The Association of American Physicians and Surgeons v. Brewer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ASSOCIATION OF AMERICAN 
PHYSICIANS & SURGEONS, a
nonprofit corporation; MATT
SALMON, a citizen of the State of
Arizona; DEAN MARTIN, a citizen
of the State of Arizona,
Plaintiffs-Appellants,
STEVEN S. POE; CLEAN ELECTIONS
INSTITUTE, INC.,
Intervenors-Appellees,
and
LORI DANIELS, a citizen of the
State of Arizona, No. 05-15630
Plaintiff,
v.  D.C. No.
CV-04-00200-EHC
JAN BREWER, in her official OPINION
capacity as Secretary of State of
the State of Arizona; DAVID A.
PETERSSEN, in his official capacity
as Treasurer of the State of
Arizona; TERRY GODDARD, in his
official capacity as Attorney
General of the State of Arizona;
LESLIE LEMON, a member of the
Arizona Citizens Clean Elections
Commission aka Gene Lemon;
DAVID G. MCKAY, a member of
the Arizona Citizens Clean
Elections Commission;

5437
5438 THE ASSOC. OF AMER. PHYSICIANS v. BREWER
KATHLEEN S. DEETRICK, a member 
of the Arizona Citizens Clean
Elections Commission; ERMILA
JOLLEY, a member of the Arizona
Citizens Clean Elections 
Commission; MARCIA BUSCHING, a
Member of the Arizona Citizens
Clean Elections Commission,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
February 12, 2007—San Francisco, California
Filed May 10, 2007
Before: John T. Noonan, Ronald M. Gould, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Noonan
5440 THE ASSOC. OF AMER. PHYSICIANS v. BREWER
COUNSEL
Timothy D. Keller, Tempe, Arizona; William R. Maurer,
Seattle, Washington, for the plaintiffs-appellants.
Craig W. Soland, Phoenix, Arizona, for the defendants-
appellees.
Deborah Goldberg, New York, New York, for the
intervenors-appellees.
OPINION
NOONAN, Circuit Judge:
Jan Brewer, the Secretary of State of the State of Arizona
and other officials (the State) were sued by the Association of
THE ASSOC. OF AMER. PHYSICIANS v. BREWER 5441
American Physicians and Surgeons (the Association) and
three citizens of Arizona (the Candidates) who challenged the
Arizona Citizens Clean Elections Act, A.R.S. § 16-940 et
seq., adopted by ballot initiative in 1998 (the Clean Elections
Act). The district court dismissed the complaint for failure to
state a cause of action. We dismiss as moot the appeal of the
Association and of the Candidates.
MOOTNESS
The Association. The complaint was filed January 29, 2004.
The Association alleged that “it has made independent cam-
paign expenditures in the past, has established a political
action committee for that purpose, and desires to make inde-
pendent campaign expenditures in the upcoming 2004 state-
wide elections in Arizona.” The Association did not allege
that its political action committee (its PAC) had been funded;
that the PAC had participated in any Arizona election; or that
the PAC would participate in any Arizona election. The Asso-
ciation did allege that it “would have made independent
expenditures” in past Arizona elections and “intends to make
independent expenditures in Arizona in the future,” but
“fears” that its exercise of its First and Fourteenth Amend-
ments rights “will be deprived” by the Clean Elections Act.
On December 19, 2006, after judgment had been entered
against it in the district court, the Association terminated its
PAC. The State responded by suggesting that this action
mooted the Association’s appeal. Before the Association
accepted contributions or made expenditures to influence an
Arizona election it had to register a PAC, A.R.S. § 16-912(A).
The State observed that without a PAC the Association could
not make expenditures in Arizona.
The Association responded that it had terminated its PAC
because of the burdens put on it by the Clean Elections Act.
The Association asserted that “if the Act was not in place and
an election occurred in which [the Association] wished to
5442 THE ASSOC. OF AMER. PHYSICIANS v. BREWER
support or oppose a candidate for office,” it “would reconsti-
tute its PAC and fully participate in the political process.”
The Association’s response is not good enough to keep its
claims alive. It refers us to Clark v. City of Lakewood, 259
F.3d 996, 1012 (9th Cir. 2001) (licensee’s license expired dur-
ing the pendency of its appeal; its declaration that it intended
to reopen if the licensing law was declared unconstitutional
was sufficient to make the controversy actual); and to S. Ore-
gon Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th
Cir. 2004) (organizer of fairs intended to stage another fair;
the case was still alive); and to Oregon Advocacy Ctr. v.
Mink, 322 F.3d 1101, 1116-17 (9th Cir. 2003) (the burden of
the party suggesting mootness is to show that the court could
provide no effective relief). We do not dispute the existence
of these precedents. They are inadequate to carry the day for
the Association.
[1] In Arizonans For Official English v. Arizona, 520 U.S.
43 (1997), the United States Supreme Court reminded this
court, with some emphasis, that federal courts lack jurisdic-
tion to “adjudicate challenges to state measures absent a
showing of actual impact on the challenger.” Id. at 48. The
rule is clear, absolute, and comprehensive. Our courts do not
exist to settle abstract questions, interesting and important as
they may be. In this case the Association has not unequivo-
cally declared that it will set up a new PAC and enter elec-
tions in Arizona if it should win this case. Its stated intentions
are hypothetical and contingent on the interest it finds in some
indefinite time in some conceivable election. The Association
is not engaged in a lawsuit where it alleges actual injury. The
Association has mooted out.
[2] The Candidates. Lori Daniels did not appeal; her case
is not before us. Matt Salmon was the Republican candidate
for governor of Arizona in the 2002 election. He alleges that
he suffered injury in that election by virtue of the Clean Elec-
tions Act. He adds that “the unconstitutional nature of the Act
THE ASSOC. OF AMER. PHYSICIANS v. BREWER 5443
creates a situation that is capable of repetition, yet evading
review.” He asks for a declaration that the act is unconstitu-
tional, nominal damages in the amount of one dollar; and
attorneys’ fees. The gravamen of his action is the asserted
unconstitutionality of the Act. He alleges no injury that he is
suffering or will suffer. The situation he was in as a candidate
for governor may, of course, recur. There is no allegation that
he will be a candidate. He is not a spokesman for future can-
didates for governor. His only allegation is that in 2002 he
suffered an injury unspecified in dollars or in actual harm. No
current controversy exists.
[3] The Eleventh Amendment bars his claim for a dollar
from the various state defendants, whom he has sued solely
in their official capacities. See Will v. Mich. Dept. of State
Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state offi-
cial in his or her official capacity is not a suit against the offi-
cial but rather is a suit against the official’s office. As such,
it is no different from a suit against the State itself.”) (internal
citations omitted). A fortiori, a request for attorneys’ fees
does not save his claim from mootness. See Cammermeyer v.
Perry, 97 F.3d 1235, 1238 (9th Cir. 1996). The law governing
the Association’s case governs his. His case is moot.
[4] Dean Martin alleges that he intends to run for re-
election to the Arizona State Senate in 2004, and “perhaps”
run for statewide office in 2006. He asks for relief identical
to that requested by Salmon. The 2004 and 2006 elections are
over. Martin conceivably might have a claim if he alleged that
he intended to run again and that the situation of which he
complains would repeat itself. See Foster v. Carson 347 F.3d
742, 746 (9th Cir. 2003). He does not so allege. Nor are we
informed as to what happened in 2006, an election as to which
he had expressed an equivocal position. In supplemental
briefing, Martin seeks to remedy these lacunae in the record.
It is too late. Neither the factual assertions in his supplemental
brief nor his declaration are part of the record. Martin’s con-
troversy with the State is no more alive than Salmon’s.
5444 THE ASSOC. OF AMER. PHYSICIANS v. BREWER
Mootness is a matter of jurisdiction. Dittman v. California,
191 F.3d 1020, 1025 (9th Cir. 1999). That the State did not
raise the question in regard to the Candidates is not relevant.
The State’s acquiescence in litigation of the appeal cannot
confer jurisdiction on us if no controversy exists.
For the reasons stated, the appeals are DISMISSED AS
MOOT.