Saint Paul Area Chamber of Commerce v. Gaertner

sixty reduction percent 245-46, 125 S.Ct. 738. сonclude Booker, was an extraordi- to Claiborne correctly de- granted court has the district When supported is not nary variance sentencing range, guidelines the termined extraordinary circumstances. resulting comparably case, we review as this history of criminal reasonableness, lack was a standard Claiborne’s sentence safety account when valve into for abuse taken review to our traditional akin applicable manda- an otherwise eliminated discretion. minimum small tory sentence. fashioned were The Guidelines his during seized of crack cocaine amount 3553(a) into ac § factors the other taking account in de- was taken into offenses two years of product are the count and range. Substan- termining guidelines his Thus, sen guidelines study. careful guidelines reducing resulting tially advisory, pre is range, though tencing drug upon quantity sentence range based v. States reasonable. See sumed United fair because it is a infer- unreasonable is (8th Cir.2005); Lincoln, 413 F.3d additional that Claiborne distributed ence 415 F.3d Mykytiuk, v. United States six during the of cocaine quantities Cir.2005). (7th the district When occasions between the two inter- months range the guidelines varies from court Similarly, while police. dicted 3553(a) § analysis of based its focused on the like- properly court district “the whether factors, must examine we commit further lihood Claiborne would grant a court’s decision district future, he the fact that com- crimes 3553(a) appropriate from the § variance drug offense six a second serious mitted reasonable, and wheth is range guidelines his first аrrest demonstrates after months 3553(a) ... § variance any er the extent of earned an extraor- has not Claiborne Mashek, v. reasonable.” United States is guide- a from dinary downward variance (8th Cir.2005); see 406 F.3d already reflects sub- sentence lines Haack, “Sentences 403 F.3d leniency. stantial ... are range guidelines from the varying reasons, we conclude foregoing For the judge as offers long so reasonable and re- unreasonable the sentence is the factors justification under appropriatе resentencing. court for to the district mand 3553(a). How U.S.C. specified justification must be compelling the difference to the extent of

proportional the sen advisory range and

between v. John United States imposed.”

tence Cir.2005)

son, 426-27 OF AREA CHAMBER omitted). PAUL (citation “range A of reason SAINT nonprofit COMMERCE, a Minnesota discretion. is within court’s ableness” corporation; Chamber Burnsville Saenz, States v. United nonprofit Commerce, Cir.2005). a Minnesota corporation; Mankato Cham- Greater a Here, imposed the district court Commerce, Minnesota non- ber of the bottom when 15-month sentence corporation, Aрpellants, profit range was advisory guidelines Claiborne’s v. sixty percent down This is 37 months. extraordinary GAERTNER, reduc ca- “An in her official ward variance. Susan Ramsey extraordinary Attorney supported by pacity tion must be Dalton, Minnesota; County, Back- United James circumstances.” States (8th Cir.2005). capacity as strom, in his official County Attorney County, for Dakota

Minnesota; Arneson, Ross in his offi- capacity Attorney

cial County, Minnesota, Appel-

Blue Earth

lees.

No. 05-1795.

United of Appeals, States Court

Eighth Circuit.

Submitted: Dec.

Filed: Feb. Minneapolis, Boyd, argued,

Thomas H. (David Aafedt, brief), on the MN M. appellants. Lookingbill, argued,

Darwin Asst. J. Paul, Ramsey County Attorney, St. MN. appellee Susan Gaertner. White, Assistant Dakota Andrea ‍‌​​‌‌‌​​‌‌‌​‌‌‌‌​​‌‌​‌​‌​‌​​​​​‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‍G. Attorney, appellees on the brief for and Ross Arneson of James Backstrom Hastings, MN. BYE, BOWMAN, and

Before GRUENDER, Judges. Circuit BOWMAN, Judge. Circuit three chambers of commerce Appellants, nonprofit corporations operating Minnesota, the dismissal of their appeal provisions of the challenging suit certain Act Campaign Fair Practices Minnesota corporate contributions regulate Appellants office. political candidates for Minnesota Statutes a declaration that seek 211B.15, 211B.01, §§ and subds. subd. (2004) 1(2), (collectively, “the Minnesota Statutes”), are unconstitutional by the Federal Election Cam- preempted (2000) Act, §§ 431-55 paign U.S.C. (“FECA”), that the Minneso- to the extent to federal elections. pertain ta Statutes pro- injunctive relief Appellants also seek attorneys, county three hibiting Appellees, Minnesota Statutes. enforcing the from suit for dismissed the The District Court jurisdiction on the subject matter lack of standing. lacked Appellants ground standing, have Concluding we reverse. general their to usе

Appellants seek speech treasury engage funds to advocates the election of candidates for have refrained from making federal contributions because “fear Specifically, Appellants office.1 (1) penalty prosecution” under the Minne- propose “[endorsing candidates for Complaint sota Statutes. at 8. the United States Senate or the House of First (2) rights aver their Amendment Representatives”; “[sjending letters to electioneering ac- engage campаign [Appellants’] respective members inform tivities have been chilled the Minnesota them ing encourag of endorsements and suit, They brought seeking Statutes. ing members to can endorsed declaration that the Minnesota Statutes (3) office”; didates for federal elective preempted are unconstitutional and “[i]nviting candidates for federal office to FECA to the extent that relate to [Appellants’] attend respective member federal elections. speak events at said member аnd/or events”; (4) “[s]ending [Appel letters to A magistrate judge recommended that respective informing lants’] members Appellants case be dismissed because them of the justiciable United States Chamber of had suffered no that give Commerce’s endorsement of candidates would them standing. magis- The (5) office”; “[i]nviting judge for federal trate [Appel concluded because lants did not respective Appellees lants’] members to had attend ever threatened to enforce being events held on the Minnesota behalf of endorsed Statutes, (6) candidates”; Appellants’ prosecution fear of “[s]ending and email or ‘imaginary “can be classified as specu- correspondence other [Appellants’] to re ” Report lative.’ and Recommendation at spective informing members them of fed (quoting Babbitt v. United Farm Work- eral Complaint candidate events.” at 5. Union, ers Nat’l U.S. Appellants assert that these activities are (1979)). 2301, 60 L.Ed.2d 895 expressly permitted by FECA and its im magistrate judge further concluded See, plеmenting regulations. e.g., 11 plead failed to adequately the 114.7(h) 114.3, 114.5, (2005). §§ C.F.R. specific political action that the Minnesota Statutes, however, The Minnesota prohibit allegedly prevented Statutes them from corporations such as from taking, indicating thus “that no controver- contributions, making any directly or indi- sy existed.” Id. at 11. The District Court rectly, promote candidacy or defeat the adopted magistrate judge’s report and nomination, election, of an individual for recommendation and dismissed the suit for aрpointment or office. See lack standing. 211B.01, 3; 211B.15, §§ Minn.Stat. subd. (2004). 1(2), 2 subds. A corporation that We review de novo the District violates the may Minnesota law be dis- Court’s determination. See $40,000, solved and up fined id. Shain, 817. The 211B.15, § subd. and an individual act- requirement jurisdiction for federal court ing on behalf corporation of a who violates stems from the admonition in Article III of may the law imprisoned up be to five the Constitution that federal courts are years $20,000, up and fined empowered id. only to decide “cases” and Const, 211B.15, § subd. 6. III, “contrоversies.” U.S. art. accept denied, allegations Cir.2004), as true all material cert. complaint construe the facts in the U.S. 125 S.Ct. 160 L.Ed.2d 900 below, light most favorable to the (2005). Veneman, Appellants. here See Shain v. Cir.1997) (internal quotation require III satisfy Article To cl.1. omitted). a statute ‍‌​​‌‌‌​​‌‌‌​‌‌‌‌​​‌‌​‌​‌​‌​​​​​‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‍and citation ment, challenges marks party has that it must demonstrate court federal i.e., fact,” sufficiently “a realistic “injury Appellants’ complaint an

suffered injury as a sustaining a direct inju danger have suffered alleges operation or еnforce the statute’s result of Appel ry due to the Minnesota Statutes. Babbitt, 442 ment.” political expendi lants asserted six however, expose need party, A they would like to make and tures that in order to prosecution or to arrest itself County Attorneys that Defendant “fear statute. “When challenge a criminal against prosecution will initiate criminal engage an intention to alleged has officers, corporate employ them and their affected arguably conduct in a course of ees, agents” should do so. Com interest, pro but a constitutional with have nei plaint Although Appellants at 4. statute, exists a and there by a scribed Minnesota Statutes nor ther violated the thereunder, prosecution credible threat by Appellees prose threatened been to await and required not be he ‘should they engage in the cution should as the sole prosecution a criminal undergo activity, Appellants’ fear (quoting Id. seeking of relief.’” means The Minne imaginary speculative. or not Bolton, 179, 188, 93 410 S.Ct. Doe v. U.S. face, Statutes, prohibit corpo their sota on (1973)); Ark. 739, see also L.Ed.2d 201 35 money of or political expenditures rate Political Action Comm. Right to State Life or purpose promoting of service for the Cir.1998) (8th 558, 560 v. 146 F.3d office, for federal defeating a candidate (“Plaintiffs, however, to required are not apply both to penalty provisions and the prosecution to arrest or expose themselves agents. and their While corporations chal order to under a criminal statute thеy have never assert that Appellees court.”). A in federal lenge a statute anyone under the Minnesota prosecuted prosecu of alleges a threat plaintiff who statements any public or “made Statutes wholly spec imaginary that not or tion “is so,” Appellees of at threatening to do Brief challenge the stat ulative” has to 9, intent not disavowed an Appellees have Babbitt, 302, at 99 S.Ct. 442 U.S. ute. in the future.3 See to enforce the statutes challenged by a a statute is 2301. When Int’l Food & Commerсial Workers United object of the target who is a or party 422, IBP, Inc., 429 857 Union ordinarily “there is prohibitions, statute’s Cir.1988) by representation (holding that caused has question [statute] little “present they have no state officials that Concerned injury.” him Minn. Citizens Comm’n, not divest a statute does plan” to enforce Election 113 v. Fed. for Life county intend ney represented that the did not must demonstrate that 2. A also alleg- challenged defendants’ statute "now or in injury can be traced to the enforce the to likely edly future," to be holding unlawful conduct and is mandates a decision from the redressed a favorable standing. Appellees’ reliance on lants lack 737, 751, Wright, 468 U.S. court. Allen v. First, the misplaced for two reasons. SOB is (1984). 3315, These 82 L.Ed.2d 556 S.Ct. attorney’s county Court in SOB mentioned unquestionably satisfied two elements are constitutionality evaluating promise here. merits, addressing the not in the statute on Second, standing. unlike the coun- plaintiffs' SOB, County Inc. v. Appellees assert that SOB, sug- attorney Appellees have not ty Cir.), Benton, cert. successors) (or not gested they thеir will denied, U.S. in the future. the Minnesota Statutes enforce (2003), county attor- L.Ed.2d 38 in which (1961). Poe, Supreme challenge the stat- Court ruled position penal ute because “the state’s could well that “the mere existence of a state Indeed, change”). as counsel conceded is to support standing statute” insufficient argument, Appellees oral have taken an wanting.” “if threat of enforcement real is Moreover, oath to enforce Minnesota law. Id. at 1752. The found S.Ct. 211B.15, law; is not a dormant subd. anti-contraceptive the Connecticut county recently it was enforced attor- being “uniformly challenged laws were ney county. in another See State v. Eiben- exception during without unenforced” steiner, (Minn.Ct.App. 690 N.W.2d 140 eighty years, previous demonstrating thus 2004) (discussing Mower Attor- “undeviating policy the state’s of nullifica- ney’s prosecution company of insurance tion” of those laws. Id. at company and insurance officers who made S.Ct. 1752. The Court concluded that the corporate contributions ato state “harmlеss, simply empty statutes were purpose ‍‌​​‌‌‌​​‌‌‌​‌‌‌‌​​‌‌​‌​‌​‌​​​​​‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‍party defeating candi- that, shadows” and “under the circum- governor). date for Minnesota stances,” finding a threat of “are thus not without reason in some fear- eyes “would be to our close ing prosecution” should po- make the 508-09, reality.” Id. at expenditures litical propose. find this easily distinguished case Babbitt, 99 S.Ct. 2301 from Poe. Unlike the moribund statute (holding prosecution fear of was Poe, there is no indication that the Minne- imaginary speculative, though or even sota Statutes have fallen into desuetude. challenged penalty provision criminal had The Minnesota Statutes were enacted applied plaintiffs’ proposed never been and the threat of conduct, pro- where statute on its face greater relatively under a statute enacted scribed the conduct and where Doe, 188, recently. 410 any “the not See U.S. at 93 State has disavowed intention 739; Gardner, invoking of the criminal S.Ct. 99 at penalty provi- F.3d 15 (“[W]hen sion”); Butler, dealing see also 146 at pre-еnforcement with (holding plaintiffs (or, that standing challenges recently least, had enacted non-moribund) challenge constitutionality of various facially statutes that re- in provisions campaign Arkansas’s finance expressive activity by strict the class to though law even plaintiffs had neither vio- plaintiff which the belongs, courts will as- directly lated the law nor been threatened a prosecution sume credible threat of in law); prosecution under the N.H. compelling contrary the absence of evi- Right to Political Action Comm. v. dence.”). relatively Life Given the short time Gardner, 8, (1st Cir.1996) 12-15 enactment, passed that has since we cer- (determining that action commit- tainly say cannot that Minnesota has es- tee challenge had New Hamp- a policy enforcing tablished state of not campaign shire finance limits though even especially Minnesota Statutes. This is Hampshire’s Attorney New General had in light true of the recent enforcement plaintiff informed that the state would not brought action in Eibensteiner. This case law). enforce the is much closer to inDoe which the Su- preme recognized concluding right physi- that could not challenge recently demonstrate a cians to a prosecu- credible threat of enacted crimi- tion sufficient to standing, “despite establish nal abortion statute the fact that Ullman, District Court relied upon any Poe v. the record does not disclose that 1752, 367 U.S. 81 S.Ct. physicians] prosecuted, L.Ed.2d 989 has been [the or chilling prosecution.” Appellants’ U.S. First Amendment threatened with plaintiffs rights Like in also an supports that their S.Ct. Doe, bring fear of under Appellants’ suit.4 objectively a viable state statute is reason We also conclude that the District able. in holding Appellants’ Court erred that, recognize ripe We further case was not ground for review on the Poe, in distinguished Ap from the claims failed to allege sufficient challenged pellants respect statutes facts with to their proposed politi rights activity. their First Amendment to cal violate The District Court relied on speech. Appellants Geary, 321-22, free assert Renne v. 501 U.S. modify speech (1991), have been forced to their 115 L.Ed.2d 288 in comply Supreme behavior to with the Minnesota which the Court held that Virginia in plaintiffs’ ripe Statutes. As noted v. Ameri claims were not because the Ass’n, alleged danger plaintiffs can Booksellers “the specify failed to the nature of implicating statute First Amendment candidate [a endorsements and the form of is, measure, rights] large one of self- candidate would censorship; a harm that can if prohibited by be realized make the challenged Renne, prosecution.” even without an actual 484 statute. distinguish as we did 98 L.Ed.2d 146 F.3d at because “the Abell, (1988); Majors v. alleged see also here have a in (7th Cir.2003) (“A tent to pursue conduct violation of the pre-enforcement challenge challenged who mounts a statute.” Appellants’ complaint to a statute that he his specified claims violates intend to use speech freedom of need not show that the their to support resources candidates for prosecute аuthorities have threatened to the United States Senate and United him; Representatives. the threat is latent the existence of States House of In addi statute.”) (citations omitted). a specifying When tion to their intention to “us[e] funds, party brings pre-enforcement challenge general treasury their to the extent law, provides pen currently permitted by sup to statute that for criminal federal port alties and claims that the statute chills the of one or more candidates for federal office,” exercising right expression, complaint specific of its to free the other listed chilling may ways the effect alone constitute in in support which would Gardner, Thus, jury. candidates, inviting 99 F.3d at 13. in such candi including plaintiff speak Minnesota Citizens we held that a dates to at and member events sending informing Article III when it must letters to members “suffers significant changes oper either make to its them of candidates endorsed the United obey regulation, ations to or risk ‍‌​​‌‌‌​​‌‌‌​‌‌‌‌​​‌‌​‌​‌​‌​​​​​‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‍a of and encour States Chamber Commerce by disobeying aging criminal enforcement action member of candi endorsed regulation.” at The readily distinguished dates. Renne thus is itself). contrast, Appellees place great weight county on Eckles v. Id. at 768-69. (8th Cir.2003), City Corydon, 341 F.3d 762 fear under criminal germane but that case is not to our decision. brought against statutes and have suit those plaintiff The Eckles Court held that the lacked authority with the to enforce them. Because county to sue a that threatened the the facts in this case are much more similar private with a libel action аnd that Butler, Citizens, and to those in Minnesota plaintiff that could informed the his actions Gardner, guidance. we look to those cases for (not prosecution by city result in or state case, ac allega- Appellants’ proposed conclusion each of from this and we hold Instead, judicial ripe in the sufficient to tivities is review. complaint tions are I activi controversy Appellants’ proposed observe the ripe establish a for determina- (deter- Butler, rely upon a candidate еndorse at ties which tion. See yet ready Ap for review as ment are not allegations plaintiffs mining any pellants particular have not identified in “would like to make contributions excess endorse, Ap wish to while in candidate to the candidates enumerated $100 relying activities not on pellants’ proposed to the [code section] Arkansas $300 ripe such an endorsement are for review. in [code candidates enumerated Arkansas standing). established section]” majority upon The relies Arkansаs Right to State Political Action Com- promotes good public policy holding Our Life Butler, mittee 146 F.3d 558 Cir. v. by breeding respect for the law. Like the 1998), Circuit, proposition for the “encourage person Fourth we a specific pursue “a intent to con- claimed aggrieved by laws he considers unconstitu- challenged of the statute.” duct violation declaratory judgment tional to seek a - (quoting 146 F.3d Ante 487 488 against the arm of the state entrusted with 560). in Butler plaintiffs The contended power, the state’s enforcement all lаw, like to make contributions in “would complying challenged while with the excess of to the candidates enumerat- deliberately than to the law $100 rather break 6—203(b)(1) § ed Arkansas Code ensuing and take his chances suit or 7— to the enumerated in Ar- Corp. Attorney candidates prosecution.” $300 Mobil Oil 7-6-203(b)(2).” Gen., Cir.1991); kansas Id. The 940 F.2d Code see pro- statute at issue Butler Right specifically also Ariz. Political Action Life hibited certain contributions to candidates. Bayless, Comm. v. (9th Cir.2003) (“[W]e plaintiffs alleged present The a intent to observe thаt it would turn contribute funds to candidates without respect for the law on its head for us [plaintiff] suggesting the contributions relied to conclude lacks any challenge provision merely endorsement the candidates. The because Court concluded the in Butler [plaintiff] comply chose to statute Geary, were unlike those Renne v. challenge constitutionality, its rather than an 115 L.Ed.2d to violate law and await en- action.”). (1991), because the Butler forcement alleged specific a intent to violate the stat- Concluding Appellants’ complaint ute. justiciable controversy, presents case or majority judgment we here concludes the reverse the District lants intent to and remand violate the the case further statute and their claim proceedings opinion.5 ripe consistent with therefore is this analysis under Butler. A review closer BYE, Judge, concurring part Circuit in law, however, of the case illuminates the in dissenting part. majority’s in reasoning. error the I agree Appellants specifically pro- While the hаve dem statute at issue in Renne I standing, disagree seeking onstrated as to the hibited a candidate election for a Appellees’ arguments comity. arguments 5. We do not address These were not addressed injunctive by inappropriate appropri- relief is and that District Court are more Ap- ately the federal courts should decline to hear heard the District Court in the first pellants’ ground claims on the of federal-state instance. lants to endorse and including po- seek candi- position frоm nonpartisan in candidate sup- her dates where such endorsement and party litical endorsement jn the information published case, In port prohibited by statement statute. this Renne, In distributed to voters. pamphlet candidates for federal office have not “ ... to alleged a ‘desire plaintiffs announced, although Appellants been endorsements’ and the publicize [party] in expressed endorsing have an interest to read en- respondents] all [of ‘desire office, they candidates for federal have not pamphlets.” in the voter dorsements’ expressed endorsing any an interest in Renne, 335, 111 S.Ct. 2331 particular candidate. Renne, (Marshall, J., In dissenting). Appellants may decide not to endorse intention endorse made their plaintiffs candidate, any particular in which case a 339-40, clear. Id. at candidates Appellants’ number activities (Marshall, J., dissenting). Like the I would never come to fruition. do not Butler, in Renne plaintiffs in plaintiffs actually believe must endorse a intent to violate the stat- alleged specific candidate in violation of the statute to However, plaintiffs’ allegations in ute. standing, pur- for ripeness achieve but in in one

Renne differed from those Butler I poses, believe must indicate plaintiffs the Renne significant respect: they which candidate would endorse ab- all did not an interest to endorse legislation sent the to make their endorse- par- or even candidates from a candidates ripe ment-related claims for review. Ab- Instead, political party. they ex- ticular еndorsement, sent such a intended endorsing particular an pressed interest Appellants have not demonstrated their candidates, provide did not names for but speech regulation. has been chilled contrast, the Butler those candidates. plaintiffs expressed an interest contrib- agree Supreme I therefore with the candidates, uting to enumerated whomever that First Amendment Renne they might Although be. the candidate challenges “have fundamental and far- But- alleged names were not reason, vеry reaching import. For that we plaintiffs suggest ler did not their contri- cannot decide the case based depended upon any particularized butions amorphous and ill-defined factual record result, As a endorsement decision. us.” Id. at presented to sufficiently specified their plaintiffs Butler 2331; rel. see also State Mo. Mo. ex law, Renne intent to violate the while the . Transp. Cuffley, Hwy & Comm’n plaintiffs’ did not. The Renne (8th Cir.1997). 1332, 1337 any particular candidate failure indicate they would endorse was fatal to whom I endоrse- Appellants’ While believe 321, 111 their claim. Id. at S.Ct. 2331. review, ripe claims are not ment-based majority Appellants’ I agree with the The stated intentions of the rely upon claims which ‍‌​​‌‌‌​​‌‌‌​‌‌‌‌​​‌‌​‌​‌​‌​​​​​‌​​‌‌‌‌‌​‌‌​​‌‌‌‌‍do substantively do not differ from the Renne Specifically, endorsing lants a candidate. by Appellants in this intentions stated I claims would Appellants’ believe can- case. do not know which candidates for federal office “[i]nvit[e] they may endorse because didates [Appellants’] attend member them. respective lаck sufficient information about speak events said member Accordingly, parallels I believe this case and/or or other corre- events” and email closely “[s]end[ ] than Butler re- Renne more respective spondence [Appellants’] relying to the activities gard of federal candi- informing members them a candidate endorsement. the claims made parallel events” date Accordingly, I in Butler. majority those claims are

agree with them and would remand

ready for review proceed- further court for

to the district opinion. this

ings consistent with America,

UNITED STATES

Plaintiff-Appellee, SIMPSON,

Bryan Lee Defendant-

Appellant.

No. 05-3071. Appeals, Court of

United States

Eighth Circuit. Jan.

Submitted:

Filed: Feb. En

Rehearing Rehearing Banc April

Denied 2006.* * Judge part ation or decision of this matter. Colloton took no in the consider-

Case Details

Case Name: Saint Paul Area Chamber of Commerce v. Gaertner

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 27, 2006

Citation: 439 F.3d 481

Docket Number: 05-1795

Court Abbreviation: 8th Cir.