MISSOURIANS FOR FISCAL ACCOUNTABILITY v. James KLAHR, in his official capacity as Executive Director of the Missouri Ethics Commission
No. 15-2172
United States Court of Appeals, Eighth Circuit.
July 29, 2016
830 F.3d 789
COLLOTON, Circuit Judge, concurring.
The district court found that appellant Daniel Musa was an organizer or leader of criminal activity that was “otherwise extensive.” See
Stephen M. Hoersting, Gober Hilgers PLLC, Austin, TX, argued (Chris K. Gober, Gober Hilgers PLLC, Austin, TX, Caleb M. Jones, Jones and Associates, LLC, Columbia, MO, on the brief), for appellant.
J. Andrew Hirth, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.
Before LOKEN, ARNOLD, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
I.
Campaign committees are “formed by an individual or group of individuals to receive contributions or make expenditures and whose sole purpose is to support or oppose the qualification and passage of one or more particular ballot measures in an election....”
“Any person who knowingly accepts or makes a contribution or makes an expenditure in violation of any provision of this chapter [130] ... shall be held liable to the state in civil penalties in an amount equal to any such contribution or expenditure.”
According to MFA,
After the election, MFA filed the required termination statement. See
II.
The MEC asserts MFA lacks standing because it faces no actual or imminent threat of a concrete and particularized injury-in-fact.
“Standing is always a ‘threshold question’ in determining whether a federal court may hear a case.” 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011). A party invoking federal jurisdiction has the burden of establishing standing “for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). “[A]n actual controversy must be extant at all
[T]o seek injunctive relief, a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers, 555 U.S. at 493, quoted in Bernbeck v. Gale, 829 F.3d 643, 645-47, 2016 WL 3769481, at *2 (8th Cir. July 14, 2016). To seek declaratory relief, standing must exist “at the time of the hearing....” Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).
In the First Amendment context, “two types of injuries may confer Article III standing to seek prospective relief.” Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003), citing Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). First, MFA could establish standing by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Second, MFA can establish standing by alleging that it self-censored. 281 Care Comm., 638 F.3d at 627. “[A] First Amendment plaintiff who faces a credible threat of future prosecution suffers from an ongoing injury resulting from the statute‘s chilling effect on his desire to exercise his First Amendment rights.” Ward, 321 F.3d at 1267 (internal quotations omitted) (emphasis in original). Indeed, “when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society‘s interest in having the statute challenged.” Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (applying this principle to the prudential concern with third-party standing), cited by Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (“The leniency of First Amendment standing manifests itself most commonly in the doctrine‘s first element: injury-in-fact.“). See also Arizona Right to Life Political Action Committee v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[W]hen the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing.“).
In its verified complaint, MFA says it engaged in self-censorship to comply with
In analyzing a claim of standing through self-censorship, “[t]he relevant in-
MFA has Article III standing to challenge
III.
Though the 2014 election has passed, this case is not moot. For mootness, the “requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). MFA violated the formation deadline by forming within thirty days of election. For this, the MEC can impose a fee. See
Alternatively, MFA invokes the exception to mootness for “capable of repetition yet evading review.” This exception will “rescue an otherwise moot claim if (1) the challenged conduct is of too short a duration to be litigated fully prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Connor, 323 F.3d at 691. The question is “whether the controversy was capable of repetition and not ... whether the claimant had demonstrated that a recurrence of the dispute was more probable than not.” Honig v. Doe, 484 U.S. 305, 318 n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (emphasis in original).
“Election issues are among those most frequently saved from mootness by this exception.” Connor, 323 F.3d at 691 (internal quotations omitted). Although MFA terminated by operation of law as a
The district court did not err in concluding that the case is not moot.
IV.
The district court dismissed MFA‘s claims as not ripe. MFA maintains that its challenge to the 30-day formation deadline is ripe for review. Ripeness is reviewed de novo. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014).
The ripeness doctrine prevents courts “through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also [protects] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Connor, 323 F.3d at 692, quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). To decide ripeness, courts consider: “(1) the hardship to the plaintiff caused by delayed review; (2) the extent to
In Connor, this court addressed the statute for continuing committees, which then imposed a 30-day formation deadline. Connor, 323 F.3d at 693, citing
Eleven years later, in 2014, MFA challenged
The touchstone of ripeness is the harm asserted by MFA. MFA asserts the harm of self-censorship, based on its compliance with
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The dismissal of MFA‘s claims is reversed, and the case remanded for proceedings consistent with this opinion.
The 2014 election has come and gone, MFA‘s election committee has dissolved, and the ballot measure for which MFA‘s election committee was created to support has passed. MFA and the court nonetheless maintain that MFA has carried its burden to demonstrate an ongoing Article III case or controversy. Because I believe that this case is moot, that its challenges to future disputes are unripe, and that MFA lacks standing to obtain prospective equitable relief, I respectfully dissent.
Article III requires that a plaintiff‘s personal interest in the litigation must continue throughout the life of the case, otherwise the case is moot. See National Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 691 (8th Cir. 2003). The court draws on Connor to hold that MFA‘s claims were not moot because they were capable of repetition yet would evade review. Claims are “capable of repetition yet evading review” only when “there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id. MFA, however, provides no evidence that it will participate in a future election, much less create an election committee within 30 days of one. The very nature of the election committee in Connor, a continuing committee, suggested future participation because continuing committees do not terminate by operation of law. See
MFA‘s election committee, however, is a campaign committee that, as the court itself recognizes, dissolved by operation of law shortly after the 2014 election. See
I respectfully disagree with the court‘s reliance on MFA‘s allegation that the formation requirement will harm MFA “if and when it chooses to” participate in another election. Not only is the allegation not evidence, this “some day” intention is much too speculative to overcome mootness. See Bernbeck v. Gale, No. 15-1983, 829 F.3d 643, 648 n. 3, 2016 WL 3769481, at *3 n. 3 (8th Cir. July 14, 2016). The court‘s reliance on Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), is also misplaced. Super Tire involved a state law that made striking workers eligible for welfare programs. Even though the strike in question ended while the litigation was pending, the state law continued to affect the interests of the parties because, as the Supreme Court explained one year after deciding Super Tire, the parties were engaged in “cyclically recurring bargaining,” Weinstein v. Bradford, 423 U.S. 147, 148, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam), and the law‘s favorable effect on the employees altered the parties’ bargaining positions. See Super Tire, 416 U.S. at 124. The state law therefore had an ongoing, continuous, and certain effect. This case more closely resembles Weinstein, where the Supreme Court held that a former state prisoner‘s challenge to the state‘s parole procedures was moot because he had been released from prison
I suggest further that the court errs by concluding that MFA‘s claims are not moot because the MEC has thus far only declined to penalize MFA. It is unclear to me how the MEC could penalize a campaign committee long after it has dissolved, and the two consent orders that the court identifies as showing an imminent threat of a penalty involve penalties levied against continuing committees, which do not dissolve by operation of law. Nothing in the record shows that MEC actually penalizes defunct campaign committees for late formation or suggests how it could even do so.
MFA‘s claims are also unripe. Ripeness requires an examination of the fitness of issues for judicial determination and the hardship to the parties when the decision of a case is deferred. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014). The fitness consideration “safeguards against judicial review of hypothetical or speculative disagreements,” and the hardship consideration deals with whether delayed review would work a significant practical harm on the plaintiff. Id. This harm must be “certainly impending.” Id. at 876. Claims are not ripe when they rest on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 875-76.
MFA‘s claims for prospective equitable relief depend entirely on speculation. Delayed review will not harm MFA because it has given no evidence of an intent to regenerate its election committee for future elections. In no sense is any injury “certainly impending.” Unlike 281 Care Committee v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011), upon which the court relies, MFA will not suffer harm “at defined points” in the future because it has provided no evidence of an intent to act in the future. And the fact that it may have been harmed previously does not license it to seek prospective equitable relief ad infinitum, and the court errs in apparently concluding otherwise.
In Golden v. Zwickler, the Supreme Court confronted a First Amendment challenge to a New York law barring distribution of anonymous literature in connection with an election campaign. 394 U.S. 103, 104-05, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). The plaintiff was convicted (and thus already harmed) under the law for distributing literature targeting a particular Congressman running for re-election in 1964. The First Amendment challenge, filed after the 1964 election and the reversal of the plaintiff‘s conviction, alleged that the same Congressman would run in 1966, that he had been a political figure for many years, and that the plaintiff intended to continue distributing such literature. After the case was filed, the Congressman accepted a position in the New York judiciary, so the Court concluded that it was unlikely that the Congressman would seek re-election, precluding a finding that there was sufficient immediacy and reality, so the Court lacked Article III jurisdiction. Because, moreover, there was no upcoming re-election campaign, “it was wholly conjectural that another occasion might arise when [plaintiff] might be prosecuted for distributing the handbills referred to in the complaint,” and his assertion that the former Congressman could run again was “hardly a substitute for evidence that this is a prospect of ‘immediacy and reality.‘” Constitutional questions, even First Amendment ones, must emanate from a specific live grievance. Id. at 109-10. The Court‘s observations in Golden apply here with equal force.
The court concludes that MFA was harmed by its self-censorship. It seems to me that MFA‘s self-imposed silence, if any, was not objectively reasonable. We recognized in Connor, when construing a virtually identical formation requirement, that the requirement “does not, on its face, limit issue or express advocacy.” Connor, 323 F.3d at 693. In fact, MFA‘s proposed construction of the relevant statute borders on the fanciful. Life is risky, particularly political life, and President Truman‘s aphorism about the heat and the kitchen surely has a special resonance in Missouri campaigns. As Mr. Justice Cardozo remarked in a different but similar context, “the timorous may stay at home.” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). And MFA‘s self-imposed blackout does nothing to avoid a penalty; it could have been assessed a penalty whether it was actively speaking or keeping quiet: The challenged portion of the statute concerns only MFA‘s formation, so whatever MFA did (or did not do) after it formed does not help resolve the standing inquiry.
Finally, “[t]o have Article III standing to seek prospective relief, plaintiffs must show they are likely to suffer future injury that will be remedied by the relief sought.” Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006). “Past exposure to illegal conduct” will not suffice absent present adverse effects. Id. Past wrongs are merely evidence showing the existence of a real and immediate threat of repeated injury. As with the chokeholds in Lyons, MFA has not shown a real and immediate threat of future harm that justifies prospective relief. “Absent a sufficient likelihood that [it] will again be wronged in a similar way, [MFA] is no more entitled to an injunction than any other citizen of [Missouri].” Lyons, 461 U.S. at 111. If MFA wants to vindicate what happened to it in 2014, a claim for damages would be more appropriate. See id. at 105, 111.
The court gives short shrift to MFA‘s lack of plans for participating in future elections. Since MFA has not demonstrated the existence of an Article III case or controversy, I respectfully dissent from the court‘s opinion and would affirm the district court‘s judgment.