Lawrence v. Blackwell

• Decision Date: 16 December 2005
• Docket Number: No. 04-4022.,No. 04-4150.,04-4022.,04-4150.
• Citation: 430 F.3d 368
• Parties: David LAWRENCE, et al., Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, Secretary, State of Ohio, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

430 F.3d 368

David LAWRENCE, et al., Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, Secretary, State of Ohio, et al., Defendants-Appellees.

No. 04-4022.

No. 04-4150.

United States Court of Appeals, Sixth Circuit.

Argued: September 23, 2005.

Decided and Filed: November 29, 2005.

Rehearing Denied December 16, 2005.

ARGUED:

Robert B. Newman, Newman & Meeks Co., LPA, Cincinnati, Ohio, for Appellants. David Todd Stevenson, Hamilton County Prosecuting Office, Cincinnati, Ohio, Damian W. Sikora, Office of the Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Robert B. Newman, Stephen R. Felson, Lisa T. Meeks, Newman & Meeks Co., LPA, Cincinnati, Ohio, for Appellants. David Todd Stevenson, W. Pete Heile, Hamilton County Prosecuting Office, Cincinnati, Ohio, Damian W. Sikora, Richard N. Coglianese, Office of the Attorney General, Columbus, Ohio, for Appellee.

Before: COLE, ROGERS, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Plaintiffs challenge an Ohio election statute which requires independent congressional candidates to file a statement of candidacy and nominating petition with a minimum number of signatures by the day before the primary election. The district court denied injunctive relief and granted Defendants' motions to dismiss. Plaintiffs argue on appeal that the district court erred because Ohio's early filing deadline violates their First and Fourteenth Amendment rights. For the reasons set forth below, we affirm the judgment of the district court.

I. BACKGROUND

Ohio law requires an individual interested in becoming an independent congressional candidate in the general election to file both a statement of candidacy and a nominating petition by 4:00 p.m. on the day before the primary election immediately preceding the general election at which the candidacy is to be voted on by the voters. Ohio Rev.Code § 3513.257. In years in which there is no presidential election, primaries are held on the Tuesday of the first full week of May. However, in presidential election years, primaries are held on the Tuesday of the first full week of March. Id. § 3501.01. A nominating petition must contain a number of signatures equal to at least one percent of the electors in the individual's congressional district. Id. § 3213.257(C). On March 1, 2004, the day before the 2004 primary, David Lawrence attempted to file a statement of candidacy for the First Congressional District of Ohio with the Hamilton County Board of Elections ("Board"). The Board declined to receive his statement because he failed to include the requisite nominating petition.

On June 4, 2004, Lawrence presented his nominating petition to the Board containing a sufficient number of signatures. However, the Board rejected the petition because it was untimely filed. On June 14, 2004, Lawrence and Yifat Shilo, a voter in the First Congressional District who wished to vote for Lawrence, filed a complaint in federal district court seeking an injunction requiring the Board to place Lawrence on the November ballot and permanently enjoining enforcement of Ohio's early filing deadline. The district court held a hearing and issued an order denying Plaintiffs' motion for a preliminary and a permanent injunction. A short time later the trial court summarily granted Defendants' motions to dismiss the complaint relying on the analysis in its order resolving the motion for injunctive relief. Plaintiffs timely appealed both the denial of injunctive relief and the granting of Defendants' motions to dismiss.

II. ANALYSIS

A. Mootness

Defendants assert that the court of appeals should affirm the district court's dismissal of the complaint because the controversy is now moot since the 2004 election has already taken place. When a case becomes moot pending appeal, "it is the duty of the appellate court to set aside the decree below." U.S. Dep't of Treasury v. Galioto, 477 U.S. 556, 560, 106 S.Ct. 2683, 91 L.Ed.2d 459 (1986) (citing Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 (1936)). This case is not moot because it falls within the exception to the mootness doctrine for cases which are capable of repetition yet evade review.

"A case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Chirco v. Gateway Oaks, 384 F.3d 307, 309 (6th Cir.2004). The mootness inquiry must be made at every stage of the litigation. Coalition for Gov't Procurement v. Fed. Prison Indus., 365 F.3d 435, 458 (6th Cir.2004); Gottfried v. Medical Planning Servs., Inc., 280 F.3d 684, 691 (6th Cir.2002). However, a case will not be considered moot if the challenged activity is capable of repetition, yet evading review. E.g., Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Chirco, 384 F.3d at 309. This exception applies when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). The party asserting that this exception applies bears the burden of establishing both prongs. See Deja Vu of Nashville v. Metro. Govern. of Nashville and Davidson County, 274 F.3d 377, 390-91 (6th Cir.2001); Speer v. City of Oregon, 847 F.2d 310, 311 (6th Cir.1988); accord Public Utils. Comm'n v. FERC, 236 F.3d 708, 714 (D.C.Cir.2001); Video Tutorial Services, Inc. v. MCI Telecomm. Corp., 79 F.3d 3, 6 (2nd Cir.1996); OSHA Data/CIH Inc. v. U.S. Dept. of Labor, 220 F.3d 153, 168 (3rd Cir.2000); Benavides v. Housing Authority of San Antonio, 238 F.3d 667, 671 (5th Cir.2001). Ackley v. Western Conf. of Teamsters, 958 F.2d 1463, 1469 (9th Cir.1992).

Neither party disputes that the occurrence of the 2004 election made it impossible for the courts to grant the preliminary injunctive relief Plaintiffs sought of placing Lawrence's name on the 2004 ballot. However, Plaintiffs contend that the court should still address their request to permanently enjoin the application of Ohio's early filing deadline because the injury they alleged is capable of repetition, yet evading review. Plaintiffs have easily met their burden of establishing the first prong. Challenges to election laws are one of the quintessential categories of cases which usually fit this prong because litigation has only a few months before the remedy sought is rendered impossible by the occurrence of the relevant election. See Morse v. Republican Party of Va., 517 U.S. 186, 235, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996); Norman v. Reed, 502 U.S. 279, 287-88, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Speer, 847 F.2d at 311. The instant challenge is no exception.

The issue of whether Plaintiffs have established the second prong of the capable of repetition yet evading review exception is more complex because there is no evidence in the record addressing whether Lawrence plans to run for office or Shilo plans to vote for an independent candidate in a future election. The Supreme Court has stated that the purpose of the second prong is to determine "whether the controversy was capable of repetition and not ... whether the claimant had demonstrated that a recurrence of the dispute was more probable than not." Honig v. Doe, 484 U.S. 305, 319 n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (emphasis in original). Although Lawrence has not specifically stated that he plans to run in a future election, he is certainly capable of doing so, and under the circumstances it is reasonable to expect that he will do so. Neither is an explicit statement from Shilo necessary in order to reasonably expect that in a future election she will wish to vote for an independent candidate who did not decide to run until after the early filing deadline passed. The law at issue is still valid and applicable to both Lawrence and any independent candidate Shilo might wish to vote for in future election years. Therefore, the controversy is capable of repetition.

Even if the court could not reasonably expect that the controversy would recur with respect to Lawrence or Shilo, the fact that the controversy almost invariably will recur with respect to some future potential candidate or voter in Ohio is sufficient to meet the second prong because it is somewhat relaxed in election cases. Courts have applied the capable of repetition yet evading review exception to hear challenges to election laws even when the nature of the law made it clear that the plaintiff would not suffer the same harm in the future. See Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Honig, 484 U.S. at 335-36, 108 S.Ct. 592 (Scalia, J., dissenting) (observing that "some of our election law decisions differ from the body of our mootness jurisprudence ... in dispensing with the same-party requirement entirely, focusing instead upon the great likelihood that the issue will recur between the defendant and the other members of the public." (internal citations omitted)). Since the harm Plaintiffs allege was the direct result of an extant Ohio statute, future independent congressional candidates will suffer the same harm Plaintiffs are alleging. Consequently, Plaintiffs have established that the harm they suffered is capable of repetition, yet evading review. The district court properly exercised jurisdiction.

B. Constitutionality of Ohio's Early Filing Deadline

Plaintiffs appeal both the district court's denial of its motion for preliminary and permanent injunctions and the granting of Defendants' motions to dismiss. The core issue in both of these determinations is whether Ohio's early filing deadline is constitutional...