D.C. Councilman Jack Evans (D-Ward 2) no longer has to worry that a photo used in a 2008 campaign advertisement will come back to bite him. In a ruling handed down today, the D.C. Court of Appeals determined that three Ward 2 residents were not “adversely affected” by the photo, showing Evans, who is of counsel to Patton Boggs, arm-in-arm with D.C. Police Chief Cathy Lanier.
Petitioners David Mallof, Elizabeth Elliott, and John Harahan filed a complaint with the D.C. Office of Campaign Finance on Aug. 28, 2008 in which they alleged that the photo of Evans and Lanier under the headline “Working Together for Ward 2” implied a “clear endorsement of Evans by Chief Lanier” and by extension an endorsement by the entire police department. They further alleged that by using the photo, Evans had broken the law by using government resources for election purposes.
The Office of Campaign Finance investigated the complaint but found that Evans had not violated any laws because the photo was for personal use, he had taken it with his own camera, and paid for the processing of the photo himself.
According to the court’s 31-page opinion, written by Judge Stephen Glickman and joined by Judge John Fisher and senior Judge Michael Farrell, Evans argued that the photo was one of many in his D.C. Council office showing him with public officials. It was only months after it was taken, Evans said, that his advertising agency decided to use the photo in a campaign ad to “show his law and order bona fides.”
The opinion also says Lanier thought the photo would "be used only for legitimate personal display." She said, "At no time was I made aware that my appearance would be used -- under any circumstances -- to gain an improper benefit. Any such activity was done without my knowledge or consent."
After the office dismissed their complaint, Mallof, Elliott, and Harahan petitioned to have the Board of Elections and Ethics review the case de novo. On Jan. 28, 2009, the board denied their request to review the case because it found that none of the petitioners had been personally affected by the Office of Campaign Finance’s findings.
Evans beat Christina Erland Culver in the election.
On appeal, Amanda Hine, a Mayer Brown associate representing the petitioners, argued that the office’s and the board’s findings would provide a “green light” to candidates’ use of personal photos with public officials in campaign advertisements. Hine also argued that the board erred in determining that “standing to seek administrative review must be governed by the same standards that govern standing to seek judicial review.”
Hine was joined on the petitioners’ brief by Marcia Maack, assistant director of pro bono activities for Mayer Brown; and Arthur Spitzer of the American Civil Liberties Union of the National Capital Area.
The opinion handed down today found that the board did not err in finding that the petitioners lacked standing, but it doesn’t rule out a situation in which an opposing candidate could challenge the use of allegedly misleading photos in campaign ads.
"This does not mean that a candidate opposing Evans necessarily would have lacked standing to seek relief from his putative misuse of government resources in the campaign. The question is not before us in this case, but the position of a candidate differs from that of a mere voter. . . . [T]he merely ‘derivative’ injury to voters who support the disadvantaged candidate is, in itself, too attenuated, insubstantial and unparticularized to afford them standing as well,” Glickman writes in the opinion.
Terri Stroud, senior staff attorney at the board, argued on its behalf. Kenneth McGhie, also an attorney with the board, joined Stroud on the brief.