Hearing is Set For: April 5, 2019 Time: 9:00 AM Judge: Hon. James Dixon SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY STATE OF WASHINGTON, No. 17-2-01546-34 Plaintiff, vs. MOTION TO FILE AMICUS BRIEF ON TIM EYMAN, et al., BEHALF OF INSTITUTE FOR FREE SPEECH AND MOTION TO SHORTEN Defendant. TIME I. RELIEF REQUESTED COMES NOW, The Institute for Free Speech by and through its Attorney of Record, The Law Of?ce of Nicholas Power, and respectfully requests pursuant to CR 7(b) that this honorable court grant leave to ?le the Institute?s Appended Brief and allow the Institute to advise the court on the novel First Amendment issues presented in this matter. Furthermore, as no prejudice would result from hearing this motion and the arguments contained in the attached brief on a shortened schedule, the Institute further requests that its Motion to Shorten Time be granted and that it be allowed to address the Court during the LAW OFFICE OF NICHOLAS POWER 540 Guard St. Suite 150 Friday Harbor, WA 98250 Motion for Leave to File Amicus Brief 360.298.0464 And Motion to Shorten Time- 1 nickedpower@gmail.com hearing on Mr. Eyman?s Motion for Partial Summary Judgment now set for April 5 at 9:00 AM. II. APPLICABLE LAW It is within the discretion of the Court to allow amicus participation if it may be helpful to the Court. Parsons v. Dep ?t of Soc. Health Servs., 118 P.3d 930, 934 (Div. I, 2005) (explaining, speci?c rule permits amicus participation in the trial court, but neither is there any rule prohibiting it. We can see no reason a trial judge should not have discretion to permit such participation if it may be helpful to the court?) STATEMENT OF FACTS The Institute was founded in 2005 as a nonpro?t then named the Center for Competitive Politics. Its core mission is to promote and defend the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment. The Institute is a nationally recognized advocate for free speech issues and works with government of?cials to craft laws that expand free political speech rights consistent with the Constitution. In addition, the Institute actively educates the public, legislators, organizations, and the media to enable every American to understand the importance of the First Amendment?s political speech freedoms. The Institute has a history of ?ling amicus briefs on First Amendment matters in state and federal courts. The Institute wishes to advise the Court with its view as to the illegality of the State?s proposed remedy in this matter and offer its views on how such a remedy, if implemented would erode the core principles of free speech and political participation. LAW OFFICE OF NICHOLAS POWER 540 Guard St. Suite ISO Friday Harbor, WA 98250 Motion for Leave to File Amicus Brief 360.298.0464 And Motion to Shorten Time- 2 nickedpower@gmail.com Accordingly, The Institute prays for leave to ?le the Brief Attached as Appendix A to this Motion and to be granted leave to present its argument during oral arguments during the hearing noted for April 5, 2019 at 9:00 AM. DATED this 29'h Day of March 2019. THE LAW OFFICE OF NICHOLAS POWER By: Nicholas PowerszB'A #45974 540 Guard St., Suite 150 Friday Habor, WA 98250 360.298.0464 LAW OFFICE OF NICHOLAS POWER 540 Guard St. Suite 150 Friday Harbor, WA 98250 Motion for Leave to File Amicus Brief 360.298.0464 And Motion to Shorten Time? 3 nickedpower@gmail.com Motion for Leave to File Amicus Brief And Motion to Shorten Time- 4 Appendix A LAW OFFICE OF NICHOLAS POWER 540 Guard St. Suite 150 Friday Harbor, WA 98250 360.298.0464 nickedpower@gmail.com Hearing Set IHearing is Set Date: Friday, April 5, 2019 Time: 9:00 am. Judge James J. Dixon STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT STATE OF WASHINGTON Case No. 17-2-01546-34 Plaintiff, AMIC US URIAE BRIEF OF THE INSTITUTE FOR FREE SPEECH IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT v. TIM EYMAN, et al., Defendant. INTEREST OF AMICUS CURIAE Founded in 2005, the Institute for Free Speech is a nonpartisan, nonpro?t organization that works to protect and defend the rights to free speech, assembly, press, and petition. Mr. Eyman?s case, in which he is unrepresented by counsel, presents a novel question of First Amendment law: whether the right to ?nancially manage a political organization may be permanently revoked by the State based upon its assessment of a person?s trustworthiness. INTRODUCTION ?There is no right more basic in our democracy than the right to participate in electing our political leaders,? McCutcheon v. Fed. Election Comm 572 US. 185, 191, a right that extends to political participation the ballot initiative context.? Human Life of Wash, Inc. v. Brumsickle, 624 F.3d 990, 1006 (9th Cir. 2010).1 Accordingly, ?the First Amendment ?has its fullest and most urgent application? to speech uttered during a campaign.? Eu v. San Francisco Cnty. Democratic Cent. Comm, 489 US. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 US. 265, 272 (1971)). Nevertheless, the State of Washington (?State?) persists in demanding an injunction ?aimed at preventing? a single citizen, Mr. Timothy Eyman, ?from managing, controlling, negotiating, or directing ?nancial transactions? for political committees State Br. at 20 (quotation marks omitted). This is no temporary measure; it would apply until Mr. Eyman slips the surly bonds of earth. Indeed, ?far from inviting greater restriction of speech, the direct participation of the people in a referendum, if anything, increases the need for ?the widest possible dissemination of information from diverse and antagonistic sources.?? First Nat ?1 Bank of Bos. v. Bellotti, 435 US. 765, 790 n.29 (1978) (quoting N. Y. Times Co. v. Sullivan, 376 US. 254, 266 (1964)). Amicus Curiae Br. of the Institute for Free Speech in Supp. of Def. Mot. 1 The State?s brief spends signi?cant time cataloging Mr. Byman?s alleged misdeeds. But when it comes to marshalling a legal justification for this radical demand, it protests that Mr. Eyman has not ?show[n] that the conduct in question is constitutionally protected.? State Br. at 20. However, ?the conduct in question? is unquestionably ?constitutionally protected.? Id. In fact, the State insists on nothing short of a prior restraint on protected First Amendment activity, a demand subject to strict scrutiny. And the State cannot possibly meet that standard because a less restrictive path?the millions of dollars in threatened fines that have already ruined Mr. Eyman financially and deprived him of counsel in this case?is available to the State and adequate to its purposes. ARGUMENT A PAC is ?any person (except a candidate or an individual dealing with his or her own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition.? RCW 42.17A.005. This closely follows federal law, which also de?nes a PAC in terms of its spending. 52 U.S.C. 30101(4) (?any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expendituresl aggregating in excess of $1,000 during a calendar year?). As a threshold matter, then, the State is quite wrong to suggest that barring Mr. Eyman ?from management of ?nancial transactions of any kind for any political committee? is a ?limited request.? State Br. at 1 (emphasis in original, citation and internal quotation marks omitted). As a matter of statutory de?nition, a PAC is its ?nancial transactions. PACs are unquestionably protected by the First Amendment. Fed. Election Comm ?n v. Nat ?l Conservative Political Action Comm, 470 US. 480, 494 (1985) (?We also reject the notion that the form of organization or method of solicitation diminishes their entitlement to First Amicus Curiae Br. of the Institute for Free Speech in Supp. of Def. Mot. 2 Amendment The First Amendment protects both ?lone pamphleteers or street comer orators in the Tom Paine mold? and . .th[at] spend substantial amounts of money in order to communicate their political ideas through sophisticated media advertisements.? Id. at 493. tendency to demonstrate distrust of PACs is not suf?cien ?to curtail their First Amendment rights. 1d. at 499. Moreover, this protection is not limited to the legal entity of the PAC itself. Its constituent parts, very much including its human actors, are also secure in their First Amendment rights. ?There is no question that participation in campaigns is a protected activity? under the federal Constitution. Perry v. Schwarzenegger, 591 F.3d 1147, 1162 (9th Cir. 2010) (emphasis supplied). The State has offered no authority whatsoever for its suggestion that the First Amendment right to ?participate in campaigns? does not apply to campaign treasurers or those otherwise charged with the management of a finances. Indeed, control of a ?nances is indispensable to a committee?s existence, predicated as it is upon ?receiving contributions or making expenditures.? RCW 42.17A.005. Of course, it is what this money is used for that implicates the First Amendment. As the U.S. Supreme Court explained in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the High Court?s ?seminal campaign ?nance case,? Ariz. Free Enter. Club ?3 Freedom Club PAC v. Bennett, 564 U.S. 721, 757 (2011) (Kagan, ., dissenting), ?virtually every means of communicating ideas in today?s mass society requires the expenditure of money.? Buckley, 424 U.S. at 19. And ?the transformation of contributions into political debate involves speech by someone other than the contributor.? Id. at 21. PACs, which have no mouth and cannot speak, must do so through the 2 The Fourteenth Amendment applies the protections of the First Amendment against the State. Gitlow v. N. Y., 268 U.S. 652, 666 (1925); De Jonge v. 0r., 299 U.S. 353, 364 (1937); NAACP v. Ala., 357 U.S. 449, 466 (1958). Amicus Curiae Br. of the Institute for Free Speech in Supp. of Def. Mot. 3 expenditure of money?the type of actions that must be handled by a treasurer or a similar ?gure.3 ?We are not quibbling over ?ne-tuning of prophylactic limitations, but are concerned about wholesale restriction of clearly protected conduct.? Nat ?l Conservative Political Action Comm, 470 US. at 501. The State seeks to bar Mr. Eyman from involvement in that essential, constitutionally-protected process. Forever. In denying Mr. Eyman this right, the State will inevitably alter the form and ?ow of debate in Washington. Perhaps many would welcome that result. But that is the not the result required by our Constitution. Rather, ?[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.? Bellotti, 435 US. at 777. This is true for the rights of those managers that control the message or ?nances. If Mr. Eyman is to be a PAC treasurer or otherwise handle the ?nances of such a committee, Washington State is well within its rights to make that fact known to the public. Brumsickle, 624 F.3d at 994. The public is free to ??consider, in making their judgment[s], the source and credibility of the advocate.?? Id. (quoting Bellotti, 435 US. at 791- 792). And the State may punish Mr. Eyman, with ruinous ?nes or, potentially, criminal penalties, if he violates the law. RCW 42.17A.750-755. it may not suppress?? Mr. Eyman?s right to participate as a ?nancial manager ??altogether.?? Id. (quoting Citizens United v. Fed. Election Comm 558 US. 310, 319 (2010)). Given Mr. Eyman?s admitted and alleged conduct, there may be a temptation to forget that the State is seeking an unprecedented penalty rife with these constitutional concerns. After all, the Securities and Exchange Commission imposes lifetime bans on certain types of trading, and 3 Money locked away from a ?nancial manager or treasurer cannot be converted into that protected speech, nor support the protected association of its contributors and staff. Amicus Curiae Br. of the Institute for Free Speech in Supp. of Def. Mot. 4 attorneys are subject to disbarment. But considering this must never forget, that it is a constitution we are expounding.? McCulloch v. Md., 17 US. 316, 408 (1819). And that Constitution teaches that ?[t]he loss of First Amendment freedoms,? such as the State threatens here, ?for even minimal periods of time, unquestionably constitutes irreparable injury.? Elrod v. Burns, 427 US. 347, 373 (1976) (Brennan, J., plurality op.) (emphasis supplied). The ability to participate effectively in political campaigns, which includes the right to organize and manage PACs, is not comparable to the purely economic regulations the State relies upon. State Br. at 19. To the contrary, the entire point of the Constitution?s ban on prior restraints is to prevent the Government from barring protected activity ?predicated upon surmise or conjecture that untoward consequences may result.? N. Y. Times Co. v. United States, 403 US. 713, 725-726 (1971) (Brennan, ., concurring). But that is just what the State does here. Rather than waiting for ?iture violations and seeking appropriate?and properly tailored?penalties, it would strip Mr. Eyman of his rights because he ?cannot be trusted.? State Br. at 19. As that statement shows, the remedy the State seeks here is inherently dangerous. It asks this Court to be the very ?rst, to anyone?s knowledge, to impose an injunction of this naturecase. See Voisine v. United States, 579 U.S. 136 S. Ct. 2272, 2291 (2016) (Thomas, ., dissenting) (?We treat no other constitutional right so cavalierly. At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a That decision will then be precedent to be applied in very different circumstances and?given the State?s ability to threaten crippling ?nes in the millions of dollars, as it has done here?the temptation to settlement in those future cases will be intense. Therefore, it may be that this question will not be litigated again for some time. Out of view of the courts, the incentives to viewpoint discrimination may Amicus Curiae Br. of the Institute for Free Speech in Supp. of Def. Mot. 5 prove too tempting for some. Those who succumb may even do so unconsciously; the State?s decision as to who can be ?trusted? is necessarily and inherently subjective, and it is only human nature to trust allies and distrust rivals. Thankfully, all of this can be avoided. Washington law gives the State adequate tools for deterring future violations without setting us down this path. It need not invent new ones. CONCLUSION Mr. Eyman?s motion for partial summary judgment ought to be granted. Dated: March 29, 2019 ReSpectfully submitted, SQ Nicholas PoweloMSBA #45974 540 Guard St., Suite 150 Friday Harbor, WA 98250 nickedpower@gmail.com 360.298.0464 1112.1 1.1 new \e Allen Dickerson W9 pro hac vice status application pendingO (17? J?x??t @1qu Zac Morgan Institute for Free Speech 124 s. West 31., Ste. 201 7&1? ?6 Alexandria, Virginia 22314 7.7/2 2 Counsel for Amicus Curiae Amicus Curiae Br. of the Institute for Free Speech in Supp. of Def. Mot. 6 3% 120M