Petition for Writ of Certiorari — Arkansas Right to Life State Political Action Committee v. Butler

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OS.

Supreme Court,

(1) PILED

981040 DEC 28 1998

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

ARKANSAS RIGHT TO LIFE STATE POLITICAL

ACTION COMMITTEE, and DAVID SLOAN,

Petitioners,

BRAD BUTLER, State Attorney for Benton County,

Arkansas; TROY BURRIS, Chairman and Member of the

Arkansas Ethics Commission; RITA LOONEY, Member of

the Arkansas Ethics Commission; BEN ALLEN, Member

of the Arkansas Ethics Commission; JACK

KEARNEY, Member of the Arkansas Ethics Commission;

and TOM ALEXANDER, Member of the Arkansas Ethics

Commission; all in their official capacities,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

James Bopp, Jr.

Counsel Of Record

Rosert J. NEWMEYER

Bopp, CoLteson & Bostrom

1 South Sixth Street

Terre Haute, IN 47807-3510

(812) 232-2434

Counsel for Petitioners

December 28, 1998

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

OR CALL COLLECT (402) 342-2831

QUESTIONS DEALT WITH HEREIN

Did the Eighth Circuit err by joining the Ninth Circuit

in adopting the premise that the good faith of official

capacity state defendants is a “special circumstance”

that renders an award of attorney’s fees under §1988

“unjust,” in contrast to the First, Second, Third,

Fourth, Fifth, Sixth, Seventh, Tenth and Eleventh Cir-

cuits which hold that a defendant’s good faith is not a

factor in determining a §1988 fee award?

Does the fact that an unconstitutional state law is

created by ballot initiative, when combined with the

ordinary circumstance of governmental defendants’

good faith, constitute “special circumstances” justify-

ing the complete denial of attorney fees under §1988

to a prevailing §1983 plaintiff?

To justify the complete denial of §1988 fees as

“unjust” to a prevailing §1983 plaintiff, may a court

find “special circumstances” from the “totality” of a

combination of factors, none of which by themselves

constitute a “special circumstance”?

Should this Court exercise its supervisory authority,

vacate the judgment of the court below, and remand

for findings and conclusions or other articulation of

the “special circumstances” present which justify the

complete denial of §1988 fees, necessary to allow

meaningful review and in accordance with Hensley v.

Eckerhart?

LIST OF PARTIES

The names of all defendants-appellants to the pro-

ceedings in the court whose judgment is sought to be

reviewed appear in the caption of the case. There is no

parent or subsidiary company of any party that is listed.

Petitioners believe the following intervenors as

defendants-appellants in the court below have no interest

in the outcome of the petition: Genevieve Stewart; Paul

Kelly; Association of Community Organizations for

Reform Now Political Action Committee; and Local 100,

Service Employees International Union Political Action

Committee.

lil

TABLE OF CONTENTS

Page

QUESTIONS DEALT WITH HEREIN............... i

ee ee Es oes CHET Es eo auve kb ud uln'n odes ii

ee Ct A Ds rie aks tepare ween netess es iii

pe OS Sa Be tty 8 6g) 6 a aaa ar area arae vii

OPINIONS AND ORDERS BELOW ................ l

EAE PENT SPE. PRP IRIEPIG. BEAIIN oc crane ce diassecanes 1

CONSTITUTIONAL AND STATUTORY PROVI-

ee i ly os a ans oe pk RS Oe 2

SATEMInY OF THE CASE... «<6. 5. ccciae 0s. 2

Ne A ek kia S eee 2

rade ed eS ea ass oiled ee ROOM 4

REASONS FOR GRANTING THE WRIT ........... 6

i, NN sce sd ale CCL c Uw a ee none sane ks 6

Il. The Eighth and Ninth Circuit Decisions Treat-

ing the “Good Faith” of Official Capacity State

Defendants as a “Special Circumstance”

Depart from this Court’s Prior Decision in

Supreme Court of Virginia v. Consumers Union

and Create a Split From All of the Other Cir-

CURED ck ee sts ee What nee ede Rec rev ekert reesei 5

A. The Eighth Circuit Order Under Review

Implicitly Adopted a Per Se Rule for Initia-

tive Cases Where the State Defendants Act

We SHC eva h cos aeewkeg nama ees 8

TABLE OF CONTENTS —- Continued

Page

B. Treating Official Capacity Defendants

“Good Faith” as a “Special Circumstance”

is a Direct Departure from Existing Law

and a Split from the District of Columbia,

First, Second, Third, Fourth, Fifth, Sixth,

Seventh, and Eleventh Circuits .......... 10

C. Except for the Initiative-law Factor, All of

the Individual “Special Circumstances” in

Thorsted Have Been Dismissed by Other

Courts as an Insufficient Basis for Denying

SIG0N POM Se ee ee 11

D. None of the Reported Cases from the

Courts of Appeals have Heretofore Sin-

gled Out Initiative Cases for Denying

PEPER FG 55 RASA ERK OO HS CORE REELS 14

Ill. Carving Out Initiative-created Legislation as a

“Special Circumstance” Justifying a Complete

Denial of §1988 Fees to a Prevailing §1983

Plaintiff Fosters an Intolerable Condition Sti-

fling “Citizen Attorney General” Action, in a

Complete Departure from Prior Case Law and

in Contravention of the Congressional Pur-

GOS TOTAL BASED 5 hepa whee ecb d eevee 16

A. Legislation by Ballot Initiative Is Growing

More Popular in the Twenty-four States

Which Have Such Process, Yet Are More

Susceptible to Trenching on Citizens’ Con-

SUITAITIOHINT TI in 5s ee eae 18

1. The Popularity of Ballot Initiatives. .... 18

2. Especially in the Area of Campaign

Finance “Reform,” Unconstitutional

SrutinsiGes AOA oo bia sci ke 21

TABLE OF CONTENTS -— Continued

Page

B. The Purpose of §1988 is to Encourage “Pri-

vate Attorney General” Action........... 22

C. The Dangerous Effect of Treating Initiative

Cases as, Per Se, “Special Circumstances”

Cases for Denying Fees ................- 24

IV. By Combining Factors Which by Themselves

Do Not Amount to “Special Circumstances”

the Eighth Circuit, Ninth Circuit, and Perhaps

the Fifth Circuit, Have Created a Split with the

Fourth Circuit, and Have Manufactured a Stan-

dard for Denying Fees that Will Frustrate the

Purpose of §1988 and Always Escape Meaning-

Ce 4 2 MEU eTOTRR PTE ORT Tee eee eet 25

V. This Court Should Exercise its Supervisory

Authority, Vacate the Judgment of the Eighth

Circuit And Remand for Reasons to Allow

Meaningful Review, in Accordance with

Hensley v. Eckerhart ..........s00+seeccvvecees 28

Vi. RICAN ccc sos hopes ae coh hee Set 30

APPENDIX

Appendix A — Order of the United States Court of

Appeals for the Eighth Circuit, dated August

18, 1998 (denying an award of §1988 attorney's

fees to prevailing §1983 plaintiffs) ......... App. A-1l

Appendix B - Opinion of the United States Court

of Appeals for the Eighth Circuit, dated June 4,

1998 (deciding for plaintiffs on the merits)..App. B-1

TABLE OF CONTENTS —- Continued

Page

Appendix C - Opinion of the United States Court

of Appeals for the Eighth Circuit, dated June 4,

1998 (striking down unconstitutional portions

of Arkansas’ Initiated Act I of 1996 in compan-

iON CASE KROSEN D. DMIF). oo ck n isd sch ves App. C-1

Appendix D - Order of the United States Court of

Appeals for the Eighth Circuit, dated Septem-

ber 29, 1998 (denying petition for rehearing

with suggestion for rehearing en banc) .... App. D-1

Appendix E —Order of the United States Court of

Appeals for the Eighth Circuit, dated August

17, 1998 (denying an award of §1988 attorney’s

fees to prevailing §1983 plaintiffs in companion

CAGE: MASETE Oo UIVES 6 ass) a5 556 8 Hee App. E-1

TABLE OF AUTHORITIES

FEDERAL CASES

Aho v. Clark, 608 F.2d 365 (9th Cir. ip | Pes

American Booksellers Ass'n v. Commonwealth of Vir-

ginia, 802 F.2d 691 (4th Cir. 1986).......... 11,

Americans for Medical Rights v. Heller, 2 F. Supp. 2d

ROE Tes ROU SOUR G ys hacker oie be ie ete cts

Annunziato v. The Gan, Inc., 744 F.2d 244 (2nd Cir.

SONI 4s da Vand ada CA Ree ee

Arkansas Right to Life v. Butler, slip op., Case No.

97-5064 (W.D. Ark. Dec. 8, 1998)..............

Arkansas Right to Life State Political Action Commit-

tee v. Butler, 146 F.3d 558 (8th Cir. 1998)......

Arkansas Right to Life State Political Action Commit-

tee v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997)

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1968)...

Blanchard v. Bergeron, 109 S. Ct. 939 (1989) ......

Blum v. Stenson, 465 U.S. 886 CE as soos,

Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980)....

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

Burke v. Guiney, 700 F.2d 767 (1st Cir. 1983).....

Burney v. Housing Authority, 735 F.2d 113 (3rd Cir.

RUE» WV epitie Ciba bie Soc ENs PE GAs eee

California ProLife Council v. Scully, 989 F. Supp.

iO APM: ROPER Loos 5s veer Ohh eek e

14, 27

aay ae

Vili

TABLE OF AUTHORITIES — Continued

Page

Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), cert.

dented; SVG US, 2058 C29WB) oii ns cede 21

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

Ne | SSE per Ue aE Peta e ke mY oer Pe tr 26

Citizens Against Rent Control v. City of Berkeley, 454

i Gre AAAS cc ivi Sakae Cae er vaekuces eeerotss eae 17

City of Riverside v. Rivera, 477 U.S. 561 (1986) ....... 23

Coalition for Basic Human Needs v. King, 691 F.2d

WOT Cy. 2ORI os ee e 14

Colorado Right to Life v. Buckley, slip op., Case Nos.

96-2844, 96-2973, 97-221 (D. Colo. Apr. 17, 1998) .... 21

Cooper v. Dupnik, 924 F.2d 1520 (9th Cir. 1991),

rehearing granted, 933 F.2d 798, on rehearing, 963

PIG SRA s 054558 orks EVER AD OAs teers 16

Council for Periodical Distributors Ass'ns v. Evans,

Ba? F.2G 26G2 LERGN Sah, PBF 55 oink Sos secnee vecin. 13

Daggett v. Kimmelman, 617 F. Supp. 1269 (D.N.J.

1985), aff'd in part and remanded on other grounds,

S5i Feet FOS fONe Ce Fs ina ose 15

Dahlem v. Board of Education of Denver Public

Schools, 901 F.2d 1508 (10th Cir. 1990)........... 7,45

Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954

PE Rt es oak cc oe Res Oa od haa ees 27

Espino v. Besteiro, 708 F.2d 1002 (Sth Cir. 1983)...... 11

Farrar v. Hobby, 113 S. Ct. 566 (1992). «os. eee ees 6

Sees Ch he soy OE EAO LNG

TABLE OF AUTHORITIES - Continued

Page

Goss v. City of Little Rock, __ F.3d __, 1998 WL

459858 (Sth Cir. Aug. 10, 1998) ................... 12

Harahan v. Hampton, 446 U.S. 754 (1980)........... 5, 6

Hastert v. Illinois State Board of Election Commission-

ers, 28 F.3d 1430 (7th Cir. 1993)................... 12

Hatfield v. Hays, 877 F.2d 717 (8th Cir. 1989)......... 29

Haycraft v. Hollenbach, 606 F.2d 128 (6th Cir. 1979) .... 11

Hensley v. Eckerhart, 461 U.S. 424 COP i cea. 6, 17, 28

Hewitt v. Helms, 482 U.S. 755 (1987).................. 5

Holley v. Lavine, 605 F.2d 638 (2nd Cir. 1979), cert.

Ee, AO Tee 88S CIO oss ok esas

Hutto v. Finney, 437 U.S. 678 (1978) .............. 10, 13

Johnson v. State of Mississippi, 606 F.2d 635 (5th Cir.

kg AONE POND Aiea Sten ae Ail ANSE a tice a 14

Lampher v. Zagel, 755 F.2d 99 (7th Cir. 1985)......... 1]

Lewis v. Kendrick, 944 F.2d 949 oo Bf See yy § Mae 16

Little Rock School District v. Arkansas, 127 F.3d 693

OM eM BYP revi ian eh ee

Love v. Deal, 5 F.3d 1406 (11th Cir. 1993)......... 15, 16

Maher v. Gagne, 448 U.S. 122 (1980)................. 12

Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985) (en

WON ern ee ee ee ee es 11

Miller v. Staats, 706 F.2d 336 (D.C. Cir. WHE ks 8s Bk 11

Montana Chamber of Commerce v. Argenbright, slip

op., Case No. 97-6-H-CCL (D. Mont. Oct. 1998) .... 21

TABLE OF AUTHORITIES — Continued

Page

Morse v. Republican Party of Virginia, 972 F. Supp.

Bee TEAR. NR ART ks Soa ses ee ee 27

National Black Police Association v. District of

Columbia Board of Elections, 924 F. Supp. 270

(D.C.D.C. 1996), vacated as moot, 108 F.3d 346

{98 Ones te EL 4 Mere yp noe mie mad ph geet Ue te a bhy Pomme 21

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

SI A oo ee ae ee | eo Se

Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2nd

ke op er eon irr ee Te re orn pene hep yew 30

Phelps v. Hamilton, 120 F.3d 1126 (10th Cir. 1997) .... 13

Phillips v. Smalley Maintenance Services, Inc., 711

PF TO CRT GAGs BOR ed 6 eA eck esa ta eoaes 14

Reitman v. Mulkey, 387 U.S. 369 (1967)............... 20

Riddell v. National Democratic Party, 624 F.2d 539

fe ae). Re renee ter arp ale ent ene mie 16

Robins v. Harum, 773 F.2d 1004 (9th Cir. 1985)....... 16

Roe v. Cheyenne Mountain Conference Resort, Inc.,

528 Pie Ak CHO RAR AP foie vic scardaxss r Pay es ek

Romer 0. Boas, Sis WS. GID CA9SG) ce oe hac eoe cs is 20

Rose v. Heintz, 806 F.2d 389 (2nd Cir. 1986).......... 11

Rose v. Nebraska, 748 F.2d 1258 (8th Cir. 1984), cert.

meshed, GF ALG: GAS CII coos Bic s Sess 4 is 15

Russeli v. Burris, 146 F.3d 563 (8th Cir. 1998), cert.

dented, 67 TIS.L.W. 3332 UNOV. 17, 1998) 6. 6 ce ce sss 1

Supreme Court of Virginia v. Consumers Union of the

15.5: Gg Be Fe Ee Beas Seka 6, 8, 10

TABLE OF AUTHORITIES - Continued

Page

Teitelbaum v. Sorenson, 648 F.2d 1248 (9th Cir. 1981) .... 14

Thorsted v. Gregoire, 841 F. Supp. 1068 (W.D. Wash.

1994), aff'd sub nom, Thorsted v. Munro, 75 F.3d

454 (9th Spat. Roop AOE CUPID, oo ess sy op ccs passim

Tyler v. City of Manhattan, 866 F. Supp. 500 (D.

Ps SNS aC Gas Ce eg ts Gana kn oo ES Ok i eas 7

U.S. Term Limits, Inc. v. Thorton, ___ U.S. __, 115 S.

Os Ree AON oo cs RCE des aa eA Hh ee sees 20

U.S. v. 27.09 Acres of Land, 43 F.3d 769 (2nd Cir.

RPOMES EES SURREAL ORS ORV CARES CMEE Ee ba eee CAPR ERS 16

Vannatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998) .... 21

Venegas v. Mitchell, 495 U.S. 82 (1990)............... 12

Williams v. Hanover Housing Authority, 113 F.3d

we AGES © Re 8 (3 eee ona epi aoe tre eee 1]

Yniguez v. Arizonans for Official English, 69 F.3d 920 -

(9th Cir. 1995), vacated as moot sub nom., Arizo-

nans for Official English v. Arizona, 520 U.S. 43

ss a recto ee ea ea 20

Zarcone v. Perry, 581 F.2d 1039 (2nd Cir. 1978), cert.

CONTE OP Shes ST a Ta hk as ks ho ORR 15

STATE CASES

Fritz v. Gorton, 517 P.2d 911 (Wash. 1974) (en banc) .... 19

Vannatta v. Keisling, 931 P.2d 770 (Ore. 1997) ........ 21

FEDERAL STATUTES

Title 28 U.S.C.

Title 42 U.S.C.

Rie

§12

S.C. §

Title 42 U.S.

PR se eee hye, By Bay Bey eo

7 >, SE 4 oe Bre aren etree Ar erate passim

xii

TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976),

reprinted in 1976: VSS A ALN, S908 6s iN ai en de

Brian Buckley, Washington Courts Get Stingy:

Improper De nial of Attorney's Fees Under 42

U.S.C. §§1983 and 1988, 70 Wash. L.Rev. 491

Bg ct ee Oe Oe ere Te Far Gi Tre Aer yay 7

Richard B. Collins and Dale Oesterle, Structuring

the Ballot Initiative: Procedures That Do and Don't

Work, 66 Univ. of Colo. L.Rev. 47 (1995) ....... 18, 25

Cynthia L. Fountaine, Lousy Lawmaking: Question-

ing the Desirability and Constitutionality of Legis-

lating by Initiative, 61 S. Cal. L.Rev. 733 (1988) .... 19

Elizabeth R. Leong, Ballot Initiatives and Identifiable

Minorities: A Textual Call to Congress, 28 Rutgers

By Be cz Bereumen eageny ot Uae Sea, ery aaa rar 19

Hans A. Linde, Practicing Theory: The Forgotten

Law of Initiative Lawmaking, 45 U.C.L.A. Rev.

SFae KOO a 65 kas PER MO PERS EERE eee 20

David B. Magleby, Let the Voters Decide? An Assess-

ment of the Initiative and Referendum Process, 66

Univ. of Colo. L.Rev. 13 (1995)............. 18, 20, 23

Frank I. Michelman, Protecting the People From

Themselves, or How Direct Can Democracy Be?, 45

LALLA, ERE 27a CAs bess tees eo ae 19

Abner J. Mikva, Initiative and Referendum: Better in

Theory, 146 New Jersey L.J. 27 (1996) ............. 19

Daniel M. Warner, Direct Democracy: The Right of

the People to Make Fools of Themselves; the Use and

Abuse of Initiative and Referendum, a Local Gov-

ernment Perspective, 19 Seattle Univ. L.Rev. 47

CRIIOF 66 ca Shi as ba eS EN ee 19

ciuetniticnavattion scala

Flat price 2 eee,

PETITION FOR A WRIT OF CERTIORARI

Petitioners Arkansas Right To Life State Political

Action Committee (ARLSPAC) and David Sloan, respect-

fully request a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eighth Circuit.

OPINIONS AND ORDERS BELOW

The unreported order of the court of appeals denying

petitioners an award of attorney's fees is reproduced in

the Appendix filed herewith (“App.”) at App. A. The

unreported order of the court of appeals denying the

petition for rehearing with a suggestion for rehearing en

banc is reproduced at App. D. The opinion of the court

of appeals making petitioners prevailing parties is

reported at 146 F.3d 558 (8th Cir. 1998), and is reproduced

at App. B. The opinion refers to the companion case of

Russell v. Burris where the Eighth Circuit set out its rea-

sons for striking down portions of Arkansas Initiated Act

I of 1996 (“Act I”) and is reported at 146 F.3d 563 (8th Cir.

1998), cert. denied, 67 U.S.L.W. 3332 (Nov. 17, 1998), and is

reproduced at App. C. The unreported order of the court

of appeals denying an award of attorney’s fees to the

prevailing parties in the companion case of Russell v.

Burris is reproduced at App. E.

STATEMENT OF JURISDICTION

The court of appeals filed its decision denying attor-

ney fees on August 18, 1998. App. A. ARLSPAC and

Sloan timely filed a petition for rehearing. The court of

appeals denied this petition on September 29, 1998. App.

D. ARLSPAC and Sloan invoke this Court’s jurisdiction

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Civil Rights Attorney’s Fees Act of 1976, Pub.L.

94-559, 90 Stat. 2641, as set forth in Title 42 U.S.C. §1988

states:

.. In any action or proceeding to enforce a

provision of sections 1981, 1982, 1983, 1985, and

1986 of this title, title IX of Public Law 92-318, or

title VI of the Civil Rights Act of 1964, the court,

in its discretion, may allow the prevailing party,

other than the United States, a reasonable attor-

ney’s fee as part of the costs.

STATEMENT OF THE CASE

A. Introduction

This petition arises from the complete denial of attor-

ney’s fees to successful plaintiffs in an action brought

under Title 42 U.S.C. §1983. The district court ruled in

plaintiffs’ favor on their challenge to a state restriction on

First Amendment rights of political speech enacted by

popular initiative. All defendants appealed. Plaintiffs

were completely successful in defending on appeal the

decision of the district court in favor of plaintiffs. There-

after, plaintiffs sought an award of fees for their appellate

work, pendente lite, under Title 42 U.S.C. §1988 from the

Eighth Circuit Court of Appeals.

The court of appeals denied outright the motion for

attorney's fees. In so doing, the court did not set forth its

findings, reasoning, or explanation other than by bare

citation to a decision of the United States District Court

for the Western District of Washington: Thorsted v. Gre-

goire, 841 F. Supp. 1068 (W.D.Wash. 1994), aff'd sub nom,

Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996) (per curiam).

In Thorsted, the district court completely denied §1988

fees to successful plaintiffs premised upon a finding of

“special circumstances.” The primary distinguishing

characteristic of both the case below and the Thorsted case

is that each case presented a challenge to initiative-based

statutes that impinged on constitutional rights and in

each case the defendants acted in good faith. Conse-

quently, this case questions the jurisprudential underpin-

nings for singling out initiative cases, and initiative cases

where the governmental defendants act in good faith, as

new categories for completely denying §1988 attorney’s

fees.

Unconstitutional infringements on political speech

and debate place at risk every citizen’s rights, and more

fundamentally, our democratic form of government. By

denying attorney’s fee awards in cases involving laws

created by popular initiative, especially where, as here,

such laws impinge on First Amendment rights of political

speech, the risk of public harm is greatly elevated. At the

same time, the complete denial of attorney fees for these

cases effectively insulates from judicial review those

unconstitutional statutes brought about by the initiative

process. The reason, of course, is that plaintiffs in initia-

tive cases are in little better position to afford litigation

than plaintiffs in other civil rights cases. Consequently, it

is still true that “[i]f successful plaintiffs were routinely

forced to bear their own attorneys’ fees, few aggrieved

parties would be in a position to advance the public

interest by invoking the injunctive powers of the federal

courts.” Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402, (1968).

Thus, the propriety of excepting from §1988 fee

awards, impingements on First Amendment rights

brought about by the initiative process and where the

defendants have acted in good faith, is a question of

exceptional importance.

B. Facts

In November 1996, Arkansas voters passed by a wide

margin a campaign finance reform initiative known as

“Act I.” ARLSPAC is an Arkansas political action commit-

tee formed to support pro-life candidates seeking election

to state office. David Sloan is a resident of Arkansas who

likewise intends to support pro-life candidates for state

office.

Act I dramatica!ly lowered the dollar limits of allow-

able contributions to candidates for state office from

$1,000 to $300 for gubernatorial and state-wide candi-

dates and from $1,000 to $100 for legislative candidates.

ARLSPAC and Sloan brought a pre-enforcement facial

challenge to the contribution limits pursuant to §1983 on

the basis that the lowered limits constituted an

unjustified restriction on their First Amendment rights of

political speech and association. On summary judgment,

the district court agreed and struck down the $300 limits

for guberratorial candidates (granting injunctive relief

and reserving the remaining questions for trial). Defen-

dants and intervenors appealed. The court of appeals

affirmed the district court decision in all respects giving

the plaintiffs a complete victory on the issues appealed.

App. B. In a companion case, Russell v. Burris, the court

of appeals set out its reasons on the merits for striking

down various provisions of Arkansas’ Act I. App. E.

Thus, plaintiffs were prevailing parties for purposes of

entitlement under §1988.! Hewitt v. Helms, 482 U.S. 755

(1987).

; As prevailing parties, ARLSPAC and Sloan (as well

; as the successful plaintiffs in Russell) then requested from

: the court of appeals an award of §1988 fees, pendente lite,2

for work performed defending the appeal.? The court of

appeals without explanation denied the §1988 fee request

citing only the Western District of Washington decision in

Thorsted v. Gregoire. App. A. Appellate §1988 fees were

likewise denied to the prevailing parties in Russell v.

Burris, in identical fashion. App. E. While Thorsted denied

fees because it found seven separate factors constituting

“special circumstances” which it decided would have

made an award of fees unjust, the court of appeals in the

eis A le Sea

case below neither identified what circumstances were

special, nor why such circumstances would make the

ordinary award of attorney’s fees unjust.

' The court of appeals also affirmed the district court’s

ruling in Arkansas Right to Life State Political Action Committee v.

Butler, 983 F. Supp. 1209 (W.D. Ark. 1997), holding that

ARLSPAC and Sloan possessed Article III standing. Following

the appeal, plaintiffs were granted judgment in their favor on all

of the contribution limit claims (Order of the District Court

dated July 15, 1998) as well as their three remaining claims

which addressed issues unreached by the Eighth Circuit in

Russell (Order of the District Court dated December 8, 1998).

2 Hanrahan v. Hampton, 446 U.S. 754, 757-58 (1980).

* According to Rule 47C of the Eighth Circuit Rules of

Appellate Procedure, motions for attorney's fees for work done

on appeal are to be brought before the court of appeals in the

first instance. Little Rock School District v. Arkansas, 127 F.3d 693,

696-697 (8th Cir. 1997).

jini tee ndotee TaN Sten he:

REASONS FOR GRANTING THE WRIT

I. Introduction

This petition is about the ordinary presumption of enti-

tlement to attorney’s fees under §1988 for prevailing plain-

tiffs in constitutional litigation and the narrow exception

for “special circumstances” that would make an award of

fees unjust. The outright fee denial below was incorrect

because there were no circumstances which previous

courts had considered to be “special circumstances.”

This is not a case about the formula employed or the

reasonableness of the amount awarded under §1988, as

was the case in Hensley v. Eckerhart, 461 U.S. 424 (1983) and

Blanchard v. Bergeron, 109 S. Ct. 939 (1989). Neither is this a

case about plaintiff's prevailing party status or whether

plaintiffs’ success was “limited.” E.g., Harahan v. Hampton,

446 U.S. 754 (1980); Farrar v. Hobby, 113 S. Ct. 566 (1992).

Plaintiffs’ success was complete. Nor is this a case about

the timeliness or the proper mechanics for requesting an

attorney’s fee award. E.g., Blum v. Stenson, 465 U.S. 886

(1984). Plaintiffs’ request was timely and proper in all

respects.

As this Court pointed out, “a prevailing plaintiff

‘should ordinarily recover an attorney’s fee unless special

circumstances would render such an award unjust.’ ”

Hensley, 461 U.S. at 429 (quoting S.Rep. No. 94-1011, p. 4

(1976), U.S. Code Cong. & Admin. News 1976, p. 5912

(quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402 (1968)) (emphasis added). That fee awards would

be routine was again recognized in Supreme Court of Vir-

ginia v. Consumers Union of the U.S., Inc., 446 U.S. 719, 738

(1980), where this Court wrote “enforcement authorities

against whom §1983 judgments have been entered would

ordinarily be charged with attorney’s fees.” (Emphasis

added). So routine has the awarding of §1988 fees against

el aio: i i Sat it ae

TEEN eA EP NATL, eT Mees ALES MES

official capacity defendants become, that this Court has

simply described such events as “run-of-the-mill occur-

rences.” Id. at 739. Section 1988 fee awards to successful

civil rights plaintiffs are now a “well established cor-

nerstone of federal attorney fees policy.” Roe v. Cheyenne

Mountain Conference Resort, Inc., 124 F.3d 1221, 1232 (10th

Cir. 1997). Prior to the recent twin decisions of the Eighth

Circuit following the decision of the Ninth Circuit in Tho-

rsted, cases denying fee awards based on the narrow “spe-

cial circumstances” exception have been rare.4

More to the point, no court had singled out initiative

cases for denying §1988 fees, or initiative cases where the

defendants acted in “good faith,” until the decision in

Thorsted,> and no court kad followed Thorsted and denied

fees until the decision under review here.

Thorsted, and thereby the Eighth Circuit’s decision, is

problematic for three principal reasons. First, it relies on

several instances of the official capacity defendants’ “good

faith” as “special circumstances” warranting the denial of

§1988 fees. In so doing, it departed from the teaching of

this Court and created a conflict with every other circuit

court of appeals. Second, it singles out for the denial of

§1988 fees, cases involving statutes enacted by popular

initiative. In penalizing initiative cases, it completely

departed from prior decisions involving “special

+ Dahlem v. Board of Education of Denver Public Schools, 901

F.2d 1508, 1514 (10th Cir. 1990) (“There are few cases denying

attorney fees to a prevailing party as unjust under §1988.”);

Tyler v. City of Manhattan, 866 F. Supp. 500, 501 (D.Kan. 1994)

(“The special circumstances cases are rare and terd to involve

highly unusual conditions.”).

> See generally Brian Buckley, Washington Courts Get Stingy:

Improper Denial of Attorney's Fees Under 42 U.S.C. §§1983 and

1988, 70 Wash. L.Rev. 491 (1995) (discussing Thorsted).

circumstances” cases and its own decisions in initiative

cases. Third, it approved of an unprincipled and illogical

“totality of the circumstances” test which permits building

together “special circumstances” out of a combination of

many factors, none of which are individually special. In

accepting the “totality of circumstances” approach, it

joined the Ninth Circuit’s conflict with the Fourth Circuit.

The practical effect of the Eighth and Ninth Circuit

decisions will be to discourage private citizens from chal-

lenging initiative-made laws. That result is contrary to the

congressional purpose behind §1988. More importantly,

the result tends to insulate from judicial scrutiny uncon-

stitutional restrictions put in place by popular ballot initia-

tives. Governmental officials will normally exercise “good

faith” in defending these laws. Yet, initiative-made legisla-

tion is a growing area where citizen suits may be needed

most. Initiatives are an increasingly favored means of

enacting popular mood legislation. But laws created by

initiative are especially susceptible to impinging on citi-

zens’ constitutional rights. Particularly in the realm of

campaign finance “reform,” ballot initiatives are both com-

mon and commonly problematic.

II. The Eighth and Ninth Circuit Decisions Treating

the “Good Faith” of Official Capacity State Defen-

dants as a “Special Circumstance” Depart from this

Court’s Prior Decision in Supreme Court of Virginia

v. Consumers Union and Create a Split From All of

the Other Circuits

A. The Eighth Circuit Order Under Review

Implicitly Adopted a Per Se Rule for Initiative

Cases Where the State Defendants Act in

“Good Faith”

By citing to, and relying on, the Thorsted decision, the

Eighth Circuit implicitly adopted Thorsted’s “special

——_________________eGVCO

kde Si Aol ia le Se I

circumstances” as its basis for denying plaintiffs any fee

award pursuant to §1988 in the case below. The seven

Thorsted factors, when properly understood, describe cir-

cumstances with two important elements common to

both that case and the case below: (1) an initiative-created

law; and (2) the presence of the “good faith” of the

official capacity defendants.*° In other words, Thorsted and

quoted below for ease of reference:

1. No award is needed to serve the purpose of

Section 1988, which is to assure ‘effective access to the

judicial process.’ This is not a typical civil rights case.

The mere filing of suit by anyone with standing

would have assured a full court test. See the briefs

amicus curiae, which demonstrate this.

2. No relief has been won under the Section

1983 claims beyond that already awarded under the

constitutional claims.

3. The legislation that prompted the suit was

adopted by a voter’s initiative, not by State officials.

The deterrence purpose of Section 1983, is

inapplicable.

4. The defendant officials have not yet enforced

Initiative 573. Their willingness to do so if it is upheld

reflects only the minimum their oaths of office

require.

5. The State officials have acted in good faith.

‘The Ninth Circuit has ruled that a defendant’s good

faith is one factor of several that a court may consider

in applying the Attorney’s Fees Act.’

6. This is a case of first impression in federal

court, and the public interest requires that it be

adjudicated through the full adversary process. The

State defendants have done nothing to increase the

litigation costs beyond what would have been

necessary in any event.

(by implication) the Eighth Circuit now hold that where

the unconstitutional law is the result of a ballot initiative,

and the official capacity defendants have acted in “good

faith,” “special circumstances” exist making an award of

attorney’s fees unjust. However, but for the newly

minted “special circumstance” of initiative-based laws,

what is functionally left from the Thorsted list of factors

are tired and discredited “good faith” factors.

B. Treating Official Capacity Defendants’ “Good

Faith” as a “Special Circumstance” is a Direct

Departure from Existing Law and a Split from

the District of Columbia, First, Second, Third,

Fourth, Fifth, Sixth, Seventh, and Eleventh Cir-

cuits.

As will be shown, this Court has observed, and every

other circuit has held, that the “good faith” of official

capacity defendants responsible for enforcing the chal-

4 lenged law, does not amount to “special circumstances.”

In Supreme Court of Virginia v. Consumers Union, this

Court reversed a trial court finding of “special circum-

stances” noting that it would have been fair to award fees

notwithstanding an official capacity defendant’s “good

faith.” 446 U.S. at 729 and 739; see also Hutto v. Finney, 437

U.S. 678, 693 (1978).

7. There was no way for the State officials to

settle the case by agreement. Even if a stipulation of

unconstitutionality had been entered (a most unlikely

event), the court would have rejected it. State

legislation is presumed constitutional until the

contrary is shown.

Thorsted, 841 F.2d at 1084 (citations omitted).

Likewise, the First Circuit recently explained, “the

good faith of defendants is not a controlling factor in

determining whether or not plaintiffs merit an award. . . .

The key issue is the provocative nature of the plaintiff's

lawsuit, not the motivations of the defendant.” Williams v.

Hanover Housing Authority, 113 F.3d 1294, 1301 (1st Cir.

1997). Williams goes on to note, “[t]he circuits are in

agreement, however, that defendants’ good faith reliance

even on settled law . . . is not a “special circumstance”

warranting a denial of attorneys’ fees under §1988.” Id.;

Cheyenne Mountain, 124 F.3d at 1233 (“the alleged special

circumstances amount to no more than assertions that the

defendant acted in good faith, a ground overwhelmingly

rejected by the courts”) (emphasis added). All of the other

circuits have similarly held that the “good faith” of a

government defendant does not qualify as “special cir-

cumstances” making an award of §1988 fees unjust.”

C. Except for the Initiative-law Factor, All of the

Individual “Special Circumstances” in Thorsted

Have Been Dismissed by Other Courts as an

Insufficient Basis for Denying §1988 Fees

Other than the fact that the challenged law was

adopted by ballot initiative, all of Thorsted’s remaining six

? See Miller v. Staats, 706 F.2d 336, 343 (D.C. Cir. 1983); Rose

v. Heintz, 806 F.2d 389, 391-92 (2nd Cir. 1986); Burney v. Housing

Authority, 735 F.2d 113, 117 (3rd Cir. 1984); American Booksellers

Ass'n v. Commonwealth of Virginia, 802 F.2d 691, 697 (4th Cir.

1986); Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983);

Haycraft v. Hollenbach, 606 F.2d 128, 132 (6th Cir. 1979); Lampher

v. Zagel, 755 F.2d 99, 104-05 (7th Cir. 1985); Martin v. Heckler, 773

F.2d 1145, 1150 (11th Cir. 1985) (en banc).

factors have been disqualified for denying §1988 fees to a

successful civil rights plaintiff.

For example, Thorsted’s first factor, that “[n]o award

is needed to serve the purpose of Section 1988, which is

to assure ‘effective access to the judicial process,’ ” flatly

cuts against Congress’ primary rationale for amending

§1988 to allow fee awards.® See Part IIIB, infra.

The second factor relied on by Thorsted — that “[n]Jo

relief had been won under the §1983 claims beyond that

already awarded under the constitutional claims” — has

been disposed of by this Court in Maher v. Gagne, 448 U.S.

122, 132-33 & n.15 (1980) and the Eighth Circuit in its own

recent decision of Goss v. City of Little Rock, Poa ',

1998 WL 459858 (8th Cir. Aug. 10, 1998). Goss explained,

[Section] 1983 establishes a means by which

people can enforce the Constitution. ... “[T]he

fact that a party prevails on a ground other than

§1983 does not preclude an award of attorney’s

fees under §1988. If §1983 would have been an

appropriate basis for relief, then the plaintiff is

entitled to attorney’s fees under §1988 even

though relief was actually awarded on another

ground.”

Id. at *4-5 (noting the Second and Sixth Circuits are in

agreement). Plainly, what Thorsted identified as a second

factor for denying fees is not really a “special circum-

stance” at all.

8 This holds true even if the district court meant by this that

the Thorsted plaintiffs had an ability to pay for their litigation.

That basis has also been rejected as “special circumstances.”

E.g., Venegas v. Mitchell, 495 U.S. 82, 87-88 (1990); Hastert v.

Illinois State Board of Election Commissioners, 28 F.3d 1430, 1443

(7th Cir. 1993) (plaintiffs were elected officials).

The third factor is the ballot initiative factor.

Factors four, five, six, and seven are either explicitly,

or implicitly, reformulated “good faith” factors which

have been roundly rejected by this Court, and the several

courts of appeals. E.g., Bond v. Stanton, 630 F.2d 1231,

1235-36 (7th Cir. 1980) (“[A]rgument . . . is in reality no

more than a thinly veiled attempt to smuggle an exemp-

tion for good faith, authoritatively excised from the Act

by the Supreme Court in Hutto v. Finney, back into fee

determinations made under the Act.”).

For example, Thorsted’s fourth factor, that “defendant

officials have not yet enforced” the challenged law and

presumably demonstrated their “good faith” thereby, has

been rejected by the Tenth Circuit in Phelps v. Hamilton,

120 F.3d 1126, 1130 (10th Cir. 1997) and the Eleventh

Circuit in Council for Periodical Distributors Ass’ns v. Evans,

827 F.2d 1483, 1486 (11th Cir. 1987) (cases are relatively

common in which government official is liable for attor-

ney’s fees, even where the official took no active steps to

enforce statute).

Thorsted’s fifth factor, which explicitly relies on

“good faith” as a special circumstance, has been flatly

rejected as a basis for denying §1988 fees. See Part IIB,

supra.

In another reformulation of the “good faith” argu-

ment, Thorsted’s sixth factor, (i.e., the suit presents “a case

of first impression in federal court”), has not only been

rejected by several! courts of appea!s (including the Ninth

Circuit) but actually counsels in favor of an increased

award. See Cheyenne Mountain, 124 F.3d at 1233 (“Even if

the issue were novel, that is not a valid basis for denying

an award of attorney fees. Indeed, until relatively

recently that would have been . . . a permissible ground

for increasing the lodestar fee.”); American Booksellers

Ass'n v. Commonwealth of Virginia, 802 F.2d at 697; Phillips

v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1531

(11th Cir. 1983); Teitelbaum v. Sorenson, 648 F.2d 1248, 1250

(9th Cir. 1981) (“Actions based on novel legal theories

generally require greater attorney effort . . . This effort, in

turn, may pay later dividends in ensuring the previously

unprotected classes receive the benefit of rights that the

Constitution or statutes guarantee.”).

Thorsted’s seventh and final factor is also a reformu-

lated “good faith” argument. The fact that “there was no

way for the state officials to settle the case by agreement,”

is in essence an argument that the state officials were

forced by statute to defend the law and thus, did so in

“good faith.” It also bears noting that the defendants in

the case below never discussed settlement. That official

capacity defendants were required to defend a challenged

law has been rejected as “special circumstances” by the

First and Fifth Circuits. Coalition for Basic Human Needs v.

King, 691 F.2d 597, 602 (1st Cir. 1982) (state law required

defendants — under threat of criminal sanctions — to con-

test suit); Johnson v. State of Mississippi, 606 F.2d 635, 637

(Sth Cir. 1979) (defendants “merely performing their duty

by enforcing the statute”).

D. None of the Reported Cases from the Courts of

Appeals have Heretofore Singled Out Initia-

tive Cases for Denying §1988 Fees

There are only a handful of reported cases from the

circuit courts in which “special circumstances” of any

type have sufficed as a basis for denying §1988 fees. Yet,

in spite of all of the initiative measures that have been

struck down over the past two decades, only the Eighth

aaah Sap a ae de

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and Ninth Circuits have identified as a “special

circumstance” the unique fact that a challenged law was

adopted by ballot initiative.

Rather, in the rare cases where fees have been denied

to successful plaintiffs, the “special circumstances” iden-

tified have involved unusual contexts, inter alia: (a) pri-

vate injury cases with potential damages awards

sufficiently large to attract counsel;? (b) large state settle-

ment offers rejected by the plaintiffs;!° (c) multiple defen-

dants where another defendant is more liable;!! (d)

defendants who neither enforce nor defend the chal-

lenged law;!? (e) successful outcomes that were fortu-

itous;!3 (f) successful outcomes that were not the product

? Zarcone v. Perry, 581 F.2d 1039, 1044 (2nd Cir. 1978), cert.

denied, 439 U.S. 1072 (1979) (where plaintiff sued for, and was

awarded, $141,000 in damages, prospects of success were

sufficiently bright to attract competent counsel on a contingent

fee basis).

10 Annu. tov. The Gan, Inc., 744 F.2d 244, 254 n.4 (2nd Cir.

1984) (defendant an innocent third party and its full settlement

offer rejected).

11 Rose v. Nebraska, 748 F.2d 1258, 1264 (8th Cir. 1984), cert.

denied, 474 U.S. 817 (1985) (no good reason for state governor to

be defendant while enforcement officials also defendants).

12 Daggett v. Kimmelman, 617 F. Supp. 1269, 1278-79 (D.N.].

1985), aff'd in part and remanded on other grounds, 811 F.2d 793,

795 n.1 (3rd Cir. 1987) (state defendants for the most part neither

enforced nor defended reapportionment plan).

‘3 Dahlem v. Board of Education of Denver Public Schools, 901

F.2d 1508, 1514 (10th Cir. 1990) (only a “fortuity” prevented

plaintiff’s case from being reversed); Love v. Deal, 5 F.3d 1406,

1410 (11th Cir. 1993) (plaintiff challenged antiquated and rarely

enforced law and not instrumental in achieving remedy sought);

Aho v. Clark, 608 F.2d 365, 367 (9th Cir. 1979) (settlement

agreement made no provision for fees and Attorney’s Fees Act

not in effect until four months after suit began).

of counsel’s litigation efforts;'* and (g) successful out-

comes won in spite of counsel’s questionable conduct.!5

The only new “special circumstance” is Thorsted’s

third factor: 1.e., the challenged legislation was enacted by

popular initiative. This “initiative” factor, apparently

seized upon by the Eighth Circuit in its rulings following

Thorsted, has never before been the basis of a “special

circumstances” fee denial in any court.!®

III. Carving Out Initiative-created Legislation as a

“Special Circumstance” Justifying a Complete

Denial of §1988 Fees to a Prevailing §1983 Plaintiff

Fosters an Intolerable Condition Stifling “Citizen

Attorney General” Action, in a Complete Depar-

ture from Prior Case Law and in Contravention of

the Congressional Purposes Behind §1988

Admittedly, it is difficult to discern the Eighth Cir-

cuit’s reasons for denying plaintiffs in this case (as

well as the plaintiffs in Russell) an attorney's fee

14 U.S. v. 27.09 Acres of Land, 43 F.3d 769, 773 (2nd Cir. 1994)

(fees sought were incurred only in the unsuccessful first (of two)

phase of litigation); Cooper v. Dupnik, 924 F.2d 1520, 1537 n.32

(9th Cir. 1991), rehearing granted, 933 F.2d 798, on rehearing 963

F.2d 1220 (counsel failed to provide court with analysis of _

governing case law); Bateson v. Geisse, 857 F.2d 1300, 1306 (9th

Cir. 1988) (inadequate briefing); Robins v. Harum, 773 F.2d 1004,

1011 (9th Cir. 1985) (inadequate briefing).

1S Lewis v. Kendrick, 944 F.2d 949, 956 (1st Cir. 1991).

16 See generally Love v. Deal, 5 F.3d 1406, 1410 (11th Cir. 1993)

(categorizing cases); Riddell v. National Democratic Party, 624

F.2d 539, 544-45 (5th Cir. 1980) (categorizing cases).

Vag i

award.'” However, by examining the similarities between

the instant case and the Thorsted case cited by the court of

appeals, it is obvious that both involved §1983 challenges

to the constitutionality of laws brought about by popu-

larly-enacted initiatives.

In Thorsted, it was Washington Initiative 573 (a con-

gressional term limits law). In the instant case it was

Arkansas Act I (a comprehensive campaign finance

“reform” scheme). Both initiatives operated in an area

affected with fundamental issues of importance to our

representative form of government. Thorsted, 841 F. Supp.

at 1071; Buckley v. Valeo, 424 U.S. 1, 14 (1976) (“contribu-

tion and expenditure limitations operate in an area of the

most fundamental First Amendment activities”).

Yet, in both the Eighth and Ninth Circuits, initiative-

based legislation has been singled out for derogatory

treatment under §1988 in spite of the fact that both are

treated similarly for purposes of §1983. For “voters may

no more violate the Constitution by enacting a ballot

measure than a legislative body may do so by enacting

legislation.” Citizens Against Rent Control v. City of

Berkeley, 454 U.S. 290, 295 (1981).

In view of the increasing popularity of lawmaking by

ballot initiative, and due to the heightened potential for

unconstitutional infringement from ballot initiatives (dis-

cussed below), whether ballot initiative cases as a cate-

gory constitute the “special circumstances” envisioned by

17 For precisely this reason, plaintiffs ask this Court to (at

least) exercise its supervisory authority and vacate and remand

to the court of appeals for “a concise but clear explanation” for

completely denying fees, as commanded in Hensley, 461 U.S. at

437. See Part V, infra.

this Court in Newman v. Piggie Park for denial of §1988 fee

awards is an issue of exceptional importance.

A. Legislation by Ballot Initiative Is Growing

More Popular in the Twenty-four States

Which Have Such Process, Yet Are More Sus-

ceptible to Trenching on Citizens’ Constitu-

tional Rights

1. The Popularity of Ballot Initiatives

Twenty-four states authorize tie use of initiatives for

enacting direct legislation.!* In those states the popularity

of legislation by ballot initiative or referendum is grow-

ing. David B. Magleby, Let the Voters Decide? An Assess-

ment of the Initiative and Referendum Process, 66 Univ. of

Colo. L.Rev. 13, 26-27 and fig.1 (1995) (“The initiative has

experienced renewed use in several states since the

mid-1970’s. . . . It started to rise again in the 1970s and

has increased in use since that time.”). Following the

success of California’s popular tax-cutting Proposition 13

in 1978, “those states that already had the initiative or

popular referendum experienced a dramatic increase in

initiative activity.” Id. at 17.

Legislation by ballot initiative has been particularly

popular in the area of campaign finance “reform.” For

example, during this decade, campaign finance “reform”

initiatives have been passed by popular vote in Arizona,

18 Alaska, Arizona, Arkansas, California, Colorado, District

of Columbia, Florida, Idaho, Illinois, Maine, Massachusetts,

Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada,

North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah,

Washington, and Wyoming. Richard B. Collins and Dale

Oesterle, Structuring the Ballot Initiative: Procedures That Do and

Don't Work, 66 Univ. of Colo. L.Rev 47, 49-50 & n.5 (1995).

Pern eee

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Arkansas, California, Colorado, District of Columbia,

Florida, Maine, Massachusetts, Missouri, Montana, Nev-

ada, Oregon and Vermont.

Unfortunately, laws enacted by the initiative process

historically have tended to be at odds with constitutional

rights. Courts and scholars observe that lawmaking by

ballot measure has numerous shortcomings tending

toward unconstitutionality.'!? The Supreme Court of

Washington has commented, “[i]t should be obvious that

the electorate, via the initiative and direct legislation, can

make serious, even grievous mistakes and errors in judg-

ment regarding matters of basic social policy.” Fritz v.

Gorton, 517 P.2d 911, 916 (Wash. 1974) (en banc); cf. Ameri-

cans for Medical Rights v. Heller, 2 F. Supp. 2d 1307, 1316

(D. Nev. 1998) (“This Court acknowledges that public

perception and the will of the majority of voters .. . re-

garding Ballot Question 10 are important. However, the

very purpose of the First Amendment to the United

States Constitution is to protect the rights of all citizens to

express political or religious views which may be at odds

with the majority.”). The “self-selected private lawmakers

lof ballot initiatives] are ‘the least accountable

' See generally Frank I. Michelman, Protecting the People

From Themselves, or How Direct Can Democracy Be?, 45 U.C.L.A.

L.Rev. 1717 (1998); Elizabeth R. Leong, Ballot Initiatives and

Identifiable Minorities: A Textual Call to Congress, 28 Rutgers L.J.

677 (1997); Abner J. Mikva, Initiative and Referendum: Better in

Theory, 146 New Jersey L.J. 27 (1996); Daniel M. Warner, Direct

Democracy: The Right of the People to Make Fools of Themselves; the

Use and Abuse of Initiative and Referendum, a Local Government

Perspective, 19 Seattle Univ. L.Rev. 47 (1995); Cynthia L.

Fountaine, Lousy Lawmaking: Questioning the Desirability and

Constitutionality of Legislating by Initiative, 61 S. Cal. L.Rev 733

(1988).

branch’. . . free by design to make law in ‘ignorance and

self-deception.’ ”2° “The only institutional checks on the

excesses of direct legislation are the co .ts.... Between

1960 and-1980, only two successful California initiatives

were not declared unconstitutional in whole or in part by

state or federal courts.”2! “When it works well it can

orient elected officials to the will of the people. .. . But

carried to an extreme it has negative consequences for the

political system and can undermine the very structure it

is intended to supplement.” ??

Often minorities have been the target of initiatives,

and the nature of the initiative process lends itself to

lawmaking by tyrannous majorities. “Recent initiatives

furnish many examples . . . [of the need for] protection of

liberty and equality against oppression by majoritarian

passions.”?3 Some recent examples of unconstitutional

lawmaking by ballot initiative would include: Arizona’s

Article XXVIII (Yniguez v. Arizonans for Official English, 69

F.3d 920 (9th Cir. 1995), vacated as moot sub nom., Arizonans

for Official English v. Arizona, 520 U.S. 43 (1997)); Colo-

rado’s Amendment 2 (Romer v. Evans, 517 U.S. 620 (1996));

Arkansas’ Amendment 73 (U.S. Term Limits, Inc. v. Thor-

ton, __ U.S. __, 115 S. Ct. 1842 (1995); and California’s

amendment to prevent enactment of fair housing laws

banning racial discrimination (Reitman v. Mulkey, 387 U.S.

369 (1967)).

20 Hans A. Linde, Practicing Theory: The Forgottzen Law of

Initiative Lawmaking, 45 U.C.L.A. L.Rev. 1735, 1744 (1998).

Judge Linde writes as a Senior Judge of the Oregon Supreme Court.

21 Magelby, 66 Univ. of Colo. L.Rev. at 40.

22 Id. at 46.

23 Linde, 45 U.C.L.A. L.Rev. at 1757.

2. Especially in the Area of Campaign

Finance “Reform,” Unconstitutional Ini-

tiatives Abound

Sponsors of campaign finance “reform” have been

especially successful in employing the ballot initiative

process to enact state election restrictions of questionable

constitutionality. For example, ballot initiative statutes

affecting political speech have been struck down as

unconstitutional in: Arkansas (Arkansas Right to Life v.

Butler, App. B and slip op., Case No. 97-5064 (W.D. Ark.

Dec. 8, 1998), and Russell v. Burris, App. C (striking down

portions of Act I)); California (California ProLife Council v.

Scully, 989 F. Supp. 1282 (E.D.Cal. 1998) (appeal pending)

(striking down Proposition 208)); Colorado (Colorado

Right to Life v. Buckley, slip. op., Case Nos. 96-2844,

96-2973, 97-221 (D. Colo. Apr. 17, 1998) (striking down

portions of Amendment 15)); the District of Columbia

(National Black Police Association v. District of Columbia

Board of Elections, 924 F. Supp. 270 (D.C.D.C. 1996), vacated

as moot, 108 F.3d 346 (D.C. Cir. 1997) (striking down

Initiative 41)); Missouri (Carver v. Nixon, 72 F.3d 633 (8th

Cir. 1995), cert. denied, 518 U.S. 1033 (1996) (striking down

Proposition A)); Montana (Montana Chamber of Commerce

v. Argenbright, slip op., Case No. 97-6-H-CCL (D. Mont.

Oct. 1998) (striking down Initiative 125)); Nevada (Ameri-

cans for Medical Rights v. Heller, 2 F. Supp. 1307 (D. Nev.

1998) (striking down Ballot Question 10); and Oregon

(Vannatta v. Keisling, 151 F.3d 1215, (9th Cir. 1998) (strik-

ing down Measure 6); Vannatta v. Keisling, 931 P.2d 770

(Ore. 1997) (striking down Measure 9)).

B. The Purpose of §1988 is to Encourage “Private

Attorney Gereral” Action

Without the benefit of a fee shifting mechanism such

as §1988, it was evident to Congress the enforcement of

civil rights would be difficult. Thus, Congress chose to

rely on private litigation as a means of securing broad

respect of civil rights. As this Court observed, “[w]hen a

plaintiff brings an action... [i]f he obtains an injunction,

he does so not for himself alone but also as a ‘private

attorney general,’ vindicating a policy that Congress con-

sidered of the highest priority.” Newman v. Piggie Park,

390 U.S. at 402.

Petitioners in the case below are the type of plaintiffs

which §1988 was intended to encourage.*4 Had they

known at the outset that they would be required to bear

their own attorney’s fees, they (like many citizens) would

not have been able to afford to vindicate their rights

through the courts. Section 1988's fee-shifting provision

was designed to overcome the financial barriers. This

Court in Newman pointed out,

If successful plaintiffs were routinely forced to

bear their own attorneys’ fees, few aggrieved

parties would be in a position to advance the

public interest by invoking the injunctive

powers of the federal courts. Congress there-

fore, enacted the provision for counsel fees — not

simply to penalize . . . but, more broadly, to

encourage individuals injured . . . to seek judi-

cial relief.

24 ARLSPAC submitted a declaration to the Eighth Circuit

in its petition for rehearing concerning its financial inability to

undertake this litigation without its counsel’s willingness to

proceed on the prospect of being paid through §1988.

a ta ac gu arcs ces

Id.; see also S. Rep. No. 1011, at 2, 94th Cong., 2d Sess.

(1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910 (“All of

these civil rights laws depend heavily upon private

enforcement, and fee awards have proved an essential

remedy if private citizens are to have a meaningful

opportunity to vindicate the important Congressional

policies which these laws contain.”).

In City of Riverside v. Rivera, 477 U.S. 561, 574-576

(1986) (plurality opinion), this Court recognized that a

civil rights plaintiff “often secures important social bene-

fits” and taught that a plaintiff’s success, for purposes of

§1988, is at least in part, a function of the benefits that

accrue to the public as a result of the suit. In the case

below, and cases like it challenging unconstitutional

infringements on political speech, the benefits that accrue

to the public from a plaintiff’s successful suit are, by any

measure, significant benefits that accrue to the entire

citizenry.

To paraphrase the Second Circuit in Holley v. Lavine,

605 F.2d 638, 646 (2nd Cir. 1979), cert. denied, 446 U.S. 913

(1980), because challenging popularly-passed campaign

finance initiatives do not involve substantial monetary

damages and are ones which many citizens would regard

as unpopular, it is highly unlikely that plaintiffs could

have retained other counsel to act on their behalf. “The

cost of the litigation and the time and effort required by

plaintiff’s counsel . . . plainly [are] disproportionate to

any sum the plaintiff might reasonably . . . expect[ ] to

recover on her own behalf. All of these circumstances

justify an award of fees to the plaintiff.” Id.

C. ‘the Effect of Treating Initiative Cases as “Spe-

cial Circumstances” Cases for Denying Fees

The effect of treating initiative cases as, per se, “spe-

cial circumstances” cases for denying fees under §1988

will likely be a broad unwillingness for all but the

wealthy to bring court challenges to rectify constitutional

encroachments on civil rights. As an additional side-

effect, one can imagine legislators now turning to the

initiative process to propose and enact constitutionally

doubtful legislation that would not otherwise succeed in

the ordinary deliberative legislative process. Notes

author David Magleby,

“[c]Jandidates for governor in California now

regularly sponsor their own initiatives during

their gubernatorial campaigns, as Pete Wilson’s

strong support of Proposition 187, Illegal Aliens,

Ineligibility for Public Services, Verification and

Reporting, illustrates. . . . State legislators have

also turned to the initiative to promote issues

that they cannot get passed in the legislature.”

While politicians may employ initiatives to increase voter

attention for their own campaigns or to insulate state

coffers from popular — but unconstitutional — laws, pri-

vate initiative sponsoring groups sometimes have less

laudatory goals. Opportunistic proponent groups

“attempt[ ] not to convince a majority of the people of the

correctness of a proposal, but to put language in the

constitution, via clever issue matching or confusion and

25 66 Univ. of Colo. L.Rev. at 29.

deception, which does not have the support of a majority

of the electorate.”26

In all events, here is the rub. Both legislators who

would protect the public fisc from attorney fee awards for

defective legislation, and opportunistic proponent groups

seeking to insulate from attack their own self-interested

legislation, have an inviting tool in the ballot initiative if

aggrieved citizens must pay their own attorney’s fees to

mount a challenge. Certainly, in the realm of campaign

finance “reform,” where reformers often attempt only

modest diminutions of constitutional rights at any one

time, widespread constitutional impingements will likely

go unrelieved if §1988 fees are not available for successful

§1983 suits.

Consequently, the Eighth and Ninth Circuits’ com-

plete denial of §1988 fees in initiative cases threatens to

open a large loophole through which much future uncon-

Stitutional legislation may pass. For this reason, this

Court should grant the writ.

IV. By Combining Factors Which by Themselves Do

Not Amount to “Special Circumstances” the Eighth

and Ninth Circuits have Manufactured a Standard

for Denying Fees, in Conflict with the Fourth Cir-

cuit, that Will Frustrate the Purpose of §1988 and

Always Escape Meaningful Review

To escape from the ordinary obligation to award

§1988 fees, the Eighth Circuit, implicitly, and the Thorsted

court, in its opinion, set out to adduce several factors that

would qualify as the “special circumstances” necessarily

26 R. Collins and D. Osterle, 66 Univ. of Colo. L.Rev. at 119

(“Occasions arise, however, when voters are overmatched by an

Opportunistic strategy used by a clever proponent.”).

prerequisite to denying fees. Defendants’ “good faith”

alone was obviously insufficient for the task. This Court

had already taught in Christiansburg Garment Co. v. EEOC:

if the objective of Congress had been to permit

the award of attorney’s fees only against defen-

dants who had acted in bad faith, “no new

statutory provision would have been necessary,”

since even the American common-law rule

allows the award of attorney’s fees in those

exceptional circumstances.

434 U.S. 412, 417 (1978) (quoting Newman v. Piggie Park,

390 U.S. at 402). Consequently, additional factors were

identified and listed together.

According to the Ninth Circuit, the Thorsted decision

presents seven factors which taken together in their

“totality,” constitute “special circumstances” making an

award of fees unjust. However, as already discussed,

closer analysis reveals that each of the factors, but one,

have been dismissed by other courts of appeals as insuffi-

cient for denying fees. That many of the factors did not

rise to “special circumstances” by themselves, was tacitly

acknowledged by the Ninth Circuit in its affirmance

where it explained,

several of the circumstances identified by the district

court would be insufficient, standing alone, to war-

rant a denial of fees. We hold, however, that the

district court did not abuse its discretion by

denying fees based on the totality of circum-

stances it identified.

Thorsted v. Munro, 75 F.3d at 456 (emphasis added).

The Eighth Circuit (implicitly), the Ninth Circuit, and

perhaps the Fifth Circuit,27 now apparently hold as a

matter of law that §1988 fees may be denied to a success-

ful §1983 plaintiff on the basis of a “totality of circum-

stances.” Thorsted v. Munro, 75 F.3d at 456. According to

the only court that has commented on the Thorsted “total-

ity of circumstances” test, the test appears to allow the

aggregation of individual circumstances which are insuf-

ficient, standing alone. Morse v. Republican Party of Vir-

ginia, 972 F. Supp. 355, 359 (W.D. Va. 1997) (citing Thorsted

v. Munro) (“In determining whether special circumstances

exist, a court may consider the totality of circumstances,

so that even though each justification for the denial of fees may

not, on its own, support a finding of special circumstances, the

sum total of the justifications may warrant a denial of fees.”’)

(emphasis added).

The Eighth, Ninth, and Fifth Circuits conflict with the

Fourth Circuit, which rejects this “totality” of ordinary

factors approach. In American Booksellers, the appeals

court noted that the district court denied fees based upon

an agglomeration of individual factors including defen-

dant’s “good faith.” 802 F.2d at 697. In describing the

district court’s approach, the Fourth Circuit observed,

[t]he [district] court recognized that none of

these factors alone would constitute the neces-

sary special circumstances to justify the denial

of attorneys’ fees. It held, however, that “with

all these factors combined, the Court finds it

more equitable to let the costs lie where they

land.”

27 See Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955

(Sth Cir. 1981) (“None of the circumstances relied upon by the

district court, either individually or collectively, amount to

special circumstances justifying a denial of attorneys’ fees”).

Id. The Fourth Circuit, holding that there is no authority

for such an approach, reversed and remanded. Id.

The “synergistic” equation of Thorsted leaves itself

open to criticism. It is an unprincipled, unrestrained

approach for denying fees and permits the frustration of

the purpose behind §1988. The ability to describe any

number of factors, each insufficient on its own, and then

conclude that the “totality” of the factors warrants deny-

ing fees, is well within the capability of any court in any

§1983 action. However, the agglomeration approach fos-

ters unprincipled departures from the “ordinary rule”

that fees should be awarded to successful plaintiffs in

order to encourage “citizen attorney general” actions. The

reason why is that the “totality of circumstances” equa-

tion provides no guidance and no boundaries. As a

result, a denial of fees based upon a “totality” of ordinary

factors will always escape meaningful review. The contin-

uum of ordinary factors is always infinite. Yet, there is

no identifiable point on the continuum at which insuffi-

cient ordinary factors finally build up to constitute

extraordinary circumstances.

Because of the split in the courts of appeals, and

because the “totality” approach frustrates the purposes

behind §1988, and because the “totality” method is

unprincipled and will always escape meaningful review,

this Court should grant the writ.

V. This Court Should Exercise its Supervisory Author-

ity, Vacate the Judgment of the Eighth Circuit and

Remand for Reasons to Allow Meaningful Review,

in Accordance with Hensley v. Eckerhart

In Hensley v. Eckerhart, this Court counseled (in terms

equally applicable to the Eighth Circuit when it considers

«be Seat ind sé

a fee request presented to it in the first instance), that “it

remains important” for a court “to provide a concise but

clear explanation of its reasons for the fee award.” 461

U.S. at 437.

The Eighth Circuit, itself, notes that because the text

of §1988 does not include the “special circumstances”

exception, the exception should be narrowly construed,

and “a strong showing of special circumstances is neces-

sary to support a denial of attorney fees.” Hatfield v. Hays,

877 F.2d 717, 720 (8th Cir. 1989). Hatfield reversed and

remanded to award fees in a case where the district court

“did not explain . . . why these circumstances would

make an award of attorney’s fees unjust,” saying “the

injustice, if any, is not readily discernible.” In the order

under review, however, the Eighth Circuit did precisely

that for which it correctly criticized a lower court, i.¢., it

did not identify the special circumstances making an

award of §1988 fees unjust or explain why the (uniden-

tified) circumstances were “special.” See App. A.

The important policy reasons mandating an explana-

tion where fee entitlement is denied have been described

as necessary for “minimum standards of procedural fair-

ness” and to allow “a disciplined and informed review.”

Burke v. Guiney, 700 F.2d 767, 771 (1st Cir. 1983). The First

Circuit reflected,

We have held that summary denial of entitle-

ment to attorney’s fees without hearing and

without an adequate statement of reasons for

the order does not meet minimum standards of

procedural fairness and regularity. Nor does an

order issued without a deliberate articulation of

its rationale, including some appraisal of the

factors underlying the court’s decision, allow

for a disciplined and informed review of the court’s

discretion.

Id. (emphasis added); see also Orchano v. Advanced Recov-

ery, Inc., 107 F.3d 94, 99 (2nd Cir. 1997). In the instant

case (as well as the Russell case), the court of appeals’

order denying §1988 fees did not set forth a “clear expla-

nation” or an “adequate statement of its reasons” or

otherwise make a “strong showing of special circum-

stances.” With nothing more than its bald citation to the

problematic Thorsted decision, the court’s order below

does not meet minimum standards of procedural fairness

and does not allow for a disciplined or informed review

of its decision.

Consequently, it is necessary for this Court to grant

the writ, exercise its supervisory authority, vacate the

order of the Eighth Circuit, and remand for a clear expla-

nation and adequate statement of its reasons.

VI. CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Rospert J. NEWMEYER

Bopp, CoLteson & Bostrom

1 South Sixth Street

Terre Haute, IN 47807-3510

(812) 232-2434

Attorneys for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 98-1215/1218WAF

Arkansas Right to Life

Political Action Committee;

David Sloan,

Appellees,

Appeal from the

United States District

Court for the Western

District of Arkansas

Brad Butler, etc., et al, (Filed Aug. 20, 1998)

eS Se eS Se ee

Appellants.

The court grants the appellees’ motions for leave to

file reply briefs.

The court grants the intervenor/appellants’ motion

for leave to file a supplemental memorandum.

The court grants in part the appellees’ original

motion for fees and costs. The court awards $219.03 in

costs to the appellees, see 8th Cir. R. 39A(a), to be

assessed only against defendants Butler, Burris, Looney,

Allen, Kearney, and Alexander. See Independent Federation

of Flight Attendants v. Zipes, 491 U.S. 754 (1989). The court

denies in all other respects the appellees’ original motion

for fees and costs. See Thorsted v. Gregoire, 841 F. Supp.

1068 (W.D. Wash. 1994), aff'd, 75 F. 3d 454 (9th Cir. 1996)

(per curiam).

The court denies the appellees’ supplemental motion

for fees and costs. See 8th Cir. R. 39A(a).

Intervenor’s motion for leave to file a brief in reply to

appellees’ response is denied as moot.

August 18, 1998

A true copy.

Attest: /s/ Michael E. Gans

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

ARKANSAS RIGHT TO LIFE STATE POLITICAL

ACTION COMMITTEE and David Sloan,

Appellees,

Brad BUTLER, In His Official Capacity as State

Attorney for Benton County; Troy Burris, In His

Official Capacity as Chairman and Member of the

Arkansas Ethics Commission; Rita Looney, In Her

Official Capacity as Member of the Arkansas Ethics

Commission; Ben Allen, In His Official Capacity as

Member of the Arkansas Ethics Commission; Jack

Kearney, In His Official Capacity as Member of the

Arkansas Ethics Commission; and Tom Alexander, In

His Official Capacity as Member of the Arkansas

Ethics Commission, Appellants/Defendants,

Genevieve Stewart; Paul Kelly; Association of

Community Organizations for Reform Now Political

Action Committee; and Local 100, Service Employees

International Union Political Action Committee,

Intervenors as Defendants/Appellants.

Nos. 98-1215, 98-1218.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1998.

Decided June 4, 1998.

Brian Brooks, Little Rock, AR, argued (Shirley E. Gun-

tharp, on the brief), for Appellants.

Glen J. Moramarco, New York City, argued, for Inter-

venor-Appellant.

James Bopp, Terre Haute, IN, argued (Robert J. New-

meyer, Dale L. Wilcox, David G. Nixon and Michael D.

Holland, on the brief), for Appellees.

Before WOLLMAN, BEAM, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The Arkansas Right to Life State Political Action

Committee brought this suit challenging the constitu-

tionality of various provisions of a campaign finance

reform measure approved by popular vote in Arkansas in

1996 and known as Initiated Act I. The district court

entered partial summary judgment invalidating one of

the provisions of Act I, see Arkansas Right to Life State

Political Action Committee v. Butler, 983 F.Supp. 1209, 1213,

1236 (W.D.Ark.1997), and the defendants and the inter-

venors (as defendants) appeal. We affirm the judgment of

the district court! and remand the case for further pro-

ceedings consistent with this opinion.

While this appeal was pending, the plaintiffs filed

two motions. They moved, first, to dismiss the appeal of

the intervenors on the ground that it was untimely. It is

undisputed that the primary defendants filed a timely

notice of appeal on December 17, 1997, and that the

intervenors filed a notice of appeal on December 29, 1997.

Fed. R.App. P. 4(a)(3) provides that if “one party

timely files a notice of appeal, any other party may file a

notice of appeal within 14 days after the date when the

first notice was filed.” Since December 29 is certainly

1 The Honorable H. Franklin Waters, United States District

Judge for the Western District of Arkansas.

within fourteen days of December 17, we believe that the

intervenors filed their notice within the relevant time

limit.

II.

The plaintiffs also moved to dismiss the iatervenors

for lack of Article III standing. Intervenors, like any other

party to a case, must meet the requirements of Article III

standing to be eligible to litigate their claims in federal

court: “While [Fed.R.Civ.P.] 24 [on intervention] promotes

judicial economy by facilitating, where constitutionally

permissible, the participation of interested parties in

others’ lawsuits, the fact remains that a federal case is a

limited affair, and not everyone with an opinion is invited

to attend.” Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th

Cir.1996). Article III standing must exist throughout the

litigation.

Given our holding on the merits below, however,

there is no longer an active dispute in the present case

before this court. Whether the intervenors have standing

to litigate their remaining claims before the district court

is a matter for that court to determine upon remand.

If.

In the district court, the defendants and the inter-

venors challenged the plaintiffs’ standing to bring this

case on the ground that the plaintiffs lacked the necessary

“injury in fact,” and the district court denied their motion

to dismiss. See Arkansas Right to Life State Political Action

Committee v. Butler, 972 F.Supp. 1187, 1189, 1192, 1194

(W.D.Ark.1997). Standing is, of course, a threshold issue

in every case before a federal court: If a plaintiff lacks

standing, he or she cannot invoke its jurisdiction. See

Boyle v. Anderson, 68 F.3d 1093, 1100 (8th Cir.1995), cert.

denied, 516 U.S. 1173, 116 S.Ct. 1266, 134 L.Ed.2d 214

(1996). In order to invoke the jurisdiction of a federal

court, one must have suffered an “injury in fact,” and

such an injury must be concrete, particularized, and

either actual or imminent. Id. at 1100-01. Vague and con-

clusory allegations of harm are insufficient to create

standing. See Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct.

2331, 115 L.Ed.2d 288 (1991); see also id. at 324, 111 S.Ct.

2331.

Plaintiffs, however, are not required to expose them-

selves to arrest or prosecution under a criminal statute in

order to challenge a statute in federal court. See New

Hampshire Right to Life Political Action Committee v. Gard-

ner, 99 F.3d 8, 13 (1st Cir.1996). Instead, “[w]hen govern-

ment action or inaction is challenged by a party who is a

target or object of that action . . . ‘there is ordinarily little

question that the action or inaction has caused him injury,

and that a judgment preventing or requiring the action

will redress it.’ ” Minnesota Citizens Concerned for Life v.

Federal Election Commission, 113 F.3d 129, 131 (8th

Cir.1997), quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

We believe that the district court properly concluded

that the plaintiffs are a target or object of the prohibitions

contained in Act I. The plaintiffs allege in their verified

complaint that they “would like to make contributions in

excess of $100 to the candidates enumerated in Arkansas

Code § 7-6-203(b)(1) and $300 to the candidates enumer-

ated in Arkansas Code § 7-6-203(b)(2).” Unlike the plain-

tiffs in Renne, 501 U.S. at 322, 111 S.Ct. 2331, who did not

allege an intention to engage in the proscribed conduct

with sufficient specificity, the plaintiffs here have alleged

a specific intent to pursue conduct in violation of the

challenged statute. We believe therefore that the district

court was correct in concluding that the plaintiffs had

standing to challenge the provision of Act I in question in

this case.

IV.

In a companion case, Russell v. Burris, 146 F.3d 563

(8th Cir.1998), we resolved the constitutional issue raised

here. We declared the provision invalidated by the dis-

trict court’s summary judgment in this case to be uncon-

stitutional and unenforceable. We therefore affirm the

judgment of the district court and remand the case for

further proceedings consistent with this opinion.

Ron RUSSELL, Kent Ingram, William R. Austin, and

Associated Industries of Arkansas Political Action

Committee, Appellants,

Vv.

Troy BURRIS, In His Official Capacity as

Chairperson of the Arkansas Ethics Commission; Rita

Looney, In Her Official Capacity as a Member of the

Arkansas Ethics Commission; Tom Alexander, In His

Official Capacity as a Member of the Arkansas

Ethics Commission; Ben Allen, In His Official

Capacity as a Member of the Arkansas Ethics

Commission; Jack Kearney, In His Official Capacity

as a Member of the Arkansas Ethics Commission;

and Citizens for Clean Government, Appellees.

American Civil Liberties Union of Arkansas, James

Madison Center for Free Speech, Shrink Missouri

Government PAC, and Zev David Fredman, Amici

Curiae on Behalf of Appellants. Connecticut, Iowa,

Kansas, Kentucky, Massachusetts, Minnesota,

Missouri, Montana, New Mexico, North Dakota,

Utah, and Vermont, Amici Curiae on Behalf of

Appellees.

Ron RUSSELL, Kent Ingram, William R. Austin, and

Associated Industries of Arkansas Political Action

Committee, Appellees,

Vv.

Troy BURRIS, In His Official Capacity as

Chairperson of the Arkansas Ethics Commission; Rita

Looney, In Her Official Capacity as a Member of the

Arkansas Ethics Commission; Tom Alexander, In His

Official Capacity as a Member of the Arkansas

Ethics Commission; Ben Allen, In His Official

Capacity as a Member of the Arkansas Ethics

Commission; and Jack Kearney, In His Official

Capacity as a Member of the Arkansas Ethics

Commission, Appellants, Citizens for Clean

Government, Intervenor as Defendant. James

Madison Center for Free Speech, Shrink Missouri

Government PAC, and Zev David Fredman, Amici

Curiae on Behalf of Appellees. Connecticut, Iowa,

Kansas, Kentucky, Massachusetts, Minnesota,

Missouri, Montana, New Mexico, North Dakota,

Utah, and Vermont, Amici Curiae on

Behalf of Appellants.

Ron RUSSELL, Kent Ingram, William R. Austin, and

Associated Industries of Arkansas Political Action

Committee, Appellees,

Vv.

Troy BURRIS, In His Official Capacity as

Chairperson of the Arkansas Ethics Commission;

Candi Sue Russell, In Her Official Capacity as a

Member of the Arkansas Ethics Commission; Marvin

Delph, In His Official Capacity as a Member of the

Arkansas Ethics Commission; Rita Looney, In Her

Official Capacity as a Member of the Arkansas

Ethics Commission; and Norton Wilson, In His

Official Capacity as a Member of the Arkansas

Ethics Commission, Defendants, Citizens for Clean

Government, Appellant. James Madison Center for

Free Speech, Shrink Missouri Government PAC, and

Zev David Fredman, Amici Curiae on

Behalf of Appellees.

Nos. 97-3922, 97-4033 and 97-4038.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1998.

Decided June 4, 1998.

Robert D. Smith, III, Little Rock, AR, argued, for

Appellants.

Brian G. Brooks, Little Rock, AR, argued (Shirley E.

Guntharp, on the brief), for Appellees.

Nancy Northup, New York City, argued (Burt Neu-

borne, Kenneth N. Weine, and Scott C. Trotter, on the

brief), for Intervenor.

Before WOLLMAN, BEAM, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In 1996, the people of Arkansas, by voter initiative,

approved a campaign finance reform measure entitled

Initiated Act I. Prior to Act I, Arkansas law limited indi-

viduals and political action committees to contributions

of $1,000 per candidate during each election cycle. Act I

reduced the contribution limit to $300 for the offices of

governor, lieutenant governor, secretary of state, trea-

surer, auditor, attorney general, and commissioner of

state lands, see Ark.Code Ann. § 7-6-203(a), § 7-6-203(b),

and to $100 for all other state public offices, see Ark.Code

Ann. § 7-6-203(a)(1), § 7-6-203(b)(1).

Act | also created a special category of political action

committee (PAC), see Ark.Code Ann. § 7-6-201(9),

§ 7-6-201(10), known as a small-donor PAC. See Ark.Code

Ann. § 7-6-201(12). Under Act I, a small-donor PAC may

accept no contribution larger than $25, see Ark.Code Ann.

§ 7-6-201(12)(B), and it may contribute no more than

$2,500 per election to any candidate, see Ark.Code Ann.

§ 7-6-203(d). Act I authorized as well the creation of a

campaign fund-raising entity known as an independent

expenditure committee. See Ark.Code Ann. § 7-6-201(14).

An independent expenditure committee may, like any

person, make unlimited independent expenditures (that

is, Ones not coordinated with a candidate) to advocate the

election or defeat of a clearly identified candidate for

office. See Ark.Code Ann. § 7-6-201(13), § 7-6-201(14).

Such a committee, however, may accept no more than

$500 from any person annually. See Ark.Code Ann.

§ 7-6-203(k). Finally, Act I authorized local governments

to set reasonable limitations on fund-raising for cam-

paigns for local offices. See Ark.Code Ann. § 7-6-224. Ron

Russell, Kent Ingram, William Austin, and the Associated

Industries of Arkansas Political Action Committee chal-

lenged each of these Act I provisions in the district court,

as well as a pre-Act I provision limiting contributions to

any one PAC to $200 annually, see Ark Code Ann.

§ 7-6-201(9)(B).

Following a bench trial, the district court held that

the contribution limits of $300 for certain statewide

offices and of $100 for state judicial offices were uncon-

stitutional because they violated the First Amendment’s

prohibition against limitations on the freedom of speech.

See Russell v. Burris, 978 F.Supp. 1211, 1222, 1224, 1229

(E.D.Ark.1997). The trial court, however, uphe!d the $100

contribution limit as to all other offices and the $200

contribution limit to PACs. Id. at 1223, 1225, 1229. The

trial court also held that the differential treatment for

ordinary PACs and small-donor PACs did not violate the

Fourteenth Amendment's equal protection clause. Id. at

1227, 1229. The trial court declined to reach the merits on

the other two issues, finding that the plaintiffs did not

have standing to contest the limit on contributions to

independent expenditure committees, id. at 1217, 1229,

and that the provision authorizing relevant actions by

local governments was not ripe for a constitutional chal-

lenge. Id. at 1217-18, 1229.

All parties appeal the rulings unfavorable to their

litigating positions. We affirm in part and reverse in part.

Standing is, of course, a threshold issue in every case

before a federal court: If a plaintiff lacks standing, he or

she cannot invoke the court’s jurisdiction. See Boyle v.

Anderson, 68 F.3d 1093, 1100 (8th Cir.1995), cert. denied,

516 U.S. 1173, 116 S.Ct. 1266, 134 L.Ed.2d 214 (1996). In

order to invoke the jurisdiction of a federal court, one

must meet three requirements. First, a plaintiff must have

suffered an “injury in fact,” and such an injury must be

concrete, particularized, and either actual or imminent.

Id. at 1100-01. Second, a would-be litigant must make out

a causal connection between the alleged injury and the

conduct challenged. Id. at 1100. Third, he or she must

show that the injury is likely to be redressed by a favor-

able decision. Id.

The trial court determined that each of the plaintiffs

had Article III standing as to all but one of their chal-

lenges, see Russell, 978 F.Supp. at 1217, and the defen-

dants do not contest that determination here. The

plaintiffs maintain, however, that the trial court erred in

finding that they did not have Article III standing to

challenge the provisions of Act I relating to independent

expenditure committees.

The trial court found that the plaintiffs did not face a

credible threat of present or future prosecution with

respect to this part of their claim, and thus could show no

actual or imminent “injury in fact,” because none of them

“could think of an independent expenditure committee to

which they had contributed in the past or to which they

planned to contribute.” Id. Indeed, one plaintiff testified,

“Well, in all honesty, I’d have to tell you it would take a

stretch of my imagination to figure out why I’d want to

contribute anything to an independent committee.”

Another simply testified that he did not know if he would

ever contribute to such a committee.

We are mindful that where “plaintiffs allege an inten-

tion to engage in a course of conduct arguably affected

with a constitutional interest which is clearly proscribed

by statute, courts have found standing to challenge the

Statute, even absent a specific threat of enforcement.”

United Food & Commercial Workers International Union v.

IBP, Inc., 857 F.2d 422, 428 (8th Cir.1988). But the plaintiffs

have not demonstrated any such intention: They have

indicated neither that they would contribute to a specific

independent expenditure committee nor that, but for the

limitations of Act I, they would form an independent

expenditure committee. Standing may not be predicated

merely upon a conjectural or hypothetical injury or, as

one of the plaintiffs here would have it, upon a stretch of

the imagination. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We there-

fore affirm the trial court’s determination that the plain-

tiffs lacked standing to challenge the provisions relevant

to independent expenditure committees.

Il.

“Where at all possible, government must curtail

speech only to the degree necessary to meet the particular

problem at hand, and must avoid infringing on speech

that does not pose the danger that has prompted regula-

tion.” Federal Election Commission v. Massachusetts Citizens

for Life, 479 U.S. 238, 265, 107 S.Ct. 616, 93 L.Ed.2d 539

(1986). Government attempts to limit campaign contribu-

4hoé ht th oe oe LA

tions, therefore, are subject to the closest scrutiny.

Carver v. Nixon, 72 F.3d 633, 636 (8th Cir.1995), cert. denied,

518 U.S. 1033, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996),

quoting Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46

L.Ed.2d 659 (1976) (per curiam), itself quoting NAACP v.

Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 2 L.Ed.2d 1488

(1958). Under this standard, a significant interference

with protected rights of political association may be sus-

tained only when the state demonstrates a compelling

interest and means closely drawn to avoid unnecessary

abridgement of associational freedoms. Carver, 72 F.3d at

636.

Intervenor (as a defendant) Citizens for Clean Gov-

ernment (CCG) argues that we should apply a more

lenient standard of review to the legislation in this case

because Act I included not only contribution limits but

also a public subsidy scheme. For this proposition, CCG

relies upon the Supreme Court’s ruling in Buckley that

upheld a ban on general election campaign contributions

to, and a limitation on general election campaign expen-

ditures by, a presidential candidate who elected to receive

a public subsidy. See Buckley, 424 U.S. at 85-109, 96 S.Ct.

612.

But the Buckley Court was clear that it was the

optional nature of the contribution and expenditure limit

scheme, not the subsidy, that rendered the scheme consti-

tutionally permissible: “Just as a candidate may volun-

tarily limit the size of the contributions he chooses to

accept, he may decide to forgo private fundraising and

accept public funding.” Id. at 57 n. 65, 96 S.Ct. 612.

Similarly, we recently upheld a voluntary campaign sub-

sidy and limitation scheme in Minnesota because the

scheme “presents candidates with an additional, optional

campaign funding choice, the participation in which is

voluntary.” Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552

(8th Cir.1996), cert. denied, __ U.S. ___, 117 S.Ct. 1820, 137

L.Ed.2d 1028 (1997). It is true that Act I provided a

subsidy and limitation scheme, but unlike the schemes

upheld in Buckley and Rosenstiel, Act I was imposed upon

all candidates: Candidates do not have the power to opt

out. We therefore decline this invitation to apply a stan-

dard of scrutiny to this case that is different from the one

that we adopted in Carver.

CCG argues for a more lenient standard of review on

the basis of two recent Supreme Court decisions as well,

but neither of these authorities modifies the standard of

review appropriate to this case. In Colorado Republican

Federal Campaign Committee v. Federal Election Commission,

518 U.S. 604, 609, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996)

(opinion of Breyer, J.), a case involving the application of

federal campaign expenditure limits, three justices

resorted to what CCG calls a weighing test, rather than

Strict scrutiny, to decide the case. See id. at 616, 618, 116

S.Ct. 2309. These justices described their approach as

consistent with cases in -which the Court “essentially

weighed the First Amendment interest in permitting can-

didates (and their supporters) to spend money to advance

their political views against a ‘compelling’ governmental

interest in assuring the electoral system’s legitimacy, pro-

tecting it from the appearance and reality of corruption.”

Id. at 609, 116 S.Ct. 2309. This adjudicatory approach

appears to us to be a restatement or reformulation, not.a

modification, of the Court’s familiar strict scrutiny anal-

ysis.

We are aware that during the last term, in Timmons v.

Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364,

1370, 137 L.Ed.2d 589 (1997), the Supreme Court upheld

an election regulation that barred a political party from

choosing as its nominee a candidate already appearing on

another party’s ballot. The Court held that while regula-

tions “imposing severe burdens on plaintiffs’ rights must

be narrowly tailored and [must] advance a compelling

state interest,” lesser burdens “trigger [a] less exacting

” Id. We believe, however, that restrictions on

individual contributions to candidates and on candidates’

review.

amassing sufficient resources to run for office are more

severe than the restrictions at issue in Timmons. Where

the regulations impose severe burdens on First Amend-

ment rights, as here, Timmons reiterates the Court’s posi-

tion that strict scrutiny applies.

We must therefore first determine what interest can

be sufficiently compelling to permit the state to restrict

First Amendment freedoms. The compelling state interest

identified in Buckley was “the prevention of corruption

and the appearance of corruption spawned by the real or

imagined coercive influence of large financial contribu-

tions on candidates’ positions and on their actions if

C10

elected to office.” Buckley, 424 U.S. at 25, 96 S.Ct. 612. The

Court reiterated this position five years later, holding that

“Buckley identified a single narrow exception to the rule

that limits on political activity were contrary to the First

Amendment. The exception relates to the perception of

undue influence of large contributors to a candidate.”

Citizens Against Rent Control v. Berkeley, 454 U.S. 290,

296-97, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) (emphasis

omitted). Subsequently, the Court stated flatly that

“[p]reventing corruption or the appearance of corruption

are the only legitimate and compelling government inter-

ests thus far identified for restricting campaign finances.”

Federal Election Commission v. National Conservative Politi-

cal Action Committee, 470 U.S. 480, 496-97, 105 S.Ct. 1459,

84 L.Ed.2d 455 (1985).

Only three years ago, we emphasized in Carver, 72

F.3d at 638-39, that the state may abridge political speech

in the form of campaign contributions only to address the

reality or perception of undue influence or corruption

attributable to large contributions. We turn, then, to a

consideration of whether the challenged provisions can

pass muster under this standard.

II].

We consider first the provisions of Act I that limited

direct contributions to candidates to $300 per election for

certain statewide offices, see Ark.Code Ann. § 7-6-293(a),

§ 7-6-203(b), and to $100 per election for all other state

offices, see Ark.Code Ann. § 7-6-203(a)(1), § 7-6-203(b)(1).

The defendants must prove first that there is real or

perceived undue influence or corruption attributable to

Cll

large political contributions in Arkansas, and then that

these challenged provisions of Act I are narrowly tailored

to address that reality or perception. We find that the

defendants failed to carry their burden before the trial

court.

We note that our review of the trial court’s judgment

may involve the review of some of the factual determina-

tions that it made. The Supreme Court has instructed

that, in cases involving the First Amendment, appellate

courts are to make an independent examination of the

whole record to ensure that their judgments do not con-

stitute a forbidden intrusion on the right of free expres-

sion. See New York Times Co. v. Sullivan, 376 U.S. 254, 285,

84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But we are also

mindful of Fed.R.Civ.P. 52(a), which provides that a trial

court’s factual findings are typically reviewed for clear

error.

To reconcile these two legal propositions, we held

last year that, in cases involving the First Amendment,

we would review findings of noncritical facts for clear

error, but would conduct an independent review of criti-

cal facts. See Families Achieving Independence and Respect v.

Nebraska Department of Social Services, 111 F.3d 1408, 1411

(8th Cir.1997) (en banc). Accordingly, in the discussion

that follows, we give due deference to the trial court’s

determination of noncritical facts, while we review inde-

pendently those facts that we believe to be critical.

We begin with the observation that no defendant

provided any credible evidence to the trial court of actual

undue influence or corruption stemming from large con-

tributions. We are left, then, to determine whether the

C12

defendants proved that a reasonable person could per-

ceive, on the basis of the evidence presented at trial, that

such contributions make for undue influence or spawn

corruption.

CCG presented proof at trial that was intended to

demonstrate specific instances in which large contribu-

tions had given rise to the appearance of undue influence

or corruption. Much of this proof focused on the intro-

duction in the Arkansas legislature of a bill that would

have prohibited local governments from regulating

tobacco. The bill’s sponsor, State Representative James

Dietz, had received as much as $2,700 in contributions the

previous year from various sources related to the tobacco

industry, such as the Tobacco Institute. Many other sup-

porters of the bill had apparently also received contribu-

tions from pro-tobacco sources. An opponent of the bill,

State Representative Ted Thomas, testified that there was

a “uniform” public perception of corruption associated

with the bill’s having been introduced and supported by

legislators who had received contributions from tobacco

interests.

Even assuming that Mr. Thomas was correct that

there was a public perception of corruption, we must

determine whether that public perception was reason-

able, and whether that perception of corruption derived

from the magnitude of the contributions to Mr. Dietz and

other supporters of the bill. We believe, after an indepen-

dent review of the facts presented to the trial court, that

the defendants did not prove that the perception of cor-

ruption to which Mr. Thomas alluded was objectively

reasonable. A newspaper article admitted into evidence

quoted Mr. Dietz as saying that he supported the preemp-

tion measure because he believed that one “ought to have

the right to say what goes on inside his building as long

as it’s legal.” That Mr. Dietz received political contribu-

tions from those whose interests he tended to support

hardly indicates, on its own, any corruption.

The defendants provided no evidence at trial, for

instance, that Mr. Dietz changed his position on the

tobacco bill due to an intervening contribution. Nor did

the defendants provide evidence that Mr. Dietz sought to

conceal his contributions from tobacco-related sources. If

it were reasonable to presume corruption from the fact

that a public official voted in a way that pleased his

contributors, legislatures could constitutionally ban all

contributions except those from the public official’s oppo-

nents, a patent absurdity. That would spell the end to the

political right, protected by the First Amendment, to sup-

port a candidate of one’s choice.

The defendants’ objections to Mr. Dietz’s activities

are also, we believe, essentially unrelated to the size of

the individual contributions that he received. The defen-

dants did not provide evidence, such as that produced by

the government in Buckley, of multi-million-dollar contri-

butions to Mr. Dietz. Indeed, our review of the evidence

presented to the trial court indicates that Mr. Dietz

reported no individual contribution larger than $1,000

from any source, tobacco-related or otherwise. We believe

that $1,000 is simply not a large enough sum of money to

yield, of its own accord and without further evidence, a

reasonable perception of undue influence or corruption.

C14

The defendants essentially criticize Mr. Dietz for

offering a bill favorable to interests from whom he had

already accepted campaign contributions. The difficulty

pointed to, then, seems to be the identity of the contribu-

tors and their subsequent interest in legislation rather

than the size of their contributions. We note that even if

Mr. Dietz had received twenty-seven individual contribu-

tions of $100 from various tobacco-related sources instea“

of a few somewhat larger contributions, the defendants

could make the same criticism of his activities as they

made here. We therefore conclude that the evidence that

the defendants presented regarding the tobacco legisla-

tion does not permit a finding of a reasonable perception

of corruption or undue influence due to large contribu-

tions.

The defendants also produced proof at trial that was

related to contributions by lobbyists to State Representa-

tive Ode Maddox. In April, 1996, a group of lobbyists

held a fund-raiser for Mr. Maddox at the Arkansas Poul-

try Federation in Little Rock. According to the trial court,

at that event Mr. Maddox raised a total of more than

$22,000 from various lobbyists, PACs, and corporations.

Our independent review of the record shows that Mr.

Maddox received no contribution in excess of $1,000 from

any single source.

The record does not indicate any change in Mr. Mad-

dox’s political behavior following these donations, nor

does it indicate that Mr. Maddox sought to conceal his

contributions or their sources. Indeed, the defendants did

not even demonstrate that Mr. Maddox voted in any

particular fashion with respect to any relevant issues

following the receipt of these donations. At bottom, the

C15

defendants’ complaint about Mr. Maddox’s contributions

is that they came from lobbyists who live outside his

district and have business before his committee from time

to time. But this complaint is not related to the size of the

contributions made to Mr. Maddox, and thus does not

satisfy the compelling state interest standard established

in Buckley and Carver. We conclude, then, that the evi-

dence that the defendants offered regarding Mr. Mad-

dox’s fund-raising practices does not permit a finding of

a reasonable perception of corruption or undue influence

stemming from large contributions.

The defendants also adduced proof at trial of contri-

butions by “real estate interests” to members of the Little

Rock municipal government. But, again, the defendants’

declared interest in regulating these has to do with the

identity of the contributor and that contributor’s interests

rather than with the size of individual contributions.

According to records provided to the trial court, no mem-

ber of the Little Kock municipal government received

more than $1,000 from any so-called “real estate interest.”

The record does not indicate any change in any official’s

behavior following such contributions, nor did the defen-

dants demonstrate that any official attempted to conceal

the source of the contributions. The evidence instead

shows that the “real estate interests” contributed to can-

didates who supported initiatives with which the contrib-

utors agreed — that is, the “real estate interests” appear to

have chosen well which candidates to support.

We cannot say that this evidence is sufficient to

establish that there could be a reasonable perception of

corruption or undue influence due to large contributions.

The defendants identify, instead, a concern that “real

C16

estate interests” gave money to officials of a municipal

government, and that those officials then voted on issues

relevant to real estate. This concern, as we have said

above, is not related specifically to the size of the contri-

butions, and thus is outside the scope of the compelling

state interest as defined by Buckley and Carver.

We also believe that the candidate contribution limits

set forth in Act I are too low to allow meaningful partici-

pation in protected speech and association. See Carver, 72

F.3d at 641-42. In Buckley, 424 U.S. at 20-35, 96 S.Ct. 612,

the Supreme Court approved a $1,000 contribution limit

as a narrowly tailored means to address the problem of

large campaign contributions. As we noted in Day v.

Holahan, 34 F.3d 1356, 1366 (8th Cir.1994), cert. denied, 513

U.S. 1127, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995), inflation

has eroded approximately 60 percent of the value of a

dollar since 1976. A $1,000 contribution in 1976 would

thus be worth about the same as a $2,500 contribution

today. We recognize that the contribution limit upheld in

Buckley does not constitute a constitutional minimum and

that we may not fine-tune the contribution limits estab-

lished by Act I. See Carver, 72 F.3d at 641. We must,

however, invalidate the contribution limitations if they

are different in kind from those that Buckley upheld. See

id.

The provisions of Act I challenged here limited con-

tributions to a candidate to only $100 or $300, depending

upon the office. See Ark.Code Ann. § 7-6-203(a),

§ 7-6-203(b). The limits prescribed by Act I, then, are

(adjusted for inflation) approximately 4 percent or 12

percent, respectively, of the limit upheld in Buckley. In

Day, 34 F.3d at 1366, we concluded that a limitation of

C17

$100, or 4 percent of the inflation-adjusted limit upheld in

Buckley, constituted a difference in kind from the limit

upheld in Buckley. In Carver, 72 F.3d at 641-42, we held

that contribution limitations of $100 or $300 per election

cycle (2 percent or 6 percent, respectively, of the limit

approved in Buckley) were “dramatically lower,” and thus

different in kind, from the limit upheld in Buckley. We

believe that the limitations in question here are similarly

dramatically lower than, and different in kind from, the

limits approved in Buckley, and thus are unconstitu-

tionally low.

We note, finally, that even if there were a compelling

state interest to prevent the perception of corruption or

undue influence due to any of the various concerns iden-

tified here by the defendants — that is, supporting tobacco

legislation, accepting contributions from those appearing

before or having interests before one’s legislative commit-

tee, accepting contributions from supporters outside

one’s district, or the like — Act I was not narrowly tailored

to address them. As we have already noted, “[w]here at

all possible, government must curtail speech only to the

degree necessary to meet the particular problem at hand,

and must avoid infringing on speech that does not pose

the danger that has prompted regulation.” Massachusetts

Citizens for Life, 479 U.S. at 265, 107 S.Ct. 616. Act I,

however, is at once both overinclusive and underinclu-

sive, by limiting the free speech of all who would contrib-

ute without addressing the specific concerns identified.

C18

IV.

The plaintiffs challenged two provisions relating to

the activities of political action committees. The first of

these was a provision, enacted in 1990, that prohibited

persons from giving more than $200 each year to any

one political action committee. See Ark.Code Ann.

§ 7-6-201(9)(B).

State-enforced limits on contributions to political

action committees stifle “not only free political speech,

but also free political association,” and are reviewed

according to a strict scrutiny standard. Day, 34 F.3d at

1365. We must therefore determine whether the defen-

dants demonstrated that the provision was narrowly tai-

lored to address the compelling state interest in avoiding

corruption or the appearance of corruption that stems

from large contributions.

We hold that this provision, like the provision that

we invalidated in Day, is not narrowly tailored to serve a

compelling state interest, because the annual limit is so

low as to be different in kind from the limit approved in

Buckley. See id. at 1366. In Day, we noted that a $100 limit

(in 1994 dollars) for contributions to political action com-

mittees was, adjusted for inflation, equal to approxi-

mately 4 percent of the contribution limit upheld in

Buckley. Id. Thus, a $200 limit (in 1998 dollars) is equal to

no more than 8 percent of the contribution limit approved

in Buckley. That limit is also less than 5 percent, even

before any adjustment for inflation, of the $5,000 limita-

tion on contributions to PACs approved by the Supreme

Court in California Medical Association v. Federal Election

C19

Commission, 453 U.S. 182, 195-99, 101 S.Ct. 2712, 69

L.Ed.2d 567 (1981) (plurality opinion).

There is also less of a danger of quid pro quo corrup-

tion, such as the sort that one might presume from large

contributions given directly to candidates, when a contri-

bution is given to a PAC that does not itself wield legisla-

tive power. Cf. Day, 34 F.3d at 1365. We believe that a

$200 limit (in 1998 dollars) will significantly impair the

ability of individuals to exercise their political rights. The

limit is simply too low to allow for appropriately robust

participation in protected political speech and associa-

tion, and thus violates the protections for free political

speech and free association that the First Amendment

affords.

The plaintiffs also challenged the provision in Act I

that permitted small-donor political action committees to

give as much as $2,500 to a candidate (in contrast to the

lower limits applicable to contributions by ordinary polit-

ical action committees). See Ark.Code Ann. § 7-6-203(d);

see also Ark.Code Ann. § 7-6-201(a), § 7-6-201(b). We

believe that such differential treatment must be evaluated

according to a strict scrutiny standard. “Because the right

to engage in political expression is fundamental to our

constitutional system, statutory classifications impinging

upon that right must be narrowly tailored to serve a

compelling governmental interest.” Austin v. Michigan

Chamber of Commerce, 494 U.S. 652, 666, 110 S.Ct. 1391, 108

L.Ed.2d 652 (1990).

The defendants argue that the differential treatment

of ordinary and small-donor PACs is justified because of

the difference in regulations as to their method of raising

C20

money. The only compelling government interest that

might permit this infringement of First Amendment

rights, as we have said, is preventing the reality or per-

ception of undue influence or corruption that might arise

from large contributions. As the Supreme Court has held,

“To the extent that large contributions are given to secure

a political quid pro quo from current and potential office

holders, the integrity of our system of representative

democracy is undermined.” Buckley, 424 U.S. at 26, 96

S.Ct. 612. Ostensibly to alleviate this potential for corrup-

tion, Act I limited individuals and ordinary PACs to

giving $300 to certain candidates and $100 to others

(although we note that our holding above returns these

limits to their pre-Act I limits of $1,000). See Ark.Code

Ann. § 7-6-201(a), § 7-6-201(b). Act I allowed smail-donor

PACs, however, to give $2,500 to any candidate. See

Ark.Code Ann. § 7-6-203(d). This differential treatment is

said to be acceptable because small-donor PACs them-

selves receive that money in contributions of $25 or less,

see Ark.Code Ann. § 7-6-201(12)(B).

This explanation, however, is manifestly flawed,

because it focuses on the source of the funds given to a

PAC rather than on the entity from which the candidate

receives the funds. Because a small-donor PAC receives

small donations, it is true that it is unlikely that any one

contributor to a small-donor PAC will be able to control

that PAC. Act I, however, ignored the possibility that the

small-donor PAC itself will seek to control a given candi-

date. A $2,500 contribution would be even more likely to

exacerbate this difficulty than the $1,000 contribution

limit applicable to most other contributors. Indeed, if any

C21

contribution is likely to give rise to a reasonable percep-

tion of undue influence or corruption, it would be one

from an entity permitted to contribute two-and-a-half

times the amount that most others are allowed to contrib-

ute. The small-donor PAC provision is not, then, nar-

rowly tailored to serve the compelling government

interest of combating the reality or perception of undue

influence or corruption.

We reject the defendants’ argument that the plaintiffs

(namely, three individuals and a political action commit-

tee) may not assert this equal protection argument

because they are not burdened to a greater extent by this

provision than small-donor PACs are. Ordinary PACs

may, it is true, raise more money per contribution than a

small-donor PAC, but the issue is their ability to speak

freely by contributing money to candidates for office.

Insofar as that freedom is at issue, the ordinary PACs are

burdened more than the small-donor PACs, because ordi-

nary PACs may donate only the amount that individuals

may donate, while small-donor PACs may donate $2,500.

We believe, then, that the plaintiffs here meet the require-

ments set forth in California Medical Association, 453 U.S.

at 200, 101 S.Ct. 2712.

The plaintiffs also challenged the constitutionality of

Ark.Code Ann. § 7-6-224. This provision states only that

local governments “shall have the authority to establish

reasonable limitations” on campaign contributions and

expenditures, and appears to be simply an allocation by

the state of Arkansas of certain of its plenary powers to

C22

local governments: It does not set any specific limits on

campaign contributions or expenditures, and thus cannot

restrict the First Amendment freedoms of any person or

entity seeking to contribute to or spend the revenues of a

political campaign. Were a local government to exercise

the power granted it by § 7-6-224, its action might then be

challenged in the same manner as the actions of the

defendants were challenged in this suit. But no such

action has yet been taken and brought to the attention of

a court. Ark.Code Ann. § 7-6-224 thus does not present a

federal constitutional controversy that is ripe for adjudi-

cation at this time.

VI.

Those provisions of the Arkansas statutes in conflict

with our analysis above are unconstitutional and unen-

forceable. We must now determine whether the invalid

provisions of Act I may be severed from the remainder of

its provisions.

Severability is a matter of state law. Leavitt v. Jane L.,

518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996)

(per curiam). The Supreme Court of Arkansas looks to

two considerations to determine severability: “(1)

whether a single purpose is meant to be accomplished by

the act; and (2) whether the sections of the act are interre-

lated and dependent upon each other.” U.S. Term Limits,

Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, 357 (1994). The

court provided further guidance, moreover, in its obser-

vation that “it is important whether the portion of the act

remaining is complete in itself and capable of being exe-

cuted wholly independent of that which was rejected.” Id.

C23

at 358. A severability clause, such as the one provided in

Act I, is relevant but not determinative of whether indi-

vidual provisions of the act will be considered severable.

Id.

Applying the principles set forth in U.S. Term Limits,

we find no single purpose behind Act I with which our

ruling could interfere. Act I provided for a series of

campaign finance reforms, including the independent

expenditure committee and certain tax provisions, that

remain unaffected by the outcome of this case. We can

find ne reason not to honor the intent of the drafters of

Act I that, to the extent possible, its various provisions

should stand on their own.

VII.

We therefore affirm in part and reverse in part the

judgment of the trial court. We remand the case to the

district court for the entry of declaratory and injunctive

relief consistent with this opinion.

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 98-1215/1218WAF

Arkansas Right to Life r

Political Action Committee; *

David Sloan, * Appeal from the

* United States District

Court for the Western

vV. * District of Arkansas

Brad Butler, et al,

Appellees,

Appellants. *

The suggestion for rehearing en banc is denied.

Judge Richard S. Arnold would grant the suggestion.

The petition for rehearing by the panel is also denied.

September 29, 1998

Ordered Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

APPENDIX E

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 97-3922/4033/ 4038

Ron Russell, et al.,

Appellants,

Appeals from the United

States District Court for the

Eastern District of Arkansas

Vs.

* *

Troy Burris, et al,

Appellees.

The court grants the motion of appellees Burris,

Looney, Alexander, Allen, and Kearney for leave to file

late objections to the appellants’ motion for fees and

costs.

The court directs the clerk to file the objections of

appellee Citizens for Clean Government to the appel-

lants’ motion for fees and costs.

The court directs the clerk to file the appellants’ reply

brief.

The court grants in part the appellants’ motion for

fees and costs. The court awards $449.33 in costs to the

appellants, see 8th Cir. R. 39A(a) and Miller-Wohl Com-

pany, Inc. v. Commissioner of Labor and Industry, 694 F.2d

203 (9th Cir. 1982), see also United States v. State of Michi-

gan, 940 F.2d 143 (6th Cir. 1991), and Morales v. Turman,

820 F.2d 728 (5th Cir. 1987), to be assessed only against

defendants Burris, Looney, Alexander, Allen, Kearney,

Russell, Delph, and Wilson. See Independent Federation of

Flight Attendants v. Zipes, 491 U.S. 754 (1989). The court

denies in all other respects the appellants’ motion for fees

and costs. See Thorsted v. Gregoire, 841 F.Supp. 1068 (W.D.

Wash. 1994), aff'd, 75 F.3d 454 (9th Cir. 1996) (per curiam).

August 17, 1998

Ordered Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.