Porter v. Jones

• Decision Date: 06 February 2003
• Docket Number: No. 01-55585.,No. 01-56480.,01-55585.,01-56480.
• Citation: 319 F.3d 483
• Parties: Alan PORTER; Patrick Kerr; Steven Lewis; Scott W. Tenley; William J. Davis; Democratic Law Students Association at UCLA, Plaintiffs-Appellants, v. Bill JONES, Secretary of State, Defendant-Appellee. Alan Porter; Patrick Kerr; Steven Lewis; Scott W. Tenley; William J. Davis; Democratic Law Students Association at UCLA, Plaintiffs-Appellants, v. Bill Jones, Secretary of State, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

319 F.3d 483

Alan PORTER; Patrick Kerr; Steven Lewis; Scott W. Tenley; William J. Davis; Democratic Law Students Association at UCLA, Plaintiffs-Appellants, v. Bill JONES, Secretary of State, Defendant-Appellee.

Alan Porter; Patrick Kerr; Steven Lewis; Scott W. Tenley; William J. Davis; Democratic Law Students Association at UCLA, Plaintiffs-Appellants, v. Bill Jones, Secretary of State, Defendant-Appellee.

No. 01-55585.

No. 01-56480.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2002.

Filed February 6, 2003.

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Peter J. Eliasberg and Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, California; Lisa Danetz, National Voting Rights Institute, Boston, Massachusetts, for the plaintiffs-appellants.

Leslie R. Lopez, Deputy Attorney General of the State of California, Sacramento, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Robert J. Kelleher, Senior District Judge, Presiding. D.C. No. CV-00-11700-RJK.

Before LAY,^* CANBY, Jr. and PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge.

In the weeks preceding the closely contested presidential elections of 2000, a number of Internet websites were created that facilitated discussions among voters regarding potential strategic ways of voting. Through these discussions, the participants could agree to informally "swap" their votes, generating additional votes for the Democratic candidate in crucial swing states while allowing the third party candidate to garner enough votes to become eligible for federal financing in future elections. Plaintiffs, the creator and users of one such website, brought suit alleging violations of the First Amendment after Defendant Bill Jones ("Jones"), then Secretary of State for California, sent a cease and desist letter to the operators of a similar website in which he threatened to prosecute them under California Elections Code sections 18521 and 18522 for brokering the exchange of votes. Plaintiffs appeal the district court's order staying their claims for declaratory and injunctive relief under the abstention doctrine established in Railroad Commission v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and dismissing their claims for damages under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to conform to heightened pleading rules.

We agree with the district court that Plaintiffs' First Amendment and other claims are justiciable and are not barred by the Eleventh Amendment, but we reverse the district court's ruling staying Plaintiffs' claims under Pullman. It is rarely appropriate for a federal court to abstain under Pullman in a First Amendment case, because there is a risk in First Amendment cases that the delay that results from abstention will itself chill the exercise of the rights that the plaintiffs seek to protect by suit. We conclude that the risk of this kind of First Amendment chill is present here, notwithstanding the fact that Plaintiffs' challenge to the threatened application of Elections Code sections 18521 and 18522 is an as-applied challenge. Because the factors required for Pullman abstention were not met in this case, the district court had no discretion to abstain.

We also hold that the district court erred in dismissing Plaintiffs' claims for damages for failure to meet the heightened pleading standard that we established in Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir.1991). In our recent decision in Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir.2002), we held that Branch v. Tunnell's heightened pleading standard did not survive the Supreme Court's decision in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). Accordingly, we reverse the dismissal of the damages claims and remand for consideration of the merits.

I. BACKGROUND

On October 23, 2000, in anticipation of the November 2000 national presidential election, Plaintiff Alan Porter ("Porter") created a website called "votexchange2000.com" ("Porter's website"). In addition to offering general information about the electoral college, election predictions, and voting, Porter's website provided "a forum to allow individuals around the country to contact one another and discuss their political beliefs and strategies for the upcoming election."

As described in the amended complaint, Porter's website contained:

a questionnaire Page designed to facilitate the exchange of [] information [about voting intentions] by creating a database of e-mail addresses of interested voters.... The program would inform voters about whether their states were considered `safe' or `swing.' The website then invited visitors who wished to contact compatible voters to enter their e-mail addresses.... A software program matched up citizens with complementary preferences and sent out e-mail addresses to each party. From there on, further discussion or action by any two voters matched by the votexchange2000 software was conducted directly between those parties on an entirely voluntary basis.

On October 30, 2000, Defendant Jones, the Secretary of State of California, sent a cease and desist letter to the founders of a website called "voteswap2000.com," threatening criminal prosecution under Elections Code sections 18521¹ and 18522² for allegedly brokering the exchange of votes. This letter also stated, "Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor." On that same day, Jones sent similar correspondence, with similar threats of prosecution, to Yahoo! Inc. and Register.com. These threats were reported in local and national newspapers.

The creators of voteswap2000.com posted a notice on their website regarding these threats and discontinued those activities deemed potentially illegal. Although Jones received complaints regarding other election-related websites, such as NaderTrader.com, virtualvotesforNader.com, and winwincampaign.org, Jones did not send cease and desist letters to the owners of these websites, because he determined that they did not broker the exchange of votes in violation of Elections Code sections 18521 and 18522.

Porter promptly learned of the cease and desist letter, and that voteswap2000.com "had shut itself down under threat of prosecution." Because Porter was "deeply afraid" of being prosecuted, he suspended the operation of his website, although he never received a cease and desist letter. On November 2, 2000, Porter, along with Patrick Kerr, Steven Lewis, Scott Tenley, William J. Davis, and the Democratic Law Students Association at the University of California, Los Angeles (collectively "Plaintiffs"), filed suit against Jones.³ Plaintiffs alleged in their complaint that Jones's actions denied them freedom of speech and association in violation of the First Amendment and 42 U.S.C. § 1983, and requested declaratory and injunctive relief. They applied for a temporary restraining order enjoining Jones from taking any "enforcement action against Plaintiffs for any expressive activities in connection with the November 7, 2000 presidential election, including expression conducted on web sites," but the district court denied Plaintiffs' application the day before the election.

Subsequently, Plaintiffs amended their complaint, alleging that Porter intended to operate a website similar to his first one in the 2004 presidential election, and suing Jones in his individual capacity for damages and in his official capacity for a permanent injunction restraining him "from prosecuting, threatening to prosecute, or taking any enforcement action against Plaintiffs, and others similarly situated, for any expressive activities described herein in connection with the November 7, 2000 presidential election as well as any future presidential election, including expression conducted on web sites." Plaintiffs also added claims under the California Constitution and, in addition, § 1983 claims alleging violations of the Fourteenth Amendment and the Commerce Clause.

Jones responded by filing a motion to dismiss, challenging Plaintiffs' claims on the basis of standing, mootness, and ripeness. In the alternative, Jones argued that the district court should stay the case under the Pullman abstention doctrine. As noted, the district court dismissed Plaintiffs' damages claims for failure to satisfy the heightened pleading standards that we established in Branch v. Tunnell, 937 F.2d at 1386. The district court stayed all other claims, concluding that Plaintiffs had standing and their claims were not moot, but abstaining under Pullman. Plaintiffs timely appealed the district court's abstention order and judgment dismissing their claims for damages.

II. JURISDICTION

The district court's decision to abstain under Pullman is immediately appealable under 28 U.S.C. §§ 1291 and 1292(a)(1). Confederated Salish v. Simonich, 29 F.3d 1398, 1407 (9th Cir.1994). Plaintiffs' damages claims are also immediately appealable because the district court entered judgment on them under Rule 54(b). Because Plaintiffs appeal the district court's dismissal for failure to state a claim, Plaintiffs' allegations are taken as true. See, e.g., Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.2000). In debating the propriety of abstention, the parties also rely on the facts alleged in the complaint.

We initially address the question of justiciability, because Jones claims that this case is moot and unripe,⁴ and alleges that the damages claims are barred by the Eleventh Amendment. Mootness, ripeness, and standing are questions of law that we review de novo, Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1097-98 (9th Cir.2000), as is the existence of sovereign immunity, Corzo v. Banco Cent. de Reserva del Peru, 243 F.3d 519, 522 (9th Cir.2001).

A....