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VIRGINIA SOCIETY FOR HUMAN LIFE, INCORPORATED, ET AL. v. CALDWELL


VIRGINIA SOCIETY FOR
HUMAN LIFE, INCORPORATED, ET AL.

v.

DONALD S. CALDWELL,
ATTORNEY FOR THE COMMONWEALTH OF VIRGINIA FOR THE CITY OF
ROANOKE, ETC., ET AL.


June 5, 1998

Record No. 972659

VIRGINIA SOCIETY FOR HUMAN LIFE, INCORPORATED, ET AL.

v.

DONALD S. CALDWELL, ATTORNEY FOR

THE COMMONWEALTH OF VIRGINIA FOR

THE CITY OF ROANOKE, ETC., ET AL.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

Present: All the Justices


Pursuant to our Rule 5:42, the United States Court of Appeals
for the Fourth Circuit certified a question of Virginia law to
this Court which we accepted by order entered January 16, 1998.
The question involves the construction of various provisions of
the Campaign Finance Disclosure Act (the Act), Code
Sec.24.2-900 to -930, and Code Sec.24.2-1014, a penalty
provision applicable to certain activities governed by the Act.

The Act, in pertinent part, requires certain individuals or
organizations that give money and services of any amount, and any
other thing of value over $100, "for the purpose of
influencing the outcome of an election," Code
Sec.24.2-901, to file a statement of organization, Code
Sec.24.2-908, and to report their expenditures toward that
purpose to the State Board of Elections, Code Sec.24.2-910.
In addition, any writing made "for the purpose of
influencing the outcome of an election for public office" is
required to include an identification of the author under Code
Sec.24.2-1014. This statute further provides civil and
criminal penalties for the failure to identify the author of such
writings.

The following facts are set forth in the order of
certification from the Court of Appeals. The Virginia Society for
Human Life, Incorporated (VSHL) is a nonprofit organization that
conducts issue advocacy by periodically preparing and
distributing "voter guides" that do not expressly
advocate the election or defeat of any candidate but, rather,
state the views of candidates on public issues.[1] In
an initial 1995 complaint asserting that these statutes, as
enacted prior to 1996, have been used in the past to impose
unconstitutional prior restraints on issue advocacy, VSHL sought,
pursuant to 42 U.S.C. Sec.1983, to bar their future
enforcement through declaratory and injunctive relief from the
United States District Court for the Western District of
Virginia.[2] VSHL contended that these
statutes placed an impermissible burden on its First Amendment
rights. See Buckley v. Valeo, 424 U.S. 1, 78-80
(1976)(per curiam); McIntyre v. Ohio Elections Commission,
514 U.S. 334, 357 (1995).

While the complaint was pending in the district court, the
Virginia General Assembly enacted amendments to the specific
statutes in question during its 1996 session. Following the
filing of an amended complaint challenging these statutes as
amended, the district court ruled that the current statutes could
be narrowly construed so as to avoid any constitutional infirmity
by limiting their application to individuals or organizations
advocating the election or defeat of a clearly identified
candidate. See Buckley, 424 U.S. at 80. Based upon
this construction of the statutes, the district court ruled that
because VSHL engaged only in issue advocacy, it lacked standing
to challenge the enforcement of the statutes and dismissed the
suit on that ground.

VSHL appealed the ruling of the district court to the Court of
Appeals which, seeking an authoritative construction of the
statutes in question, certified the following question of law to
this Court:

Whether Va. Code Ann. Sec.24.2-901, -908, -910
& -1014 apply to issue advocacy groups, or whether
the use of the phrase "for the purpose of
influencing the outcome of an election" and related
phrases limits the application of those statutes to
groups that expressly advocate the election or defeat of
a particular candidate.

In light of certain concerns expressed in the order of
certification and in order to conform to our policy of responding
to certified questions in the affirmative or the negative, we
will exercise our discretion under Rule 5:42(d) to restate the
question as follows:

Whether the use of the phrase "for the purpose of
influencing the outcome of an election" in Code
Sec.24.2-901, -908, -910, and –1014 may be
narrowly construed to limit the application of those
statutes to groups that expressly advocate the election
or defeat of a clearly identified candidate.

Within the statement supporting the determinative nature of
the certified question, Rule 5:42(b)(6), the Court of Appeals has
expressed grave doubts as to the method used by the district
court in arriving at the narrowing construction of these
statutes. The district court found that the phrase "for the
purpose of influencing the outcome of an election" as used
in these statutes "is a term of art whose well-established
meaning excludes issue advocacy" based upon the rationale of
Buckley.

Citing Boos v. Barry, 485 U.S. 312, 330 (1988), the
Court of Appeals notes that federal courts may not
"‘adopt a narrowing construction of a state
statute unless such a construction is reasonable and readily
apparent.’" Continuing, the Court of Appeals expressed
doubts that a narrowing construction of these statutes is readily
apparent and that the structure and history of the Act suggest
that it applies to issue advocacy groups such as VSHL. The Court
of Appeals correctly notes, however, that under the broader rules
of statutory construction available in this Court we "may
impose a narrowing construction upon these statutes if [we
determine] that such a construction would be correct." For
the reasons that follow, we conclude that such is the case here.

The rules of statutory construction pertinent to our analysis
here are firmly settled. Principal among these rules is that we
determine, and adhere to, the intent of the legislature reflected
in or by the statute being construed. As an initial and primary
proposition, that intent is to be determined by the words in the
statute. See Marsh v. City of Richmond, 234 Va. 4,
11, 360 S.E.2d 163, 167 (1987). Where the words used in the
statute are not sufficiently explicit, we may determine the
intent of the legislature "from the occasion and necessity
of the statute being passed [or amended]; from a comparison of
its several parts and of other acts in pari materia; and
sometimes from extraneous circumstances which may throw light on
the subject." Richmond v. Sutherland, 114 Va. 688,
691, 77 S.E. 470, 471 (1913).

Additionally, when, as here, the constitutionality of a
statute is challenged, our determination of legislative intent is
guided by the recognition that "[a]ll actions of the General
Assembly are presumed to be constitutional." Hess v.
Snyder Hunt Corp.
, 240 Va. 49, 52, 392 S.E.2d 817, 820
(1990). Thus, "a statute will be construed in such a manner
as to avoid a constitutional question wherever this is
possible." Eaton v. Davis, 176 Va. 330, 339, 10
S.E.2d 893, 897 (1940); see also Jacobs v. Meade,
227 Va. 284, 287, 315 S.E.2d 383, 385 (1984). In this context, we
will narrowly construe a statute where such a construction is
reasonable and avoids a constitutional infirmity.[3] Pedersen
v. City of Richmond
, 219 Va. 1061, 1065, 254 S.E.2d 95, 98
(1979).

The parties do not dispute, and it is readily apparent, that
absent a narrowing construction of the phrase "for the
purpose of influencing the outcome of an election" as used
by the General Assembly in the statutes in question, these
statutes would apply to individuals and groups that engage solely
in issue advocacy, and, thus, would be unconstitutionally
overbroad. However, a narrowing construction is reasonable
because it is consistent with the manner in which the United
States Supreme Court construed very similar federal election
statutes in Buckley. Moreover, a narrowing construction
avoids a constitutional infirmity and is consistent with the
legislative intent that we are able to determine from the words
used by the General Assembly under the circumstances existing at
the time these statutes were enacted or amended.

Each of the statutes in question has either been enacted or
amended subsequent to the decision in Buckley. Without
question, the General Assembly is presumed to have knowledge of
decisions of the United States Supreme Court on constitutional
issues that bind actions of the states when enacting statutes
that potentially invoke such issues. Accordingly, here the
General Assembly is presumed to have had knowledge that the Buckley
decision narrowly construed the phrase "for the purpose of
influencing" as used in federal election laws to apply only
to expenditures used to advocate the election or defeat of a
clearly identified candidate and, thus, to exclude groups that
engage solely in issue advocacy. Similarly, that presumption of
knowledge extends to the more recent McIntyre decision
that a state statute cannot constitutionally prohibit anonymous
issue advocacy by groups that engage solely in issue advocacy.

Additionally, the General Assembly, when amending a statute,
is presumed to have knowledge of the Attorney General’s
interpretation of that statute in its existing form. See Lee
Gardens Arlington Limited Partnership v. Arlington County Board
,
250 Va. 534, 540, 463 S.E.2d 646, 649 (1995). In 1995, the
Attorney General, in response to an inquiry concerning the
constitutionality of Code Sec.24.2-1014 in light of the McIntyre
decision, issued a formal opinion, consistent with prior opinions
on related issues, expressly construing the phrase "for the
purpose of influencing" as having the same definition as
that adopted in Buckley. See 1995 Op. Va.
Att’y Gen. 170.

In light of the General Assembly’s knowledge of the
opinions in Buckley and McIntyre and the Attorney
General’s opinion adopting a narrowing construction of the
broad sweep of the phrase "for the purpose of
influencing" at the time the General Assembly enacted or
amended the statutes in question, we conclude that the General
Assembly intended to limit that phrase and related phrases so as
to have no application to individuals or groups that engage
solely in issue advocacy and that do not expressly advocate the
election or defeat of a clearly identified candidate.

We now consider the effect of this narrowing construction on
each of the statutes in question. In doing so we will address
only those provisions of the Act pertinent to the present case.

Code Sec.24.2-901(A) provides definitions for various
terms used throughout the Act that control the meaning of
specific sections. "Contribution" is defined as
"money . . . given . . . for the purpose
of influencing the outcome of an election" and
"Expenditure" is defined as "money . . .
paid . . . for the purpose of influencing the outcome
of an election." "Independent expenditure" is
defined as "an expenditure made by any person or political
committee which is not made to . . . a candidate"
or generally on behalf of a candidate. "Political
committee" is defined as a "person or group of persons
which receives contributions or makes expenditures for the
purpose of influencing the outcome of any election."

We first apply these definitions to Code Sec.24.2-908,
which requires a "political committee which anticipates
receiving contributions or making expenditures in excess of $200
in a calendar year" to file a statement of organization with
the State Board of Elections. As narrowly construed, a group that
engages solely in issue advocacy and does not receive
"contributions" or make "expenditures" to
expressly advocate the election or defeat of a clearly identified
candidate is not a "political committee" as defined in
Code Sec.24.2-901(A), and, consequently, is not included in
the mandate of Code Sec.24.2-908. The same rationale applies
to the provisions of Code Sec.24.2-910(B) that require any
group that "is not a political committee and who makes
independent expenditures" to report these expenditures to
the State Board of Elections. An "independent
expenditure" contemplated by this section and as defined in
Code Sec.24.2-901(A) excludes expenditures made solely for
issue advocacy.[4] Similarly, Code
Sec.24.2-1014, when narrowly construed in this manner,
requires identification of authorship only on writings "made
for the purpose of influencing the outcome of an election for
public office" and excludes writings that are limited to
issue advocacy.

Finally, we consider the terms of Code Sec.24.2-901(B)
that have evoked express concerns by the Court of Appeals in its
order of certification and are asserted by VSHL to prohibit the
narrowing construction we adopt in this case. For the purpose of
applying the filing requirements of Code Sec.24.2-908 and the
reporting requirements of Code Sec.24.2-910, Code
Sec.24.2-901(B) expressly excludes from the definition of a
"political committee" "an organization holding
tax-exempt status under Sec.501(c)(3) of the United States
Internal Revenue Code which, in providing information to voters,
does not advocate or endorse the election or defeat of a
particular candidate, group of candidates, or the candidates of a
particular political party."

Citing the maxim expressio unius est exclusio alterius,
that is, the expression of one thing is the exclusion of another,
the Court of Appeals questions whether this express statement
would not result in the definition of a "political
committee" necessarily including organizations, such as
VSHL, which do not have Sec.501(c)(3) status, but which
nonetheless provide information to voters that "does not
advocate or endorse the election or defeat of a particular
candidate, group of candidates, or the candidates of a particular
political party." [5] Assuming that this is a correct
application of this maxim of construction, it does not preclude
the application of a narrowing construction to the definition of
a "political committee" as contemplated by the General
Assembly. Thus, we conclude that even if organizations lacking
Sec.501(c)(3) status, such as VSHL, are subsumed within that
definition, under the narrowing construction such groups would be
subject to its application elsewhere in the Act only if their
activities were to exceed the bounds of issue advocacy.

Accordingly, we hold that the phrase "for the purpose of
influencing the outcome of an election," as used in Code
Sec.24.2-901, -910, and –1014, as well as its
implication for terms used in Code Sec.24.2-908, may be
narrowly construed to limit the application of those statutes to
groups that expressly advocate the election or defeat of a
clearly identified candidate.

Certified question answered in the
affirmative
.

 

FOOTNOTES:

[1] For purposes of this opinion,
we adopt the assumption of the Fourth Circuit that VSHL
"conducts only issue advocacy."

[2] Andrea Sexton, a Virginia
resident and a member of VSHL, was also a plaintiff in the suit.
The suit was filed against Donald S. Caldwell, Attorney for the
Commonwealth of Virginia for the City of Roanoke, in his official
capacity as a representative of the class of Attorneys for the
Commonwealth of Virginia, and Pamela M. Clark, Dr. George M.
Hampton, Sr., and M. Bruce Meadows, in their official capacities
as officers of the State Board of Elections.

[3] VSHL asserts that without an
ambiguity in the language of the statutes in question we may not
resort to extrinsic aids of construction. See Wall v.
Fairfax County School Board
, 252 Va. 156, 159, 475 S.E.2d
803, 805 (1996). This assertion is without merit in the present
case. While an ambiguity of language may serve as the basis for
rejecting an unconstitutional interpretation of a statute in
favor of one that survives constitutional scrutiny, see, e.g.,
Miller v. Commonwealth, 172 Va. 639, 648, 2 S.E.2d 343,
347 (1939), a finding of ambiguity is not a prerequisite for
applying a narrowing construction to preserve a statute’s
constitutionality. To the contrary, we may construe the plain
language of a statute to have limited application if such a
construction will tailor the statute to a constitutional fit. Gooding
v. Wilson
, 405 U.S. 518, 520 (1972).

[4] Because we construe Code
Sec.24.2-910(B) to exclude expenditures made solely for issue
advocacy, we find no inconsistency in the language of subsections
(B)(1) and (B)(2).

[5] VSHL does enjoy tax-exempt
status under Sec.501(c)(4) of the United States Internal
Revenue Code.

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