Filed: Nov. 20, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-2057 SOUTH CAROLINA CITIZENS FOR LIFE, INCORPORATED, Plaintiff - Appellant, v. KENNETH C. KRAWCHECK; MARVIN D. INFINGER; EDWARD E. DURYEA; JOHNNIE M. WALTERS; ROBERT A. BRUCE; PRISCILLA L. TANNER; SUSAN P. MCWILLIAMS, in their official capacities as commissioners of the South Carolina State Ethics Commission, Defendants – Appellees, and HENRY MCMASTER, in his official capacity as the South Carolina Attorney General, Defenda
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-2057 SOUTH CAROLINA CITIZENS FOR LIFE, INCORPORATED, Plaintiff - Appellant, v. KENNETH C. KRAWCHECK; MARVIN D. INFINGER; EDWARD E. DURYEA; JOHNNIE M. WALTERS; ROBERT A. BRUCE; PRISCILLA L. TANNER; SUSAN P. MCWILLIAMS, in their official capacities as commissioners of the South Carolina State Ethics Commission, Defendants – Appellees, and HENRY MCMASTER, in his official capacity as the South Carolina Attorney General, Defendan..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2057
SOUTH CAROLINA CITIZENS FOR LIFE, INCORPORATED,
Plaintiff - Appellant,
v.
KENNETH C. KRAWCHECK; MARVIN D. INFINGER; EDWARD E. DURYEA;
JOHNNIE M. WALTERS; ROBERT A. BRUCE; PRISCILLA L. TANNER;
SUSAN P. MCWILLIAMS, in their official capacities as
commissioners of the South Carolina State Ethics Commission,
Defendants – Appellees,
and
HENRY MCMASTER, in his official capacity as the South
Carolina Attorney General,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cv-02773-TLW)
Argued: September 24, 2008 Decided: November 20, 2008
Before WILLIAMS, Chief Judge, AGEE, Circuit Judge, and T. S.
ELLIS, III, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
Reversed and remanded by unpublished opinion. Senior Judge
Ellis wrote the opinion, in which Chief Judge Williams and Judge
Agee joined.
ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute,
Indiana, for Appellant. Christian Stegmaier, COLLINS & LACY,
Columbia, South Carolina, for Appellees. ON BRIEF: Jeffrey P.
Gallant, BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for
Appellant. Joel W. Collins, Jr., Robert F. Goings, COLLINS &
LACY, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
ELLIS, Senior District Judge:
This is an appeal from a dismissal on ripeness grounds of
an action challenging the constitutionality of two provisions of
South Carolina election law. For the reasons that follow, we
reverse and remand to the district court for decision on the
merits.
I.
South Carolina Citizens for Life, Inc. (“SCCL”) is a
nonprofit corporation established to present information to the
public on abortion, euthanasia, and related issues and to
advocate a pro-life position on these issues. One of the ways
SCCL advances its pro-life mission is to inform the public about
the positions of candidates for public office on abortion-
related issues by distributing voter guides. SCCL planned to
distribute voter guides by direct mail regarding the candidates
for the House District 79 seat prior to South Carolina’s 2006
general election, held on November 7, 2006. The group expected
to spend approximately $15,000 on the voter guides.
SCCL became concerned that this mass mailing might
implicate South Carolina election law. Specifically, SCCL
worried that it might be considered a “committee” under South
3
Carolina law if it distributed the voter guides as planned. 1 If
SCCL were a committee, it would be required to register as such,
maintain records of its expenditures, and regularly file
certified campaign reports. S.C. Code Ann. §§ 8-13-1302, -1304,
-1308. If SCCL failed to comply with these requirements, it
would risk criminal and civil penalties. Id. §§ 8-13-1510, -
1520.
On September 22, 2006, SCCL sent a letter and a sample
voter guide to the South Carolina State Ethics Commission
1
As amended in 2003, the Ethics, Government Accountability,
and Campaign Reform Act of 1991 (“Ethics Act”) defines a
“committee” as including
an association, a club, an organization, or a group of
persons which, to influence the outcome of an elective
office, receives contributions or makes expenditures
in excess of five hundred dollars in the aggregate
during an election cycle.
S.C. Code Ann. § 8-13-1300(6) (2007). The statute in turn
defines the phrase “[i]nfluence the outcome of an elective
office” as including
any communication made, not more than forty-five days
before an election, which promotes or supports a
candidate or attacks or opposes a candidate,
regardless of whether the communication expressly
advocates a vote for or against a candidate.
Id. § 8-13-1300(31)(c). The term “communication” includes “any
paid message conveyed through . . . direct mail.” Id. § 8-13-
1300(31)(c)(ii). Therefore, given that SCCL anticipated
distributing its voter guides within forty-five days of the
election at a cost of more than five hundred dollars, SCCL would
fall within the statute’s definition of a “committee” if the
voter guides were deemed to “promote[] or support[] a candidate
or attack[] or oppose[] a candidate.”
4
(“Commission”) requesting by October 1, 2006, both an informal
and a formal advisory opinion regarding whether the guide
represented a communication made to “[i]nfluence the outcome of
an elective office” under § 8-13-1300(31)(c) and whether the
planned distribution would make SCCL a “committee” under § 8-13-
1300(6). As the state agency responsible for the enforcement of
the Ethics Act, the Commission investigates alleged violations
of the statute, and after an administrative hearing may either
impose a civil penalty or refer the matter to the State Attorney
General for appropriate action. Id. § 8-13-320. The state
legislature has authorized the Commission to issue and publish
advisory opinions. 2 Id. § 8-13-320(11).
On September 29, 2006, the Executive Director of the
Commission responded to SCCL’s request. Explaining that the
Commission had not previously addressed the issues raised and
citing ongoing litigation regarding the constitutionality of
S.C. Code Ann. § 8-13-1300(31)(c), 3 the Executive Director
2
The Commission has promulgated regulations on advisory
opinions that distinguish between informal and formal opinions.
S.C. Code Regs. 52-301 to -303 (2007). The regulations specify
that “[u]pon receipt of a request for opinion, the Commission
will provide an informal advisory opinion, if appropriate.” Id.
at 52-302. The full Commission considers the request for a
formal advisory opinion at a public meeting. Id. at 52-302 to -
303.
3
See S. Carolinians for Responsible Gov’t v. Krawcheck, No.
3:06-cv-1640-MJP (D.S.C. filed May 30, 2006).
5
declined to render an informal advisory opinion and suggested
that the issue should be resolved instead by a formal advisory
opinion of the full Commission. The letter indicated that SCCL
could have its request placed on the agenda for the next
Commission meeting, scheduled for November 15, 2006.
A few days later, SCCL filed this First Amendment action in
district court, naming as defendants the members of the State
Ethics Commission. 4 SCCL challenged South Carolina’s definition
of committee as unconstitutionally overbroad and its definition
of “[i]nfluence the outcome of elective office” as both
unconstitutionally overbroad and vague. S.C. Code Ann. §§ 8-13-
1300(6), -1300(31)(c). SCCL sought a declaration that these
provisions were both facially unconstitutional and
unconstitutional as applied to it; the organization also sought
injunctive relief. Although the complaint was filed about a
month before South Carolina’s 2006 general election, SCCL
specifically asserted its intent to distribute materially
similar voter guides before future elections.
On September 27, 2007, the district court dismissed SCCL’s
action as lacking jurisdiction on the ground that it was not
ripe, concluding (i) that the case was not fit for judicial
4
SCCL also initially named Henry McMaster, the Attorney
General of South Carolina, but early on voluntarily dismissed
him as a party.
6
decision because the Commission had not taken any action against
SCCL and (ii) that SCCL would suffer no considerable hardship
from the court’s withholding consideration because there was no
“imminent threat of Commission action.” (J.A. at 208.) SCCL
timely appealed, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291 (2006).
II.
The sole issue on appeal is whether the district court
properly dismissed the suit for lack of jurisdiction. The scope
of our review is clear: “Jurisdictional questions are questions
of law properly reviewed de novo.” Charter Fed. Sav. Bank v.
Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992).
In particular, we review de novo a district court’s dismissal
for lack of ripeness. Miller v. Brown,
462 F.3d 312, 316 (4th
Cir. 2006). It is also settled that “[t]he burden of proving
ripeness falls on the party bringing suit.” Id. at 319.
The doctrine of ripeness stems from Article III’s command
that federal courts have jurisdiction only over cases or
controversies and represents one of the justiciability doctrines
designed to assess whether an actual case or controversy exists.
See Allen v. Wright, 468 U.S. 737, 750 (1984) (identifying
ripeness, along with standing, mootness, and political question,
as “doctrines that cluster about Article III”). As we have
7
noted, “[r]ipeness concerns the ‘appropriate timing of judicial
intervention.’” Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d
379, 389 (4th Cir. 2001) (quoting Renne v. Geary,
501 U.S. 312,
320 (1991)). In short, the inquiry is designed to prevent
judicial consideration of a dispute “until a controversy is
presented in clean-cut and concrete form.” Miller, 462 F.3d at
318–19 (citation and internal quotation marks omitted).
To determine whether a claim is ripe, a court must evaluate
(i) “the fitness of the issues for judicial decision” and (ii)
“the hardship to the parties of withholding court
consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967). With respect to the first prong, we have noted that
“[a] case is fit for judicial decision when the issues are
purely legal and when the action in controversy is final and not
dependent on future uncertainties.” Miller, 462 F.3d at 319.
As for the second prong, hardship “is measured by the immediacy
of the threat and the burden imposed on the [plaintiffs] who
would be compelled to act under threat of enforcement of the
challenged law.” Charter Fed. Sav. Bank, 976 F.2d at 208–09.
Importantly, because free speech can be chilled prior to
enforcement, a plaintiff bringing a First Amendment claim need
only show a “credible threat of prosecution,” rather than a
“threat of specific future harm.” See Doe v. Duling,
782 F.2d
1202, 1206 (4th Cir. 1986). And there is a presumption that a
8
credible threat of prosecution exists “when a statute on its
face restricts a party from engaging in expressive activity.”
Va. Soc’y for Human Life, 263 F.3d at 388.
These principles, applied here, compel the conclusion that
this pre-enforcement action is ripe for adjudication. First,
the issues in this First Amendment challenge are fit for
judicial decision at this time. They are purely legal, and the
South Carolina Ethics Act is final. Second, SCCL will suffer
hardship if the district court withholds consideration of these
issues. With the statute in place, SCCL may not distribute its
voter guide unless it undertakes significant compliance measures
or is willing to risk prosecution. And the threat of
prosecution is sufficiently credible since the South Carolina
statute facially restricts SCCL’s expressive activities. The
controversy is therefore ripe for review.
Nor is this a novel or surprising result; two of our
previous decisions are controlling, one of which involved
essentially identical facts. In North Carolina Right to Life,
Inc. v. Bartlett, 168 F.3d 705, 709 (4th Cir. 1999), a group
challenged, among other things, North Carolina’s definition of
“political committee” after it became concerned that it might be
considered a “committee” if it distributed a voter guide, a
status that would require it either to register and regularly
file reports or to face criminal penalties. To ascertain
9
whether that fear was well-founded, the group wrote to the State
Board of Elections, which “did not indicate that it would
interpret the statute to mean anything other than what its plain
language would suggest.” Id. at 710. Consequently, the group
refrained from distributing its guide and brought suit in
federal district court challenging North Carolina’s definition
of political committee on the ground that it included entities
that engage solely in issue advocacy. Id. at 709. On these
facts, the district court reached the merits, and we affirmed,
rejecting a case or controversy argument. In reaching this
conclusion, we noted that “this case presents a statute aimed
directly at plaintiffs who will have to take significant
compliance measures or risk criminal prosecution.” Id. at 711
(citation and internal quotation marks omitted). In holding
that the dispute constituted a case or controversy, we
necessarily found the matter to be ripe. Similarly, in Virginia
Society for Human Life, we held ripe an issue advocacy group’s
challenge to the FEC’s definition of “express advocacy,” even
though the FEC had taken no steps to initiate an enforcement
action against the group. 263 F.3d at 389–90.
None of the arguments presented by the members of the
Commission convince us that this case is distinguishable from
either North Carolina Right to Life or Virginia Society for
10
Human Life. 5 Nor do they persuade us that we should depart from
those precedents. Relying on a basis articulated by the
district court, the Commissioners first argue that the case’s
issues are not fit for judicial decision because there has been
no administrative action for the court to review, let alone
final action, and that SCCL’s claims therefore depend on
speculative future contingencies. This argument overlooks that
SCCL seeks adjudication of the constitutionality of two
provisions of state law, not judicial review of the Commission’s
actions. The challenged provisions are certainly “final and not
dependent upon future uncertainties.” Miller, 462 F.3d at 319.
With respect to the hardship prong of the ripeness inquiry,
the Commissioners first argue that the district court correctly
concluded that no hardship had been proved because SCCL failed
5
Neither the Commissioners nor the district court attempted
to distinguish North Carolina Right to Life. As for Virginia
Society for Human Life, the Commissioners assert the district
court’s conclusion that the case is distinguishable because the
FEC had taken action that injured the Virginia Society for Human
Life (“VSHL”), while the Commission simply declined to issue an
advisory opinion to SCCL. Yet, the FEC action on which the
Commissioners rely was the agency’s announcement that it would
take no action on VSHL’s petition for a rule repealing the
challenged regulation. Va. Soc’y for Human Life, 263 F.3d at
382. The FEC had taken no steps to initiate an enforcement
action and, indeed, had adopted a policy of not enforcing the
regulation in the Fourth Circuit. Id. at 386. We nonetheless
found that VSHL faced a credible threat of prosecution because
VSHL had alleged intent to engage in issue advocacy outside of
the Fourth Circuit; we also noted that the Commission could
abandon the policy with a simple vote. Id. at 387–89.
11
to show that it faced “an imminent threat of Commission action.”
(J.A. 208.) As noted above, however, the controlling cases
establish that SCCL need only show a credible threat of
prosecution, which they have done here by challenging a statute
that facially restricts their expressive activity. Second, the
Commissioners argue that SCCL will incur no hardship from the
district court’s refusal to consider their case at this time
because the compliance measures SCCL would be compelled to take
if they wished to distribute their voter guides are not
particularly burdensome. Although the parties dispute the
precise nature of these compliance measures, there is no dispute
that SCCL would at least be required to register and then
regularly file certified campaign reports regarding its
expenditures. We find these measures sufficiently burdensome to
satisfy the hardship prong of the ripeness test. Accordingly,
because the issues in this matter are fit for judicial review,
and because SCCL would incur hardship from the court’s refusal
to resolve the matter, we find this dispute ripe. 6
6
The alternative grounds asserted by the Commissioners as
supporting the district court’s dismissal—(i) that SCCL lacks
standing, (ii) that the action has become moot, (iii) that the
action should be dismissed pursuant to abstention doctrines, and
(iv) that SCCL failed to exhaust administrative remedies—also
all fail. First, SCCL has standing to bring this suit for the
reasons explained in North Carolina Right to Life and Virginia
Society for Human Life. Second, SCCL’s action is not moot
because, even though SCCL initiated this action with the hope of
(Continued)
12
III.
For the foregoing reasons, we reverse the district court’s
dismissal on ripeness grounds. The case is remanded for
consideration of the merits. 7
REVERSED AND REMANDED
being able to distribute voter guides for an election that has
passed, its complaint specifically alleges intent “to distribute
materially similar voter guides before future elections.” (J.A.
13.) Accordingly, this case “falls under the exception for a
case that is capable of repetition yet evades review because of
the length of time required for courts to resolve the matter.”
Va. Soc’y for Human Life, 263 F.3d at 390 n.3. Third,
abstention in this case is inappropriate given that “courts have
been particularly reluctant to abstain in cases involving facial
challenges based on the First Amendment because the delay
involved might itself effect the impermissible chilling of the
very constitutional right the litigant seeks to protect.” N.C.
Right to Life, 168 F.3d at 711 n.1 (citations and internal
quotation marks omitted). Finally, there is no exhaustion
requirement that bars SCCL’s claim as the “adjudication of the
constitutionality of [legislative] enactments has generally been
thought beyond the jurisdiction of administrative agencies.”
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994)
(citation and internal quotation marks omitted).
7
SCCL urged us to resolve the merits of their First
Amendment challenge on appeal, rather than remand. However, we
think it most appropriate to remand, with the expectation that
the district court will be sensitive to the frequency of
election cycles and resolve this matter expeditiously.
13
