IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION
WILLIAMSON STRONG, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
THE TENNESSEE BUREA OF ETHICS )
AND CAMPAIGN FINANCE, REGISTRY )
OF ELECTION FINANCE, et al.,
)
)
Defendants.
)

No.

3:15-cv-0739

Judge Trauger
Magistrate Judge Brown

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS

Come the Defendants, the Tennessee Bureau of Ethics and Campaign Finance, Registry of
Election Finance (hereinafter referred to as the Registry), and Tom Lawless, Patricia Heim,
Norma Lester and Tom Morton, in their official capacities as members of the Registry, by and
through their counsel of record, the Attorney General and Reporter for the State of Tennessee, and
hereby submit this memorandum of law in support of their motion to dismiss Plaintiffs complaint
in its entirety and with prejudice for lack of subject matter jurisdiction and failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
INTRODUCTION AND BACKGROUND
Plaintiff, Williamson Strong, is unincorporated parent organization, whose mission is to
educate, inform and encourage the community to vote in favor of its schools. Plaintiffs Sarah
Barnard, Jim Cheney, Susan Drury, and Kim Henke are all parents of students in the Williamson
County School District and are also members of and/or are associated with Williamson Strong.
Plaintiff Jennifer Smith is a member of and/or associated with Williamson Strong. (DE 1 Page
ID# 6-7).

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In December 2014, a sworn complaint was filed with the Registry alleging that Williamson
Strong had violated Tennessees campaign financial disclosure laws by failing to register as a
political campaign committee and filing disclosure reports with the Defendant Registry. The
Registry was created by the Tennessee General Assembly in 1989 to ensure enforcement of
statutes providing for the adequate financial disclosure by public officials, candidates for public
office and lobbyists. See Tenn. Code Ann. 2-10-202. The Registry has the jurisdiction to
administer and enforce the provisions of Tennessees Campaign Financial Disclosure Act (the
Act), compiled in part 1 of chapter 10 of title 2 of the Tennessee Code. In administering the
provisions of the Act, the Registry is specifically given the authority to [i]nvestigate any alleged
violation upon sworn complaint and [a]ssess a civil penalty for any violation of the disclosure
laws as provided by [the Act]. Tenn. Code Ann. 2-10-206(a)(7) and 207(7). Defendants Tom
Lawless, Patricia Heim, Norma Lester and Tom Morton (the individual Defendants) are all duly
appointed members of the Registry. (DE 1 Page ID# 9-10).
On December 11, 2014, the Registry notified Williamson Strong that it would be
conducting a preliminary review of the sworn complaint filed against Williamson Strong at its
meeting on January 14, 2015, and informed Plaintiffs that they were welcome to attend the
meeting. (DE 1-2 Page ID# 40). After reviewing the sworn complaint and attached materials, the
Registry determined that there was sufficient cause to issue a Show Cause Notice to Williamson
Strong to show cause why civil penalties should not be assessed for failure to comply with the
Campaign Finance Disclosure laws, and in particular, the failure to appoint a political treasurer
before making expenditures in support of or in opposition to candidates for public office and the
failure to file required campaign financial disclosure reports. (DE 1 Page ID# 19-20); see also

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Show Cause Notice issued January 23, 2015, attached as Exhibit 1 to Defendants Motion to
Dismiss and incorporated herein by this reference. 1
A hearing on the Show Cause Notice was subsequently held on May 13, 2015, and at the
conclusion of the hearing, the Registry found that Williamson Strong was a multi-candidate
political campaign committee as defined in Tenn. Code Ann. 2-10-102(12)(A); that Williamson
Strong had failed to appoint a political treasurer before making any expenditures as required by
Tenn. Code Ann. 2-10-105(e)(1); and, that Williamson Strong had failed to file the campaign
financial disclosure reports required by Tenn. Code Ann. 2-10-105(c)(1). Accordingly, the
Registry assessed a civil penalty of $2,500 for violation of each statute (total penalty of $5,000)
against Williamson Strong. (DE 1 Page ID# 27-28); see also Order Assessing Civil Penalties
attached as Exhibit 2 to Defendants Motion for Summary Judgment and incorporated herein by
this reference. 2

The Registrys Order assessing civil penalties against Williamson Strong

specifically states as follows:

A person aggrieved by this Order may obtain a contested case
hearing by filing within thirty (30) days of the date of entry of this
order a written request with the Registry. By timely filing such a
request, Respondent will be entitled to all rights afforded to
participants in a contested case proceeding as provided by the
Uniform Administrative Procedures Act, T.C.A. 4-5-101 4-5325.
In the alternative, and without waiving the right to timely request a
contested case proceeding at a later time, A person aggrieved by this
Order may asked the Registry to reconsider this Order by filing a
request for reconsideration with the Registry within fifteen (15) days
of the date of entry of this Order. If the person aggrieved by this
Order timely files a request for reconsideration, that person will
have an additional thirty (30) days from receipt of the Registrys
1

As Plaintiffs repeatedly reference and discuss the Registrys Show Cause Notice in their Complaint (see D.E. 1,
PageID#19-20), under Fed. R. Civ. P. 10(c), the Court can properly consider the Show Cause Order for the purpose
of Defendants Motion to Dismiss. See Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994).
2

Though not attached as an exhibit to their Complaint, Plaintiffs repeated reference, discuss, and summarize the
content of Registrys Assessing Civil Penalties. (D.E. 1, PageID#28-29).

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response to the request for reconsideration in which to file a request

for a contested case hearing.
See Exhibit 2 (emphasis added).
On July 1, 2015, Williamson Strong filed a Petition for Review and Hearing Regarding
Order Assessing Civil Penalties pursuant to the Tennessee Uniform Administrative Procedures
Act, Tenn. Code Ann. 4 5-301, et seq., and the Tennessee Campaign Financial Disclosure
Act, Tenn. Code Ann. 2-10-101, et seq., seeking review of the Registrys order assessing civil
penalties and appealing all findings made in that order. See Plaintiff Williamson Strongs Petition
for Contested Case Hearing attached as Exhibit 3 to Defendants Motion to Dismiss and
incorporated herein by this reference. 3 The Petition specifically states that it does not contain an
exhaustive list of the grounds and reasons for Petitioners objections to the Order, and Petitioner
reserves the right hereafter to raised additional grounds and reasons by amendment of this Petition
or otherwise. Id.
That same day, Plaintiffs filed this lawsuit under 42 U.S.C. 1983 asserting a facial and
as-applied challenged to Tennessees definition of a multi-candidate political campaign committee
contained in Tenn. Code Ann. 2-10-102(12)(A) on the grounds that it violates Tennesseans
rights of free speech and association under the First Amendment to the Federal Constitution, that
it constitutes a prior restraint on speech in violation of the First Amendment, and violates the
freedom of speech rights under Article I, Section 19 of the Tennessee Constitution. (DE 1 Page
ID# 31-34). Plaintiffs complaint seeks, among other things, the following relief:

An award of all damages resulting from the need for Plaintiffs to respond to Curlees
baseless allegations and attend numerous inappropriate Registry hearings;

When reviewing a factual attack on the Courts subject matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), the Court
may consider evidence outside the pleadings and both parties are free to supplement the record by affidavits. Rogers
v. Stratton Industries, 798 F.2d 913, 916 (6th Cir. 1986).

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A permanent injunction prohibiting further violations of Plaintiffs civil rights and

requiring the Defendants to recognize Plaintiffs rights of free speech and association and
Defendant Registry to rescind its judgment against Plaintiffs;

A declaration that Tenn. Code Ann. 2-10-101, et seq. impermissibly violates the First
Amendment of the United States Constitution, both as it is written and how it has been
applied by the Registry, and must be stricken.

(DE 1 Page ID# 34-35).

Defendants submit that Plaintiffs claims against them under 42 U.S.C. 1983 are barred
by the Eleventh Amendment and sovereign immunity, or otherwise fail to state a claim.
Defendants further submit that this Court should abstain from exercising its jurisdiction under
Younger v. Harris, 401 U.S. 37 (1971), as there is an ongoing state administrative proceeding.
STANDARD OF REVIEW FOR 12(b) MOTION TO DISMISS
I.

Dismissal for Lack of Subject Matter Jurisdiction

A challenge to the courts subject-matter jurisdiction under Rule 12(b)(1) may be either a

facial attack or a factual attack. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320,
330 (6th Cir. 2007). A facial attack questions merely the sufficiency of the pleadings. Id. When
reviewing a facial attack, this Court must take the allegations in the complaint to be true. Id.
But when there is a factual attack, the Court must weigh conflicting evidence provided by
the plaintiff and the defendant to determine whether subject-matter jurisdiction exists. Id. Thus
in reviewing a factual attack, the Court may consider evidence outside the pleadings and both
parties are free to supplement the record by affidavits. Id.

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II.

Dismissal for Failure to State a Claim

To state a claim upon which relief can be granted, a complaint must contain either direct

or inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005); Wittstock v. Mark A Van Sile,
Inc., 330 F.3d 889, 902 (6th Cir. 2003). While the factual allegations in a complaint need not be
detailed, they must do more than create speculation or suspicion of a legally cognizable cause of
action; they must show entitlement to relief. League of United Latin Am. Citizens v. Bredesen,
500 F.3d 523, 527 (6th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 196495 (2007)).
The United States Supreme Court has recently encapsulated the appropriate standard to be
applied in considering a motion to dismiss for failure to state a claim:
Two working principles underlie our decision in [Bell Atlantic v.]
Twombly. First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of the cause of
action, supported by mere conclusory statements, do not suffice. . .
. Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock
the doors of discovery for plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss. . . . Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. . . . But where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint
has alleged but it has not show[n] that the pleader is entitled
to relief.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-1950 (2009) (citations omitted).
Likewise, when faced with a threshold question of whether to apply the Younger abstention
doctrine and refrain from exercising jurisdiction over a pending state administrative proceeding, a

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court must first address the Younger issue before to engaging in any analysis on the merits of the
case. Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005); Steel Co. v. Citizens for Better Environment, 523
U.S. 83, 100 n.3 (1998).
ARGUMENT
I.

Plaintiffs 42 U.S.C. 1983 Claims against Defendants in their Official

Capacity are Barred by the Eleventh Amendment.

The Eleventh Amendment has been construed by the Supreme Court to bar actions by
citizens against their own state or one of its agencies in federal court unless there has been a waiver
by the state. Hans v. Louisiana, 134 U.S. 1 (1890); Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 100-01 (1984); Welch v. Texas Dept of Highways and Pub. Transp., 483 U.S. 468
(1987); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Alden v. Maine, 527 U.S.
706 (1999).
Tennessee has not waived its immunity under the Eleventh Amendment with respect to
civil rights suits. Tenn. Code Ann. 20-13-102(a); American Civil Liberties Union v. Tennessee,
496 F.Supp.2d 218 (M.D. Tenn. 1980); Hair v. Tennessee Consol. Ret. Sys., 790 F. Supp. 1358
(M.D. Tenn. 1992). The State is absolutely immune from liability under the Eleventh Amendment.
Id.; Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989). The immunity afforded by the Eleventh
Amendment prohibits even suits against states for injunctive relief. Alabama v. Pugh, 438 U.S.
781 (1978); Will v. Michigan Dept of State Police, 491 U.S. 58, 66 (1989) (the Eleventh
Amendment bars a claim against the State, plus the State is not a person pursuant to 42 U.S.C.
1983); Lawson v. Shelby Cnty., 211 F.3d 331 (6th Cir. 2000) (injunctive relief is not available
against the State). A suit against a state official in his official capacity is considered to be a suit
against the state. Will, 491 U.S. at 66; Wells, 891 F.2d at 591.

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In Kentucky v. Graham, the Supreme Court stated that absent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages action against a State in federal
court. 473 U.S. 159, 169 (1985), citing, Ford Motor Co. v. Dept. of Treasury of Ind., 323 U.S.
459, 464 (1945). The Court found that [t]his bar remains in effect when State officials are sued
for damages in their official capacity. Id., citing, Cory v. White, 457 U.S. 85, 90 (1982); Edelman
v. Jordan, 415 U.S. 651, 663 (1974). This is because a judgment against a public servant in his
official capacity imposes liability on the entity that he represents.... Brandon v. Holt, 469 U.S.
464, 471 (1985).
Defendant Registry is a state agency and the individual Defendants are all state officials,
all of whom have been sued for damages in their official capacities only. (DE 1 Page ID# 8-10).
As such, Plaintiffs claim for damages against the Defendants in their official capacities is barred
by the Eleventh Amendment.
In addition, 42 U.S.C. 1983 only authorizes the imposition of liability against every
person who, acting under color of state law, violated another persons rights. As a matter of
law, the term person in Section 1983 does not include states, state agencies, or state employees
sued in their official capacities. Will, 491 U.S. at 71; Howlett v. Rose, 496 U.S. 356, 365 (1990).
While state officials literally are persons[,] . . . a suit against the official in his or her official
capacity is not a suit against the official but rather is a suit against the officials office. As such, it
is no different from a suit against the state itself. Will, 491 U.S. at 71. As a result, the Defendants
are not deemed to be persons subject to suit under 42 U.S.C. 1983, and all causes of action
against them in their official capacities must be dismissed. Will, 491 U.S. at 71; Wells, 891 F.2d
at 592; Walker v. Norris, 917 F.2d 1449, 1457 (6th Cir. 1990). Moreover, as Plaintiffs have only

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asserted claims against the Defendants in their official capacities under 42 U.S.C. 1983,
Plaintiffs complaint should be dismissed in its entirety and with prejudice.
II.

Plaintiffs Complaint Fails to State a Claim for Violation of Art. I, 19, of the
Tennessee Constitution.

Plaintiffs seek to sue Defendants in their official capacities under 42 U.S.C. 1983 for
monetary damages and equitable relief allegedly resulting from Defendants unconstitutional
application of Tennessees campaign financial disclosure laws. (DE 1 Page ID# 33-35). The
initial inquiry in a Section 1983 action is whether the plaintiff has been deprived of a right secured
by the Constitution and laws of the United States. 42 U.S.C. 1983. Baker v. McCollan, 443
U.S. 137, 140 (1979). Violations of state law alone are not sufficient to state a Section 1983 claim.
Although official conduct may violate state law, it does not necessarily rise to the level of a
constitutional injury. Id. at 146. A state ought to follow its law, but to treat a violation of state
law as a violation of the Constitution is to make the federal government the enforcer of state law.
State rather than federal courts are the appropriate institutions to enforce state rules. Archie v.
Racine, 847 F.2d 1211, 1217 (7th Cir.1988), cert. denied, 489 U.S. 1065 (1989). Accordingly,
Plaintiffs have failed to state a claim under 42 U.S.C. 1983 for violation of Art. I, 19, of the
Tennessee Constitution and such claim should be dismissed.
Moreover, Tennessee courts do not recognize a private cause of action for violation of the
Tennessee Constitution. Bowden Building Corporation v. Tennessee Real Estate Commission, 15
S.W.3d 434, 446 (Tenn. Ct. App. 1999), app. denied (Tenn. 2000) (Tennessee...has not
recognized any such implied cause of action for damages based upon violations of the Tennessee
Constitution.).

As such, Plaintiffs cannot state a claim for violation of the Tennessee

Constitution over which this Court would have pendant jurisdiction. In Cline v. Rogers, 87 F.3d
176, 179 (6th Cir.), cert. denied, 519 U.S. 1008 (1996), the Sixth Circuit, analyzing Tennessee
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law, concluded that [t]he plaintiff can state no claim of a state constitutional violation in this case
because Tennessee does not recognize a private cause of action for violations of the Tennessee
Constitution. (citing Lee v. Ladd, 834 S.W.2d 323 (Tenn. Ct. App. 1992), app. denied, (Tenn.
1992)); Parker v. Henderson Cnty., Tennessee, 450 F. Supp. 2d 842, 856 (W.D. Tenn. 2006);
Boling v. Gibson County, No. 051129TAN, 2005 WL 1936299, *2 (W.D. Tenn. Aug. 1, 2005).
Finally, even if Plaintiff could state a private cause of action for violation of the Tennessee
Constitution over which this Court has jurisdiction, any state law claim for damages would be
barred by sovereign immunity. Article I, section 17 of the Tennessee Constitution provides that
suits may be brought against the State in such manner and in such courts as the Legislature may
by law direct. Article I, section 17 has been interpreted as a grant of sovereign immunity to the
State, and accordingly no suit against the State may be sustained absent express authorization from
the Legislature. Coffman v. City of Pulaski, 422 S.W.2d 429 (Tenn. 1967). The Tennessee
Legislature has provided that no court in the State shall have any power, jurisdiction, or authority
to entertain any suit against the State. Tenn. Code Ann. 20-13-102(a). The Legislature of the
State of Tennessee has authorized the bringing of certain actions against the State exclusively in
the Tennessee Claims Commission. See Tenn. Code Ann. 9-8-307, et seq. There has been no
provision allowing suits for state law claims in federal court.
And as with federal claims, a claim against a state employee or official in his or her official
capacity is an action against the State. Cox v. State, 399 S.W.2d 776, 778 (Tenn. 1965). Thus,
sovereign immunity prohibits any state law claims against these Defendants in their official
capacities and such claims should be dismissed.

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III.

This Court Should Abstain From Exercising Its Jurisdiction Over Any
Remaining Claims Under the Younger Abstention Doctrine.

In Younger v. Harris, the Supreme Court held that federal courts should refrain from
interfering in a pending state criminal law enforcement process. 401 U.S. at 37. This doctrine of
Younger abstention is borne out of a proper respect for state functions, a recognition of the fact
that the entire county is made up of a Union of separate state governments, and a continuance of
the belief that the National government will fare best if the States and their institutions are left free
to perform their separate functions in their separate ways. Danner v. Bd. of Profl Responsibility
of the Tenn. Supreme Court, 277 F.Appx 575, 576 (6th Cir. 2008) (citing Younger v. Harris, 401
U.S. at 44)). It has been extended to apply to both ongoing state civil and administrative
proceedings. Trainor v. Hernandez, 431 U.S. 434 (1977) (Younger abstention doctrine applies to
all civil proceedings in which government is a party); Ohio Civil Rights Commn v. Dayton
Christian Schools, Inc., 477 U.S. 619, 627 (1986) (Younger abstention doctrine applies to state
administrative proceedings).
A federal court must consider three factors in determining whether to abstain from
interfering in a state proceeding under Younger abstention:
(1) the underlying proceedings constitute an ongoing state judicial
proceeding; (2) the proceedings implicate important state interests;
and (3) there is an adequate opportunity to raise constitutional
challenges in the course of the underlying proceeding.
Danner, 277 F.Appx at 576 (citing Loch v. Watkins, 337 F.3d 574, 578 (6th Cir. 2003); Tindall v.
Wayne Cnty. Friend of the Court, 269 F.3d 533, 538 (6th Cir. 2001)). All three factors are clearly
met in this case.

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A.

Ongoing Judicial Proceeding

Generally, in determining whether a state proceeding is ongoing, the Court looks to the day
of the federal complaints filing. See Loch, 337 F.3d at 578. If the state proceeding was pending
at the time of the filing, then the matter is ongoing for purposes of Younger abstention. Id.
(citing Zalman v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986)). It remains pending until a litigant
has exhausted his state appellate remedies. Id. Moreover, in Hicks v. Miranda, the Supreme
Court held that even if state proceedings were not pending at the time the federal suit is initiated,
Younger abstention doctrine will apply if the state proceeding is commenced before any
proceedings of substance on the merits in the federal case. 422 U.S. 332, 349 (1975), overruled
on other grounds by Mandel v. Bradley, 432 U.S. 173 (1977).
Here, a state administrative proceeding clearly was commenced and ongoing prior to the
filing of this lawsuit in federal court. As previously discussed, the Registry has the authority to
[i]nvestigate any alleged violation upon sworn complaint and [a]ssess a civil penalty for any
violation of the disclosure laws as provided by [the Act]. . . after notice and opportunity for
hearing. Tenn. Code Ann. 2-10-206(a)(7) and 207(7). As alleged in the complaint, the
Registry received a sworn complaint alleging that Plaintiff Williamson Strong had violated the
Campaign Financial Disclosure Act. The Registry proceeded to investigate that sworn complaint
and issued a Show Cause Notice to Plaintiff Williamson Strong. (DE 1 Page ID# 19-20). A
hearing on the Show Cause Notice was held on May 13, 2015, and at the conclusion of the hearing,
Registry issued an order assessing a civil penalty of $5,000 against Williamson Strong for violation
of Tenn. Code Ann. 2-5-101(c)(1) and (e)(1). (DE 1 Page ID# 27-28). That order specifically
informed Plaintiff Williamson Strong of its right to appeal the civil penalty by filing a request for
a contested case hearing under the Uniform Administrative Procedures Act, Tenn. Code Ann.

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4-5-301, et seq. (UAPA). See Exhibit 2. Plaintiffs exercised that right by filing a petition with
the Registry on July 1, 2015 the same date that they filed this lawsuit. See Exhibit 3.
These facts demonstrate that an administrative proceeding was commenced by the Registry
against Plaintiff Williamson Strong with the issuance of the Show Cause Notice on January 23,
2015, well before the filing of this suit on July 1, 2015. See Exhibit 1. At the very latest, an
administrative proceeding was commenced on July 1, 2015 when Plaintiff Williamson Strong filed
a petition requesting a contested case hearing under the UAPA. And, while Plaintiffs filed this
lawsuit that same day, clearly this Court has not reached any proceedings of substance on the
merits. Accordingly, the ongoing judicial proceeding factor of Younger abstention is met in this
case.
B.

Important State Interest

With respect to the second factor whether the ongoing state judicial proceeding implicates
an important state interest, the Supreme Court has found that states have a compelling state interest
in notifying the public of the source of campaign funds and preventing actual and perceived
corruption in the political process. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 647 (6th
Cir. 1997) (citing Buckley v. Valeo, 424 U.S. 1, 64-68 (1976)); see also Frank v. City of Akron,
290 F.3d 813, 819 (6th Cir. 2002) (finding that campaign contribution disclosure provisions serve
a significant governmental interest in providing an accountability mechanism to track campaign
donors and safeguard against corruption).

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In addition, the Tennessee Supreme Court in Bemis Pentecostal Church v. State, 731
S.W.2d 897 (Tenn. 1987) 4 the States interest in requiring disclosure of campaign contributions,
stating:
that the State's interest is compelling is shown by the State's
Constitutional provisions protecting the integrity and fairness of the
political process. Moreover, assuring public avenues for
disseminating information to protect the electoral process furthers
the public interest in open government. The availability of such
information not only underwrites the reliability of election results as
a reflection of popular will, but it also preserves the integrity of the
system by deterring corruption and the appearance of corruption.
Disclosure assures contributors that their money has been spent in
the manner for which it was solicited or for which it was donated.
Prevention of fraudulent fund-raising or of funding of campaign
activity by front organizations is made more feasible, justifying
disclosure both of contributions and expenditures as two sides of the
same coin. Records-keeping and routine disclosure further these
State interests by preserving a paper trail by which the conversion
of contributions into legitimate expenditures may be traced. One
need only recall the infamous Watergate slush fund to recognize the
necessity of such records and of periodic disclosure requirements.
The recent history of campaign financial abuses as well as the
growth and possible dominance of special interest political action
committees make the State's disclosure requirements necessary to
allow the public to have some gauge by which to assess the sources,
content, and frequency of campaign publicity and activity.
Vigorous, free, well-informed, and public debate can only be
enhanced by disclosure of campaign financing in both referenda and
candidate elections. No faction with access to substantial financial
resources should be able to distort the process by flooding the forum
with media campaigns without at least disclosing this fact to the
voters. Any group that wishes to participate in the process through
the financing of election outcome specific advocacy should reveal
the extent of this financial involvement to the public. This is all that
the people of Tennessee have asked of groups directly participating
in an election campaign through the mechanism of the Campaign
Financial Disclosure Act.

It should be noted that the Tennessee Supreme Court also addressed the constitutionality of Tennessees campaign
financial disclosure laws and found that they did not violate the First Amendment, but were constitutional in every
aspect. 731 S.W.2d at 905.

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Id. at 904. The second element of the Younger abstention doctrine is satisfied.
C.

Adequate Opportunity to Raise Constitutional Challenge

Regarding the third factor, the Sixth Circuit has stated:

Abstention is appropriate unless state law clearly bars the
interposition of the constitutional claims. The plaintiff bears the
burden of showing that state law barred presentation of his or her
constitutional claims. Once this third and final requirement is met,
abstention is appropriate unless the plaintiff can show that one of
the exceptions to Younger applies, such as bad faith, harassment, or
flagrant unconstitutionality.
Danner, 277 F. Appx at 579 (citing Squire v. Coughlan, 469 F.3d 551, 556 (6th Cir. 2006) (internal
citations omitted)). In this case, state law clearly provides full opportunity for Plaintiffs to raise
both their facial and as-applied challenges to Tennessees campaign financial disclosure laws.
Indeed, in Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995), the
Tennessee Supreme Court addressed the very issue of whether and when constitutional challenges
could be raised in a contested case hearing under the UAPA, and concluded that:
administrative agencies have no authority to determine the facial
constitutionality of a statute. They are authorized, however, to
determine the constitutionality of the application of statutes or rules
and of the procedures employed. The agency resolution of those
issues is subject to judicial review in the chancery court. Tenn. Code
Ann. 4-5-322 (1995 Supp.).
913 S.W.2d at 455. With respect to facial challenges to the constitutionality of a statute, the Court
reiterated that since an administrative agency has no authority under Tennessee law to consider
the constitutionality of a statute, it must refuse to address a facial challenge. As such, there is no
requirement that a party raise a facial challenge in the administrative proceeding, but can raise it
for the first time in chancery court. Id. at 456. Finally, the Tennessee Supreme Court concluded
that:
although an agency has no authority to determine the
constitutionality of a statute, an agency may rule on constitutional
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challenges to the application of a statute, to a rule, and to procedures

used in a contested case proceeding. Nevertheless, the failure to
raise these constitutional issues before the agency will not preclude
a party in a contested case from raising the issue for the first time
upon judicial review.
Id. at 458.
The Tennessee Supreme Courts decision in Richardson makes clear that Plaintiffs will
have every opportunity to raise their facial and as-applied constitutional challenges at either the
administrative hearing level or on judicial review to the chancery court. In Ohio Civil Rights
Commn v. Dayton Christian Schools, Inc., 477 U.S. at 629, the Supreme Court has held that the
opportunity to have a facial constitutional challenge heard during the state judicial review process
of the administrative proceedings under Tenn. Code Ann. 4-5-322 is adequate.
Accordingly the third factor of Younger abstention is satisfied and this Court should abstain
from hearing Plaintiffs claims and should dismiss Plaintiffs complaint. Defendants recognize
that in cases in Younger abstention is applicable and there is a claim for damages, that a stay of the
damage claim rather than dismissal is normally the appropriate course of action, particularly when
the plaintiffs constitutional claims are at issue in the underlying state proceedings yet damages
are not an available form of relief in those proceedings. See, e.g., Watts v. Burkhart, 854 F.2d 839,
849 (6th Cir. 1988). However, as discussed supra, Plaintiffs damages claims in this case are barred
by Eleventh Amendment immunity, and thus dismissal of those claims would not result in any
preclusive effect on the Plaintiffs request for equitable relief in their state administrative hearing,
nor would it cause any interference with that ongoing proceeding. Accordingly, dismissal of
Plaintiffs complaint under Younger abstention is appropriate. See Dhillon v. Tennessee Health
Related Bd. of Medical Examiners, No. 3-12-0151, 2013 WL 866945, at *6 (M.D. Tenn. Mar. 7,
2013).

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CONCLUSION
For these reasons, Defendants respectfully request that this Court dismiss Plaintiffs
complaint in its entirety and with prejudice for lack of subject matter jurisdiction and failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
Respectfully submitted,
HERBERT H. SLATERY III
Attorney General and Reporter
/s/ Janet M. Kleinfelter
JANET M. KLEINFELTER (BPR 13889)
Deputy Attorney General
Public Interest Division
Office of Tennessee Attorney General
P.O. Box 20207
Nashville, TN 37202
(615) 741-7403
Janet.kleinfelter@ag.tn.gov
/s/ Ryan A. Lee
RYAN A. LEE (BPR 31937)
Assistant Attorney General
Public Interest Division
P.O. Box 20207
Nashville, TN 37202-20207
(615) 741-3521
Ryan.lee@ag.tn.gov
CERTIFICATE OF SERVICE
The undersigned hereby certifies on the 30th day of July 2015 that a copy of the above
document has been served upon the following persons by:
X

Electronic Case Filing (ECF) System to:

J. Gerard Stranch IV
Benjamin A. Gastel
Seamus T. Kelly
Branstetter, Stranch & Jennings, PLLC
The Freedom Center
223 Rosa L. Parks Avenue
Suite 200
17
Case 3:15-cv-00739 Document 8 Filed 07/30/15 Page 17 of 18 PageID #: 216

Nashville, TN 37203
(615) 254-8801
gerards@bsjfirm.com
seamusk@bsjfirm.com

/s/ Janet M. Kleinfelter

JANET M. KLEINFELTER

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