Majors v. Abell

• Decision Date: 23 January 2003
• Docket Number: No. 02-2204.,02-2204.
• Citation: 317 F.3d 719
• Parties: Brian MAJORS, et al., Plaintiffs-Appellants, v. Marsha ABELL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 719

317 F.3d 719

Brian MAJORS, et al., Plaintiffs-Appellants, v. Marsha ABELL, et al., Defendants-Appellees.

No. 02-2204.

United States Court of Appeals, Seventh Circuit.

ARGUED November 1, 2002.

DECIDED January 23, 2003.

Robbin Stewart (argued), Indianapolis, IN, for Plaintiff-Appellant.

Jay A. Ziemer (argued), Bowers Harrison, Evansville, IN, for Defendant-Appellee, Mark Foster and Marsha Abell.

Frances Barrow (argued), Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee, Butch Morgan, Dudley Cruea and S. Anthony Long.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge

An Indiana statute, challenged in this suit as an abridgment of free speech, requires that political advertising that "expressly advocat[es] the election or defeat of a clearly identified candidate" include "adequate notice of the identity of persons who paid for ... the communication," Ind. Code §§ 3-9-3-2.5(b)(1), (d), and makes violation a misdemeanor. The district court dismissed the suit for lack of federal subject-matter jurisdiction on the ground that the noncandidate plaintiffs lacked standing and that as to the candidate plaintiffs the suit was moot.

The noncandidate plaintiffs are individuals who would like to take out ads expressly advocating the election or defeat of particular candidates but are afraid to do so lest they be prosecuted. The district judge held that they had no standing to challenge the statute because they had not been threatened with prosecution (unlike Majors, one of the candidate plaintiffs) and "apparently" were not even subject to the statute, which the defendants had argued is limited to candidates, campaign committees, and the committee's agents, despite the statute's use of the broad term "persons."

The judge's ruling on standing was incorrect. A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him, Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 633-34 (7th Cir.1990); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); the threat is latent in the existence of the statute. Not if it clearly fails to cover his conduct, of course. But if it arguably covers it, and so may deter constitutionally protected expression because most people are frightened of violating criminal statutes especially when the gains are slight, as they would be for people seeking only to make a political point and not themselves political operatives, there is standing. See Virginia v. American Booksellers Ass'n, Inc., supra, 484 U.S. at 392-93, 108 S.Ct. 636; Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.1995).

On its face, the Indiana statute applies to all persons who pay for political advertising that expressly advocates the election or defeat of a particular candidate. The defendants (various state and local election officials) argue to us as they did to the district judge that a proper interpretation of "persons" limits the term to candidates, their committees, and the committees' agents. But no Indiana court has so interpreted the statute — nor did the district judge, who said only that "apparently" it was so limited. The website of the Indiana Election Commission, http://www.in.gov/sos/pdfs/Disclaim.pdf (May 2002), does not contain the limiting interpretation, but on the contrary says that the statute applies to "individuals, organizations, or committees who purchase advertisement time or space or circulate or publish material in support of or in opposition to a candidate, a political party, or a public question" and indeed to "all individuals and political organizations" who do any of these things (emphasis added).

The district judge did not doubt that the candidate plaintiffs, at least, had standing. The principal one, Majors, had violated the statute and been threatened with prosecution, though not actually prosecuted. Majors' standing might be questioned on the ground that a candidate has no interest in anonymity that the statute might protect; for there are no anonymous candidates. But a candidate can be harmed if his supporters are deterred by loss of their anonymity from supporting him by paid advertisements. Although it is their interest in anonymity that is impaired (the candidate has none, as we have said), a plaintiff who is harmed by the infringement of another person's right of free speech has standing to challenge that infringement. E.g., Virginia v. American Booksellers Ass'n, Inc., supra, 484 U.S at 392-93, 108 S.Ct. 636; Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 954-58, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Shimer v. Washington, 100 F.3d 506, 508-09 (7th Cir.1996). As these cases explain, the harm establishes Article III standing; and the easy deterrability (already noted) of much political speech is a ground for relaxing the doctrine of "prudential" standing, which ordinarily precludes a suit by one person to redress an infringement of the rights of another even if the infringement injures the first person as well.

But the judge thought that both Majors' case and that of his fellow candidate plaintiffs (whom we need not discuss separately) had become moot because of his lackadaisical pursuit both of the litigation and of his political career. Majors was a candidate for county assessor on the Libertarian Party ticket in 1998 when, on October 28, a week before the election, he and the other plaintiffs filed this suit and asked for a preliminary injunction. The election came and went without the injunction being granted. Majors was defeated, and the case went into hibernation. Not until February of 2000 did the plaintiffs make any further motion in the case. Nor did Majors run for public office in 2000.

Majors' inaction, the judge ruled, took the case outside the rule that when a case is capable of repetition but avoids review because it cannot be decided in time to avert mootness, its mootness does not deprive the court of jurisdiction. Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam); In re Associated Press, 162 F.3d 503, 511-12 (7th Cir.1998). The standard example is abortion. A suit by a pregnant woman challenging a state law limiting the right to an abortion is unlikely to be decided before the pregnancy ends one way or another, and so the termination of the pregnancy is held not to terminate jurisdiction. Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Challenges to election rules are treated the same way. Norman v. Reed, 502 U.S. 279, 287-88, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Meyer v. Grant, 486 U.S. 414, 417 n. 2, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988); Stewart v. Taylor, 104 F.3d 965, 969-70 (7th Cir.1997). For all we know, it wasn't until shortly before the November 1998 election that Majors was threatened with prosecution, and by then it was too late for him and the other plaintiffs to have any hope of invalidating the law before the election took place and rendered the suit moot by conventional standards.

The district judge thus was right not to dismiss the case the day after the election for lack of jurisdiction. But he was wrong to dismiss it later merely because Majors hadn't pressed the litigation harder or run in the next election. A candidate plaintiff no more has a duty to run in every election in order to keep his suit alive than an abortion plaintiff has a duty to become pregnant again at the earliest possible opportunity in order to keep her suit alive. Politicians who are defeated in an election will often wait years before running again; obviously this doesn't show they're not serious about their political career. And once Majors decided that he would not run for county assessor or some other office in 2000 (we're not even told whether the assessor's term is two years or four years), there was no reason for him to try to accelerate the lawsuit so that it could be decided before the 2000 election.

Furthermore, while canonical statements of the exception to mootness for cases capable of repetition but evading review require that the dispute giving rise to the case be capable of repetition by the same plaintiff, e.g., Weinstein v. Bradford, supra, 423 U.S. at 149, 96 S.Ct. 347; Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curium); LaRouche v. Fowler, 152 F.3d 974, 978 (D.C.Cir.1998), the courts, perhaps to avoid complicating lawsuits with incessant interruptions to assure the continued existence of a live controversy, do not interpret the requirement literally, at least in abortion and election cases, Honig v. Doe, 484 U.S. 305, 335-36, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (dissenting opinion); see Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); cf. Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir.2000); but cf. Van Wie v. Pataki, 267 F.3d 109, 114-15 (2d Cir.2001) — and possibly more generally, Honig v. Doe, supra, 484 U.S. at 318-20 and n. 6, 108 S.Ct. 592 (majority opinion), though we needn't worry about that. If a suit attacking an abortion statute has dragged on for several years after the plaintiff's pregnancy terminated, the court does not conduct a hearing on whether she may have fertility problems or may have decided that she doesn't want to become pregnant again. And similarly in an election case the court will not keep interrogating the plaintiff to assess the likely trajectory of his political career.

So the suit should not have been dismissed on jurisdictional grounds, and we turn to the merits. Although the parties prudently have briefed the merits, we think it would be premature for us to decide them. For they may depend on the meaning...