236 F.3d 1174
10th Cir.
2000

CITIZENS FOR RESPONSIBLE GOVERNMENT STATE POLITICAL ACTION COMMITTEE; Stеve Durham; Phil Pankey; Colorado State Republican Central Committee; Colorado Republicans for Choice, an unincorporated Colorado political committee; Crown Point Cоmmunications, Inc., a Colorado corporation; Dorothy S. Wham; William Thiebaut, Jr.; Donna Mullins Good; Colorado Education Association Education Political Action Committee, a Colorado nоnprofit corporation, Plaintiffs-Appellees and Cross-Appellants, v. Donetta DAVIDSON, in her official capacity as the Secretary of State for the State of Colorado, Defendаnt-Appellant and Cross-Appellee. Colorado Right To Life Committee, Inc.; Citizens for Responsible Government, Inc.; Libertarian Party of Colorado; Libertarian Party of Denver; Sandra Johnson; Douglаs E. Anderson; David Aitken; Fred Greene; Firearms Coalition of Colorado, Inc.; William Pittman; Greg Walerius, Plaintiffs-Cross-Appellants, v. Donetta DAVIDSON, in her official capacity as the Secretary of State for thе State of Colorado, Defendant-Appellant and Cross-Appellee. Republican National Committee; Common Cause; League of Women Voters of Colorado; Association оf Community Organizations for Reform Now, Colorado Chapter, Amici Curiae. Terry L. Phillips, Plaintiff-Appellee and Cross-Appellant, v. Donetta Davidson, Secretary of State of the State of Coloradо, Defendant-Appellant and Cross-Appellee.

Nos. 99-1414, 99–1431, 991434, 99-1435, 99-1570, 99-1574

United States Court of Appeals, Tenth Circuit

Dec. 26, 2000

236 F.3d 1174

is not the physical peril against which FELA protects. Given FELA‘s central focus on physical dangers, we hold that Mr. Smith‘s rotating shift schedule is not actionаble under FELA because the shift schedule did not place Mr. Smith within the zone of danger of a physical impact.

III

In sum, we hold that Mr. Smith‘s disrupted sleep cycle, and resulting depression and other physical mаladies, constituted an emotional injury to which Consolidated Rail‘s zone of danger test applies. Because Mr. Smith‘s emotional injuries were not caused by a physical impact or fear thereof, his claim is not actionable under FELA.2

We REVERSE the district court‘s denial of Union Pacific‘s motions for summary judgment and judgment as a matter of law, and REMAND with instructions to enter judgment in favor of Union Pacific.

Maurice G. Knaizer, Deputy Attorney General, States Services Section (Ken Salazar, Attorney General, Paul Farley, Special Assistant Attorney General, with him on the briefs) Denver, Colorado, for the Defendant-Appellant-Crоss- Appellee.

James Bopp, Jr. (Heidi K. Meyer, with him on the briefs), Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Plaintiff-Appellee-Cross-Appellant Citizens for Responsible Government State Political Action Committee and Plaintiffs-Cross-Appellants Colorado Right to Life Committee, Inc., et al.; Timothy M. Tymkovich, Hale, Hackstaff, Tymkovich & Erkenbrack, LLP, Denver, Colorado, for Plaintiffs-Appellees-Cross-Appellаnts Steve Durham et al. and Plaintiffs-Cross-Appellants Libertarian Party of Colorado et al.; Blain D. Myhre (Edward T. Ramey, with him on the briefs), Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, Colorado, for Plaintiffs-Appellеes-Cross- Appellants Colorado Republicans for Choice et al.

Robert F. Hill (Jennifer H. Hunt, ‍‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌‌‍with him on the brief) Hill & Robbins, P.C., Denver, Colorado, for the Amici Curiae Common Cause and the League of Women Voters of Colorado.

Michael W. Grebe, General Counsel, Thomas J. Josefiak, Chief Counsel, and Alexander N. Vogel, Deputy Counsel, Republican National Committee, Washington, D.C., filed an amicus brief for the Republican National Committee.

Gregory Luke, John C. Bonifaz and Brenda Wright, National Voting Rights Institute, Boston, Massachusetts, filed an amicus brief for the Association of Community Organizations for Reform Now, Colorado Chapter.

Maurice G. Knaizer, Deputy Attorney General, States Sеrvices Section (Ken Salazar, Attorney General, Paul Farley, Special Assistant Attorney General, with him on the briefs) Denver, Colorado, for the Defendant-Appellant-Cross-Appellee.

Blain D. Myhre (Edward T. Ramey, with him on the briefs) Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, Colorado, for the Plaintiff-Appellee-Cross-Appellant.

Before KELLY, HENRY, Circuit Judges, and SHADUR, District Judge.*

PAUL KELLY, JR., Circuit Judge.

These appeals arise оut of four cases filed in the District of Colorado. In each case, the plaintiffs challenged one or more provisions of Colorado‘s Fair Campaign Practices Act (“FCPA“), Colo.Rev.Stat. §§ 1-45-101 to -118, on First and Fourteenth Amendment grounds. The district court dismissed some plaintiffs for lack of standing, upheld most of the challenged provisions, and invalidated others as unconstitutional. All parties appealed, addressing various subsections of Colo.Rev.Stat. §§ 1-45-103 (Definitions), 1-45-104 (Contribution Limits), 1–45–105 (Voluntary Spending Limits), 1-45-106 (Unexpended Contributions), and 1-45-107 (Independent Expenditures).1 While the appeals were pending, the Colorado General Assembly substantially amended the FCPA. See Act of March 15, 2000, H.B. 00-1194, § 12, 2000 Colo. Legis. Serv. 36 (West) [hereinafter “H.B. 00-1194“]. Various definitions in § 103 were added, deleted, or amended. Section 104 was repealed and replaced with § 105.3. Section 105 was repealed and not replaced. Section 106(1) was amended; § 106(2) was deleted. Section 107 was unaffected.

Because we hold that the challenges to former §§ 103(12), 104, 105, 106(2) are now moot, we vaсate the portions of the district court‘s orders that deal with those ‍‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌‌‍sections or with individual plaintiffs’ standing to challenge them. The appeal as to § 106(1) is dismissed. We reverse the district court‘s judgment as to §§ 103(7), 103(10), 103(11), 107(1), and 107(2).

Discussion

As stаted above, this case includes appeals and cross-appeals from four separate district court actions. Our review of the record, the parties’ notices of appeal, and the briefs indicates that the following provisions of the (pre-H.B.00-1194) FCPA are at issue here: Colo. Rev. Stat. §§ 1-45-103(7), -103(10), -103(11), -103(12), 104(1), -104(2), −104(4), −104(5), -104(7), 105 generally, -105(1), -105(2), -105(3), 105(4), -105(5), −105(6), −105(7), –106(1), 106(2), -107(1), and -107(2).2 In addition to the substantive validity of the statutes, the parties have also briefed numerous questions relating tо standing and ripeness. As explained below, many of the foregoing issues have been mooted by the passage of H.B. 00–1194.

I. Mootness

Because the existence of a live case or controversy is a сonstitutional pre-requisite to federal court jurisdiction, the court must determine whether a case is moot before proceeding to the merits. McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir.1996) (citing Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir.1991)). A сase is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. City of Erie v. Pap‘s A.M., 529 U.S. 277, 120 S.Ct. 1382, 1390, 146 L.Ed.2d 265 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citation omitted)). The cruciаl question is whether granting a present determination of the issues offered ... will have some effect in the real world. Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir.1999) (quotations and citations omitted). [A]n actual controversy must be extant ‍‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌‌‍at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quotations and citations omitted). The parties must continue tо have a personal stake in the outcome throughout the case.

A. Generally

In general, the repeal of a challenged statute is one of those events that makes it absolutely clear that the alleged-ly wrongful behavior—here, thе threat of prosecution under one of the repealed sections—could not reasonably be expected to recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 120 S.Ct. 693, 708, 145 L.Ed.2d 610 (2000) (quoting United States v. Concentrаted Phosphate Export Ass‘n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). Indeed, this court has held that [a] declaratory judgment on the validity of a repealed [statute] is a textbook example of advising what the law would be upon a hypothetical state of facts. National Advertising Co. v. City & County of Denver, 912 F.2d 405, 412 (10th Cir.1990 ) (quotations and citations omitted). The parties have no legal-ly cognizable interest in the constitutional validity of an obsolete statute. Thus, the parties’ challenges to the single-entity requirement in 1-45-103(12), to 1-45-105 as a whole and with respect to particular subsections, and to 1-45-106(2) are clearly moot. See H.B. 00- 1194, § 2 (deleting challenged language in Colo. Rev. Stat. § 1- 45-103(12)); § 12 (repealing Colo.Rev. Stat. § 1-45-105); § 4 (deleting Colo.Rev. Stat. 1-45-106(2)).

The General Assembly also repealed 1-45-104, see H.B. 00-1194, § 12, but enacted a new contribution limitation statute in its place. See H.B. 00-1194, § 1, codified at Colo. Rev. Stat. § 1-45-105.3 (2000). Where a new statute is sufficiently similаr to the repealed [statute] that it is permissible to say that the challenged conduct continues, the controversy is not mooted by the change, and a federal court continues to have jurisdiction. Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 & n. 3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); see also Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir.2000) ([A] superseding statute or regulation moots a case only to the extеnt that it removes ‍‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌‌‍challenged features of the prior law.) (quotations and citation omitted); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1548 (8th Cir.1996). We have carefully compared each challenged provision in § 104 to the most analogous provision in § 105.3, and we conclude that the differences between the statutes are too numerous and too fundamental to preserve our jurisdiction over the § 104 challenges. Compare Colo. Rev. Stat. § 1-45- 104(2), -104(5) (1999), with Colo.Rev.Stat. § 1-45-105.3(1) (2000); compare Colo.Rev. Stat. § 1-45-104(4) (1999), with Colo.Rev. Stat. § 1-45-105.3(2)(c) (2000); compare Colo. Rev. Stat. § 1-45-104(7) (1999), with Colo. Rev. Stat. § 1-45-105.3(3) (2000).3 Accordingly, the parties’ appeals with respect to subsections (1), (2), (4), (5), and (7) of § 104 are all moot.

Conclusion

We hold that the challenges to §§ 103(12), 104, 105, and 106(2) have been mooted by the passage of H.B. 00-1194. We thereforе VACATE the portions of the district court‘s orders that deal with those provisions, including the portions that address the parties’ standing to challenge them, and REMAND the mooted claims for dismissal without prejudice. The appeal regarding § 106(1) is DISMISSED. We further hold that § 103(7), (10)(a), and (11) are unconstitutional as written but that the unconstitutional portions are severable from the definitions. The definitions are therefore declared partially invalid, as indicated in this opinion, and all portions of the district court‘s orders that relate to the definitions and the parties’ standing to challenge them are REVERSED. Finally, we hold that § 107(1) and (2) are unconstitutional and we REVERSE the district court‘s judgment upholding those provisions. All motions currently pending before this court are DENIED.

PAUL KELLY, JR.

UNITED STATES CIRCUIT JUDGE

Notes

1
1. Hereinafter, the title and article will be omitted from textual references tо FCPA provisions. For example, “§ 103” will be used to refer to Colo.Rev.Stat. § 1-45-103.
2
*The Honorable Milton I. Shadur, United States Senior District Judge for the Northern District of Illinois, sitting by designation. 2. Given our disposition of the case, we need not reach the other issues raised by the appeal and cross-appeal. 2. The notice of appeal from No. 96-S-2973, Durham et al. v. Buckley, also purports to challenge § 104(3). That subsection was neither raised nor ruled upon in the district court, nor was it discussed in any of the parties’ appellate briefs. The notice оf appeal from No. 96-S-2844, CRLC et al. v. Buckley, purports to appeal § 107(3). In response to Colorado‘s defense of that provision, Colo. Answer Br. at 41-42 (Jan. 14, 2000), all plaintiffs denied that § 107(3) was at issue on appeal. CRLC et al. Reply Br. at 14 n.4 (Jan. 28, 2000); Durham/CRC et ‍‌‌‌‌‌‌‌‌‌‌​​‌​‌‌​​‌​‌​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌​‌​​​​‌‌‍al. Reply Br. at 18 (Jan. 28, 2000). We therefore do not address either provision.
3
3. There is no analogue to Colo.Rev.Stat. § 1- 45-104(1) (1999) in § 1-45-105.3 (2000).