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National Organization For Marriage, Inc v. James Walsh

April 22, 2013

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.



The opinion of the court was delivered by: Hall, Circuit Judge:

10-4572-cv

National Organization for Marriage, Inc. v. Walsh

(Argued: August 24, 2011

Before:

NEWMAN, HALL, Circuit Judges, PRESKA,*fn1 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 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.

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 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."*fn2 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.*fn3 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.

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 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]court 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.*fn4

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 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 ...


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