Greenbaum v. Bailey

FILED
United States Court of Appeals
Tenth Circuit
March 31, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
NEAL GREENBAUM; VICTOR JURY; DALE
ARMSTRONG; GAIL ARMSTRONG,
Plaintiffs
ROBERT TORCH,
Intervenor-Plaintiff,
and
GIANT CAB COMPANY,
Intervenor-Plaintiff - Appellee,
v. No. 13-2176
AMY BAILEY, in her official capacity as the
Clerk for the City of Albuquerque; CITY OF
ALBUQUERQUE BOARD OF ETHICS AND
CAMPAIGN PRACTICES, in its official
capacity,
Defendants.
_____________________________
COMMITTEE TO ELECT PETE DINELLI
MAYOR,
Intervenor - Appellant,
NEW MEXICO ATTORNEY GENERAL’S
OFFICE,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:13-CV-00426-MCA-ACT)
Kristina Caffrey (Michael J. Cadigan with her on the briefs), Albuquerque, New
Mexico, for Intervenor-Appellant, Committee to Elect Pete Dinelli Mayor.
Colin L. Hunter, Barnett Law Firm, P.A. (Alfred A. Park, Park & Associates,
LLC, and Jason R. Bowles, Bowles Law Firm, with him on the briefs),
Albuquerque, New Mexico, for Intervenor-Plaintiff - Appellee, Giant Cab
Company.
Gary K. King, Attorney General, and Phillip Baca, Assistant Attorney General,
State of New Mexico, Office of the Attorney General, on the brief for Amicus
Curiae State of New Mexico.
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
Intervenor-Appellant, the Committee to Elect Pete Dinelli Mayor (the
“Committee”), appeals from the district court’s ruling that a provision of the
Albuquerque City Charter limiting campaign contributions is unconstitutional.
The original defendants chose not to appeal. The Committee, an intervenor
whose interests were aligned with the original defendants, however, filed a notice
of appeal. Plaintiff-Intervenor-Appellee, Giant Cab Company (“Giant Cab”),
-2-
moved to dismiss the appeal, arguing the Committee lacks standing because it
does not have a direct stake in the outcome of the appeal. See Hollingsworth v.
Perry, 133 S. Ct. 2652, 2662 (2013). The Committee asserts it has the right to
enforce the limitation on campaign contributions, giving it a personal stake in the
outcome.
This court concludes the citizen-complaint provision of the Albuquerque
Election Code does not give the Committee a personal stake in the litigation.
Accordingly, we grant Giant Cab’s motion and dismiss this appeal.
II. Background
In 2007, the Albuquerque City Charter was amended to add the following
subsection (f) to Article XIII, § 4:
No candidate shall accept a contribution in support of the candidate’s
campaign from any corporation, limited liability company, firm,
partnership, joint stock company or similar business entity or any
agent making a contribution on behalf of such a business entity. No
candidate shall accept a contribution in support of the candidate’s
campaign from any person, other than a City employee, who at the
time of the contribution is in a contractual relationship with the City
to provide goods or services to the City.
On May 6, 2013, Neal Greenbaum, Victor Jury, Dale Armstrong, and Gail
Armstrong filed a civil rights complaint against Amy Bailey, in her official
capacity as Clerk for the City of Albuquerque, and the City of Albuquerque Board
of Ethics and Campaign Practices (the “Board”), alleging Article XIII, § 4(f)
-3-
(“§ 4(f)”) violates the First and Fourteenth Amendments. Plaintiffs sought
declaratory and injunctive relief, nominal damages, fees, and costs.
The Committee was granted leave to file a Complaint in Intervention
pursuant to Fed. R. Civ. P. 24. 1 In its complaint, the Committee sought
declaratory relief in the form of a judgment declaring § 4(f) constitutional. The
Committee also submitted a brief in support of the Motion to Dismiss previously
filed by Bailey and the Board. In its brief, the Committee argued the Plaintiffs,
all of whom are individuals, lacked standing to challenge § 4(f)’s ban on
contributions “from any corporation, limited liability company, firm partnership,
joint stock company or similar business entity.” Shortly thereafter, Giant Cab
moved to intervene as an additional plaintiff, acknowledging there was no
representation in the lawsuit by a business or corporation. On August 19, 2013,
the district court dismissed the four original plaintiffs from the suit, concluding
they lacked standing because each desired to make a campaign contribution in his
individual name and § 4(f) did not prohibit such contributions. Accordingly, only
Giant Cab remained as a plaintiff.
On September 4, 2013, the district court ruled that § 4(f) violates the First
Amendment and, accordingly, entered judgment in favor of Giant Cab. The
court’s ruling was limited to the “portion of Article, XIII, § 4(f) providing that
1
The district court’s order did not specify whether the Committee was
entitled to intervene as of right pursuant to Fed. R. Civ. P. 24(a), or permissively
pursuant to Fed. R. Civ. P. 24(b).
-4-
‘[n]o candidate shall accept a contribution in support of the candidate’s campaign
from any corporation, limited liability company, firm, partnership, joint stock
company, or similar business entity or any agent making a contribution on behalf
of such a business entity.’” Specifically, the court concluded the City Council
failed to show that § 4(f) is closely drawn to further the interests of eliminating or
reducing corruption and preventing the circumvention of individual campaign
contribution limits.
While the federal litigation was proceeding, the Committee filed a
complaint with the Board, alleging the reelection campaign of Mayor Richard
Berry accepted campaign contributions from certain individuals, in violation of
§ 4(f). The Board is charged, inter alia, with enforcing the Albuquerque Election
Code (the “Election Code”). As part of its duties, it investigates verified
complaints filed by members of the public. 2 The Board decides whether to
schedule a preliminary hearing or to dismiss the complaint on the basis of the
written filings. If a preliminary hearing is scheduled, the respondent is provided
with an opportunity to file a statement explaining why the complaint fails to state
a violation of the Election Code. At the preliminary hearing, the Board decides
whether to dismiss the complaint or accept it. If the complaint is accepted, a
hearing date is set. At the hearing, the parties are given the opportunity to
present oral or documentary evidence and argument on the issues. If, after the
2
The Board may also initiate charges on its own.
-5-
hearing, the Board concludes there has been a violation of the Election Code, it
may fine a candidate up to $500 for each violation.
The Committee’s complaint was referred to the full Board for a preliminary
hearing. Mayor Berry responded to the complaint, arguing it should be dismissed
because § 4(f) does not ban contributions from individuals who are merely
owners, shareholders, members, employees, or agents of persons or businesses
with city contracts. Specifically, Mayor Berry alleged the seven individuals
identified in the Committee’s complaint were merely employees of businesses
with city contracts. There is no indication in the record whether the complaint
was dismissed, settled, or referred for a full hearing. The Committee asserts the
complaint was rendered “temporarily moot” by the district court’s judgment, but
it has not included any record evidence indicating what action was taken on the
complaint after the district court entered judgment in favor of Giant Cab.
Bailey and the Board did not seek to appeal from the district court’s
judgment. The Committee, however, filed a timely notice of appeal. In its
appellate brief, the Committee argues § 4(f) is constitutional because it is closely
drawn to further important governmental interests in preventing (1) quid pro quo
corruption, (2) the appearance of corruption, and (3) circumvention of individual
campaign contribution limits. Because we lack jurisdiction to hear this appeal,
we do not reach the Committee’s argument.
-6-
III. Discussion
On October 17, 2013, Giant Cab moved to dismiss the Committee’s appeal
for lack of jurisdiction, arguing the Committee lacked standing and also arguing
the issue raised is moot. We then ordered the parties to submit additional briefing
on the standing issue.
Any party invoking the power of the federal courts must demonstrate
standing to do so. City of Colo. Springs v. Climax Molybdenum Co., 587 F.3d
1071, 1078 (10th Cir. 2009). This court has held that an intervenor may either
“piggyback” on the standing of an existing party or establish its own independent
standing. Id. at 1079. It is unclear whether the district court permitted the
Committee to intervene on the basis of its own independent standing or on the
basis of the standing of the Board and Bailey, parties at the time. Nevertheless,
the question of piggyback standing is now irrelevant because Bailey and the
Board have not appealed and, thus, no longer remain in the case. San Juan Cnty.
v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc) (holding an
intervenor may piggyback on the standing of another party “so long as [the] party
with constitutional standing on the same side as the intervenor remains in the
case” (quotation omitted)). Accordingly, we must determine whether the
Committee has independent standing to proceed with its appeal.
In the typical case, a party can establish Article III standing by proving an
actual injury traceable to the defendant which would likely be redressed by a
-7-
favorable judicial decision. U.S. Const. art. III, § 2; Utah Animal Rights Coal. v.
Salt Lake Cnty., 566 F.3d 1236, 1240 (10th Cir. 2009). This case, however, is not
typical because the Committee’s interests are aligned with the interests of the
named defendants, not the plaintiffs. 3 The Supreme Court recently addressed the
issue of defendant standing in Hollingsworth. In that case, the district court
declared a California law unconstitutional and enjoined state officials from
enforcing it. Hollingsworth, 133 S. Ct. at 2662. The state officials did not appeal
but petitioners, who had intervened in the district court, filed a notice of appeal.
Id. The Court noted that petitioners had not been ordered “to do or refrain from
doing anything.” Id. Thus, the Court examined whether they had standing to
proceed with the appeal.
Applying the general principle that a litigant does not have standing unless
he “seek[s] relief for an injury that affects him in a personal and individual way,”
the Court concluded petitioners lacked standing because they did not have a
“direct stake” in the outcome of the appeal. Id. (quotation omitted). Rejecting
petitioners’ arguments that their role as proponents of the challenged law gave
them a direct stake, 4 the Court held that petitioners were “seeking relief that no
3
When it was permitted to intervene, the Committee was not explicitly
identified as a plaintiff or defendant. Both parties, however, have proceeded on
the premise the Committee’s interests were aligned with those of the Defendants.
4
The Court also rejected petitioners’ argument that they were authorized to
act as agents of the people of California. Hollingsworth v. Perry, 133 S. Ct.
(continued...)
-8-
more directly and tangibly benefits [them] than it does the public at large.” Id.(quotation omitted).
Giant Cab argues Hollingsworth controls the outcome of this matter
because the Committee’s interest is no different than that of the general public.
This is a compelling argument, particularly in light of the Court’s statement that it
has never “upheld the standing of a private party to defend the constitutionality of
a state statute when state officials have chosen not to.” Id. at 2668. The
Committee argues it has standing because the Election Code confers on it the
power to “enforce” § 4(f). Thus, it argues, it is not in the same position as the
appellants in Hollingsworth who had “no role—special or otherwise—in the
enforcement of [the California law at issue].” Id. at 2663.
The Committee’s argument is unavailing. The verb “enforce” is defined as
“[t]o give force or effect to (a law, etc.); to compel obedience to.” Black’s Law
Dictionary 608 (9th ed. 2009). Like any other member of the public, the
Committee’s role with respect to the Albuquerque Election Code is limited to
filing a complaint with the Board. Even if such a complaint is filed, as was the
case here, the Committee possesses no enforcement power with respect to § 4(f)
because it is the Board, not the complainant, that has the power to enforce the
Election Code. The Board alone determines whether to hold hearings or dismiss
4
(...continued)
2652, 2666 (2013).
-9-
the complaint. Although the complainant may present evidence and argument if a
hearing is held, it is the Board that may impose a fine on the respondent and/or
issue a public reprimand if it, alone, determines whether a violation has occurred.
If the Board enters into a settlement with the respondent at any time after the
filing of the complaint, the complainant has no role in this settlement process.
The Committee argues it has a direct personal stake in the outcome of this
appeal because the district court’s ruling prevented it “from finishing its Board of
Ethics proceeding or beginning a new one.” As to the former, we have already
explained that once a complaint is filed with the Board, the complainant has no
control over whether its complaint is dismissed, settled, or set for a hearing.
Thus, the district court’s ruling has not affected the Committee in a “personal and
individual way.” Hollingsworth, 133 S. Ct. at 2662 (quotation omitted). And, as
to the latter, the Committee cannot base its standing on the right to bring a new
complaint because that is a right shared by all members of the public. Id. (“A
litigant raising only a generally available grievance about government—claiming
only harm to his and every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more directly and tangibly
benefits him than it does the public at large—does not state an Article III case or
controversy.” (quotation omitted)).
Because the Committee has no power to enforce the Election Code and has
not identified any injury that affects it in a personal and individual way, it has no
-10-
direct stake in the outcome of this appeal. 5 Id. at 2662-63. Instead, like the
petitioners in Hollingsworth, the Committee’s “only interest in having the District
Court order reversed [is] to vindicate the constitutional validity of a generally
applicable . . . law.” Id. at 2662. Accordingly, the Committee lacks standing to
proceed with this appeal.
IV. Conclusion
Giant Cab’s motion to dismiss is granted and the appeal is dismissed.
5
The Committee also suggests it has standing because the dismissal of its
declaratory judgment action created a personal stake in the appeal. It cites no
authority for this proposition because none exists. It is well-settled that the filing
of a declaratory judgment action does not confer standing on a party. Bishop v.
Smith, 760 F.3d 1070, 1091 n.13 (10th Cir. 2014) (“That the plaintiffs’ action was
in part for a declaratory judgment does not affect the standing analysis. Like any
lawsuit, a declaratory-judgment action must meet Article III’s standing criteria
. . . .”).
-11-