Inst. for Justice v. Laster

Decision Date07 January 2020
Docket NumberCase No. CIV-19-858-D
Parties (1) INSTITUTE FOR JUSTICE, Plaintiff, v. (1) Charlie LASTER, Acting Chairperson of the Oklahoma Ethics Commission ; (2) Jarred Brejcha, Commissioner of the Oklahoma Ethics Commission ; (3) Gregg Engle, Commissioner of the Oklahoma Ethics Commission ; (4) Holly Johnson, Commissioner of the Oklahoma Ethics Commission ; (5) Cathy Stocker, Commissioner of the Oklahoma Ethics Commission ; (6) Ashley Kemp, Executive Director of the Oklahoma Ethics Commission, Defendants.
CourtU.S. District Court — Western District of Oklahoma

Adam C. Doverspike, Gable & Gotwals, Tulsa, OK, Adam G. Mehes, Arthur J. Burke, Timothy E.D. Horley, Davis Polk & Wardwell, New York, NY, for Plaintiff.

Adav Noti, Erin Chlopak, Megan P. McAllen, Campaign Legal Center, Washington, DC, Stephanie N. McCord, Oklahoma Ethics Commission, Oklahoma City, OK, for Defendants.

ORDER

TIMOTHY D. DeGIUSTI, Chief United States District Judge

Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint [Doc. No. 16]. Plaintiff Institute for Justice ("Institute") has filed a Response in opposition [Doc. No.22]. The time within which Defendants could have filed a reply has lapsed, and no reply has been filed. The matter is at issue.

BACKGROUND

The Institute is a nonprofit, public interest law firm that engages in public advocacy, litigation, and strategic research. The Institute employs two individuals with principal job duties of lobbying and two lobbyists working under contract. The Institute states in its Complaint [Doc. No. 1] that one of its in-house lobbyists is registered as a lobbyist in Oklahoma, and further that the registered lobbyist has lobbied in Oklahoma during the year prior to filing the instant action.

The Institute's goal is to engage state and federal government officers and employees on issues involving licensing laws, occupational restrictions, and the influence of special interest groups. To achieve this goal, the Institute would like to distribute a book, Bottleneckers: Gaming the Government for Power and Private Profit , to officers and employees of the legislative and executive branches of the State of Oklahoma.

The edition of Bottleneckers that the Institute seeks to distribute has a retail value of $15.00. The Institute requested an advisory opinion from the Oklahoma Ethics Commission ("OEC") to determine the legality of distributing this book. The OEC interpreted the Institute's questions as:

May an executive or legislative lobbyist give to a state officer or employee a book which the lobbyist principal may purchase at a discounted author rate of approximately $15?"

Complaint [Doc. No. 1] ¶ 21. The OEC answered that Ethics Rule 5 prohibits gifting a book to a state officer or employee if the market value is greater than $10.00. The Institute claims that this restriction violates its First Amendment rights to freedom of speech and to "petition the government for the redress of grievances, and specifically the right to express [its] ideas, hopes, and concerns to government officers and employees." Id. ¶ 39. The Institute requests a declaratory judgment that Ethics Rules 5.6, 5.8, 5.11, and 5.13, as applied to the distribution of informational materials to legislative branch officers and employees: (1) unconstitutionally regulate political speech; and, (2) unconstitutionally regulate petitions to the government. The Institute also seeks a permanent injunction.

STANDARD OF DECISION

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial attack or a factual attack. Pueblo of Jemez v. United States , 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack questions the sufficiency of the complaint's allegations. Id. In reviewing a facial attack, a district court must accept the allegations in the complaint as true. Id. In a factual attack, the moving party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. Id. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. Id. Instead, the court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. Id.

"Constitutional standing is a threshold jurisdictional question" that "must be satisfied prior to adjudication by Article III courts" of claims brought pursuant to the Federal Declaratory Judgment Act. Trant v. Oklahoma , 874 F. Supp. 2d 1294, 1299 (W.D. Okla. 2012), aff'd, Trant v. Oklahoma , 754 F.3d 1158 (10th Cir. 2014). "Standing doctrine is designed to determine who may institute the asserted claim for relief." ACORN v. City of Tulsa, Okl. , 835 F.2d 735, 738 (10th Cir. 1987) (quoting Action Alliance of Senior Citizens v. Heckler , 789 F.2d 931, 940 (D.C. Cir. 1986) (emphasis in original)). "Absent a plaintiff with constitutional standing, federal courts lack jurisdiction." Id.

DISCUSSION

Defendants move to dismiss this case on the basis that Plaintiff: (1) lacks standing as it was not a lobbyist or lobbyist principal at the time the Complaint was filed, raising a factual challenge on a 12(b)(1) motion; and, (2) fails to state a claim for which relief can be granted, pursuant to FED. R. CIV. P. 12(b)(6).

In response to Defendants' Motion, Plaintiff concedes that it was not a lobbyist or lobbyist principal at the time the Complaint was filed but asserts that it has since attained that status and contends that it has properly stated a claim for relief. Response at 6.

I. The Court has jurisdiction over the action, as Plaintiff has established constitutional standing.

The irreducible constitutional minimum of standing contains three elements: (1) the plaintiff must have suffered an "injury in fact"—an invasion of a legally protected interest; (2) there must be a causal connection between the injury and the conduct complained-of; and, (3) the injury must be redressable by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (alteration in original) (internal quotation marks and citation omitted).

A. Injury-in-Fact

The invasion of the complained-of legally-protected interest must be: (1) actual or imminent; (2) concrete; and, (3) particularized. Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ; accord Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1548, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016).

i. Actual or Imminent

Defendants argue that Plaintiff has failed to allege an actual injury. First, they allege this is so because Plaintiff has not established it has a constitutional right to give a gift to state officers; next, because the Ethics Rules do not preclude Plaintiff from gifting its book to state officers and employees.

To establish standing, the party seeking redress must have been actually injured or, in the alternative, must be able to show that they will be imminently injured. Lujan , 504 U.S. at 560, 112 S.Ct. 2130.

The Tenth Circuit addressed the propriety of testing the merits of a plaintiff's claims for purposes of evaluating standing in Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc), cert. denied , 549 U.S. 1245, 127 S.Ct. 1254, 167 L.Ed.2d 145 (2007). The plaintiffs in Walker argued that their standing to assert a First Amendment claim derived from their alleged constitutional injury. On a motion to dismiss, the defendants argued the plaintiffs were not injured by the state constitutional provision—and thus lacked standing—because their claim on the merits was incorrect. Specifically, the defendants argued "that the First Amendment does not guarantee political success or imply a right to be heard and supported, and that the supermajority requirement place[d] no direct restriction on the speech of anyone and [left] the [p]laintiffs free to engage in full and robust political speech." Id. at 1092.

The Tenth Circuit declined to consider these merits arguments in the context of their standing review, not because the arguments were necessarily incorrect, but because the Walker defendants had "confuse[d] standing with the merits." Id. "For purposes of standing," the Tenth Circuit noted, "the question cannot be whether the Constitution, properly interpreted, extends protection to the plaintiff's asserted right or interest," because that would be a determination of the merits of the plaintiffs' claim under the guise of an evaluation of their standing. Id.

Accordingly, the Court refuses to consider—at this threshold stage of determining standing—whether the Constitution protects Plaintiff's efforts to distribute Bottleneckers. That question must be reserved for the merits analysis. See id. at 1098–1105.

Nevertheless, the Court notes that "the term ‘legally protected interest’ must do some work in the standing analysis ... [and] has independent force and meaning without any need to open the door to merits considerations at the jurisdictional stage." Id. at 1093. To be sure, Tenth Circuit precedent mandates the Court assume plaintiff's claims have legal validity. Day v. Bond , 500 F.3d 1127, 1137–38 (10th Cir. 2007). But there is still work to be done by the standing requirement, as Supreme Court precedent bars the Court from assuming jurisdiction based upon a hypothetical legal injury. See Lujan , 504 U.S. at 560, 112 S.Ct. 2130.

In this case, Plaintiff alleges it intended to distribute Bottleneckers to government officers and employees. It further alleges this conduct is arguably affected with a constitutional interest, and the Court agrees. The Supreme Court has found standing where state action proscribed similar conduct. For example, the Supreme Court found the claims in Holder v. Humanitarian Law Project justiciable because there was standing to sue. 561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). In Holder , the Supreme Court...

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