Balogh v. Lombardi
| Decision Date | 11 March 2016 |
| Docket Number | No. 14–3603.,14–3603. |
| Citation | 816 F.3d 536 |
| Parties | Diane K. BALOGH; American Civil Liberties Union of Missouri Foundation, Plaintiffs–Appellees v. George A. LOMBARDI, in his official capacity as Director of the State of Missouri Department of Corrections, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Caroline M. Coulter, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellant.
Anthony E. Rothert, ACLU of Missouri Foundation, St. Louis, MO, argued (Grant R. Doty, Andrew McNulty, ACLU of Missouri Foundation, St. Louis, MO, Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO, on the brief), for appellees.
Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
RILEY
, Chief Judge.
The director of the Missouri Department of Corrections (department) has authority to select an "execution team" pursuant to Mo.Rev.Stat. § 546.720
(the statute). The statute provides a private right of action against anyone who, without the department director's approval, "knowingly disclose[s] the identity of a current or former member of an execution team." Mo.Rev.Stat. § 546.720 3. The American Civil Liberties Union/Eastern Missouri Fund and one of its employees, Diane K. Balogh (collectively, ACLU), sued the department director, George Lombardi (director), in his official capacity. See 42 U.S.C. § 1983. The ACLU alleged the statute is unconstitutional as applied to department records the ACLU obtained under the Missouri Sunshine Law, see Mo.Rev.Stat. § 610.010 et seq., and then posted on its website. The director moved for summary judgment, arguing (1) he was immune from suit under the Eleventh Amendment to the U.S. Constitution, (2) the ACLU lacked standing, and (3) the ACLU's claims failed as a matter of law. The director appeals from the district court's order denying immunity. Having jurisdiction pursuant to 28 U.S.C. § 1292, we reverse.
Missouri law prohibits the disclosure of the identities of individuals who participate in executions. See Mo.Rev.Stat. § 546.720
3. The statute provides in relevant part:
On October 18, 2013, the department adopted an execution protocol that defines as members of the execution team "department employees and contracted medical personnel including a physician, nurse and pharmacist" and "anyone selected by the department director who provides direct support for the administration of lethal chemicals, including individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals for use in the lethal injection procedure."
On October 8 and 18, 2013, the department provided the ACLU with documents responsive to the ACLU's request under the Missouri Sunshine Law, see Mo.Rev.Stat. § 610.023
(), for department records regarding execution drugs. The ACLU published the documents on its website.
The ACLU alleges it learned of the October 18 execution protocol on October 22 and "realized that the records it published on its website would—or, at a minimum, could—identify current or former members of an execution team." Because the definition of "execution team" in the protocol included "individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals," the ACLU believed the publication of the documents it received relating to execution drugs did or could violate the statute. It removed the documents from its website.
The ACLU sought an injunction and declaratory judgment against the director, arguing the statute, as applied to the documents the ACLU possesses, violates its rights to free speech, free press, and due process under the First and Fourteenth Amendments to the U.S. Constitution. The ACLU alleged the statute "is a content-based restriction on speech and press activity that is not narrowly tailored to promote a compelling government interest," "fails to provide [the ACLU] with ample alternatives to engage in protected speech and press activity," and "is a prior-restraint in that it requires [the ACLU] to obtain approval of [the director] before engaging in protected speech and press activity." The ACLU asserted the statute violates its right to due process because it:
fails to give [the ACLU] fair notice of whether the disclosure of any particular public record could identify a person as a current or former member of an execution team in that [the ACLU] do[es] not know the identities of every current or former member of an execution team; the definition of execution team ... is broad and vague; and [the ACLU is] prohibited from disclosing public records provided to them by the Department.
The director moved for summary judgment, claiming (1) he was immune from suit under the Eleventh Amendment, (2) the ACLU lacked standing, and (3) the ACLU's claims failed as a matter of law. The director, quoting Ex Parte Young, 209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908)
, asserted he was immune from suit under the Eleventh Amendment because state officers may only "be sued to prevent enforcement of an unconstitutional state statute" if such officers have enforcement authority and are " ‘threaten[ing] or are about to commence ... civil or criminal ... [proceedings] against parties affected [by] an unconstitutional act.’ " (Italics omitted).
The district court concluded the director was not immune, denied in part his motion for summary judgment on that basis, and deferred ruling on his other arguments.
The district court first noted "Ex Parte Young requires the defendant have some connection with enforcement of the allegedly unconstitutional statute and have demonstrated some willingness to enforce the statute." It then explained the director had a duty to "enforce [the statute] by developing and implementing an execution protocol and defining and redefining the execution team, thus determining whose identities shall be kept confidential." The district court opined the director had "demonstrated a willingness to carry out that duty by developing an execution protocol and repeatedly revising the protocol."
The director appeals, contending the district court erred by denying him immunity and declining to dismiss the suit for lack of jurisdiction because the ACLU does not have standing.
"[W]e ... first address whether this action ... is the sort of ‘Article III’ ‘case or controversy’ to which federal courts are limited," Calderon v. Ashmus, 523 U.S. 740, 745, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998)
, and determine whether the ACLU has standing.1 To demonstrate standing, a plaintiff must show: (1) he has "suffered an injury-in-fact"; (2) the injury is "fairly ... trace[able] 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." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotations and internal marks omitted). The ACLU, as "[t]he party invoking federal jurisdiction[,] bears the burden of establishing these elements." Id. at 561, 112 S.Ct. 2130. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.
An injury in fact requires a "concrete and particularized" harm that is " ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 560, 112 S.Ct. 2130
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ). "Although ‘imminence’ is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is ‘certainly impending.’ " Id. at 564 n. 2, 112 S.Ct. 2130 (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. 1717 ). " ‘Allegations of possible future injury’ are not sufficient." Clapper v. Amnesty Int'l USA, 568 U.S. ––––, ––––, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (alteration omitted) (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. 1717 ).
Although the ACLU has not yet been sued, the ACLU argues it is currently being injured because the statute has created a credible threat of legal action, which has chilled its speech. A chilling effect on speech protected by the First Amendment can constitute an injury in fact, but " ‘[a]llegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.’ " Id. at 1152
(alteration in original) (quoting Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ).
The director argues the ACLU's belief that its speech has been chilled is objectively unreasonable because it does not face "a credible threat of prosecution" by the state, as required by Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 792 (8th Cir.2004)
. However, our recent decision in Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d...
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