[needs state case caption format]
in the [district? superior?] court of hendricks county indiana
county of hendricks}
state of indiana }
John Doe,
Plaintiff
vs. Cause number ______
Hendricks County Election Board, County
Clerk, and County
Prosecutor, defendants.
Complaint
1. Introduction.
This is an action to declare unconstitutional and enjoin IC 3-9-3-2.5, a disclaimer statute which mandates the contents of political signs, and for damages.
2. Jurisdiction
This is a court of general jurisdiction, which is empowered under the Indiana declaratory judgment act, has equitable jurisdiction to issue injunctive relief, and has concurrent jurisdiction under 42 USC 1983, 1985. et seq.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,
42 USC 1985 (3)Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
42 USC 1986 Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action
3. Venue: Venue is proper in Hendricks county, where the election board has its offices, and where the signs at issue will be posted. However, we are not opposed to a change of venue if the local court has conflicts of interest with the county clerk.
4. Parties
Plaintiff John Doe is an Marion County Indiana resident who desires to put up signs in Hendricks County, of the general format "Vote for Smith." They expressly advocate the election of candidates of the Libertarian Party and or other pro-liberty candidates. A motion for leave to proceed under a fictitious name is filed herewith, because their right to remain anonymous is a key issue in the litigation, and would be infringed if they were obligated to sue in their own name.
5. Defendants the Hendricks County Election Board currently consists of Election Board President [
Drew Sandora, County Clerk Sharon Milburn, and Sandy Cripe, ]
who are named in their official capacities. Additionally the Clerk Milburn is named in her personal capacity.]
The County Prosecutor, currently ____, is named solely in official capacity.
6. The Indiana Attorney General, currently Todd Rokita, is not a party, but, per statute, has a right to notice and 30 days to intervene as of right if he chooses to do so, because the constitutionality of a statute is at issue.
Facts:
7. John Doe wanted to put up signs in Hendricks County, with the general format "Vote for Smith". They expressly advocate the election of candidates of the Libertarian Party and others, both in 2022 and in the future. However, because counsel was not able to resolve this matter prior to the election, they did not post their signs during the 2022 election cycle, fearing arrest, fines, or other retribution.
They hope to get this matter resolved, at least preliminarally, before the spring 2023 municipal elections. They intend to remain active in Indiana politics in the future. These signs are an independent expenditure by the plaintiff, or are personally produced by them, rather than being created by a candidate or committee. They are not currently coordinated with or authorized by any candidate or committee, although plaintiff reserves the right to do so in the future.
8. They are threatened with arrest and fine by action of IC 3-9-3-2.5.* and the way in which the county and state have adopted a sign censorship policy even more extensive than that of the statute.
Table I: [text of statute]
IC 3-9-3-2.5 Communications regarding clearly identified candidates; soliciting contributions; disclaimers
Sec. 2.5. (a) This section does not apply to any of the following:
(1) A communication relating to an election to a federal office.
(2) A communication relating to the outcome of a public question.
(3) A communication described by this section in a medium regulated by federal law to the extent that federal law regulates the appearance, content, or placement of the communication in the medium.
(4) Bumper stickers, pins, buttons, pens, and similar small items upon which the disclaimer required by this section cannot be conveniently printed.
(5) Skywriting, water towers, wearing apparel, or other means of displaying an advertisement on which the inclusion of a disclaimer would be impracticable.
(6) Checks, receipts, and similar items of minimal value that do not contain a political message and are used for purely administrative purposes.
(7) A communication by a political action committee organized and controlled by a corporation soliciting contributions to the political action committee by the stockholders, executives, or employees of the corporation and the families of those individuals.
(8) A communication by a political action committee organized and controlled by a labor organization soliciting contributions to the political action committee by the members or executive personnel of the labor organization and the families of those individuals.
(9) A direct mailing of one hundred (100) or less substantially similar pieces of mail.
(b) This section applies whenever a person:
(1) makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate; or
(2) solicits a contribution;
through a newspaper, a magazine, an outdoor advertising facility, a poster, a yard sign, a direct mailing, or any other type of general public political advertising.
(c) For purposes of this section, a candidate is clearly identified if any of the following apply:
(1) The name of the candidate involved appears.
(2) A photograph or drawing of the candidate appears.
(3) The identity of the candidate is apparent by unambiguous reference.
(d) A communication described in subsection (b) must contain a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for and, when required, who authorized the communication. A disclaimer does not comply with this section if the disclaimer is difficult to read or if the placement of the disclaimer is easily overlooked.
(e) In addition to meeting the requirements of subsection (d), a disclaimer that appears on a printed communication described in subsection (b) must comply with the following:
(1) The disclaimer must be of sufficient type size to be clearly readable by the recipient of the communication. A disclaimer in 12 point type size satisfies the size requirement of this subdivision when the disclaimer is used for a yard sign, a poster, a flyer, a newspaper, a magazine, or a direct mailing.
(2) The disclaimer must be printed with a reasonable degree of color contrast between the background and the printed statement. A disclaimer satisfies the color contrast requirement of this subdivision if:
(A) the disclaimer is printed in black text on a white background; or
(B) the degree of color contrast between the background and the text of the disclaimer is not less than the color contrast between the background and the largest text used in the communication.
Notwithstanding subdivisions (1) and (2), a disclaimer satisfies the requirements of this subsection if the minimum type size of the disclaimer is 7 point and the type color of the disclaimer contrasts with the background color.
(f) A communication that would require a disclaimer if distributed separately must contain the required disclaimer if included in a package of materials
(g) This subsection does not apply to a communication, such as a billboard, that contains only a front face. The disclaimer need not appear on the front or cover page of the communication if the disclaimer appears within the communication.
(h) Except as provided in subsection (i), a communication described in subsection (b) must satisfy one (1) of the following:
(1) If the communication is paid for and authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication has been paid for by the authorized political committee.
(2) If the communication is paid for by other persons but authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication is paid for by the other persons and authorized by the authorized political committee.
(3) If the communication is not authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state the name of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee.
(4) If the communication is a solicitation directed to the general public on behalf of a political committee that is not a candidate's committee, the solicitation must clearly state the full name of the person who paid for the communication.
(i) A communication by a regular party committee consisting of:
(1) a printed slate card, a sample ballot, or other printed listing of three (3) or more candidates for public office at an election;
(2) campaign materials such as handbills, brochures, posters, party tabloids or newsletters, and yard signs distributed by volunteers and used by the regular party committee in connection with volunteer activities on behalf of any nominee of the party; or
(3) materials distributed by volunteers as part of the regular party's voter registration or get-out-the-vote efforts;
must clearly state the name of the person who paid for the communication but is not required to state that the communication is authorized by any candidate or committee.
As added by P.L.3-1997, SEC.183. Amended by P.L.38-1999, SEC.31; P.L.176-1999, SEC.42; P.L.225-2011, SEC.42.
9. [ By counsel, Doe wrote to the county clerk in June, July, and September of 2022, seeking clarification of what the county's policies are. Ex. 1-3.]
By counsel, Doe wrote to the election board, citing the example of Terry Judy's campaign literature, and asked them to seek an attorney general opinion. Ex. 1-3.
Instead, they ordered Judy to add a disclaimer to his campaign materials, which he did.
10. omit [In September, the clerk responded writing that they enforce the state statutes, as interpreted by the state election commission. and referred further correspondence to the county attorney, Ted Johnson, who has not responded. Ex 4-7.] [Table 2, brochure.]
11. Time is of the essence, since the campaign season is already in progress.
Election cases are to be given accelerated handling on the docket, because of the strong public interest factor. Plaintiff's speech is being chilled, while numerous other political speakers are either engaging in compelled speech, or are having their speech chilled, distorting the marketplace of ideas, harming the integrity of the election process.
Law:
12. The right to distribute signs with no disclaimer was established in 1960 by Talley v California as part of the civil rights movement. See also NAACP v Alabama, Bates v Little Rock. These cases created a right of privacy and a right to associate politically, an aspect of the first amendment right of assembly and petition. Defendants seek to return to the era of Jim Crow and Gobitis in which political signs were censored and speech compelled.
13. This right is clearly established, by cases including NIFLA v Beccera, Janus, and Reed v. Town of Gilbert. These cases have resolved previous uncertainty about the constitutionality of the Indiana statute. Because the right is clearly established by these recent controlling cases of the United States Supreme Court, there is no qualified immunity.
14. The no disclaimer rule of Talley is a subset of the general right to remain silent, to be free from compelled speech, outlined in cases including Barnette v Board, Wooley v Maynard, Tornillo v Miami Herald, Riley, McIntyre v Ohio Elections Commission, Buckley v. ACLF, Watchtower v. Stratton, Hurley, and AID v Open Society.
15. Indiana courts have recognized the right on multiple occasions, including Stewart v Taylor, Ogden v Marendt, Mullholland v Marion County Election Board, and AKKKK v Goshen.
16. Since at least 1993, strict scrutiny has been the standard of review in political speech cases under Article I section 9 of the Indiana Bill of Rights, clearly established by Price v Indiana.
17. For the board, via the clerk, to disregard the state and federal constitutions, which they have sworn to uphold, is misfeasance and malfeasance in office, is illegal per 18 USC 241, and, here, is tortious under 42 USC 1983, the Ku Klux Klan Act of 1871.
18. The Board's policy is racist (Talley v California), sexist (McIntyre v Ohio Election Comm'n.), fosters religious discrimination (compare Barnette v Board with Gobitis), and is incompatible with the idea of a marketplace of ideas.
19. The Board is interfering with free and equal elections in Indiana, the opposite of what they are supposed to be doing.
Claims
20. Count 1.
The Board's disclaimer requirements violate the right to freedom of speech under Article I section 9, which reads "Section 9. No law shall be passed, restraining the free interchange of thought and opinion".
21. Count II
The Board's disclaimer requirements violate the right of freedom of the press under Article I section 9 which reads "or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible."
22. Count III
The Board's disclaimer requirement violates Article II section I, which reads, elections shall be free and equal.
23. Count IV
The Board's disclaimer requirement violates Article I when read as a whole, including sections 1, 2, 3, 9, 11, 12, 16, 21, and 31. (expand)
24. Count V
The Board's disclaimer requirement violates the press clause of the First Amendment.
25. Count VI
The Board's disclaimer requirement violates the free speech clause of the First Amendment
26. Count VII
The Board's disclaimer requirement violates the petition and assembly clauses of the First Amendment.
27. Count VIII
The Board's disclaimer requirement violates the right to privacy of the First Amendment.
28. Count IX
By commandeering part of the sign's content, the Board's disclaimer policy is a seizure without probable cause in violation of the 4th Amendment.
29. Count X
By commandeering part of the sign's content, the Board's disclaimer policy, if not void for the reasons in counts I-IX, would be a taking under the 5th Amendment, requiring due compensation at market rates.
30. Count XI
In the event that the court finds no violations of Amendments 1-8, the sign policy violates Amendments 9 and 10. The right to publish without an identification disclaimer has been considered part of the rights, as Englishmen, of the American colonists since John Peter Zenger's case in 1735. The founders had this case in mind when they adopted the First and Seventh Amendments. The 9th and 10th Amendments incorporate the common law rights of the Anglo-American unwritten constitution into the written constitution.
Count XII
31. While the US Bill of Rights has been largely incorporated into the 14th Amendment against the states via the due process clause, the policy also violates the privileges or immunities of American citizens including plaintiff as protected by the 14th Amendment.
32. Count XIII
The Board's policy, as described in the disclaimer brochure, is not even authorized by the void statute, as interpreted by case law, Majors v Abell, note 11, to not apply to under 100 signs at a time. Doe typically distributes less than 100 copies of a sign. The Board, as a municipality, is liable under Monell. While the legislature's action is ultra vires, exceeding its powers under the state and federal constitution, the county's policy is ultra vires, exceeding whatever authority the void statute might have provided.
Relief sought:
Plaintiff seeks a temporary restraining order, preliminary injunction, permanent injunction, declaratory judgment that IC 3-9-3.2.5 is unconstitutional and void, damages as determined by a jury trial as to each count, court costs, legal fees, and such other relief as is in the interest of justice.
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summons
waiver of summons forms
civil cover sheet
motion to proceed under fictitious name
motion for temporary injunction
memorandum in support of injunction
draft of motion for partial summary judgment.
press release
CARROLL COUNTY COMET
PO Box 26 Flora IN 46929-0026 Susan Scholl, editor@carrollcountycomet.com, attn debbie lowe.
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