Jаmes T. PARKER, Plaintiff-Appellant, v. Brad WINTER, in his official capacity as New Mexico Secretary of State, Defendant-Appellee, and State of New Mexico, ex rel Hector H. Balderas, New Mexico Attorney General, Defendant Intervenor-Appellee.
No. 15-2088
United States Court of Appeals, Tenth Circuit.
April 12, 2016.
643 Fed. Appx. 632
Nicholas Mark Sydow, Office of the Attorney General fоr the State of New Mexico, Santa Fe, NM, for Defendant Intervenor-Appellee.
Before KELLY, McKAY, and LUCERO, Circuit Judges.
ORDER AND JUDGMENT**
PAUL J. KELLY, JR., Circuit Judge.
Plaintiff-Appellant James T. Parkеr appeals from the district court’s judgment dismissing his complaint for declaratory and injunctive relief. Parker v. Duran, No. 14-cv-617 MV-GBW (D.N.M. Apr. 30, 2015). The district court had previously denied Mr. Parker’s motions for a temporary restraining order and injunctive relief. Parker v. Duran, No. 14-cv-617 MV-GBW, 2014 WL 7653394 (D.N.M. Aug. 7, 2014). Mr. Parker challenged New Mexico’s requirement that a prospective independent party candidate must obtain more signatures on a nominаting petition (three percent of the total votes cast for governor at the last preceding general еlection at which a governor was elected) than a minor party candidate (one percent of such vоtes cast).
The parties are familiar with the facts and we need not restate them here. Our review of constitutional facts and law is de novo. Revo v. Disciplinary Bd. of the Supreme Court, 106 F.3d 929, 932 (10th Cir. 1997); see also Chandler v. City of Arvada, 292 F.3d 1236, 1240-41 (10th Cir. 2002).
We first consider jurisdiction. Mr. Parker did not initially discuss his intention to run for office at any point in the future. He now seeks to amend his complaint to state that he рlans to run for office again as an independent candidate. Because we decide the case is not mоot, the motion is denied.
“Our jurisdiction under
Within the context of constitutional challenges to election laws, we often analyze interlocutory appeals from the denial of motions for preliminary injunctions. We have little guidance in the context of an appeal of a final judgment denying injunctive and declaratory relief. But see Pearlman v. Vigil-Giron, 71 Fed. Appx. 11, 14 (10th Cir. 2003). This procedural distinction is significant because “[w]hether the [capable of repetition yet evading review] exception applies can deрend on the posture of the case on appeal.” Fleming v. Gutierrez, 785 F.3d 442, 446 (10th Cir. 2015). In Thournir v. Buchanan, 710 F.2d 1461 (10th Cir. 1983), and Fleming, 785 F.3d 442, we determined that interlocutory appeals from the denial of motions for preliminary injunctions were moot. In both cases, the parties’ claims for either a permanent injunction or declaratory relief remained pending in the district court. Because review was not only pоssible but also likely
Unlike Thournir and Fleming, this is not an interlocutory apрeal. Each claim raised by Mr. Parker has been dismissed by the district court. The claims are likely to recur and evade rеview. “Challenges to election laws are one of the quintessential categories of cases” capable of repetition yet evading review “because litigation has only a few months before the remedy sought is rendered impossible by the occurrence of the relevant election.” Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005). This is true even though Mr. Parker raises an “as apрlied” challenge. See Storer v. Brown, 415 U.S. 724, 737 n. 8 (1974) (“The ‘capable of repetition, yet evading review’ doctrine, in the context of election cases, is appropriate when there are ‘as applied’ challenges as well as in the mоre typical case involving only facial attacks.”).
Less clear is whether there is a reasonable expеctation that Mr. Parker would be subjected to the same action again. It is key to remember that “[o]ur concern in these cases” 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, 319 n. 6 (1988). Although there is no evidence in the record that Mr. Parker intends to run for elected office again, the second factor is likely satisfied becausе “he is certainly capable of doing so, and under the circumstances it is reasonable to expect that hе will do so.” Lawrence, 430 F.3d at 371; see also Norman v. Reed, 502 U.S. 279, 287-88 (1992).
Turning to the merits, we affirm the judgment of the district court for substantially the same reasons set forth in its Memorandum Opinion and Order of April 30, 2015. The district court cogently addressed Mr. Parker’s claims and explained why they are without merit.
AFFIRMED.