Rio Grande Foundation v. City of Santa Fe, New Mexico; City of Santa Fe Ethics and Campaign Review Board

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
RIO GRANDE FOUNDATION,
Plaintiff - Appellant,
v.
CITY OF SANTA FE, NEW MEXICO;
CITY OF SANTA FE ETHICS AND
CAMPAIGN REVIEW BOARD,
Defendants - Appellees,
and
THE BRENNAN CENTER FOR
JUSTICE; COMMON CAUSE; THE
LEAGUE OF WOMEN VOTERS OF
SANTA FE COUNTY; NEW MEXICO
ETHICS WATCH; REPRESENT US,
Amicus Curiae.
No. 20-2022
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CV-00768-JCH-CG)
_________________________________
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater
Institute, Phoenix, Arizona (Matthew R. Miller and Jonathan Riches, Scharf-Norton
Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Arizona, and
Colin L. Hunter and Jordy L. Stern, Barnett Law Firm, Albuquerque, New Mexico with
him on the briefs), for Plaintiff - Appellant.
Tara Malloy, Campaign Legal Center, Washington, DC (Megan P. McAllen, Campaign
Legal Center, Washington, DC, and Marcos D. Martinez, Senior Assistant City Attorney,
FILED
United States Court of Appeals
Tenth Circuit
August 3, 2021
Christopher M. Wolpert
Clerk of Court
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City of Santa Fe, New Mexico, Santa Fe, New Mexico, with her on the briefs), for
Defendants - Appellees.
Daniel I. Weiner, The Brennan Center for Justice at NYU School of Law, Washington,
DC (Joanna Zdanys, The Brennan Center for Justice at NYU School of Law, New York,
New York, and Ruth Anne French-Hodson, Sharp Law LLP, Prairie Village, Kansas,
with him on the brief), for amici curiae The Brennan Center for Justice, Common Cause,
The League of Women Voters of Santa Fe County, New Mexico Ethics Watch, and
Represent Us.
_________________________________
Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH,
Circuit Judge.
_________________________________
LUCERO, Senior Circuit Judge.
_________________________________
Laws that require disclosure of campaign finance information, including the
identities of political donors, pit the public’s interest in transparent political messaging
against potential burdens on the exercise of core First Amendment rights. The case
before us might have called on us to conduct such a balancing. But the posture of this
appeal forecloses that path. Instead, we conclude that plaintiff Rio Grande Foundation
lacks standing to challenge § 9-2.6 of the City of Santa Fe, New Mexico’s (“the City”)
Campaign Code and its enforcement by the Santa Fe Ethics and Campaign Review Board
(“ECRB”). We therefore dismiss the appeal for lack of jurisdiction.
I
In 2015, the City amended its Campaign Code to enact disclosure requirements
for campaign spending. Under § 9-2.6 of the Santa Fe Campaign Code, any person
or entity that makes expenditures of $250 or more during a single Santa Fe election
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on public communications relating to a candidate or ballot measure must disclose
certain information to the city clerk, including the names, addresses, and occupations
of the donors who earmarked their contribution for that particular campaign. Failure
to disclose this information by § 9-2.6’s specified deadline may result in fines of up
to $500 per day. Santa Fe City Code § 6-16.7(B)(2).
Plaintiff Rio Grande Foundation is a non-profit organization based in
Albuquerque that has engaged in political advocacy since 2000. In 2017, it
participated in a Santa Fe election, advocating against a ballot measure concerning a
proposed soda tax. Combined spending by advocacy groups on each side of the
measure amounted to several million dollars. Plaintiff’s expenditures were more
modest, totaling an estimated $7,700, most of which was attributable to the
production of a YouTube video and a website. But those expenditures gave rise to a
letter from a City Assistant Attorney informing Plaintiff that it appeared Plaintiff
would need to file a campaign finance statement. The day after Plaintiff received
that letter, the ECRB received a citizen complaint lodged against Plaintiff, triggering
an ECRB investigation.
Because production of the YouTube video and website was donated in-kind—
an out-of-state political advocacy group produced the video and then donated it to
Plaintiff—Plaintiff assumed that it did not need to disclose any information under
§ 9-2.6. The ECRB determined otherwise, citing Plaintiff for failure to comply with
the Campaign Code. No penalties or fines were imposed, however. Plaintiff was
simply ordered to file the required paperwork. Plaintiff submitted a six-page
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campaign report, disclosing two donations of $7,500 and $250 respectively, and that
was that. The campaign report ended the ECRB enforcement of the Campaign Code
against Plaintiff.
While the enforcement action was a relatively painless affair, Plaintiff did not
think it or advocacy groups like it should have to endure the disclosure requirements
in the future. It brought a § 1983 action against Defendants, seeking only prospective
relief: namely, a declaration that § 9-2.6 is unconstitutional, both on its face and as
applied to Plaintiff, insofar as it is enforced against speech concerning ballot
measures. Both species of Plaintiff’s claims focus solely on the chilled speech
effects caused by the publication of the identities of donors; the other potentially
burdensome aspects of § 9-2.6, such as the cost of compliance or the difficulty of
understanding the applicable rules, were explicitly disclaimed in Plaintiff’s suit.
The parties each moved for summary judgment. The district court sided with
Defendants, dismissing Plaintiff’s lawsuit. Plaintiff appealed.
II
At the outset, we must attend to our “independent duty to assure ourselves of
the district court’s subject-matter jurisdiction.” Planned Parenthood of Kansas v.
Andersen, 882 F.3d 1205, 1211 (10th Cir. 2018). We fulfill this duty by reviewing a
plaintiff’s standing de novo. Id. at 1215. “The constitutional requirements for
standing are (1) an injury in fact, (2) a causal connection between the injury and the
challenged act, and (3) a likelihood that the injury will be redressed by a favorable
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decision.” Id. (quotation omitted). Plaintiffs bear the burden of proof to establish
standing. Brown v. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016).
When a plaintiff’s First Amendment claim is based on chilled speech, the issue
of standing becomes “particularly delicate.” Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (en banc). This is because “the injury
is inchoate,” as speech that is chilled “has not yet occurred and might never occur
. . . .” Id. While “[w]e cannot ignore such harms,” “in speech cases as in others,
courts must not intervene in the processes of government in the absence of a
sufficiently ‘concrete and particularized’ injury.” Id. (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)).
In light of this conundrum, our court crafted in Walker a relatively relaxed test
for standing in chilled speech claims seeking prospective relief:
[P]laintiffs in a suit for prospective relief based on a “chilling effect” on
speech can satisfy the requirement that their claim of injury be “concrete and
particularized” by (1) evidence that in the past they have engaged in the type
of speech affected by the challenged government action; (2) affidavits or
testimony stating a present desire, though no specific plans, to engage in such
speech; and (3) a plausible claim that they presently have no intention to do so
because of a credible threat that the statute will be enforced.
Id. at 1089 (emphasis omitted).
All three prongs of the Walker test center on the circumstances of the
particular plaintiff before the court. Such a focus is part and parcel of standing more
broadly. “[A]t an irreducible minimum, Art. III requires the party who invokes the
court’s authority to show that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the defendant.” Valley Forge
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Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S.
464, 472 (1982) (quotation omitted).
Accordingly, the third prong of the Walker test turns on the circumstances of
the plaintiff before us. There is certainly an objective gloss to this prong. The claim
must be “plausible” because a plaintiff must allege more than a subjective chill—an
objective basis must render the alleged chilling effect on the plaintiff plausible. Yet
this plausibility requirement does not transform Walker’s third prong into a purely
objective inquiry. The focus in Walker was on whether there is a plausible claim that
the plaintiff does not intend to speak because of the challenged government action.
See Walker, 450 F.3d at 1089. Orienting Walker’s third prong to the plaintiff before
the court comports with the “irreducible minimum” of standing that the plaintiff
“personally has suffered some actual or threatened injury,” Valley Forge, 454 U.S. at
472 (quotation omitted). Thus, the question posed by the third prong is not whether
someone standing in the plaintiff’s shoes would be deterred from speaking, but rather
whether the plaintiff in question claims to be deterred and whether such deterrence is
plausible. This distinction proves crucial for Plaintiff’s standing in this case.
There is no doubt that Plaintiff satisfies the first two prongs of the Walker test.
Defendant’s enforcement action against Plaintiff makes it clear that Plaintiff’s
campaign expenditures for its soda tax advocacy were “affected” by § 9-2.6, as
required by the first prong. As for the second prong, Plaintiff has expressed, via an
affidavit from its president, a desire to continue speaking about municipal ballot
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measures in the future. Nothing more concrete than this general aspiration is needed
to meet the second prong.
Plaintiff runs into trouble, however, on the third prong. Rather than claim it
“presently ha[s] no intention to” speak in future Santa Fe ballot measure elections,
Walker, 450 F.3d at 1089, Plaintiff has averred precisely the opposite. In its
complaint, Plaintiff titled a section heading “The Foundation Intends to Continue
Speaking About Santa Fe Ballot Propositions” (emphasis in original). Its President
proclaimed the same plans in an affidavit, explaining that Plaintiff “fully intends to
continue speaking about municipal ballot measures in the future,” and reiterated the
same in its appellate briefing. Plaintiff never asserts that its future speech will be any
more limited than it would be in the absence of § 9-2.6. Perhaps the closest Plaintiff
comes in the summary judgment record to alleging it will not engage in future speech
activity is its statement in its complaint that it “does not want to choose between
remaining silent or disclosing the names and personal information of its donors to the
government.” But a desire not to make that decision is not the same as making an
affirmative choice not to speak. And it is precisely such a choice that the third prong
of the Walker inquiry demands. Nor is the fact that Plaintiff “is very concerned that
compelled disclosure of its donors will make those donors less likely to contribute”
sufficient to satisfy the third prong. Plaintiff’s supplemental brief focuses on
Plaintiff’s own speech or that of a reasonable person in its position. See Suppl. Aplt.
Br. at 2-3, 7-9, 10-12. The brief does not develop an argument that RGF has standing
because its donors are chilled from donating to RGF in the future. Had the argument
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been developed, and even assuming donors’ non-speech could confer Plaintiff
standing, the mere concern that speech will not occur does not amount to an
affirmative claim that the speech really will not occur.
Without such a claim, Plaintiff fails to carry its burden of showing an injury-
in-fact. That failure deprives it of standing to lodge both its as-applied and its facial
claim. “While the rules for standing are less stringent for a facial challenge to a
statute, a plaintiff must still satisfy the injury-in-fact requirement.” PETA v.
Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002). Because Plaintiff has disavowed
any form of injury save for chilled speech, 1 and because an element of a chilled
1 It is this disavowal that keeps us from considering whether a credible threat
of prosecution under § 9-2.6 could confer Plaintiff jurisdiction—that threat is not the
injury Plaintiff claims it has suffered. It is also not the theory of jurisdiction Plaintiff
asserts. See Appellant’s Supp. Br. at 9 (“[F]or standing purposes, all the Foundation
needs to show is that it is subject to the challenged law—and also . . . that the chilling
effect it complains of is more than merely ‘subjective.’”). Even if this theory were
before us, the threat of prosecution is too speculative to permit reaching the merits on
that basis.
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, he should not be
required to await and undergo a criminal prosecution as the sole means of
seeking relief. But persons having no fears of state prosecution except those
that are imaginary or speculative, are not to be accepted as appropriate
plaintiffs.
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quotations
omitted). Even if it had asserted an injury based on the threat of future prosecution,
Plaintiff has not specified any particular future Santa Fe election in which it intends
to participate. The threat of prosecution at this stage is therefore too speculative to
convey standing.
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speech injury is an actual intention not to speak, Plaintiff cannot show an injury-in-
fact.
We therefore conclude that Plaintiff failed to establish standing under the
Walker test due to the lack of an injury-in-fact. 2 Consequently, we lack jurisdiction
to consider this appeal.
III
The appeal is DISMISSED.
2 The parties also provided briefing on a concern sounding in prudential
ripeness. See United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019). At issue
is whether we have sufficient facts before us to permit resolution of Plaintiff’s as-
applied claim. Plaintiff seeks an exemption from § 9-2.6 in a future, unspecified
election. Both parties agree that addressing the merits of this request would entail an
exacting scrutiny inquiry that pits Plaintiff’s burdens of disclosure against the
strength of Defendants’ interest in disclosure. See Coal. for Secular Gov’t v.
Williams, 815 F.3d 1267, 1279 (10th Cir. 2016) (describing the exacting scrutiny
analysis as “balancing the informational interest in the [plaintiff’s] disclosures and
the burdens [the government’s] law imposes”). Defendants point out that we have
little information with which to conduct this balancing—we do not know how much
Plaintiff would spend in the next election, for example, a factor often crucial to an
exacting scrutiny analysis. See, e.g., Sampson v. Buescher, 625 F.3d 1247, 1260-61
(10th Cir. 2010). Faced with similar circumstances, two of our sibling circuits have
declined to reach the merits of the claim. Justice v. Hosemann, 771 F.3d 285, 292-95
(5th Cir. 2014); Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1249-50 (11th Cir.
2013). Because of our conclusion that Plaintiff lacks standing, we need not resolve
this issue.
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