Farris v. Seabrook

• Decision Date: 11 April 2012
• Docket Number: No. 11–35620.,11–35620.
• Citation: 677 F.3d 858,2012 Daily Journal D.A.R. 4554
• Parties: Robin FARRIS; Recall Dale Washam, a Washington political committee; Oldfield & Helsdon, PLLC, a Washington professional limited liability company, Plaintiffs–Appellees, v. Dave SEABROOK, Chair; Barry Sehlin, Vice Chair; Jennifer Joly; Jim Clements, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; Doug Ellis, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

2012 Daily Journal D.A.R. 4554

677 F.3d 858

Robin FARRIS; Recall Dale Washam, a Washington political committee; Oldfield & Helsdon, PLLC, a Washington professional limited liability company, Plaintiffs–Appellees,

v.Dave SEABROOK, Chair; Barry Sehlin, Vice Chair; Jennifer Joly; Jim Clements, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; Doug Ellis, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission, Defendants–Appellants.

No. 11–35620.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 16, 2011.Filed Jan. 19, 2012.Amended April 11, 2012.

Validity Called into Doubt

West's RCWA 42.17A.405(3) Robert M. McKenna, Attorney General; Linda A. Dalton, Senior Assistant Attorney General (argued), Olympia, WA, for the appellants.

Jeffrey P. Helsdon, Oldfield & Helsdon, PLLC, Firecrest, WA; William Maurer (argued) and Jeanette Petersen, Institute for Justice, Seattle, WA; Paul Avelar, Tempe, AZ, for the appellees.Theodore J. Angelis and Taki V. Flevaris (argued), K & L Gates, Seattle, WA, for amici curiae Wisconsin Democracy Campaign and Washington Public Campaigns.Allen Dickerson, Alexandria, VA, for amicus curiae Center for Competitive Politics.Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. 3:11–cv–05431–RJB.Before: RAYMOND C. FISHER, RICHARD A. PAEZ and RICHARD R. CLIFTON, Circuit Judges.

ORDER

The opinion filed January 19, 2012, and appearing at 667 F.3d 1051 (9th Cir.2012), is AMENDED. An amended opinion will be filed concurrently with this order.

With this action, the panel has voted to deny the petition for panel rehearing and rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and rehearing en banc, filed February 9, 2012, is DENIED.

No further petitions for rehearing will be accepted.

OPINION

FISHER, Circuit Judge:

The district court granted a preliminary injunction prohibiting the State of Washington from enforcing its limitation on contributions to political committees supporting the recall of a state or county official. We conclude that the plaintiffs satisfied their burden under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), to demonstrate that the contribution limit is likely an unconstitutional and harmful burden on the plaintiffs' rights of free speech under the First Amendment. Accordingly, the district court did not err in granting the injunction, and we affirm.

I. Background

A. Washington's Recall Procedure

Washington provides its electorate with an elaborate procedure for recalling elected officials. According to Washington's constitution, elected officials may be recalled for malfeasance, misfeasance or a violation of their oaths of office. See Wash. Const. art. I, §§ 33, 34. A voter who wishes to recall an elected official must prepare a typewritten charge naming the official and providing a detailed description of the grounds for recall. See Wash. Rev.Code § 29A.56.110. Recall charges are filed with the county auditor, and the county's prosecuting attorney then prepares a ballot synopsis, which sets forth the name of the person charged, the title of the office and the elements of the charge. See id. §§ 29A.56.120, 29A.56.130. Within 15 days thereafter, the superior court conducts a hearing to decide “(1) whether or not the acts stated in the charge satisfy the criteria for which a recall petition may be filed [i.e., the sufficiency of the charges], and (2) the adequacy of the ballot synopsis.” Id. § 29A.56.140. The person demanding recall and the person subject to the recall may appear before the court with counsel and may appeal an adverse decision to the Washington Supreme Court. See id.

If the charges are held to be sufficient, the recall proponents begin to collect signatures from registered voters who support the petition. To recall a county official whose county has a population of 40,000 or more, proponents must collect a number of signatures “equal to twenty-five percent of the total number of votes cast for all candidates for the office to which the officer whose recall is demanded was elected at the preceding election.” Id. § 29A.56.180(1). They have 180 days to collect these signatures following court approval of the ballot synopsis. See id. § 29A.56.150(2). If proponents collect the required number of signatures, the auditor must “fix a date for a special election to determine whether or not the officer charged shall be recalled and discharged from office.” Id. § 29A.56.210. The election must be held “not less than forty-five nor more than sixty days” from the time that the signatures are verified. Id. If the recall is successful, the recalled official must vacate his or her office and the appropriate state legislative body will appoint a successor to fill the position until the next general election. See id. §§ 29A.56.260, 36.16.110.

The statutory provision challenged here prohibits contributions of more than $800 to a political committee making expenditures in a recall campaign. See id. § 42.17A.405(3).^{1, 2} This limit applies to monetary and in-kind contributions alike. See id. § 42.17A.005(15)(c) (“Contributions other than money or its equivalent are deemed to have a monetary value equivalent to the fair market value of the contribution ... and count [ ] towards any applicable contribution limit of the provider.”).³

B. Plaintiffs' Efforts to Recall Dale Washam

Plaintiff Robin Farris began an effort to recall Pierce County Assessor–Treasurer Dale Washam in 2010, after becoming aware of allegations that Washam had engaged in malfeasance while in office. Farris formed a political committee, Recall Dale Washam (“the Recall Committee”), which she registered with the Washington Public Disclosure Commission (PDC), and filed charges against Washam under § 29A.56.110.

After proceedings in the superior court and an appeal, the Washington Supreme Court found several of Farris' charges sufficient and approved a ballot synopsis. See In re Recall of Washam, 171 Wash.2d 503, 257 P.3d 513 (2011). The recall proponents then had until August 31, 2011 to collect signatures from 65,495 registered Pierce County voters to qualify the approved synopsis for the November ballot.

Meanwhile, shortly before the Washington Supreme Court issued its decision, the PDC issued the Recall Committee a “Notice of Administrative Charges,” alleging that the committee violated Washington Revised Code § 42.17A.405 by accepting more than $800 in in-kind contributions from Oldfield & Helsdon, a law firm that had represented the committee in the state superior court and supreme court proceedings on a pro bono basis. The PDC ultimately withdrew the charges, but stated:

The fact that PDC staff does not intend to allege a violation of [§ 42.17A.405] should not be construed to mean that the contribution limits of [§ 42.17A.405] are not applicable to the recall election. The statute, as written, is to be followed during the recall campaign.

C. Proceedings Before the District Court

In June 2011, Farris, the Recall Committee and Oldfield & Helsdon filed a complaint challenging the constitutionality of § 42.17A.405(3)'s $800 contribution limit. Two weeks later, the plaintiffs moved for a preliminary injunction enjoining the State from enforcing the contribution limit, arguing that the limit violated their First Amendment rights. In July 2011, the district court granted the motion, preliminarily enjoining the State from enforcing § 42.17A.405(3) against the plaintiffs during the 2011 recall campaign.

II. Jurisdiction

We have jurisdiction to review a district court's order granting a preliminary injunction under 28 U.S.C. § 1292(a)(1). Before we can exercise our jurisdiction under § 1292(a)(1), however, we must ensure that this appeal continues to present a live controversy.

While this appeal was pending, the plaintiffs' August 31, 2011 deadline to collect signatures passed. The plaintiffs did not collect the required number of signatures to qualify the recall question for the November 2011 ballot. Because the district court's injunction applied only to the plaintiffs' campaign for the November 2011 ballot, we must consider whether this appeal is now moot. We hold that it is not moot, because this situation is capable of repetition, yet evading review.

This exception to mootness applies when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Enyart v. Nat'l Conference of Bar Exam'rs, 630 F.3d 1153, 1159 (9th Cir.2011) (quoting FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007)) (internal quotation marks omitted). “[T]he exception frequently arises in election cases ‘because the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits.’ ” Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1002 (9th Cir.2010) (quoting Porter v. Jones, 319 F.3d 483, 490 (9th Cir.2003)).

Both elements are present here. The district court issued the injunction on July 15, 2011. Given its limited scope, the injunction was “fully and irrevocably carried out” as of August 31, 2011, when the plaintiffs failed to obtain enough signatures to qualify for the November ballot. Enyart, 630 F.3d at 1160. The parties “could not practically obtain appellate review of the district court order[ ]” within this time. Id. Furthermore, if the plaintiffs attempt another recall, they will be subject to the same $800 contribution limit. See Citizens for...