Amber Krabach v. County of King

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMBER KRABACH, No. 22-35843
Plaintiff-Appellant, D.C. No. 2:22-cv-01252-BJR
v.
MEMORANDUM*
COUNTY OF KING, a local governmental
entity; JULIE WISE, in her individual
capacity, and in her official capacity as
Director of King County Elections; STEVE
HOBBS, in his official capacity as Secretary
of State of the State of Washington; JAY
INSLEE, in his official capacity as Governor
of the State of Washington,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted July 12, 2023
Seattle, Washington
Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.
This case comes to us as an interlocutory appeal of the district court’s denial
of Plaintiff Amber Krabach’s motion for preliminary injunction. Krabach sued
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
King County, Director of King County Elections Julie Wise, Washington Secretary
of State Steve Hobbs, and Washington Governor Jay Inslee (collectively
Appellees) alleging that Washington’s electioneering laws, Washington Revised
Code (“RCW”) section 29A.84.510(1), RCW section 29A.84.520, and Washington
Administrative Code (“WAC”) section 434-250-100(6), violate her federal
constitutional rights under the First and Fourteenth Amendments, and her
Washington state constitutional rights, by censoring her protected speech and
chilling future speech. On September 16, 2022, Krabach sought a preliminary
injunction to stop the enforcement of Washington’s electioneering laws in the
November 2022 general election. On October 19, 2022, the district court denied
her motion for a preliminary injunction. Krabach appealed on October 25, 2022.
This appeal is moot because the 2022 general election has passed. We dismiss this
appeal for lack of jurisdiction.
1. Under Article III of the United States Constitution, an issue is moot when
there is no longer a “live controversy.” All. for the Wild Rockies v. Savage, 897
F.3d 1025, 1031 (9th Cir. 2018). “An interlocutory appeal of the denial of a
preliminary injunction is moot when a court can no longer grant any effective relief
sought in the injunction request.” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir.
2016). An interlocutory appeal of the denial of a preliminary injunction may
become moot even though the underlying case is not moot. Id. The occurrence of
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an election moots relief sought for that election cycle. Ariz. Green Party v.
Reagan, 838 F.3d 983, 987 (9th Cir. 2016).
In her motion, Krabach contended that the preliminary injunction was
necessary “[b]ecause the window for Plaintiff to offer this highly relevant,
election-related, political speech to the public in Washington state will conclude
with the [2022] general election.” In describing the harm that she would suffer
without a preliminary injunction, Krabach explained that she “desires to continue
speaking upon ballot drop box surveillance and similar matters concerning the
2022 general election in Washington state, but has presently been chilled in her
speech by the enforcement efforts of County officials.” Thus, the relief sought was
only for the 2022 general election, which has now passed.
Krabach contends that her appeal is not moot because the preliminary
injunction she sought was not time limited, so it could apply to future elections.
However, the motion in the district court focused exclusively on the 2022 general
election and included no discussion of any future election.
2. Krabach also contends that, if the appeal of the denial of the preliminary
injunction motion is moot, then the “capable of repetition, yet evading review”
exception applies. We disagree.
This “exception is reserved for extraordinary cases in which (1) the duration
of the challenged action is too short to be fully litigated before it ceases, and (2)
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there is a reasonable expectation that the plaintiffs will be subjected to the same
action again.” Akina, 835 F.3d at 1011 (internal quotation marks omitted).
“Election cases often fall within this exception, because the inherently brief
duration of an election is almost invariably too short to enable full litigation on the
merits.” Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). However, in
interlocutory appeals where the district court retains jurisdiction over the
underlying case, this exception does not apply because “dismissing the preliminary
injunction appeal will not, by itself, insulate the defendants’ practices from judicial
scrutiny.” Akina, 835 F.3d at 1011.
Here, Krabach’s case is still pending before the district court, and Krabach
may seek another preliminary injunction for future elections. Therefore, the
“capable of repetition, yet evading review” exception to mootness does not apply
here.
DISMISSED.
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