M.S. v. Brown

• Decision Date: 05 September 2018
• Docket Number: No. 16-35431,16-35431
• Citation: 902 F.3d 1076
• Parties: M.S., an individual; V.V., an individual; J.H., an individual; E.D., an individual; M.B., an individual; Familias en Accion, a domestic non-profit corporation; Los Ninos Cuentan, a domestic non-profit corporation, on behalf of themselves and all those similarly situated, Plaintiffs-Appellants, v. Kate BROWN, in her official capacity as Governor of the State of Oregon; Tammy Baney, in her official capacity as Chair of the Oregon Department of Transportation Commission; David Lohman, in his official capacity as member of the Oregon Department of Transportation Commission; Susan Morgan, in her official capacity as member of the Oregon Department of Transportation Commission; Alando Simpson, in his official capacity as member of the Oregon Department of Transportation Commission; Sean O’Halloran, in his official capacity as member of the Oregon Department of Transportation Commission; Matthew L. Garrett, in his official capacity as Director, Oregon Department of Transportation; Tom McClellan, in his official capacity as Administrator of Driver and Motor Vehicles Division, Oregon Department of Transportation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

902 F.3d 1076

M.S., an individual; V.V., an individual; J.H., an individual; E.D., an individual; M.B., an individual; Familias en Accion, a domestic non-profit corporation; Los Ninos Cuentan, a domestic non-profit corporation, on behalf of themselves and all those similarly situated, Plaintiffs-Appellants,

v.Kate BROWN, in her official capacity as Governor of the State of Oregon; Tammy Baney, in her official capacity as Chair of the Oregon Department of Transportation Commission; David Lohman, in his official capacity as member of the Oregon Department of Transportation Commission; Susan Morgan, in her official capacity as member of the Oregon Department of Transportation Commission; Alando Simpson, in his official capacity as member of the Oregon Department of Transportation Commission; Sean O’Halloran, in his official capacity as member of the Oregon Department of Transportation Commission; Matthew L. Garrett, in his official capacity as Director, Oregon Department of Transportation; Tom McClellan, in his official capacity as Administrator of Driver and Motor Vehicles Division, Oregon Department of Transportation, Defendants-Appellees.

No. 16-35431

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2018, Portland, Oregon

Filed September 5, 2018

David Henretty (argued), Monica Goracke, and Stephen S. Walters, Oregon Law Center, Portland, Oregon, for Plaintiffs-Appellants.

Jona J. Maukonen (argued) and Susan Yorke, Assistant Attorneys General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Office of the Attorney General, Salem, Oregon; for Defendants-Appellees.

Michael M. Hethmon, Senior Counsel; Dale L. Wilcox, Executive Director & General Counsel; Immigration Reform Law Institute, Washington, D.C.; for Amicus Curiae Oregonians for Immigration Reform.

Before: A. Wallace Tashima, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:

The Oregon Constitution grants the people of Oregon the power of referendum to approve or reject bills passed by the Oregon Legislature before they become law. In 2014, the people exercised this power by rejecting Senate Bill 833 ("SB 833"), which would have afforded Oregon residents access to driving privileges through the issuance of driver cards without requiring proof of their legal presence in the United States.

Plaintiffs, five Oregon residents who cannot prove their legal presence and two non-profit corporations, subsequently brought this action under 42 U.S.C. § 1983 against various state officials who are responsible for the issuance of Oregon driver’s licenses. Plaintiffs allege that the voters’ rejection of SB 833 was motivated by discriminatory animus, and that the state officials’ consequent refusal to issue driver cards violates their Fourteenth Amendment rights to equal protection and due process. Plaintiffs do not, however, challenge the initial invocation of the referendum power, which suspended the future operation of SB 833 pending voter approval.

In the context of this unchallenged and ongoing suspension of the bill’s operation, the district court dismissed the plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. In particular, the court concluded that plaintiffs failed to establish the redressability element of standing because the court could not order the state officials to implement SB 833 and thus issue driver cards. On the circumstances presented here, we agree with the district court that it cannot provide redress for plaintiffs’ claimed injury, their inability to obtain or renew driving privileges. Accordingly, we affirm the district court’s dismissal for lack of subject matter jurisdiction.

I.

A.

The facts of this case can be traced to the enactment of the REAL ID Act of 2005, Pub. L. No. 109-13 (codified in scattered sections Title 8 of the U.S. Code). When the REAL ID Act was enacted, the State of Oregon did not require its residents to prove their legal presence in the United States to obtain driver’s licenses. The REAL ID Act, however, altered this framework by providing that, effective May 2008, states must require individuals to prove their legal presence in the United States to obtain any documents that serve as a form of federally approved identification, including driver’s licenses. 49 U.S.C. § 30301 note. The REAL ID Act allows states to issue documents conferring driving privileges regardless of immigration status as long as such documents are distinguishable from driver’s licenses and other federally approved identification cards. Id.

To comply with the requirements of the REAL ID Act, the Oregon Legislature enacted SB 1080 in February 2008. SB 1080 requires applicants for driver’s licenses to prove their legal presence in the United States. Or. Rev. Stat. § 807.021(1). Pursuant to SB 1080, the Oregon Department of Motor Vehicles ("DMV") stopped granting—and presently refuses to grant—driver’s licenses to Oregon residents who are unable to prove their legal presence in the United States.

In April 2013, majorities in both chambers of the Oregon Legislature voted to enact SB 833, the bill at issue in this case, which would restore access to driving privileges for Oregon residents who cannot prove their legal presence in the United States.¹ In particular, SB 833 would authorize state officials to issue limited-use "driver cards" consistent with the REAL ID Act. As one of SB 833’s sponsors stated during a floor debate in the Oregon House, the main purpose of SB 833 was to "improve traffic safety and[ ] reduce the number of unlicensed, uninsured drivers on Oregon’s roads." The governor signed the bill on May 1, 2013, and it was set to take effect on January 1, 2014.

One week after the governor signed SB 833, however, two legislators who had opposed the bill and a third person filed a petition to refer it as a ballot measure to a state-wide referendum for approval or rejection by the people pursuant to article IV, section 1(3)(a) of the Oregon Constitution.² In October 2013, the Oregon Secretary of State determined that the petition had received the requisite number of signatures for such referral, and designated SB 833 as Measure 88 for the November 2014 election.³

As documented in the Official 2014 General Election Voter’s Pamphlet, the ensuing Measure 88 campaign was motivated by efforts to curb "illegal immigration" and prevent "illegal immigrants" from obtaining or renewing their driving privileges. Similar statements singling out "illegal aliens" were made in other public settings, including a "Protect Oregon Driver Licenses" webpage set up by a group of driver card opponents in May 2013. In addition, statements in the Official 2014 General Election Voter’s Pamphlet denounced the "Mexican" consular ID as a possible form of identification; the possibility of increased activity by "Mexican" drug cartels; and the "flood" and "surge" of "Central American minors to our southern border." Opposition statements did not mention immigrants of any other race or nationality.

On November 14, 2014, 66% of Oregon voters at the referendum election voted "No" on Measure 88, thus rejecting SB 833. As a result, SB 833 never became effective, and the State has not issued driver cards.

B.

In November 2015, individuals M.S., V.V., J.H., E.D., and M.B. and non-profit corporations Familias en Acción and Los Niños Cuentan (collectively, "M.S.") brought this putative class action under 42 U.S.C. § 1983 against Governor Kate Brown and various other state officials in their official capacities (collectively, "the Governor").⁴ M.S., an Oregon resident who is unable to prove her legal presence in the United States, alleges two violations of the Equal Protection Clause and one violation of her substantive due process rights. In particular, she alleges that the voters’ rejection of Measure 88 and the Governor’s consequent refusal to issue driver cards are unconstitutional because the referendum result was motivated by animus towards Mexicans and Central Americans and not rationally related to a legitimate state interest.⁵ M.S. does not, however, allege that the referral of SB 833 to the voters was itself unconstitutional or otherwise improper.⁶

In May 2016, the district court granted the Governor’s motion to dismiss the complaint pursuant to Rule 12(b)(1) on the basis that M.S. failed to establish the redressability element of Article III standing. The court noted at the outset that M.S. was not challenging "the referendum process associated with Measure 88 or any State action taken with respect to the referendum election." "Rather," M.S. was challenging "only the voters’ rejection of Measure 88—and, by extension, of SB 833—and the State’s alleged refusal to implement SB 833 as a result of the referendum." The district court then reasoned that "even if [it] found the rejection of Measure 88 to be unconstitutional, SB 833 would not become law" because Measure 88 did not receive the majority voter approval required under the Oregon Constitution once SB 833 was properly referred to the people for a referendum vote. The district court further reasoned that "[p]rinciples of federalism underlying the Tenth and Eleventh Amendments forbid [it] from directing the State to enact or enforce state laws." Thus, the district court concluded, M.S. failed to establish the redressability element of standing.⁷ M.S. v. Brown , 222 F.Supp.3d 908, 914 (D. Or. 2016).

M.S. timely appealed.

II.

Reviewing de novo the district court’s dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction, Davidson v. Kimberly-Clark Corp. , 889 F.3d 956, 963 (9th Cir. 2018), we conclude that M.S. lacks Article III standing to sue. We begin by reviewing relevant principles of standing. Applying those principles, we then consider whether M.S.’s claimed injury—her inability to obtain or renew driving privileges—is redressable through a favorable judicial decision. Because each of M.S.’s requested...