Lux v. White ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HERBERT LUX, JR.; JOSHUA MORRIS, 
Plaintiffs-Appellants,
v.
ALDA WHITE, in her official capacity
as the Stafford County Attorney;
DANIEL CHICHESTER, in his official
capacity as the Stafford County
Commonwealth Attorney; CHARLES
E. JETT, in his official capacity as
the Sheriff of Stafford County,
Virginia,  No. 03-2051
Defendants-Appellees,
and
GARY SNELLINGS; ROBERT GIBBONS;
JACK CAVALIER; RANDY HILLIARD;
MARK OSBORN; PETE FIELDS; GARY
PASH, in their official capacities as
members of the Stafford County,
Virginia, Board of Supervisors,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-03-640-A)
Submitted: April 1, 2004
Decided: June 7, 2004
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge,
and C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
2 LUX v. WHITE
Affirmed by unpublished per curiam opinion.
COUNSEL
James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute,
Indiana, for Appellants. Jack L. Gould, Fairfax, Virginia, for Appel-
lees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Herbert Lux, Jr., and Joshua Morris (collectively, "Appellants")
appeal a district court order dismissing their action challenging the
constitutionality of a now-repealed handbill ordinance. Finding no
reversible error, we affirm.
I.
Appellants are political activists in Virginia. At the time of the
events giving rise to this lawsuit, Appellants were working for a Vir-
ginia Senate campaign. On May 2, 2003, Lux distributed handbills for
the campaign at a parking lot in Stafford County, Virginia. That same
day, an officer of the Stafford County Sheriff’s Department contacted
the campaign and asked it to cease placing handbills on automobiles.
The officer explained that such activity violated Stafford County
Code § 3-5 ("the ordinance"), which prohibited, inter alia, placing
handbills on a motor vehicle without the owner’s permission. After
further communications with the Sheriff’s Department, Appellants
stopped distributing handbills.
LUX v. WHITE 3
Appellants subsequently brought this action against various Staf-
ford County officials (collectively, "Appellees"), claiming that the
ordinance violated the First Amendment and seeking to enjoin Appel-
lees from enforcing the ordinance. Soon after Appellants filed their
complaint, the Stafford County Board of Supervisors repealed the
ordinance. Appellees then moved to dismiss, primarily arguing that
Appellants’ claims were moot. With regard to prospective enforce-
ment of the ordinance, the district court agreed that Appellants’
claims were moot. The court emphasized that the ordinance had been
repealed without any indication that it would be reenacted in the same
form. With respect to enforcement of the ordinance for violations
occurring before its repeal, the court concluded that both Appellants
lacked standing. The court noted that Morris had not distributed hand-
bills in Stafford County. Regarding Lux, the court explained that
(1) although the Sheriff’s Department had asked the campaign to stop
distributing handbills, neither Lux nor the campaign was actually
threatened with enforcement of the ordinance; and (2) after the ordi-
nance was repealed, Appellees submitted affidavits assuring that no
one would be arrested or prosecuted for past violations of the ordi-
nance. Accordingly, the district court dismissed Appellants’ com-
plaint.
II.
Appellants contend that the district court erred in determining that
their claims were moot and that they lacked standing. We review
these rulings concerning subject matter jurisdiction de novo. See Mar-
shall v. Meadows, 105 F.3d 904, 905-06 (4th Cir. 1997).
The Article III requirement of standing ensures that a plaintiff has
a "concrete stake" in the outcome of a lawsuit at the time it is com-
menced. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 191 (2000); see Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (explaining that the first prerequisite for
standing is that the plaintiff has "suffered an injury in fact—an inva-
sion of a legally protected interest which is (a) concrete and particu-
larized, and (b) actual or imminent, not conjectural or hypothetical"
(citations, footnote, & internal quotation marks omitted)). Even if the
plaintiff has standing at the outset of the case, however, the action
may become moot if, at any subsequent time, the plaintiff "plainly
4 LUX v. WHITE
lack[s] a continuing interest" in the resolution of the case. Friends of
the Earth, 528 U.S. at 192.
Here, we need not decide whether Appellants lacked standing when
they filed this action because subsequent events have clearly rendered
the entire case moot. See Arizonans for Official English v. Arizona,
520 U.S. 43, 66-67 (1997) (declining to resolve standing issue
because plaintiff’s claim was clearly moot). The challenged handbill
ordinance has been repealed without any indication that it will be
reenacted, and therefore it cannot be enforced prospectively. See Am.
Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 606
(4th Cir. 2001) (explaining that whether the repeal or amendment of
a challenged law renders the case moot depends on "[t]he practical
likelihood of reenactment of the challenged law"). And, Appellees
have submitted affidavits disclaiming any intention to arrest or prose-
cute anyone for violating the ordinance before it was repealed. Cf.
N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 711 (4th Cir. 1999)
(finding that a plaintiff challenging a state election statute had a rea-
sonable fear of prosecution in part because the record did not show
that state officials would refrain from prosecuting violators). Because
there is no realistic chance that Appellants will be prosecuted for past
or future violations of the ordinance, Appellants lack a continuing
interest in the resolution of this case. The district court therefore prop-
erly dismissed Appellants’ complaint.
III.
For the reasons set forth above, we affirm the dismissal of Appel-
lants’ complaint.
AFFIRMED