Many Cultures, One Message v. Jim Clements ( 2013 )

FILED
UNITED STATES COURT OF APPEALS MAR 28 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
MANY CULTURES, ONE MESSAGE, A No. 11-36008
Washington Unincorporated Association;
RED STATE POLITICS, A Washington D.C. No. 3:10-cv-05253-KLS
not-for-profit corporation, DBA U.S. District Court for Western
Conservative Enthusiasts, Washington, Tacoma
Plaintiffs - Appellants,
ORDER
v.
JIM CLEMENTS, Chair; DAVE
SEABROOK, Vice Chair; JANE
NOLAND; BARRY SEHLIN; JENNIFER
JOLY, in Their Official Capacities as
Officers and Members of the Washington
State Public Disclosure Commission;
DOUG ELLIS, in His Official Capacity as
Interim Executive Director of the
Washington State Public Disclosure
Commission,
Defendants - Appellees.
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior
District Judge.*
*
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
The memorandum disposition filed on February 4, 2013, is withdrawn and is
replaced by the memorandum disposition filed concurrently with this order. With
the original memorandum disposition withdrawn, we deem moot the petition for
panel rehearing.
IT IS SO ORDERED.
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FILED
NOT FOR PUBLICATION MAR 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANY CULTURES, ONE MESSAGE, A No. 11-36008
Washington Unincorporated Association;
RED STATE POLITICS, A Washington D.C. No. 3:10-cv-05253-KLS
not-for-profit corporation, DBA
Conservative Enthusiasts,
MEMORANDUM *
Plaintiffs - Appellants,
v.
JIM CLEMENTS, Chair; DAVE
SEABROOK, Vice Chair; JANE
NOLAND; BARRY SEHLIN; JENNIFER
JOLY, in Their Official Capacities as
Officers and Members of the Washington
State Public Disclosure Commission;
DOUG ELLIS, in His Official Capacity as
Interim Executive Director of the
Washington State Public Disclosure
Commission,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Karen L. Strombom, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted November 9, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior
District Judge.**
Appellants Many Cultures, One Message (“MCOM”), and Conservative
Enthusiasts (a.k.a. Red State Politics) appeal the district court’s dismissal of their
suit challenging as unconstitutional two portions of the Washington Revised Code,
Wash. Rev. Code §§ 42.17.200 and 42.17.160. These two provisions of state law
together require certain grassroots citizen-to-citizen lobbying organizations to
register with the state and to disclose information about financial contributions
they receive. The district court held that appellants lack Article III standing. In the
alternative, it held that the statute was constitutional on its face and as applied. We
affirm the district court’s holding that both parties lack Article III standing to
challenge the constitutionality of Washington’s grassroots lobbying law.
To determine whether a party has sufficient injury to support Article III
standing in the First Amendment context, we look to “whether the plaintiffs have
articulated a ‘concrete plan’ to violate the law in question, whether the prosecuting
**
The Honorable Gordon J. Quist, Senior United States District Judge for the
Western District of Michigan, sitting by designation.
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authorities have communicated a specific warning or threat to initiate proceedings,
and the history of past prosecution or enforcement under the challenged statute.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)
(en banc); see also Canatella v. California, 304 F.3d 843, 854 n.14 (9th Cir. 2002)
(looking to a party’s “history” and “continuing activities” in the area, as well as to
the “nature” of the party’s legal challenge). “[P]laintiffs may carry their burden of
establishing injury in fact when they provide adequate details about their intended
speech.” Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir. 2010), cert. denied 131 S.
Ct. 2456 (May 16, 2011). “[T]he Constitution requires something more than a
hypothetical intent to violate the law.” Thomas, 220 F.3d at 1139.
Neither party here has standing to challenge the constitutionality of the
Washington grassroots lobbying law because neither has demonstrated that it
actually intends to undertake activities that come within the scope of the
challenged statute. Conservative Enthusiasts has not provided evidence of
concrete plans to pursue activities that qualify as grassroots lobbying under the
statute, nor has it even identified specific areas of state policy advocacy in which it
would like to engage.
MCOM has specified state legislation in the area of eminent domain about
which it proposes to lobby, and has named specific activities it might undertake to
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achieve those goals. But it has not demonstrated that it actually “intend[s]” to
undertake these activities. Lopez, 630 F.3d at 787. MCOM admits that its website
has been taken down and that it has not been holding regular meetings. Further,
MCOM does not show sufficient “continued activities” in the area of eminent
domain to support standing. Canatella, 304 F.3d at 854 n.14. To the extent that
any lobbying on eminent domain has been undertaken in recent years, it has been
performed by MCOM members as individuals, rather than in their organizational
capacity. Most important, MCOM acknowledges that it has not actually decided
whether to lobby the state; rather, MCOM’s founder has filed this challenge
“[b]ecause if we start lobbying the State, I don’t want to be fined for not doing
something” (emphasis added).
Because we affirm the district court’s dismissal for lack of Article III
standing, we do not reach appellants’ other contentions. Because we affirm for
lack of standing, we also “vacate the district court’s order and remand with
instructions to dismiss without prejudice.” Fleck & Assocs. v. City of Phoenix, 471
F.3d 1100, 1106 (9th Cir. 2006).
AFFIRMED in part, VACATED, and REMANDED with instructions.
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