# Petition for Writ of Certiorari — Wang v. Lind

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1111

## Text

‘) 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?

ii
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

iV

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

vi

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

a

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,
v.
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.

e

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.

o-

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.

(c) Upon hearing the response of the person
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.

(c) The provisions of this section shall not be
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.

(c) Prosecution for violation of any provision
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

10

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

11

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”

12

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

13

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.

14

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.

15

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

16

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

17

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,

18

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),

19

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

20

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

21

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

id

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

22

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

23

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

24

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

+
x
.
|

3
x
3
z
3
4
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25

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

26

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

j
:
i
|
:

ho
SJ

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.

_

la

APPENDIX “A”

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IAN Y. LIND,

Plaintiff-Appellee,
V.

)
)
)
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.

2a

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

3a

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.

4a

‘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

EE

5a

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
A

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).

6a

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

7a

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.

8a

[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.

1

[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)

9a

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.

2

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
A

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

© The State implies that issues of fact are involved, having
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.

B

[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.

(c) The provisions of this section shall not be
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.

ee

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.

WI

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

Ne

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

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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).

ee

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.

© The Landmark Court expressly recognized three possible

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!

'© HRS § 84-31 provided in relevant part:

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 qu

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0839%3A1. Public record. Not legal advice.