foley v fidele et al

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    UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUT Fn~EDTHOMAS C. FOLEY and FOLEY FORGOVERNOR, INC.,

    CIVIL NO. 2010 JUl I 3 P 3: 35U .3. l, \ 3 T h ; C i' ~~ Q,u;: 1-i.;\:(iTJ:~O, .. i.Plaintiffs,

    v. iioev- to'll'."..,........'. -.....'( '. t~- '",_,t,T ATE ELECTIONS ENFORCEMENTCOMMISSION; ALBERT P. LENGE, in hisoffcial capacity as Executive Director andGeneral Counsel of the State ElectionsEnforcement Commission; NANCYWYMAN, in her offcial capacity as State

    Comptroller; DENISE L. NAPPIER, in heroffcial capacity as State Treasurer; FEDELE2010 JOINT GUBERNATORIALCAMPAIGN COMMITTEE; FEDELE 2010;BOUGHTON FOR CT 2010; and JOHNDOE, CORP.,Defendants. JULY 13,2010

    COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY JUDGMENTINTRODUCTION

    1. The Plaintiffs, Thomas C. Foley and Foley for Governor, Inc., bring this action

    challenging the constitutionality of the statutes governing Connecticut's Citizens' Election

    Program ("CEP"), Conn. Gen. Stat. 9-700, et seq. The CEP provides for public financing ofcampaigns for state legislative and executive offices for those candidates who meet certainthresholds, including collection of specified amounts of "qualifying contributions." In return,participating candidates agree to limit their campaign spending to amounts specified in the CEPfor each phase of the campaign - pre-primary, primary and general election. See 9-702, 9-703. The CEP provides a set amount of public funding out of the Citizens' Election Fund("CEF") for each phase of the campaign. For the gubernatorial primary, a participating,

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    qualified candidate receives an initial grant of $1.25 million. See 9-705(a)( 1). The CEPallows participating candidates in the gubernatorial primary to receive supplemental matchinggrants, up to an additional $1.25 million, based on funds received or spent by any non-participating candidates for the same offce. See 9-713.

    2. The public financing system created by the CEP, specifically, Conn. Gen. Stat.

    9-713 which governs supplemental matching grants under the CEP, violates the Speech andAssociation Clauses of the First Amendment of the United States Constitution because itpenalizes non-participating candidates, such as the Plaintiffs, by providing a financial advantageto participating candidates by providing them with extra funding equal to the value of fundsexpended by the non-participating candidate over the particular CEP grant amount. The result isto present non-participating candidates with the unconstitutional choice of either curtailing theirown speech or effectively subsidizing their participating opponents' speech.

    3. The Plaintiffs seek an order declaring unconstitutional Conn. Gen. Stat. 9-713

    and enjoining the payment of supplemental matching CEP funds to opposing participatingcandidates, and the expenditure of said additional monies by opposing participating candidates,as a result of any contributions, loans or other funds received by, or expenditures made, orobligated to be made, by a nonparticipating candidate.

    4. The Plaintiffs also seek a permanent injunction enjoining the:

    a. Defendant State Elections Enforcement Commission ("SEEC") fromapproving the payment of any supplemental matching CEP grants, pursuant toConn. Gen. Stat. 9-713, to Defendants Fedele 2010 Joint Gubernatorial

    Campaign Committee, Fedele 2010, or Boughton for CT 2010;

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    b. Defendant Wyman from drawing an order on Defendant Nappier, in herofficial capacity as State Treasurer, for payment of any CEP supplementalmatching grants, pursuant to Conn. Gen. Stat. 9-713, to Defendants Fedele2010 Joint Gubernatorial Campaign Committee, Fedele 2010, or Boughton forCT 2010;

    c. Defendant Nappier from disbursing any supplemental matching grants from

    the Citizens' Election Fund, pursuant to Conn. Gen. Stat. 9-713, toDefendants Fedele 2010 Joint Gubernatorial Campaign Committee, Fedele2010, or Boughton for CT 2010;

    d. Defendant Fedele 2010 Joint Gubernatorial Campaign Committee fromspending any such grant funds, if any such grant funds already have beendisbursed prior to the entry of an injunction;

    e. Defendant Fedele 2010 from spending any such grant funds, if any such grantfunds already have been disbursed prior to the entry of an injunction;

    f. Defendant Boughton for CT 2010 from spending any such grant funds, if anysuch grant funds already have been disbursed prior to the entry of aninjunction; and

    g. Defendant John Doe Corp., who are certain unknown political vendors andbroadcast media outlets, from accepting payment of supplemental matching

    CEP funds from Defendant Fedele 2010 Joint Gubernatorial CampaignCommittee, Defendant Fedele 2010 and Defendant Boughton for CT 2010 andrunning any television ads, radio ads, mailings or any other political ads paidfor by these committees.

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    PARTIES5. Plaintiff Thomas C. Foley is a resident of Greenwich and a Republican candidate

    for the office of Governor. Mr. Foley was endorsed as the candidate for that office at the stateRepublican Party convention in May. Mr. Foley is not participating in the CEP.

    6. Plaintiff Foley for Governor, Inc., is the official campaign committee for Mr.

    Foley's gubernatorial candidacy.7. Defendant SEEC is the statutorily-designated state agency responsible for

    ensuring the integrity of the state's electoral process. See Conn. Gen. Stat. 9-7a & 9-7b. TheSEEC administers and enforces the CEP. See Conn. Gen. Stat. 9-7b, 9-3331, 9-701, 9-713 &9-714. The SEEC's statutory duties with respect to the CEP include considering and approvingthe applications of individuals who wish to be participating candidates in the CEP and notifyingthe State Comptroller of such approvals and the grant amount(s) to be disbursed. See Conn. Gen.Stat. 9-706.

    8. Defendant Albert P. Lenge is the Executive Director and General Counsel of the

    SEEC. This action is brought against Mr. Lenge solely in his offcial capacity as the SEEC'sExecutive Director and General CounseL.

    9. Defendant Nancy Wyman is Connecticut's State Comptroller. This action isbrought against Ms. Wyman solely in her official capacity as Comptroller. As Comptroller, Ms.Wyman is responsible for ordering payment on CEF grant vouchers issued by the SEEC. SeeConn. Gen. Stat. 9-706(d), 9-708, 9-713 & 9-714.

    10. Defendant Denise L. Nappier is Connecticut's State Treasurer. This action isbrought against Ms. Nappier solely in her official capacity as State Treasurer. As State Treasurer,

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    Ms. Nappier disburses grants and supplemental matching grants from the CEF. See Conn. Gen.Stat. 9-706(d), 9-708, 9-713 & 9-714.

    11. Defendant Fedele 2010 is the official campaign committee of LieutenantGovernor Michael C. Fedele, a Republican candidate for the office of Governor.

    12. Defendant Boughton for CT 2010 is the official campaign committee of Mark D.Boughton, a Republican candidate for the office of Lieutenant Governor.

    13. Defendant Fedele 2010 Joint Gubernatorial Campaign Committee is the officialjoint campaign committee formed pursuant to Conn. Gen. Stat. 9-709 by Michael C. Fedeleand Mark D. Boughton.

    14. Defendant John Doe Corp., who are certain unknown political vendors andbroadcast media outlets, who may sell to Defendant Fedele 2010 Joint Gubernatorial CampaignCommittee, Defendant Fedele 2010 and Defendant Boughton certain television ads, radio ads,mailings or any other political ads.

    FACTUAL ALLEGATIONS15. As set forth above, the CEP provides for public financing of campaigns for major

    legislative and executive state offces, including Governor and Lieutenant Governor. Conn. Gen.Stat. 9-702 & 9-703. In exchange for public financing grants, participating candidates agreeto limit their campaign spending to amounts specified in the Act. See id. For the office of

    Governor, the CEP provides for an initial grant of $1.25 million for any participating major party

    candidate. For the office of Lieutenant Governor, the CEP provides for an initial grant of$375,000 for any participating major party candidate. See 9-705.

    16. In order to participate in the CEP, a candidate must obtain a specified amount of

    "qualifying contributions" based on the office for which he is running. See Conn. Gen. Stat.

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    9-702(b) & 9-704. "Qualifying contributions" are monetary contributions of at most onehundred dollars each from qualified electors. 9-704. Candidates for governor must receive anaggregate of $250,000 from at least 2500 individuals. 9-704(a)(l). The amount of anycontributions from a single individual in excess of one hundred dollars "shall not be consideredin calculating such amounts." 9-704(a)(1)(A).

    17. All candidates who participate in the CEP agree to limit the expenditures of the"candidate's committee" to the qualifying contributions and the financing received through thesystem for each phase of a campaign - pre-primary, primary and general election. Conn. Gen.

    Stat. 9-702(c), 9-705(j).l8. Under the CEP, participating candidates receive an additional public subsidy,

    supplemental matching grants, in response to funds received or spent made by non-participatingcandidates, including candidates who are ineligible or unable to qualify for public financing.Conn. Gen. Stat. 9-7 1 3.

    19. If a non-participating candidate receives contributions or spends more than an

    amount equal to the participating candidate's expenditure limit, then the participating candidateis eligible to receive up to four additional grants, each worth 25% of the full grant. /d. Theexcess expenditure grants are distributed whenever the non-participating candidate receivescontributions or makes expenditures exceeding 100%, 125%, 150%, and 175% of theexpenditure limit for that particular office. /d.; see also SEEC, Understanding ConnecticutCampaign Finance Laws: A Guide for 2008 General Assembly Candidates Participating in theCitizens' Election Program ("2008 SEEC CEP Guide"), at 65-66.

    20. The participating candidate receives the full value of the supplemental grantimmediately, meaning that even if a non-participating candidate spends only $1 over the

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    expenditure limit, the participating candidate opponent receives an immediate 25% supplementalgrant. Conn. Gen. Stat. 9-713; 2008 SEEC CEP Guide, at 65-66.

    21. Specifically, the CEP provides:

    If the State Elections Enforcement Commission determines thatcontributions, loans or other funds have been received, or that anexpenditure is made, or obligated to be made, by a nonparticipatingcandidate who is opposed by one or more participating candidatesin a primary campaign or a general election campaign, which inthe aggregate exceed one hundred per cent of the applicableexpenditure limit for the applicable primary or general electioncampaign period, as defined in subdivision (1) of subsection (b) ofsection 9-712, the commission shall process a voucher not laterthan two business days after the commission's determination andthe State Comptroller shall draw an order on the State Treasurerfor payment, by electronic fund transfer directly into the campaignaccount of each such participating candidate, not later than threebusiness days after receipt of an authorized voucher from thecommission.

    /d. (emphasis added). i22. Section 9-712(b)(1) defines an excess expenditure as "an expenditure made, or

    obligated to be made, by a nonparticipating or a participating candidate who is opposed by oneor more other participating candidates in a primary campaign or a general election campaign,which is in excess of the amount of the applicable limit on expenditures for said participatingcandidates for said campaign." Conn. Gen. Stat. 9-712(b)(1) (emphasis added).

    23. The Connecticut Republican Party held its convention for the purpose ofendorsing candidates for numerous statewide offices, including Governor, on May 21-22, 2010.

    i Section 9-713 includes three additional identical provisions that allow for three additional supplemental grantswhen a nonparticipating candidate receives or spends funds in a primary campaign or a general campaign, which inthe aggregate exceed one hundred and twenty-five percent, one hundred and fifty percent, and one hundred seventy-five percent of the primary or general election campaign period. Conn, Gen. Stat. 9-7 i 3(b )-(d).

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    Thus, by statute, the Republican primary campaign period for the Offce of Governor began onMay 23, 2010.

    24. At the Convention, the Republican Party endorsed Plaintiff Foley as its candidate

    for Governor and Boughton as its candidate for Lieutenant Governor. However, Fedele and OzGriebel also each garnered enough support at the Convention to qualify for the Republican

    primary for Governor.25. Plaintiff Foley is not participating in the CEP.26. Upon information and belief, on July 8, 2010, the SEEC approved the joint

    application submitted by Fedele and Boughton for Defendants Fedele 2010, Boughton for CT2010 and Fedele 2010 Joint Gubernatorial Campaign Committee, and Fedele and Boughtonindividually, to participate in the CEP. Griebel is not participating in the CEP.

    27. By statute, following the SEEC's approval, the SEEC must notify the Defendant

    Wyman of that approval and the amount of the CEP grant that Defendants Fedele 2010 JointGubernatorial Campaign Committee and/or Fedele 2010 is entitled to receive. 9-706( d).

    28. Section 9-706( d) further requires the Defendant Wyman to "draw an order on the

    State Treasurer for payment of any such approved amount to the qualified candidate committee"from the CEF "(nJot later than two business days" after being notified by the SEEC of suchapprovaL. 9-706( d) (emphasis added).

    29. Upon information and belief, CEP funds equaling the initial grant amounts have

    already been paid to Defendants Fedele 2010, Boughton for CT 2010 and/or Fedele 2010 JointGubernatorial Campaign Committee, and Fedele and Boughton individually.

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    30. Upon information and belief, certain CEP supplemental matching funds have alsoalready been paid to Defendants Fedele 2010, Boughton for CT 2010 and/or Fedele 2010 JointGubernatorial Campaign Committee, and Fedele and Boughton individually.

    31. Upon information and belief, Defendant Wyman may authorize the payment ofadditional supplemental matching CEP funds to Defendants Fedele 2010, Boughton for CT 2010and/or Fedele 2010 Joint Gubernatorial Campaign Committee, and Fedele and Boughtonindividually.

    COUNT ONE: DECLARATORY JUDGMENT1-31. Paragraphs 1-31 are hereby incorporated by reference and made paragraphs 1-31

    of Count One as if fully set forth therein.32. Conn. Gen. Stat. 9-713, which governs supplemental matching grants under the

    CEP, does not permit the payment of additional monies to opposing participating candidates as aresult of any contributions, loans or other funds received by, or expenditures made, or obligatedto be made, by a nonparticipating candidate.

    33. On July 13, 2010, the United States Second Circuit Court of Appeals affirmed thetrial court's ruling that declared unconstitutional certain provisions of the CEP, including Conn,Gen. Stat. 9-713, governing the payment of supplemental matching grants to participatingcandidates based on contributions, loans or other funds received by, or expenditures made, orobligated to be made, by a nonparticipating candidate. See Opinion dated July 13, 2010, p. 43-

    49 attached hereto as Exhibit A.34. The Plaintiffs have a legal or equitable interest in the proper resolution of this

    substantial uncertainty and/or substantial question because they will be harmed by any potential

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    supplemental matching grants to Defendant Fedele 2010 Joint Gubernatorial Campaign

    Committee and/or Fedele 2010, in that:a. Defendant Fedele 2010 Joint Gubernatorial Campaign Committee and/or

    Defendant Fedele 2010 have already received supplemental matching grantfunds from the CEF that they, and/or Defendant Boughton for CT 2010, willuse to oppose Plaintiff Foley's candidacy for Governor, thereby impactingFoley's First Amendment rights to free speech, association and to run forelective offce;

    b. Defendant Fedele 2010 Joint Gubernatorial Campaign Committee and/orDefendant Fedele 2010 potentially will receive additional supplementalmatching grant funds from the CEF that they, and/or Defendant Boughton forCT 2010, will use to oppose Plaintiff Foley's candidacy for Governor, therebyimpacting Foley's First Amendment rights to free speech, association and torun for elective office; and

    c. Plaintiff Foley for Governor, Inc., will be forced to expend additional sums in

    response to the supplemental matching grant funds received by those

    Defendants.COUNT TWO: INJUNCTIVE RELIEF

    1-34. Paragraphs 1-34 are hereby incorporated by reference and made paragraphs 1-34

    of Count Two as if fully set forth therein.35. In the absence of permanent injunctive relief, the Plaintiffs likely will suffer

    irreparable harm from the previously-described SEEC approval for which they have no adequateremedy at law.

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    36. Specifically:a. Defendant Nappier has disbursed supplemental matching grant funds to

    Defendant Fedele 2010 Joint Gubernatorial Campaign Committee and/orDefendant Fedele 2010 from the CEF that Defendant Fedele 2010 JointGubernatorial Campaign Committee, Defendant Fedele 2010 and/orDefendant Boughton for CT 2010 will use to oppose Plaintiff Foley'scandidacy for Governor, thereby impacting Foley's First Amendment rights tofree speech, association and to run for elective office;

    b. Upon notice from the SEEC and/or Defendant Lange, Defendant Wyman willorder payment of, and Defendant Nappier will disburse additionalsupplemental matching grant funds to Defendant Fedele 2010 JointGubernatorial Campaign Committee and/or Defendant Fedele 2010 from theCEF that Defendant Fedele 2010 Joint Gubernatorial Campaign Committee,Defendant Fedele 2010 and/or Defendant Boughton for CT 2010 will use tooppose Plaintiff Foley's candidacy for Governor, thereby impacting Foley'sFirst Amendment rights to free speech, association and to run for electiveoffice; and

    c. Plaintiff Foley for Governor, Inc., potentially will be forced to expendadditional sums in response to the supplemental matching grant funds

    received by those Defendants.37. The balance of equities weighs substantially in the Plaintiffs' favor, further

    justifying injunctive relief, because the Plaintiffs will suffer greater harm if a permanentinjunction is not granted than will the Defendants if one is. In particular, Plaintiff Foley's First

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    Amendment rights to free speech, association and to run for elective office will be negativelyimpacted and Plaintiff Foley for Governor, Inc., will be forced to expend additional sums inresponse to the potential supplemental matching grant funds received by Fedele 2010. Moreover,Defendants SEEC, Lenge, Wyman and Nappier will suffer no harm at all - they simply will nothave to undertake the statutory duties described above.

    38. Additionally, without injunctive relief from this Court, Defendant Fedele 2010

    Joint Gubernatorial Campaign Committee, Defendant Fedele 2010 and/or Defendant Boughtonfor CT 2010 will be able to expend supplemental matching grant funds to oppose PlaintiffFoley's candidacy for Governor, thereby impacting Foley's First Amendment rights to freespeech, association and to run for elective offce, notwithstanding the Second Circuit's Orderaffirming the trial court's finding 9-713 unconstitutional. Indeed, Public Act 10-2 (amending 9-717) states that "( aJny candidate who receives funds pursuant to the provisions of (the CEPJprior to any such prohibition or limitation taking effect may retain and expend such funds inaccordance with said sections unless prohibitedfrom doing so by the court."

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    PRAYER FOR RELIEFWHEREFORE, the Plaintiffs respectfully seek the following relief:1. A judgment declaring unconstitutional Conn. Gen. Stat. 9-713, which governs

    supplemental matching grants under the CEP.2. A temporary and permanent injunction enjoining the:

    a. Defendant SEEC from approving requests for any supplemental matching

    CEP funds, pursuant to Conn. Gen. Stat. 9-713, to Defendants Fedele 2010 Joint GubernatorialCampaign Committee, Fedele 2010 or Boughton for CT 2010;

    b. Defendant Wyman from drawing an order on Defendant Denise L.Nappier, in her official capacity as State Treasurer, for payment of any supplemental matchingCEP funds, pursuant to Conn. Gen. Stat. 9-713, to Defendants Fedele 2010 Joint GubernatorialCampaign Committee, Fedele 2010 or Boughton for CT 2010;

    e. Defendant Nappier from disbursing any supplemental matching CEP

    funds, pursuant to Conn. Gen. Stat. 9-713, to Defendants Fedele 2010 Joint Gubernatorial

    Campaign Committee, Fedele 2010 or Boughton for CT 2010;h. Defendant Fedele 2010 Joint Gubernatorial Campaign Committee from

    spending any supplemental matching CEP funds, received pursuant to Conn. Gen. Stat. 9-713,if any such grant funds already have been disbursed prior to the entry of an injunction;

    i. Defendant Fedele 2010 from spending any supplemental matching CEP

    funds, received pursuant to Conn. Gen. Stat. 9-713, if any such grant funds already have beendisbursed prior to the entry of an injunctio; and

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    J. Defendant Boughton for CT 20 1 0 from spending any supplementalmatching CEP funds, received pursuant to Conn. Gen. Stat. 9-713, if any such grant fundsalready have been disbursed prior to the entry of an injunction.

    k. Defendant John Doe Corp., who are certain unknown political vendors and

    broadcast media outlets, from accepting payment of supplemental matching CEP funds fromDefendant Fedele 2010 Joint Gubernatorial Campaign Committee, Defendant Fedele 2010 andDefendant Boughton for CT 2010 and running any television ads, radio ads, mailings or anyother political ads paid for by these committees.

    Respectfully submitted,

    THOMAS C. FOLEY, FOLEY FOR GOVERNOR,INC.By and through its attorneys,

    ~ared Cohane (ct24264)Hinckley, Allen & Snyder LLP20 Church StreetHartford, CT 06103T: 860-331-2724F: 860-331-2725j cohane()haslaw .compmarti n0)hasl aw. com

    Dated: July 13,2010

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    UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUTTHOMAS C. FOLEY and FOLEY FORGOVERNOR, INC., CIVIL NO.

    Plaintiffs,v.

    ST ATE ELECTIONS ENFORCEMENTCOMMISSION; ALBERT P. LENGE, in hisofficial capacity as Executive Director andGeneral Counsel of the State ElectionsEnforcement Commission; NANCYWYMAN, in her offcial capacity as StateComptroller; DENISE L. NAPPIER, in herofficial capacity as State Treasurer; FEDELE2010 JOINT GUBERNATORIALCAMPAIGN COMMITTEE; FEDELE 2010;BOUGHTON FOR CT 2010; and JOHNDOE, CORP.,

    Defendants. JULY 13,2010VERIFICATION OF COMPLAINT

    I, Justin R. Clark, individually and on behalf of Foley for Governor, Inc., having read theforegoing Complaint, do hereby verify that it is true and correct to the best of my knowledge andbelief. :~.~

    JUSTIN R. CLARKSubscribed and Sworn to beforeme this 13th day of July, 2010

    '. ' ' J) --_.-(.J~J~Lj..1/ ,~h; ..J-( cr-Commissioner of the Superior CourtNotary PublicMy Commission Expires:

    -viCHl=.... \:. uioSTASIONOTARY PUBLICMY COMMISSION EXPIRES JAN. 31, 201415

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