National Right to Life v. Connor

• Decision Date: 27 March 2003
• Docket Number: No. 02-2262.,02-2262.
• Citation: 323 F.3d 684
• Parties: NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE; National Right to Life Committee, Inc.; Amarie Natividad, Treasurer of National Right to Life Political Action Committee, Appellants, v. Robert F. CONNOR, in his official capacity as Executive Director of the Missouri Ethics Commission; Sandra Donahue, in her official capacity as Chair of the Missouri Ethics Commission; James E. Spain, in his official capacity as Vice-Chair of the Missouri Ethics Commission; Philip Conger, in his official capacity as member of the Missouri Ethics Commission; Pier C. Patterson, in his official capacity as member of the Missouri Ethics Commission; Mariann Tow, in her official capacity as member of the Missouri Ethics Commission; Jeremiah W. Nixon, in his official capacity as Missouri Attorney General, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

323 F.3d 684

NATIONAL RIGHT TO LIFE POLITICAL ACTION COMMITTEE; National Right to Life Committee, Inc.; Amarie Natividad, Treasurer of National Right to Life Political Action Committee, Appellants, v. Robert F. CONNOR, in his official capacity as Executive Director of the Missouri Ethics Commission; Sandra Donahue, in her official capacity as Chair of the Missouri Ethics Commission; James E. Spain, in his official capacity as Vice-Chair of the Missouri Ethics Commission; Philip Conger, in his official capacity as member of the Missouri Ethics Commission; Pier C. Patterson, in his official capacity as member of the Missouri Ethics Commission; Mariann Tow, in her official capacity as member of the Missouri Ethics Commission; Jeremiah W. Nixon, in his official capacity as Missouri Attorney General, Appellees.

No. 02-2262.

United States Court of Appeals, Eighth Circuit.

Submitted: November 7, 2002.

Filed: March 27, 2003.

Rehearing and Rehearing En Banc Denied: April 24, 2003.

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James Bopp, Jr., argued, Terre Haute, IN (Randy Elf, on the brief), for appellant.

Paul R. Maguffee, argued, Jefferson City, MO (Jeremiah W. (Jay) Nixon, on the brief), for appellee.

Before RILEY, BEAM, and SMITH, Circuit Judges.

BEAM, Circuit Judge.

National Right to Life Political Action Committee (NRLPAC), National Right to Life Committee, Inc. (NRLC), and Amarie Natividad brought this action against the Missouri Ethics Commission (MEC) challenging the constitutionality of several Missouri election laws. The parties filed cross-motions for summary judgment, and the district court¹ granted MEC's motion with respect to one of NRLPAC and NRLC's claims and dismissed their remaining claims as non-justiciable. NRLPAC and NRLC appeal. We affirm.

I. BACKGROUND

NRLC is a national, not-for-profit corporation incorporated in Washington, D.C. Its main objectives are to educate the public on abortion-related issues and to support policies that are consistent with its pro-life agenda. It advances these objectives primarily by accepting donations and distributing literature and other communications, most commonly in the form of "voter guides" that identify candidates by their positions on abortion-related issues. Although NRLC occasionally donates money directly to candidates or candidate committees, expressly advocating the election or defeat of identified candidates is not its major purpose. NRLC established NRLPAC, an internal political action committee, to make independent expenditures for express advocacy in elections.

Prior to October 16, 2000, when then-Missouri Governor and United States Senate candidate Mel Carnahan was killed in an airplane crash, neither NRLC or NRLPAC intended to make expenditures with respect to any Missouri race in the November 7, 2000, election. Rather, NRLPAC had been vigorously advocating Carnahan's defeat in his race against then-incumbent Senator John Ashcroft. As a result of Carnahan's death, NRLPAC decided to shift its focus and efforts toward the Missouri gubernatorial race between Jim Talent and Bob Holden. NRLPAC immediately printed new political communications expressly advocating Jim Talent's election in that race. It planned to distribute these communications beginning October 17, 2000, twenty-one days before the election.

NRLPAC notified the MEC of its intention to make expenditures in the Missouri election and, according to NRLPAC, was told by an MEC staff member named Mike that the kind of expenditures NRLPAC was proposing would violate Missouri law. Specifically, Mike explained that two separate Missouri statutes prohibited committees like NRLPAC from making any independent expenditures respecting a Missouri election within thirty days of the election.² After its own examination of Missouri election law, NRLPAC concluded that, indeed, it could not make its planned expenditures. NRLC then considered whether the Missouri statutes would also prohibit it, NRLC as opposed to NRLPAC, from making its own expenditures in the election. Concluding that the thirty-day limitation would also preclude it from making independent expenditures, NRLC decided to omit any language expressly advocating the election or defeat of candidates in the gubernatorial race. In effect, NRLC converted its "express ads" into "issue ads."³

NRLC was still concerned, however, that the Missouri election laws did not appear to follow the bright-line distinction between express advocacy and issue advocacy as required by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 44, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). NRLC's lawyer sought guidance from Michael Reid, Director of Compliance at MEC, by submitting for Reid's review hypothetical statements that resembled the kind of political communications his clients "usually engage in."⁴ He asked Reid to indicate whether such statements would subject NRLC to regulation under the Missouri statutes at issue and to approve a specific legal interpretation of Missouri law regarding the Buckley bright-line test. Reid declined to issue an official ruling, stating that "[t]he Commission determines on a case by case basis whether or not advertisements or speech urges voters to vote for or against an issue or a candidate.... It would be inappropriate for me to make any qualified statements concerning your communications."

MEC practices appear, from the record, to support Reid's response. The Commission decides whether to issue official opinions, pursuant to its authority under Missouri Revised Statute section 105.955.16, only by affirmative vote of four members taken in official meetings and has not delegated authority to issue opinions to any staff members, including Reid as the Director of Compliance. Neither NRLC nor NRLPAC has ever sought an official MEC opinion concerning the Missouri election laws at issue in this case. Nor did they seek a temporary restraining order or other relief until they filed this lawsuit on the day of the 2000 election. They challenged several Missouri election laws and sought a declaratory judgment to the effect that the challenged statutes are either unconstitutional on their face or, alternatively, as applied to NRLPAC and NRLC. They also sought a permanent injunction against enforcement of the statutes.

II. DISCUSSION

Under Article III of the Constitution, federal courts "may adjudicate only actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Thus, the Supreme Court has developed justiciability doctrines that "go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so." Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). In reviewing the application of those doctrines, "[w]e presume that federal courts lack jurisdiction `unless the contrary appears affirmatively from the record,'" and "`[i]t is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.'" Id. (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546, 546 n. 8, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)).

A. Standing — Counts Two, Three, Four

In Counts Two, Three, and Four of their complaint, NRLPAC and NRLC request declaratory and injunctive relief from enforcement of Missouri Revised Statute section 130.049.⁵ In Count Two they challenge that section's prohibition on expenditures by "out-of-state committees" within thirty days of an election. In Count Three they allege that section 130.049's requirement that out-of-state committees file disclosure reports fourteen days before making expenditures or contributions is also unconstitutional. In Count Four they point to the statute's distinct treatment of committees domiciled outside of Missouri as a violation of the Privileges and Immunities Clause. The district court found that NRLPAC and NRLC lacked standing to challenge section 130.049. We agree.

In order to prove standing, a plaintiff must demonstrate: (1) an actual injury that is concrete and particularized and not conjectural or hypothetical; (2) a causal connection between the injury and the defendant's conduct; and (3) a likelihood, and not a mere speculative possibility, that the plaintiff's injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). NRLPAC and NRLC allege that section 130.049's time restrictions and distinct treatment of non-Missouri residents violate the First Amendment and the Privileges and Immunities Clause in Article IV, Section 2 of the Constitution. We find, however, that these allegations do not assert an actual injury but are instead purely conjectural or hypothetical.

Section 130.049 imposes certain deadlines and filing requirements on out-of-state committees only when those committees are not subject to the filing and other requirements in section 130.021.10.⁶ Thus, section 130.049 does not apply to committees that receive at least twenty percent of their total contributions from Missouri residents or that spend more than $1,500 on Missouri elections in a calendar year. Contributions aside, NRLPAC and NRLC have not alleged that they intended to spend less than $1,500 on communications for the 2000 election and, indeed, the record quite clearly indicates that NRLPAC's identified expenditures would have exceeded $1,500. The plain language of section 130.049 excludes NRLPAC and NRLC from its purview. The evidence offered by NRLPAC and NRLC to demonstrate that the MEC enforces section 130.049 against committees that spend more than $1,500, contrary to the statute's plain meaning, is unpersuasive and, at best, amounts to evidence of a conjectural or hypothetical injury. We agree with the district court's conclusion that the term ...