American Civil Liberties Union v. Taft, 02-3924.

• Decision Date: 27 September 2004
• Docket Number: No. 02-3924.,02-3924.
• Citation: 385 F.3d 641
• Parties: AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., Plaintiff-Appellant, v. Robert TAFT, Governor of Ohio, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.3d 641

AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC., Plaintiff-Appellant, v. Robert TAFT, Governor of Ohio, Defendant-Appellee.

No. 02-3924.

United States Court of Appeals, Sixth Circuit.

Argued: January 28, 2004.

Decided and Filed: September 27, 2004.

Appeal from the United States District Court for the Southern District of Ohio, Edmund A. Sargus, Jr., J.

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Scott T. Greenwood (argued), Raymond Vasvari (briefed), American Civil Liberties Union, Cleveland, OH, for Plaintiff-Appellant.

Arthur James Marziale, Jr. (argued and briefed), Elizabeth L. Schuster (briefed), Constitutional Offices Section, Columbus, OH, for Defendant-Appellee.

Keith A. Wilkowski (briefed), Vassar, Dills & Dawson, Toledo, Ohio, for Amicus Curiae.

Before: MARTIN, RYAN, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MARTIN, J., joined. RYAN, J. (pp. 651-53), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

In this appeal, we conclude that Article I, section 2, clause 4 of the United States Constitution is mandatory, imposing upon a state executive the duty to issue a writ of election when one of her state's seats in the United States House of Representatives ("House") becomes vacant during a congressional term. Because Robert Taft, Governor of Ohio ("Governor Taft"), refused to issue a writ of election when one of Ohio's seats in the House became vacant due to the expulsion of James A. Traficant, Jr. ("Traficant") and more than five months remained before the next Congress would convene, we hold that Governor Taft violated Article I, section 2, clause 4 and denied the voters in Ohio's Seventeenth Congressional District, including members of the American Civil Liberties Union ("ACLU"), their rights to vote and to equal representation in violation of the Fourteenth Amendment. Accordingly, we REVERSE the district court's decision and REMAND so that the district court may award appropriate declaratory relief and attorney's fees to the ACLU.

I. BACKGROUND

Traficant represented the Seventeenth Ohio Congressional District ("the District") from January 1985 through July 24, 2002, during the 99th through 107th Congresses. On July 24, 2002, the House passed House Resolution 495, expelling Traficant from the House. Subsequently, Governor Taft publicly announced that he would not call a special election to fill the House vacancy left by Traficant's expulsion. Governor Taft decided, after consulting with local elected officials, not to hold a special election, citing the cost of an election, the difficulty presented by redistricting that was to take effect for the regularly scheduled election in 2002,¹ the small length of time an elected replacement could be expected to serve, and the uninterrupted continuation of constituent services by the Clerk of the House. The 107th Congress was scheduled to adjourn on October 3, 2002; however, it did not adjourn sine die until November 22, 2002. Tim Ryan was elected to the House by the "new" Seventeenth District at a general election held on November 5, 2002, but did not take office until January 3, 2003. Therefore, the "old" Seventeenth District was without representation in the House and had diminished constituent services from July 2002 until January 2003.

On August 5, 2002, the ACLU filed a verified complaint in the United States District Court for the Southern District of Ohio, asserting a § 1983 claim and pendent state-law claims against Governor Taft. The ACLU prayed for injunctive and declaratory relief, requiring Governor Taft to call a special election to fill the House vacancy in the District, and for reasonable attorney's fees pursuant to 42 U.S.C. § 1988. On August 19, 2002, the district court issued oral and written orders denying injunctive relief. On August 26, 2002, the district court issued an opinion and order denying the ACLU's motion for a temporary restraining order and a preliminary injunction and dismissing the case, thereby denying a permanent injunction as well. On August 23, 2002, the ACLU filed a motion in the Sixth Circuit requesting emergency injunctive relief pending appeal, which a panel of this court denied on September 4, 2002.

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.²

II. ANALYSIS

A. Standard of Review

We review a district court's decision to deny a preliminary injunction for abuse of discretion. Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass'n, 110 F.3d 318, 322 (6th Cir.1997). We also review a district court's decision to deny a permanent injunction for abuse of discretion, and in doing so, we review the district court's factual findings for clear error and review the district court's legal conclusions de novo. Sec'y of Labor v. 3Re.com, Inc., 317 F.3d 534, 537 (6th Cir.2003). Although the district court did not specifically rule on the ACLU's request for declaratory relief, instead dismissing the case in toto after ruling on the ACLU's motion for preliminary injunctive relief, we review a "district court's exercise of discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for abuse of discretion." Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir.2000).

B. Standing and Mootness

Jurisdiction, including standing, is "`assessed under the facts existing when the complaint is filed.'" Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th Cir.2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n. 4, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), cert. denied, 535 U.S. 971, 122 S.Ct. 1438, 152 L.Ed.2d 382 (2002). In order to meet the standing requirements derived from Article III,

a plaintiff must show: "(1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

Id. at 523-24 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). To bring suit on behalf of its members, an association must show "`its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Id. at 524, 120 S.Ct. 693 (quoting Friends of the Earth, Inc., 528 U.S. at 181, 120 S.Ct. 693, 145 L.Ed.2d 610).

The ACLU filed the complaint in this action "on behalf of its members who reside in and who are electors in the Seventeenth Ohio Congressional District." J.A. at 6 (Compl.¶ 3). In this case, the ACLU has demonstrated that its members would have had "standing to sue in their own right." Cleveland Branch, N.A.A.C.P., 263 F.3d at 524. The ACLU submitted affidavits from Louise Lefkort, Robert H. Sacherman, and Carol C. Sacherman, who were all members of the ACLU, resided in the "old" Seventeenth District, were registered to vote in that district, and desired to vote in a special election to fill the House seat left vacant by the expulsion of Traficant. These members had suffered an actual injury, as they were without representation in the House and had been threatened with the imminent denial of their right to vote. This injury was fairly traceable to Governor Taft's actions because Governor Taft announced that he was not going to issue a writ of election calling for a special election. This injury would have been redressable by injunctive and declaratory relief, in that an injunction requiring Governor Taft to issue a writ of election would have allowed residents of the district to exercise their right to vote and to regain representation in the House.

The ACLU has also shown that the interests at stake in this case are germane to the organization's purpose. The ACLU submitted an affidavit from its Executive Director, Christine Link, explaining the organization's purpose as follows: "The object of this organization is to aid in maintaining and extending constitutional and other fundamental rights, liberties, privileges, and immunities, and to take all legitimate actions in furtherance of that object without political partisanship." J.A. at 161 (Link Aff.) (emphasis in original). This case addresses citizens' right to vote and right to equal representation, which falls squarely within the ACLU's purpose of guaranteeing constitutional and fundamental rights. Finally, this action does not require the participation of individual members of the organization.

While standing is assessed at the outset of the litigation, a case may become moot during the course of litigation, depriving the court of jurisdiction. Cleveland Branch, N.A.A.C.P., 263 F.3d at 524-25. The doctrines of standing and mootness serve different purposes: "In essence, standing concerns only whether a plaintiff has a viable claim that a defendant's unlawful conduct `was occurring at the time the complaint was filed' while mootness addresses whether that plaintiff continues to have an interest in the outcome of the litigation." Id. at 525 (citations omitted). These different purposes are reflected in well-established exceptions to the mootness doctrine, including the doctrine that a case will not become moot if the injury is capable of repetition, while evading review. Friends of the Earth, Inc., 528 U.S. at 190, 120 S.Ct. 693.

At this time, the 108th Congress has convened; therefore, we can no longer provide appropriate injunctive relief. We can, however, still award declaratory relief and attorney's fees, provided the case has not become moot. Vacancies in the House can happen near the end of a congressional term, making it difficult for litigation to...