Herbert Moncier v. Bill Haslam

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0469n.06
Case No. 14-5324 F LED
UNITED STATES COURT OF APPEALS JUN 3 o 2014
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
HERBERT SANFORD MONCIER, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BILL HASLAM, Governor of the State of ) DISTRICT OF TENNESSEE
Tennessee; MARK GOINS, Tennessee )
Coordinator of Elections, )
)
Defendants-Appellees. ) 0 P IN I 0N
BEFORE: MERRITT, COLE, and WHITE, Circuit Judges.
COLE, Circuit Judge. In 1994, the Tennessee General Assembly enacted a plan for the
selection, evaluation, and retention of judges who serve on the Supreme Court of Tennessee and
the state’s appellate courts (“the Tennessee Plan”). Under the Tennessee Plan, the Governor may
temporarily fill judicial vacancies by appointment, but those gubernatorial appointees must then
run in a retention election to fulfill the remainder of the unexpired term they are serving. Herbert
Moncier, proceeding pro se, brought suit under Section 1983, challenging the Tennessee Plan on
the grounds that it violates his (and the people of Tennessee’s) First and Fourteenth Amendment
rights to ballot access and political association. The district court dismissed Moncier’s suit due
to lack of standing after determining that he alleged, at most, a generalized grievance involving
an abstract question of wide public significance. For similar reasons, we affirm.
Case No. 14-5324
Moncier v. Haslam, et al.
I. BACKGROUND
This appeal involves a challenge to the constitutionality of Tennessee Code §§ 17-4-101
through 17-4-116, known commonly as the Tennessee Plan, which governs the way in which
judges of the Tennessee appellate courts are initially selected and thereafter stand for election.
By now, the Tennessee Plan is no stranger to legal challenge, both at the federal and state level.
See, e.g., Johnson v. Bredesen, 356 F. App’x 781 (6th Cir. 2009) (affirming district court’s
dismissal of a federal constitutional challenge to the Tennessee Plan as it related to the election
of state supreme court justices); Hooker v. Haslam, No. M2012-01299-SC-R11-CV, 2014 WL
1010367 (Term. Mar. 17, 2014) (holding that the Tennessee Plan, as it relates to state appellate-
court judges, does not violate the state constitution).
The Tennessee Plan provides that if a vacancy occurs in the office of an appellate-court
judge by death, resignation, or otherwise, the Governor shall fill the vacancy by appointing one
of the three persons nominated by the Judicial Nominating Commission (“JNC”).’ Tenn. Code
§ 17-4-112(a)(1). Likewise, if an incumbent appellate-court judge determines not to seek
retention for another term, the Tennessee Plan provides that a vacancy occurs in that office upon
the expiration of the incumbent’s term, effective September 1. Id. § 17-4-116(a). In such event,
the Governor may fill the vacancy under the procedures outlined in §S 17-4-112 or 17-4-113, but
the Governor’s appointee must then stand for a retention election at the next August general
election to fill the remainder of the unexpired term. Id. § 17-4-116(a).
1
Though not relevant to this appeal, the Tennessee General Assembly amended the Tennessee Plan to terminate
operation of the INC. See Tenn. Code § 4-29-233(a)( 15). Following this change in the law, the JNC wound up its
business and then ceased to exist as of July 1, 2013. See id. § 4-29-112. Nevertheless, the appointments at issue in
this appeal were all filled with the assistance of the INC prior to winding up its affairs, and the Tennessee Plan
remains substantively unchanged in all other respects.
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On May 24, 2013, Judge Joseph Tipton of the Tennessee Court of Criminal Appeals
notified Governor Bill Haslam that he would not seek retention for another term in the August
2014 election. The INC then issued notice that it was accepting applications to fill the vacancy
Judge Tipton’s decision would create and subsequently held a public hearing to interview
interested candidates and to allow public comment on the qualifications of the applicants. The
JNC ultimately submitted several names to the Governor, and from those names, the Governor
selected Robert H. Montgomery to fill the vacancy. Thus, under the Tennessee Plan,
Montgomery will fill the vacancy created upon the expiration of Judge Tipton’s term, effective
September 1, 2014, but Montgomery must run in an August 2016 retention election (involving a
simple yes-or-no vote) to be eligible to serve the remainder of that term. See Id. § 17-2-116(a).
Herbert Moncier, the plaintiff in this suit, wishes to fill Judge Tipton’ s position on the
Tennessee Court of Criminal Appeals. He did not, however, submit an application to the INC to
be considered for the seat, nor did he appear at the public meeting or otherwise comment on the
qualifications of the actual applicants. Moncier instead requested that Mark Goins, the State
Coordinator of Elections, place his name on the August 2014 ballot as a candidate for the office.
Coordinator Goins denied Moncier’ s request and directed him to the “Tennessee statutes that
provide for the manner judges are appointed and stand for election in Tennessee.”
Moncier filed this suit in federal district court against Governor Haslam and Coordinator
Goins, seeking a declaration that the Tennessee Plan is unconstitutional. Moncier alleged that, in
implementing the Tennessee Plan to fill Judge Tipton’s seat, the defendants are violating his
First and Fourteenth Amendment rights under the United States Constitution by denying him
access to the August 2014 ballot and the right to political association.
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Moncier v. Haslam, et al.
The defendants answered Moncier’s complaint and requested that the district court
dismiss the suit, citing a lack of subject-matter jurisdiction because Moncier purportedly lacked
standing. On December 6, 2013, Moncier filed an application for a temporary injunction
directing Coordinator Goins to provide him with a nomination petition for the office of judge of
the Tennessee Court of Criminal Appeals and to provide him with instructions on how many
nominating signatures are required, from which counties those signatures are required, and the
deadline for filing a nominating petition. Moncier also filed several motions to amend his
complaint and his motion for temporary injunctive relief. The district court did not rule on these
individual motions prior to dismissing the suit.
On February 28, 2014, the district court issued a memorandum opinion dismissing
Moncier’s complaint and denying his motion for a temporary injunction. Moncier v. Haslam,
No. 3:13—CV—630—TAV—HBG, 2014 WL 806418, at *8 (M.D. Tenn. Feb. 28, 2014). The court
determined that Moncier had failed to establish the constitutional minimums for standing based
on his First and Fourteenth Amendment claims. Id. at *37 “At bottom,” the court reasoned,
“[Moncier’s] complaint is a generalized grievance that involves abstract questions of wide public
significance,” and not a request for relief from a concrete and particularized injury, as required
for Article III standing. Id. at * 5 (citation and internal quotation marks omitted). Accordingly,
the district court dismissed Moncier’s complaint and denied his motion for a temporary
injunction due to lack of subject-matter jurisdiction. Id. at *7 Whether for mootness or futility,
the district court also denied Moncier’ s various motions to amend, strike, and supplement his
complaint and motion for temporary injunctive relief. Id. at *8. The court then directed the clerk
to close Moncier’s case in its entirety. Id.
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Moncier v. Haslam, et al.
Moncier timely filed a notice of appeal challenging the dismissal of his complaint and an
amended notice of appeal challenging the denial of his motion for a temporary injunction.
Moncier did not, however, appeal the denial of his motions to amend his other filings.
Accordingly, we need not address the claims he presented in those tendered amendments. See
Fed. R. App. P. 3(c)(1)(B) (requiring notices of appeal to “designate the judgment, order, or part
thereof being appealed”); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1998) (holding
that compliance with Rule 3 is both a “mandatory and jurisdictional” prerequisite to appeal
(internal quotation marks omitted)).
II. ANALYSIS
We review de novo the dismissal of a case for lack of standing. Prime Media, Inc. v. City
of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007). As the party seeking relief in federal court,
Moncier bears the burden of establishing that he has standing. See Summer v. Earth Island Inst.,
555 U.S. 488, 493 (2009).
A. Requirements for Standing
Article III of the United States Constitution restricts the federal judicial power to the
resolution of “Cases” and “Controversies.” U.S. Const., art. III, § 2. This case-or-controversy
requirement is satisfied only where a plaintiff has standing to bring suit. Sprint Commc ‘ns Co. v.
APCC Servs., Inc., 554 U.S. 269, 273 (2008). To assert Article III standing, a plaintiff must
establish the following: “(1) an injury in fact (i.e., a concrete and particularized invasion of a
legally protected interest); (2) causation (i.e., a fairly traceable connection between the alleged
injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and
not merely speculative that the plaintiff’s injury will be remedied by the relief the plaintiff seeks
in bringing suit).” Id. (brackets, ellipsis, citation, and internal quotation marks omitted). The
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Supreme Court has described these criteria as the “irreducible constitutional minimum” for
bringing suit in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
In addition to the Article III standing requirements described above, federal courts have
long imposed prudential limitations on the exercise of their jurisdiction. See, e.g., Allen v.
Wright, 468 U.S. 737, 751 (1984); Barrows v. Jackson, 346 U.S. 249, 255—56 (1953). But see
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386—88 (2014)
(abrogating a line of prudential-standing cases not relevant to this appeal). Under these
prudential limitations, courts should refrain from exercising jurisdiction “when the asserted harm
is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of
citizens.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted); Wuliger v. Mfrs. Ltfe
Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009). Moreover, “plaintiff[s] generally must assert [their]
own legal rights and interests,” without resting their claims on the rights or interests of third
parties. Warth, 422 U.S. at 499; Wuliger, 567 F.3d at 793.
Our standing inquiry focuses primarily on the party bringing suit, and not the merits of
the action. Valley Forge Christian Coll. v. Ams. Unitedfor Separation of Church & State, Inc.,
454 U.S. 464, 484 (1982). Nevertheless, this inquiry often depends on the nature and source of
the claims and requires a “careful judicial examination of the complaint’s allegations to ascertain
whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.”
Allen, 468 U.S. at 752 (asking, among other questions, whether the claimed injury is “too
abstract, or otherwise not appropriate to be judicially cognizable”; whether “the line of causation
between the illegal conduct and injury is too attenuated”; and whether “the prospect of obtaining
relief from the injury as a result of a favorable ruling [is] too speculative”), abrogated on other
grounds by Lexmark, 134 5. Ct. at 1386.
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B. Moncier Lacked Standing to Challenge the Tennessee Plan
After careful consideration of Moncier’ s constitutional challenge to the Tennessee Plan,
the district court determined that he lacked standing because the injuries of which he complained
were not “concrete and particularized,” but rather “generalized” and “abstract,” involving
“questions of wide public significance” to all Tennesseans. Moncier, 2014 WL 806418, at *5_6.
We agree.
We do not write on a blank slate in determining whether Moncier has standing. His suit
represents the latest in a long line of cases seeking to upend the Tennessee Plan for one reason or
another. See Hooker, 2014 WL 1010367, at *2 n.3 (collecting unsuccessful cases challenging
the Tennessee Plan on state and federal constitutional grounds, filed in both state and federal
court). Five years ago, we addressed a nearly identical challenge to the Tennessee Plan as it
relates to the election of justices of the state supreme court. Johnson, 356 F. App’x at 781—82.
There, we held that plaintiffs who were similarly situated to Moncier lacked standing to bring
claims under the Fourteenth Amendment to the United States Constitution. Id. at 783—84.
Relying on Supreme Court precedent, we determined that the plaintiffs could not “challenge laws
of general application where their own injury is not distinct from that suffered in general by other
taxpayers or citizens.” Id. at 784 (quoting Hem v. Freedom From Religion Found., Inc.,
551 U.S. 587, 598 (2007)). We explained that “the judicial power of the United States defined
by Art[iclej III is not an unconditional authority to determine the constitutionality of legislative
or executive acts.” Id. (brackets, citation, and internal quotation marks omitted). Because the
plaintiffs merely alleged that, in carrying out the Tennessee Plan, state officials were not
complying with the Fourteenth Amendment, the plaintiffs “failed to assert a particularized stake
in the litigation” and therefore lacked standing. Id. (internal quotation marks omitted).
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Moncier’s challenge to the Tennessee Plan suffers from many of the same shortcomings.
Rather than asserting a “particularized stake in the litigation,” Moncier’ s complaint contained
mostly general allegations that the manner in which Tennessee selects and retains its appellate-
court judges violates his rights and the rights of all Tennessee voters under the First and
Fourteenth Amendments. His complaint repeatedly maintained that “the people of Tennessee”
have been or will be deprived of their right to vote for the office of Judge of the Tennessee Court
of Criminal Appeals in the August 2014 general election and that he seeks relief on their behalf.
Moncier, 2014 WL 806418, at * 5. Moreover, as the district court determined, at a hearing on
Moncier’s various motions to amend his filings, “[Moncier] claimed he was injured because he
wanted to run for office, [and] he emphasized that he was pursuing this litigation on behalfofthe
people of Tennessee to make a point about the manner in which appellate court judges are
selected and retained.” Id. (emphasis added).
This is precisely the type of generalized grievance courts have found ill-suited for judicial
resolution. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220—21
(1974) (“[S]tanding to sue may not be predicated upon an interest. . . which is held in common
by all members of the public, because of the necessarily abstract nature of the injury all citizens
share.”). In Lance v. Coffman, 549 U.S. 437 (2007) (per curiam), the Supreme Court affirmed
the dismissal of a challenge to Colorado’s 2003 redistricting plan brought by four private citizens
because “[t]he only injury plaintiffs allege is that the law—specifically the Elections Clause
[U.S. Const. art. I, § 4, cl. 1]—has not been followed.” Id. at 442. The Court went on to state
that the asserted injury “is precisely the kind of undifferentiated, generalized grievance about the
conduct of government that we have refused to countenance in the past.” Id. (distinguishing the
Lance plaintiffs from other voting-rights plaintiffs and cases where the Court found standing).
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Moncier makes no effort to distinguish his claims under the First and Fourteenth
Amendments (which rely heavily on Anderson v. Celebreeze, 460 U.S. 780 (1983), and Burdick
v. Takushi, 504 U.S. 428 (1992)) from Hem, Schelesinger, Lance, or any number of other
Supreme Court cases that denied standing where a plaintiff asserted “a general interest common
to all members of the public” in the conduct of their government. Lance, 549 U.S. at 440
(quoting Ex parte Levitt, 302 U.S. 633, 634 (1937) (Jer curiam)). The crux of Moncier’s
complaint is that Tennessee voters cannot, in all instances, elect the judges of the state’s
appellate courts. This injury is “plainly undifferentiated and common to all members of the
public.” Id. at 440—41 (internal quotation marks omitted); Johnson, 356 F. App’x at 784.
Moncier presents a closer call on the issue of standing to the extent that he alleges he was
denied the opportunity to appear on the August 2014 ballot. Here, his purported injury differs
slightly from the plaintiffs who challenged the Tennessee Plan in Johnson v. Bredesen. One of
the Johnson plaintiffs, John Jay Hooker, initially argued that the Tennessee Plan violated his
constitutional rights because it denied him an opportunity to be a candidate for the Supreme
Court of Tennessee. 356 F. App’x at 782. The district court nevertheless found that Hooker
lacked standing because he made “no contention of unequal treatment as a potential candidate
pursuant to the equal protection clause” and because our court already held that Hooker “ha[d]
no property right to run for a state office.” Johnson v. Bredesen, Nos. 3:07-0372, 3:07-0373,
2008 WL 701584, at *5 (M.D. Tenn. Mar. 13, 2008) (citing Hooker v. Anderson, 12 F. App’x
323, 324 (6th Cir. 2001) (affirming the district court’s dismissal of Hooker’s suit and noting that
he had no property right to be a candidate)). Nevertheless, Hooker did not appeal that portion of
the district court order, so we had no cause to determine whether he had standing to challenge the
Tennessee Plan based on his own desire to run for office. Johnson, 356 F. App’x at 782.
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Here, the district court “recognized [Moncier’s] injury in that he was denied the
opportunity to be placed on the August 2014 ballot” but found that, “on the basis of his
allegations and arguments,” Moncier had yet again presented “a generalized grievance shared by
a large class of citizens.” Moncier, 2014 WL 806418, at *5 (“Undoubtedly, any Tennessean who
desires to run for the office of an appellate judge would encounter the exact same obstacles that
plaintiff has asserted here.”). There is some purchase to the district court’s rationale, though
Moncier points out that his harm is somewhat unique in that (1) only a licensed attorney can
qualify for one of the state’s appellate judgeships; (2) only a resident from the Eastern Grand
Division can qualify for the particular judgeship Moncier seeks; and (3) unlike other qualified
voters, Moncier took some steps to seek this judgeship (though he failed to apply to the INC).
Ultimately, we need not weigh-in on this portion of the district court’s opinion because
there is no federally protected interest in seeking a state-court judgeship that, under state law (as
interpreted by the state supreme court), already has been lawfully filled by gubernatorial
appointment. See Snowden v. Hughes, 321 U.S. 1, 7 (1944) (“The right to become a candidate
for state office . . . is a right or privilege of state citizenship . .
. .“); Newman v. Voinovich,
986 F.2d 159, 161, 163 (6th Cir. 1993) (affirming dismissal under Rule 12(b)(6) of a suit
challenging Ohio’s judicial-appointment procedures under the First and Fourteenth
Amendments); Burks v. Perk, 470 F.2d 163, 165 (6th Cir. 1972) (“Public office is not property
within the meaning of the Fourteenth Amendment.”); see also Wilson v. Birnberg, 667 F.3d 591,
598 (5th Cir. 2012) (“[T]here is no constitutional right to run for state office protected by the
Fourteenth Amendment.” (citation and internal quotation marks omitted)); Velz v. Levy, 401 F.3d
75, 86—87 (2d Cir. 2005) (“[Plaintiff] lacks a constitutionally cognizable property interest in her
employment as an elected official.”).
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Because Moncier has no federally protected interest in appearing on the ballot as a
candidate for state-court judge, dismissal would have been equally appropriate under Federal
Rule of Civil Procedure 12(b)(6). Newman, 986 F.2d at 163. We note that the defendants twice
requested dismissal on this ground below.
Moncier cites Anderson v. Celebrezze and Burdick v. Takushi, but those cases offer no
refuge. Anderson and Burdick established “the right of individuals to associate for the
advancement of political beliefs, and the right of qualified voters ... to cast their votes
effectively.” See Miyazawa v. City of Cincinnati, 45 F.3d 126, 127 (6th Cir. 1995) (quoting
Anderson, 460 U.S. at 787)). Together, they created a balancing test, commonly referred to as
“the Anderson-Burdick standard,” for courts to apply when reviewing constitutional challenges
to state election laws. See Obamafor Am. v. Husted, 697 F.3d 423, 428—30 (6th Cir. 2012).
But both Anderson and Burdick presupposed that state law required an election for a
particular office in the first place. Anderson, 460 U.S. at 782 (reviewing Ohio’s process for
presidential candidates to qualifr for the general-election ballot); Burdick, 504 U.S. at 430
(reviewing Hawaii’s write-in balloting system for electing members of the state legislature).
Neither case mandated that states organize their governments in a particular manner or provide
for the election of state-court judges. Nor did either case stipulate when states may deem a
particular office vacant or specify how states must fill those vacancies. Accordingly, Anderson
and Burdick bear little weight on Moncier’ s challenge to the Tennessee Plan, which provides that
Judge Tipton’s seat on the court of criminal appeals will remain occupied by gubernatorial
appointment until 2016. Ultimately, Moncier’s reliance on Anderson and Burdick falls short
because he has no recognized right under the United States Constitution to run for an office that,
under state law, already has been filled.
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Moncier also asserts that the district court erred in dismissing his complaint because he
pleaded an additional twenty causes of action, including several causes of action under the
Tennessee Constitution and state statutory quo warranto procedures, all of which provided him
with the requisite standing or claim for relief. Moncier pleaded these additional causes of action,
however, in his proposed amended complaint, which the district court declined to allow him to
file. Moncier, 2014 WL 806418, at *8. Moncier did not notice an appeal of that denial, nor has
he alleged in his briefing with this court that the district court abused its discretion by denying
his various motions to amend his pleadings. Consequently, the issue of whether Moncier has
standing or a plausible claim for relief under the additional causes of action he asserted is not
properly before this court. See United States v. Johnson, 440 F.3d 832, 845—46 (6th Cir. 2006)
(“An appellant abandons all issues not raised and argued in its initial brief on appeal.” (brackets
and internal quotation marks omitted)). Because Moncier asserted no cognizable legal right
under the United States Constitution, his state claims are best left to the state courts.
III. CONCLUSION
We affirm the dismissal of Moncier’s Section 1983 action and the denial of his request
for preliminary injunctive relief. We decline to consider Moncier’s remaining filings with this
court, including an application for a temporary injunction on appeal and two motions to take
judicial notice of news accounts and newly discovered events in Tennessee, because our
dismissal renders them moot.
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