Missourians for Fiscal Accountability v. Klahr , 830 F.3d 789 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2172
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Missourians for Fiscal Accountability
lllllllllllllllllllll Plaintiff - Appellant
v.
James Klahr, in his official capacity as Executive Director of the Missouri Ethics Commission
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: February 11, 2016
Filed: July 29, 2016
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Before LOKEN, ARNOLD, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Missourians for Fiscal Accountability (MFA) formed a campaign committee
on October 22, 2014—less than 30 days before the November 4 election—in
violation of Missouri law section 130.011(8).1 MFA sued the executive director of
1
All statutory citations are to RSMo Supp. 2013, unless otherwise indicated.
the Missouri Ethics Commission (MEC), in his official capacity, seeking to declare
unconstitutional the 30-day formation deadline. The district court granted a
temporary restraining order, but after the election, dismissed MFA’s suit as not ripe.
MFA appeals. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and
remands.
I.
Campaign committees are “formed by an individual or group of individuals to
receive contributions or make expenditures and whose sole purpose is to support or
oppose the qualification and passage of one or more particular ballot measures in an
election . . . .” § 130.011(8). These committees “shall be formed no later than thirty
days prior to the election” and “shall terminate the later of either thirty days after the
general election or upon the satisfaction of all committee debt after the general
election . . . .” Id.
“Any person who knowingly accepts or makes a contribution or makes an
expenditure in violation of any provision of this chapter [130] . . . shall be held liable
to the state in civil penalties in an amount equal to any such contribution or
expenditure.” § 130.072. “Upon vote of at least four members, the commission may
initiate formal judicial proceedings seeking to obtain any of the following orders: .
. . (2) Pay any civil penalties required by . . . chapter 130.” § 105.961.5(2). The MEC
has through “reconciliation agreements or civil action, the power to seek fees for
violations in an amount not greater than one thousand dollars or double the amount
involved in the violation.” § 105.961.4(6). In its verified answer, the MEC says that
it negotiates payment of a fee with the treasurer of a campaign committee that forms
within 30 days of the election. Consent orders show that the MEC negotiates
payment of part of the fee (about 10 percent). The remainder of the fee is then stayed
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until “any further violation of the campaign finance laws under Chapter 130, RSMo,
within the two-year period from the date of this order . . . .”2
Thirteen days before the November 2014 general election, a group of
individuals formed MFA as a campaign committee. § 130.011(8). That same day,
MFA notified the IRS that it was a political organization under section 527, claiming
it was “created to ensure that the finances of the State of Missouri are properly
represented and explained to the voting citizens of the State during the legislative
process.”3 The next day, MFA filed its Articles of Incorporation of a nonprofit
corporation in Missouri, stating its purpose was the “education of general public on
issues concerning fiscal responsibility.” MFA listed its duration as “perpetual,” and
it remains in good standing with the State. See Missouri Online Business Filing:
Search for a Business Entity, available at
https://bsd.sos.mo.gov/BusinessEntity/BESearch.aspx?SearchType=0 (last visited
July 26, 2016); IRS: Search Political Organization Disclosures, available at
https://forms.irs.gov/app/pod/basicSearch/search?execution=e1s1 (last visited July
2
Additionally, “[a]ny person who purposely violates the provisions of [chapter
130] is guilty of a class A misdemeanor.” § 130.081.1 RSMo 2000. See Impey v.
Missouri Ethics Comm’n, 442 S.W.3d 42, 44 (Mo. banc 2014) (recognizing “if the
MEC believes that there are reasonable grounds that a violation of a criminal law has
occurred, the MEC may refer the report to the appropriate prosecutor upon a vote of
four members of the commission.”); § 105.961.2 (“When the commission concludes
. . . that a violation of any criminal law has occurred, and if the commission believes
that criminal prosecution would be appropriate upon a vote of four members of the
commission, the commission shall refer the report to the Missouri office of
prosecution services . . . for appointment of an attorney to serve as special prosecutor
. . . .”). “Any person who fails to file any report or statement required by this chapter
[130] within the time periods specified in sections 130.011 to 130.051 is guilty of an
infraction.” § 130.081.2 RSMo 2000.
3
On March 27, 2015—months after the election—MFA amended its 527
purpose to “Support Constitutional amendment 10.”
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26, 2016). See generally Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648
(7th Cir. 2011) (recognizing “the authority of a court to take judicial notice of
government websites”).
According to MFA, section 130.011(8) prohibited it from receiving
contributions or making expenditures because it formed less than 30 days before the
2014 general election. MFA thus initially refrained from receiving contributions and
making expenditures. Eight days after formation, MFA sought declaratory and
injunctive relief from the 30-day formation deadline. MFA asserted that the
formation deadline unconstitutionally burdened its First Amendment rights to free
speech and political association. Two days before the election—on November 2—the
district court issued a temporary restraining order. See Missourians for Fiscal
Accountability v. Klahr, 2014 WL 5530996 (W.D. Mo. Nov. 2, 2014). MFA then
received contributions and spent $525 on robocalls.
After the election, MFA filed the required termination statement. See §
130.021.8. Though the district court found MFA’s claims not moot, it dismissed
MFA’s claims on ripeness grounds, without prejudice. See Missourians for Fiscal
Accountability v. Klahr, 2015 WL 1893359 (W.D. Mo. Apr. 27, 2015). MFA
appeals.
II.
The MEC asserts MFA lacks standing because it faces no actual or imminent
threat of a concrete and particularized injury-in-fact.
“Standing is always a ‘threshold question’ in determining whether a federal
court may hear a case.” 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir.
2011). A party invoking federal jurisdiction has the burden of establishing standing
“for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493
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(2009). “[A]n actual controversy must be extant at all stages of review, not merely
at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
See also Salazar v. Buono, 559 U.S. 700, 731 (2010) (Scalia, J., concurring) (“A
plaintiff cannot sidestep Article III’s requirements by combining a request for
injunctive relief for which he has standing with a request for injunctive relief for
which he lacks standing.”).
[T]o seek injunctive relief, a plaintiff must show that he is
under threat of suffering ‘injury in fact’ that is concrete and
particularized; the threat must be actual and imminent, not
conjectural or hypothetical; it must be fairly traceable to
the challenged action of the defendant; and it must be
likely that a favorable judicial decision will prevent or
redress the injury.
Summers, 555 U.S. at 493, quoted in Bernbeck v. Gale, 2016 WL 3769481, at *2
(8th Cir. July 14, 2016). To seek declaratory relief, standing must exist “at the time
of the hearing. . . .” Golden v. Zwickler, 394 U.S. 103, 108 (1969).
In the First Amendment context, “two types of injuries may confer Article III
standing to seek prospective relief.” Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.
2003), citing Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). First, MFA
could establish standing by alleging “an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442
U.S. 289, 298 (1979). Second, MFA can establish standing by alleging that it self-
censored. 281 Care Comm., 638 F.3d at 627. “[A] First Amendment plaintiff who
faces a credible threat of future prosecution suffers from an ongoing injury resulting
from the statute’s chilling effect on his desire to exercise his First Amendment rights.”
Ward, 321 F.3d at 1267 (internal quotations omitted) (emphasis in original)). Indeed,
“when there is a danger of chilling free speech, the concern that constitutional
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adjudication be avoided whenever possible may be outweighed by society’s interest
in having the statute challenged.” Secretary of State of Md. v. Joseph H. Munson
Co., 467 U.S. 947, 956 (1984) (applying this principle to the prudential concern with
third-party standing), cited by Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)
(“The leniency of First Amendment standing manifests itself most commonly in the
doctrine’s first element: injury-in-fact.”). See also Arizona Right to Life Political
Action Committee v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[W]hen the
threatened enforcement effort implicates First Amendment rights, the inquiry tilts
dramatically toward a finding of standing.”).
In its verified complaint, MFA says it engaged in self-censorship to comply
with section 130.011(8). For 11 days—from formation until the entry of the
temporary restraining order—MFA did not receive contributions or make
expenditures. MFA’s treasurer swears he “prohibited any agent of the organization
from soliciting and/or accepting contributions or pledges from any corporate entity
based on the prohibitions found in Section 130.011 . . . of the Missouri Revised
Statutes.” And, the verified complaint adds that “[b]ut for the thirty-day blackout
period . . . and the substantial likelihood of being subjected to a criminal
prosecution,” MFA would have “immediately [sought] to raise and expend funds in
support of Proposition 10.”
In analyzing a claim of standing through self-censorship, “[t]he relevant inquiry
is whether a party’s decision to chill his speech in light of the challenged statute was
‘objectively reasonable.’” 281 Care Comm., 638 F.3d at 627. Even when complaints
against plaintiffs do not reach “the criminal stage and no criminal prosecution was
ever threatened, non-criminal consequences contemplated by a challenged statute can
also contribute to the objective reasonableness of alleged chill.” Id. at 630. By
Missouri law, “[a]ny person who knowingly accepts or makes a contribution or makes
an expenditure in violation of any provision of this chapter [130] . . . shall be held
liable to the state in civil penalties in an amount equal to any such contribution or
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expenditure.” § 130.072 (emphasis added). And, MEC’s verified answer confirms
its policy to impose a fee. In light of the statute’s plain language and the MEC’s
stated policy, MFA’s self-censorship is objectively reasonable. Cf. National Right
to Life Political Action Comm. v. Connor, 323 F.3d 684, 690 (8th Cir. 2003) (“There
is no dispute over [the committee’s] standing to challenge section 130.011(10); [the
committee] clearly falls within the statute’s definition of a ‘continuing committee.’”).
MFA has Article III standing to challenge section 130.011(8) on First
Amendment grounds.
III.
Though the 2014 election has passed, this case is not moot. For mootness, the
“requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000). MFA violated
the formation deadline by forming within thirty days of election. For this, the MEC
can impose a fee. See § 105.961.4(6). That it has not yet done so is irrelevant
because the MEC’s inaction “is not permanent.” See Los Angeles v. Lyons, 461 U.S.
95, 101 (1983) (holding that a moratorium on the use of choke holds by the police
department did not moot a case challenging the constitutionality of the use of choke
holds because “[i]ntervening events have not irrevocably eradicated the effects of the
alleged violation”) (internal quotations omitted)). Cf. Knox v. Service Employees,
132 S. Ct. 2277, 2287 (2012) (“The voluntary cessation of challenged conduct does
not ordinarily render a case moot because a dismissal for mootness would permit
resumption of the challenged conduct as soon as the case is dismissed.”). MEC can
at any time implement its policy and assess the fee for violation of the formation
deadline in section 130.011(8). The MEC and MFA continue to have “adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.” Golden, 394 U.S. at 108.
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Alternatively, MFA invokes the exception to mootness for “capable of
repetition yet evading review.” This exception will “rescue an otherwise moot claim
if (1) the challenged conduct is of too short a duration to be litigated fully prior to its
cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.” Connor, 323 F.3d at
691. The question 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, 318 n.6 (1988) (emphasis in
original).
“Election issues are among those most frequently saved from mootness by this
exception.” Connor, 323 F.3d at 691 (internal quotations omitted). Although MFA
terminated by operation of law as a campaign committee for the 2014 election, it still
exists as a section 527 political organization and a nonprofit corporation in good
standing in Missouri. Its corporate purpose is the “education of general public on
issues concerning fiscal responsibility.” Cf. Zwickler, 394 U.S. at 109 (finding no
“case or controversy” where the plaintiff’s “sole concern was literature relating to the
Congressman” who had taken a position in the judiciary and “it was most unlikely
that the Congressman would again be a candidate for Congress”), distinguished by
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2344 (2014) (finding standing
for advocacy organizations because their focus was on broader issues “not on the
voting record of a single candidate”). Post-election, in Answer to the Court’s Order
to Show Cause, MFA alleged it “will once again be harmed by [section 130.011(8)]
. . . if and when it chooses to support or oppose the qualification and passage of one
or more particular ballot measures in future elections.” “[A]ny number of events . .
. might cause [the committee] to become involved in a state race within thirty days
of an election.” See id. at 692 (citing a candidate’s death, polls that “might reveal a
closer race than expected,” new information “or effective advertising [that] could
drastically alter public opinion in the weeks before an election,” and trends “in other
races [that] could elevate the importance of races with less clear outcomes”). To
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participate in future elections, MFA must re-form as a campaign committee.4 And,
it must face the specter of section 130.011’s formation deadline and MEC’s policies
on fees. Cf. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974) (“[T]he
challenged governmental activity in the present case is not contingent, has not
evaporated or disappeared, and, by its continuing and brooding presence, casts what
may well be a substantial adverse effect on the interests of the petitioning parties.”),
as construed in Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (“Even though the
particular strike which had been the occasion for the filing of the lawsuit was
terminated, the Court held that it was enough that the petitioner employer showed ‘the
existence of an immediate and definite governmental action or policy that has
adversely affected and continues to affect a present interest’”).
The district court did not err in concluding that the case is not moot.
IV.
The district court dismissed MFA’s claims as not ripe. MFA maintains that its
challenge to the 30-day formation deadline is ripe for review. Ripeness is reviewed
de novo. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014).
The ripeness doctrine prevents courts “through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also [protects] the agencies from judicial interference
until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties.” Connor, 323 F.3d at 692, quoting Abbott Labs. v.
4
The MEC stresses Connor’s reference to this continuing-committee provision
as a “registration deadline.” See Connor, 323 F.3d at 693. MFA believes that the
similar campaign-committee provision is a “formation deadline.” These labels
summarize the parties’ contrasting views of the “committee shall be formed”
deadline—an issue for consideration on the merits.
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Gardner, 387 U.S. 136, 148-49 (1967). To decide ripeness, courts consider: “(1) the
hardship to the plaintiff caused by delayed review; (2) the extent to which judicial
intervention would interfere with administrative action; and (3) whether the court
would benefit from further factual development.” Id. at 692-93. “The touchstone of
a ripeness inquiry is whether the harm asserted has matured enough to warrant
judicial intervention.” Parrish, 761 F.3d at 875.
In Connor, this court addressed the statute for continuing committees, which
then imposed a 30-day formation deadline. Connor, 323 F.3d at 693, citing
§ 130.011(10) RSMo 2000 (30-day time-limit, later amended to 60 days). This court
concluded that a continuing committee’s claim was not ripe because it presented
neither evidence “on the issue of fees” nor pursued an advisory opinion from the
MEC or a temporary restraining order. Id. at 693-94. This court explained that how
the MEC handles the fees for failing to file before the 30-day window has a
significant impact “on our constitutional scrutiny of section 130.011(10).” Id. at 693.
Without fee evidence or a request for an advisory opinion or a restraining order, the
committee “may, in fact, discover that no real threat of enforcement exists at all.” Id.
“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may
not occur as anticipated, or indeed may not occur at all.’” Id., quoting Texas v.
United States, 523 U.S. 296, 300 (1998).
Eleven years later, in 2014, MFA challenged section 130.011(8), which has a
formation deadline similar to that in Connor. See § 130.011(10) RSMo 2000 (30-day
time limit, later amended to 60 days) (stating a continuing committee “shall be formed
no later than thirty days prior to the election for which the committee receives
contributions or makes expenditures.”). Unlike the committee in Connor, MFA
presented evidence of the MEC imposing fees on committees for not complying with
the formation deadline. In one consent order, the MEC imposed a $1,000 fee on a
continuing committee, listing as a separate violation “failing to form as a committee
more than sixty days prior to the April 2013 election” (in addition to not timely filing
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an organizational statement). Missouri Ethics Comm’n v. Taxpayer Protection
PAC, No. 13E060 (Feb. 18, 2014) (Consent Order), available at
http://mec.mo.gov/Scanned/CasedocsPDF/18669.pdf. In the second consent order,
the MEC imposed a $3,100 fee on a continuing committee for “forming as a
committee less than sixty days prior to an election” (among other violations).5
Missouri Ethics Comm’n v. West, No. 14E091 (Oct. 8, 2014) (Consent Order),
available at http://mec.mo.gov/Scanned/CasedocsPDF/22110.pdf. The MEC’s policy
on imposing fees for not meeting the formation deadline is clear, and the record is
now adequately developed. See Connor, 323 F.3d at 693 (where the committee
presented no evidence “on the issue of fees”).
The touchstone of ripeness is the harm asserted by MFA. MFA asserts the
harm of self-censorship, based on its compliance with section 130.011(8). See
Arizona Right to Life Political Action Comm., 320 F.3d at 1007 n.6 (holding “our
conclusion that ARLPAC has suffered actual harm dispenses with any ripeness
concerns.”). MFA’s case is ripe for review.
*******
The dismissal of MFA’s claims is reversed, and the case remanded for
proceedings consistent with this opinion.
5
In its verified answer, the MEC says that it negotiates payment of a fee with
the treasurer of a campaign committee. The consent orders show that the MEC
negotiates payment of part of the fee (about 10 percent). The remainder of the fee is
then stayed until “any further violation of the campaign finance laws under Chapter
130, RSMo, within the two-year period from the date of this order . . . .”
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ARNOLD, Circuit Judge, dissenting.
The 2014 election has come and gone, MFA's election committee has
dissolved, and the ballot measure for which MFA's election committee was created
to support has passed. MFA and the court nonetheless maintain that MFA has carried
its burden to demonstrate an ongoing Article III case or controversy. Because I
believe that this case is moot, that its challenges to future disputes are unripe, and that
MFA lacks standing to obtain prospective equitable relief, I respectfully dissent.
Article III requires that a plaintiff's personal interest in the litigation must
continue throughout the life of the case, otherwise the case is moot. See Nat'l Right
to Life Political Action Comm. v. Connor, 323 F.3d 684, 691 (8th Cir. 2003). The
court draws on Connor to hold that MFA's claims were not moot because they were
capable of repetition yet would evade review. Claims are "capable of repetition yet
evading review" only when "there is a reasonable expectation that the same
complaining party will be subject to the same action again." Id. MFA, however,
provides no evidence that it will participate in a future election, much less create an
election committee within 30 days of one. The very nature of the election committee
in Connor, a continuing committee, suggested future participation because continuing
committees do not terminate by operation of law. See Mo. Rev. Stat. § 130.011(10).
Such a committee also tends to focus on issues that recur in different elections, such
as the pro-life concerns of the committee in Connor.
MFA's election committee, however, is a campaign committee that, as the court
itself recognizes, dissolved by operation of law shortly after the 2014 election. See
Mo. Rev. Stat. § 130.011(8). It advocated (successfully) for the passage of a
particular ballot measure and filed a termination statement. Unlike the record in
Connor, the record here contains no evidence that the committee at issue will
continue to operate or regenerate to participate in future elections, nor is there
evidence that the ballot measure for which MFA successfully advocated will be the
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subject of a future election. Because MFA did not "make a reasonable showing that
[it] will again be subjected to the alleged illegality," City of Los Angeles v. Lyons, 461
U.S. 95, 109 (1983), its claims are not capable of repetition yet evading review. So
they are moot.
I respectfully disagree with the court's reliance on MFA's allegation that the
formation requirement will harm MFA "if and when it chooses to" participate in
another election. Not only is the allegation not evidence, this "some day" intention
is much too speculative to overcome mootness. See Bernbeck v. Gale, No. 15-1983,
2016 WL 3769481, at *3 n.3 (8th Cir. July 14, 2016). The court's reliance on Super
Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974), is also misplaced. Super Tire
involved a state law that made striking workers eligible for welfare programs. Even
though the strike in question ended while the litigation was pending, the state law
continued to affect the interests of the parties because, as the Supreme Court
explained one year after deciding Super Tire, the parties were engaged in "cyclically
recurring bargaining," Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (per curiam),
and the law's favorable effect on the employees altered the parties' bargaining
positions. See Super Tire, 416 U.S. at 124. The state law therefore had an ongoing,
continuous, and certain effect. This case more closely resembles Weinstein, where the
Supreme Court held that a former state prisoner's challenge to the state's parole
procedures was moot because he had been released from prison and thus no longer
had a present interest in parole policies. Id. at 147–48. By providing no evidence of
an intent to regenerate for future elections, MFA has not demonstrated a presently
affected interest.
I suggest further that the court errs by concluding that MFA's claims are not
moot because the MEC has thus far only declined to penalize MFA. It is unclear to
me how the MEC could penalize a campaign committee long after it has dissolved,
and the two consent orders that the court identifies as showing an imminent threat of
a penalty involve penalties levied against continuing committees, which do not
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dissolve by operation of law. Nothing in the record shows that MEC actually
penalizes defunct campaign committees for late formation or suggests how it could
even do so.
MFA's claims are also unripe. Ripeness requires an examination of the fitness
of issues for judicial determination and the hardship to the parties when the decision
of a case is deferred. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014). The
fitness consideration "safeguards against judicial review of hypothetical or
speculative disagreements," and the hardship consideration deals with whether
delayed review would work a significant practical harm on the plaintiff. Id. This harm
must be "certainly impending." Id. at 876. Claims are not ripe when they rest on
"contingent future events that may not occur as anticipated, or indeed may not occur
at all." Id. at 875–76.
MFA's claims for prospective equitable relief depend entirely on speculation.
Delayed review will not harm MFA because it has given no evidence of an intent to
regenerate its election committee for future elections. In no sense is any injury
"certainly impending." Unlike 281 Care Committee v. Arneson, 638 F.3d 621, 631
(8th Cir. 2011), upon which the court relies, MFA will not suffer harm "at defined
points" in the future because it has provided no evidence of an intent to act in the
future. And the fact that it may have been harmed previously does not license it to
seek prospective equitable relief ad infinitum, and the court errs in apparently
concluding otherwise.
In Golden v. Zwickler, the Supreme Court confronted a First Amendment
challenge to a New York law barring distribution of anonymous literature in
connection with an election campaign. 394 U.S. 103, 104–05 (1969). The plaintiff
was convicted (and thus already harmed) under the law for distributing literature
targeting a particular Congressman running for re-election in 1964. The First
Amendment challenge, filed after the 1964 election and the reversal of the plaintiff's
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conviction, alleged that the same Congressman would run in 1966, that he had been
a political figure for many years, and that the plaintiff intended to continue
distributing such literature. After the case was filed, the Congressman accepted a
position in the New York judiciary, so the Court concluded that it was unlikely that
the Congressman would seek re-election, precluding a finding that there was
sufficient immediacy and reality, so the Court lacked Article III jurisdiction. Because,
moreover, there was no upcoming re-election campaign, "it was wholly conjectural
that another occasion might arise when [plaintiff] might be prosecuted for distributing
the handbills referred to in the complaint," and his assertion that the former
Congressman could run again was "hardly a substitute for evidence that this is a
prospect of 'immediacy and reality.'" Constitutional questions, even First Amendment
ones, must emanate from a specific live grievance. Id. at 109–10. The Court's
observations in Golden apply here with equal force.
Relatedly, MFA did not prove an actual, imminent injury that is not conjectural
or hypothetical, Mo. Roundtable for Life v. Carnahan, 676 F.3d 665, 672 (8th Cir.
2012), so it lacks standing. To have standing to raise a First Amendment challenge
to a state statute, "the plaintiff needs only to establish that he would like to engage in
arguably protected speech, but" the statute in question significantly discourages him
from doing so. 281 Care Comm., 638 F.3d at 627. The decision to refrain from
speaking in light of the relevant statute must be objectively reasonable, which
requires the plaintiff to demonstrate "an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by [the] statute, and
there exists a credible threat of prosecution." Id.
The court concludes that MFA was harmed by its self-censorship. It seems to
me that MFA's self-imposed silence, if any, was not objectively reasonable. We
recognized in Connor, when construing a virtually identical formation requirement,
that the requirement "does not, on its face, limit issue or express advocacy." Connor,
323 F.3d at 693. In fact, MFA's proposed construction of the relevant statute borders
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on the fanciful. Life is risky, particularly political life, and President Truman's
aphorism about the heat and the kitchen surely has a special resonance in Missouri
campaigns. As Mr. Justice Cardozo remarked in a different but similar context, "the
timorous may stay at home." Murphy v. Steeplechase Amusement Co., 250 N.Y. 479,
483, 166 N.E. 173, 174 (1929). And MFA's self-imposed blackout does nothing to
avoid a penalty; it could have been assessed a penalty whether it was actively
speaking or keeping quiet: The challenged portion of the statute concerns only MFA's
formation, so whatever MFA did (or did not do) after it formed does not help resolve
the standing inquiry.
Finally, "[t]o have Article III standing to seek prospective relief, plaintiffs must
show they are likely to suffer future injury that will be remedied by the relief sought."
Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006). "Past exposure to illegal
conduct" will not suffice absent present adverse effects. Id. Past wrongs are merely
evidence showing the existence of a real and immediate threat of repeated injury. As
with the chokeholds in Lyons, MFA has not shown a real and immediate threat of
future harm that justifies prospective relief. "Absent a sufficient likelihood that [it]
will again be wronged in a similar way, [MFA] is no more entitled to an injunction
than any other citizen of [Missouri]." Lyons, 461 U.S. at 111. If MFA wants to
vindicate what happened to it in 2014, a claim for damages would be more
appropriate. See id. at 105, 111.
The court gives short shrift to MFA's lack of plans for participating in future
elections. Since MFA has not demonstrated the existence of an Article III case or
controversy, I respectfully dissent from the court's opinion and would affirm the
district court's judgment.
______________________________
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