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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC., and THE BILL OF RIGHTS FOUNDATION, INC. Plaintiffs,
-against-	CIVIL ACTION No. 3:98-CV-01050 (JBA)
MARK SHIFFRIN, in his capacity as Commissioner of the Connecticut Department of Consumer Protection and RICHARD BLUMENTHAL, in his capacity as the Attorney General of the State of Connecticut, Defendants.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Introduction

The Defendants have moved this Court to dismiss the Plaintiffs’ Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), on the grounds that (1) neither Plaintiff American Charities for Reasonable Fundraising Regulation, Inc. (“ACFRFR”) nor The Bill of Rights Foundation, Inc. (“BRF”) has standing, and (2) various abstention doctrines warrant dismissal even if the Plaintiffs do have standing. However, as will be set forth below, the Defendants’ motion is completely without merit and must be denied.

When a Court rules on a motion to dismiss, all of the facts of the Complaint must be viewed in the light most favorable to the Plaintiff. Bernheim v. Litt, 79 F.3d 318, 321(2d Cir. 1996). A complaint may not be dismissed if there is any set of facts set forth in the Complaint which will support a cause of action. Id.

Factual Background

ACFRFR is an association of charities and others having a real and substantial interest in regulations affecting charitable organizations. Rita Smith deposition at page 16, attached hereto as Exhibit “A.” ACFRFR’s charitable purposes include challenging abridgements of the First Amendment rights of its charitable members with lawsuits against overreaching state regulators. Rita Smith deposition at page 16, attached hereto as Exhibit “A.” There are approximately forty states, including Connecticut, which impose regulatory burdens on charitable activities. Defendants’ Memorandum of Law in Support of Motion to Dismiss (“Defendants’ Memo”) at page 16, fn.12. Due to the potential for retribution and closer regulatory supervision by those given the power to administer those regulations, ACFRFR promises anonymity to all of its contributors in exchange for their support of its litigations against those same regulators.

ACFRFR commenced the instant action against the Defendants, who are the enforcers of the Connecticut Unfair Trade Practices Act (“CUTPA”), by filing a Complaint and Application for Preliminary Injunction on or about June 4, 1998. The Complaint alleged that the Defendants have been and continue to enforce CUTPA, the Sweepstakes Statute codified at Conn. Gen. Statutes §42-295 et. seq., and the regulations promulgated thereunder (collectively, the “sweepstakes regulations”) against ACFRFR’s charitable members’ First Amendment activities. Complaint at paragraphs 34, 40, and 42. The Complaint further alleges that in its attempt to regulate as broadly as possible, the Connecticut legislature drafted the language of CUTPA in such a way that it includes the First Amendment activities of ACFRFR’s charitable members within its scope. Complaint at paragraphs 34, 40, and 42. ACFRFR sought a declaration pursuant to 28 U.S.C. §2201 that application of CUTPA to the First Amendment activities of its charitable members violated the First and Fourteenth Amendments to the United States Constitution; a preliminary and permanent injunction against the Defendants prohibiting them from enforcing CUTPA against charitable speech; and attorneys fees pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1988.

During a telephone conference with the Court held on June 19, 1998, the Defendants sought limited discovery regarding the membership of ACFRFR for the purpose of opposing the Plaintiffs’ Application for Preliminary Injunction. Counsel for ACFRFR averred that ACFRFR had a constitutional right of association under the First Amendment and the Supreme Court holding in NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958) to not divulge the identity of any of its members. Counsel for ACFRFR advised this Court that the membership of ACFRFR was extremely reluctant to come forward due to fears that a public stance against Connecticut regulators might lead to retribution and closer regulatory scrutiny from other regulators around the United States charged with overseeing charitable conduct. However, counsel for ACFRFR promised to go back to its client and determine if there were any members who might be willing to come forward in the context of this lawsuit.

In a letter dated June 17, 1998, ACFRFR’s counsel advised the Defendants that the only organizations that were willing to subject themselves to nationwide regulatory scrutiny by identifying themselves were The Children’s Charity Fund Corp.(“CCF”) and BRF. See Exhibit “B.” As the Defendants point out in their Motion to Dismiss, CCF was already being prosecuted by the Defendants at the time ACFRFR commenced the instant action, and therefore knew that other regulators around the United States would be more carefully scrutinizing its operations.¹ BRF was willing to come forward because the regulatory burden on it around the United States was already so great that it has been unable to solicit funds anywhere, despite having been properly organized and otherwise functioning since April of 1997. Deposition of the President of BRF, Dane vonBreichenruchardt at page 24, attached hereto as Exhibit “C.” BRF has at least twelve potential corporate contributors that it would solicit if it could do so without fear of unconstitutional prosecution from the Defendants. Affidavit of Dane vonBreichenruchardt at paragraph 5, attached hereto as Exhibit “D.” BRF would use the funds generated by those likely twelve contributors to help fund a fundraising campaign to the general public, including residents of Connecticut. Affidavit of Dane vonBreichenruchardt at paragraph 7, attached hereto as Exhibit “D.” Mr. VonBreichenruchardt was aware of the prosecution of CCF through CCF’s and BRF’s common association with ACFRFR. Affidavit of Dane vonBreichenruchardt, paragraph 2, attached hereto as Exhibit “D.”

The Defendants responded to the June 17, 1998 letter by advising the Court that they intended to move to dismiss on the new ground of abstention. When CCF discovered that its membership in ACFRFR potentially threatened the ability of the organization to proceed with the instant lawsuit, CCF resigned its membership from ACFRFR. Deposition of Ken Bowron at pages 10-11, attached hereto as Exhibit “E.” ACFRFR’s counsel subsequently advised the Defendants that ACFRFR would be filing an Amended Complaint to clarify some of the standing issues which had apparently confused the Defendants. The Amended Complaint was filed on or about July 24, 1998.

The Amended Complaint again sought a declaration pursuant to 28 U.S.C. §2201 that the application of CUTPA and the sweepstakes regulations to charitable speech facially violated the First Amendment of the United States Constitution made applicable to the States by the Fourteenth Amendment; preliminary and permanent injunctive relief enjoining the Defendants from applying CUTPA and the sweepstakes regulation to charitable speech activities; and attorneys fees pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1988. The Defendants subsequently filed an objection to the filing of the Amended Complaint, even though it was filed before the Defendants had served a responsive pleading and thus was an “as of right” amendment under Fed.R.Civ.P. 15(a).

Pursuant to this Court’s amended scheduling order, the Defendants filed a Motion to Dismiss the Complaint² on or about August 27, 1998. This brief contains the Plaintiffs’ response to that motion.

EACH PLAINTIFF HAS STANDING

The Defendants claim in their Motion to Dismiss that neither ACFRFR nor BRF has standing to maintain an action for the violation of their First Amendment rights by the Defendants. See Paragraphs 1 and 2 of the Defendants’ Motion to Dismiss. As will be shown below, the Defendants are incorrect as to each Plaintiff.

Standing of ACFRFR

As was pointed out at great length in the Plaintiff’s Application for Preliminary Injunction,³ ACFRFR has standing to bring this lawsuit under the associational standing rules articulated in Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977) and UAW v. Brock 477 U.S. 274 (1986). Under the Hunt test, ACFRFR has standing if (1) at least one of its members has standing; (2) the suit is consistent with ACFRFR’s purposes; and (3) the individual participation of the members is not required. The Amended Complaint alleges that: (1) the Defendants’ enforcement of CUTPA and the sweepstakes regulation abridges ACFRFR’s members’ First Amendment rights to associate with residents of the State of Connecticut;⁴ (2) one of ACFRFR’s charitable purposes is to bring lawsuits on behalf of its members when government regulators enforce regulations that violate ACFRFR’s members’ First Amendment rights; and (3) only prospective relief is sought (which makes the participation of the individual members unnecessary). See Paragraphs 14, 16, 24, 25, 26, 27, 28, 30, 44, 45, 54, 58-64, and paragraphs 1- 9 of the relief requested in the Amended Complaint. The Defendants’ failure to refute, distinguish, or even address the Hunt test is proof of the force of this argument. Nevertheless, even though it is clear that the Hunt test both applies and is dispositive on the issue of ACFRFR’s standing to maintain this suit, several points need to be made in response to the Defendants’ position set forth in their Motion to Dismiss.

The Defendants cite three Equal Protection cases for the proposition that “the Second Circuit Court of Appeals has ‘restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured.’” Defendants’ Memo at page 8 (citing League of Women Voters v. Nassau County Board of Supervisors, 737 F.2d 155 (2d. Cir. 1984)). However, the Defendants’ reliance on League of Women Voters is misplaced.

Unlike the Equal Protection claims which were at issue in League of Women Voters, Aguyao v. Richardson, 473 F.2d 1090 (2d. Cir, 1973), and Roxbury Taxpayers Alliance v. Delaware County Board of Supervisors, 886 F.Supp. 242 (N.D.N.Y. 1995), ACFRFR asserts the First Amendment right of its members to speak and associate with residents of the State of Connecticut. This situation is therefore not controlled by League of Women Voters but rather by Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2d Cir. 1974). In that case, the Second Circuit distinguished Aguyao and allowed an organization to maintain a suit on behalf of members who were impermissibly restricted from distributing public information materials germane to the organization’s purpose. Albany Welfare Rights at 1322. The Court held that the association had standing to bring the complaint “because the [violation] alleged involved an abridgement of the constitutional right of association....There is sufficient evidence in the record to permit the conclusion that [the association’s] efforts to increase its membership were adversely affected [by the Defendants’] actions.” Albany Welfare Rights at 1322. ACFRFR’s Amended Complaint similarly alleges that the Defendants enforcement of CUTPA and the sweepstakes regulation impermissibly abridges its members’ First Amendment rights to disseminate public education materials and associate with potential supporters in the State of Connecticut. See Amended Complaint at paragraphs 16, 24, 25, 26, 27, 28, 30, 44, 45, 54. Accordingly, League of Women Voters poses no hurdle to ACFRFR maintaining this suit.

Additionally, the continued vitality of League of Women Voters even in situations not involving First Amendment claims is doubtful in light of Congress’ amendments to 28 U.S.C. §1331 which abolished the minimum amount in controversy requirement for federal question jurisdiction. Prior to December 1980, federal question jurisdiction under 28 U.S.C. § 1331 depended on there being a minimum of $10,000.00 in controversy between the parties. See the 1980 Amendments to 28 U.S.C. §1331, Pub.L.96-486. However, the third prong of the associational standing test formalized in Hunt prohibits standing if the relief sought is damages to the particular members. See e.g., Warth v. Seldin, 422 U.S. 490, 514-6 (1975). Thus, prior to the amendment abolishing the minimum amount in controversy requirement for federal question jurisdiction, associations generally needed to base jurisdiction for their associational standing on 28 U.S.C. §1343, the jurisdictional implementation of 42 U.S.C. §1983. See Albany Welfare Rights at 1321-2. That posed a problem for associations in the Second Circuit under Aguayo, since the Second Circuit refused for jurisprudential reasons to allow associational standing to assert Civil Rights claims on behalf of members of an organization. See Aguayo at 1099. With the abolition of the minimum amount in controversy requirement, ACFRFR’s invocation of jurisdiction under 28 U.S.C. §1331 for declaratory relief effectively moots the Defendants’ arguments that no jurisdiction exists under 42 U.S.C. §1983 and 28 U.S.C. §1343.⁵ See also Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 811 (1994)(holding that 42 U.S.C. §1983 is not a source of substantive rights, but rather merely provides a method for vindicating federal rights conferred by other statutes).

The Defendants wrongfully assert that the right of association and speech claims set forth in the Amended Complaint are an attempt by ACFRFR “to bring itself under the line of cases beginning with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1957). See Defendants’ Memo at pages 11-12. NAACP v. Alabama is relevant to this case in so far as it protects ACFRFR from having to reveal the names of its members to government regulators who have supervisory powers over the membership. However, as the Defendants were aware from ACFRFR’s Application for Preliminary Injunction, ACFRFR bases its standing on Hunt, not NAACP v. Alabama. Indeed, the Defendants’ citations to NAACP v. Alabama flagrantly misrepresent the associational standing rules enunciated in Hunt.

For example, the Defendants assert that

“NAACP v. Alabama and its progeny carve out a very narrow exception to the general rule that an association lacks standing to assert the constitutional rights of its members. That exception, recognized in order that constitutional rights otherwise incapable of protection will be championed, is applicable only when the association asserts the constitutional right of its members to associate with itself and when the members’ right to freedom of association cannot be effectively vindicated except through a suit commenced by the association.”

Defendants Memo at page 13 (emphasis supplied). As the Hunt test makes clear, this assertion is misplaced. There is nothing in Hunt or any if its progeny that suggests that the associational standing rules are a “very narrow exception” or that they may only be asserted “when the association asserts the constitutional right of its members to associate with itself and when the members’ right to freedom of association cannot be effectively vindicated except through a suit commenced by the association.” In fact, the Brock v. UAW, supra, case to which ACFRFR cited in its Application for Preliminary Injunction, held that the associational standing rules enunciated in Hunt were not to be construed narrowly, citing the “special features, advantageous both to the individuals represented and to the judicial system as a whole that distinguish suits by associations on behalf of their members....” Brock at 289; see also, Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984)(fundraiser allowed to assert the First Amendment rights of charitable clients in a declaratory action claim even though there was no showing that the charities themselves could not bring their own lawsuit, due to statute’s chilling effect on charities’ speech rights). Thus, contrary to the suggestion made by the Defendants at pages 13-14 of their Memo, the fact that ACFRFR does not claim that (1) CUTPA or the sweepstakes regulation inhibit the ability of its member organizations to associate with it; (2) its members could not effectively vindicate their constitutional rights except through a suit commenced by ACFRFR; or (3) ACFRFR has been itself adversely affected, through diminished financial support and membership, by the enforcement of CUTPA and the sweepstakes regulation by the Defendants, are all irrelevant to whether ACFRFR has standing to maintain this action.

Accordingly, it is clear that ACFRFR has standing to maintain this action.⁶

Standing of BRF

Since BRF asserts deprivations of its own rights in the Amended Complaint, the Defendants cannot rely on the League of Women Voters case to deny BRF its right to speak to this Court. Rather, the Defendants rely on Laird v. Tatum, 408 U.S. 1 (1972) and its progeny, claiming that

“[w]hile it is true that ‘governmental action which falls short of a direct prohibition on the free exercise of speech may be subject to challenge, not every assertion of a chilling effect will be considered a judicially cognizable First Amendment violation.’”

Defendants’ Memo at 15. However, BRF alleges that it has sustained, and continues to be in immediate danger of sustaining, direct injury (as defined in the relevant caselaw set forth below) as a result of the Defendants’ actions. Defendants’ Memo at 15 (quoting Laird at 13). Accordingly, the Defendants’ Motion to Dismiss BRF must be denied as well.

In Laird, the Plaintiffs complained that the military was engaging in surveillance activities that generated a fear that in the future the government would use the data collected to prosecute the Plaintiffs at some future time. Laird at 13. The Plaintiffs did not, however, allege a specific and direct injury, and the Court held that “[a]llegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird at 13-14. That holding was consistent with the decision regarding the non-Younger Plaintiffs in Younger v. Harris, 401 U.S. 37 (1971), in which the Court held that Plaintiffs who “feel inhibited” as a result of laws for which they have “no fears of state prosecution except those that are imaginary or speculative” do not present the Court with an actual case or controversy. Younger at 41-2. Those cases, however, are not anologizable to BRF, whose injuries are very real and direct by the admission of the Defendants themselves in their own Memo.

The Supreme Court test for whether a case or controversy exists in a declaratory judgment action is

“[w]hether the facts alleged, under all circumstances, show that there is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment....The difference between an abstract question and a ‘case or controversy’ is necessarily one of degree and must be determined by a review of the facts presented in each case.”

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). The Second Circuit has adopted this rule. See Connecticut Casualty Co. v. Coastal Savings Bank, 977 F.2d 734 (1992).

The Supreme Court has held that the conflict between state officials empowered to enforce a law and private parties subject to enforcement under that law is a classic “case” or “controversy.” New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 14 (1^st Cir. 1996)(quoting Diamond v. Charles, 476 U.S. 54, 64 (1986)). The injury in fact requirement needed to establish the existence of a case or controversy is met where a law is aimed directly at a party seeking pre-enforcement relief from the effects of the allegedly unconstitutional law. Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 392-3 (1988). A Plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement, but he need not wait until the consummation of such injury before he can seek preventive relief. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979). When a Plaintiff alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Doe v. Bolton, 410 U.S. 179, 188 (1973); see also Steffel v. Thompson, 415 U.S. 452 (1974); and Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).

In New Hampshire Right to Life, a political action committee sought declaratory and injunctive relief against the state officials charged with enforcing a New Hampshire law limiting independent expenditures during a political campaign. New Hampshire Right to Life at 11. The organization alleged that it intended to exceed the limits imposed by the law, that it feared prosecution if it did so, and that the challenged provisions impermissibly chilled its free speech rights under the Supreme Court’s holding in Buckley v. Valeo, 424 U.S. 1 (1976). The Court recognized that when a party files a pre-enforcement challenge to a statute which alleges abridgement of First Amendment freedoms, two types of injury may constitute a case or controversy: (1) a credible threat of prosecution, or (2) the vice of self-censorship which occurs when the Plaintiff is chilled from exercising her right to free expression or foregoes expression in order to avoid enforcement consequences. New Hampshire Right to Life at 13-14 (quoting Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 393 (1988). The Court held that since the Defendants had not disavowed any intention of enforcing the statute against the Plaintiff, the Plaintiff had standing to maintain an action to vindicate its First Amendment rights.

In Virginia v. American Booksellers Association, Inc., 484 U.S. 383 (1988), Plaintiffs brought a pre-enforcement challenge to an obscenity statute that they alleged violated their First Amendment rights. American Booksellers at 386-92. The Court found that the Plaintiffs had presented the Court with a case or controversy even though the law had never been enforced. The fact that the law was aimed at the Plaintiffs coupled with the fact that the State had not suggested that the law would not be enforced created a credible threat of prosecution which conferred standing on the Plaintiffs. American Booksellers at 392-3. The Court further held that

“the alleged danger of the statute is, in large measure, one of self- censorship; a harm that can be realized even without a prosecution.”

American Booksellers at 393. Clearly, whether a Plaintiff has engaged in First Amendment activities in the past is not dispositive as to whether he presents an actual case or controversy that allows him to seek prospective relief from a federal court. Contrary to the position set forth by the Defendants in their Memo, the conduct of those charged with enforcement of the statute is often times more important than the conduct of the party challenging the statute, in light of the threat of self-censorship.

In Steffel v. Thompson, 415 U.S. 452 (1974), Guy Steffel and a companion participated in a campaign to distribute public education materials on behalf of the Atlanta Mobilization Committee, advocating United States disengagement from the Vietnam War. Steffel at 455-6. After being warned twice by police that continued dissemination of materials would subject them to prosecution, Steffel heeded the warnings and discontinued his leafletting. Steffel at 455. However, his companion from Atlanta Mobilization Committee continued distributing leaflets in violation of Georgia law and was arrested. Subsequently, Steffel, his companion, and the organization brought suit, seeking declaratory and injunctive relief on the grounds that the Georgia law at issue chilled the exercise of their First Amendment rights.⁷ The Supreme Court held that since Steffel’s concern with arrest had not been “chimerical,” he had presented an actual “case” or “controversy” to the Court. Steffel at 459-60. The portion of Younger dealing with the non-Younger Plaintiffs whose allegations of prosecutions were merely “imaginary or speculative,” Younger 401 U.S. at 41, was explicitly distinguished. Steffel at 459. In often quoted language, the Court found that in order to present a case or controversy warranting declaratory relief, it is not necessary for an individual to first expose himself to actual prosecution to be entitled to challenge a statute he claims deters the exercise of his constitutional rights:

“a refusal of the federal courts to intervene when no state proceeding is pending may place the hapless Plaintiff between the Scylla of intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to prevent becoming enmeshed in a criminal proceeding.”

Steffel at 459-62.

It should be noted that in considering BRF’s claim of deprivation of First Amendment freedoms, it does not bear a heavy burden of demonstrating a claim of specific present harm or a threat of specific future harm. Briggs v. Ohio Elections Commission, 61 F.3d 487, 492 (6^th Cir. 1995)(citing Laird); see also New Hampshire Right to Life, supra. Citing the Supreme Court’s decision in Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979), the Court in New Hampshire Right to Life described the burden on a Plaintiff seeking pre-enforcement review of a statute alleged to chill First Amendment rights as “quite forgiving.” New Hampshire Right to Life at 14.

In Babbitt, a case with clear parallels to the case at bar, the United Farmworkers Union brought suit on behalf of its members challenging portions of the Arizona Agricultural Employee Relations Act.⁸ Babbitt at 292-7. The provisions challenged included, inter alia, a provision that made it an unfair labor practice “to induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming, or using such agricultural product by the use of dishonest, untruthful, and deceptive publicity.” Babbitt at 301.⁹ The penalty provisions defined the scope of the statute as applying in a broad manner, like CUTPA, to any person who violated any provision of the Act. Babbitt at 302. The union alleged in its Complaint that it intended to engage in consumer publicity campaigns, and that although it did not intend to propagate untruths, erroneous statements are inevitable in free debate. Babbitt at 301 (citing New York Times v. Sullivan, 376 U.S. 254, 271 (1964)). The union further alleged that the statute chilled its First Amendment rights, in that in order to avoid prosecution under the statute, they would have to curtail its consumer appeals and thus forego the exercise of those First Amendment rights. Babbitt at 301. The Court held that even though the provisions had never been enforced, the union’s fear of prosecution under the allegedly unconstitutional statute was not “imaginary or wholly speculative,” since the State had not disavowed invoking the penalty provisions against the union. Thus, the union had presented an actual case or controversy. Babbitt at 301-3 (citing Steffel at 459).

Several Circuit Courts adhere to this view. For example, in Wilson v. Stocker, 819 F.2d 943 (10^th Cir. 1987), the Plaintiff was under investigation for violating an Oklahoma statute prohibiting the distribution of anonymous campaign literature. Before the formal charges were brought pursuant to the investigation, Plaintiff filed suit in federal court seeking a declaration that the statute violated the First Amendment and an injunction barring its enforcement against him.¹⁰ Stocker at 945. The Plaintiff alleged injuries of both threats of future prosecution, as well as the ongoing injury resulting from the statute’s chilling effect on his First Amendment rights. Stocker at 946. Although the government Defendants claimed that no case or controversy existed, the Court disagreed, holding that

“[W]e begin our analysis...by pointing out that the Supreme Court has often found a case or controversy between a Plaintiff challenging the constitutionality of a statute and an enforcement official who has made no attempt to prosecute the Plaintiff under the law at issue.”

Stocker at 946-7.¹¹

The Second Circuit has similarly not read Laird as broadly as the Defendants suggest in their Memo. In Davis v. Village Park II Realty Co., 578 F.2d. 461 (2d. Cir. 1978), the Court held that Laird does not stand for the proposition that chilling effect is not legally cognizable, but only that “the chilling effect alleged in that case was so remote and speculative that there was no case or controversy.” Davis at 463. The Court pointed out that the Laird opinion “went to considerable lengths to distinguish prior cases in which claims of chill had been recognized.” Davis at 463.

The First Circuit has similarly distinguished the holding Laird in Ozonoff v. Berzak, 744 F.2d. 224 (1^st Cir. 1984). In that case, a physician sought a declaration that the Executive Branch could not investigate his loyalty as a precondition to his employment with the World Health Organization, on the grounds that such an investigation impermissibly chilled his First Amendment rights. Ozonoff at 228. The government there claimed that Laird v. Tatum controlled the case on the grounds that the such a chilling effect did not meet the injury in fact requirement necessary to establish the existence of an actual case or controversy. Ozonoff at 229. The Court disagreed, holding that Laird had carefully distinguished several cases¹² that recognized claims of “chilling effect,” on the grounds that

“in each of those cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.”

Ozonoff at 229 (quoting Laird v. Tatum, 408 U.S. at 11). CUTPA and the sweepstakes regulation are similarly “regulatory, proscriptive, or compulsory in nature,” since they forbid all persons engaged in trade or commerce (as those terms are defined in Conn. Gen. Statutes §42- 110a)¹³ from engaging in “unfair and deceptive acts or practices,” as those terms are subsequently defined by the courts and the Commissioner of Consumer Protection. See Conn. Gen. Stat. §42- 110b.

The Ninth Circuit has similarly limited the reach of Laird. See The Presbyterian Church v. U.S., 870 F.2d 518 (9^th Cir. 1989). In that case, several churches alleged that agents of the Immigration and Naturalization Service surreptiously recorded church services, thereby “chilling” the churches’ First Amendment rights. The government argued that Laird controlled, but the Ninth Circuit disagreed:

“the churches in this case do not claim simply that INS surveillance has “chilled” them from holding worship services. Rather, they claim that the INS surveillance has chilled individual congregants from attending church services, and that this effect on the congregation has in turn interfered with the churches’ ability to carry out their ministries. The alleged effect on the churches is not a mere subjective chill on their worship activities; it is a concrete demonstrable decrease in attendance at those worship activities. The injury to the churches is “distinct and palpable.”

Presbyterian at 522 (citations omitted). That situation is analogous to BRF’s situation, as BRF alleges in the Amended Complaint that the existence of CUTPA and the sweepstakes regulation have prevented it from associating with residents of the State of Connecticut and from soliciting financial support from them. See Amended Complaint at paragraphs 25, 26, 27, 28, 30, 37, 44, 45, 47, 53, and 54. Moreover, as the Affidavit of Dane vonBreichenruchardt demonstrates, BRF has a specific plan to solicit the support of twelve specific potential contributors which has been thwarted by the very existence of CUTPA and the sweepstakes regulations. See Affidavit of Dane vonBreichenruchardt, attached hereto as Exhibit “D.”

The Defendants in their Memo assert that “[i]n order to allege a viable cause of action, a plaintiff “must make specific allegations that indicate a deprivation of constitutional rights; general, indirect and conclusory allegations are not sufficient.” Defendants’ Memo at page 15. The Amended Complaint does in fact contain specific allegations that CUTPA and the sweepstakes regulation have directly harmed BRF. BRF is clearly one of the persons at whom those regulations are aimed under American Booksellers, Babbitt, New Hampshire Right to Life, and Doe v. Bolton, supra. The Defendants have certainly not disavowed any intention to enforce CUTPA and the sweepstakes regulations against charitable speech, and to the contrary (as has been set forth in the Plaintiffs’ Application for Preliminary Injunction) the Defendants continue to enforce these provisions against charitable speech. The prosecution of the Children’s Charity Fund Corp. (about which the Defendants raise Younger abstention issues) is proof that the Defendants intend to continue enforcing these laws against charitable speech that BRF has alleged an intention in which to engage. Since BRF learned about the prosecution of Children’s Charity Fund Corp. through their common association with ACFRFR,¹⁴ BRF’s standing is clearly governed by the decision in Steffel, wherein the Plaintiff and his companion distributed leaflets on behalf of the same organization.

The Defendants’ claim that the allegations are “general” and “conclusory” (though not “wholly imaginative,” “speculative,” or “chimerical,” see Younger, Laird, and Steffel, supra) because the Amended Complaint “is devoid of allegations that BRF has solicited charitable contributions in Connecticut or any other state, or that it is registered in any state to do so...that it has mailed public education materials into Connecticut or any other state....or that it has conducted sweepstakes in Connecticut or any other state.” See Defendants’ Memo at page 16. Moreover, the Defendants also argue that BRF “has engaged in no conduct whatsoever which might conceivably come within the purview of an allegedly unconstitutional statute....” Defendants Memo at page 19. However, as the Supreme Court made clear in Steffel, BRF need not subject itself to prosecution before it is entitled to challenge the laws which it claims censor its activities. Steffel 415 U.S. at 459; see also American Booksellers Association, supra; and the cases cited in footnote 10, supra.

The Defendants also assert that the fact that BRF “has generated no revenue whatsoever” also proves that BRF has not suffered direct injury. However, the success of the Defendants’ censorship activities hardly constitutes proof that BRF has not suffered injury. On the contrary, the inability to raise money by soliciting charitable contributions is precisely the type of distinct and palpable injury which would be redressable by a favorable decision from this Court. BRF is a new charity which is afraid that even mere differences of opinion with state regulators could be labeled unfair trade practices under CUTPA, and so the fact that it has not begun soliciting in such an environment should not be held against it. See deposition transcript of Dane vonBreichenruchardt at pages 27-8.

The Defendants also point out that BRF has yet to receive a determination letter from the Internal Revenue Service that it will be exempt federal income taxation or be able to solicit tax deductible contributions. However, Connecticut law itself does not require BRF to be tax exempt under the Internal Revenue Code before it will be able to solicit in the state. Under Conn. Gen. Statutes §21a-190a, the term charitable organization is defined without reference to whether the organization is tax exempt under the Internal Revenue Code, but instead hinges the definition on the purpose the organization holds itself out to pursue. Nothing in the Connecticut registration laws require BRF to obtain a tax exemption before it can speak in the State. The Defendants’ mention of this fact is simply a red herring.

The Defendants attempt to distract this Court’s attention from their own enforcement activities by claiming that since BRF has not solicited contributions, there is no case or controversy. See pages 16-7 of the Defendants’ Memo. However, as was made abundantly clear in Steffel, BRF need not subject itself to prosecution before it can challenge CUTPA or the sweepstakes regulations. Steffel 415 U.S. at 459. As has been pointed out above, since BRF is one of the persons against whom these laws are directly aimed, and since BRF has firsthand knowledge of the prosecution under CUTPA of one its co-members of ACFRFR, BRF certainly has a credible fear of prosecution. That alone confers standing.

However, BRF has made additional allegations of direct injury that also support standing. As the Defendants acknowledge, the Amended Complaint alleges that BRF was unable to solicit contributions as a result of Connecticut’s web of regulation, which has resulted in the loss of contributions as well as potential supporters of the organization in Connecticut. Defendants’ Memo at page 16-7. In addition, BRF President Dane vonBreichenruchardt has testified under oath that there are several large gun manufacturers located in the State of Connecticut who he believes would be eager to support BRF’s fight for Second Amendment rights, but to whom he will not send solicitations for fear of prosecution under CUTPA. See deposition transcript of Dane vonBreichenruchardt at pages 19-20; and the Affidavit of Dane vonBreichenruchardt, both of which are attached hereto as Exhibits “C” and “D” respectively. Moreover, Mr. VonBreichenruchardt has testified that BRF would solicit the general public, including residents of the State of Connecticut, after BRF was able to solicit those twelve gun manufacturers. See Affidavit of Dane vonBreichenruchardt, attached hereto as Exhibit “D.” BRF has clearly alleged direct and palpable injury, separate and apart from the threatened prosecution injury. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984)(holding that charitable fundraiser’s refraining from entering contracts to solicit constituted actual economic injury for purposes of presenting actual case or controversy).

BRF clearly has a stake in the outcome of this litigation that will assure the “concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional issues. Defendants’ Memo at page 19.¹⁵ A favorable decision will allow it to proceed with its stated plans of soliciting support from residents of the State of Connecticut. Accordingly, BRF has standing to raise the constitutional claims asserted in the Amended Complaint.

THIS COURT SHOULD NOT ABSTAIN FROM HEARING THE PLAINTIFFS

FIRST AMENDMENT CLAIMS

Federal Courts have a virtually unflagging obligation to exercise jurisdiction given to them. New Orleans Public Service, Inc. v. New Orleans, 491 U.S. 350, 358 (1989). Courts have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. Cohens v. Virginia, 6 Wheat 264, 404 (1821). As the Supreme Court held in Colorado River Water Conservation District v. U.S., 424 U.S. 800, 813 (1976),

‘[a]bstention from the exercise of federal jurisdiction is the exception, not the rule. ‘The doctrine of abstention, under which a District court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.”

The Defendants have not shown the existence of the “exceptional circumstances” necessary for this Court to surrender its jurisdiction in this matter under this “extraordinary and narrow exception.” Accordingly, the Defendants Motion to Dismiss on Abstention grounds should be denied.

Neither Younger Abstention nor Rooker-Feldman¹⁶
warrants the surrender of jurisdiction by this Court

The Defendants correctly identify the test for whether a federal Court should abstain under the Younger doctrine: (1) the plaintiff must be involved in an ongoing state proceeding; (2) the ongoing state proceeding must implicate an important state interest; (3) the injunctive and declaratory relief sought by the plaintiff in the federal suit would interfere with that proceeding; and (4) the constitutional claims asserted by the plaintiff in the federal action can be raised in the state court proceeding. Defendants’ Memo at page 21. As will be set forth below, the Defendants have not set forth the “exceptional circumstances” under any prong of this test necessary for the narrow doctrine of abstention under Younger to apply. Colorado River Water Conservation District v. U.S., 424 U.S. 800, 813 (1976). Accordingly, the Defendants’ Motion to Dismiss on Younger grounds must be denied.

1. There is no ongoing state proceeding

As the Defendants’ correctly point out, they have been prosecuting one of ACFRFR’s former members, the Children’s Charity Fund Corp. (“CCF”) for alleged violations of CUTPA since approximately February 28, 1996, when it sued CCF in state court. Defendants’ Memo at page 4. The Defendants assert that

‘[b]ecause the interests of CCF, the Defendant in the state court proceeding, are closely related to those of American Charities,¹⁷ this Court should apply the Younger abstention doctrine and dismiss the claims set forth in the First Cause of Action.”

Defendants’ Memo at page 23. However, the mere fact that the same legal issues are being litigated in state court does not provide a basis for a federal court to abstain under Younger, unless the same parties are litigating those issues. As CCF has resigned its membership with ACFRFR and at no point has exerted any control whatsoever over ACFRFR, there can be no confusion about the parties: they are not the same.

This point was made clear by the Supreme Court in Steffel v. Thompson, 415 U.S. 452 (1974). In that case, Plaintiff Steffel and his companion distributed public education materials in a shopping center on behalf of the Atlanta Mobilization Committee protesting American involvement in the Vietnam War. Steffel at 455-456. On two occasions, Steffel and his companion were warned by police that unless they discontinued their distribution of public education materials, they would be arrested for violating an applicable Georgia statute. Steffel at 454-456. After being warned the first time, Steffel and his companion ceased distributing the public education materials and left the shopping center. Steffel at 455. Upon being warned on the second occasion, Steffel departed the shopping center, but his companion continued distributing the materials and was arrested by police. Steffel at 455-6. While his companion’s prosecution was pending, Steffel commenced an action in federal court seeking a declaration that the Georgia statute was unconstitutional under the First and Fourteenth Amendments. Steffel at 454-5. In spite of the fact that Steffel and his companion were engaged in the same First Amendment activities on behalf of the same organization, and thus the issues presented to the state court in the prosecution of Steffel’s companion were identical to the ones presented by Steffel to the federal court, the Supreme Court held that Younger did not apply to Steffel’s federal court case. Steffel at 459-75. Under Steffel, the pending action against CCF in state court does not bar ACFRFR’s suit in a federal court.

The Defendants claim, however, that “[t]he United States Supreme Court has determined that ‘there plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any one of them.....’” Defendants’ Memo at 23 (citing Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)). However, the Defendants misconstrue the types of “common interests” which the Court has held trigger Younger principles.

In the Doran case cited by the Defendants, three corporations filed suit in federal court seeking a declaration that a local ordinance prohibiting topless dancing, which all three corporations had provided as entertainment in their bars, violated their First and Fourteenth Amendment speech rights. Doran at 924. The day after the three corporations filed their complaint, one of them resumed the activities which were prohibited by the ordinance. Doran at 925. On that day and each of the succeeding three days, the corporation that had resumed topless dancing activities was served with criminal summonses for violating the ordinance. Doran at 925. The enforcers of the ordinance, who were the Defendants in the federal action, argued that the Court should refuse to exercise jurisdiction as to all three plaintiffs under Younger, on the grounds that a criminal prosecution was pending against one of them in state court. Doran at 925. The Supreme Court disagreed, holding that each of the three plaintiffs had to be considered separately for purposes of Younger. In so holding, the full quote of the Court that the Defendants incompletely cited, see supra, bears repeating:

‘[w]hile there plainly may be some circumstances in which legally distinct parties are so closely related that they should all be subject to the Younger considerations which govern any one of them, this is not such a case; –while respondents are represented by common counsel, and have similar business activities and problems, they are apparently unrelated in terms of ownership, control, and management. We thus think that each of the respondents should be placed in the position required by our cases as if the respondent stood alone.”

Doran at 928-9. The Defendants present no argument or evidence that CCF and ACFRFR are related in terms of ownership, control, or management; indeed, the Defendants did not even ask such questions during the deposition of Ken Bowron, the Executive Director of CCF, or during the deposition of Rita Smith, President of ACFRFR. Instead, the Defendants argue that

(1) “CCF is represented in the state court proceedings by the same law firm, Perlman and Perlman, which represents the Plaintiffs in this federal action,”¹⁸ Defendants Memo at page 26; and
(2) CCF and ACFRFR have similar business activities and problems, namely that “American charities and CCF each claim to be a charitable organization. Each claims that the application of CUTPA to charitable speech chills the First Amendment rights of charities and professional solicitors. There can be no doubt that the First Amendment claims asserted by the Plaintiff in this action, and by CCF in the pending state court proceedings, will be vigorously advocated by CCF.”¹⁹

Defendants’ Memo at pages 26-7. Such arguments fly in the face of the holding in Doran.

Hicks v. Miranda, 422 U.S. 332 (1975), relied upon by the Defendants in their brief, does not save their position. In Hicks, a theater owner, his property holding company, and theater corporation all brought suit in federal court after police had seized four copies of an allegedly obscene film that had allegedly been shown in the theater in violation of the California obscenity statute. Hicks at 334-5. Two employees of the theater were charged with criminally violating the statute. Hicks at 335. During that state criminal proceeding, the future plaintiffs in the federal suit were ordered by the court to show cause as to why the films seized were not obscene. Hicks at 335. The future plaintiffs appeared, and upon viewing the film the court found it to be obscene, an order from which no appeal was taken. Hicks at 335-6. Rather than appealing that judgment, the would be federal plaintiffs sought to interfere with the pending state prosecution by filing the federal action. Hicks at 318. One day after the federal plaintiffs completed service of process, they themselves were named as criminal defendants in the state court action. Hicks at 339 and 349. The Supreme Court held that Younger principles precluded the federal court from hearing the suit on two separate grounds. First, the federal plaintiffs had more than the “common interest” that the Defendants herein allege exists between ACFRFR and CCF: the Court found that the interests of the federal plaintiffs in Hicks and their state defendant counterparts were intertwined, and that the federal plaintiffs had a substantial stake in the state court proceedings.²⁰ Second, the Court found dispositive the fact that the federal plaintiffs were added as defendants to the state court proceeding on the day after they completed service of their federal complaint:

‘”we now hold that where state criminal proceedings are begun against federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force.”

Hicks at 349. Thus, contrary to the Defendants implication in their Memo, Hicks is not analogous to the instant case.²¹

All of the other cases cited by the Defendants are similarly distinguishable on the grounds that they all involved federal plaintiffs whose interests were more than just “common” to those of state court defendants, but rather were “intertwined” with them as mandated by Hicks. For example, in Obeda v. Connecticut Board of Registration for Professional Engineers and Land Surveyors, 570 F.Supp. 1007 (D.Conn. 1983), the court held that the corporate federal plaintiff “may be treated as a sort of alter ego to [the 95% owner and president of the corporate federal plaintiff, who was the defendant in the state court proceeding] for Younger abstention purposes.” Obeda at 1012 fn.5. The Court also noted that the federal plaintiff “would be bound as privy to [the state court defendant] under principles of res judicata.” Id. That is simply not the case here, as ACFRFR clearly will not be bound by principles of res judicata once the Defendants have completed their prosecution of CCF. Waiting until resolution of CCF’s case will not resolve ACFRFR’s legal rights; rather, it will merely serve to extend the period during which the Defendants may censor the First Amendment activities of ACFRFR’s members.

2. The state proceeding does not involve an important state interest

Nowhere is it more clear that the Defendants’ actions warrant the intervention of a federal court than their claim that the state court proceeding involves an important state interest. The Defendants assert that “the United States Supreme Court has long recognized that the regulation of trade or commerce is a fundamental and traditional area of state activity....Accordingly, the Supreme Court, and federal courts generally, have routinely held that the regulation of business conduct is a sufficiently important state interest to justify the invocation of Younger abstention.” Defendants’ Memo at page 28 (citations omitted). The Amended Complaint raises no issue as to the Defendants power to enforce a law aimed at trade or commerce. Instead, it alleges that the state may not label First Amendment activities as “trade or commerce” for the purpose of regulating them under the more lenient standards applied to economic regulations, thereby avoiding the greater judicial protections afforded First Amendment activities.

Curiously absent from the Defendants’ Memo is any authority for the proposition that First Amendment activities constituted trade or commerce under the common law. Indeed, there is Supreme Court authority to the contrary. In Murdock v. Pennsylvania, 319 U.S. 105 (1943), the court ruled that a license tax generally imposed upon commercial entities could not be imposed upon religious colporteurs as a condition of the pursuit of their activities, which included solicitations for funds. Murdock at 110. The Court held that “the constitutional rights of those spreading their religious beliefs through the spoken and printed word are not to be gauged by standards governing retailers or wholesalers of books...The right to use the press for expressing one’s view is not to be measured by the protection afforded commercial handbills.” Murdock at 111. The Court then went on to say that

‘[the] license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality of treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in a preferred position.”

Murdock at 115 (emphasis added). See also Dedication and Everlasting Love to Animals v. The Human Society of the United States of America, Inc., 50 F.3d 710 (9^th Cir. 1995)(holding that solicitations for public support by a nonprofit are not “trade” or “commerce” under the Sherman Antitrust Act since they do not constitute trade or commerce in the sense of the common law).

The Defendants’ admission that their interest in the instant matter is to regulate First Amendment activities in the same manner that they regulate ordinary business conduct not only vitiates their claim as to the appropriateness of Younger abstention, but also demonstrates that the Plaintiffs have a likelihood of succeeding on the merits of their claims for the purpose of this Court’s consideration of the Application for Preliminary Injunction.

3. The relief sought in the federal action will not interfere with the state action

The mere fact that a declaration of unconstitutionality by this federal court may affect other cases involving similar issues in the state courts is not, by itself, interference with state court proceedings for purposes of Younger abstention. Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994). In holding that abstention did not preclude the plaintiff from bringing his claims, the Court held that

“[s]ince parallel proceedings always involve a likelihood that a final judgment in one will effectively terminate the other, it necessarily follows that the mere fact that a judgment in the federal suit might have collateral effects in the state proceeding is not interference for Younger purposes.”

Marks at 877. Unless the Defendants can show that there is some special relationship between CCF and the Plaintiffs herein, the fact that a declaration of unconstitutionality of CUTPA and the sweepstakes regulations by this Court may help CCF protect itself from the Defendants’ censorship activities is not a bar to this Court exercising jurisdiction. Indeed, it is plenty good reason for this Court to exercise jurisdiction and protect the First Amendment from the Defendants’ attacks.

4. The constitutional claims may never be heard by the state court

As was pointed out supra, the state court’s Memorandum of Decision on Motion to Strike held that “[the state’s] allegation is sufficient to allow the inference that [CCF] is in reality not engaged in charity but rather is engaging in trade or commerce.” See Memorandum of Decision on Motion to Strike at page 1, which is attached to the Defendants’ Memo as Exhibit “F.” The Defendants themselves do not concede that CCF’s activities are charitable speech, characterizing them as “what CCF claims to be charitable speech.” Defendants’ Memo at page 29. Accordingly, it is not clear at all that the claim that the Defendants’ enforcement of CUTPA and the sweepstakes regulations violate the First Amendment speech rights of charitable speakers will be adjudicated by the state court. If that were to happen after this Court abstains from hearing the Plaintiffs’ claims, the Defendants would be free to continue their censorial activities without ever having them reviewed by any court, state or federal. Such an outcome is certainly not consistent with Younger.

In addition, the Amended Complaint raises additional issues not before the state court in the Defendants’ prosecution of CCF. In particular, the sweepstakes regulations challenged in the Amended Complaint are not before the state trial court. If this Court abstains from deciding them, they will simply go undecided.

5. Conclusion

It is clear that Younger does not bar the Plaintiffs’ action. Accordingly, this Court should deny Defendants’ motion to abstain on Younger grounds.²²

This Court should not abstain under the Pullman doctrine

Abstention under Railroad Commission of Texas v. Pulllman Co., 312 U.S. 466 (1941) is another exception to the principle that a federal court with subject matter jurisdiction over federal questions must not abdicate that jurisdiction, and thus applies only in narrowly limited special circumstances. Zwickler v. Koota, 389 U.S. 241, 248 (1967). Pullman Abstention may be appropriate when there is an unclear state law which is susceptible to a narrowing construction by a state court that would moot or alter the federal constitutional issue raised in federal court. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 306 (1979). If the state law is unambiguous, abstention under Pullman is not appropriate. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236-7 (1984). In addition, while abstention is generally a very narrow doctrine that requires “extraordinary circumstances” before it may be invoked, see Colorado River Water and Conservation District v. U.S., 424 U.S. 800, 813 (1976), it is particularly inappropriate for cases where statutes are justifiably attacked on their face as abridging free expression. City of Houston v. Hill, 482 U.S. 451, 467 (1987). Since there is no ambiguity as to the scope of CUTPA, Pullman abstention is not appropriate in the Plaintiffs attack on its chilling effects on their First Amendment activities.

In Zwickler, the plaintiff sued in federal court seeking a declaration that a section of the New York Penal Law which made it illegal to distribute anonymous campaign literature violated the First Amendment, and an injunction barring its enforcement. Zwickler at 242-3. In denying the state regulator’s request for Pullman abstention, the Court held that “abstention is not to be ordered unless the state statute is of an uncertain nature, and is obviously susceptible of a limiting construction.” Zwickler at 251, fn.14 (citations omitted). The Court also held that

“Congress [has] imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States’....[A]bstention cannot be ordered simply to give the state courts the first opportunity to vindicate the federal claim.”

Zwickler at 248-51. These principles have particular significance when the state law is challenged on its face as violating the First Amendment, since to force such a plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very right sought to be protected. Zwickler at 252.

In City of Houston v. Hill, 482 U.S. 451 (1987), Plaintiff sought a declaration that a municipal ordinance regulating speech made to a police officer was unconstitutionally vague and overbroad under the First Amendment. Hill at 453-4. Just as in the instant case, the Defendants in Hill sought to invoke Pullman abstention on the grounds that the state’s courts had not had the opportunity to construe the statute. Hill at 469-70. The Court refused to abstain, holding that when a statute is unambiguous, there is no need for a federal court to abstain even if no state court has ever interpreted the challenged provisions. Hill at 469. Furthermore, in what is a direct parallel to the case at bar, the Supreme Court rejected the defendants’ claim that the state courts had not had an opportunity to construe the constitutionally infirm language:

“in any event, the city’s claim that the state courts have not had an opportunity to construe the statute is misleading. Only the state appellate courts appear to have lacked this opportunity. It is undisputed that Houston’s Municipal Courts, which have been courts of record in Texas since 1976, have had numerous opportunities to narrow the scope of the ordinance. There is no evidence that they have done so. In fact, the city’s primary position throughout this litigation has been ‘to insis[t] on the validity of the ordinance as literally read....’ Thus, where municipal courts have regularly applied an unambiguous ordinance, there is certainly no need for a federal court to abstain until the state appellate courts have an opportunity to construe it.”

Hill at 470. As was pointed out in the Plaintiffs’ Application for Preliminary Injunction, numerous lower courts have held that the Defendants may apply CUTPA to charitable speech activities. See pages 24-7 in the Application for Preliminary Injunction. Indeed, the definition of the scope of CUTPA which lower courts have held includes charitable solicitations is not ambiguous.²³ The Defendants have not demonstrated that the statute is ambiguous for Pullman purposes, and in any event the state courts have declined to put a special gloss on the Defendants’ otherwise sweeping regulatory apparatus in the context of charitable speech.

The mere fact that state courts might adjudicate the federal constitutional claim is an insufficient ground for invoking Pullman abstention. In Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 237 (1984), plaintiff-landlords sought a declaration that the Hawaiian Land Reform Act of 1967, which allowed certain tenants to petition the Housing Authority for condemnation of their landlord’s land for redistribution to the tenants. Hawaii Housing Authority at 232-5. The Housing Authority argued that abstention under Pullman was proper in light of the possibility that state courts might make resolution of the federal constitutional claims moot. Hawaii Housing Authority at 237. The Supreme Court disagreed, holding that the bare though unlikely possibility that state courts might make adjudication of the federal question unnecessary could not make Pullman abstention appropriate in light of the fact that the statute was not unclear and was not “obviously susceptible to a limiting construction.” Hawaii Housing Authority at 237.

The Defendants have not suggested a limiting construction on the offending language about which the Plaintiffs complain that would avoid or substantially modify the constitutional challenge raised by the Plaintiffs. They do not assert that CUTPA or the sweepstakes regulations are ambiguous.²⁴ Indeed, as the Plaintiffs made clear in their application for Preliminary Injunction, the Defendants believe that the language of CUTPA unambiguously includes charitable solicitations. See Plaintiffs’ Application for Preliminary Injunction at pages 24-7, and particularly the cases cited in footnote 18. Rather than pointing to ambiguities and suggesting narrowing constructions that a state court might provide to save the challenged laws, the Defendants instead argue merely that the Connecticut courts should have an opportunity to decide these issues before this court does. That is not what the Pullman doctrine contemplates. See e.g., Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971)(holding that “abstention should not be ordered merely to await an attempt to vindicate the claim in state court”); see also Zwickler, supra at 251.

Finally, it should be noted that even if this Court believes that this case presents issues which otherwise would warrant abstention under Pullman, the Supreme Court has held that, where available, certification to the state’s highest court of unclear questions is preferable to the more “cumbersome and problematic abstention doctrine.” American Booksellers Association v. Virginia, 484 U.S. 383, 395-6 (1988)(citing Bellotti v. Baird, 428 U.S. 132 (1976)). The Second Circuit has followed that rule. See Dorman v. Satti, 862 F.2d 432 (2d. Cir. 1988); and Griffin Hospital v. Commission on Hospitals and Health Care, 782 F.2d 24, 25-6 (2d. Cir. 1986)(holding that Pullman abstention places heavy burdens on plaintiffs which can be ameliorated by use of the state’s certification procedure where available).²⁵ Connecticut has such a certification procedure in place. See Conn. Gen. Statutes §51-199a. Accordingly, if this Court believes that the Defendants have pointed to ambiguities in the state law which are susceptible to a narrowing construction that would obviate the constitutional issues presented, this Court should certify such questions to the Connecticut Supreme Court rather than invoking the Pullman abstention doctrine.

CONCLUSION

For all of the foregoing reasons, the Defendants’ Motion to Dismiss should be denied in its entirety.

PLAINTIFFS
AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC. and THE BILL OF RIGHTS FOUNDATION, INC.

By ______________________________
Clifford Perlman
Federal Bar No. CT19078
Perlman & Perlman, Esqs.
220 Fifth Avenue, 7^th Floor
New York, New York 10001
Telephone: (212) 889-0575
Facsimile: (212) 889-5228

RICHARD C. ROBINSON
Federal Bar No. CT04321
Sorokin, Gross & Hyde, P.C.
One Corporate Center
Hartford, CT 06103
Telephone: (860) 525-6645
Facsimile: (860) 525-9099

CERTIFICATION

I hereby certify that a true copy of the foregoing has been mailed, postage prepaid, this 26^th day of September, 1998 to:

David Ormstedt, Esquire
Holly Jean Bray, Esquire
Assistant Attorneys General
P.O. Box 120
Hartford, CT 06141-0120
Telephone: (860) 808-5020

³ The Plaintiffs respectfully refer the Court’s attention to the Application for Preliminary Injunction, which is hereby incorporated by reference herein, at pages 3 to 7.

⁴ ACFRFR has properly alleged that at least one of its members has sustained injury, and asserts that allegation to be sufficient to survive the instant motion to dismiss. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996)(holding that a complaint may not be dismissed if there are any facts set forth in it which would support a cause of action)(emphasis added). ACFRFR is willing to name co-Plaintiff BRF as a member upon whom the association bases its standing, and further maintains that it has other members who also would have standing to bring claims against the Defendants whose names ACFRFR would be willing to reveal to this Court for in camera review. Under the third prong of the Hunt test for associational standing, the separate identities of ACFRFR’s members cannot be relevant to its standing inquiry, since the individual participation of the members cannot be necessary for the claim to go forward. BRF’s standing to maintain suit is discussed infra at pages 11-24.

⁵ The lower court opinion in League of Women Voters is not published, and the Second Circuit opinion indicates that the jurisdictional issue was not decided by the district court. See League of Women Voters at 160, fn. 11. The Second Circuit only held that an association may not assert a Civil Rights claim under 28 U.S.C. §1343, and made no reference whatsoever to whether the association could assert the claim under 28 U.S.C. §1331. See League of Women Voters at 160. Although it is not certain beyond doubt, it is likely that general federal question jurisdiction under 28 U.S.C. §1331 was never raised, since all parties probably agreed that the $10,000.00 minimum amount in controversy requirement could not be met by the association.

⁶ In the event the Court disagrees and finds that based on the information provided ACFRFR lacks standing, the Plaintiffs respectfully request the Court to allow affidavits or testimony of other members of ACFRFR be submitted for in camera review by this Court. Without assurances that these witnesses will not be identified, the witnesses will not come forward. Authority for such review can be found in the NAACP v. Alabama case, 357 U.S. 449 (1957), in which the Court held that the members’ First Amendment right of association would be violated at the moment a court forced them to come forward and identify themselves. Such in camera review would be similar, for example, to Family Courts’ confidential interviews of children in family rights disputes. In those cases, children are interviewed by the Court privately without attorneys or parents present, so that the children may testify without fear of reprisal from either parent. See, e.g. Lincoln v. Lincoln, 24 N.Y.2d 270 (1969). ACFRFR submits that the circumstances of the instant case warrant similar treatment, in light of the fact that its members fear the reprisals of government regulators in Connecticut as well as other states if they are forced to reveal themselves publicly.

⁷ Only Steffel pressed an appeal from the district court’s dismissal of the complaint. Steffel at 456 fn.5.

⁸ In addition to the union, a union agent, certain farmworkers, and a union supporter were also Plaintiffs in the case. The Court found that union had standing to present the claims, and did not pass one way or the other on whether any of the other Plaintiffs had standing. See Babbitt at 299 fn.11.

⁹ The Plaintiffs in Babbitt also challenged provisions regulating election procedures, criminal sanctions, access provisions, and a compulsory arbitration procedure. A case or controversy was found as to all allegations except for the access provisions and the compulsory arbitration provisions. Babbitt at 297-305.

¹⁰ The Plaintiff had been arrested and detained on a prior occasion by the police in connection with the matter, but the investigation was still underway and no formal charges had been filed at the time the Plaintiff filed suit.

¹¹ See also United Food & Commercial Workers & International Union v. IBP, Inc., 857 F.2d. 422 (8^th Cir. 1988)(holding that “where the enforcement of a regulatory statute would cause the Plaintiff to sustain a direct injury, the action may be maintained whether or not the public officer has ‘threatened’ suit; the presence of the statute is threat enough, at least where the challenged statute is not moribund”); Mobil Oil v. Attorney General of Virginia, 940 F.2d 73 (4^th Cir. 1991)(holding that suit by a person aggrieved by a law he considers unconstitutional against the arm of the state entrusted with the enforcement power, is precisely one for which the Declaratory Judgment Act was designed); KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922 (5^th Cir. 1983)(holding that where the state does not disavow enforcing an allegedly unconstitutionally statute against party challenging it, case or controversy is requirement is satisfied).

¹² See e.g., Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Lamont v. Postmaster General, 381 U.S. 301 (1965); and Baggett v. Bullitt, 377 U.S. 360 (1964).

¹³ As was set forth in the Plaintiffs’ Application for Preliminary Injunction, the definitions of the terms “trade” and “commerce” set forth in §42-110b are much broader than the common definitions of those terms in ordinary English usage.

¹⁴ As the Defendants correctly point out, CCF is no longer a member of ACFRFR. However, that does not change the fact that BRF’s fear of prosecution as a result of what it saw happen to Children’s Charity Corp. is not imaginary or speculative under Laird and Younger.

¹⁵ The Defendants also amorphously assert that BRF lacks standing separate and apart from issues raised in Laird which warrants this Court to decline to grant equitable relief under the Declaratory Judgment Act. Since BRF is asserting its own rights as opposed to a third party’s rights, so long as BRF has properly alleged a case or controversy, there are no prudential reasons for dismissing BRF’s Complaint, especially in light of the fact that a federal court has a virtually “unflagging obligation to exercise jurisdiction given [it].” See Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976).

¹⁶ As the Defendants point out in their Memo, the Rooker-Feldman doctrine bars federal court review of state court judgments except by the Supreme Court itself on direct review. The Defendants argue on page 33 of their Memo that “CCF is seeking, through this action, federal court review of claims which it unsuccessfully asserted before the Connecticut state court.” The argument that CCF can be equated with ACFRFR for purposes of the Rooker-Feldman issue is identical to whether CCF can be equated with ACFRFR for Younger purposes as well. Accordingly, the Plaintiffs’s arguments against there being an ongoing state proceeding for Younger purposes are in opposition to the Defendants arguments on Rooker-Feldman as well.

¹⁷ The Defendants’ Memo seeks Younger abstention only against ACFRFR; no mention or argument is made as to the appropriateness of Younger abstention as to BRF. Consequently, even if this Court finds Younger abstention appropriate as to ACFRFR, the Amended Complaint should go forward as to BRF.

Moreover, even if the Defendants’ Memo sought abstention under Younger as to BRF, the arguments counseling against such abstention with regard to ACFRFR apply with even more force to BRF.

¹⁸ The Ninth Circuit described the relevance of this factor alone in a recent case:

“No court has ever granted Younger abstention because a party’s attorney was also participating in a state proceeding. To the contrary, Younger is closely circumscribed to parties actually involved in state litigation; even the presence of co-plaintiffs representing identical interests in state proceedings does not extend Younger to parties not actually involved in those proceedings.”

Benavidez v. Eu, 34 F.3d 825, 832 (9^th Cir. 1994)(citing Doran).

¹⁹ It should be noted that even under the erroneous “common interest” standard set forth by the Defendants in their Memo, CCF and ACFRFR do not make identical claims. For example, the sweepstakes rules of which ACFRFR complains are not at all implicated in CCF’s state court action. Moreover, the decision on CCF’s Motion to Strike the state court proceeding, which the Defendants attach as Exhibit “F” to their Memo, held that “[the plaintiff’s] allegation is sufficient to allow the inference that [CCF] is in reality not engaged in charity but rather is engaging in trade or commerce.” See page 1 of the Memorandum of Decision on Motion to Strike. Accordingly, there is no guarantee “that the interests of American Charities in advocating the First Amendment rights of charitable speakers will be adequately advocated by CCF in the state court proceeding against it,” as the Defendants’ assert on page 27 of their Memo. This language from the Memorandum of Decision indicates that if ACFRFR is not allowed to litigate these claims in federal court, they may never be litigated at all.

²⁰ The Defendants do not suggest, nor is there any legal authority to support the notion, that ACFRFR’s interest is “intertwined” with CCF’s interest. There is nothing in the Defendants’ Memo that suggests that ACFRFR will be bound by the principles or res judicata or collateral estoppel upon the completion of their prosecution of CCF. Nor do they suggest that ACFRFR could have a right to intervene in the state court action under Title 52 of the Connecticut General Statutes.

²¹ Indeed, if the Defendants’ interpretation of Hicks were correct, it would turn the rule that abstention is a “narrow exception” that may be invoked only under the most “extraordinary circumstances” completely on its head and would instead make abstention the norm. All the Defendants would have to do to insulate their censorship activities from federal court review would be to continue enforcing their unconstitutional law against First Amendment activities, and all those having a common interest in seeing the law invalidated would be prevented from seeking declaratory relief in federal court.

²² Even if this Court were to find that CCF’s prior membership in ACFRFR precluded ACFRFR from bringing the instant action, the Plaintiffs suggest that the Court follow the lead of the Court in Cornwell v. California Board of Barbering and Cosmetology, 962 F.Supp. 1260, 1269 (S.D.Ca. 1997). In that case, an association brought suit on behalf of its members under 42 §1983 seeking a declaration that California’s Barbering and Cosmetology Act was unconstitutional as applied to African Hair styling. One of the association’s members was involved in a state administrative proceeding under the Act involving the same issues. The Court noted that applying Younger in such a situation seemed inconsistent with Doran and Steffel, and also would likely operate to bar associations from seeking relief in federal court contrary to Supreme Court rulings that a federal forum must be available for those threatened with violations of federally protected rights and not presently parties to state court proceedings. Cornwell at 1270 fn.5. The Court ultimately dismissed the association’s complaint, but only because the relief sought was not properly limited to those members without pending state court proceedings. The Court further granted the association leave to amend its complaint so as to seek relief only on behalf of those members without pending state court proceedings. Cornwell at 1271. In the event that this Court finds Younger applicable due to CCF’s prior membership, the ACFRFR suggests that the proper course for this Court would be to grant leave for ACFRFR to file a Second Amended Complaint on behalf of those members not presently involved in pending state court proceedings involving CUTPA. However, the Plaintiffs maintain that such a course is not necessary, due to the fact that CCF has resigned its membership with ACFRFR and thus is no longer represented by ACFRFR. Moreover, Rita Smith has testified that no members of ACFRFR have pending state court actions involving CUTPA. See Rita Smith deposition at pages 41-2, attached hereto as Exhibit “A.”

²³ CUTPA and the sweepstakes regulations purport to regulate only “trade” or “commerce.” See Conn. Gen. Statutes §42-110b(a). Those terms are defined in §42-110a(4) as including “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value in this state” (emphasis added). The Defendants have argued, and the lower courts have agreed, that charitable solicitations fall within the scope of CUTPA, since such solicitations “advertise the availability of charitable services, both tangible and intangible,” and because charities “distribute property in the state of Connecticut.” See Plaintiffs’ Application for Preliminary Injunction at page 26. The Defendants have never sought any limiting construction to this language, nor have they sought narrowing constructions for the applicability of CUTPA to charitable speech in any context. Even in their Memo, they argue that there is no need for a narrowing construction of CUTPA, since they are only regulating “economic activities.” See Defendants’ Memo at pages 28-9.

²⁴ The Defendants misleadingly imply that the Amended Complaint raises only vagueness claims, but ignore the fact that each vagueness claim is intertwined with overbreadth challenges. As the Supreme Court held in Zwickler, supra, challenges of overbreadth are particularly inappropriate candidates for Pullman abstention, since they do not present questions relating to ambiguity of the statute but rather they raise questions which go to the statute’s legitimate sweep. Zwickler at 249-50.

²⁵ Abstention under Pullman would pose particularly heavy burdens on the Plaintiffs in this case. ACFRFR, its member charities, and BRF are all charitable organizations which may not be operated for profit. To force them to expend their limited resources going into state court and starting a new action would be particularly harsh given the limited resources available to most charitable organizations (particularly BRF, which has been completely thwarted from raising funds at all by fear of running afoul of these laws). Such an outcome may very well amount to justice being denied, not delayed.