Van Bergen v. State of Minn.

• Decision Date: 14 July 1995
• Docket Number: No. 94-3047,94-3047
• Citation: 59 F.3d 1541
• Parties: 23 Media L. Rep. 2185 Richard T. VAN BERGEN, Appellant, v. STATE OF MINNESOTA; Hubert H. Humphrey, III, in his capacity as Attorney General of the State of Minnesota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1541

59 F.3d 1541

23 Media L. Rep. 2185

Richard T. VAN BERGEN, Appellant, v. STATE OF MINNESOTA; Hubert H. Humphrey, III, in his capacity as Attorney General of the State of Minnesota, Appellees.

No. 94-3047.

United States Court of Appeals Eighth Circuit.

Submitted March 15, 1995.

Decided July 14, 1995.

Daryl J. Bergmann, Bloomington, MN (argued), for appellant.

Peter Martin Ackerberg, Asst. Atty. Gen., St. Paul, MN (argued), for appellee.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MAGILL, Circuit Judge.

Richard Van Bergen appeals the district court's ¹ dismissal of his request for a permanent injunction and declaratory relief against the enforcement of Minn.Stat. Secs. 325E.26-.31, which regulates the use of automatic telephone dialing-announcing devices. In this appeal, Van Bergen argues that the statute violates his rights under the freedom of speech clause of the First Amendment and the due process and equal protection clauses of the Fourteenth Amendment, that the statute is unconstitutionally vague, and that it is preempted by federal law. We affirm.

I. BACKGROUND

In 1987, Minnesota introduced a statute regulating the use of automatic dialing-announcing devices (ADADs). ² These machines can dial telephone numbers either according to a pattern (e.g., consecutive or random numbers) or as programmed, and, when the telephone is answered, deliver a recorded message. They are increasingly widely used to inexpensively reach a large number of people for telemarketing, fundraising and other purposes. The statute was challenged in Minnesota state court in 1992 on the grounds that it was in violation of the First Amendment. State by Humphrey v. Casino Mktg., 491 N.W.2d 882 (Minn.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1648, 123 L.Ed.2d 269 (1993). The court interpreted the statute to apply to commercial solicitation ADAD calls only, and upheld the statute as a reasonable time, place and manner restriction on commercial speech, applying the test found in Central Hudson Gas & Electric Corp. v. Public Service Comm. of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). ³

In 1994, taking effect on July 1 of that year, the Minnesota legislature amended the statute, adding subdivision 6 to Sec. 325E.26: " 'Message' means any call, regardless of its content."

In the meantime, Richard Van Bergen had declared his candidacy for Minnesota governor. Van Bergen planned to use ADAD calls extensively as an inexpensive way to reach potential voters. After the amendment to the statute was enacted, he contacted the Attorney General's office to determine whether enforcement of the amended act would affect his campaign plans. The Attorney General's representatives informed Van Bergen that the amended statute would be enforced against ADAD calls of any content, not only against commercial solicitation ADAD calls. Van Bergen had planned to use ADAD messages that did not request donations or solicit purchases; the messages provided information about Van Bergen and his campaign for governor, and included a toll-free telephone number that recipients could call to obtain further information. The statute, therefore, had not applied to Van Bergen before the amendment, but did apply to him thereafter.

In June 1994, Van Bergen applied to the district court for a temporary restraining order against the enforcement of the amended statute; his application was denied. An expedited court trial followed on his request for declaratory and permanent injunctive relief. At trial, the government presented affidavits concerning the numerous complaints the Attorney General's office had received about ADAD calls to both businesses and residences, and specific incidents in which ADAD calls had disrupted the operation of hospitals and other entities. The district court dismissed Van Bergen's request for relief, finding that the statute was a content-neutral time, place or manner restriction on speech in a limited public forum, and that the restrictions met the standard for time, place or manner restrictions set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). This appeal followed.

II. DISCUSSION

A. Threshold Issues

We address first three threshold issues: whether Van Bergen's challenge to the statute has been rendered moot by the fact that the primary election is over; whether Minnesota's ADAD provisions are preempted by the Federal Telephone Consumer Protection Act; and whether the statute was enacted in compliance with the Minnesota Constitution.

1. Mootness

The government argues that, because the specific campaign in which Van Bergen sought to use ADAD calls is over, his request for injunctive and declarative relief from the ADAD statutes is moot. We do not have jurisdiction over cases in which "due to the passage of time or a change in circumstance, the issues presented ... will no longer be 'live' or the parties will no longer have a legally cognizable interest in the outcome of the litigation." Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir.1993) (en banc). In such a situation, the case has become moot. There is, however, an exception to the mootness doctrine in cases which are " 'capable of repetition yet evading review.' " Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam)). We have jurisdiction to hear an otherwise moot case when the challenged action is of too short a duration to be litigated fully prior to its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again. Id. The party need not show with certainty that the situation will recur, but a mere physical or theoretical possibility is insufficient to overcome the jurisdictional hurdle of mootness. Id.

Election issues are among those most frequently saved from mootness by this exception. See Anderson v. Celebrezze, 460 U.S. 780, 786-87, 103 S.Ct. 1564, 1568-69, 75 L.Ed.2d 547 (1983); Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714 (1974); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). Elections, including the preelection campaign period, are almost invariably of too short a duration in which to complete litigation and, of course, recur at regular intervals. Van Bergen originally brought his claim to the district court prior to the gubernatorial primary in which he intended to run, but, despite expedited review in the district court, this appeal could not be brought until after the election. The issue of whether Minnesota's limitations of the use of ADADs in an election campaign context passes constitutional muster will never be fully litigated if, at each election, the case becomes moot before appeals can be completed.

In addition, there is a reasonable expectation that Van Bergen's activities, in addition to those of other candidates for elective office, will be limited by the Minnesota statute in the future. As an active politician, and supporter of a program that attracts a small but dedicated segment of the population, there is a reasonable probability that Van Bergen will be in a position to wish to run for office, or promulgate the political program he supports, with the aid of ADAD equipment in the future. Although Van Bergen has not stated with certainty that he will be running for office again, the probability that he will continue to work to spread his views and influence the outcome of elections is far from merely theoretical. See Whitton v. Gladstone, 54 F.3d 1400, 1402 n. 5 (8th Cir.1995); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973) (in finding that the termination of pregnancy did not render abortion case moot, the Court stated that "[p]regnancy often comes more than once to the same woman, and in the general population, if man is to survive it will always be with us"). We find that Van Bergen's challenge to the Minnesota statute is not moot, despite the passing of the specific election campaign in which he attempted to use ADAD equipment.

2. Preemption

The second threshold issue we must address is Van Bergen's argument that the Minnesota statute is preempted by the Federal Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 (TCPA). The TCPA includes a savings clause:

(1) State law not preempted

Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits--

(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;

(B) the use of automatic telephone dialing systems;

(C) the use of artificial or prerecorded voice messages; or

(D) the making of telephone solicitations.

47 U.S.C. Sec. 227(e)(1). Van Bergen argues that the Minnesota statute is less restrictive than the TCPA, and is therefore preempted by the TCPA. The savings clause, however, does not state that all less restrictive requirements are preempted; it merely states that more restrictive intrastate requirements are not preempted. The TCPA, therefore does not expressly preempt the Minnesota statute.

Federal law can preempt state law without an express statement by Congress when the federal statute implies an intention to preempt state law or when state law directly conflicts with federal law. See New York Conference of Blue Cross v. Travelers Ins., --- U.S. ----, ----, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995); Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983). The TCPA carries no implication that Congres...