1), shall be punishable

in the manner prescribed as follows:

(1) Ifanatural person, the person shall be guilty

of a petty misdemeanor and shall be subject to the

penalties specified therefor; or

(2) If a corporation, organization, association,

or labor union, it shall be punished by a fine not

exceeding $1,000; and

(3) Whenever a corporation, organization,

association, or labor union violates this subpart, the

violation shall be deemed to be also that of the

individual directors, officers, or agents of the

OOO

: 2la

i rights of Freedom of Speech and Freedom of the Press in

: violation of the First and Fourteenth Amendments to the

United States Constitution and 42 U.S.C. §1983; and (2) a

permanent injunction enjoining the enforcement of HRS

i § 11-216(d).

; Defendants oppose Plaintiff’s motion for summary

judgment and seek: (1) judgment on the pleadings, or

summary judgment that HRS § 11-216(d) is constitutional

as applied to “charging parties”; or (2) in the alternative

suggest this Court certify HRS § 11-216(d) to the Hawaii

Supreme Court for a limiting construction.

The issues presented are: (1) whether HRS

§ 11-216(d) is constitutional in its present form; (2)

whether HRS § 11-216(d) is constitutional in the limited

use proposed by Defendants; and (3) whether HRS

§ 11-216(d) should be certified to the Hawaii Supreme

Court for a limiting construction.

PO a PONE RR Mo ER AEG CAO ‘Badin BMAD ST wk RS Dt

a meester

: For the reasons discussed below, this Court grants

Plaintiff’s motion for summary judgment and for a per-

manent injunction and denies Defendants’ motion for

judgment on the pleadings, or in the alternative, motion

for summary judgment.

corporation, organization, association, or labor union,

who have knowingly authorised [sic], ordered, or

done any of the acts constituting the violation.

(b) Any person may sue for injunctive relief to

compel compliance with this subpart.

construed to prohibit prosecution under any

appropriate provision of the Hawaii Penal Code . .

Haw. Rev. Stat. § 11-228 (1988 & Supp. 1992)

22a

FACTUAL SUMMARY

Plaintiff, Ian Lind is author and publisher of the

“Hawai'i [sic] Monitor,” an independent non-partisan

newsletter that focuses on election campaign issues. On

March 18, 1992, Plaintiff filed a complaint with the Cam-

paign Spending Commission against the University of

Hawaii Professional Assembly (“UHPA”). Plaintiff

alleged that UHPA had violated certain Hawaii statutes

by failing to fully disclose its contributions to political

candidates and by making excessive, prohibited cam-

paign contributions to Governor John Waihee’s re-elec-

tion campaign.

Plaintiff reported in the June 1992 issue of the

“Hawai'i Monitor” the fact that a complaint against

UHPA had been filed with the Campaign Spending Com-

mission. The article was reprinted, with Plaintiff’s per-

mission, in a University of Hawaii student newspaper.

Subsequently, UHPA sought clarification from the

Campaign Spending Commission as to the applicability

of HRS § 11-216(d) to the proceedings initiated by Plain-

tiff’s complaint. The Campaign Spending Commission

decided to treat this requested clarification as a complaint

against Plaintiff for violation of HRS § 11-216(d).

Upon learning of the pending charge for violation of

HRS § 11-216(d), Plaintiff filed this lawsuit for equitable

and injunctive relief declaring HRS § 11-216(d) uncon-

stitutional under the Free Speech and Free Press provi-

sions of the First Amendment to the United States

Constitution, made applicable to the States through the

Due Process Clause of the Fourteenth Amendment.

NDR ENB SDS, A ANB Si IN td BS ON tis Mia RT!

23a

On July 17, 1992, the parties submitted to this Court a

Stipulation of Dismissal with Prejudice of all Claims

whereby the parties agreed that HRS § 11-216(d) was

unconstitutional.

By order dated September 25, 1991. this Court

rejected the parties’ July 17, 1992, stipulation, stating its

reluctance to overturn an enactment of the Hawaii Legis-

lature without careful consideration and solid caselaw in

support of its decision.

By stipulation filed with this Court on February 23,

1993, the parties have vacated their Prior stipulations.

The Department of the Attorney General is now “deter-

mined to defend § 11-216(d) as applied in this instance to

‘charging parties’ in Campaign Spending Commission

proceedings, who knowingly partake of the burdens of

the confidentiality provisions when they invoke the Com-

mission’s processes, and in light of the important inter-

ests in confidentiality as furthering the important First

Amendment value of free speech and association.” Def.

Cross-Motion For Judgment On The Pleadings, Or, In The

Alternative, For Summary Judgment at 2.

DEFENDANTS’ POSITION

Defendants set forth the following arguments in sup-

port of upholding as constitutional HRS § 11-216(d):

1. This case does not involve the rights of

third-party non-participants to confidential

state proceedings, as were at issue in Land-

mark Communications, Inc. v. Virginia, 435

U.S. 829, 98 S.Ct. 1535 (1978). The case only

24a

deals with “charging” parties who bring a

complaint under HRS § 11-216(d).

HRS § 11-216(d) does not (1) prohibit Mr.

Lind from complaining generally (and pub-

lishing) his opinion that UHPA had vio-

lated the campaign spending laws; (2)

prohibit Mr. Lind from filing a complaint

with the Commission, and also complain-

ing generally (and publishing) his opinion

that UHPA had violated the campaign

spending laws. HRS § 11-216(d) only

requires Mr. Lind to maintain the confiden-

tiality of the fact of his formal complaint

and those facts of the investigation or hear-

ing.

HRS § 11-216(d) can be read to apply only

to Commission staff. Since § 11-216(d) only

makes the “proceedings,” or “the entire

record of the proceedings” subject to confi-

dentiality and since the sanctions imposed

by § 11-228 and § 11-229 apply only to any

“person violating any provision of this sub-

part,” the statutory scheme, read as a

whole, is susceptible to an interpretation

that only persons with control over “the

proceedings” or “the entire record” are

subject to prosecution.

Assuming, arguendo, that HRS § 11-216(d)

applies to information about the facts of

“the proceeding” in the possession of the

charging party, the law is constitutional in

light of the reasoning of the Supreme Court

of the United States in Cohen v. Cowles

Media Co., 111 S.Ct. 2513 (1991).

ST ten Ute etiat Sha Winton De eRe We SY natirs whan be betel

tee inh

AEM,

25a

In any event, the reasons for confidentiality

in the campaign spending context are com-

pelling, and outweigh any First Amend-

ment interest Mr. Lind might have in

violating the confidentiality provision of

the campaign spending laws because the

targets of campaign spending complaints

are private citizens, organizations, and can-

didates, in their personal Capacities, exer-

cising some of the most fundamental rights

of free speech.

Even if Mr. Lind’s statements about UHPA

are protected, the regulation of speech is

not justified on the basis of “the content of

the speech” which Mr. Lind wishes to make

about the sort of proceedings at issue here.

Where the Commission has departed from

Proper standards in assessing “probable

cause,” and thus in sealing campaign

spending complaint proceedings, the

remedies of common law mandamus lie as

a charging party’s source of relief. Even if

no such remedies existed, Hawaii has a

compelling interest in delegating final dis-

cretion to the Campaign Spending Com-

mission over the issue whether further

litigation would be “baseless.”

Section 11-216(d), like a general noise ordi-

nance, is “content neutral” and sufficiently

tailored to validly promote Hawaii’s inter-

ests. In any case, the Act “ ‘is narrowly

drawn to achieve that end.’ ”

The statute is at the very least plainly con-

stitutional insofar as it requires confiden-

tiality pending the probable cause

determination based on the reasoning in

26a

Kamasinski v. Judicial Review Council, 797

F.Supp. 1083 (D. Conn. 1992).

10. To whatever extent this Court is not confi-

dent that the statute is constitutional, it

should take the step of either construing

the statute narrowly itself or stay the pro-

ceeding pending a certification of the issue

to the Supreme Court of Hawaii under

Appellate Rule 13.

PLAINTIFF’S POSITION

Plaintiff sets forth the following arguments in sup-

port of his position that HRS § 11-216(d) is unconstitu-

tional:

1. There does not appear to be any overriding

State purpose in the enactment of HRS

§ 11-216(d). Legislative history indicates

only that the intent of the law was to pro-

vide for confidential hearings to insure that

“due process shall be provided to anybody

complained of.”

2. Based on the United States Supreme

Court’s decision in Landmark Communica-

tions, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct.

1535 (1978), the Fourth Circuit’s decision in

Baugh v. Judicial Inquiry and Review Commis-

sion, 907 F.2d 440 (4th Cir. 1990), the Fed-

eral District Court of Rhode Island’s

decision in Providence Journal Co. v. Newton,

723 F.Supp. 846 (D.R.I. 1989), and this

Court’s prior order in John Roe v. Akamine,

et al. (Civil No. 91-00252 DAE), HRS

§ 11-216(d) is unconstitutional.

sel ee

27a

In opposition to the Defendant’s cross-motions and in

reply to Defendant's opposition, Plaintiff further argues:

3. The statute by its very terms does not, as

Defendants propose, confine its application

to complaining participants or to

employees of the Campaign Spending

Commission.

4. The statute is unconstitutionally overbroad,

Board of Airport Com’rs of Los Angeles v. Jews

for Jesus, 482 U.S. 569, 107 S.Ct. 2568 (1987);

Forsyth County, Ga. v. Nationalist Movement,

112 S.Ct. 2395 (1992), and cannot be nar-

rowly construed. Board of Airport Com’rs of

Los Angeles, 482 U.S. at 575-76, 107 S.Ct. at

2572-73.

Defendant’s reliance on Cohen v. Cowles

Media Co., 111 S.Ct. 2513 (1991), is mis-

placed because, in this case, Plaintiff’s only

means of redress is that of complaining to

the Campaign Spending Commission.

6. The subject matter of the instant statute is

not “content-neutral” and the “exacting

scrutiny” test must be applied to determine

whether Section 11-216(d) meets constitu-

tional muster. The statute does not meet the

“exacting scrutiny” test. Daily Herald Co. v.

Munro, 838 F.2d 380 (9th Cir. 1988).

DISCUSSION

As an initial note, this Court is well aware that a

federal court should not reach a constitutional issue if it

does not have to. See, e.g., Ashwander v. TVA, 297 US. 288,

341-56, 56 S.Ct. 466, 480-87 (1936). In this case, however,

28a

the constitutional question is unavoidable. The constitu-

tionality of HRS § 11-216(d) was squarely presented to

this Court from the start. The alternatives to addressing

the constitutionality of HRS § 11-216(d) are: (1) for this

Court to, itself, narrowly construe HRS § 11-216(d); or (2)

to certify HRS 11-216(d) to the state supreme court for a

narrowing construction. For the reasons to be discussed

below, this Court declines to narrowly construe HRS

§ 11-216(d) and finds that HRS § 11-216(d) does not meet

the test for certification to the state supreme court.

A. Applicable Standards

1. Judgment on the Pleadings

Judgment on the pleadings is proper when the mov-

ing party clearly establishes on the face of the pleadings

that no material issue of fact remains to be resolved and

that it is entitled to judgment as a matter of law. Doleman

v. Meiji Mutual Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.

1984).

In reviewing the defendant’s motions under Fed.

R.Civ. P. 12(c), the district court views the facts as pre-

sented in the pleadings in the light most favorable to the

plaintiffs, accepting as true all the allegations in their

complaint and treating as false those allegations in the

answer that contradict the plaintiff’s allegations. Hoeft v.

Tucson Unified School Dist., 967 F.2d 1298, 1301 (9th Cir.

1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d

1542, 1550 (9th Cir. 1989).

When the district court goes beyond the pleadings to

resolve an issue, the motion is properly treated as a

achat ty Ciba aaa in NaN ane ase eee

29a

motion for summary judgment. Fed.R.Civ. P. 12(c); Hal

Roach Studios v. Richard Feiner and Co., 896 F.2d 1542, 1550

(9th Cir. 1989); Bonilla v. Oakland Scavenger Co., 697 F.2d

1297, 1301 (9th Cir. 1982).

2. Summary Judgment

Summary judgment shall be granted where there is

no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P

56(c). One of the principal purposes of the summary

judgment procedure is to identify and dispose of factu-

ally unsupported claims and defenses. Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986).

Summary judgment must be granted against a party who

fails to demonstrate facts to establish an element essential

to his case where that party will bear the burden of proof

of that essential element at trial. Id. at 322, 106 S.Ct. at

2552.

If the party moving for summary judgment

meets its initial burden of identifying for the

court the portions of the materials on file that it

believes demonstrate the absence of any genu-

ine issue of material fact, the nonmoving party

may not rely on the mere allegations in the

pleadings in order to preclude summary judg-

ment.

T.W. Electrical Serv. v. Pacific Elec. Contractors Assoc., 809

F.2d 626, 630 (9th Cir. 1987) (citations omitted). Instead,

Rule 56(e) requires that the nonmoving party set forth, by

affidavit or as otherwise provided in Rule 56, “ ‘specific

facts showing that there is a genuine issue for trial.’ ” Id.

(quoting Fed.R.Civ.P. 56 (e)) (emphasis in original). At

30a

‘

least some “ ‘significant probative evidence tending to

support the complaint’ ” must be produced. Id. (quoting

First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290,

88 S.Ct. 1575, 1593 (1968)). Legal memoranda and oral

argument are not evidence and do not create issues of

fact capable of defeating an otherwise valid motion for

summary judgment. British Airways Bd. v. Boeing Co., 585

F.2d 946, 952 (9th Cir. 1978), cert. denied, 440 U.S. 981, 99

S.Ct. 1790 (1979).

The standard for a grant of summary judgment

reflects the standard governing the grant of a directed

verdict. See Eisenberg v. Ins. Co. of North America, 815 F.2d

1285, 1289 (9th Cir. 1987) (citing, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986)). Thus,

the question is whether “reasonable minds could differ as

to the import of the evidence.” Id.

The Ninth Circuit has established that “[n]o longer

can it be argued that any disagreement about a material

issue of fact precludes the use of summary judgment.”

California Architectural Bldg. Products, Inc. v. Franciscan

Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert.

denied, 484 U.S. 1006, 108 S.Ct. 698 (1988). Moreover,

“{w]hen the moving party has carried its burden under

Rule 56(c), its opponent must do more than simply show

that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986) (footnote omit-

ted). Indeed, “if the factual context makes the non-

moving party’s claim implausible, that party must come

forward with more persuasive evidence than would oth-

erwise be necessary to show that there is a genuine issue

for trial.” Franciscan Ceramics, 818 F.2d at 1468 (emphasis

EET peer r

tea

3la

in original) (citing, Matsushita, 475 U.S. at 587, 106 S.Ct. at

1356.). Of course, all evidence and inferences to be drawn

therefrom must be construed in the light most favorable

to the nonmoving party. T.W. Elec. Services, 809 F.2d at

630-31.

B. First Amendment Framework

The United States Supreme Court analyzes regula-

tions which abridge “protected speech”? by first deter-

mining whether the particular restrictive regulation is

“content-based”? or “content-neutral.”4 See generally

* The speech at issue in this case concerns public discussion

of the existence and substance of a complaint regarding exces-

sive and prohibited campaign contributions to the Governor’s

re-election campaign. It is beyond question that this is speech

protected by the First Amendment. See New York Times Co. v.

Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720 (1964) (“debate on

public issues should be uninhibited, robust, and wide-open”);

Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293 (1979)

(expression on public issues rests “on the highest rung of the

hierarchy of the First Amendment values”).

* A “content-based” regulation restricts speech precisely

because of the ideas or information that the speech contains or

because of its general subject matter. Because such content dis-

crimination so fundamentally contradicts the principles under-

lying the First Amendment, “content-based” regulations are

subjected to the strictest scrutiny utilized by federal courts to

analyze the legitimacy of governmental interference with

speech. See Police Dept. v. Mosely, 408 U.S. 92, 95, 92 S.Ct. 2286,

2290 (1972) (“[A]bove all else, the First Amendment means that

government has no power to restrict expression because of its

message, its ideas, its subject matter, or its content.”).

* A “content-neutral” regulation involves an incidental

interference with speech merely as a byproduct of the

32a

Police Department v. Mosely, 408 U.S. 92, 92 S.Ct. 2286

(1972); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286 (1980);

Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S.

37, 103 S.Ct. 948 (1983); Ward v. Rock Against Racism, 491

U.S. 781, 109 S.Ct. 2746 (1989). “Content-based” restric-

tions of protected speech are subject to strict scrutiny and

require a governmental showing that the regulation in

question is necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end, utiliz-

ing the least restrictive means possible. See, e.g., Carey,

447 U.S. at 461, 100 S.Ct. at 2290.

“Content-neutral” restrictions of protected speech are

subjected to a lesser level of judicial scrutiny which varies

with the characterization of the forum in which the state

is attempting to restrict access. Perry, 460 U.S. at 45, 103

S.Ct. at 954-55. State restrictions of access to a “traditional

public forum,” which “by long tradition or by govern-

ment fiat have long been devoted to assembly or debate,”

Perry, 460 U.S. at 45, 103 S.Ct. at 954-55, require a govern-

mental showing that the regulation in question has been

narrowly tailored to serve a significant state interest, but

need not demonstrate that it is the least restrictive means

of achieving the state’s end. Ward, 491 U.S. 781, 797-801,

109 S.Ct. 2746, 2757-59 (1989). A “content-neutral” restric-

tion of access to a traditional public forum satisfies the

requirement of narrow tailoring so long as it “promotes a

substantial government interest that would be achieved

less effectively absent the regulation.” Id.

government’s effort to regulate some evil unconnected with the

content of the affected speech. Ward v. Rock Against Racism, 491

U.S. 781, 797-801, 109 S.Ct. 2746, 2757-59 (1989).

nthe mtnnaterent ie beth ota en x

33a

C. Court Treatment of Confidentiality Provisions

First Amendment challenges to confidentiality provi-

sions have arisen in at least three differing contexts: (1)

state government ethics commission proceedings; (2)

judicial inquiry commission Proceedings; and (3) grand

jury proceedings. While this case concerns complaints

regarding campaign spending provisions, the govern-

mental interests put forth in other settings as justification

for the restrictions placed on free speech and freedom of

press are helpful to the resolution of this case.

The Seminal Case ~ Landmark Communications, Inc. v. Vir-

ginia

In Landmark Communications, Inc. v. Virginia, 435 U.S.

831, 98 S.Ct. 1535 (1978), the United States Supreme Court

addressed the constitutionality of a state statute protect-

ing the confidentiality of complaints of misconduct by

state judicial officers.5 The Landmark Court held that state

laws prohibiting third persons, who are strangers to the

inquiry, including newspapers, from divulging informa-

tion regarding proceedings before a state commission

which is authorized to hear complaints of misconduct by

> Virginia Code § 2.1-37.13 (1973) implemented the state’s

constitutional mandate of confidentiality. It provided in rele-

vant part:

“All papers filed with and proceedings before the Commission,

and under the two preceding sections... including the identi-

fication of the subject judge as well as all testimony and other

evidence and any transcript thereof made by a reporter, shall be

confidential and shall not be divulged by any person to anyone

except the Commission, except that the record of any proceed-

ing filed with the Supreme Court shall lose its confidential

character.” Landmark, 435 U.S. at 830-31 n.1.

34a

state officials, violate the First Amendment. Id. While

recognizing the many valid concerns that are addressed

by such statutes®, which were in effect in 47 jurisdictions,

the Court applied the clear and present danger test” and

held that the third parties’ First Amendment rights to free

speech and freedom of press outweigh the need for confi-

dentiality.

state interests:

First, confidentiality is thought to encourage the fil-

ing of complaints and the willing participation of

relevant witnesses by providing protection against

possible retaliation or recrimination. Second, at least

until the time when the meritorious can be separated

from the frivolous complaints, the confidentiality of

the proceedings protects judges from the injury which

might result from publication of unexamined and

unwarranted complaints. And finally, it is argued,

confidence in the judiciary as an institution is main-

tained by avoiding premature announcement of

groundless claims of judicial misconduct or disability

since it can be assumed that some frivolous com-

plaints will be made against judicial officers who

rarely can satisfy all contending litigants.

Landmark, 435 U.S. at 834-36, 98 S.Ct. at 1539-40 (1978).

7 The clear and present danger test is a variant of the strict

scrutiny test of content-based regulations of protected speech.

Specifically, the Landmark court stated the test to mean: “the

substantive evil must be extremely serious and the degree of

imminence extremely high before utterances can be pun-

ished. .. . The danger must not be remote or even probable; it

must immediately imperil.” Landmark, 435 U.S. at 845, 98 S.Ct. at

1544 (citing Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190,

194 (1941); Craig v. Hernia, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255

(1947)).

Band ah inal cialis econ aes

35a

However, the Landmark Court expressly excludes

from its consideration statutes that seek to punish partici-

pants in the inquiry. Landmark, 435 U.S. at 837, 98 S.Ct. at

1540. The Court indicated the possibility that it would

uphold a statute aimed only at those who actually partici-

pate in the inquiry. Landmark, 435 U.S. at 837 n.9, 98 S.Ct.

at 1540 n.9.

1. State Government Ethics Commission Proceedings

In Providence Journal Co. v. Newton, 723 F.Supp. 846

(D. R.I. 1989), the federal district court of Rhode Island

extended the reasoning of Landmark to a statute which

required all individuals before the Rhode Island Ethics

Commission, whether participants in the inquiry or not,

to keep confidential the fact and content of any complaint

filed unless and until a finding of probable cause by the

Commission.’ The Newton Court held the statute uncon-

stitutional because it concluded that the state had failed

to meet its burden under the compelling interest test.

8 The statute in question, R.I.Gen.Law Sec. 36-14-5(1), pro-

vided: ;

“No person shall knowingly and willfully make public any

complaint or the content of any complaint filed under this chap-

ter without the consent of the person against whom the com-

plaint has been filed, unless and until an adjudicative panel of

the commission renders a final decision on the complaint fol-

lowing (i) a probable cause finding by an investigating commit-

tee of the commission, pursuant to Section 36-14-12(d) (4) of this

chapter and (ii) the conduct of an adjudicative hearing pursuant

to Section 36-14-13 of this chapter.

Providence Journal Co. v. Newton, 723 F.Supp. 846, 849 (D.R.1.

1989).

36a

Under the compelling interest test, the Newton Court

utilized the strictest scrutiny in analyzing seven interests

proffered by the state? against what the court considered

to be “prototypical content-based regulations of protected

speech.” Newton, 723 F.Supp. at 854-59. Acknowledging

that the requirement of confidentiality regarding Ethics

Commission proceedings serves “legitimate interests of

the State of Rhode Island,” the Newton Court emphasized

that the state’s concerns are not “compelling enough to

silence a citizen-critic of official conduct through the

imposition of civil and criminal sanctions.” Id. at 857.

In Roe v. Akamine (Civil No. 91-00252 DAE) (Sept. 26,

1991), this District Court, the Honorable David Ezra pre-

siding, accepted the parties’ stipulation to the unconstitu-

tionality of HRS § 84-31(c), a statute dealing with

9 1. to prevent a complainant with self serving motives

from publicly discussing an unfounded com-

plaint until the Commission has had an oppor-

tunity to rule thereon;

2. to minimize the injury to the reputation of a

public official caused by adverse publicity from

unfounded complaints;

3. to maintain the public’s confidence in its elected

officials by preventing the premature disclosure

of unfounded complaints;

4. to protect the complainants and witnesses from

possible recrimination;

5. to facilitate the investigation of the complaint;

6. to prevent the use of a state agency to injure the

reputation of another person; and

7. to prevent a complainant from enhancing the

veracity and credibility of his complaint by

invoking the name of the ethics commission.

Newton, 723 F.Supp. at 856.

37a

confidentiality of complaints filed with the State of

Hawaii Ethics Commission.!° Section 84-13(c) is aimed at

individuals, such as Plaintiff, who file the complaint, as

well as third parties. The Order Approving Stipulation of

Settlement is silent on the issue of whether the Plaintiff

there was the individual who filed the complaint, or

whether that fact had any bearing on the constitutionality

of the provision.

2. Judicial Inquiry Commission Proceedings

In Baugh v. Judicial Inquiry and Review Commission, 907

F.2d 440 (4th Cir. 1990), the Fourth Circuit extended the

reasoning of Landmark to statutes that seek to punish a

person who files a complaint with the Judicial Inquiry

and Review Commission for disclosing the fact that a

complaint has been filed and for disclosing the action or

non-action taken by the Commission.1!

Any . .. individual, including the individual making the charge,

who divulges information concerning the charge prior to the

issuance of the complaint by the commission or if the investiga-

tion discloses that the complaint should not be issued by the

commission, at any time divulges the contents of the original

charge . . . shall be guilty of a felony punishable by a fine of not

more than $5,000.00 or imprisonment for not more than five

years, or both....

Roe v. Akamine (Civil No. 91-00252 DAE) (Order Approving

Stipulation of Settlement) (Sept. 26, 1991).

1! The statute at issue, Va. Code § 2.1-37.13, reads in rele-

vant part as follows:

“All papers filed with and proceedings before the Commis-

sion, .. . including the identification of the subject judge as well

as all testimony and other evidence and any transcript thereof

38a

While, the Baugh Court did not reach the ultimate issue of

the statute’s constitutionality,!? it clearly found that such

a statute is not “content-neutral.” Id. at 445. Accordingly,

Baugh holds that the appropriate test to be employed

when scrutinizing such a statute is the compelling inter-

est test. Id. at 445.

However, it should be noted that the statute at issue

in Baugh is somewhat different than the Hawaii statute

here at issue. The statute in Baugh prohibits participants

in the inquiry from disclosing the fact that a complaint

has been filed as well as what action the commission took

on the complaint. Id. at 443. Once the record of the

proceeding is filed with the state Supreme Court (for

further action), it |oses its confidentiality. Id. at 442. The

Hawaii statute prohibits participants as well as non-

participants, except the party complained of, from dis-

closing that a complaint has been filed, but only until the

commission has made a determination of probable cause.

HRS § 11-216(d), see supra p.1. n.1. If the commission

made by a reporter, shall be confidential and shall not be

divulged, other than to the Commission, by any person who

either files a complaint with the Commission, or receives such

complaint in an official capacity, or investigates such complaint,

is interviewed concerning such complaint by a member,

employee or agent of the Commission, or participates in any

proceeding of the Commission, or the official recording or tran-

scription thereof, except that the record of any proceeding filed

with the Supreme Court shall lose its confidential character.

* * *

Divulging information in violation of this section is a misde-

meanor.” Id.

12 The case is remanded to the district court for further

analysis. Baugh, 907 F.2d at 445.

39a

determines that probable cause does not exist, the-entire

record remains confidential at the option of the person

complained of. Id.

In Doe v. State of Florida Judicial Qualifications Commis-

sion, 748 F.Supp. 1520 (S.D.Fla. 1990), a Florida district

court considered the constitutionality of Article V, Section

12(d)'% of the Florida Constitution which required confi-

dentiality of all proceedings before the Judicial Qualifica-

tions Commission (“JQC”) unless the Commission

determined that probable cause existed and filed formal

charges. Doe, 748 F.Supp. at 1522 (emphasis added). More

specifically, the Doe Court considered the sole issue of

“whether the First Amendment prohibits the JQC, insofar

as it is charged with the responsibility of enforcing Arti-

cle V, Section 12(d) of the Florida Constitution, from

barring Plaintiff Doe from revealing the fact that he filed

a complaint with the JOC.” Doe, 748 F.Supp. at 1523

(emphasis in original).

Defendant Judicial Qualifications Commission

offered eight state interests served by the confidentiality

provision:

a. To prevent a complainant who might have

self-serving motives from publicly discuss-

ing the fact of filing of a complaint that may

13 Article V, Section 12(d) of the Florida Constitution reads

as follows:

[A]ll proceedings by or before the commission shall be confi-

dential; provided, however, upon a finding of probable cause

and the filing by the commission with said clerk of such formal

charges against a justice or judge such charges and all further

proceedings before the commission shall be public.

Doe, 748 F.Supp at 1522 (emphasis added).

40a

prove to be unfounded until a preliminary

investigation has been completed;

b. To minimize the risk of injury to the reputa-

tion of a judicial constitutional officer

caused by any adverse publicity from

unfounded complaints;

c. To maintain the public’s confidence in its

judicial officers by preventing the premature

disclosure of the fact of filing of a complaint

that may ultimately prove to be unfounded;

d. To protect the complaint and witnesses from

possible pressure and recrimination;

e. To tacilitate the investigation of the com-

plaint;

f. To prevent the potential use of a constitu-

tional agency to help injure the reputation of

a judge;

g. To protect the constitutional right of privacy

of a member of the Florida Bar who is also a

constitutional officer — a judge;

h. To assure that the public policy behind the

subject constitutional provision as adopted

by the citizens of the State of Florida is

protected consistent with the will of the peo-

ple.

Doe, 748 F.Supp. at 1522-23.

Finding Article V, Section 12(d) to be a “content-

based” restriction of protected speech, the Doe court

applied with strict scrutiny the compelling interest test to

JQC’s stated justifications. Id. at 1524-25. While acknowl-

edging that Florida surely has valid interests in maintain-

ing the reputation of its judges and the integrity of its

: ee

oe aaa! Ras i us eo seca

4la

judiciary, the Doe Court considered this interest “plainly

insufficient under controlling precedent to sustain this

restriction on free speech.” Id. at 1526. Similarly, the Doe

Court found the possibility that a complainant might

wrongfully use the fact of filing with JOC as a means to

amplify and legitimate the claim unpersuasive and overs-

tated in the degree to which publication of the fact of

filing of the complaint would lead people to believe the

complaint to be true. Id. at 1527. Further, the Doe Court

found insufficient the state’s proffered interests in facili-

tation of investigations, and in the protection of privacy

interest of the accused judges. Holding the restriction

unconstitutional, the Doe court stated that the govern-

ment had “failed to set forth any compelling interests

alone or in concert sufficiently to justify the application of

§ 12(d) to prohibit the truthful publication of the simple

fact that a complaint has been filed by Plaintiff John Doe

with the JOC.” Id. at 1529.

In direct conflict with Doe and Newton is a decision of

the district court of Connecticut which, upon similar

analysis, held constitutional a statute!4 making confiden-

tial certain proceedings before the state Judicial Review

14 The Statute at issue, Conn.Gen.Stat. § 51-511(a), pro-

vided that:

“[a]ny investigation to determine whether or not

there is probable cause that conduct under section

51-51i has occurred shall be confidential and any indi-

vidual called by the commission for the purpose of

providing information shall not disclose his knowl-

edge of such investigation to a third party... . ”

Kamasinski, 797 F.Supp. at 1087.

42a

Council (“JRC”). Kamasinski v. Judicial Review Council, et

al., 797 F.Supp. 1083 (D.Conn. 1992).

The Connecticut district court held that although,

under the First Amendment, Connecticut may not pro-

hibit witnesses or complaints from disclosing information

contained in testimony or complaints to the Judicial

Review Council, the state may, prior to a determination

by the Council that there is probable cause, forbid dis-

closure of any information an individual obtains by vir-

tue of his personal interaction with the Council inquiry.

Kamasinski, 797 F.Supp. at 1097. Likewise, the state may

also forbid, prior to a probable cause determination, dis-

closure of the fact of filing a complaint with the Council

investigation. Id.

Like Doe, the Kamasinski Court applied the compel-

ling interest test to what it agreed was a “content-based”

restriction of protected speech. Id. at 1090. Unlike Doe, the

Kamasinski Court found that there were sufficiently com-

pelling government interests to justify the limitation on

speech, which was narrowly drawn to achieve those

ends. Id. at 1094.

The Kamasinski Court considered there to be ” ‘a very

good analogy’ between the proceedings of the JRC at the

stage before probable cause is found and the proceedings

of a grand jury.” Id. at 1090. Drawing heavily on the

grand jury analogy, the Kamasinski Court set forth the

following interests in support of upholding the statute as

constitutional:

1. “Given the confidentiality of the preliminary

investigation, the JRC may dispose of merit-

less complaints - for example, complaints

43a

that on their face are utterly without basis or

generated by apparent malice or bad faith —

without lending any credibility to such com-

plaints by appearing to conduct an extensive

investigation.” Id. at 1092

2. “Without confidentiality at the preliminary

stage of judicial conduct review, Connecticut

might have difficulty attracting and retain-

ing high quality personnel for its judiciary if

judges were to face continual abuse and

harassment in JRC proceedings as a conse-

quence of discharging their constitutional

duties.” Id.

3. “[I]f exposed to complaints in open, prelimi-

nary proceedings, Connecticut judges might

tend to be intimidated or unduly influenced

by belligerent litigants who would be more

likely than others to commence a retaliatory

campaign of harassment of the judge before

the JRC. . .. The importance of judicial inde-

pendence cannot be overemphasized ... ”

Id.

4. “[C]lonfidentiality encourages complaints,

assistance in investigating complaints, and

complete and truthful testimony.” Id. at

1093.

5. “By making preliminary investigations con-

fidential, the JRC may also informally

encourage infirm or incompetent judges to

retire before the need for a hearing.” Id.

In ruling that the Connecticut statute is constitutional

as it applies to prohibiting disclosure of the fact that a

complaint had been filed with JRC, the Kamasinski Court

distinguished the Fourth Circuit’s decision in Baugh, 907

44a

F.2d 444, and the Florida and Rhode Island district court

decisions in Doe, 748 F.Supp. 1520, and Newton, 723

F.Supp. 846.

Kamasinski discounted Newton’s statement that there

is “no principled way to distinguish the substance of an

ethics complaint from the facts underlying it or to distin-

guish speech about such a complaint from general public

criticism of the accused official.” Newton, 723 F.Supp. at

852. Rather, the Kamasinski Court found persuasive Jus-

tice Scalia’s reasoning in Butterworth v. Smith, 494 U.S.

624, 110 S.Ct. 1376 (1990) (a First Amendment challenge

to confidentiality provisions in the grant jury context),

wherein he stated: “like the fact that one has testified to a

grant jury, the fact of the filing of a complaint, and the

complaints actual testimony to the JRC, are ‘in a way

information of the state’s own creation.’ ” Kamasinski, 797

F.Supp. at 1095 (quoting Butterworth, 494 U.S. at 636-37,

110 S.Ct. at 1383) (emphasis in original).

Kamasinski distinguished the Fourth Circuit’s deci-

sion in Baugh as one which, although “correctly stating

the standard of review as one of compelling state inter-

ests, . . . failfed] to capture the panapoly of the state

interests at issue.” the Kamasinski court likewise distin-

guished the Florida district court’s decision in Doe as one

where the “discussion of the relevant state interests . .

appear(ed] . . . inadequate.” 797 F.Supp. at 1095.

* 3. Grand Jury Proceedings

In Butterworth v. Smith, 494 U.S. 624, 110 S.Ct. 1376

(1990), the United States Supreme Court considered the

45a

constitutionality of a Florida statute!5 that prohibited

grand jury witnesses from disclosing their knowledge of

proceedings before the grand jury, including the contents

and substance of their own testimony. The Court held

that the statute violated the First Amendment insofar as it

prohibited witnesses from disclosing the contents of their

testimony to the grand jury after the grand jury had

expired. Butterworth, 494 U.S. at 633-35, 110 S.Ct. at

1382-83 (emphasis added).

Recognizing that the speech the Florida statute

sought to restrict lay at the core of the First Amendment,

the Supreme Court apparently applied a compelling

'S The relevant statute, Fla.Stat. § 905.27, provided in perti-

nent part that:

(1) A grand juror... or any other person appearing before

the grand jury shall not disclose the testimony of a witness

examined before the grand jury . . . except when required by a

court for the purpose of:

(a) Ascertaining whether it is consistent with the testi-

mony given by the witness before the court;

(b) Determining whether the witness is guilty of perjury;

(2) It is unlawful for any person knowingly to publish,

broadcast, disclose, divulge, or communicate to any other per-

son, or knowingly to cause or permit to be published, broadcast,

disclosed, divulged, or communicated to any other person, in

any manner whatsoever, any testimony of a witness examined

before the grand jury, or the content, gist, or import thereof,

except when such testimony is or has been disclosed in a court

proceeding.

Butterworth v. Smith, 494 U.S. at 627, 110 S.Ct. at 1378.

46a

interest test to the proffered state interests.'° Agreeing

that grand jury secrecy remains important to safeguard

the state’s proffered interests, the Butterworth Court did

not agree that “those interests warrant a permanent ban

on the disclosure by a witness of his own testimony once

a grand jury has been discharged.” Butterworth, 494 U.S.

at 631-32, 110 S.Ct. at 1381. Striking down the statute, the

Court stated:

When an investigation ends, there is no

longer the need to keep information from the

targeted individual. . . . There is also no longer a

need to prevent the importuning of grand jurors

since their deliberations will be over. Similarly,

the concern that some witnesses will be deterred

from presenting testimony due to fear of retri-

bution is, we think, not advanced by this prohi-

bition...

16 The Butterworth Court acknowledged three primary rea-

sons in support of retaining grand jury secrecy in general:

First, if preindictment proceedings were made public,

many prospective witnesses would be hesitant to

come forward voluntarily, knowing that those against

whom they testify would be aware of the testimony.

Moreover, witnesses who appeared before the grand

jury would be less likely to testify fully and frankly, as

they would be open to retribution as well as to

inducements. There would also be the risk that those

about to be indicted would flee, or would try to influ-

ence individual grand jurors to vote against indict-

ment. Finally, by preserving the secrecy of the

proceeding, we assure that persons who are accused

but exonerated by the grand jury will not be held up

to public ridicule.

Butterworth, 494 U.S. at 630, 110 S.Ct. at 1380.

ce a an

ae a a OL ee ee ene ie ental eS. Seer

47a

Florida undoubtedly retains a substantial

interest in seeing that “persons who are accused

but exonerated by the grand jury will not be

held up to public ridicule. . . . ” Douglas Oil Co.

of California v. Petrol Stops Northwest, 441 U.S.

211, 219, 99 S.Ct. 1667, 1673 (1979)... . But even

in those situations where the disclosure by the

witness of his own testimony could have the

effect of revealing the names of persons who

had been targeted by the grand jury but exone-

rated, our decisions establish that absent excep-

tional circumstances, reputational interests alone

cannot justify the proscription of truthful speech.

Butterworth, 494 U.S. at 634-35, 110 S.Ct. at 1382 (citing

Landmark, 435 U.S. at 841-42, 98 S.Ct. at 1542-43 (emphasis

added).

Defendants’ Authority — Cohen v. Cowles Media Company

The Defendant claims that the reasoning of Cohen v.

Cowles Media Company, 111 S.Ct. 2513 (1991), controls this

case. y

In Cowles, the United States Supreme Court

addressed the issue of whether the First Amendment

prohibits a plaintiff from recovering damages, under state

promissory estoppel law, for a newspaper’s breach of a

promise of confidentiality given to the plaintiff in

exchange for information. Apparently analyzing the state

promissory estoppel laws as “content-neutral” restric-

tions on protected speech, not requiring strict scrutiny,

the Court held that a promissory estoppel action is not

barred by the First Amendment. Id. at 2518.

48a

Defendants claim that “like the newspaper that

induced the source to turn over sensitive and newswor-

thy information, Mr. Lind can be deemed to have con-

sented to the ‘rules of the game’ concerning his

complaint.” Defendants’ Cross Motion at p.7. Defendants

assert that Plaintiff “cannot have his cake and eat it too:

he cannot invoke the State’s process except on the terms

which the State has reasonably dictated concerning confi-

dentiality.” Id.

Cowles is inapplicable to this case for two reasons.

One, Plaintiff in no way has entered into a contractual

relation with the Campaign Spending Commission as was

the case in Cowles. Defendant’s argument that Plaintiff

had “consented to the rules of the game,” states the

proposition that if Plaintiff wishes to formally complain,

he must follow the rule as dictated, regardless of the

rule’s constitutionality. Two, the Cowles Court did not

apply the compelling interest test, as the Baugh Court

makes clear should be applied to this case.

D. Certification To The State Supreme Court

Defendants argue alternatively that this Court should

certify the scope of HRS § 11-216(d) to the state Supreme

Court for a limiting instruction.

The Ninth Circuit addressed the appropriateness of

certification in Burdick v. Takushi, 846 F.2d 587 (9th Cir.

1988), where it outlined a three-part test that federal

courts should follow in determining whether to abstain

from ruling on an ambiguous state statute:

49a

The Supreme Court has made it clear that

“federal courts should abstain from decision

when difficult and unsettled questions of state

law must be resolved before a substantial fed-

eral question can be decided.” Hawaii Housing

Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321,

2327 (1984) (citing Railroad Comm'n v. Pullman

Co., 312 U.S. 496, 61 S.Ct. 643 (1941)). Our circuit

has adopted a three-part test to determine

whether Pullman abstention is warranted. First,

the proper resolution of the state law question at

issue must be uncertain. Second, a definitive

ruling on the state issue must potentially obvi-

ate the need for constitutional adjudication by

the federal court. Third, the complaint must

touch upon “a sensitive area of social policy

upon which the federal courts ought not to enter

unless no alternative to its adjudication is

open.” Bank of America Nat'l Trust and Savings

Assoc. v. Summerland Cty. Water Dist., 767 F.2d

544, 546 (9th Cir. 1985) (quoting Canton v.

Spokane School Dist. No. 81, 498 F.2d 840, 845 (9th

Cir. 1974)).

Burdick v. Takushi, 846 F.2d at 588.

Justice O’Connor’s concurring opinion in Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 1794 (1985),

sheds further light on the issue of certification:

Although federal courts generally have a

duty to adjudicate federal questions properly

before them, this Court has long recognized that

concerns for comity and federalism may require

federal courts to abstain from deciding federal

constitutional issues that are entwined with the

interpretation of state law. . . . [WJhere uncer-

tain questions of state law must be resolved

50a

before a federal constitutional question can be

decided, federal courts should abstain until a

state court has addressed the state questions.

Railroad Comm’‘n v. Pullman Co., 312 U.S. 496,

501, 61 S.Ct. 643, 645 (1984). See also Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 236-37,

104 S.Ct. 2321, 2327-28 (1984).

+ * *

Where a state statute has never been con-

strued or applied, it seems rather obvious that

interpretation of the statute by a state court

could substantially alter the resolution of any

claim that the statute is facially invalid under

the Federal Constitution.

* + -

Speculation by a federal court about the

meaning of a state statute in the absence of prior

state court adjudication is particularly gratu-

itous when, as is the case here, the state courts

stand willing to address questions of state law

on certification from a federal court.” Cf. Belloti

v. Baird, 428 U.S. 132, 150-51, 96 S.Ct. 2857,

2867-68 (1976).

Brockett, 472 U.S. at 508-510, 105 S.Ct. at 2804.

E. Overbreadth

1. Procedural Objections

As an initial note, Defendants raise procedural objec-

tions to the appropriateness of this Court considering the

5la

issue of overbreadth.!” Defendants argue that the issue of

overbreadth is not properly before the Court because

Plaintiff did not raise the issue in his motion for summary

judgment, but raised the issue only in opposition and in

reply to Defendants’ cross motion.18 See Def. Reply Mem-

orandum, filed March 12, 1993. Defendants argue that

Local Rule 220-4, which forbids a litigant from raising a

new argument “for the first time in the reply,” requires

this Court to disregard the issue of overbreadth, or, alter-

natively only consider the issue of overbreadth in opposi-

tion to Defendants’ motions, not in support of Plaintiff’s

motion.

This case is one with an unusual procedural history

from the start. The parties to this action initially agreed to

the unconstitutionality of HRS § 11-216(d) and submitted

to this Court a stipulation thereon. This Court denied the

'7 This Court is well aware of the United States Supreme

Court’s “usual .. . practice . . . [not] to proceed to an over-

breadth issue . . . before it is determined that the statute would

be valid as applied.” Board of Trustees, State Univ. of N.Y. v. Fox,

492 U.S. 469, 484-85, 109 S.Ct. 3028, 3037-38 (1989). In this case,

the Court has followed that practice and considers the issue of

overbreadth only in addition to the compelling interest analysis

that is first considered.

8 Defendants further argue that since Plaintiff’s opposi-

tion and reply memorandum was filed late, this Court should

disregard the opposition and reply in its totality as untimely. See

Def. Reply Memorandum, filed March 12, 1993. It is within the

Court’s discretion to fashion an appropriate remedy for late-

filed memoranda. Local Rule 100-3. The Court's remedy need

not entail disregarding arguments raised in late-filed mem-

oranda. /d.

52a

parties’ stipulation because it felt that additional exam-

ination of the purposes advanced by the Hawaii State

Legislature in passing § 11-216(d) was required before the

court could proceed with a “compelling interest anal-

ysis.” See Order Rejecting Stipulation of Dismissal. Defen-

dants thereafter decided to defend the constitutionality of

HRS § 11-216(d) as applied to “charging parties.” From

the start, however, this Court has been considering a

facial challenge to HRS § 11-216(d), not simply an as-

applied challenge. The parties’ prior stipulation sought,

and Plaintiff’s current motion for summary judgment

seeks both a declaratory ruling that HRS § 11-216(d) is

unconstitutional and a permanent injunction enjoining

the enforcement of HRS § 11-216(d).!9 See Bullfrog Films,

Inc. v. Wick, 646 F.Supp. 492, 507 (1986), aff'd, 847 F.2d 502

(9th Cir. 1988) (“A facial challenge means that the regula-

tion could never be applied in a valid manner . . . both

species of challenge - facial and as applied —- are ques-

tions of law which may be freely addressed.”) (citing

Members of the City Council v. Taxpayers for Vincent, 466

U.S. 789, 796-98, 104 S.Ct. 2118, 2124-25 (1984)).

Overbreadth falls within the ambit of issues a court

can properly address when considering such facial chal-

lenges:

19 It is Defendants who are determined to defend HRS

11-216(d) “as applied to charging parties,” not Plaintiff. See Def.

Cross-Motions at 2, filed February 25, 1993. Plaintiff's challenge

to the statute has always sought its permanent invalidation, not

simply a ruling that as applied to him it is unconstitutional. See

Pl. complaint at 6-7, filed July 2, 1992; Pl. Motion for Summary

Judgment, filed February 1, 1993.

53a

“{O]verbreadth is not used only to describe the

doctrine that allows a litigant whose own con-

duct is unprotected to assert the rights of third

parties to challenge a statute, even though “as

applied” to him the statute would be constitu-

tional. “Overbreadth” has also been used to

describe a challenge to a statute that in all its

applications directly restricts protected First

Amendment activity and does not employ

means narrowly tailored to serve a compelling

governmental interest. .. .

* * *

Whether that challenge should be called “over-

breadth” or simply a “facial” challenge, the

point is that there is no reason to limit chal-

lenges to case-by-case “as applied” challenges

when the statute on its face and therefore in all

its applications falls short of constitutional

demands.

Secretary of State of Md. v. Joseph H. Munson Co., 467 US.

947, 965-66 n.13, 104 S.Ct. 2839, 2851-52 n.13 (1984).

Even if no party were to have raised the issue of

overbreadth, there is authority for the proposition that a

court may sua sponte raise issues concerning the facial

validity of particular provision. See Celotex Corp. v. Cat-

rett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554 (1986)

(“[D]istrict courts are widely acknowledged to possess

the power to enter summary judgments sua sponte, so

long as the losing party was on notice that she had to

come forward with all of her evidence.”) (citing 10A C.

Wright, A. Miller, & M. Kane, Federal Practice and Pro-

cedure § 2720, pp. 28-29 (1983)). See also Bullfrog Films,

646 FSupp. at 507, aff'd, 847 F.2d 502 (9th Cir. 1988)

54a

(district court sua sponte declared unconstitutional a regu-

lation because it was “apparent to the Court that [the]

regulation is facially inconsistent with the First Amend-

ment because it is vague?° and requires a non-neutral

content examination”). C.f. Taxpayers for Vincent, 466 U.S.

789, 796-99, 104 S.Ct. 2118, 2124-25 (1984) (“This ‘over-

breadth’ doctrine has its source in Thornhill v. Alabama,

310 U.S. 88, 60 S.Ct. 736 (1940). . . . The Court has

repeatedly held that such a statute may be challenged on

its face even though a more narrowly drawn statute

would be valid as applied to the party in the case before

it. This exception from the general rule is predicated on a

judicial prediction or assumption that the statute's very exis-

tence may cause others not before the court to refrain from

constitutionally protected speech or expression.”) (emphasis

added).

Since, in this case, both Plaintiff and Defendants?!

have addressed the issue of overbreadth, and since this

Court has from the start, been considering invalidating

HRS § 11-216(d) on its face, the Court finds it appropriate

to address the issue of overbreadth both in opposition to

Defendants cross motions and in support of Plaintiff's

motion for summary judgment.

20 “Because vagueness closely parallels overbreadth in its

deterrence of protected expression, the analysis of excessive

vagueness in the first amendment area closely parallels that of

overbreadth: The expression deterred by a vague statue must be

both real and substantial.” TRIBE, AMERICAN CONSTITU-

TIONAL LAW § 12-32 at 1035 (2nd ed. 1988).

21 Defendants address the issue of overbreadth in their

March 12, 1993, reply memorandum.

a islstl ina So

ool > Med or

55a

2. Case Law

The overbreadth doctrine, as developed by the

United States Supreme Court, holds that a law is void on

its face if it “does not aim specifically at evils within the

allowable area of [government] control, but. . . sweeps

with its ambit other activities that constitute an exercise”

of protected expressive or associational rights. TRIBE,

AMERICAN CONSTITUTIONAL LAW § 12-27 (1988) (cit-

ing Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736

(1940) (statute prohibiting picketing void on its face since

it bans peaceful picketing protected by the first amend-

ment)); see also Board of Airport Com’rs of Los Angeles v.

Jews for Jesus, 482 U.S. 569, 107 S.Ct. 2568 (1987) (unani-

mously invalidating rule which proscribed all “First

Amendment activities” in airport terminal). “A plausible

challenge to a law as void for overbreadth can be made only

when (1) the protected activity is a significant part of the

law’s target, and (2) there exists no satisfactory way of

serving the law’s constitutional from its unconstitutional

applications so as to excise the latter clearly in a single

step from the law’s reach.” TRIBE, AMERICAN CONSTI-

TUTIONAL LAW § 12-27.

In Board of Airport Com’rs of Los Angeles v. Jews for

Jesus, 482 U.S. 569, 107 S.Ct. 2568 (1987), the Supreme

Court, in striking down an airport regulation which

banned all “First Amendment activities” stated:

Under the First Amendment overbreadth doc-

trine, an individual whose own speech or con-

duct may be prohibited is permitted to

challenge a statute on its face “because it also

threatens others not before the court — those

56a

who desire to engage in legally protected

expression but who may refrain from doing so

rather than risk prosecution or undertake to

have the law declared invalid.” Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct.

2894 (1985). A statute may be invalidated on its

face, however, only if the overbreadth is “sub-

stantial.”

Board of Airport Com’rs of Los Angeles, 482 U.S. at 574, 107

S.Ct. at 2572; see also Forsyth County, Ga v. Nationalist

Movement, 112 S.Ct. 2395, 2400-2401 (1992) (“It is well

established that in the area of freedom of expression a

overbroad regulation may be subject to facial review and

invalidation, even though its application in the case

under consideration may be constitutionally unobjection-

able.”)

3. The Requirement of Substantial Overbreadth

“The doctrine of ‘substantial overbreadth’ is a crite-

rion the Court has invoked to avoid striking down a

statute on its face simply because of the possibility that it

might be applied in an unconstitutional manner.” Joseph

H. Munson Co., 467 U.S. at 964, 104 S.Ct. at 2851. “It is

appropriate in cases where, despite some possibility of

impermissible application, the ‘remainder of the stat-

ute . . . covers a whole range of easily identifiable and

constitutionally proscribable . . . conduct... . °” Id.

(quoting CSC v. Letter Carriers, 413 U.S. 548, 580-81, 93

S.Ct. 2880, 2897-2898 (1973). “In such a case, the Court

has required a litigant to demonstrate that the statute “as

applied” to him is unconstitutional.” Id.

57a

“A statute drafted narrowly to reflect a close nexus

between the means chosen by the legislature and the

permissible ends of government is thus not vulnerable on

its face simply because occasional applications that go

beyond constitutional bounds can be imagined.” TRIBE,

AMERICAN CONSTITUTIONAL LAW § 12-28 at 1025

(2nd ed. 1988).

4. Narrowly Construing a Facially Overbroad

Statute

“[A] court can adopt an adequate saving construction

only if the surviving portion of the statute clearly and

unambiguously restricts conduct that is not privileged by

the first amendment - and only such conduct. By pruning

a statute of its overbroad sections, courts run the risk of

leaving the remainder impermissibly vague.” TRIBE,

AMERICAN CONSTITUTIONAL LAW § 12-29, at 1030

(2nd ed. 1988).

In Board of Airport Com’rs of Los Angeles, the United

States Supreme Court, after determining that the statute

was overbroad, considered whether the challenged regu-

lations could be narrowly construed to withstand judicial

invalidation, stating:

The difficulties in adopting a limited construc-

tion of the resolution are not unlike those found

in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316

(1964). At issue in Baggett was the constitu-

tionality of several statutes requiring loyalty

oaths. The Baggett court concluded that absten-

tion would serve no purpose given the lack of

any limiting construction, and held the statutes

unconstitutional on their face under the First

58a

Amendment overbreadth doctrine . . . Here too,

it is difficult to imagine that the resolution could

be limited by anything less than a series of

adjudications, and the chilling effect of the reso-

lution on protected speech in the meantime

would make such case-by-case adjudication

intolerable.

Board of Airport Com’rs of Los Angeles, 482 U.S. 569 at

575-76, 107 S.Ct. at 2572-73.

THE CASE AT BAR

A. The Test To Be Applied

First, it is clear, based on the reasoning of Landmark

and Baugh, that HRS 11-216(d) is a “content-based”

restriction on protected speech. The provision, even in its

limited use proposed by Defendant, concerns public dis-

cussion of the existence of a complaint filed with the

Campaign Spending Commission. This is a regulation

that “restricts speech precisely because of the information

that the speech contains.” Police Department v. Mosley, 408

U.S. 92, 92 S.Ct. 2286. It is not a “content-neutral” regula-

tion that “involves an incidental interference with speech

merely as a byproduct of the government’s effort to regu-

late some evil unconnected with the content of the

affected speech.” Ward v. Rock Against Racism, 491 U.S.

781, 797-801, 109 S.Ct. 2746, 2757-59.

Accordingly, this regulation is subject to strict scru-

tiny and requires a governmental showing that the regu-

lation in question is necessary to serve a compelling state

interest and that it is narrowly drawn to achieve that end,

59a

utilizing the least restrictive means possible. Carey, 447

U.S. 455.

B. Possible State Interests

While Defendants’ Cross Motion does not fully set

out potential compelling state interests,22 the above-

discussed case law yields the following possible interests

to be served by keeping confidential proceedings before

the Campaign Spending Commission:

1. Confidentiality is thought to encourage the

filing of complaints and the willing partici-

pation of relevant witnesses by providing

protection against possible retaliation or

recrimination. See Landmark, 435 U.S. at

834-36, 98 S.Ct. at 1539-40; Newton, 723

F.Supp. at 856; Doe, 748 F.Supp. at 1522-23;

Kamasinski, 797 F.Supp. at 1092-93; Butter-

worth, 110 S.Ct. at 1380.

2. At least until the time when the meritorious

can be separated from the frivolous com-

plaints, the confidentiality of the proceed-

ings protects those complained of from the

*2 Defendants’ March 12, 1993, reply memorandum sets

forth the following potential compelling state interest:

“§ 11-216(d) is backed by compelling justifications in light of the

First Amendment interests it protects, namely those of partici-

pants in the political process who have the substantive right to

make contributions, in some contexts even anonymously, with-

out the threat of protracted state proceedings which could

“chill” First Amendment activity.” Defendants’ Reply Mem-

orandum In Support Of Cross-Motion For Judgment On The

Pleadings, Or, In The Alternative, Summary Judgment.

60a

publication of unexamined and unwar-

ranted complaints. Id.

3. To prevent a complainant from enhancing

the veracity and credibility of his complaint

by invoking the name of the Campaign

Spending Commission. Id.

4. Confidence in the Legislature is maintained

by avoiding premature announcement of

groundless claims of campaign contribution

violations since it can be assumed that some

frivolous complaints will be made against

Legislators who rarely can satisfy all con-

tending constituents. Id.

5. Confidentiality is thought to promote the

effectiveness of an investigation. Id.

While the Court recognizes the importance of these

interests, it is not convinced that these interests are suffi-

ciently compelling to justify the restriction imposed by

HRS § 11-216(d) on protected First Amendment Speech.

Nor is the Court convinced that HRS § 11-216(d) is nar-

rowly drawn to achieve its ends, utilizing the least

restrictive means possible.

1. Chilling First Amendment activity - campaign

contributions

The Court finds overstated Defendants’ claim that

speech concerning the fact of the filing of a complaint, in

violation of HRS § 11-216(d), will have a chilling effect on

6la

third parties who wish to make campaign contributions.?3

Defendants themselves state that HRS § 11-216(d) could

not restrict Plaintiff Lind from “complaining generally

(and publishing) his opinion that UHPA had violated the

campaign spending laws.”Def. Cross-Motions at 5, filed

February 25, 1993. Moreover, Defendants state, HRS

§ 11-216(d) in no way “prohibits Mr. Lind from filing a

complaint with the Commission, and also complaining

generally (and publishing) his opinion that UHPA had

violated the campaign spending laws.” Id. By Defendants

own admission, the most HRS § 11-216(d) does is to

restrict Plaintiff from stating or publishing the fact that a

complaint has been filed with the Campaign Spending

Commission until a probable cause determination is

made by the Commission and, if no probable cause is

found, to keep confidential the entire record of the pro-

ceedings at the option of the person complained of.

Accordingly, its chilling effect occurs only when third-

party contributors are dissuaded from making campaign

contributions, not as a result of allegations of impropri-

ety, but as a result of the statement, in addition to an

allegation of impropriety, that a formal complaint has

*3 Defendants’ position, in effect, asks that this Court

uphold HRS § 11-216(d)’s restriction on First Amendment pro-

tected speech in order to guard against the potential chilling

effect that a removal of HRS § 11-216(d)’s restriction may have

on another form of First Amendment protected speech - cam-

paign contributions.

62a

been filed.24 Indeed, the greatest chilling of campaign

contributions would likely occur as a result of the mere

existence of a statute which imposes rules governing such

contributions. The Court does not find Defendants’ argu-

ments compelling.

2. The Grand Jury Analogy

The above-listed possible state interests, with the

exceptions of confidence in the Legislature and reputa-

tional interests, are most analogous to state interests set

forth in the grand jury settling.25 The main thrust of these

interests is to promote the effectiveness of investigations.

In the context of campaign spending commission

complaints, however, these interests lose much of their

force. The grand jury process promotes effective investi-

gations by maintaining confidentiality not only of the fact

of the proceedings, but also by ensuring that the person

24 Even if some chilling effect on third-party contributions

were to occur as a result of violations of HRS § 11-216(d), a “no

probable cause” determination by the commission likely pro-

vides a better means for exculpating non-guilty parties than any

other existing legal remedy.

25 J.e., that (1) prospective witnesses would be hesitant to

come forward voluntarily, knowing that those against whom

they testify would be aware of that testimony; (2)witnesses

would be less likely to testify fully and frankly before the Com-

mission, as they would be open to retribution as well as induce-

ments; (3) the risk that those about to be investigated would flee

or try to improperly influence the Commissioner. See Butter-

worth, 494 U.S. at 630, 110 S.Ct. at 1380.

63a

being investigated is unaware of an ongoing investiga-

tion. In the campaign spending commission context, how-

ever, HRS § 11-216(d) makes clear that the person

complained of would be aware of an investigation?¢ from

the start. As a result, the grand jury concerns regarding

undue influence, retribution, and inducement are simply

inapplicable to the campaign spending commission con-

text. In terms of expediting investigations, the Court is

simply not convinced that speech about the existence of a

campaign spending commission complaint will so hinder

the process so as to be, in and of itself, a compelling state

interest.

Likewise, the Court is unconvinced that the interests

in maintaining confidence in the legislature, or the poten-

tial harm to reputational interests that may occur as a

result of speaking to the fact that a complaint has been

filed with the Campaign Spending Commission, rise to

the level of compelling interests sufficient to justify HRS

§ 11-216(d)’s restriction on protected First Amendment

speech.

Accordingly, for the above-stated reasons, this Court

finds that there are no compelling state interests which

would justify the restrictions on protected First Amend-

ment free speech and free press that would result from

application of HRS § 11-216(d).

26 HRS § 11-216(b) states: “The commission shall give

notice of receipt of the complaint together with a copy of the

complaint to the person cited and shall afford the person an

opportunity to explain or otherwise respond to the complaint.

The commission may also cause an investigation to be made of

the complaint.” Id.

64a

C. Construing Hawaii Revised Statutes, Section

11-216(d)

When construing a statute, “the beginning point

must be the language of the statute, and when a statute

speaks with clarity to an issue judicial inquiry into the

statute’s meaning, in all but the most extraordinary cir-

cumstance is finished.” Estate of Cowart v. Nicklos Drilling

Co., 112 S.Ct. 2589 (1992). See also Norfolk & Western v.

American Train Dispatchers, 111 S.Ct. 1156, 1163 (1991).

HRS § 11-216(d), when read for its plain meaning,

clearly applies to third parties and clearly applies even

after a determination of no probable cause by the Com-

mission. See supra p.1 n.1. Section 11-216(d) cannot, as

Defendants assert, be plausibly read to require confiden-

tiality from only the Commission staff. As written, Sec-

tion 11-216(d) is plan and unambiguous.

1. HRS § 11-216(d) applies to 3rd Parties

Although HRS § 11-216(d) does not itself answer the

question of who is subject to the statute’s confidentiality

requirement, HRS § 11-216(d), the section covering viola-

tions of the entire subpart (§§ 11-191 through 11-229),

states that “[a]ny person violating any provision of this

subpart ... shall be guilty of a petty misde-

meanor...or...a fine not exceeding $1,000.” Id. When

read for its plain meaning, the “any person” language of

§ 11-228 clearly would include commission staff, com-

plainants, as well as third parties within the ambit of

65a

§ 11-216(d)’s restriction. Defendants’ claim that the stat-

ute can be read to apply only to the Commission staff

requires an improper stretch in statutory construction.?7

2. HRS § 11-216(d) applies AFTER a no proba-

ble cause determination

Section 11-216(d) likewise clearly requires that the

fact of filing of the complaint be kept confidential even

after a determination of no probable cause is made by the

Commission. The statute requires that “all proceedings,

including the filing of the complaint, investigation, and

hearing” be kept confidential “[u]ntil a determination of

probable cause is made by the commission.” Id.

(emphasis added). The statute further requires that “the

entire record of the proceedings” be kept confidential

after a determination of no probable cause is made. Id.

When read for its plain meaning, it is clear that the

language, “including ‘ne filing of the complaint,” is to be

included within the “entire record of the proceedings”

which shall be kept confidential even after a determina-

tion of no probable cause is made. Id.

27 Indeed, this case may not have arisen at all if, as Defen-

dants assert should be the case, HRS § 11-216(d) were read to

require confidentiality only on the part of the Commission staff.

It was the Campaign Spending Commission itself which

decided to treat UHPA’s request for clarification on HRS

§ 11-216(d)’s applicability to Plaintiff Lind as a complaint

against Plaintiff for violation of HRS § 11-216(d). Plaintiff is a

complainant and not a Commission staff member. Therefore, the

Commission itself has applied HRS § 11-216(d) to more than

merely the Commission staff.

66a

The legislative history of HRS § 11-216(d), attached

as an exhibit to Paintiff’s [sic] Motion For Summary Judg-

ment is unhelpful in this instance. At most, the legislative

history appears to suggest some of the same state inter-

ests that exist in the grand jury setting, i.e, due process

and facilitation of investigations.?8

D. Overbreadth

Landmark makes clear that as applied to third-parties,

HRS § 11-216(d) would be unconstitutional. Since HRS

§ 11-216(d), when read for its plain meaning, applies to

third parties, it is unconstitutionally overbroad.

Likewise, none of the cited cases, including

Kamasinski, stand for the proposition that the fact of the

filing of a complaint can be kept confidential after a

determination by the Commission. After a determination

by the commission, the only possible remaining state

interests served by requiring confidentiality of the fact of

filing of the complaint are reputational. See Butterworth,

494 US. at 631-35, 110 S.Ct. at 1381-83. Butterworth makes

clear that reputational interests alone are not compelling.

Id. Since HRS § 11-216(d), by its terms, requires confiden-

tiality, at the option of the person complained of, even

28 The House Standing Committee Report No. 176 noted

the addition of a confidentiality requirement to what became

HRS § 11-216(d), stating that “Witnesses and parties participat-

ing in Commission proceedings pursuant to this section maybe

placed under the same constraints as jurors who are deliberat-

ing cases in court. Thus, the Commission may admonish partici-

pants to maintain the confidentiality of the proceedings.” Act

327, 1975 Session Laws.

67a

after a showing of no probable cause, it is, again, uncon-

stitutionally overbroad.

1. Substantial Overbreadth

As discussed, “ ‘substantial overbreadth’ is a crite-

rion the United States Supreme Court has invoked to

avoid striking down a statute on its face because of the

possibility that it might be applied in a constitutional

manner.” See supra Joseph H. Munson Co., 467 U.S. at 964,

104 S.Ct. at 2581. The criterion of substantial overbreadth

does not apply where there is no easily identifiable, con-

stitutionall

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