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FEDERAL ELECTION COMMISSION v. MALENICK

March 30, 2004.

FEDERAL ELECTION COMMISSION, Plaintiff,
v.
CAROLYN MALENICK, et al., Defendants



The opinion of the court was delivered by: JAMES ROBERTSON, District Judge

MEMORANDUM ORDER

This is an enforcement action by the Federal Election Commission ("FEC" or "Commission") against Carolyn Malenick d/b/a Triad Management Services ["Triad"], Triad Management Services, Inc. ["Triad Inc."], and Carolyn Malenick, as corporate officer of Triad Inc.*fn1 In its complaint, the FEC alleges that the defendants violated various provisions of the Federal Election Campaign Act of 1971 ("FECA" or "Act"), as amended, 2 U.S.C. § 431 et seq. The FEC seeks declaratory and injunctive relief, as well as a civil penalty for each violation of the FECA that Page 2 the defendants are found to have committed. Before the Court are the Commission's motion for summary judgment [#16] and defendant Malenick's cross-motion for summary judgment [#28].*fn2 For the reasons stated below, plaintiff's motion is granted in part and denied in part, and defendant's cross-motion is denied.*fn3

Background

  On May 5, 1997, the FEC notified Malenick by letter that a complaint had been filed with the Commission, alleging violations of FECA by Triad. See Def. Mem., Ex. 126 (Letter from the FEC Supervisory Attorney Turley, to Malenick, dated May 5, 1997), at 1. The letter notified her of her rights under the FECA to "demonstrate in writing that no action should be taken . . . in this matter." Id.; see also 2 U.S.C. § 437g(a)(1). On Page 3 June 17, 1997, Malenick's counsel responded to the FEC that no further action by the Commission was warranted. See Def.'s Mem., Ex. 128 (Letter from E. Mark Braden, to FEC Chairman McGarry, dated June 17, 1997). After an investigation, the FEC notified counsel for Triad Inc. on June 8, 1998, that it had reason to believe the organization had violated 2 U.S.C. § 433, 434, 441a, 441b and 441f of the FECA during the 1995-1996 election cycle. See Id., Ex. 167 (Letter from FEC Chairman Aikens, to E. Mark Braden, dated June 8, 1998), at 1. A similar letter addressed to Malenick on that same day notified her that the Commission had found reason to believe she had violated 2 U.S.C. § 441b and 441f of the FECA during the same election cycle. See id., Ex. 167-A (Letter from FEC Chairman Aikens, to Malenick, dated June 8, 1998), at 1. Both letters were accompanied by detailed memoranda explaining the factual and legal bases for the FEC's findings.

  On July 18, 2001, more than four years after Malenick was first notified of the filing of a complaint, the FEC advised all three defendants that its Office of General Counsel was "prepared to recommend that the Commission find probable cause to believe"*fn4 that the defendants had violated various FECA provisions. Id., Ex. 220 (Letter from FEC Acting General Counsel Page 4 Lerner, to E. Mark Braden, dated July 18, 2001), at 1. On October 4, 2001, Malenick responded on behalf of herself, Triad, and related entities, denying the allegations. See Pl.'s Mem., Ex. 74 (Letter to Mark Shonkwiler, from Malenick, dated October 4, 2001). On April 10, 2002, the Commission made its formal probable cause finding and informed the defendants that there would be a period for conciliation, after which the Commission could institute a civil suit in United States District Court. See id., Ex. 87 (Letter from FEC General Counsel Norton, to Malenick, dated April 17, 2002). On June 13, 2002, after conciliation was unsuccessful, the Commission authorized its general counsel to institute this action. See id., Ex. 88 (Letter from FEC General Counsel Norton, to Paul Sullivan (defendants' counsel), dated June 13, 2002).

  The FEC filed the complaint on June 21, 2002.

  Analysis

  The FEC has "exclusive jurisdiction with respect to the civil enforcement of [provisions of the FECA]," 2 U.S.C. § 437c(b)(1), and can "initiate (through civil actions for injunctive, declaratory, or other appropriate relief) . . . any civil action in the name of the Commission to enforce the provisions of th[e] Act . . . through its general counsel." Id. § 437d(a)(6). In civil actions instituted by the Commission, "the court may grant a permanent or temporary injunction, Page 5 restraining order, or other order, including a civil penalty which does not exceed the greater of $5,000 or an amount equal to any contribution or expenditure involved in such violation, upon a proper showing that the person involved has committed, or is about to commit (if the relief sought is a permanent or temporary injunction or a restraining order), a violation of this Act. . . ." Id. § 437g(a)(6) (B).

  Summary judgment will be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must draw all reasonable inferences in the nonmoving party's favor and accept the evidence of the nonmoving party as true. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, in proffering evidence to defeat a motion for summary judgment, the nonmoving party cannot simply rely on conclusory statements or allegations. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must come forward with specific facts that, when viewed in the context of the record as a whole, could reasonably lead a rational trier of fact to find for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Page 6

 1. Whether Triad and Triad Inc. were "political committees"

  A threshold question in this case — and the central question, really — is whether the FEC has established that Triad and Triad Inc. were "political committees" under the FECA. Organizations categorized as "political committees" must make certain detailed disclosures and file certain reports, and the failure of Triad and Triad Inc. to do so form the basis for most of the FEC's claims against the defendants. Under the Act, a "political committee" is, first of all,
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 expenditures aggregating in excess of $1,000 during a calendar year. . . .
2 U.S.C. § 431(4)(A). It is undisputed that Triad/Triad Inc. falls somewhere within the definitional language of "association, or other group of persons."*fn5 "Contribution[s]" are defined under the Act as "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of Page 7 influencing any election for Federal office. . . ." 2 U.S.C. § 431(8)(A)(i). "[A]n entity subject to regulation as a `political committee' under the Act is one that is either `under the control of a candidate or the major purpose of which [sic] is the nomination or election of a candidate.'" FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 252 n.6 (1986) (quoting Buckley v. Valeo, 424 U.S. 1, 79 (1976)); but see Akins v. FEC, 101 F.3d 731, 742 (D.C. Cir. 1996) (en banc) ("We think the . . . Court clearly distinguished independent expenditures and contributions as to their constitutional significance, and its references to a `major purpose' test seem to implicate only the former." (emphasis omitted)), vacated on other grounds by 524 U.S. 11 (1998).

  The FEC asserts that, "[biased on Triad's own statements and actions, it is clear that its major, if not sole, purpose during the 1996 election cycle was to support particular candidates for federal office both in Republican Party primaries and in the general election." Pl.'s Mem., at 20. Malenick disputes this assertion, arguing that Triad/Triad Inc. was a for-profit marketing company established to provide potential donors and clients "with sound advice prior to their [making] contributions [to charitable or political causes], much like a stockbroker," Defs.' Mem., at 15-16. Page 8

  a. Major purpose

  An "organization's purpose may be evidenced by its public statements of its purpose or by other means, such as its expenditures in cash or in kind to or for the benefit of a particular candidate or candidates," but "[c]ircuit precedent indicates . . . that even if the organization's major purpose is the election of a federal candidate or candidates, the organization does not become a `political committee' unless or until it makes expenditures in cash or in kind to support a 'person who has decided to become a candidate' for federal office." FEC v. ...


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