Filed: Apr. 22, 2013
Latest Update: Mar. 28, 2017
Summary: 10-4572-cv National Organization for Marriage, Inc. v. Walsh UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2011 (Argued: August 24, 2011 Decided: April 22, 2013) Docket No. 10-4572-cv _ NATIONAL ORGANIZATION FOR MARRIAGE, INC., Plaintiff-Appellant, -v.- JAMES WALSH, in his official capacity as co-chair of the New York State Board of Elections, DOUGLAS KELLNER, in his official capacity as co-chair of the New York State Board of Elections, EVELYN AGUILA, in her official capa
Summary: 10-4572-cv National Organization for Marriage, Inc. v. Walsh UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2011 (Argued: August 24, 2011 Decided: April 22, 2013) Docket No. 10-4572-cv _ NATIONAL ORGANIZATION FOR MARRIAGE, INC., Plaintiff-Appellant, -v.- JAMES WALSH, in his official capacity as co-chair of the New York State Board of Elections, DOUGLAS KELLNER, in his official capacity as co-chair of the New York State Board of Elections, EVELYN AGUILA, in her official capac..
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10-4572-cv
National Organization for Marriage, Inc. v. Walsh
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2011
(Argued: August 24, 2011 Decided: April 22, 2013)
Docket No. 10-4572-cv
_____________________
NATIONAL ORGANIZATION FOR MARRIAGE, INC.,
Plaintiff-Appellant,
-v.-
JAMES WALSH, in his official capacity as co-chair of the New York State Board of Elections,
DOUGLAS KELLNER, in his official capacity as co-chair of the New York State Board of
Elections, EVELYN AGUILA, in her official capacity as commissioner of the New York State
Board of Elections, GREGORY PETERSON, in his official capacity as commissioner of the New
York State Board of Elections,
Defendants-Appellees.
_______________________
Before:
NEWMAN, HALL, Circuit Judges, PRESKA,1 Chief District Judge.
_______________________
Plaintiff-Appellant, a nonprofit advocacy organization, sued Defendants-Appellees,
officials of the New York State Board of Elections, seeking a declaratory judgment that the
“political committee” definition of New York Election Law § 14-100.1 violates the First
Amendment to the United States Constitution, and requesting preliminary and permanent
injunctions barring the enforcement of the law. The district court dismissed the case for lack of
1
Hon. Loretta A. Preska, of the United States District Court for the Southern District of
New York, sitting by designation.
subject-matter jurisdiction. We hold that Plaintiff’s claims were ripe for adjudication and are not
moot. We therefore vacate the judgment of the district court dismissing the case, and remand to
the district court for further consideration. Judge Newman dissents in a separate opinion.
VACATED AND REMANDED.
_______________________
RANDY ELF (James Bopp, Jr., Jeffrey P.
Gallant, Austin J. Hepworth, James Madison
Center for Free Speech, and Laurence Behr,
Barth Sullivan Behr, Buffalo, NY, on the
brief), James Madison Center for Free
Speech, Terre Haute, IN, and as substitute
counsel Kaylan L. Phillips, ActRight Legal
Foundation, Washington, DC, and John C.
Eastman, Center for Constitutional
Jurisprudence, Orange, CA, for Plaintiff-
Appellant.
KENNETH A. MANNING (Michael B. Powers,
Craig R. Bucki, on the brief) Phillips Lytle
LLP, Buffalo, NY, for Defendants-Appellees
Douglas Kellner and Evelyn Aquila.
Justin E. Driscoll, Brown & Weinraub,
PLLC, Albany, NY, for Defendants-
Appellees James Walsh and Gregory
Peterson.
_______________________
Hall, Circuit Judge:
Plaintiff-Appellant the National Organization for Marriage (“NOM”) appeals from the
judgment of the United States District Court for the Western District of New York (Arcara, J.)
dismissing its amended complaint for lack of subject-matter jurisdiction. Contrary to the district
court, we hold that NOM pleaded a ripe “case or controversy” necessary to confer Article III
jurisdiction. Prudential considerations related to ripeness do not bar review. Moreover, the case
is not moot. We therefore vacate the judgment of the district court dismissing the case, and
2
remand for the district court to consider, in the first instance, whether to dismiss NOM’s
complaint on the merits.
I. Background
On September 16, 2010, NOM filed its complaint in federal district court seeking a
declaratory judgment that New York Election Law § 14-100.1, which defines the term “political
committee” for the purposes of state elections, violates the First Amendment to the United States
Constitution. NOM also requested a preliminary and a permanent injunction barring the
enforcement of the law. In the complaint, which named as Defendants four members of the New
York State Board of Elections in their official capacity, NOM identified itself as a “non-
sectarian,” “non-partisan,” and “non-profit corporation.”2 Although the complaint itself did not
describe NOM’s mission, an exhibit attached to the complaint explained that NOM is dedicated
to opposing same-sex marriage. In furtherance of that goal, NOM asserted that it would seek, in
September and October 2010, “to engage in multiple forms of speech in New York,” including
direct mailings and television, radio, and internet advertisements.3 NOM alleged that the threat
of being labeled a “political committee” chilled this form of protected speech. Defendants
moved to dismiss the complaint, arguing inter alia that NOM’s claim was not ripe because the
Board of Elections had not yet threatened any enforcement of the challenged election law
provisions.
2
Because the district court dismissed this case at the pleading stage, we recite the facts as
found in NOM’s complaint. Our review encompasses not only the complaint itself, but also “any
documents attached thereto or incorporated by reference and documents upon which the
complaint relies heavily.” Bldg. Indus. Elec. Contractors Ass’n v. City of N.Y., 678 F.3d 184,
187 (2012) (quotation marks omitted).
3
Examples of these advertisements were attached as exhibits.
3
NOM, in response, filed a more developed amended complaint. The amended complaint
alleged that NOM sought in September 2010 and would seek in October 2010 to directly
advocate, by various means, for the election of certain candidates for state wide political office.
NOM further asserted that it intended to engage in “materially similar” speech in “materially
similar situations in the future.” Although NOM disclaimed any intention to coordinate its
express advocacy with any candidate or candidate committee or political party, or to contribute
to any of these entities, NOM maintained that its express advocacy for candidates could render it
a “political committee” for the purposes of § 14-100.1.
Section 14-100.1 provides, in full, that
“political committee” means any corporation aiding or promoting and any
committee, political club or combination of one or more persons operating or co-
operating to aid or to promote the success or defeat of a political party or
principle, or of any ballot proposal; or to aid or take part in the election or defeat
of a candidate for public office or to aid or take part in the election or defeat of a
candidate for nomination at a primary election or convention, including all
proceedings prior to such primary election, or of a candidate for any party
position voted for at a primary election, or to aid or defeat the nomination by
petition of an independent candidate for public office; but nothing in this article
shall apply to any committee or organization for the discussion or advancement of
political questions or principles without connection with any vote or to a national
committee organized for the election of presidential or vice-presidential
candidates; provided, however, that a person or corporation making a contribution
or contributions to a candidate or a political committee which has filed pursuant
to [New York Election Law §] 14-118 shall not, by that fact alone, be deemed to
be a political committee as herein defined.
According to the amended complaint, and confirmed by affidavits the Defendants filed in
connection with their opposition to NOM’s motion for a preliminary injunction, “political
committees” must: (1) file a registration statement and designate a treasurer, see N.Y. Elec. Law
§ 14-118; (2) maintain certain financial records, see §§ 14-102, 14-108, 14-122; and (3) make
periodic reports based on these records to the Board of Elections disclosing, inter alia,
contributions received and expenditures made, see id. §§ 14-102, 14-104. NOM feared that if it
4
failed to comply with these provisions of New York law, it would be subject to state civil and
criminal liability. NOM also asserted (without explanation) that New York law “chills [it] from
proceeding with its speech.” As with the first complaint, NOM attached numerous exhibits to its
complaint showing the type of mailings and broadcasts NOM wanted to propagate, declaring that
it would engage in these activities “only if the [district c]ourt grants the requested relief.”
The district court accepted NOM’s amended complaint as a superseding pleading
pursuant to Fed. R. Civ. P. 15(a)(1) and dismissed the case for lack of jurisdiction. The district
court observed that the complaint did not allege that NOM had tried to ascertain its status with
the Board of Elections, nor that the Board had attempted to enforce the “political committee”
definition of § 14-100.1 against NOM. In the district court’s view, this meant NOM’s claims
were not ripe because it had no “actual and well-founded fear that the law w[ould] be enforced
against it.” The court concluded by surmising “at least a notable chance” that NOM could avoid
the political committee designation altogether by virtue of the savings clause of § 14-100.1,
which exempts entities not involved with elections.4
II. Discussion
We review de novo a district court’s determination that it lacks subject-matter jurisdiction
on ripeness grounds. Connecticut v. Duncan, 612 F.3d 107, 112 (2d Cir. 2010) (“A district
court’s ripeness determination is . . . a legal determination subject to de novo review.);
Nutritional Health Alliance v. Shalala,
144 F.3d 220, 225 (2d Cir. 1998) (“Ripeness is a
constitutional prerequisite to exercise of jurisdiction by the federal courts.”). In addition, we
have an independent duty to consider other aspects of subject-matter jurisdiction nostra sponte.
See Kalson v. Paterson,
542 F.3d 281, 286 n.10 (2d Cir. 2008) (“The fact that neither party
4
The district court also denied NOM’s motion for reconsideration, a judgment NOM
does not appeal.
5
raised a jurisdictional issue on appeal is of no matter; we are obligated to determine whether
jurisdiction exists nostra sponte.”).
A. Ripeness
To be justiciable, a cause of action must be ripe—it must present “a real, substantial
controversy, not a mere hypothetical question.” AMSAT Cable Ltd. v. Cablevision of Conn., 6
F.3d 867, 872 (2d Cir. 1993). Ripeness “is peculiarly a question of timing.” Thomas v. Union
Carbide Agric. Prods. Co.,
473 U.S. 568, 580 (1985). A claim is not ripe if it depends upon
“contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id.
at 580-81. The doctrine’s major purpose “is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v.
Gardner,
387 U.S. 136, 148 (1967), overruled on other grounds by Califano v. Sanders,
430
U.S. 99, 105 (1977).
“The ripeness doctrine is drawn both from Article III limitations on judicial power and
from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v.
Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks omitted). Thus, the
doctrine implicates two distinct conceptual jurisdictional criteria. Simmonds v. INS,
326 F.3d
351, 356-57 (2d Cir. 2003).
Both [criteria] are concerned with whether a case has been brought
prematurely, but they protect against prematureness in different ways and for
different reasons. The first of these ripeness requirements has as its source the
Case or Controversy Clause of Article III of the Constitution, and hence goes, in a
fundamental way, to the existence of jurisdiction. The second is a more flexible
doctrine of judicial prudence, and constitutes an important exception to the usual
rule that where jurisdiction exists a federal court must exercise it.
These two forms of ripeness are not coextensive in purpose.
Constitutional ripeness is a doctrine that, like standing, is a limitation on the
power of the judiciary. It prevents courts from declaring the meaning of the law
in a vacuum and from constructing generalized legal rules unless the resolution of
6
an actual dispute requires it. But when a court declares that a case is not
prudentially ripe, it means that the case will be better decided later and that the
parties will not have constitutional rights undermined by the delay. It does not
mean that the case is not a real or concrete dispute affecting cognizable current
concerns of the parties within the meaning of Article III. . . . Prudential ripeness
is, then, a tool that courts may use to enhance the accuracy of their decisions and
to avoid becoming embroiled in adjudications that may later turn out to be
unnecessary or may require premature examination of, especially, constitutional
issues that time may make easier or less controversial.
Id. at 357 (citations omitted).
1. Constitutional Ripeness
Often, the best way to think of constitutional ripeness is as a specific application of the
actual injury aspect of Article III standing. The “irreducible constitutional minimum of standing
contains three elements”: (1) “the plaintiff must have suffered an injury in fact,” i.e., “an
invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the
injury and the conduct complained of”; and (3) “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992) (quotation marks, citations, alterations, and footnotes
omitted). Constitutional ripeness, in other words, is really just about the first Lujan factor—to
say a plaintiff’s claim is constitutionally unripe is to say the plaintiff’s claimed injury, if any, is
not “actual or imminent,” but instead “conjectural or hypothetical.”5 See id. at 560; see also New
5
Views such as Judge Leval’s concurrence in Bronx Household of Faith v. Board of
Education of City of New York, 492 F.3d 89, 111 (2d Cir. 2007) (Leval, J., concurring) (agreeing
that “[r]ipeness overlaps in some respects with standing,” but noting that “the central concerns of
ripeness doctrine are somewhat distinct from standing”), are not to the contrary. As Judge Leval
noted, constitutional standing and constitutional ripeness are somewhat different in practice. To
say a party’s claims are not ripe acknowledges, at least impliedly, that they someday might be.
See id. (“The concept of ripeness assumes that the relationship between the parties might at some
point ripen into an injury sufficiently direct and realized to satisfy the requirements of Article III
standing.”). Denying standing is more categorical. Logically, however, there is no difference.
7
York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 n.8 (2d Cir. 2008) (“Standing and
ripeness are closely related doctrines that overlap most notably in the shared requirement that the
plaintiff's injury be imminent rather than conjectural or hypothetical.” (quotation marks and
alterations omitted)); Ross v. Bank of Am., N.A.(USA),
524 F.3d 217, 226 (2d Cir. 2008) (because
the ripeness and standing doctrines “overlap,” claims that were sufficiently “actual and
imminent” to establish Article III standing also were ripe for adjudication, “not merely
speculative or hypothetical”).6
Despite the language of Lujan and similar cases, however, we assess pre-enforcement
First Amendment claims, such as the ones NOM brings, under somewhat relaxed standing and
ripeness rules. A plaintiff must allege something more than an abstract, subjective fear that his
rights are chilled in order to establish a case or controversy. See Laird v. Tatum, 408 U.S. 1, 13-
14 (1972). But a real and imminent fear of such chilling is enough. As the Eleventh Circuit has
explained, without the possibility of pre-enforcement challenges, plaintiffs contesting statutes or
regulations on First Amendment grounds “face an unattractive set of options if they are barred
from bringing a facial challenge”: refraining from activity they believe the First Amendment
From a constitutional perspective, it does not matter whether one case might someday “ripen”
into an imminent or actual controversy, and the other might not. In both scenarios, there simply
is no present case or controversy sufficient to satisfy the strictures of Article III.
6
For this reason, we consider the parties’ constitutional standing and constitutional
ripeness challenges together. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8
(2007) (“[S]tanding and ripeness boil down to the same question in this case.”); Brooklyn Legal
Servs. Corp. v. Legal Servs. Corp.,
462 F.3d 219, 225-26 (2d Cir. 2006), abrogated on other
grounds by Bond v. United States,
131 S. Ct. 2355, 2361 (2011) (“Because [the] ripeness
arguments concern only th[e] shared requirement” that the injury be imminent, “our analysis of
[the] standing challenge applies equally and interchangeably to [the] ripeness challenge. We
therefore do not address ripeness separately, but consider it together with, and as part of, the
standing inquiry.”).
8
protects, or risk civil or criminal penalties for violating the challenged law. Fla. League of Prof’l
Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir. 1996).
This distinction explains our holding in Vermont Right to Life Committee, Inc. v. Sorrell,
221 F.3d 376, 382 (2d Cir. 2000). In that case, Vermont statutory provisions required “political
advertisements” to contain certain disclosures and mandated that expenditures for some “mass
media activities” be reported to the state. Id. at 379. The plaintiff, a pro-life nonprofit
organization, brought suit under 42 U.S.C. § 1983, seeking a declaratory judgment that the
provisions were facially unconstitutional under the First Amendment and seeking an injunction
barring the defendants, a group of state officials sued in their official capacities, from enforcing
the law. Id. When it filed suit, the plaintiff had not been charged with violating any of the
challenged provisions. Id. at 381. The plaintiff believed, however, that its advocacy activities
did not comply with the law, and it maintained that it would cease its non-compliant behavior
unless the provisions were declared unconstitutional. Id. We acknowledged that the usual
standing rules applied, but, citing well-established Supreme Court precedent, we also recognized
that “[a] plaintiff bringing a pre-enforcement facial challenge against a statute need not
demonstrate to a certainty that it will be prosecuted under the statute to show injury, but only that
it has an actual and well-founded fear that the law will be enforced against it.” Id. at 382
(quoting Virginia v. Am. Booksellers Ass’n,
484 U.S. 383, 393 (1988) (quotation marks
omitted)). “The alleged danger of the statute is, in large measure, one of self-censorship; a harm
that can be realized even without an actual prosecution.” Id. (quotation marks and alterations
omitted). “When the plaintiff has alleged an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a credible
threat of prosecution thereunder,” that plaintiff “should not be required to await and undergo a
9
criminal prosecution as the sole means of seeking relief.” Id. (quoting Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
In Vermont Right to Life Committee, it did not matter that the law at issue imposed only
civil, and not criminal, liability. Id. (“The fear of civil penalties can be as inhibiting of speech as
can trepidation in the face of threatened criminal prosecution.”). Nor did it make a difference
that the state denied that the plaintiff actually was subject to the challenged law. Id. What
mattered was that the plaintiff faced a “credible threat” that the law would be enforced against it.
Id. That was enough to give standing.
This case is no different from Vermont Right to Life Committee, and NOM’s claims are
ripe. Attached to NOM’s complaint was an example of a radio advertisement NOM wanted to
broadcast in New York:
Think legalizing same-sex marriage doesn’t affect your family?
....
Legalizing gay marriage has consequences for kids. Massachusetts
schools teach second graders that boys can marry other boys. A California public
school took first graders to a same-sex wedding, calling it “a teachable moment.”
Kids have enough to deal with already, without pushing gay marriage on
them. And it’s not just kids who’ll face the consequences.
The rights of people who think marriage means a man and a woman will
no longer matter: We’ll all have to accept same-sex marriage whether we like it
or not.
Carl Paladino knows that in these troubled times in New York, we don’t
have time to push gay marriage on New York families.
This Election Day, vote for Carl Paladi[n]o for governor.
As the election approaches, tell your family and friends to vote for Carl
Paladino. He’ll stand up for marriage between one man and one woman.
Paid for by National Organization for Marriage
10
Comparing that proposed advertisement with the plain text of § 14-100.1, which says,
among other things, that a “political committee” is an organization working “to promote
the success or defeat of a political party or principle, or of any ballot proposal; or to aid
or take part in the election or defeat of a candidate for public office,” NOM plausibly
contends that it would have been a “political committee” under New York law if it had
aired its commercials during the fall of 2010.
In holding NOM’s claimed injury was “too remote,” the district court relied in
part on the savings clause of § 14-100.1. It reasoned that the provision exempting “any
committee or organization for the discussion or advancement of political questions or
principles without connection with any vote or to a national committee organized for the
election of presidential or vice-presidential candidates” meant that NOM had a “notable
chance” of avoiding enforcement. But NOM’s complaint contends, and the
advertisements attached to its complaint demonstrate, that it wanted expressly to connect
its speech to particular candidates and elections. We thus give credence to NOM’s
assertion that it “fears it is a political committee under New York law,” which “chills
[NOM] from proceeding with its speech.” That is enough to make the complaint ripe.
2. Prudential Ripeness
Having dismissed the case on constitutional ripeness grounds, the district court had no
occasion to consider Defendants’ prudential ripeness arguments. We consider them briefly.
To determine whether to abstain from a case on prudential ripeness grounds, “we proceed
with a two-step inquiry, requiring us to evaluate both the fitness of the issues for judicial
decision and the hardship to the parties of withholding court consideration.” Grandeau, 528 F.3d
11
at 131-32 (quotation marks and citation omitted).7 “The ‘fitness’ analysis is concerned with
whether the issues sought to be adjudicated are contingent on future events or may never occur.”
Id. at 132 (quotation marks and citation omitted). “In assessing this possibility of hardship, we
ask whether the challenged action creates a direct and immediate dilemma for the parties.” Id. at
134.
Assessment of both factors counsels against abstention. Although “the factual record is
not yet fully developed,” the dispute primarily “presents legal questions and there is a concrete
dispute between the parties.” Sharkey v. Quarantillo, 541 F.3d 75, 89 (2d Cir. 2008). The issues
presented have sharpened into a live case which is “fit for judicial decision.” See id. What
future contingencies remain, see Grandeau, 528 F.3d at 132, are not determinative of the
questions before us. It is true that the New York Board of Elections, in Defendants’ words, has
made “no specific effort . . . to classify NOM as a political committee.” But there is nothing in
the record to indicate that the Board of Elections must specifically find NOM to be a “political
committee” for NOM to meet that definition. Rather, on the face of the statute, the designation
“political committee” appears to be self-executing. And NOM’s complaint asserts that it meets
all the elements of § 14-100.1 to merit such classification. Thus, it appears NOM would have no
warning of imminent enforcement by the Board of Elections, beyond NOM’s own knowledge
that it was violating the law.8 It is disingenuous for Defendants to insinuate that New York
might not enforce § 14-100.1 against NOM, when the statute quite clearly applies to NOM’s
7
This two-step inquiry also may bear on the constitutional ripeness analysis. See id. at
132 n.9.
8
At oral argument, we asked Appellees to submit a supplemental letter elaborating on
this point. That letter confirms that, on NOM’s request, the New York State Board of Elections
would have provided an opinion letter indicating whether NOM’s activities would classify it as a
“political committee.” See Appellees’ Letter, Aug. 30, 2011, at 1. There is no indication,
however, that such a letter is required before an organization can be labeled a “political
committee.”
12
activities, at least as NOM alleges them to be, and when Defendants’ counsel, at oral argument,
stated that the New York Board of Elections currently regulates approximately 11,000 “political
committees.”
Defendants’ contention that NOM failed to describe the “materially similar” situations in
which it planned to speak in the future is similarly unpersuasive. For one thing, at the time NOM
brought suit, it presented the court with several advertisements it wanted to broadcast
immediately, not in the future. For ripeness purposes, its future plans are of less relevance.9
Further, NOM’s mere statement that its future speech will be “materially similar” to the 2010
advertisements is sufficiently precise. To the extent the advertisements it provided to the district
court render NOM susceptible to the “political committee” definition, similar advertisements in
the future probably will too.
Whether NOM will suffer hardship if we withhold our ruling is an even easier question to
answer. NOM asserts that it will have to submit to a definition it believes is unconstitutional. If
NOM is right on the merits, forcing it to break the law before we will answer the constitutional
question “creates a direct and immediate dilemma,” and a significant hardship. Grandeau, 528
F.3d at 134. There is no prudential reason to abstain.
B. Mootness
Because NOM’s complaint concerns the 2010 election cycle, which has now long passed,
NOM must overcome a second procedural hurdle—mootness. Defendants’ brief does not
address mootness (NOM’s does). Federal courts have no constitutional power to consider a
moot case, which does not present a live controversy. See Irish Lesbian & Gay Org. v. Giuliani,
143 F.3d 638, 647 (2d Cir. 1998) (“The mootness doctrine is derived from the constitutional
9
They are, of course, relevant for mootness purposes. Mootness is discussed infra at
Section II.B.
13
requirement that federal courts may only decide live cases or controversies.”). We thus have a
duty to consider mootness nostra sponte. See Kalson, 542 F.3d at 286.
Although the November 2010 election is over, this case is not moot, for it falls within the
judicially created exception for cases “capable of repetition, yet evading review.” See FEC v.
Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007). “The exception applies where (1) the
challenged action is in its duration too short to be fully litigated prior to cessation or expiration,
and (2) there is a reasonable expectation that the same complaining party will be subject to the
same action again.” Id. (quotation marks omitted); see also, e.g., Porter v. Jones,
319 F.3d 483,
490 (9th Cir. 2003) (“Election cases often fall within this exception, because the inherently brief
duration of an election is almost invariably too short to enable full litigation on the merits.”).
This case is like Wisconsin Right to Life. NOM’s complaint clearly alleges that the organization
plans to do “materially similar” advertising in “materially similar situations in the future,” and
consequently that “New York law will apply to NOM as it does now.” NOM’s “injury of self-
censorship is capable of repetition yet evading review.” Cal. Pro-Life Council, Inc. v. Getman,
328 F.3d 1088, 1095 n.4 (9th Cir. 2003).
C. Merits
Having determined that NOM’s case presents a live controversy that is ripe for
consideration, we must vacate the district court’s determination that it lacked jurisdiction.
Because that conclusion prevented the district court from reaching the merits of NOM’s claims,
we decline to comment on the substance of NOM’s claims in the first instance. As ours is not a
court of first review, “when we reverse on a threshold question, we typically remand for
resolution of any claims the lower courts’ error prevented them from addressing.” Zivotofsky ex
rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430 (2012); see, e.g., PDK Labs., Inc. v. United
14
States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in
part and concurring in judgment) (stating “the cardinal principle of judicial restraint—if it is not
necessary to decide more, it is necessary not to decide more—counsels us to go no further.”).
We therefore remand this case for further proceedings leaving the initial determination of the
merits to the district court.
III. Conclusion
The judgment of the district court dismissing this case is VACATED, and the case is
REMANDED to the district court for further proceedings.
15
Docket No. 10-4572
National Organization for Marriage v. Walsh
Jon O. Newman, Circuit Judge, dissenting:
1 The National Organization for Marriage (“NOM”), an advocacy
2 organization, seeks a ruling from a federal district court that
3 New York’s definition of a “political committee,” see N.Y. Elec.
4 Law § 14-100.1, violates the First Amendment. NOM seeks such a
5 ruling to avoid compliance with various requirements imposed on a
6 “political committee,” such as registration, see id. § 14-118,
7 maintenance of records, see id. §§ 14-102, -108, -122, and filing
8 reports of contributions and expenditures, see id. §§ 14-102, -
9 104. Because no New York official has expressed the view that NOM
10 is a “political committee” and the New York State Board of
11 Elections (“Board of Elections”) has advised us of its
12 willingness to respond to an inquiry from NOM as to whether the
13 Board would classify NOM as a “political committee,” NOM’s
14 lawsuit is not now ripe for adjudication, as the District Court
15 correctly ruled, see National Organization for Marriage, Inc. V.
16 Walsh, No. 10-cv-751A, 2010 WL 4174664, at *4 (W.D.N.Y. Oct. 25,
17 2010). From the majority’s contrary ruling, I respectfully
18 dissent.
19 As the majority recognizes, NOM is obliged to assert “an
20 invasion of a legally protected interest which is...actual or
21 imminent, not conjectural or hypothetical.” Lujan v. Defenders of
1
1 Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks
2 and citations omitted). I recognize that in some circumstances a
3 pre-enforcement challenge may be brought to adjudicate the
4 validity of statutes alleged to violate the First Amendment. See,
5 e.g., Vermont Right to Life Committee v. Sorrell,
221 F.3d 376
6 (2d Cir. 2000). I also recognize that a plaintiff intending to
7 engage in conduct arguably proscribed by statute need not subject
8 itself to criminal prosecution or the imposition of civil
9 penalties to test its First Amendment claim. Finally, I also
10 recognize that in some circumstances, a plaintiff’s own
11 apprehension that it will be subject to allegedly
12 unconstitutional state law requirements can suffice to permit a
13 pre-enforcement challenge. But such apprehension cannot suffice
14 in circumstances, like those in this case, where the relevant
15 regulatory body (a) has given no indication that the challenged
16 regulations apply to the plaintiff, (b) stands ready to respond
17 to an inquiry as to whether the challenged regulations apply to
18 the plaintiff, and (c) is required to afford the plaintiff notice
19 in the event the body intends to depart from advice that the
20 regulations do not apply. In such circumstances, the plaintiff’s
21 fear of adverse consequence cannot be said to be “well-founded,”
22 id. At 382.
23 We recently upheld an as-applied challenge to state
24 regulations alleged to impair First Amendment rights where the
2
1 relevant regulatory body declined to give pre-enforcement advice
2 that would have clarified the meaning of the regulations. See
3 Hayes v. New York State Attorney Grievance Committee, 672 F.3d
4 158, 170 (2d Cir. 2012). In the pending case, however, the Board
5 of Elections, responding to our inquiry at oral argument, has
6 commendably advised that it “would respond to a letter
7 questioning whether an entity’s activities would classify it as a
8 ‘political committee’ pursuant to New York Elections Law § 14-
9 100(1).” Letter from Craig R. Bucki, counsel to Defendants-
10 Appellees, to Catherine O’Hagan Wolfe, Clerk of Court, at 1 (Aug.
11 30, 2011). The Board noted that it has issued formal opinions in
12 reply to inquiries, see, e.g., 1975 N.Y. State Bd. of Elections
13 Opinion # 13, 1976 N.Y. State Bd. of Elections Opinion #5. The
14 Board also noted that it responds to “telephone requests for
15 informal advice as to whether an entity constitutes a political
16 committee.” Bucki letter, at 1.
17 In Vermont Right to Life Committee State officials sought to
18 preclude a pre-enforcement challenge on the ground that they had
19 no intention of enforcing challenged regulations against the
20 plaintiff. 221 F.3d at 383. We properly rejected the State’s
21 claim that the plaintiff’s fear of suit was not well-founded
22 because “there is nothing to prevent the State from changing its
23 mind.” Id. The majority contends that the pending case “is no
24 different from Vermont Right to Life Committee, [slip op. P. __]
3
1 but that assertion overlooks a crucial difference between that
2 case and ours. Not only does the Board of Elections stand ready
3 to advise NOM whether it is considered to be a “political
4 committee,” but the Board recognizes that, in the event that it
5 advises that NOM is not a “political committee,” the Board may
6 not change its mind without giving NOM the prior notice required
7 by Williams v. Solafani, 444 F. Supp. 906, 912 (S.D.N.Y. 1978),
8 aff’d sub nom. Williams v. Velez,
580 F.2d 1046 (mem. 1978).
9 Furthermore, if the Board were unreasonably to delay either its
10 response to NOM’s inquiry or its notice of a change of mind, that
11 circumstance would surely warrant NOM’s prompt return to court.
12 See Hirschfeld v. Board of Elections of City of New York, 984
13 F.2d 35, 40 (2d Cir. 1993) (prohibiting elections board to change
14 its mind after undue delay). Thus, it is simply not so, as the
15 majority contends, that “NOM would have no warning of imminent
16 enforcement by the Board of Elections, beyond Nom’s own knowledge
17 that it was violating te law.”1 [slip op. P. __]
18 Instead of obliging NOM to inquire of the Board of Elections
19 whether it is a “political committee,” the majority returns this
20 case to the District Court for a ruling on NOM’s constitutional
1
The majority’s footnote 8 observes that an inquiry by NOM
to the Board of Elections is not required “before an organization
can be labeled a ‘political committee.’” Quite so. But the
absence of a state law inquiry requirement is entirely irrelevant
to whether federal court ripeness requirements oblige a plaintiff
to take advantage of an available inquiry procedure before
launching a pre-enforcement challenge.
4
1 claims. That course, and the inevitable appeal, will likely
2 precipitate far-reaching constitutional rulings that would be
3 entirely avoided if the Board of Elections determines, upon a
4 proper inquiry, that it does not consider NOM to be a “political
5 committee.”
6 No doubt NOM would be interested in knowing whether New York
7 would violate the First Amendment if the Board of Elections, if
8 asked, were to determine that NOM was a “political committee,”
9 but Federal courts do not sit to satisfy litigants’ intellectual
10 curiosity. I respectfully dissent.
5
