MICHAEL J. DAVIS, Chief Judge.
This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint [Docket No. 18], Defendants' Motion to Strike Plaintiff's Responsive Memorandum as Untimely [Docket No. 30], and Plaintiff's Motion for Continuance [Docket No. 34]. The Court heard oral argument on March 15, 2013.
Plaintiff Stephen W. Carlson was the Independence Party candidate for the U.S. House of Representatives for Minnesota's Fourth Congressional District in November 2012. (Am. Compl. ¶ 1.) He finished in third place in that election. (2012 State of Minnesota General Election Canvassing Report at 20.) Congresswoman Betty McCollum won that election. (Id.)
Defendant Mark Ritchie is the Minnesota Secretary of State. Defendant Bert Black is an in-house legal adviser for the Office of Secretary of State. (Am. Compl. ¶¶ 3-4.)
On October 17, 2012, before the 2012 general election, Carlson purchased a compilation of data about his potential constituents in the Fourth Congressional District, culled from the Statewide Voter Registration System ("SVRS"). (Am. Compl. ¶¶ 4-5.) The SVRS complies with the federal Help America Vote Act ("HAVA"), which requires that every state that has a voter-registration system maintain a single computerized list "that contains the name and
Minnesota voter registration applications allow but do not require that registrants provide an email address. Minn. Stat. § 201.071, subd. 1 ("The registration application may include the voter's email address, if provided by the voter, and the voter's interest in serving as an election judge, if indicated by the voter.").
Under Minnesota Statute § 201.091, subdivision 4,
Further, "the secretary of state shall provide copies of the public information lists in electronic or other media to any voter registered in Minnesota within ten days of receiving a written or electronic request accompanied by payment of the cost of reproduction." Id., subd. 5. "An individual who inspects or acquires a copy of a public information list may not use any information contained in it for purposes unrelated to elections, political activities, or law enforcement." Id.
The statute further provides that election officials are prohibited from providing SVRS data to a member of the public or "in response to a law enforcement inquiry" that includes
Minn.Stat. § 201.091, subd. 9.
Carlson alleges that he intended to use email addresses contained on the SVRS to contact voters as part of his campaign. (Am. Compl. ¶¶ 8, 15.)
Carlson alleges than unnamed "employees" of the Office of the Secretary of State "offered ... verbally" to sell him the email addresses submitted by voters in the Fourth Congressional District that are contained in the SVRS. (Am. Compl. ¶¶ 5-6.) He purchased the public information list for the voters in the Fourth Congressional District for $30; however, the compact disc that Carlson received did not contain voter email addresses. (Id. ¶¶ 5, 22.) Carlson alleges that "it can be assumed, or can be shown, that others have received these[] email lists that were offered to me." (Id. ¶ 22.)
Carlson avers that he intends to be a 2014 candidate for Congress in the 4th District or the U.S. Senate race. (Carlson Decl. ¶ 4.) He further claims that he is considering seeking the Minnesota Democratic Farmer Labor ("DFL") endorsement or asking DFL voters to vote in the Independence Party nomination process. (Id.)
On October 30, 2012, Carlson filed a Complaint in this Court against Defendants Bert Black, in his official capacity as legal advisor to the Minnesota Secretary of State, and Mark Ritchie, in his official capacity as the Minnesota Secretary of State. He filed an Amended Complaint on November 2, 2012.
On November 5, Carlson filed a verified version of his Amended Complaint. [Docket No. 12] This Amended Complaint alleges: Count One: wrongful withholding of contacts (based on Defendants' withholding of voters' email addresses) and Count Two (based on constitutional violations by the Minnesota DFL in its selection Betty McCollum).
On November 5, the Court again denied the Motion for a Preliminary Injunction, this time on the grounds that Carlson was unlikely to succeed on the merits of his claim that the Secretary of State was required to provide the voter email addresses to him. [Docket No. 15]
On December 11, 2012, Defendants filed the instant motion to dismiss the Amended Complaint. Carlson filed his Opposition to the motion to dismiss on February 22, at least fifty days late under the Local Rules. Defendants have filed a motion to strike his Opposition brief as untimely.
On December 21, 2012, Carlson filed a petition pursuant to Minnesota Statute § 204B.44, before the Minnesota Supreme Court seeking declaratory and injunctive relief. His petition contained a First Amendment claim based on who can participate in and vote at precinct caucuses; an assertion that Ritchie violated the Minnesota Government Data Practices Act and the First Amendment rights to political association and speech by withholding email addresses of registered voters in the Fourth Congressional District; and a claim that the state district court violated his First Amendment right of access to the courts by refusing to accept his election contest for filing. See Carlson v. Ritchie, 830 N.W.2d 887 (Minn.2013).
On Wednesday, March 13, 2013, Carlson filed a document in this case opposing the motion to strike his untimely Opposition brief and requesting that this case be continued pending the outcome of the proceeding before the Minnesota Supreme Court.
On May 22, 2013, the Minnesota Supreme Court denied Carlson's petition, dismissing the first two claims based on laches and the third claim for falling outside the scope of Minnesota Statute § 204B.44. 830 N.W.2d at 893-94.
Defendants request that the Court strike Carlson's Opposition brief because it was significantly late and Carlson made no attempt to request leave from the Court to file the late memorandum until two days before oral argument. The Court agrees that it would be within its discretion to strike Carlson's memorandum, but it declines to do so. Defendants have ably responded to Carlson's Opposition both in their Reply brief and at oral argument.
On March 13, Carlson requested that this case be continued until the Minnesota Supreme Court reached a decision on Carlson's petition contesting the 2012 election. Alternatively, he asked that the hearing on this motion to dismiss be continued for additional briefing. Additionally, he requested that the Court strike Defendants' references to other "extraneous" litigation.
The Court denies Carlson's requests. First, the Minnesota Supreme Court has
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move the Court to dismiss a claim if, on the pleadings, a party has failed to state a claim upon which relief may be granted. In reviewing a motion to dismiss, the Court takes all facts alleged in the complaint to be true. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir.2010).
Id. (citations omitted).
In deciding a motion to dismiss, the Court considers "the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint." PureChoice, Inc. v. Macke, Civil No. 07-1290, 2007 WL 2023568, at *5 (D.Minn. July 10, 2007) (citing Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999)).
Under the Eleventh Amendment of the U.S. Constitution, states are immune from suit in federal court by citizens of any state. Skelton v. Henry, 390 F.3d 614, 617 (8th Cir.2004). "State immunity under the Eleventh Amendment does not apply to awards for prospective relief, but does bar the award of any retroactive relief for violations of federal law that would require payment of funds from a state treasury." Id. (citations omitted). In other words case law allows "federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (citation omitted). Also, "[a] state may waive its immunity from suit in federal court by voluntarily submitting its rights for judicial determination." Skelton, 390 at 618 (citation omitted).
Additionally, the Eleventh Amendment bars federal lawsuits against states for allegedly violating their own laws, regardless of whether the plaintiff seeks prospective relief. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).
Here, Carlson seeks declaratory relief, compensatory and punitive damages, and injunctive relief. Carlson's claims are based on the allegation that Defendants have violated Minnesota Statute § 201.091, which Carlson asserts "provides, as pertinent to the instant lawsuit, for e-mails and other personal information to be provided to voters in the 4th Congressional District, as redistricted in 2010, as part of the process of voter information." (Am. Com. ¶ 5.) To the extent that Carlson's claims are based on Defendants' alleged violation of a state statute, Defendants are immune from suit. See Pennhurst, 465 U.S. at 106, 104 S.Ct. 900.
Eleventh Amendment immunity also bars Carlson's request for monetary damages and punitive damages. The
Carlson asserts that certain DFL policies violate his constitutional rights. (Am. Compl.¶¶ 16-19.) He asserts that the DFL maintains "quotas" based on gender, sexual orientation, and other characteristics in choosing its delegates, party committee members, and officers. (Id. ¶ 17.)
The Amended Complaint alleges:
(Am. Compl. ¶¶ 19-20.)
Carlson cites to cases holding that the federal government will intervene to protect voter's right to participate in the selection of congressional representatives. See, e.g., Ex. Parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884). He argues that the alleged DFL quota system violates the Fifteenth and Nineteenth Amendments of the U.S. Constitution by denying white males the right to participate and violates the First Amendment right to freedom of association. The Court interprets Carlson's claims of violations of the Constitution to be claims under § 1983, under which a plaintiff must establish (1) that he was deprived of a right secured by the Constitution or laws of the United States and (2) that the deprivation was committed under color of state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 931, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).
The DFL is not a Defendant in this action. The Minnesota Secretary of State is not responsible for a political party's internal organization or the manner in which it chooses delegates or other officials. Nor do Defendants or the State do anything to "sanction[]" the "DFL party... policies and practices." The practices Carlson challenges are internal DFL rules that govern party officers and endorsements, not public elections. Defendants have no legal authority to force a Minnesota political party to change its internal policies, and the DFL is not a party to this action. There is no allegation of any particular law, policy, or action by Defendants regarding the DFL's procedures, apart from alleging that Defendants know about the quota system and have done nothing about it.
Both McCollum and Carlson appeared on the 2012 general election ballot because they won primary elections, not party caucuses. In Minnesota, a party's endorsement is simply an expression of support by a private political association; it has no
Political parties are private entities that possess the right to the freedom of association. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 224, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) ("[A political] [p]arty's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational."). "Freedom of association also encompasses a political party's decisions about the identity of, and the process for electing, its leaders." Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 229-30, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (citation omitted).
Although Carlson is correct that, in some instances, constitutional protections will extend to party procedures, the required context does not exist here. As the Supreme Court explained in United States v. Classic,
313 U.S. 299, 318, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Here, the party candidates for the general election for Congress are determined by the primary, which is run by the State, in which every voter has a right to vote, and in which there is no allegation of a quota system. Carlson's allegations solely relate to the DFL caucus and convention system, which does not determine which candidates appear on the general election ballot as candidates for Congress. Thus, his allegations fall under Eu, in which the Supreme Court held that a political party's right to "[f]reedom of association also encompasses a political party's decisions about the identity of, and the process for electing, its leaders," 489 U.S. at 229, 109 S.Ct. 1013 (citation omitted), rather than under Classic.
In sum, there is no allegation in the Amended Complaint regarding the DFL's policies that can sustain a claim against Defendants, who have no part in the creation, execution, or enforcement of the DFL's internal caucus policies.
As the Court has already noted, the Eleventh Amendment bars Carlson's claims for damages based on Defendants' past failure to provide the email address list to him in advance of the 2012 general election. His remaining claim for prospective injunctive relief, in the form of requiring Defendants to provide the email list in the future, fails to state a claim upon which relief can be granted.
Carlson alleges that Defendants' refusal to provide him with voters' email addresses violates his free speech rights under the First Amendment. He alleges:
(Am. Compl. ¶ 25.) He further claims that "Mr. Black and Mr. Ritchie transgress the First Amendment when they so act by restraining the use of available public information to contact voters." (Id. ¶ 26.)
The Amended Complaint does not allege a violation of the First Amendment right to free speech. Carlson was and is free to send Fourth Congressional District voters emails seeking their vote. Defendants have not taken any action to regulate the content or manner of his message. Instead, they have simply declined to sell him the type of voter-contact information that he desires. Defendants' refusal to sell Carlson private email information does not constitute "plac[ing] substantial and direct restrictions on [his] ability ... to engage in protected political expression" (Am. Compl. ¶ 20), "interfer[ing] in federal election processes" (id. ¶ 25), "regulating a speech activity" (id.), "restraining the use of available public information" (id. ¶ 26), or "prior restraint" on Carlson's free expression (id. ¶ 23).
The U.S. Constitution does not require the government give something of value to a private party so that he can more "efficient[ly]" (Am. Compl. ¶ 15) engage in political expression. Defendants have no legal obligation to facilitate Carlson's campaign. The Amended Complaint fails to state a claim against Defendants based on violation of the First Amendment right to freedom of speech.
The Court also finds no factual allegation in the Amended Complaint to support Carlson's claim that Defendants have violated his right to free association. (Am. Compl. ¶ 23.)
Carlson asserts that Defendants have violated his right to equal protection by providing email address information to other political candidates but not to him. (Am. Compl. ¶ 22.)
Minnesota Majority v. Mansky, 708 F.3d 1051, 1059-60 (8th Cir.2013) (citations omitted).
Here, the only factual basis for the equal protection claim is that "it can be assumed, or can be shown, that others have received these[] e-mail lists that were offered to me." (Am. Compl. ¶ 22.) Carlson's assumptions about the data that other campaigns have received from Defendants are both speculative and conclusory, so they fail to "to raise a right to relief above the speculative level" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See also Palmore v. City of Pacific, 851 F.Supp.2d 1162, 1170-71 (E.D.Mo.2010) (granting motion to dismiss equal protection claim when plaintiff "fails to identify any `others' or when `others' were given preferential treatment [and][h]e simply makes the broad, speculative assertion that `others' were treated more favorably").
Carlson asserts that Defendants have violated his due process rights by providing email address information to other political candidates but not to him and by failing to provide the email addresses
Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.1999) (citations omitted).
Here, the Amended Complaint fails to allege that Carlson has a protected interest in the email addresses he seeks. Carlson points to no constitutional right to possess the email addresses of the voters in his district, and the Court finds none. Moreover, the Court rejects Carlson's assertion that Minnesota law provides him a right to possess the email addresses.
"The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except `for cause.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).
Carlson appears to assert that he has a protected property interest in the email addresses because Minnesota Statute § 201.091 requires Defendants to provide the public information list, which includes "e-mails and other personal information... to voters in the 4th Congressional District," such as Carlson. (Am. Compl. ¶ 5.)
Subdivision 4 of § 201.091 provides that portion of SVRS data entitled "public information list" "must contain the name, address, year of birth, and voting history of each registered voter in the county;" "[t]he telephone number must be included on the list if provided by the voter;" and "[t]he public information list may also include information on voting districts." Carlson points to no other provision of Minnesota or federal law indicating that any other SVRS data is required — or even permitted — to be included in the public information list.
Carlson notes that subdivision 4 "does not exclude e-mail from the public list to be made available to me. It only says [that] it is not necessary to provide it by the statute." (Am. Compl. ¶ 12.) However, the public information list is a statutory creation, and the statute defines which categories of data are included in the list.
Carlson notes that § 201.091, subdivision 9, entitled "Restricted data," does not explicitly state that voter email addresses are restricted from dissemination to the public. This fact does not change the Court's analysis. Subdivision 9 declares that election officials are not allowed to provide certain categories of voter data to other persons, whether through the public information process or through the other process governed by § 201.091 — by which non-public information can be provided in response to a law enforcement inquiry. Therefore, subdivision 9 narrowly defines the information that is not available for dissemination by the public information list or in response to a law enforcement inquiry. The category of information that is not available to the public in the public information list is broader than just the information listed in subdivision 9. See also McGrath v. Minn. Sec'y of State, No. A11-613,
The Court further concludes that Carlson's reliance on a recent advisory opinion by the Information Policy Analysis Division ("IPAD") of the Minnesota Department of Administration does not enable his due process claims to survive. (See IPAD Advisory Opinion 12-016.) First, the IPAD advisory opinion is not binding on the Secretary of State and is only given deference by a court in a proceeding involving the data at issue (data in polling rosters), which is not the case here, where the Court is addressing access to voter email addresses. See Minn.Stat. § 13.072, subd. 2. Second, the IPAD opinion did not address whether or not data not listed in the statute was part of the public information list. Rather, the IPAD opinion concluded that certain polling roster data was available under the "other information" clause in Minnesota Statute § 201.091, subdivision 4, which provides that the Secretary of State "
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999) (citations omitted).
The Court concludes that, by statute, voters' email addresses are not part of the public information list, and Carlson does not have a protected interest in obtaining the email addresses.
Even if, as Carlson claims, an employee of the Office of the Secretary of State offered to sell the email address list to Carlson as part of the public information list, despite the Minnesota statute, such a representation would not create a protected property right for Carlson. The Office of the Secretary of State has no authority to change state election law through an erroneous interpretation of state law. See Paquin v. Mack, 788 N.W.2d 899, 906 (Minn.2010) (holding that, even if an employee of the Secretary of State's office made a representation to the plaintiff that was contrary to the state statute, the Secretary of State was not estopped because "[t]he Secretary of State's office has no authority to change state law," and "[r]egardless of the advice [the plaintiff] received, he was still obligated" to follow state law).
In sum, because Carlson alleges no protected life, liberty, or property interest, his due process claims fail to state a claim upon which relief can be granted.
Defendants interpret the Amended Complaint to also assert a contract
Accordingly, based upon the files, records, and proceedings herein,
This matter is before the Court on Plaintiff's Motion to Alter and Amend Judgment, and for Relief from the Judgment and Order on the Grounds of New Evidence, Intrinsic Fraud, and Interest of Justice. [Docket No. 43]
On June 3, 2013, this Court filed an order granting Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. [Docket No. 41] Judgment was entered on June 3, 2013. [Docket No. 42]
Plaintiff has now filed a Motion to Alter and Amend Judgment, and for Relief from the Judgment and Order on the Grounds of New Evidence, Intrinsic Fraud, and Interest of Justice. [Docket No. 43]
Plaintiff brings his motion under Federal Rules of Civil Procedure 59(e), 60(b)(2), 60(b)(3), and 60(b)(6).
"Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence." United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006) (citation omitted). The Court "has broad discretion in determining whether to grant or deny a motion to alter or amend judgment pursuant to Rule 59(e)." Id. A Rule 59(e) motion "cannot introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment." Id.
Id.
In relevant part, Federal Rule of Civil Procedure 60(b) provides:
"Rule 59(e) and Rule 60(b)(2) are analyzed identically." Metro. St. Louis Sewer Dist., 440 F.3d at 933 n. 3.
This Court holds that Carlson is not entitled to relief under Rule 59(e) or Rule 60(b)(2). Carlson's submissions do not raise any manifest errors of law or fact in the Court's June 3 Order or Judgment.
Additionally, Carlson fails to point to material new evidence. Carlson claims his recent discovery of the Minnesota Office of the Legislative Auditor, Financial Audit Division Report: Secretary of State Mark Ritchie Investigation: Use of Contact Information, dated January 8, 2008 ("OLA Report") constitutes newly discovered evidence. If Carlson discovered the OLA Report after judgment was entered, then he discovered the Report in 2013. However, the OLA report was published and made available to the public in 2008. Accordingly, Carlson has not shown that he exercised due diligence to discover the OLA Report; the OLA Report was publicly available long before Carlson filed this lawsuit. Moreover, the OLA Report is not material. Consideration of the Report would not change the Court's analysis or decision in this case. The OLA Report did not address the classification or use of SVRS data.
Similarly, the August 9, 2012 article regarding Congresswoman McCollum's opinion on state legislation to protect email addresses possessed by local and state government entities was publicly available before Carlson filed this lawsuit and is not material to the legal analysis in this case.
The Court holds that Carlson has failed to meet the 60(b)(3) fraud standard because he failed to show "with clear and convincing evidence," that Defendants "engaged in fraud or misrepresentation that prevented [Carlson] from fully and fairly presenting [his] case." See Atkinson v. Prudential Prop. Co., 43 F.3d 367, 373 (8th Cir.1994). The OLA Report does not show that Defendants committed fraud in this case by representing that the Office of the Secretary of State does not provided SVRS email addresses to candidates. As the Court has noted, the OLA Report did not address SVRS data at all. Moreover, the Court dismissed this matter on a motion to dismiss under Rule 12(b)(6). Consistent with the Rule 12(b)(6) standard, only the pleadings were considered. The Court did not consider or rely on the Poser Affidavit or any argument by Defendants based on the Poser Affidavit. Thus, even if Carlson could have shown that the affidavit was fraudulent, Defendants did not engage in fraud or misrepresentation in a manner that prevented Carlson from fully and fairly presenting his case. The affidavit had no impact on the Court's ruling and is not a basis for altering or amending judgment.
This Court holds that Carlson is not entitled to relief under 60(b)(6). Carlson has failed to demonstrate any "exceptional circumstances" that denied him a full and fair opportunity to litigate his claim or prevented him from receiving adequate redress. See Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir.2005). The Court has thoroughly reviewed the parties' submissions, the record, and the Court's June 3 Order and Judgment and concludes that the Order and Judgment contain no manifest errors of law or fact. Nor has Plaintiff offered new evidence that would alter the Court's Order or Judgment.
