M.S., аn individual; V.V., an individual; J.H., an individual; E.D., an individual; M.B., an individual; FAMILIAS EN ACCION, a domestic non-profit corporation; LOS NINOS CUENTAN, a domestic non-profit corporation, on behalf of themselves and all those similarly situated, Plaintiffs-Appellants, v. KATE BROWN, in her official capacity as Governor of the State of Oregon; TAMMY BANEY, in her official capacity as Chair of the Oregon Department of Transportation Commission; DAVID LOHMAN, in his official capacity as member of the Oregon Department of Transportation Commission; SUSAN MORGAN, in her official capacity as member of the Oregon Department of Transportation Commission; ALANDO SIMPSON, in his official capacity as member of the Oregon Department of Transportation Commission; SEAN O‘HALLORAN, in his official capacity as member of the Oregon Department of Transportation Commission; MATTHEW L. GARRETT, in his official capacity as Director, Oregon Department of Transportation; TOM MCCLELLAN, in his official capacity as Administrator of Driver and Motor Vehicles Division, Oregon Department of Transportation, Defendants-Appellees.
No. 16-35431
United States Court of Appeals, Ninth Circuit
September 5, 2018
Before: A. Wallace Tashima, M. Margaret McKeown, and Richard A. Paez, Circuit Judges. Opinion by Judge Paez
D.C. No. 6:15-cv-02069-AA. Argued and Submitted May 17, 2018, Portland, Oregon.
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
SUMMARY*
Civil Rights
The panel affirmed the district court‘s dismissal, for lack of subject matter jurisdiction, of an action brought under
Plaintiffs alleged that voters’ rejection, by referendum through ballot Measure 88, of SB 833 was motivated by discriminatory animus, and that the state officials’ consequent refusal to issue driver cards violated their Fourteenth Amendment rights to equal protection and due process. Plaintiffs sought (1) a declaration that Measure 88 violates their constitutional rights and was void and unenforceable; (2) a declaration that the Governor was authorized and required to issue driver cards pursuant to SB 833; and (3) an injunction, if necessary to enforce such declarations.
The panel held that because plaintiffs’ requested remedies were either ineffective or beyond the scope of the district court‘s remedial power, plaintiffs failed to establish redressability. Accordingly, the district court did not err in dismissing the complaint for lack of standing. The panel held that except in certain circumstances not applicable in this case, structural constitutionаl limits prevent federal courts from ordering government officials to enact or implement a bill that has not completed a lawfully prescribed legislative process—which, in Oregon, requires majority voter approval once a bill is properly referred to a referendum. Plaintiff did not allege that the initial referral of SB 833 to the voters was improper in any way. Instead, plaintiffs challenged only the voters’ rejection of Measure 88 and the Governor‘s subsequent decision to abide by the result of the referendum election. The panel concluded that the legislative process for SB 833 to become law remained incomplete, and the district court could not issue declaratory relief authorizing and requiring the Governor to implement it.
COUNSEL
David Henretty (argued), Monica Goracke, and Stephen S. Walters, Oregon Law Cеnter, Portland, Oregon, for Plaintiffs-Appellants.
Jona J. Maukonen (argued) and Susan Yorke, Assistant Attorneys General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Office of the Attorney General, Salem, Oregon; for Defendants-Appellees.
Michael M. Hethmon, Senior Counsel; Dale L. Wilcox, Executive Director & General Counsel; Immigration Reform Law Institute, Washington, D.C.; for Amicus Curiae Oregonians for Immigration Reform.
PAEZ, Circuit Judge:
The Oregon Constitution grants the people of Oregon the power of referendum to approve or reject bills passed by the Oregon Legislature before they become law. In 2014, the people exercised this power by rejecting Senate Bill 833 (SB 833), which would have afforded Oregon residents access to driving privileges through the issuance of driver cards without requiring
Plaintiffs, five Oregon residents who cannot prove their lеgal presence and two non-profit corporations, subsequently brought this action under
In the context of this unchallenged and ongoing suspension of the bill‘s operation, the district court dismissed the plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1) for lack of
I.
A.
The facts of this case can be traced to the enactment of the REAL ID Act of 2005, Pub. L. No. 109-13 (codified in scattered sections Title 8 of the U.S. Code). When the REAL ID Act was enacted, the State of Oregon did not require its residents to prove their legal presence in the United States to obtain driver‘s licenses. The REAL ID Act, however, altered this framework by providing that, effective May 2008, states must require individuals to prove their legal presence in the United States to obtаin any documents that serve as a form of federally approved identification, including driver‘s licenses.
To comply with the requirements of the REAL ID Act, the Oregon Legislature enacted SB 1080 in February 2008. SB 1080 requires applicants for driver‘s licenses to prove their legal presence in the United States.
In April 2013, majorities in both chambers of the Oregon Legislature voted to enact SB 833, the bill at issue in this case, which would restorе access to driving privileges for Oregon residents who cannot prove their legal presence in the United States.1 In particular, SB 833 would authorize state officials to issue limited-use driver cards consistent with the REAL ID Act. As one of SB 833‘s sponsors stated during a floor debate in the Oregon House, the main purpose of SB 833 was to improve traffic safety and reduce the number of unlicensed, uninsured drivers on
One week after the governor signed SB 833, however, two legislators who had opposed the bill and a third person filed a petition to refer it as a ballot measure to a state-wide referendum for approval or rejection by the people pursuant to
As documented in the Official 2014 General Election Voter‘s Pamphlet, the ensuing Measure 88 campaign was motivated by efforts to curb “illegal immigration” and prevent “illegal immigrants” from obtaining or renewing their driving privileges. Similar statements singling out “illegal aliens” were made in other public settings, including a “Protect Oregon Driver Licenses” webpage set up by a group of driver card opponents in May 2013. In addition, statements in the Official 2014 General Election Voter‘s Pamphlet denounced the “Mexican” consular ID as a possible form of identification; the possibility of increased activity by “Mexican” drug cartels; and the “flood” and “surge” of “Central American minors to our southern border.” Opposition statements did not mention immigrants of any other race or nationality.
On November 14, 2014, 66% of Oregon voters at the referendum election voted “No” on Measure 88, thus rejecting SB 833. As a result, SB 833 never became effective, and the State has not issued driver cards.
B.
In November 2015, individuals M.S., V.V., J.H., E.D., and M.B. and non-profit corporations Familias en Acción and Los Niños Cuentan (collectively, M.S.) brought this putative class action under
M.S., an Oregon resident who is unable to prove her legal presence in the United States, alleges two violations of the Equal Protection Clause and one violation of her substantive due process rights. In particular, she alleges that the voters’ rejection of Measure 88 and the Governor‘s consequent refusal to issue driver cards arе unconstitutional because the referendum result was motivated by animus towards Mexicans and Central Americans and not rationally related to a legitimate state interest.5 M.S. does not, however,
In May 2016, the district court granted the Governor‘s motion to dismiss the complaint pursuant to Rule 12(b)(1) on the basis that M.S. failed to establish the redressability element of
respect to the referendum election.” “Rather,” M.S. was challenging “only the voters’ rejection of Measure 88—and, by extension, of SB 833—and the State‘s alleged refusal to implement SB 833 as a result of the referendum.” The district court then reasoned that “even if [it] found the rejection of Measure 88 to be unconstitutional, SB 833 would not become law because Measure 88 did not receive the majority voter approval required under the Oregon Constitution once SB 833 was properly referred to the people for a referendum vote. The district court further reasoned that “[p]rinciples of federalism underlying the Tenth and Eleventh Amendments forbid [it] from directing the State to enact or enforce state laws.” Thus, the district court concluded, M.S. failed to establish the redressability element of standing.7 M.S. v. Brown, 222 F. Supp. 3d 908, 914 (D. Or. 2016).
M.S. timely appealed.
II.
Reviewing de novo the district court‘s dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction, Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir. 2018), we conclude that M.S. lacks
renew driving privileges—is redressable through a favorable judicial decision. Bеcause each of M.S.‘s requested remedies is either ineffective or beyond the scope of the district court‘s remedial power, M.S. fails to establish redressability. Accordingly, the district court did not err in dismissing the complaint for lack of standing.8
A.
The doctrine of standing is rooted in the “Cases or Controversies” clause of
Most relevant here is the third prong of
(1992) (internal quotation marks omitted). A plaintiff‘s burden to demonstrate redressability is “relatively modest.” Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (quoting Bennett v. Spear, 520 U.S. 154, 171 (1997)). She “need not demonstrate that there is a ‘guarantee’ that [her] injuries will be redressed by a favorable decision,” id. (quoting Graham v. FEMA, 149 F.3d 997, 1003 (9th Cir. 1998)); rather, a plaintiff need only “show a ‘substantial likelihood’ that the relief sought would redress the injury,” Mayfield v. United States, 599 F.3d 964, 971 (9th Cir. 2010). If, however, a favorable judicial decision would not require the defendant to redress the plaintiff‘s claimed injury, the plaintiff cannot demonstrate redressability, see, e.g., Mayfield, 599 F.3d at 971, unless she adduces facts to show that the defendant or a third party are nonetheless likely to provide redress as a result of the decision, see Lujan, 504 U.S. at 562.
Finally, even where a plaintiff requests relief that would redress her claimed injury, there is no redressability if a federal court lacks the power to issue such relief. See Republic of Marshall Islands v. United States, 865 F.3d 1187, 1199 (9th Cir. 2017) (“Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury.” (emphasis added) (quoting Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.))). When determining the extent of the district court‘s remedial power for purposes of redressability, we “assume that [the] plaintiff‘s claim has legal merit.” Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir. 2004). However, not all meritorious legal claims are redressable in federal court. See, e.g., Republic of Marshall Islands, 865 F.3d at 1199 (“When a state party violates a non-self-executing treaty provision, ‘the judicial courts have nothing to do and can give no redress.‘” (quoting Head Money Cases, 112 U.S. 580, 598 (1884))). This is so even where, as here, a plaintiff alleges constitutional violations. See, e.g., Connor v. Williams, 404 U.S. 549, 550–51 (1972); Reynolds v. Sims, 377 U.S. 533, 585 (1964). With these principles in mind, we turn to the remedies at issue in this casе.
B.
We conclude that M.S. has failed to establish redressability because she seeks only remedies that would not be substantially likely to redress her claimed injury, see Mayfield, 599 F.3d at 971, or which are beyond the district court‘s remedial power to issue, see Republic of Marshall Islands, 865 F.3d at 1199. In particular, M.S. seeks to redress her claimed injury—her inability to obtain or renew driving privileges—through the following remedies: (1) a declaration “that Measure 88 violates [her constitutional rights] and is void and unenforceable“; (2) a declaration that the Governor is “authorized and required to issue driver cards pursuant to SB 833“; and (3) “[a]n injunction, if necessary,” to enforce such declarations. We address each requested remedy in turn. See, e.g., Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 815 (9th Cir. 2017).
1.
M.S. first requests a “declaration that Measure 88 violates [her] rights under the Equal Protection and Due Process Clauses ..., and is void and unenforceable.” We сonstrue this request to be directed at the voters’ rejection of Measure 88, rather than Measure 88 itself. See supra note 5. Therefore, the question before us is whether M.S.‘s inability to obtain or renew driving privileges is redressable through a declaration that the voters’ rejection of Measure 88 violated her constitutional rights, and is void and unenforceable. M.S. asserts that such a declaration would render SB 833 effective under Oregon law, thus enabling her to access driving privileges and redressing her claimed injury. In response, the Governor argues that majority voter approval is necessary to effectuate SB 833, and therefore state officials would not be required—indeed, would not have the statutory authority—to issue driver cards even if the declaration were issued. We agree with the Governor.
The
M.S. argues that majority voter approval is not required to implement SB 833 in light of a 1968 amendment to the Oregon Constitution, which abrogated the above statements to the contrary in Heltzel and Davis. We disagree. The amendment in question revised
In light of the currеnt validity of this majority voter approval requirement, we conclude that the requested
declaration does not establish redressability. After the Oregon Legislature initially “enacted” SB 833, the Act was referred to the people for a referendum vote prior to its taking effect. M.S. does not challenge the legality of that referral. Once referred to the people, SB 833 was “again reduced to a bill,” Davis, 278 P. at 92, or “merely a measure,” Heltzel, 255 P.2d at 125. Even if Measure 88 also remained an “Act” or “statute,” as M.S. contends, its effect was stayed pending majority voter approval at a referendum election. See
In short, M.S.‘s requested declaration would not be tantamount to majority voter approval, which is required under the Oregon Constitution for SB 833 to take effect and thus authorize the issuance of driver cards. Because the declaration would not require the Governor to issue driver cards, and M.S. has not alleged that she is otherwise likely to obtain access to driving privileges as a result of the declaration,10 there is no redressability as to this form of relief.11
Next, M.S. seeks a declaration that the Governor is “authorized and required to issue driver cards pursuant to SB
833.” Unlike M.S.‘s first requested judicial declaration, this declaration, if issued by the district court, would redress M.S.‘s claimed injury by “requir[ing]” the Governor “to issue driver cards.” See, e.g., L.A. Cty. Bar Ass‘n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue the requested declaration, we must assume that it is substantially likely that the California legislature ... would abide by our authoritative determination.“). We hold, however, that on the facts alleged here, the district court lacks the power to issue such an intrusive declaration, which would amount to a requirement that the Governor effectuate a bill that never became law. First, the requested declaration is incompatible with democratic principles embedded in the structure of the Constitution, as well as the principle that equitable remedies must be tailored to fit the nature of the cоnstitutional violations alleged. Second, under the unusual circumstances of this case, the declaration also violates principles of federalism. Accordingly, M.S. cannot establish redressability through her second request for relief. See Republic of Marshall Islands, 865 F.3d at 1199.
a.
We begin by recognizing the circumstances in which an improperly motivated referendum or initiative outcome may give rise to a justiciable constitutional claim—i.e., as relevant here, a claim capable of alleging a redressable injury.12 Where a plaintiff challenges the “substantive
result” of an initiative or referendum election on the basis of improper voter motivation, a federal court has the power to declare such a result unconstitutional. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 199 (2003) (quoting Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 676 (1976)). Thus, for example, a federal court may invalidate the repeal of an existing law if the vоters enacted or approved the repeal for discriminatory reasons. See Crawford v. Bd. of Educ., 458 U.S. 527, 539 n.21 (1982) (citing Reitman v. Mulkey, 387 U.S. 369, 380 (1967)). The exercise of judicial power in this manner—that is, as a check on the people‘s power to enact or repeal laws (repeals themselves being a type of enacted law) is appropriate because “[t]he sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.” Hunter v. Erickson, 393 U.S. 385, 392 (1969).
The absence of a law, however, has never been held to constitute a “substantive result” subject to judicial review, and for good reason: it is axiomatic that “the Constitution contemplates that democracy is the appropriate process for change, so
Federal Courts do have jurisdiction and power to pass upon the constitutionality of Acts of Congress, but we are not aware of any decision extending this power in Federal Courts to order Congress to enact legislation. To do so would constitute encroachment upon the functions of a legislative body and would violate the time-honored principle of separation of powers of the three great departments of our Government. This principle is equally applicable to the power of a Federal Judge to order a state legislative body to enact legislation. The enactment of legislation is not a ministerial function subject to control by mandamus, prohibition or the injunctive powers of a court.
Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 797 (6th Cir. 1996) (emphasis added) (quoting Joseph Skillken & Co. v. City of Toledo, 528 F.2d 867, 878 (6th Cir. 1975), vacated and remanded sub nom. Joseph Skilken & Co. v. City of Toledo, 429 U.S. 1068 (1977), decision adhered to on remand, 558 F.2d 350 (6th Cir. 1977)). Although the scope of this pronouncement may be overbroad—as we explain more fully below, federal courts have jurisdiction to order a remedy requiring the enactment of legislation in certain narrow circumstances, such as where fundamental rights are at stake—we agree with it in principle.
In light of the bedrock democratic principle recognized in these cases, we decline to extend the Supreme Court‘s “substantive result” jurisprudence beyond its current scope. Rather, we hold that, except in сertain circumstances not applicable here, see infra pp. 22–24 & note 14, structural constitutional limits prevent federal courts from ordering government officials to enact or implement a bill that has not completed a lawfully prescribed legislative process—which, in Oregon, requires majority voter approval once a bill is properly referred to a referendum.13
begun—at the time we decided the case. Nonetheless, Eu is distinguishable from the present case in two ways.
First, unlike M.S., the plaintiff there alleged that the limited number of judgeships violated the “fundamental right of access to the courts in civil litigation.” Id. at 705 (emphasis added). Our holding today does not prevent federal courts from ordering government officials to vindicate fundamental rights, even where the means for doing so have not been democratically approved. As the Supreme Court has recognized, “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Obergefell, 135 S. Ct. at 2606 (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). M.S., however, does not allege that she has a fundamental right to access driving privileges. Thus, “democracy is the appropriate process” for the change she seeks.14 Id. at 2605.
Second, also unlike M.S., the plaintiff in Eu challenged the constitutionality of the existing statute prescribing the number of judgeships rather than solely the absence of a statute. 979 F.2d at 699. Our holding today also allows for
this type of challenge, as federal courts undoubtedly have the power to strike down existing laws as unconstitutional, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), even where doing so would require the enactment of a new law, see, e.g., N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87–88 (1982). Here, however, M.S. does not challenge the constitutionality of the REAL ID Act or SB 1080, the Oregon law implementing the REAL ID Act, and thus we are presented only with a challenge to the State‘s failure to effectuate SB 833 after Measure 88 failed to obtain voter approval.
M.S. also points to SDDS, Inc. v. South Dakota, 47 F.3d 263 (8th Cir. 1995), where the Eighth Circuit held that the voters’ rejection of a statute at a referendum election, and the initial referral of the statute to the voters, violated the Dormant Commerce Clause. Id. at 268, 272. Although the court did not expressly consider the question of standing, its exercise of jurisdiction was nonetheless consistent with the result
In sum, Eu and SDDS are consistent with the basic democratic principle that courts are not an appropriate vehicle for effectuating change from a lawful status quo—here, Oregon‘s refusal to issue driving privileges without proof of legal presence in the United States—and it is that basic principle which guides our holding today.
Finally, to the extent M.S. seeks to invalidate the initial referral of SB 833 to the voters—which, as we have just explained, would effectively render the legislative process complete—such a remedy would not comport with well-settled principles of equity. The scope of an equitable remedy must be “tailor[ed] ... to fit ‘the nature and extent of the constitutional violation.‘” Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974)); see also, e.g., Gill, 138 S. Ct. at 1931 (concluding that plaintiffs did not establish redressability because, inter alia, their requested remedy was not “limited to the inadequacy that produced the injury in fact” (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996))). Again, M.S. does not allege that the initial referral of SB 833 to the voters was improper in any way. Instead, she challenges only the voters’ rejection of Measure 88 and the Governor‘s subsequent decision to abide by the result of the referendum election. Thus, there is no basis for the district court to invalidate the referral of SB 833 to the voters and the corresponding suspension of the bill‘s effect. The legislative prоcess for SB 833 to become law remains incomplete, and the district court cannot issue declaratory relief authorizing and requiring the Governor to implement it.
b.
Under the circumstances of this case, principles of federalism also prevent the district court from ordering relief that would require the Governor to implement SB 833. Principles of federalism “have applicability where injunctive relief is sought ... against those in charge of an executive branch of an agency of state or local governments,” Rizzo v. Goode, 423 U.S. 362, 380 (1976), as well as where declaratory relief is sought against such officials, see, e.g., Jacobson v. Tahoe Reg‘l Planning Agency, 566 F.2d 1353, 1366 (9th Cir. 1977), aff‘d in part, rev‘d in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Reg‘l Planning Agency, 440 U.S. 391 (1979). In particular, we have explained that “[p]rinciples of federalism counsel against” awarding “affirmative injunctive and declaratory relief that would require state officials to repeal an existing law and enact a new law proposed by plaintiffs.16 Id. (citing Rizzo, 423 U.S. at 380).
The
sues state officials seeking intrusive affirmative relief that is incompatible with democratic principles and where there is no basis for the district court to invoke its equitable power, see supra pp. 18–24, such relief would also violate principles of federalism. See, e.g., Rizzo, 423 U.S. at 378–80. Thus, on the facts presented here, principles of federalism provide an additional barrier to the district court‘s power to issue M.S.‘s requested declaration.17
3.
Finally, M.S.‘s third request for relief is for an injunction, “if necessary,” to enforce the declarations she seeks in her first and second requests. As M.S.‘s first two requests do not establish redressability for the reasons stated above, M.S.‘s request for injunctive relief to enforce those requests—which, we note, would be even more intrusive than a declaration, see Eu, 979 F.2d at 703—likewise falls short.
III.
M.S. calls our attention to the daunting prospect of rеturning to the political process to seek access to driving privileges that she and others like her need in order to drive legally to their jobs, doctors, schools, and churches. That process, she asserts, “is an illusion for members of disfavored minority groups as long as their rights are subject to popular veto referend[a] infected by racial or other class-based animus.” We do not deny the force of this argument, which has shaped our Fourteenth Amendment jurisprudence for the last eighty years. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). Nonetheless, the risk of improper animus infecting the political process does not confer upon the federal courts the power to assume
We recognize that our opinion reflects аn asymmetry in federal judicial power: federal courts have the power to remedy injuries flowing from a discriminatory law, but not the power to remedy injuries that exist after the discriminatory rejection of a law—at least where fundamental rights or other similarly vested rights are not at stake. That asymmetry, however, is the product of our constitutional structure and the democratic system of government it establishes. Injuries that exist following the discriminatory rejection of a law are, by definition, injuries that already existed in our society. Those injuries may be just as severe as any that flow from a duly enacted law. But unless the state action that causes an existing injury is itself unlawful, any redress must lie exclusively in the democratic process.
For all of the above reasons, M.S. has not established the redressability element of
AFFIRMED.