DocketNumber: Case No. 5:16–cv–07069–EJD
Citation Numbers: 312 F. Supp. 3d 814
Judges: Davila
Filed Date: 4/20/2018
Status: Precedential
Modified Date: 7/25/2022
Plaintiff Vinzenz J. Koller ("Plaintiff"), a former Presidential Elector, alleges he was forced, coerced and intimidated by California officials to register his 2016 electoral vote for the Democratic candidates for those offices, Hillary Rodham Clinton and Timothy Kaine. He brought this action against Attorney General Xavier Becerra and Secretary of State Alex Padilla in their official capacities (the "Official Capacity Defendants"), and against Secretary Padilla and former Attorney General Kamala Harris in their individual capacities (the "Individual Capacity Defendants") for a judgment declaring California Elections Code §§ 6906 and 18002 unconstitutional and for violations of
Presently before the court are three Motions to Dismiss Plaintiff's First Amended Complaint ("FAC"): one filed by the Official Capacity Defendants, one filed by the Individual Capacity Defendants, and one filed by Intervenor California Republican Party. Dkt. Nos. 87, 88, 94. Though the court previously found there exists "equally plausible opposing views" on Elections Code § 6906 and 18002, and a "serious question" on the merits of the constitutional issue raised by Plaintiff ( Koller v. Brown,
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Presidential Electors, The Constitution, and The Federalist Papers
The FAC begins with reference to the Constitution, and in particular the process it provides for the election of the President. Plaintiff alleges that since the Constitution was signed in 1787, it has never "called for election to the office of President by popular vote of the citizens of this country." FAC, at ¶ 13. Instead, the Constitution has always "called for election to the office of President by Presidential Electors selected by the respective states." Id. at ¶ 14. These electors meet every four years, vote by ballot for two persons, make a list of all the persons voted for, and the number of votes cast for each person. Id. at ¶ 16.
*819Plaintiff also alleges what the Constitution does not permit. In Plaintiff's opinion, the Constitution never "reduced the weighty responsibility" of choosing the President "to a media circus on the second Tuesday of November every four years." Id. at ¶ 18. Additionally, Plaintiff alleges the Constitution has never allowed "for foreign influences, threats, or intimidation to restrain or dictate the votes" of electors. Id. at ¶ 19.
Aside from the Constitution, Plaintiff also references Federalist No. 68 and its discussion of how the President should be selected and the role of Presidential Electors. Id. at ¶ 46. Federalist No. 68 states, in pertinent part:
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
B. California Statutes Regulating Presidential Electors
Two California statutes applicable to electors are placed at issue by the FAC. The first is Elections Code § 6906, which provides:
The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state.
The second is Elections Code § 18002, which states:
Every person charged with the performance of any duty under any law of this state relating to elections, who willfully neglects or refuses to perform it, or who, in his or her official capacity, knowingly and fraudulently acts in contravention or violation of any of those laws, is, unless a different punishment is prescribed by this code, punishable by fine not exceeding one thousand dollars ($1,000) or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment.
C. The 2016 Presidential Election
The Democratic candidates for President and Vice President in 2016 were Hillary Rodham Clinton and Timothy Kaine, respectively. Id. at ¶ 28. The Republican candidates for those offices were Donald J. Trump and Michael Pence. Id. at ¶ 29. Election day was November 8, 2016. Id. at ¶ 35. Plaintiff describes the outcome of the election in the FAC as follows:
Though the Democratic nominees for President and Vice-President won the nationwide popular vote by over 3 million votes, and won the California popular vote by a large margin, the various state-by-state popular votes indicated *820that Donald Trump and Michael Pence (the Republican presidential and vice presidential nominees) would win the majority of electoral college votes on December 19, 2016 if the electors in each state vote consistent with the popular vote in their respective states.
Id. at ¶ 35.
Plaintiff alleges, however, that subsequent to election day but before the vote of the electors on December 19, 2016, "U.S. intelligence agencies confirmed that they possessed evidence showing foreign influence in the presidential election with the purpose of favoring Donald J. Trump and undermining Hillary R. Clinton in that election." Id. at ¶ 32. Plaintiff considered the possibility of foreign interference to be of "grave importance" and sought additional information from the government. Id. at ¶ 33.
Plaintiff further alleges that by early January, 2017, "at least three U.S. intelligence agencies reported a high confidence that Russian President Vladimir Putin ordered actions aimed at undermining public faith in the United States' democratic process and denigrating one candidate (Clinton) and giving preference to the other (Trump)." Id. at ¶ 37. And by mid-February, 2017, "additional reports surfaced indicating that Mr. Trump's campaign may have had numerous contacts with Russian intelligence officers during the campaign, raising further questions about the connection between Mr. Trump and the Russian government." Id. at ¶ 39.
Despite these post-election revelations, Donald J. Trump was in fact confirmed as President upon the vote of electors and was inaugurated on January 20, 2017. Id. at ¶¶ 36, 38.
D. Plaintiff's Service as a California Presidential Elector
Plaintiff is a resident of Monterey County who served as an elector in prior elections and continues to meet all qualifications to be selected as a Presidential Elector in subsequent elections. Id. at ¶¶ 1, 26. He was chosen as an elector of the Democratic Party for the 2016 Presidential Election. Id. at ¶ 25.
As to his 2016 service, Plaintiff alleges he and other similar-situated electors should not have been "constitutionally compelled" by Elections Code §§ 6906 and 18002 to vote for Clinton and Kaine, consistent with the popular vote of the state, when "the best interests of the country warranted a different course of action." Id. at ¶ 50. To that end, Plaintiff believes he "should have been allowed to exercise his judgment and free will to vote for whomever he believes to be the most qualified and fit for the offices of President and Vice President within the circumstances and with the knowledge known on December 19, 2016, whether those candidates are Democrats, Republicans, or from a third party." Id.
E. The Instant Lawsuit
Plaintiff filed the complaint initiating this action on December 9, 2016. Dkt. No. 1. Prior to the vote of electors on December 19, 2016, Plaintiff moved for a temporary restraining order precluding enforcement of Elections Code §§ 6906 and 18002 against Plaintiff. Dkt. Nos. 1, 4. The court ordered expedited briefing on that request, held a hearing on December 16, 2016, and denied Plaintiff's application. Dkt. Nos. 10, 34, 37. Plaintiff appealed from that decision, but voluntary dismissed the appeal four days later. Dkt. Nos. 35, 50.
The court granted the California Republican Party's motion to intervene on January 3, 2017. Dkt. No. 57. Plaintiff then filed the FAC on February 17, 2017. Dkt. No. 83. He seeks the following relief: (1) a declaratory judgment finding that Elections Code §§ 6906 and 18002 are unconstitutional, *821or in violation of
These motions followed the FAC.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss under Rule 12(b)(1) challenges subject matter jurisdiction, and may be either facial or factual. Wolfe v. Strankman,
"The party asserting jurisdiction bears the burden of establishing subject matter jurisdiction." In re Dynamic Random Access Memory (DRAM) Antitrust Litig.,
B. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly,
When deciding whether to grant a motion to dismiss, the court generally "may not consider any material beyond the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co.,
In addition, the court must generally accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal,
*822C. Leave to Amend
Leave to amend a pleading is generally granted with liberality. Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires."); Morongo Band of Mission Indians v. Rose,
III. DISCUSSION
In their motions, the Official Capacity Defendants and the California Republican Party bring facial Rule 12(b)(1) challenges to the FAC, arguing the declaratory and injunctive relief claims must be dismissed based on mootness and lack of standing. For their part, the Individual Capacity Defendants move under Rule 12(b)(6) to dismiss the claim for monetary relief based on prosecutorial and qualified immunity.
Each of these doctrines is discussed in turn.
A. Mootness
i. General Principles
"Pursuant to Article III of the U.S. Constitution, federal courts can only adjudicate live cases or controversies." Bishop Paiute Tribe v. Inyo Cty.,
The Ninth Circuit has provided the following definition of mootness:
If there is no longer a possibility that an appellant [or a party] can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction. Mootness has been described as standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).
Stated differently, a "case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M.,
ii. Application
a. No Effective Relief for the 2016 Presidential Election
Plaintiff recognizes that the 2016 Presidential Election was completed before he amended his pleading. FAC, at ¶ 10. He also concedes in opposition that no form of injunctive relief related to the 2016 Presidential Election can issue.
Despite this recognition, Plaintiff stops short of admitting his declaratory relief claim is moot as to the 2016 election. Instead, the election remains a central part of his claims. For example, Plaintiff alleges he was "forced, coerced, and intimidated by Defendants into his decision of how to vote for the offices of President and Vice-President." Id. at ¶ 51. He also alleges his stated intent to vote for candidates other than Clinton and Kaine after the 2016 election created a risk of criminal prosecution, which "chilled" the exercise of his constitutional rights constituting harm. Id.
*823at ¶¶ 57, 60. And in the FAC's prefatory statement, Plaintiff states he "seeks retroactive relief related to the completed unconstitutional actions against him ...." Id. at 2:7-8.
Because these allegations endure, the Official Capacity Defendants argue Plaintiff's declaratory relief claim is moot as to the 2016 election. They are correct.
One paragraph of the FAC is key to this issue. Plaintiff alleges:
This court can provide declaratory relief because an actual and substantial controversy now exists between Plaintiff[ ] and the Defendants with respect to Plaintiff's rights and Defendants' rights and duties under Elections Code §§ 6906 and 18002, and such controversy is capable of repetition, yet evading review.
Id. at ¶ 68.
Putting aside for the moment the portion of this paragraph that follows the statutory references, it is beyond debate the preceding language does not describe a "live" controversy with respect to the 2016 election. Since the election has "come and gone," there is simply no extant controversy between Plaintiff and any defendant. Arizona Green Party v. Reagan,
Thus, absent an exception, the court lacks subject matter jurisdiction over Plaintiff's declaratory relief claim to the extent he seeks relief related to the 2016 election because any such claim is moot.
b. Capable of Repetition, Yet Evading Review
Plaintiff argues the court can nonetheless decide the declaratory relief claim inasmuch as it implicates his service as a 2016 elector because it falls within an exception to mootness for issues that are capable of repetition, yet evading review. FAC, at ¶ 10. Specifically, Plaintiff alleges that "[w]ith the length of a presidential elector's actual service lasting for a single day, and the designation of someone as being a presidential electo[r] never being made more than six weeks prior to that one day, it is impossible for any court case to be completed in time."
Defendants disagree the declaratory relief claim falls within the exception to mootness. Defendants are correct.
The "capable of repetition, yet evading review" exception "applies where '(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.' " FEC v. Wisconsin Right To Life, Inc.,
*824In elections cases like this one, however, the second element does not require "repetition of every 'legally relevant' characteristic ... down to the last detail," because such a requirement "would effectively overrule" the exception by rendering it "unavailable for virtually all as-applied challenges."
Thus, as Plaintiff notes, the Supreme Court has permitted some degree of latitude to the complaining party when examining the "reasonable expectation" element. The Court's opinion in Wisconsin Right to Life demonstrates that strict factual overlap between past and future events is not required before a controversy is found "capable of repetition, yet evading review."
This is because under Wisconsin Right to Life, Storer, and the other cases cited by Plaintiff, the complaining party must still show a reasonable likelihood of personal re-exposure to the challenged illegality. In Wisconsin Right to Life, the plaintiff below "credibly claimed" that it planned on running ads in future elections substantially similar to the ones blocked by statute during a completed election cycle. Similarly, in Storer, Mandel v. Bradley,
In contrast, the FAC's allegations do not establish a reasonable likelihood that Plaintiff will face the same or similar dilemma in future elections. In order for Plaintiff to be subjected to an "illegality" or "threat of prosecution" comparable to the one he experienced in 2016, at least four critical events need to occur. First, Plaintiff would need to be re-elected as an elector for the California Democratic Party. Second, the outcome of the 2020 Presidential Election would have to position the current President, or a Republican candidate like the current President, as the expected winner of the Electoral College. Third, Plaintiff would have to object to the expected winner of the Electoral College in the same way he objected to Trump. Fourth, the Democratic candidate would have to win the popular vote in California.
These contingencies, none of which are within Plaintiff's control, render this case distinguishable from elections cases like *825Wisconsin Right to Life and Storer. Unlike the plaintiffs in those actions, Plaintiff is not exposed to potential consequences under Elections Code §§ 6906 and 18002 simply by declaring candidacy for office or running a political ad. Instead, a cascade of unpredictable developments-each with their own internal sets of possibilities-must align in a particular order before Plaintiff can again be compelled to vote as required by § 6906 and be exposed to potential criminal penalties under § 18002. But as noted, it is unknown whether Plaintiff will serve as an elector in 2020, unknown who will be the Republican candidate for President, unknown which candidate will be expected to win the Electoral College, and unknown which party's candidate will win the California popular vote. Therefore, the allegation that Plaintiff will be eligible to serve as a Presidential Elector in 2020 is not enough. See Sample v. Johnson,
Accordingly, Plaintiff has not satisfied his burden to place the declaratory relief claim within the exception to mootness for conduct "capable of repetition, yet evading review." See
B. Standing
i. General Principles
The constitutional standing doctrine "functions to ensure, among other things, that the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
Generally, the inquiry critical to determining the existence of standing under Article III of the Constitution is " 'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.' " Allen v. Wright,
The party asserting federal jurisdiction must carry the burden of establishing standing under Article III. DaimlerChrysler Corp. v. Cuno,
ii. Application
Defendants argue Plaintiff lacks standing to assert claims for declaratory or injunctive relief for future elections. The basis for this challenge mirrors the mootness argument, since Defendants contend that Plaintiff cannot show an "injury in fact" due to "multiple layers of speculation" about future events. Stated in terms of standing, this argument questions whether Plaintiff has shown a "certainly *826impending" injury. Clapper v. Amnesty Int'l USA,
The Supreme Court has held that a claim is not "certainly impending" for standing purposes if a "speculative chain of possibilities" must occur to establish an injury.
Applying this rubric to the FAC, Plaintiff has not alleged a "certainly impending" injury related to future elections. As explained above in the context of mootness, a "speculative chain of possibilities" needs to occur before Plaintiff can be exposed to potential future injury from Elections Code §§ 6906 and 18002, even if Plaintiff still qualifies to serve as a Presidential Elector, and even assuming Plaintiff has alleged a personal rather than an official injury. Furthermore, independent actors must make a litany of decisions in a certain way before Plaintiff's standing emerges from being conjectural to becoming real. These actors include the thousands of voters who make up the California electorate, who must ultimately decide to cast a majority of ballots for the future Democratic candidate for President. The FAC's allegations, therefore, only allege the possibility of a future injury that is insufficient to establish an injury in fact.
The court finds that Plaintiff lacks standing to pursue declaratory and injunctive relief for future elections. The court also finds that Plaintiff cannot add plausible factual allegations to make up for the list contingencies which prevent his claims from being "certainly impending." Accordingly, the claims for declaratory and injunctive relief related to future elections (the first and third causes of action) will be dismissed without leave to amend.
C. Prosecutorial Immunity
i. General Principles
Prosecutorial actions that are "intimately associated with the judicial phase of the criminal process" are absolutely immunized from liability in § 1983 lawsuits. Van de Kamp v. Goldstein,
However, prosecutors are not entitled to absolute immunity for administrative or investigative functions.
To determine whether an action was judicial, administrative, or investigative, court looks to the nature of the function performed, not the role of who performed it. Roe,
ii. Application
In the FAC, Plaintiff asserts the Individual Capacity Defendants are liable for compensatory damages under § 1983 because they deprived him of constitutional rights as a Presidential Elector. Plaintiff alleges they did so by "failing and refusing to disclaim any intent to criminally prosecute" him under Elections Code §§ 6906 and 18002. FAC, at ¶¶ 72-75.
As Defendants point out, Plaintiff essentially seeks to impose liability on the Individual Capacity Defendants for declining to guarantee immunity from prosecution if Plaintiff voted for candidates other than Clinton and Kaine. Applying the functionality test, the court finds that a decision not to offer immunity from prosecution, or a refusal to disclaim an intent to prosecute, is intimately tied to the judicial process and to the prosecutor's role as an advocate; that is, a decision not to offer immunity under these circumstances is intertwined with the decision whether or not to charge an individual with a crime. That charging decision "may well be the most critical determination in the entire prosecutorial process." Roe,
In opposition, Plaintiff recognizes that administrative and investigative functions fall outside the bounds of absolute immunity. But he fails to convincingly explain why the FAC's allegations describe those types of functions rather than describing conduct associated with the judicial phase of the criminal process. As such, the court is unable to characterize Plaintiff's allegations as embodying administrative or investigative functions.
Based on this discussion, the Individual Capacity Defendants are absolutely immune for refusing to disclaim an intent to prosecute Plaintiff under Elections Code §§ 6906 and 18002. The damages claim for violation of § 1983 (the second cause of action) will be dismissed without leave to amend because no additional facts could be pled to place this claim outside of the immunity bar.
D. Qualified Immunity
i. General Principles
"The defense of qualified immunity protects 'government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Romero v. Kitsap Cty.,
"Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd,
ii. Application
The Individual Capacity Defendants argue that even if prosecutorial immunity does not apply, they are nonetheless entitled to qualified immunity for the alleged decision to disclaim an intent to prosecute Plaintiff under Elections Code §§ 6906 and 18002. The court agrees.
For a constitutional right to be clearly established under the second prong of the qualified immunity analysis, "its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Maxwell v. Cty. of San Diego,
Here, Plaintiff has not satisfied his burden to show the Individual Capacity Defendants violated a clearly-established right. See Romero,
Furthermore, cases cited by Plaintiff involving specific forms of intimidation or coercion, such as United States v. Nguyen,
Plaintiff's reliance on
Finally, Elections Code § 18540 does not assist Plaintiff. To the extent he cites it as law prohibiting voter intimidation and coercion, it is subject to the same analysis as § 594. For anything more than that, § 18540 cannot sustain a § 1983 claim as a matter of law. See Moreland v. Las Vegas Metro. Police Dep't,
In sum, Plaintiff has not convincingly shown why it was clearly-established in 2016 that Elections Code §§ 6906 and 18002 were unconstitutional and could not be enforced. The Individual Capacity Defendants are therefore entitled to qualified immunity for their alleged failure to disclaim the intent to prosecute Plaintiff for a violation of those statutes. The damages claim for violation of § 1983 (the second cause of action) is subject to dismissal on this ground, without leave to amend, because no additional facts can alter the outcome of the legal analysis undertaken for the second prong of qualified immunity.
IV. ORDER
Based on the foregoing, the Motions to Dismiss (Dkt. Nos. 87, 88, 94) are GRANTED, as follows.
1. The first and third causes of action are DISMISSED WITHOUT PREJUDICE but WITHOUT LEAVE TO AMEND. See Fleck & Assocs. v. City of Phoenix,
2. The second cause of action is also DISMISSED WITHOUT LEAVE TO AMEND, but WITH PREJUDICE. See Hampton,
All other matters and TERMINATED and VACATED.
Judgment will be entered in favor of Defendants, and the Clerk shall close this file.
IT IS SO ORDERED.
The procedure by which electors choose the President and Vice President is more fully described in Article II, Section 1 of the Constitution, as amended by the Twelfth Amendment.
Under
Like § 594, Elections Code § 18540 makes it a crime to coerce any person's vote or to intimidate them from voting.