SC Citizens for Life v. Krawcheck, No. 07-2057 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-2057 SOUTH CAROLINA CITIZENS FOR LIFE, INCORPORATED, Plaintiff - Appellant, v. KENNETH C.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 Carolina Attorney General, capacity as the South 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 Reversed and remanded by unpublished opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 ELLIS, Senior District Judge: This is an appeal from a dismissal on ripeness grounds of an action challenging the constitutionality of two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 advocate a pro-life position on these issues. issues and to One of the ways SCCL advances its pro-life mission is to inform the public about the positions of candidates for public office related issues by distributing voter guides. on abortion- 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 implicate became South concerned Carolina that election this law. mass mailing Specifically, might 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 certified campaign reports. -1308. expenditures, and regularly file S.C. Code Ann. §§ 8-13-1302, -1304, 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. The term communication includes any Id. § 8-13-1300(31)(c). paid message conveyed through . . . direct mail. Id. § 8-131300(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 § 8-131300(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 On September Id. § 8-13-320(11). 29, 2006, the Executive Commission responded to SCCL s request. Director of the Explaining that the Commission had not previously addressed the issues raised and citing S.C. ongoing Code Ann. litigation § regarding 8-13-1300(31)(c), 3 the the constitutionality Executive of 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 on have its request placed 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 unconstitutionally overbroad and vague. 1300(6), -1300(31)(c). provisions were office as both S.C. Code Ann. §§ 8-13- SCCL sought a declaration that these both facially unconstitutional and unconstitutional as applied to it; the organization also sought injunctive relief. month before specifically Although the complaint was filed about a South asserted Carolina s its 2006 intent to general election, distribute SCCL 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 properly dismissed the suit for lack of jurisdiction. court 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. Cir. 2006). Miller v. Brown, 462 F.3d 312, 316 (4th 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 ). 7 As we have 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)). judicial In short, consideration the of a inquiry dispute is designed until a to prevent controversy is Miller, 462 F.3d at presented in clean-cut and concrete form. 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 consideration. (1967). [a] case to the Abbott parties Labs. v. of withholding Gardner, 387 U.S. court 136, 149 With respect to the first prong, we have noted that 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. Importantly, Charter Fed. Sav. Bank, 976 F.2d at 208 09. because free speech can be chilled prior to enforcement, a plaintiff bringing a First Amendment claim need only show a credible threat of threat of specific future harm. 1202, 1206 (4th Cir. 1986). prosecution, rather than a See Doe v. Duling, 782 F.2d 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. the issues in this First Amendment judicial decision at this time. challenge First, are fit for 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 previous this a decisions novel are or surprising controlling, essentially identical facts. result; one of two which of our involved 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 9 penalties. To ascertain 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. refrained from Id. at 710. distributing its Consequently, the group 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 take significant compliance measures or risk criminal prosecution. Id. at 711 (citation and internal quotation marks omitted). In holding that the at plaintiffs dispute who will constituted a have to case necessarily found the matter to be ripe. or controversy, we 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. None of the 263 F.3d at 389 90. arguments presented by the members of the Commission convince us that this case is distinguishable from either North Carolina Right to 10 Life or Virginia Society for Human Life. 5 those Nor do they persuade us that we should depart from 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 final action, and action that for the SCCL s court claims speculative future contingencies. SCCL seeks adjudication of to review, therefore let alone depend on This argument overlooks that 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 As for Virginia to distinguish North Carolina Right to Life. 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.) establish As that noted SCCL above, need however, only show the a controlling credible cases 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 particularly to distribute burdensome. their Although voter the guides parties are not dispute the precise nature of these compliance measures, there is no dispute that SCCL regularly would at least file certified be required campaign to register reports and then 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. Third, Va. Soc y for Human Life, 263 F.3d at 390 n.3. 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

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