Seventh Circuit Hears Mulholland Slating Case; Oral Argument Suggests Reversal of Trial Court's Dismissal is Likely

Today a three judge panel of the Seventh Circuit (Judges Richard Posner, David Hamilton and Joel Flaum) heard the case of Zach Mulholland v. the Marion County Election Board.  The Indiana Law Blog has made the audio available on-line.  It lasts about 20 minutes.

Some background to that lawsuit.  When I ran in the Republican  primary for Clerk in 2002 , I had a handout at the poll that featured my name and Joe McAtee's.  McAtee was running for Marion County Sheriff, a position he had held earlier for two terms.  McAtee like me had not been slated by the party.   My handouts, as well as the Indiana Right to Life's list of endorsed candidates, were seized as being in violation of Indiana's Slating Statute which prohibits candidates from handing out literature with multiple names on the handouts unless the literature is first filed with the Election Board along with written approval from the candidates who are featured on the literature.

Zach Mulholland

After the primary, Jim Bopp's law firm out of Terre Haute contacted me about being a plaintiff in a free speech case challenging the Slating Statute.  I agreed to participate.  A lawsuit was filed with me as the plaintiff along with Indiana Right to Life which had its list of endorsed candidates seized at the same primary.  Our complaint asked that the Slating Statute be declared unconstitutional and the Board enjoined from enforcing it.  The Marion County Election Board, which was represented by the Attorney General's Office, entered into an agreed judgment, a consent decree stating that the law was unconstitutional on its face and the Board would be enjoined from enforcing it.  The case's citation is Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003)


Nine years later Zach Mulholland was running for state legislature against Dan Forestal in the Democratic primary in House District 100.  It was shaping up to be a hotly contested race.  Forestal was the slated candidate, but on primary election day Mulholland had every polling place covered with volunteers handing out his literature. 

Mulholland's literature included one handout that suggested voting for President Obama, Joe Donnelly, Andre Carson, John Gregg, and Zach Mulholland..  (Mulholland, an attorney, knew that the Slating Statute had been held to be unconstitutional in my case.)  On the day of the primary, the Election Board met and voted 3-0 to seize Mulholland's literature for violating the Slating Statute, despite the fact that the Board had agreed that law was unconstitutional and the Board would not try to enforce it.  Democratic Party officials went out to the various voting locations and seized Mulholland handouts from the candidate's volunteers.  Mulholland lost by 730 votes to Forestal.

Following the primary, Mulholland retained the ACLU to file a lawsuit. But, in a development that proved perplexing to the Seventh Circuit judges, the ACLU filed the lawsuit, asking for an injunction against the Board enforcement of a statute already declared unconstitutional and for damages, was filed in state court rather than the federal Southern District of Indiana which had entered the injunction in 2012.  Meanwhile the Election Board attempted to conduct an investigation and ordered Mulholland to appear.    Later, Mulholland filed a federal lawsuit again asking that it, again, be declared unconstitutional and that the Election Board, again, be enjoined from enforcing it.

In September of 2013, District Court Judge Sarah Evans Barker dismissed Mulholland's federal lawsuit citing the abstention doctrine set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971).   Basically that case holds that when there is a state court proceeding any subsequent federal litigation on the same topic cannot proceed.  There is, however, an exception to the Younger doctrine namely extraordinary circumstances like "bias or harassment."

In what I found most surprising though was that Judge Barker bought the Election Board's far-fetched argument that the decision in my case that the Slating Statute was facially unconstitutional and the Board would be enjoined from enforcing it, only applied to me and Indiana Right to Life.  For everyone else, according to the decision the statute was still in effect and enforceable.

A quick break for an explanation of some terminology.  There are basically two types of constitutional challenges.  You can have an "as-applied" challenge to the constitutionality of a law. That means the law is unconstitutional when applied to a certain set of facts.  In such a circumstance the statute survives but its application is limited.   A "facial challenge," on the other hand, refers to a challenge that the statute is always unconstitutional, that the facts of the particular case do not matter.  In the latter situation, the statute is not limited but rather voided

At the outset of the Seventh Circuit argument, the judges indicated that the should assume that the district court was wrong in applying Younger to dismiss the case.  Judge Hamilton remarked that "the absence of any constitutional defense to the law, the consent judgment and so on, this frankly looks a lot like harassment."  That is an exception to Younger.   As to Judge Barker's conclusion the statute was facially unconstitutional only as to me and Indiana Right to Life, Judge Hamilton was having none of it telling the Election Board's attorney "You're in a very tough spot.  [The statute] can't be facially unconstitutional only to Mr. Ogden."  Indeed, how could it be? That makes no sense.

The weakness of Mulholland's case for the judges was their struggle with what to do with the state court action. In rebuttal, Ken Falk for the ACLU said he filed in state court because he viewed it like a small claims court action, that given the federal court judgment finding the law unconstitutional and the Election Board was enjoined from enforcing it, he would get a quick settlement. With all due respect to Falk, he did not understand that it did not matter to the Election Board that a quick settlement was in the public's best interests.  There were Democratic and Republican attorneys who wanted to make a lot of money billing the public and the Mulholland lawsuits were just the ticket to do that.  In July of 2013, the Indianapolis City-County Council approved an additional $150,000 in defense of this lawsuit in defense of this indefensible lawsuit.  It should be noted that Marion County Clerk Beth White, who did vote for the Mulholland enforcement action, has opposed the partisan outside counsel who are running up these bills.

One thing that was not addressed is what to do with future violation of the law by the Election Board. Every member of the Board at the time was an attorney, including the Marion County Clerk. They all knew about the 2003 consent decree finding the Slating Statute and the agreed judgment enjoining its enforcement.  Yet they voted 3-0 to enforce it anyway and then enlisted an army of folks, some of who were attorneys who knew about the 2003 injunction, to go out and seize Mulholland's material.  As of present, there have been no consequences for these folks deliberate violation of a federal court order.  In fact, their violation of the court order has resulted in very profitable litigation for politically connected attorneys while at the same time the Board got exactly what it wanted - a non-slated candidate's literature seized.  A few elections from now, what is to stop the Election Board from once again attempting to enforce the unconstitutional Slating Statute?  Unless the federal court imposes sanctions, the answer is nothing.  They will do it again. 

Thursday, July 18, 2013, Taxpayers Should Not Be Billed for Election Board's Vote to Enforce Law in Violation of Federal Injunction

Monday, May 7, 2012, Reminder: Anti-Slate Law Was Determined to Be Unconstitutional in Ogden v. Marendt
 
Saturday, June 2, 2012, Marion County Election Board Sued for Violating Federal Injunction Prohibiting Enforcement of Anti-Slate Law Declared Unconstitutional 

Friday, June 8, 2012, Indianapolis Star Reports on Election Board's Violation of Federal Injunction to Seize Unslated Candidate's Literature