AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., Plaintiff-Appellant, v. Robert TAFT, Governor of Ohio, Defendant-Appellee.
No. 02-3924.
United States Court of Appeals, Sixth Circuit.
Argued: Jan. 28, 2004. Decided and Filed: Sept. 27, 2004.
385 F.3d 641
Scott T. Greenwood (argued), Raymond Vasvari (briefed), American Civil Liberties Union, Cleveland, OH, for Plaintiff-Appellant.
Keith A. Wilkowski (briefed), Vassar, Dills & Dawson, Toledo, Ohio, for Amicus Curiae.
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
OPINION
MOORE, Circuit Judge.
In this appeal, we conclude that
I. BACKGROUND
Traficant represented the Seventeenth Ohio Congressional District (“the District“) from January 1985 through July 24, 2002, during the 99th through 107th Congresses. On July 24, 2002, the House passed House Resolution 495, expelling Traficant from the House. Subsequently, Governor Taft publicly announced that he would not call a special election to fill the House vacancy left by Traficant‘s expulsion. Governor Taft decided, after consulting with local elected officials, not to hold a special election, citing the cost of an election, the difficulty presented by redistricting that was to take effect for the regularly scheduled election in 2002,1 the small length of time an elected replacement could be expected to serve, and the uninterrupted continuation of constituent services by the Clerk of the House. The 107th Congress was scheduled to adjourn on October 3, 2002; however, it did not adjourn sine die until November 22, 2002. Tim Ryan was elected to the House by the “new” Seventeenth District at a general election held on November 5, 2002, but did not take office until January 3, 2003. Therefore, the “old” Seventeenth District was without representation in the House and had diminished constituent services from July 2002 until January 2003.
On August 5, 2002, the ACLU filed a verified complaint in the United States District Court for the Southern District of Ohio, asserting a
The district court had jurisdiction pursuant to
II. ANALYSIS
A. Standard of Review
We review a district court‘s decision to deny a preliminary injunction for abuse of discretion. Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass‘n, 110 F.3d 318, 322 (6th Cir. 1997). We also review a district court‘s decision to deny a permanent injunction for abuse of discretion, and in doing so, we review the district court‘s factual findings for clear error and review the district court‘s legal conclusions de novo. Sec‘y of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir. 2003). Although the district court did not specifically rule on the ACLU‘s request for declaratory relief, instead dismissing the case in toto after ruling on the ACLU‘s motion for preliminary injunctive relief, we review a “district court‘s exercise of discretion under the
B. Standing and Mootness
Jurisdiction, including standing, is ” ‘assessed under the facts existing when the complaint is filed.’ ” Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n. 4 (1992)), cert. denied, 535 U.S. 971 (2002). In order to meet the standing requirements derived from
a plaintiff must show: “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Id. at 523-24 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)). To bring suit on behalf of its members, an association must show ” its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization‘s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in
The ACLU filed the complaint in this action “on behalf of its members who reside in and who are electors in the Seventeenth Ohio Congressional District.” J.A. at 6 (Compl.¶3). In this case, the ACLU has demonstrated that its members would have had “standing to sue in their own right.” Cleveland Branch, N.A.A.C.P., 263 F.3d at 524. The ACLU submitted affidavits from Louise Lefkort, Robert H. Sacherman, and Carol C. Sacherman, who were all members of the ACLU, resided in the “old” Seventeenth District, were registered to vote in that district, and desired to vote in a special election to fill the House seat left vacant by the expulsion of Traficant. These members had suffered an actual injury, as they were without representation in the House and had been threatened with the imminent denial of their right to vote. This injury was fairly traceable to Governor Taft‘s actions because Governor Taft announced that he was not going to issue a writ of election calling for a special election. This injury would have been redressable by injunctive and declaratory relief, in that an injunction requiring Governor Taft to issue a writ of election would have allowed residents of the district to exercise their right to vote and to regain representation in the House.
The ACLU has also shown that the interests at stake in this case are germane to the organization‘s purpose. The ACLU submitted an affidavit from its Executive Director, Christine Link, explaining the organization‘s purpose as follows: “The object of this organization is to aid in maintaining and extending constitutional and other fundamental rights, liberties, privileges, and immunities, and to take all legitimate actions in furtherance of that object without political partisanship.” J.A. at 161 (Link Aff.) (emphasis in original). This case addresses citizens’ right to vote and right to equal representation, which falls squarely within the ACLU‘s purpose of guaranteeing constitutional and fundamental rights. Finally, this action does not require the participation of individual members of the organization.
While standing is assessed at the outset of the litigation, a case may become moot during the course of litigation, depriving the court of jurisdiction. Cleveland Branch, N.A.A.C.P., 263 F.3d at 524-25. The doctrines of standing and mootness serve different purposes: “In essence, standing concerns only whether a plaintiff has a viable claim that a defendant‘s unlawful conduct ‘was occurring at the time the complaint was filed’ while mootness addresses whether that plaintiff continues to have an interest in the outcome of the litigation.” Id. at 525 (citations omitted). These different purposes are reflected in well-established exceptions to the mootness doctrine, including the doctrine that a case will not become moot if the injury is capable of repetition, while evading review. Friends of the Earth, Inc., 528 U.S. at 190.
At this time, the 108th Congress has convened; therefore, we can no longer provide appropriate injunctive relief. We can, however, still award declaratory relief and attorney‘s fees, provided the case has not become moot. Vacancies in the House can happen near the end of a congressional term, making it difficult for litigation to provide an effective remedy. See Jackson v. Ogilvie, 426 F.2d 1333, 1337 (7th Cir. 1970) (noting, while treating an identical situation, that the case would not be mooted by the inappropriateness of an injunction, that plaintiffs would be entitled to declaratory
C. Laches
We agree with the district court‘s conclusion that the ACLU‘s action is not barred by the doctrine of laches. Where a plaintiff seeks solely equitable relief, his action may be barred by the equitable defense of laches if (1) the plaintiff delayed unreasonably in asserting his rights and (2) the defendant was prejudiced by this delay. Brown-Graves Co. v. Central States, Southeast and Southwest Areas Pension Fund, 206 F.3d 680, 684 (6th Cir. 2000). In this case, Governor Taft announced on July 25, 2002 that he was not going to call a special election to fill the vacancy in the District. The ACLU filed on August 5, 2002, eleven days later, its complaint, its motion for a temporary restraining order and preliminary injunction, and its supporting memorandum. It is true that in Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980), we held that a plaintiff seeking to be named on a presidential primary ballot was barred from obtaining injunctive relief because he delayed bringing suit until twenty-five days after he knew the choice of candidates had been made. In Kay, however, the defendant Secretary of State introduced evidence specifically demonstrating how this short delay had prejudiced the defendant, in that the Secretary provided evidence that most of the costs associated with the elections preparations had been expended during this delay. Id.
In this case, each day that passed may have made it more difficult to hold a special election; however, there is no evidence in the record indicating specifically how this short delay prejudiced Governor Taft. Likewise, there is no evidence that Governor Taft had expended money or made alternate preparations during the delay. We conclude that the passage of eleven days was not unreasonable delay. Moreover, we conclude that Governor Taft has not sufficiently demonstrated that he was prejudiced by this delay.
D. Article I, Section 2, Clause 4
Given the infrequency of House vacancies, and the even greater infrequency of governors refusing to call special elections to fill them, only one case, Jackson v. Ogilvie, deals with such a situation. Jackson arose when the governor of Illinois refused to call a special election after the death of a Representative on August 13, 1969. 426 F.2d at 1334. Voters brought suit on December 16, 1969, and “the district court dismissed the action for want of jurisdiction” on March 16, 1970, finding the rights asserted too insubstantial to support jurisdiction, as “the relatively short period in which the Sixth District will remain unrepresented” was not enough to raise constitutional questions. Id. at 1334-35. The Seventh Circuit reversed in an opinion issued on May 6, 1970, concluding that the district court had erred by dismissing the action due to the limited time that a Representative would serve, stating, “Except in those instances [where the period of possible service could truly be deemed de minimis] the delegation to the state legislature of this power over procedure does not, in our opinion, alter the character of the Governor‘s duty to issue a writ of election.” Id. at 1336. In so holding, the court found that a special election could still be held on November 3, 1970, the date of the next general election, and concluded that it was “not prepared to say as a matter of law that representation from the time the results of the November 3 election will be determined to January 3, 1971 is de minimis.” Id. at 1337.
In comparing Jackson to the instant case, both parties agree that the time periods involved are important; they merely disagree on which time periods are important. Under Illinois law at that time, 162 days had to elapse between the issuance of the writ of election and the election itself. Id. at 1335. The Seventh Circuit held that the governor had a duty to issue a writ at the time of the Representative‘s death, which would have allowed an election to be held on January 23, 1970, with eleven months left on the term. Id. at 1337. When the district court dismissed the case, an election could have been held on August 25, 1970, with four months left on the term. Finally, the Seventh Circuit refused to hold as a matter of law that the amount of time between the certification of an election held on the next general election date, November 3, 1970, and the beginning of the next term, on January 3, 1971, is de minimis. The ACLU emphasizes Jackson‘s indication that the time of possible service in the House in this case, November 5, 2002 to January 3, 2003, was not de minimis. Conversely, Governor Taft emphasizes that Jackson only conclusively held that an enforceable duty existed when eleven months remained on the term at the time the vacancy occurred.
The parties and the district court cite three other cases that influence our decision in this case. In Valenti v. Rockefeller, 292 F.Supp. 851, 853 (W.D.N.Y. & S.D.N.Y.1968) (three-judge district court), aff‘d mem., 393 U.S. 405 (1969), a U.S. Senate vacancy occurred in June 1968 upon the assassination of Senator Robert F. Kennedy, and state statutory law mandated that the vacancy would be filled in November 1970, as sixty days were required prior to the primary election, and replacement Senate
Like the Seventh Circuit, we conclude that
We also recognize that
Had Ohio‘s election code imposed requirements that made a special election an impossibility in this case, the ACLU would have been faced with the burden of proving those enacted requirements were unconstitutional. As Governor Taft concedes, however, it would have been possible to hold a special election that complied with the requirements imposed by the legislature in the election code to fill the vacancy in the Seventeenth District.6
In summation, we conclude that
III. CONCLUSION
We conclude that the district court committed errors of law, and thus abused its discretion by failing to award the ACLU appropriate equitable and declaratory relief. Accordingly, we REVERSE the district court‘s decision and REMAND this case so the district court may award appropriate declaratory relief and attorney‘s fees to the ACLU.
The majority holds that Governor Taft was required by
I.
Our Constitution grants limited, enumerated powers to the federal government, while reserving the remainder of the governing authority to the states. Beyond the unenumerated powers retained by the states, the Constitution delegates to them certain tasks necessary for the proper administration and functioning of the federal government. One such task is the duty imposed by
Although clause 4 uses the imperative “shall,” that should not be understood as a universal and absolute command to act without regard to the facts and circumstances that bear directly upon the purpose of Section 2. That is so, not only as a matter of common sense, but also because, under our Constitution, “[t]he States ... retain ‘a residuary and inviolable sovereignty.’ ... They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.” Alden v. Maine, 527 U.S. 706, 715 (1999) (quoting The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)). In interpreting clause 4 and similar provisions of the federal Constitution, we are obligated to take cognizance of the principles of federalism and comity that inhere in our unique system of dual sovereignty. Implicit in these principles is the obvious proposition that the Constitution does not impose upon the states the obligation to take action, which, in the circumstances at hand, would be wasteful, imprudent, and manifestly ineffective to carry into effect the purpose of the constitutional mandate.
The authors of Clause 4 were not theoreticians given to creating mindless formalisms that, if applied literally, woodenly, or mechanistically, would require the states to take action in obedience to the verb “shall,” which, under the circumstances, is foolish, wasteful, and probably ineffective.
Neither constitutional “textualism,” “originalism,” nor any other interpretive “ism” requires that, in carrying out the mandate of Clause 4, a Governor abandon all common sense and reasonableness and become, instead, a mere issuing clerk when a “vacanc[y] happen[s]” in a state‘s congressional representation.
As Justice Oliver Wendell Holmes, speaking for the U.S. Supreme Court, stated, albeit with regard to a different constitutional provision:
The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.
Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931). That “play in its joints” must cer-
II.
With these principles in mind, I conclude that, given the circumstances Governor Taft faced when former Congressman Traficant was expelled from Congress, he was not required under clause 4 to call a special election. The vacancy in the 17th district “happen[ed]” on July 24, 2002, slightly more than three months before the general election and less than six months before the end of the congressional term.
After taking into account the public notice requirements of Ohio‘s election laws and the need for a primary election and a general election, Governor Taft concluded, and the plaintiff has conceded, that the earliest practical date on which a special election could have been held was November 5, 2002, the date of the general election. In order to have held a special election on the date of the general election, the financially strapped counties that comprised the 17th district would have been required to expend significant amounts of money and effort to give notice of the vacancy to potential candidates, print primary as well as general election ballots, pay additional election workers to staff the polling stations, certify the results, and allow for possible challenges.
In addition to these demands on the resources of the affected Ohio counties, the Governor was faced with a unique circumstance that could only have added further confusion to the already confusing necessity of conducting a special election together with the regular general election. As the majority points out, the 17th district was redrawn in 2002. The “old” 17th district represented by Traficant comprised Mahoning and Columbiana Counties and parts of Trumbull County. But the decennial 1990 census required reapportionment and resulted in a “new” 17th district comprising parts of Mahoning, Trumbull, Portage, and Summit Counties. Consequently, on election day, some voters in the affected counties would have had the option of voting for two congressional candidates, neither of whom was an incumbent 17th district congressman: one to fill the short-term vacancy in the old 17th district and another to represent the new 17th district in the next session of Congress. Adding to the confusion, voters whose precincts were recently added to the 17th district would have been eligible to vote for only one candidate and could not have participated at all in the special election. With this confusing array of possibilities, candidates and election workers would have faced the formidable task of explaining to voters why some of them were being asked to take the extraordinary step of voting for two congressional representatives, while their neighbors were being asked to vote for only one.
Despite the obvious cost and confusion, a special election might nevertheless have been required were it not for the very real likelihood that Congressman Traficant‘s replacement would have arrived too late to represent the citizens of the 17th district. Because Ohio election law imposes certain delays for canvassing (
At oral argument before the district court, the ACLU speculated that a special election “could have” permitted a newly elected representative from the 17th district to vote in one of these infrequent lame duck sessions of Congress. In fact, as proved by later events, Congress did reconvene for a lame duck session. However, it adjourned on November 22, 2002, three days before a newly elected representative from the 17th district could have taken his or her seat. Although the majority implies otherwise, there was never any possibility that the 17th district could have been represented in the House votes on the Iraq war resolution, which took place on October 10, or on the creation of the Department of Homeland Security, which took place on November 13. See Op. at 649 n. 5. Nor, contrary to the majority‘s contention, is there any evidence in the record that the citizens of the 17th district suffered from “diminished constituent services” as a result of the Governor‘s refusal to hold a special election. Op. at 644. House Rule 2(i)(1) provides that, in the event of a vacancy, the Clerk of the House of Representatives shall continue to supervise a congressman‘s staff, thereby ensuring the continuation of constituent services. Moreover, when questioned by the district court on this issue, the ACLU expressly disavowed any injury related to constituent services.
III.
Governor Taft was undoubtedly bound by the language of Clause 4, but implicit in that Section is the duty to exercise a limited discretion to assure that the execution of the mandate does not, under the circumstances, amount to a wasteful, unduly confusing, and very probably ineffective and useless election.
Given the substantial cost of a special election, the likelihood of confusion, and the high probability, as proved by later events, that a newly elected representative would not have been able to take his or her seat, I do not believe that Governor Taft was required to hold a special election to fill the vacancy caused by the expulsion of Congressman James A. Traficant from the House. Holding a special election under these circumstances would have been absurd and meaningless, and in holding that the Governor was obligated to do so, this court pays no more than mere lip service to those principles of federalism and comity that are inherent in the Constitution. What‘s worse perhaps, under its “capable of repetition, while evading review” exercise of jurisdiction, Op. at 646, the court implicitly mandates mindless compliance with Clause 4 in the future, in an even more absurd and unreasonable circumstance.
I respectfully dissent.