New Mexicans for Bill Richardson v. Gonzales

Decision Date06 September 1995
Docket NumberNo. 94-2190,94-2190
PartiesNEW MEXICANS FOR BILL RICHARDSON, Bill Richardson, Plaintiffs-Appellants, v. Stephanie GONZALES, Secretary of State; Tom Udall, Attorney General of the State of New Mexico; Henry Valdez, District Attorney, First Judicial District, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Henry Mark Holzer (Mel E. Yost, with him on the briefs), of Scheuer, Yost & Patterson, Santa Fe, NM, for plaintiffs-appellants.

John H. Clough (Tom Udall, Attorney General, State of N.M., and Robert T. Booms, Assistant Attorney General, with him on the brief), Assistant Attorney General, Santa Fe, NM, for defendants-appellees.

Before BRORBY, LOGAN and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

The sole question presented by this appeal is whether plaintiffs' constitutional challenge to New Mexico's restriction on the use of contributions solicited for or received in a federal election campaign for purposes of a state election campaign is ripe for review. We hold that it is, and accordingly, we reverse the district court's order to the contrary.


In 1993, New Mexico enacted comprehensive election and campaign related legislation. That legislation provides, in pertinent part: "No contributions solicited for or received in a federal election campaign may be used in a state election campaign." N.M.Stat.Ann. Sec. 1-19-29.1B (1994 Cum.Supp.) (the "statute"). Violation of this provision constitutes a crime. N.M.Stat.Ann. Sec. 1-19-36.A (1994 Cum.Supp.). The plaintiffs, Congressman Bill Richardson, the elected Representative to the United States Congress from the State of New Mexico's Third Congressional district, and New Mexicans for Bill Richardson ("NMFBR"), a principal campaign committee whose purpose is to raise funds to support various political candidacies of Bill Richardson and which currently possesses approximately $500,000 in federal campaign funds for that purpose (referred to collectively as "Congressman Richardson"), filed suit in federal district court seeking a declaratory judgment and permanent injunction of this portion of the statute on the grounds it constitutes a facial violation of the First Amendment and is preempted by federal election law legislation. The suit named Stephanie Gonzales, Secretary of State of the State of New Mexico, Tom Udall, Attorney General of the State of New Mexico, and Henry Valdez, District Attorney of the First Judicial District of the State of New Mexico as defendants (referred to collectively as "New Mexico").

In response to Congressman Richardson's complaint, New Mexico filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) arguing the claim presented was not yet ripe for review. More specifically, it argued that "until such time as Congressman Richardson can represent to the Court that he intends to run for a state elective office, this matter is not ripe for adjudication. Neither he nor New Mexicans for Bill Richardson can demonstrate any concrete hardship until his plans concerning state elective office are more definite."

The facts and allegations before the district court bearing on ripeness stemmed from Congressman Richardson's complaint, affidavit, and answers to interrogatories, NMFBR's answers to interrogatories, a collection of newspaper articles, the affidavit of the treasurer of NMFBR, and the affidavit of a Congressman Richardson contributor. These documents established, inter alia, the following facts.

NMFBR's purpose "is to raise funds to support various political candidacies, past, present and future of Bill Richardson," it has nearly $500,000 on hand, and "Bill Richardson has been, and is, the beneficiary of [its] fund raising efforts." Congressman Richardson has not raised funds upon any representation that they would be used for "any specific purpose or in any particular campaign, state or federal." In his affidavit, Congressman Richardson stated:

[S]ome donors have made it clear that they would be less prone to contribute if there were any restrictions on the use of their contributions, for a state campaign or for any other purpose.... Since the challenged These same statements were given in response to New Mexico's interrogatories. Also before the district court were a number of newspaper articles spanning the last several years in which Congressman Richardson's aspirations to hold state office are apparent.

statute was enacted last spring, this attitude has caused me to be reluctant to solicit campaign funds for unrestricted purposes, including specifically for the purpose of running for state elective office.... Indeed, with regard to running for state elective office, from the beginning of my political career I have made it clear that I had an interest, one day, in serving in such a capacity.... In that connection, I can state categorically that at this time I have not foreclosed the possibility of running for state elective office at the next general election.

The affidavit of the treasurer of NMFBR made many of the same points: NMFBR raised funds on behalf of Congressman Richardson with no state/federal distinction; Congressman Richardson has made no such distinction in his fund raising efforts; and potential contributors would be less prone to donate if there were limitations on the use of their contributions.

The affidavit of John Loehr, a Congressman Richardson supporter, stated:

When my contributions to [NMFBR] were solicited, no representations were made to me that they would be used solely for a federal election campaign(s) or that they would not be used for a state election campaign(s).

When I made my contributions to [NMFBR], I did so without restriction and in the belief that my donations could, and might well, be used for a state election campaign--which I had long been aware Bill Richardson was interested in running some day. Indeed, I would have been less prone to make a political contribution to [NMFBR] if restrictions were placed on the use of that contribution(s) because I want Bill Richardson to run for state office. My contributions to [NMFBR] have been made, in part, in order to make it easy and practical for him to do so. To put the point another way: I made my contributions to Bill Richardson through [NMFBR] in contemplation of his running for state office some day.

[H]ad I known in advance that my contributions to [NMFBR] could not be used by Bill Richardson to run for state office, I probably would not have made those contributions. Indeed, if the challenged statute is held constitutional, I probably would not contribute any further sums to [NMFBR].

(Emphasis in original.)

After considering the arguments of counsel and the facts before it, the district court declined to reach the merits of Congressman Richardson's claims and instead, granted New Mexico's motion to dismiss on the ground that the controversy was not yet ripe for review. More specifically, the district court held:

Because plaintiffs have expressed no firm interest in spending money in connection with a state election campaign and Congressman Richardson has shown no definite interest in running for state elective office, plaintiffs are not currently forced to choose between violating the law and pursuing their first amendment rights. There is no impact on plaintiffs which is "sufficiently direct and immediate." In its current posture this case fails to portray plaintiffs suffering substantial hardship as a result of my withholding judicial review. Of course, if plaintiffs sometime in the future present a more detailed and solid factual record regarding their intentions to expend funds in connection with a state election campaign, plaintiffs would not be precluded from again seeking relief in this court.

Congressman Richardson brings this appeal seeking review of the district court's order concluding the challenge to New Mexico's law is not yet ripe for review.

Standard and Scope of Review

The question of whether a claim is ripe for review bears on a court's subject matter jurisdiction under the case or controversy clause of Article III of the United States Constitution. See, e.g., ACORN v. Tulsa, 835 F.2d 735, 738 (10th Cir.1987). The question of ripeness, like other challenges to a court's subject matter jurisdiction, is treated as a motion under Rule 12(b)(1). See Fed.R.Civ.P. 12(b)(1); St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989); 5 Wright & Miller, Federal Practice & Procedure; Civil 2d Sec. 1350 (1969). It is the burden of the complainant to allege facts demonstrating the appropriateness of invoking judicial resolution of the dispute. Renne v. Geary, 501 U.S. 312, 317, 111 S.Ct. 2331, 2337, 115 L.Ed.2d 288 (1991). A Rule 12(b)(1) motion can challenge the substance of a complaint's jurisdictional allegations in spite of its formal sufficiency by relying on affidavits or any other evidence properly before the court. "It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." St. Clair, 880 F.2d at 201. Ripeness is a question of law, which we review de novo. Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995). With these principles in mind, we turn to the question of ripeness.

Ripeness and the First Amendment

In order for a claim to be justiciable under Article III, it must be shown to be a ripe controversy. "[R]ipeness is peculiarly a question of timing," Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320 (1975), intended "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements," Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In short, the...

To continue reading

Request your trial
294 cases
  • Correll v. Herring
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 11, 2016
    ...Amendment cases because chilling may result in irreparable loss. Cooksey , 721 F.3d at 240 (relying on New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495, 1500 (10th Cir.1995)).22 By virtue of the Fourteenth Amendment, these First Amendment precepts apply fully to the States. Id.23......
  • Sullivan v. City of Augusta, No. CV-04-32-B-W.
    • United States
    • U.S. District Court — District of Maine
    • December 22, 2005
    ...of the ripeness criteria"); Currence v. City of Cincinnati, 28 Fed.Appx. 438, 443 (6th Cir.2002); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995). The First Circuit has explained that the rationale behind this relaxation stems from fear of irretrievable loss......
  • Higgs v. U.S.A, Civil No. PJM 05-3180.
    • United States
    • U.S. District Court — District of Maryland
    • April 6, 2010
    ...and immediate dilemma for the parties” that compels judicial resolution of the issue at this time. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir.1995). This claim also fails because it is improperly brought as a § 2255 claim. Under § 2255, federal courts hav......
  • Fusaro v. Howard
    • United States
    • U.S. District Court — District of Maryland
    • July 14, 2020
    ...ripe, often commenting directly on the special need to protect against any inhibiting chill.’ " Id. (quoting Bill Richardson v. Gonzales , 64 F.3d 1495, 1500 (10th Cir. 1995) ).The electoral process restriction is, as the Fourth Circuit has noted, a content-based restriction, in that it fac......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT