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Case 1:10-cv-00392-ML -DLM Document 17 Filed 10/07/10 Page 1 of 13

United States District Court


District of Rhode Island

National Organization for Marriage, Inc.,

Plaintiff

v.
Civil Action No. 10-392-ML

John Daluz, in his official capacity as


chairman of the Rhode Island Board of
Elections; Frank Rego, in his official capacity
as vice chairman of the Rhode Island Board of
Elections; and Richard Dubois, Florence
Gormley, Martin Joyce, Jr., Richard Pierce,
and William West, in their official capacities
as members of the Rhode Island Board of
Elections,

Defendants

First Amended Verified Complaint for Declaratory and Injunctive Relief

National Organization for Marriage, Inc. (“NOM”) complains against

Defendants as follows:

Jurisdiction and Venue

1. This Court has jurisdiction over this case arising under 42 U.S.C. §

1983 and the First and Fourteenth Amendments to the Constitution of the United

States. 28 U.S.C. §§ 1331, 1343(a). This Court also has jurisdiction under the

Declaratory Judgment Act. See id. §§ 2201 (1993), 2202 (1948).

2. Venue is proper because events giving rise to the claim occurred, and

Defendants reside, in this District. 28 U.S.C. § 1391(b).

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Parties

3. Plaintiff National Organization for Marriage, Inc. (“NOM”) is a non-

stock, non-profit Virginia corporation.

4. As officers and members of the Rhode Island Board of Elections

(“Board”), Defendants John Daluz (chairman), Frank Rego (vice-chairman), Richard

Dubois, Florence Gormley, Martin Joyce, Jr., Richard Pierce, and William West

have authority to investigate violations of, impose fines for the violation of, and

otherwise enforce the provisions of the statutes at issue in this action. R.I. Gen.

Laws §§ 17-25-5 (2007); 17-25-13 (2001); 17-25-16 (1992); 17-25-28 (2001).

5. All Defendants act under color of law and are sued in their official

capacities.

Facts

6. NOM is exempt from federal income taxation under 26 U.S.C. §

501(c)(4). (Exhibits 7, 8, and 9).

7. NOM is a non-sectarian, non-partisan organization: it is not connected

with any political candidate or party, and is not connected with any political

committee other than its own.

8. NOM’s primary purpose is “[t]o promote the importance of preserving

marriage as the union of one husband and one wife,” (Exhibit 7), and its mission is

“to protect marriage and the faith communities that sustain it,” (Exhibit 1). NOM

advocates for policies, cooperates with other organizations, and engages in other

lawful activities in pursuit of its purpose and mission. (Exhibit 7).

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9. NOM sought to do activities in September, 2010, and during October,

2010, NOM wants to engage in multiple forms of speech in Rhode Island, including

radio ads, (Exhibits 2-3), television ads, (Exhibits 4-5), direct mail, (Exhibit 6), and

publicly accessible Internet postings of the same.

10. This speech will clearly identify candidates for state or local office in

Rhode Island, including current gubernatorial and legislative candidates.

11. The direct-mail exhibit refers to “Legislator Y,” which is meant to refer

to multiple members of the Rhode Island general assembly. When NOM actually

sends the direct-mail piece, it will substitute the names of specific general assembly

members.

12. This speech will run on radio and television stations reaching, and be

sent by direct mail to, persons in Rhode Island.

13. The cost of each of these ads, (Exhibits 2-6), will exceed $100.

14. The total cost of these activities will not amount to the majority of

NOM’s overall spending. (Exhibit 9).

15. The Rhode Island general election will be held on November 2, 2010,

and will include the offices of governor and seats in the general assembly.

16. The primaries were held on September 14, 2010, and included the

offices of governor and seats in the general assembly.

17. NOM intends to do materially similar activities in Rhode Island during

future election cycles, such that Rhode Island law will apply to NOM as it does now.

NOM will plan this future speech as the need arises.

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18. NOM has a policy not to receive donations that are directed towards

any specific activity.

19. NOM does not coordinate any of its speech with any candidate for state

of local office in Rhode Island, or any state or local party in Rhode Island.

20. NOM will not engage in its activities in Rhode Island if it has to

become, or create, a political action committee in Rhode Island to do so.

21. If the Court holds that NOM is not a political committee and may

make expenditures, NOM will comply with the independent expenditure reporting

requirements under protest.

22. Absent injunctive relief, NOM will suffer irreparable harm.

23. NOM has no adequate remedy at law.

Count 1
General Laws of Rhode Island § 17-25-3(10) Unconstitutionally Requires
Persons to Register as PACs.

24. NOM re-alleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

25. According to R.I. Gen. Laws § 17-25-3(10), a “political action

committee” (“PAC”) is “any group of two (2) or more persons that accepts any

contributions to be used for advocating the election or defeat of any candidate or

candidates.”

26. According to R.I. Gen. Laws § 17-25-3(9), a “person” is any “individual,

partnership, committee, association, corporation, and any other organization.”

27. A PAC in Rhode Island must comply with many burdens, including

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registration requirements, R.I. Gen. Laws § 17-25-15, recordkeeping, id. § 17-25-

7(a), extensive reporting requirements, id. § 17-25-11, limits on contributions

received, id. § 17-25-10(1)(a)(1), and prohibitions on who it may receive

contributions from, id. § 17-25-10.1(h)(1). See Citizens United, 130 S. Ct. at 897-98.

28. Violations of these statutes are punishable by criminal penalties, R.I.

Gen. Laws § 17-25-13, and civil fines, R.I. Gen. Laws §§ 17-25-13, -16.

29. NOM challenges R.I. Gen. Laws § 17-25-3(10) because, if the corporate

ban on expenditures is constitutional, NOM would be forced to register itself as a

PAC and be subject to the multiple accompanying burdens in order to engage in its

proposed activities.

30. But requiring NOM to register as a PAC before it can engage in its

speech is unconstitutional because a state may regulate an organization as a PAC

only if it is “under the control of a candidate” or candidates or “the major purpose” of

the organization is “the nomination or election of a candidate” or candidates in the

jurisdiction. Buckley v. Valeo, 424 U.S. 1, 79 (1976). Neither is true in NOM’s case.

31. Furthermore, NOM challenges the PAC definition because, if the ban

is unconstitutional and NOM does not register as a PAC, NOM reasonably fears

that it would be in violation of the law because Rhode Island may consider the

contributions it receives “to be used for advocating the election or defeat of any

candidate or candidates.” R.I. Gen. Laws § 17-25-3(10).

32. But the phrase “to be used for advocating the election or defeat of” is

unconstitutionally vague and overbroad because NOM has no way of knowing

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whether the contributions it receives fall under the definition, which would cause

NOM to fall under the PAC definition. Buckley, 424 U.S. at 76-77.

33. As a result, NOM needs a declaratory judgment that the PAC

definition does not apply to it as a matter of law.

34. Because Rhode Island cannot show that its PAC definition is narrowly

tailored to a compelling interest, and because it is vague and overbroad, it is

unconstitutional facially and as-applied to NOM and its intended activities, in

violation of the First Amendment.

Count 2
General Laws of Rhode Island § 17-25-10.1(h)(1) & (j) Unconstitutionally
Ban Corporations from Making Contributions and Expenditures.

35. NOM re-alleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

36. R.I. Gen. Laws § 17-25-10.1(h)(1) makes it “unlawful for any

corporation, whether profit or non-profit, domestic or foreign corporation . . . or

other business entity to make any . . . expenditure . . . to or for any candidate,

political action committee, or political party committee . . . .” (See also Exhibit 10).

37. R.I. Gen. Laws § 17-25-10.1(j) establishes that only individuals or

registered political action committees (“PAC”), political party committees,

candidates, or candidate committees may lawfully “make . . . any expenditure on

behalf of or in opposition to any candidate, political action committee, or political

party.” See also Rhode Island Affiliate ACLU v. Begin, 431 F.Supp.2d 227, 240

(D.R.I. 2006) (noting that § 10.1(j) makes § 10.1(h)(1) “redundant”).

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38. R.I. Gen. Laws § 17-25-3(3) defines “expenditures” to include “all

transfers of any “thing of value to or by any candidate, committee of a political

party, or political action committee.”

39. Violations of these statutes are punishable by criminal penalties, R.I.

Gen. Laws § 17-25-13, and civil fines, R.I. Gen. Laws §§ 17-25-13, -16.

40. NOM challenges R.I. Gen. Laws §§ 17-25-10.1(h)(1) & (j) because they

unconstitutionally ban NOM from making expenditures, including expenditures “on

behalf of or in opposition to” Rhode Island candidates. NOM reasonably fears that

its proposed activities might be considered expenditures, including expenditures “on

behalf of or in opposition to” Rhode Island candidates, and therefore banned.

41. Under these statutes, a separate legal entity, registered as a Rhode

Island PAC, would have to be created and engage in the proposed activity.

42. Rhode Island’s ban on corporate contributions and expenditures is

unconstitutional under Citizens United v. FEC, 130 S. Ct. 876 (2010), which struck

down the federal prohibition on corporate independent expenditures, 2 U.S.C. §

441b (2000), under strict scrutiny because “independent expenditures, including

those made by corporations, do not give rise to corruption or the appearance of

corruption,” Citizens United, 130 S. Ct. at 899, 909.

43. Rhode Island also cannot force NOM to create a PAC in order to speak

because Citizens United held that the federal statute was still a ban, and no less

unconstitutional, even though a corporation could create a PAC. Id. at 897-98

(holding that “the PAC exemption . . . does not allow corporations to speak. . . . [and]

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does not alleviate the First Amendment problems . . . .”).

44. Furthermore, the phrase “on behalf of or in opposition to” is

unconstitutionally vague and overbroad, so that NOM does not know what

expenditures fall under the ban.

45. Because Rhode Island cannot show that its corporate expenditure ban

is narrowly tailored to a compelling interest, and because it is vague and overbroad,

it is unconstitutional facially and as-applied to NOM and its intended activities, in

violation of the First Amendment.

Count 3
General Laws of Rhode Island § 17-25-10(b) Unconstitutionally
Burdens Political Speech.

46. NOM re-alleges and incorporates by reference all of the allegations

contained in all of the preceding paragraphs.

47. R.I. Gen. Laws § 17-25-10(b) provides that any person not otherwise

prohibited by law, see R.I. Gen. Laws § 17-25-10.1(j), may expend funds “to support

or defeat a candidate,” provided that the person report these expenditures if they

exceed $100. The expenditures must be reported to the board of elections and to the

candidate referred to within seven days.

48. If NOM may do such expenditures, and the PAC definition is either

found unconstitutional or declared not to apply to NOM, then NOM reasonably

fears that it still must comply with these reporting requirements.

49. Rhode Island’s independent expenditure reporting requirement is

unconstitutional because the phrase “to support or defeat a candidate” is vague and

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overbroad, Buckley, 424 U.S. at 76-77, and therefore regulates forms of speech

beyond what the Supreme Court has held may be regulated, id. at 44 n.52, 80;

Citizens United, 130 S. Ct. at 915.

50. Rhode Island’s independent expenditure reporting requirement is

unconstitutional because the State does not have a sufficiently important interest in

regulating core political speech, Buckley, 424 U.S. at 39, 48, that is neither “express

advocacy,” id. at 44 n.52, 80, nor “election-related,” Citizens United, 130 S. Ct. at

914.

51. Even if the independent expenditure reporting were limited to

regulable campaign-related speech, it is unconstitutional to require submission of

copies of reports to other candidates. See Citizens for Responsible Gov’t State PAC v.

Davidson, 236 F.3d 1174, 1198 (10th Cir. 2000).

52. Because Rhode Island cannot show that its independent expenditure

reporting requirement is substantially related to a sufficiently important interest,

and because it is vague and overbroad, it is unconstitutional facially and as-applied

to NOM and its intended activities, in violation of the First Amendment.

Prayer for Relief

Wherefore, NOM prays for the following relief:

1. A declaratory judgment that NOM is not a political action committee

under R.I. Gen. Laws § 17-25-3(10) and as a matter of law. NOM further asks that

the Court preliminarily and then later permanently enjoin its enforcement.

2. A declaratory judgment that the political action committee definition,

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R.I. Gen. Laws § 17-25-3(10), is unconstitutional facially and as applied to NOM.

NOM further asks that the Court preliminarily and then later permanently enjoin

its enforcement.

3. A declaratory judgment that the corporate expenditure ban, R.I. Gen.

Laws §§ 17-25-10.1(h)(1), -10.1(j), does not apply to NOM as a matter of law. NOM

further asks that the Court preliminarily and then later permanently enjoin their

enforcement.

4. A declaratory judgment that the corporate expenditure ban, R.I. Gen.

Laws §§ 17-25-10.1(h)(1), -10.1(j), is unconstitutional facially and as applied to

NOM’s speech. NOM further asks that the Court preliminarily and then later

permanently enjoin their enforcement.

5. A declaratory judgment that the expenditure definition, R.I. Gen. Laws

§ 17-25-3(3), and the independent expenditure reporting requirements, R.I. Gen.

Laws § 17-25-10(b), are unconstitutional facially and as applied to NOM. NOM

further asks that the Court preliminarily and then later permanently enjoin their

enforcement.

6. Any narrowing gloss would be incorrect. But if the Court nevertheless

held that a narrowing gloss were possible, NOM prays for the following relief:

(1) A declaratory judgment limiting Rhode Island’s political


action committee definition, R.I. Gen. Laws § 17-25-3(10), and by
extension the burdens Rhode Island imposes on PACs, to organizations
that are under the control of, or have the major purpose of nominating
or electing, a candidate for state or local office in Rhode Island, and

(2) A declaratory judgment limiting Rhode Island’s


expenditure definition, R.I. Gen. Laws § 17-25-3(3), and independent

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expenditure reporting requirements, R.I. Gen. Laws § 17-25-10(b), to


(a) express advocacy or (b) electioneering communications as defined in
FECA clearly identifying candidates for state or local office in Rhode
Island.

7. Plaintiff further seeks costs and attorneys’ fees under 42 U.S.C. § 1988

and any other applicable statute or authority.

8. Any other relief this Court in its discretion deems just and appropriate.

Respectfully submitted,

/s/ Stephen A. Izzi


Stephen A. Izzi James Bopp, Jr., Ind. No. 2838-84
Rhode Island No. 2928 Randy Elf, New York No. 2863553
MOSES & AFONSO, LTD. Jeffrey Gallant, Va. No. 46876
160 Westminster Street, Suite 400 JAMES MADISON CENTER FOR FREE SPEECH
Providence, R. I. 02903 1 South Sixth Street
Telephone (401) 453-3600 Terre Haute, Ind. 47807
Facsimile (401) 453-3699 Telephone (812) 232-2434
SIzzi@MosesAfonso.com Facsimile (812) 235-3685
Local Counsel for Plaintiff bcb@BoppLaw.com
Lead Counsel for Plaintiff

October 7, 2010

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Verification by National Organization for Marriage, Inc.

I, Brian Brown, declare as follows:

I am the executive director of the National Organization for Marriage, Inc.

I have personal knowledge of the organization'sactivities, including those set

out in this complaint, and if called upon, I would competently testifr as to them.

I verify under penalty of perjury under the laws of the United States of

America that the factual statements in this complaint concerningthe organization

are true.

National Organization for Marriage, Inc.


By Brian Brown
Executive Director

Dated:l'Ol'to

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Certificate of Service

I certify that on October 7, 2010, I electronically filed the foregoing First


Amended Verified Complaint for Declaratory and Injunctive Relief with the
clerk of court using the CM/ECF system, which will notify:

Michael Field: MField@riag.ri.gov, AMorel@riag.ri.gov

/s/ Stephen A. Izzi


Stephen A. Izzi
October 7, 2010

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