Wisconsin Right to Life, Inc. v. Schober

• Decision Date: 27 April 2004
• Docket Number: No. 03-3128.,03-3128.
• Citation: 366 F.3d 485
• Parties: WISCONSIN RIGHT TO LIFE, INCORPORATED and Wisconsin Right to Life Political Action Committee, Plaintiffs-Appellants, v. John C. SCHOBER, chairperson of the Wisconsin State Elections Board; and each of its members, Donald R. Goldberg, Shane Falk, Martha Love, Patrick J. Hodan, David Halbrooks, Gordon Myse, Kirby Brant, John P. Savage, and Kevin J. Kennedy, its executive director, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

366 F.3d 485

WISCONSIN RIGHT TO LIFE, INCORPORATED and Wisconsin Right to Life Political Action Committee, Plaintiffs-Appellants, v. John C. SCHOBER, chairperson of the Wisconsin State Elections Board; and each of its members, Donald R. Goldberg, Shane Falk, Martha Love, Patrick J. Hodan, David Halbrooks, Gordon Myse, Kirby Brant, John P. Savage, and Kevin J. Kennedy, its executive director, Defendants-Appellees.

No. 03-3128.

United States Court of Appeals, Seventh Circuit.

Argued January 15, 2004.

Decided April 27, 2004.

James Bopp, Jr., Bopp (argued), Coleson & Bostrom, Terre Haute, IN, for Plaintiffs-Appellants.

Thomas J. Balistreri (argued), Madison, WI, for Defendants-Appellees.

Before COFFEY, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

Plaintiffs Wisconsin Right to Life, Inc. and Wisconsin Right to Life Political Action Committee (collectively "Right to Life") brought suit against the individual members of the Wisconsin State Elections Board, seeking injunctive relief against a 2002 Wisconsin campaign finance law. Because the district court had already declared the statute to be unconstitutional in a previous case, Wisconsin Realtors Ass'n v. Ponto, 233 F.Supp.2d 1078 (W.D.Wis.2002), the district court concluded that Right to Life lacked an Article III case or controversy and dismissed the case. We affirm.

I. History

Right to Life vigorously participates in elections and promotes its views in other fora for public discussion. The Board "has general authority over and responsibility for administering the state's laws relating to elections and election campaigns." Wis. Realtors Ass'n, 233 F.Supp.2d at 1082.

In July of 2002, Wisconsin enacted a statute which included a series of changes to its campaign finance laws. See 2001 Wis. Act 109 (codified throughout Wis. Stat. § 11); see also Wis. Realtors Ass'n, 233 F.Supp.2d at 1081-83 (briefly describing the legislative history and purported effect of key provisions of the statute). The amendments were scheduled to go into effect on July 1, 2003. Many individuals and organizations, including Right to Life, that participated in Wisconsin politics were concerned that their activities would be curtailed by Act 109.

The constitutionality of the statute was in doubt from the beginning. On July 26, 2002, the State's Attorney General filed a petition with the Wisconsin Supreme Court, seeking a declaratory judgment as to the constitutionality of the amendments. Interestingly, the petition included the following disclosure: "[a]s officers of the Court ... the Office of the Attorney General must advise the Court that it has concluded that the constitutionality of the provisions noted above cannot be defended because they are plainly in conflict with well-established constitutional principles." In Re Constitutionality of the Revisions to the Wisconsin Campaign Finance Law Enacted in the 2002 Special Session of the Legislature, Pet. For Leave to Commence Original Action at 6. The Wisconsin Supreme Court declined to issue an opinion on the constitutionality of the statute.

Also on July 26, 2002, a coalition of Wisconsin political associations, not including Right to Life, filed suit in the Western District of Wisconsin to challenge the statute's constitutionality. See Wis. Realtors Ass'n, 233 F.Supp.2d at 1081. The district court, on December 11, 2002, held that one section of the statute violated the First Amendment on its face.¹ Moreover, because the statute included a non-severability clause, the court held that all of the campaign finance sections of Act 109 were "voided."² The district court enjoined the Board from enforcing the statute against the Wisconsin Realtors Ass'n plaintiffs. The Board did not appeal.

Of course, the fact that a district court declared the statute to be unconstitutional does not automatically remove the offending text from Wisconsin law. Since January of 2003, a group of legislators has attempted to formally repeal Wisconsin Act 109 and make other changes to Wisconsin law. See 2003 Senate Bill 12, available at http://www.legis.state.wi.us/2003/data/SB12hst.html. Because the bill is still pending, however, Wisconsin Act 109 remains on the books. In fact, the Board's website includes a link to the body of Wisconsin campaign finance law, including Act 109.

On January 15, 2003, Right to Life requested an Advisory Opinion from the Board on whether it would enforce the provisions of the statute — held to be unconstitutional one month earlier — against Right to Life in the next election in July of 2003. On January 28, 2003, the Board, for reasons known only to its members, summarily declined to issue such an opinion.

On July 11, 2003, after the purported effective date of the statute and less than two weeks before the special elections scheduled for July 22, Right to Life filed suit in the Western District of Wisconsin, seeking a temporary restraining order and a preliminary injunction against the Board. Right to Life feared that the Board would enforce the statute because: (1) the injunctive relief provided to the Wisconsin Realtors Ass'n plaintiffs did not extend to non-parties; and (2) the Board refused to assure Right to Life that the law would not be applied.

After the litigation ensued, the Board hastily issued a letter to Right to Life indicating that it would not enforce the law against the organization. Nevertheless, Right to Life persisted in seeking injunctive relief.

The district court below considered the pleadings of Right to Life and the Board and held a hearing. The court concluded that the case or controversy requirement, U.S. Const. art. III, § 2, was not met at the time of the commencement of the suit and dismissed the case. The district court also expounded alternate grounds for its decision by pointing to the post-litigation letter from the Board that made clear that the Board considered the statute to be unconstitutional and void, thus mooting Right to Life's case.

The district court suggested that the Board should change its website to reflect the Wisconsin Realtors Ass'n decision. The Board complied with that request, and the website now explains that by "linking its website to [Wisconsin campaign statutes], the Elections Board, in no way, is attempting to enforce, adopt[,] or apply any of the statutory language that has been held unconstitutional...." See http://elections.state.wi.us/.

II. Analysis

Under Article III of the Constitution, the judicial power of the United States extends only to cases and controversies. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). This jurisdictional requirement ensures that the resources of the federal judiciary are not expended on advisory opinions and hypothetical disputes. "Concepts such as standing, mootness[,] and ripeness assure that cases will be litigated by those having an actual stake in the outcome and that decisions will be made in an arena of real and substantial problems to be redressed by specific solutions." Jorman v. Veterans Admin., 830 F.2d 1420, 1424 (7th Cir.1987).

Here, the Board asserts that Right to Life lacks standing, or, alternately, that the case is moot. We review de novo the legal questions of standing, Plotkin v. Ryan, 239 F.3d 882, 884 (7th Cir.2001), and mootness, Fed'n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 928-29 (7th Cir.2003) ("Federation"). We review factual determinations necessary to the questions of standing and mootness for clear error, but this standard of review does not apply to the case at hand because the district court was able to dismiss on justiciability grounds without making factual findings.

A. Standing

The required elements of Article III standing are: "(i) an injury in fact, which is an invasion of a legally protected interest that is concrete and particularized and, thus, actual or imminent, not conjectural or hypothetical; (ii) a causal relation between the injury and the challenged conduct, such that the injury can be fairly traced to the challenged action of the defendant; and (iii) a likelihood that the injury will be redressed by a favorable decision." Reid L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir.2004) (quoting Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir.2003)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Right to Life, the party invoking federal jurisdiction, bears the burden of establishing standing. Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir.1999).

To satisfy the injury-in-fact requirement, Right to Life "must establish that [it] has sustained or is immediately in danger of sustaining some direct injury." Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir.2001). Because the statute has not been enforced against Right to Life (or anyone else for that matter), Right to Life needs to show a "reasonable probability" that it will suffer "tangible harm." Shimer v. Washington, 100 F.3d 506, 508 (7th Cir.1996) (quoting Hoover v. Wagner, 47 F.3d 845, 847 (7th Cir.1995)). Mere speculation is not enough to establish an injury in fact. See Tobin for Governor, 268 F.3d at 528 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).

Right to Life submits that the threat of enforcement inherent in the statute chilled its participation in the July 2003 special election and will continue to chill its speech unless the federal courts provide injunctive relief. "A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him; the threat is latent in the existence of the statute." Majors v. Abell, 317 F.3d 719, 721 (7th Cir.2003) (internal citations omitted); see Virginia v. Am. Booksellers Ass'n Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d...