Homans v. City of Albuquerque

• Decision Date: 27 April 2004
• Docket Number: No. 02-2244.,No. 02-2316.,02-2244.,02-2316.
• Citation: 366 F.3d 900
• Parties: Rick HOMANS, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, a municipal corporation; Francie D. Cordova, in her capacity as Clerk of the City of Albuquerque, Defendants-Appellants. Sander Rue, Plaintiff-Appellee, v. The City of Albuquerque, a municipal corporation; Francie D. Cordova, in her capacity as Clerk of the City of Albuquerque; the City of Albuquerque Board of Ethics and Campaign Practices, a board of the City of Albuquerque, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.3d 900

Rick HOMANS, Plaintiff-Appellee, v. The CITY OF ALBUQUERQUE, a municipal corporation; Francie D. Cordova, in her capacity as Clerk of the City of Albuquerque, Defendants-Appellants.

Sander Rue, Plaintiff-Appellee, v. The City of Albuquerque, a municipal corporation; Francie D. Cordova, in her capacity as Clerk of the City of Albuquerque; the City of Albuquerque Board of Ethics and Campaign Practices, a board of the City of Albuquerque, Defendants-Appellants.

No. 02-2244.

No. 02-2316.

United States Court of Appeals, Tenth Circuit.

April 27, 2004.

Brenda Wright (Lisa J. Danetz, National Voting Rights Institute, Boston, MA; Robert M. White, City Attorney, and Randy M. Autio, Deputy City Attorney, Albuquerque, NM, with her on the briefs), National Voting Rights Institute, Boston, MA, for Defendants-Appellants in 02-2244.

Thomas C. Bird (Richard L. Alvidrez with him on the brief), Keleher & McLeod, P.A., Albuquerque, NM, for Plaintiff-Appellee in 02-2244.

Lisa J. Danetz (Brenda Wright, National Voting Rights Institute, Boston, MA; Robert M. White, City Attorney, and Randy M. Autio, Deputy City Attorney, with her on the briefs), National Voting Rights Institute, Boston, MA, for Defendants-Appellants in 02-2316.

James Bopp, Jr., (Henry M. Bohnhoff, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM; and Paul M. Kienzle, III, Scott & Kienzel, PA, Albuquerque, NM with him on the brief), Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiff-Appellee in 02-2316.

Before LUCERO, O'BRIEN, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

In response to the increasingly apparent need to reform the ways in which political campaigns are financed, the city of Albuquerque implemented a campaign-finance reform system in 1974. It adopted limits on campaign expenditures and contributions in municipal elections. In 2001, mayoral candidate Rick Homans brought a challenge under the First and Fourteenth Amendments¹ to the mayoral-candidate expenditure restriction; ruling in favor of Homans, the district court permanently enjoined enforcement of this limit. City-council candidate Sander Rue brought a similar suit challenging the expenditure limit for city-council candidates and obtained a favorable summary judgment as well. Both cases are before us on review, and because they present similar issues, we consolidate them for review. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The following expresses the opinion of the court as to parts I, II, and III. As to part IV, it concurs in part with the opinion of Judge Tymkovich, which constitutes the majority opinion of the court as to part IV.

I

As part of an overall restructuring of its city government in 1974, Albuquerque amended its city charter and implemented an election code imposing disclosure requirements and limiting expenditures and contributions for municipal elections. More than ninety percent of voters approved these reform measures. As it reads today, the election code provides:

No candidate shall allow or accept contributions or make expenditures in excess of the following for any election:

1. To a candidate for the office of Councillor, contributions or expenditures equal to twice the amount of the annual salary paid by the City of Albuquerque to Councillors as of the date of filing of the Declaration of Candidacy.

2. To a candidate for the office of Mayor, contributions or expenditures equal to twice the amount of the annual salary paid by the City of Albuquerque to the Mayor as of the date of filing of the Declaration of Candidacy.

Albuquerque City Charter, art. XIII, sec. 4(d).² Candidate-expenditure restrictions were in effect for each mayoral and city-council election from 1974 to 1995. Limits on the 1997 election were temporarily enjoined pursuant to a court order; however, parties to that litigation stipulated dismissal of the lawsuit, and the spending limits were restored for the 1999 election. For the 2001 elections, the mayoral-campaign expenditure limit was $174,720; city-council candidates were limited to spending a maximum of $17,056. Violation of these limits carries a fine of up to $500 per violation, removal from office, and/or public reprimand.

After filing suit in federal district court on August 10, 2001, plaintiff Rick Homans filed a motion for a preliminary injunction, which was denied on September 1, 2001. Homans v. City of Albuquerque, 160 F.Supp.2d 1266 (D.N.M.2001) ("Homans I"). He then filed an interlocutory appeal on September 4, 2001, seeking an emergency injunction pending appeal. Two days later, a two-member motions panel of this court granted the request and enjoined enforcement of the expenditure limit pending review of the merits. Homans v. City of Albuquerque, 264 F.3d 1240, 1245 (10th Cir.2001) (per curiam) ("Homans II"). In doing so, the motions panel held that Homans established a likelihood of success on the merits regarding his claim that the expenditure limit violated the First and Fourteenth Amendments under Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Homans II, 264 F.3d at 1243-44.

On February 13, 2002, the parties filed a joint motion for stipulated admission of evidence and expedited determination on the merits in district court. The district court entered a declaratory judgment in favor of Homans and permanently enjoined enforcement of the provision in August 2002. Homans v. City of Albuquerque, 217 F.Supp.2d 1197 (D.N.M.2002) ("Homans III"). While the court stated its own view that the expenditure limitations restriction survives exacting scrutiny under Buckley, it found the contrary conclusion mandated by the motions-panel's ruling in Homans II. Homans III, 217 F.Supp.2d at 1206. Albuquerque appeals.

Plaintiff Sander Rue was a duly qualified candidate for District Five City Councillor who also ran in the October 2001 election. In his suit filed in federal district court in September, 2001, he claimed that the city-council campaign-expenditure limitation violates Buckley. The district court granted summary judgment in favor of Rue and permanently enjoined enforcement of the city-council restriction on October 11, 2002, relying on the motions-panel's ruling in Homans II and the district court's decision in Homans III. Rue v. City of Albuquerque, Civ. No. 01-1036 JP/LFG (D.N.M. Oct. 11, 2002). Albuquerque appeals.³

II

As to the grant of summary judgment in Rue's case, we review the district court's decision de novo, applying the same standards used by the district court and construing the facts in the light most favorable to Albuquerque. See Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999).

With regard to the final decision in Homans III, we ordinarily review the district court's legal conclusions de novo, Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189 (10th Cir.1999), and its factual findings for clear error. Fed.R.Civ.P. 52(a). Because this case implicates First Amendment concerns, however, we have "an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quotations omitted). We therefore view the evidence objectively rather than in the light most favorable to the City.

Our standard in reviewing Rue's case is thus more favorable to the City than our standard in Homans' case. For this reason, with respect to each claim, we evaluate the evidence first in the light most favorable to the City to determine whether summary judgment was proper in Rue. Only if this less stringent standard is satisfied will we conduct an independent and objective examination of the evidence to review whether the permanent injunction in Homans' case was proper.

III

As an initial matter, we determine whether the Homans II decision, in which a motions panel of this court granted an injunction pending appeal against the expenditure limit, has binding effect. See Homans II, 264 F.3d at 1243, 1245. Attempting to leverage this interlocutory decision to its maximum possible effect, Homans argues that the Homans II ruling constitutes the law of the case and restricts us in our merits determination.⁴ The district court agreed, stating that although it was inclined to conclude that the expenditure limit for mayoral campaigns survives the exacting scrutiny required under Buckley, it was bound by the motions-panel ruling to conclude otherwise. Homans III, 217 F.Supp.2d at 1206. We disagree.

In general, the law of the case doctrine provides that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). Law of the case "is solely a rule of practice and not a limit on the power of the court." Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir.1991) (citing Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912)). Thus, the doctrine is discretionary rather than mandatory. Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir.2001); Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir.1996).

In the instant matter, the two judge panel decision of our court constituted an interlocutory ruling, and its holding was limited to the conclusion that Homans had shown a likelihood of success on the merits of his claim.⁵ Homans II, 264 F.3d at 1243-44. Courts repeatedly have emphasized that a decision as to the likelihood of success is tentative in nature and not binding at a subsequent trial on the merits. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("[F]indings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at...