NEW JERSEY BANKERS ASSOCIATION v. ATTORNEY GENERAL NEW JERSEY
Nos. 21-2352, 21-2433
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 28, 2022
Before: GREENAWAY, JR., MATEY, and NYGAARD, Circuit Judges.
PRECEDENTIAL; Argued July 14, 2022
John D. Haggerty
Lawrence S. Lustberg
Gibbons
One Gateway Center
Newark, NJ 07102
Rachel Rodman [ARGUED]
Cadwalader Wickersham & Taft
700 Sixth Street, N.W.
Washington, DC 20001
Jonathan M. Watkins
Cadwalader Wickersham & Taft
650 South Tryon Street
Charlotte, NC 28202
Counsel for Appellant
Endel Kolde
Institute for Free Speech
1150 Connecticut Avenue, N.W.
Suite 801
Washington, DC 20036
Jonathan S. Franklin
Independent Community Bankers of America
American Bankers Association
Norton Rose Fulbright
799 9th Street, N.W.
Suite 1000
Washington, DC 20001
Counsel for Amicus Appellant
Matthew J. Platkin
Acting Attorney General of New Jersey
Jeremy M. Feigenbaum
State Solicitor
Melissa Dutton Schaffer
Assistant Attorney General
Melissa Fich
Timothy Sheehan [ARGUED]
Deputy Attorneys General
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellee
Paul M. Smith
Campaign Legal Center
1101 14th Street, N.W.
Suite 400
Washington, DC 20005
Counsel for Amicus Appellee
GREENAWAY, JR., Circuit Judge.
In this appeal, New Jersey Bankers Association (“NJBA“) asks us to reverse the District Court‘s holding that the contribution ban in
I. Background
NJBA is a non-profit member-funded trade association representing 88 banks headquartered in or with branches in New Jersey. It seeks to make independent expenditures and contributions to political parties and campaigns for state and local office in New Jersey. However, it has not made these payments based on the concern that the Attorney General would enforce
Section 19:34-45 provides that, among other specified corporations, “[n]o corporation carrying on the business of a bank . . . shall pay or contribute money or thing of value in order to aid or promote the nomination or election of any person, or in order to aid or promote the interests, success or defeat of any political party.” In its complaint, NJBA alleged that this statute prohibits it from making independent expenditures and contributions to political parties and campaigns. Throughout this case, NJBA has made no contributions to any New Jersey political party or campaign. It began making independent expenditures only after the District Court invalidated
To secure the ability to make independent expenditures and contributions without
On June 21, 2021, the District Court granted summary judgment in favor of NJBA on Count One, holding that
With regard to Count Two, the District Court granted summary judgment in favor of the Attorney General, holding that
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. NJBA‘s Article III Standing and Remedy
NJBA has sought to bring a facial challenge to
A. Article III Standing Requirements
Article III requires a showing that the plaintiff has: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,1 and (3) that is likely to
be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
With regard to the injury in fact element, “we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007). Instead, courts have held that a credible threat of prosecution under an allegedly unconstitutional statute constitutes an injury in fact. See Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979). The threat may not be merely “imaginary or wholly speculative.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014) (quoting Babbit, 442 U.S. at 302).
The Supreme Court has articulated three factors for establishing “a credible threat of enforcement.” Id. at 161 (citing Babbit, 442 U.S. at 298). First, there must be “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Id. (quoting Babbit, 442 U.S. at 298). Second, the intended conduct must be “arguably . . . proscribed by [the] statute” that the plaintiff seeks to challenge. Id. at 162 (quoting Babbit, 442 U.S. at 298) (alteration in original). Arguably proscribed is not a stringent test. In Susan
B. Anthony List, the Supreme Court deemed it sufficient that a statute appeared broad enough to cover the intended conduct. Id. at 162. The Supreme Court also relied on the fact that the entity charged with identifying statutory violations had previously interpreted the statute as applying to the intended conduct. Id.
Third, the plaintiff must face a “substantial” “threat of future enforcement” under the statute. Id. at 164.
B. NJBA Satisfies Article III Standing Requirements
NJBA has Article III standing to sue on its own behalf. First, NJBA has sufficiently alleged an injury in fact. Namely, it has satisfied each of the three factors required for demonstrating a credible threat of enforcement under
Next, NJBA‘s intended conduct is arguably proscribed by
defeat of any political party.”
Lastly, NJBA faces a “substantial” “threat of future enforcement” under
Injury in fact aside, NJBA satisfies the remaining elements of Article III standing. The credible threat of prosecution is traceable to the Attorney General‘s enforcement of
IV. Section 19:34-45 Does Not Cover Trade Associations of Banks
Because NJBA has standing to sue on its own behalf, we will reach the merits. The parties have asked us to determine whether: (1)
However, pursuant to well-established constitutional avoidance principles, the threshold question is a statutory one: whether
A. Statutory Interpretation
“Our analysis begins and ends with the text[.]” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014). In determining whether the meaning of a statutory term is plain, we consider the “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Byrd v. Shannon, 715 F.3d 117, 123 (3d Cir. 2013) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). “[W]here [the legislature‘s] will has been expressed in language that has a reasonably plain meaning, that language must ordinarily be regarded as conclusive.” Id. at 122 (citing Negonsott v. Samuels, 507 U.S. 99, 104 (1993)).
B. Statutory Analysis
Here, the statutory language—to “carry[] on the business of a bank“—has a reasonably plain meaning. Contemporaneous dictionary definitions reveal that, at bottom, a “corporation carrying on the business of a bank” is one that makes loans and receives deposits. Relevant dictionaries define “bank” as “[a]n institution, of great value in the commercial world, empowered to receive deposits of money, to make loans, and to issue its promissory notes, (designed to circulate as money, and commonly called ‘bank-notes’ or ‘bank-bills,‘) or to perform any one or more of these functions,” Bank, Black‘s Law Dictionary 117 (2d ed. 1910); and “[a]n institution for receiving and lending money . . . . They receive, lend, and transmit money, and issue notes which are used as money, and buy, sell, and collect bills of
exchange . . . .” Bank, The Century Dictionary and Cyclopedia 441 (William Dwight Whitney et al. eds. rev., enl. ed. 1911).2
Treating the plain meaning as conclusive, we decline to hold that a “corporation
C. Attorney General of New Jersey‘s Interpretation
We recognize that our holding contravenes the Attorney General‘s interpretation. In his 2002 Opinion, he explained
that a trade association “must be subject to the same strictures as its individual members” since it is “comprised of [banks] and is funded by them.” J.A. 227. He explained that
Initially, we are not bound by the Attorney General‘s legal interpretations. See Virginia v. Am. Booksellers Ass‘n, 484 U.S. 383, 395 (1988) (declining to accept an Attorney General‘s legal interpretation as authority because “the Attorney General does not bind the state courts or local law enforcement authorities“); see also Quarto v. Adams, 929 A.2d 1111, 1117 (N.J. Super. Ct. App. Div. 2007) (noting that it was “not bound to adopt the Attorney General‘s Formal Opinion as a correct statement of law” although “it is nonetheless entitled to a degree of deference“); Cole v. Woodcliff Lake Bd. of Educ., 382 A.2d 966, 970 (N.J. Super. Ct. Law Div. 1977) (stating that “interpretations of statutes rendered by the Attorney General” are “not binding“).
Further, this potential loophole does not allow us to depart from the ordinary meaning of the statute. Only “absurd results and ‘the most extraordinary showing of contrary intentions‘” would justify such a departure. First Merchants Acceptance Corp. v. J.C. Bradford & Co., 198 F.3d 394, 403 (3d Cir. 1999) (quoting Garcia v. United States, 469 U.S. 70, 75 (1984)).3
An absurd result is “an outcome so contrary to perceived social values that [the legislature] could not have ‘intended’ it.” United States v. Fontaine, 697 F.3d 221, 228 (3d Cir. 2012) (quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003)). As long as the legislature “could have any conceivable justification for a result—even if the result carries negative consequences—that result cannot be absurd.” Ricco v. Sentry Credit, Inc., 954 F.3d 582, 588-89 (3d Cir. 2020) (citing Fontaine, 697 F.3d at 228).
Interpreting
bank, a regional bank, and a credit union. These entities have unique, and sometimes antagonistic, interests and goals. What one member bank considers to be favorable legislation may be harmful to another member bank. It follows that the member banks are unlikely to seek a uniform quid pro quo from political actors. Given that preventing quid pro quo corruption or its appearance is the single “legitimate governmental interest for restricting campaign finances,” the state legislature may have found it unnecessary to prohibit trade associations of banks from making contributions. McCutcheon v. FEC, 572 U.S. 185, 206-07 (2014).
Because we can resolve the case on statutory grounds—namely, by interpreting the statute as inapplicable to trade associations of banks—we decline to reach the First Amendment issues. In doing so, we nonetheless provide complete relief. NJBA seeks to make independent expenditures and contributions; based on our reading of
V. Facial Challenge
In addition to proceeding on the basis of Article III standing, NJBA seeks to bring a facial challenge on behalf of third-party banks. In NJBA‘s view, resolving its claims on statutory grounds would provide complete relief only for an as-applied challenge. That resolution would do nothing to prevent
A. Prudential Standing Requirements
“Ordinarily, one may not claim standing . . . to vindicate the constitutional rights of some third party.” Singleton v. Wulff, 428 U.S. 106, 114 (1976) (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)). This prudential rule is designed to “avoid deciding questions of broad social import . . . and to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979).
However, we have recognized an exception to the prudential rule against third party standing. “Under the First Amendment overbreadth doctrine, a party may bring a facial challenge against a statute, even though it is not unconstitutional as applied to that particular party, because ‘the statute‘s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.‘” Free Speech Coal., Inc. v. Att‘y Gen. of U.S., 677 F.3d 519, 537 (3d Cir. 2012) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). Notably, “[d]eclaring a statute unconstitutional on overbreadth grounds is ‘strong medicine’ and should be used ‘sparingly and only as a last resort.‘” Id. (quoting
To qualify for this exception, the plaintiff must (1) have “suffered an actual injury“; (2) have “a close enough relationship with the party whose rights he or she is asserting“; and (3) there must be “some hindrance to the third party‘s ability to protect his or her own interests.” The Pitt News v. Fisher, 215 F.3d 354, 362 (3d Cir. 2000) (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)).
In some cases, the requirement that an impediment exist to the third party asserting his or own rights should be “relax[ed].” Id. at 363-64. For instance, we relax this requirement where a statute “substantially abridges the First Amendment rights of other parties not before the court.” Village of Schaumburg v. Citizens for a Better Env‘t, 444 U.S. 620, 634 (1980) (citations omitted). “[A] mere interference with the third party‘s rights” is not enough, and only “an intolerable, inhibitory effect on freedom of speech” will suffice. The Pitt News, 215 F.3d at 363-64 (quoting Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972)).
B. NJBA Does Not Satisfy Prudential Standing
Prudential standing concerns prevent us from concluding that NJBA can assert a third-party claim on behalf of third-party banks. Applying the prudential standing factors from The Pitt News, NJBA sustained an “actual injury“—namely, the credible threat of enforcement under
However, NJBA has failed to allege that some impediment exists to the third-party banks’ ability to assert their own rights. See The Pitt News, 215 F.3d at 362. This is not necessarily fatal. We can relax this criterion if
such abridgment of the rights of parties not before the court. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 243 (2002) (finding third-party standing of an association that alleged “that [a law] threatened the activities of its members“). NJBA has not alleged that any of its member banks will sustain a First Amendment injury. The complaint barely mentions the member banks at all. Because NJBA cannot satisfy the third criterion in the prudential standing analysis and does not qualify for the relaxed standard, we hold that NJBA cannot bring a facial challenge behalf of third-party banks.
VI. Conclusion
Because we hold that NJBA is not a “corporation carrying on the business of a bank” for purposes of