Amber Krabach v. County of King

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 14, 2023
• Docket: 22-35843
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AMBER KRABACH, No. 22-35843

Plaintiff-Appellant, D.C. No. 2:22-cv-01252-BJR

v. MEMORANDUM* COUNTY OF KING, a local governmental entity; JULIE WISE, in her individual capacity, and in her official capacity as Director of King County Elections; STEVE HOBBS, in his official capacity as Secretary of State of the State of Washington; JAY INSLEE, in his official capacity as Governor of the State of Washington,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted July 12, 2023 Seattle, Washington

Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.

This case comes to us as an interlocutory appeal of the district court’s denial

of Plaintiff Amber Krabach’s motion for preliminary injunction. Krabach sued

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. King County, Director of King County Elections Julie Wise, Washington Secretary

of State Steve Hobbs, and Washington Governor Jay Inslee (collectively

Appellees) alleging that Washington’s electioneering laws, Washington Revised

Code (“RCW”) section 29A.84.510(1), RCW section 29A.84.520, and Washington

Administrative Code (“WAC”) section 434-250-100(6), violate her federal

constitutional rights under the First and Fourteenth Amendments, and her

Washington state constitutional rights, by censoring her protected speech and

chilling future speech. On September 16, 2022, Krabach sought a preliminary

injunction to stop the enforcement of Washington’s electioneering laws in the

November 2022 general election. On October 19, 2022, the district court denied

her motion for a preliminary injunction. Krabach appealed on October 25, 2022.

This appeal is moot because the 2022 general election has passed. We dismiss this

appeal for lack of jurisdiction.

1. Under Article III of the United States Constitution, an issue is moot when

there is no longer a “live controversy.” All. for the Wild Rockies v. Savage, 897

F.3d 1025, 1031 (9th Cir. 2018). “An interlocutory appeal of the denial of a

preliminary injunction is moot when a court can no longer grant any effective relief

sought in the injunction request.” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir.

2016). An interlocutory appeal of the denial of a preliminary injunction may

become moot even though the underlying case is not moot. Id. The occurrence of

2 an election moots relief sought for that election cycle. Ariz. Green Party v.

Reagan, 838 F.3d 983, 987 (9th Cir. 2016).

In her motion, Krabach contended that the preliminary injunction was

necessary “[b]ecause the window for Plaintiff to offer this highly relevant,

election-related, political speech to the public in Washington state will conclude

with the [2022] general election.” In describing the harm that she would suffer

without a preliminary injunction, Krabach explained that she “desires to continue

speaking upon ballot drop box surveillance and similar matters concerning the

2022 general election in Washington state, but has presently been chilled in her

speech by the enforcement efforts of County officials.” Thus, the relief sought was

only for the 2022 general election, which has now passed.

Krabach contends that her appeal is not moot because the preliminary

injunction she sought was not time limited, so it could apply to future elections.

However, the motion in the district court focused exclusively on the 2022 general

election and included no discussion of any future election.

2. Krabach also contends that, if the appeal of the denial of the preliminary

injunction motion is moot, then the “capable of repetition, yet evading review”

exception applies. We disagree.

This “exception is reserved for extraordinary cases in which (1) the duration

of the challenged action is too short to be fully litigated before it ceases, and (2)

3 there is a reasonable expectation that the plaintiffs will be subjected to the same

action again.” Akina, 835 F.3d at 1011 (internal quotation marks omitted).

“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.” Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003). However, in

interlocutory appeals where the district court retains jurisdiction over the

underlying case, this exception does not apply because “dismissing the preliminary

injunction appeal will not, by itself, insulate the defendants’ practices from judicial

scrutiny.” Akina, 835 F.3d at 1011.

Here, Krabach’s case is still pending before the district court, and Krabach

may seek another preliminary injunction for future elections. Therefore, the

“capable of repetition, yet evading review” exception to mootness does not apply

here.

DISMISSED.