Dean v. Blumenthal

• Decision Date: 11 August 2009
• Docket Number: Docket No. 07-1986-cv.
• Parties: Martha DEAN, Plaintiff-Appellant, Robert Farr, Plaintiff, v. Richard BLUMENTHAL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

577 F.3d 60

Martha DEAN, Plaintiff-Appellant, Robert Farr, Plaintiff, v. Richard BLUMENTHAL, Defendant-Appellee.

Docket No. 07-1986-cv.

United States Court of Appeals, Second Circuit.

Argued: November 10, 2008.

Decided: August 11, 2009.

Karen Lee Torre, Law Offices of Karen Lee Torre, New Haven, CT, for Appellant.

Gregory T. D'Auria, Associate Attorney General (Richard Blumenthal, Attorney General, Susan Quinn Cobb, Assistant Attorney General, Jane R. Rosenberg, Assistant Attorney General, on the brief), Office of the Attorney General for the State of Connecticut, Hartford, CT, for Appellee.

Before: KATZMANN and HALL, Circuit Judges.^*

PER CURIAM:

Martha Dean appeals from an April 9, 2007 judgment of the United States District Court for the District of Connecticut (Thompson, J.), dismissing her complaint. Dean, a former and possibly future candidate for Attorney General in Connecticut, argues that a contractual prohibition on contributions to candidates for the Office of the Attorney General from, inter alia, certain employees of private law firms that performed legal work for the State violated Dean's rights under the First Amendment. Because the challenged contractual language has not been enforced in over six years and could not reasonably be expected to be reimplemented, we hold that Dean's requested relief of a declaratory judgment, injunctive relief, and a cease-and-desist order are moot. We also hold that appellee Richard Blumenthal is entitled to qualified immunity from Dean's claim for damages because there was no clearly established right under the First Amendment to receive campaign contributions during the relevant period. Accordingly, we affirm the judgment of the district court.

BACKGROUND

Under Connecticut General Statute § 3-125, the Attorney General for the State of Connecticut ("Attorney General") "may procure such assistance as he [or she] may require" in carrying out his or her official responsibilities. Pursuant to this statute, the State of Connecticut, acting through its Attorney General, has contracted a portion of the State's legal business to the private bar.

From 1995 to October 2002, Attorney General Richard Blumenthal included and enforced the following provision in contracts with outside counsel:

No partner, owner, director and/or employee, with managerial and/or discretionary authority, of the COUNSEL may directly or indirectly make financial donations to any candidate for the Office of the Attorney General of the State of Connecticut during the course of this agreement.

The Attorney General interpreted this language to apply to all lawyers in a contracting law firm as well as to spouses of covered lawyers. According to the Attorney General, this provision was included in order to avoid the appearance that the contracting law firm was being awarded a contract in exchange for future campaign contributions.

In 2002, this policy was challenged by appellant Martha Dean, who was the Republican Party's candidate in Connecticut for the Office of the Attorney General. Her opponent was appellee Blumenthal, who at that time had held the office for twelve years. Prior to election day, Dean filed a complaint in which she alleged that Blumenthal's policy on campaign donations deprived her of "needed financing for her campaign as a result of willing contributors withholding contributions for fear of suffering the loss of the State's business." (Compl. ¶ 19.) Pursuant to 42 U.S.C. § 1983, Dean asserted that Blumenthal's policy both violated her right under the First Amendment to receive campaign contributions and deprived her of her "right to receive funding for her campaign from otherwise willing supporters without due process of law" in violation of the Fourteenth Amendment. (Compl.¶¶ 21-22, 26.) Dean also alleged violations of the Connecticut Constitution. She sought relief including damages, a judgment declaring the contractual bar on campaign contributions to be null and void, a cease-and-desist order, and a preliminary injunction enjoining the promulgation of the policy.

Approximately one week prior to the election, Blumenthal temporarily suspended the contractual prohibition on campaign contributions pending a final decision by the district court. A letter was faxed to all firms with contracts with the Office of the Attorney General notifying them of the suspension. Blumenthal, however, continued to refuse to accept any campaign contributions from partners and associates (as well as their spouses) of any law firm holding an outside counsel contract with the Attorney General's office. After winning re-election, Blumenthal moved to dismiss Dean's complaint.

Approximately four years passed between Blumenthal's motion to dismiss and the district court's eventual ruling. Because the lawsuit had not been resolved by the next election cycle in 2006, Blumenthal continued his suspension of the campaign contribution prohibition.¹ Once again, a letter was faxed to all firms with open contracts with the Office of the Attorney General notifying them of the policy's continued suspension. In addition, the Connecticut General Assembly passed campaign finance legislation in December 2005 that prohibited contributions from, inter alia, state contractors and prospective state contractors to certain committees affiliated with a candidate for the Office of Attorney General. See S. 2103, 2005 Gen. Assem., Spec. Sess. (Conn.2005). As a result of this legislation, Blumenthal publicized to all firms with contracts with the Office of the Attorney General that the contractual bar on campaign contributions would be "wholly and permanently superseded" by the statutory ban as of December 31, 2006, the effective date of the campaign finance legislation.

In September 2006, the district court granted Blumenthal's motion to dismiss. The court held that Dean's claim under the Fourteenth Amendment failed because she could not demonstrate a liberty or property interest in the receipt of campaign contributions. It also dismissed Dean's state law claims as barred by the Eleventh Amendment.² During the following week, the district court dismissed Dean's remaining claim, which was based on the First Amendment. The district court concluded that Dean lacked standing because there existed no constitutional right to receive campaign contributions.

DISCUSSION

As a preliminary matter, we address our subject-matter jurisdiction over this appeal, which we have an independent obligation to evaluate even in the absence of a challenge from any party. Sharkey v. Quarantillo, 541 F.3d 75, 88 (2d Cir.2008). We lack jurisdiction if we conclude that a case is moot. Fox v. Bd. of Trs. of the State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir.1994); see also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ("The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."). "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks omitted); see Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) ("It has long been settled that a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." (internal quotation marks omitted)).

We conclude that much of Dean's appeal is moot and therefore beyond our jurisdiction to review. Dean's complaint principally seeks a declaratory judgment, injunctive relief, and a cease-and-desist order regarding an "office policy" that (it is undisputed) no longer exists. (Compl. at 12.) Dean attempts to avoid this complication by contending that Blumenthal could re-enact the policy at any moment, which might affect her if she runs in the next election and which, in any event, may amount to unconstitutional conduct that is capable of repetition yet evades review. See Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 71 (2d Cir.2001) ("A narrow exception to the principle that a moot claim is to be dismissed, available only in exceptional situations, is that the court may adjudicate a claim that, though technically moot, is capable of repetition, yet evading review." (citations and internal quotation marks omitted)).

It is clear, however, that the Attorney General will not re-enact the contractual bar on campaign contributions. The Attorney General has represented to the Court that he "has no intent to reintroduce the challenged provision into his contracts." Standing alone, this representation might not suffice to render moot Dean's requested relief. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (holding that, although defendant had "disclaimed any intention" to revive the challenged conduct, "[s]uch a profession does not suffice to make a case moot although it is one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts"); see also Friends of the Earth, Inc., 528 U.S. at 189, 120 S.Ct. 693 (describing the "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again" (internal quotation marks and brackets omitted)). But the Attorney General's claim is bolstered by his voluntary practice of not enforcing the contractual prohibition over the past six years and of deleting the contractual prohibition over two years ago.

Moreover, although "[v]oluntary cessation of illegal conduct does not necessarily render the controversy moot," N.Y. State Nat'l Org. for Women v. Terry, 159 F.3d 86, 91-92 (2d Cir.1998), the...