NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
COMMITTEE TO RECALL DAN No. 23-35107 HOLLADAY; et al., D.C. No. 3:20-cv-01631-YY Plaintiffs-Appellants,
v. MEMORANDUM*
JAKOB WILEY, City Recorder for the City of Oregon City, in his official capacity,
Defendant-Appellee,
STATE OF OREGON,
Intervenor-Defendant- Appellee.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted April 4, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Plaintiffs Jeana Gonzales, Adam Marl, and the Committee to Recall Dan
Holladay (collectively, “Plaintiffs”) appeal the dismissal of their lawsuit
challenging under the federal and Oregon constitutions the 90-day signature-
gathering deadline for Oregon recall petitions imposed by Oregon Revised Statute
§ 249.875(1). Although the Complaint fails to state a claim under federal law, the
district court’s reasons for denying leave to amend on that claim were erroneous,
as were its reasons for holding that it lacked jurisdiction over the state law claim
and the federal claim for nominal damages and declaratory relief. We therefore
remand for the district court to reconsider whether to grant leave to amend on the
federal claim, whether to exercise supplemental jurisdiction over the state law
claim, and whether to certify any question related to Plaintiffs’ state law claim to
the Oregon Supreme Court.
1. Defendant, the City Recorder of Oregon City, is not entitled to sovereign
immunity under the Eleventh Amendment or Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89 (1984). Local government officials are not ordinarily
entitled to sovereign immunity. See Lake Country Ests., Inc. v. Tahoe Reg’l Plan.
Agency, 440 U.S. 391, 401 (1979). Neither party contends that the City is an arm
of the state under Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir. 2023)
(en banc), cert petition docketed, No. 23-6922 (Mar. 7, 2024), or any other test, so
Defendant cannot benefit from the sovereign immunity accorded to arms of the
2 state.
Nor do any of the other cases upon which Defendant relies show that
Defendant has sovereign immunity. The test articulated in McMillian v. Monroe
County, 520 U.S. 781 (1997), analyzes whether a municipal official was acting as a
final policymaker for the state or the municipality for the purposes of determining
whether to hold the official’s local government employer liable for that official’s
actions under Monell v. Department of Social Services of the City of New York, 436
U.S. 658 (1978). See McMillian, 520 U.S. at 784-86; see also, e.g., Weiner v. San
Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). Even assuming Defendant is
correct that our court has expanded this test to the sovereign immunity context, that
would simply mean that a person acting as a final policymaker for the state is
entitled to sovereign immunity. Here, no party argues that Defendant was acting as
a final policymaker, either for the State or the City, when applying the 90-day
deadline. Neither Oregon Revised Statute § 249.875(1) nor Oregon City Charter
Chapter VI, § 26 suggests that the City Recorder had any discretion in this context.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
The test in Buffin v. California, 23 F.4th 951 (9th Cir. 2022), also does not
show that Defendant has sovereign immunity. In Buffin, we articulated a test to
determine whether a state could be held liable for attorneys’ fees under 42 U.S.C.
§ 1988 and did not apply that test to determine whether any official was entitled to
3 sovereign immunity. Id. at 960, 963 n.5. Our court has never subsequently applied
that test to determine whether an official was entitled to sovereign immunity.
2. Because Defendant is not entitled to sovereign immunity and because
Plaintiffs have requested nominal damages in addition to declaratory and
injunctive relief, this case is not moot as to any claim by any Plaintiff. See
Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021).
3. Plaintiffs have failed to state a claim under the First Amendment. We
have treated the test in Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012), as binding
in previous election cases. See Pierce v. Jacobsen, 44 F.4th 853, 860-66 (9th Cir.
2022); Chula Vista Citizens for Jobs and Fair Competition v. Norris, 782 F.3d 520,
534, 536 (9th Cir. 2015) (en banc). The logic underlying the Angle test applies
equally to laws regulating recall petitions as to laws regulating initiatives, so the
same test should apply to both contexts. Recall elections affect the total quantum
of speech on a particular issue by affecting the timing and context of an election—
therefore causing voters to focus on different topics—as well as by increasing the
number of elections in many situations.
Plaintiffs have not alleged facts sufficient to subject the 90-day deadline to
strict scrutiny under the Angle test because their allegations fail to show that the
deadline “significantly inhibit[s] the ability of [recall] proponents to place [a recall]
on the ballot.” Angle, 673 F.3d at 1133. Plaintiffs would need to show that, “in
4 light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’”
recall proponents cannot “normally gain a place on the ballot,” and instead “will
rarely succeed in doing so.” Id. (quoting Nader v. Brewer, 531 F.3d 1028, 1035
(9th Cir. 2008)). But the facts alleged in the Second Amended Complaint show
only that Plaintiffs faced significant barriers to collecting enough signatures within
the 90-day deadline under the specific circumstances they faced at the time—
during the COVID-19 pandemic, under emergency orders that limited public
gatherings and required social distancing—which is insufficient to support their
facial challenge. See Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449 (2008) (explaining that “a plaintiff can only succeed in a facial
challenge by ‘establishing that no set of circumstances exists under which the Act
would be valid,’ i.e., that the law is unconstitutional in all of its applications”
(cleaned up) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987))).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
COMMITTEE TO RECALL DAN No. 23-35107 HOLLADAY; et al., D.C. No. 3:20-cv-01631-YY Plaintiffs-Appellants,
v. MEMORANDUM*
JAKOB WILEY, City Recorder for the City of Oregon City, in his official capacity,
Defendant-Appellee,
STATE OF OREGON,
Intervenor-Defendant- Appellee.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted April 4, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Plaintiffs Jeana Gonzales, Adam Marl, and the Committee to Recall Dan
Holladay (collectively, “Plaintiffs”) appeal the dismissal of their lawsuit
challenging under the federal and Oregon constitutions the 90-day signature-
gathering deadline for Oregon recall petitions imposed by Oregon Revised Statute
§ 249.875(1). Although the Complaint fails to state a claim under federal law, the
district court’s reasons for denying leave to amend on that claim were erroneous,
as were its reasons for holding that it lacked jurisdiction over the state law claim
and the federal claim for nominal damages and declaratory relief. We therefore
remand for the district court to reconsider whether to grant leave to amend on the
federal claim, whether to exercise supplemental jurisdiction over the state law
claim, and whether to certify any question related to Plaintiffs’ state law claim to
the Oregon Supreme Court.
1. Defendant, the City Recorder of Oregon City, is not entitled to sovereign
immunity under the Eleventh Amendment or Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89 (1984). Local government officials are not ordinarily
entitled to sovereign immunity. See Lake Country Ests., Inc. v. Tahoe Reg’l Plan.
Agency, 440 U.S. 391, 401 (1979). Neither party contends that the City is an arm
of the state under Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir. 2023)
(en banc), cert petition docketed, No. 23-6922 (Mar. 7, 2024), or any other test, so
Defendant cannot benefit from the sovereign immunity accorded to arms of the
2 state.
Nor do any of the other cases upon which Defendant relies show that
Defendant has sovereign immunity. The test articulated in McMillian v. Monroe
County, 520 U.S. 781 (1997), analyzes whether a municipal official was acting as a
final policymaker for the state or the municipality for the purposes of determining
whether to hold the official’s local government employer liable for that official’s
actions under Monell v. Department of Social Services of the City of New York, 436
U.S. 658 (1978). See McMillian, 520 U.S. at 784-86; see also, e.g., Weiner v. San
Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). Even assuming Defendant is
correct that our court has expanded this test to the sovereign immunity context, that
would simply mean that a person acting as a final policymaker for the state is
entitled to sovereign immunity. Here, no party argues that Defendant was acting as
a final policymaker, either for the State or the City, when applying the 90-day
deadline. Neither Oregon Revised Statute § 249.875(1) nor Oregon City Charter
Chapter VI, § 26 suggests that the City Recorder had any discretion in this context.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
The test in Buffin v. California, 23 F.4th 951 (9th Cir. 2022), also does not
show that Defendant has sovereign immunity. In Buffin, we articulated a test to
determine whether a state could be held liable for attorneys’ fees under 42 U.S.C.
§ 1988 and did not apply that test to determine whether any official was entitled to
3 sovereign immunity. Id. at 960, 963 n.5. Our court has never subsequently applied
that test to determine whether an official was entitled to sovereign immunity.
2. Because Defendant is not entitled to sovereign immunity and because
Plaintiffs have requested nominal damages in addition to declaratory and
injunctive relief, this case is not moot as to any claim by any Plaintiff. See
Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021).
3. Plaintiffs have failed to state a claim under the First Amendment. We
have treated the test in Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012), as binding
in previous election cases. See Pierce v. Jacobsen, 44 F.4th 853, 860-66 (9th Cir.
2022); Chula Vista Citizens for Jobs and Fair Competition v. Norris, 782 F.3d 520,
534, 536 (9th Cir. 2015) (en banc). The logic underlying the Angle test applies
equally to laws regulating recall petitions as to laws regulating initiatives, so the
same test should apply to both contexts. Recall elections affect the total quantum
of speech on a particular issue by affecting the timing and context of an election—
therefore causing voters to focus on different topics—as well as by increasing the
number of elections in many situations.
Plaintiffs have not alleged facts sufficient to subject the 90-day deadline to
strict scrutiny under the Angle test because their allegations fail to show that the
deadline “significantly inhibit[s] the ability of [recall] proponents to place [a recall]
on the ballot.” Angle, 673 F.3d at 1133. Plaintiffs would need to show that, “in
4 light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’”
recall proponents cannot “normally gain a place on the ballot,” and instead “will
rarely succeed in doing so.” Id. (quoting Nader v. Brewer, 531 F.3d 1028, 1035
(9th Cir. 2008)). But the facts alleged in the Second Amended Complaint show
only that Plaintiffs faced significant barriers to collecting enough signatures within
the 90-day deadline under the specific circumstances they faced at the time—
during the COVID-19 pandemic, under emergency orders that limited public
gatherings and required social distancing—which is insufficient to support their
facial challenge. See Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449 (2008) (explaining that “a plaintiff can only succeed in a facial
challenge by ‘establishing that no set of circumstances exists under which the Act
would be valid,’ i.e., that the law is unconstitutional in all of its applications”
(cleaned up) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987))).
Plaintiffs’ conclusory allegations that “it is well-established that most recall
campaigns fail to obtain the requisite number of petition signatures,” and “[t]his is,
in large (and obvious) part, due to lack of adequate time to gather signatures” are
also insufficient to allow Plaintiffs to survive a motion to dismiss. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
The 90-day deadline survives “less exacting review” because it “furthers ‘an
important regulatory interest.’” Angle, 673 F.3d at 1132, 1135 (quoting Prete v.
5 Bradbury, 438 F.3d 949, 961, 969 (9th Cir. 2006)). Whether a law furthers an
important regulatory interest is a question that may be decided at the motion to
dismiss stage. See, e.g., Rubin v. City of Santa Monica, 308 F.3d 1008, 1012,
1017-19 (9th Cir. 2002); see also Caruso v. Yamhill County ex rel. Cnty. Comm’r,
422 F.3d 848, 861-62 (9th Cir. 2005).
The 90-day deadline serves the important regulatory interest of ensuring that
the recall effort has sufficient grassroots support before holding a recall election.
See Angle, 673 F.3d at 1135. The 90-day deadline serves this purpose by ensuring
that there are enough people at some given time who support recalling the official.
The 90-day deadline also serves the important regulatory interest of
preventing abuse of the recall process. See John Doe No. 1 v. Reed, 561 U.S. 186,
197 (2010). Without the deadline, recall proponents could collect signatures and
then wait to submit them, either to use them as a threat against the official or to
time the recall election to manipulate the outcome.
4. The district court abused its discretion in denying leave to amend. See AE
ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (holding
that a district court abuses its discretion by denying leave to amend “unless
amendment would be futile or the plaintiff has failed to cure the complaint’s
deficiencies despite repeated opportunities” and explaining that “[a] district court
also abuses its discretion when it commits an error of law”).
6 Two of the district court’s reasons for holding that amendment would be
futile—sovereign immunity and mootness—were legally erroneous. As we have
explained, Defendant is not entitled to sovereign immunity, and this case is not
moot as to any claim by any Plaintiff.
The district court’s reliance on the letter sent from Plaintiffs’ counsel to
Defendant during the signature-gathering period was also erroneous. The fact that
Plaintiffs were confident, given the levels of public support for their particular
recall effort, that they would be able to gather the signatures under non-COVID
conditions does not render it impossible for Plaintiffs to allege facts showing that
recall proponents in general will not normally be able to collect enough signatures
because of the 90-day deadline.1 See Angle, 673 F.3d at 1133.
The district court’s only other reason, that the data Plaintiffs would add
“would not establish the link between failed petitions and the alleged severe
burden of the 90-day time restriction,” was also an abuse of discretion. Because
Plaintiffs asserted that their data would show such a link, this is not a ground on
which we can affirm the denial of leave to amend absent explanation from the
1 The district court was permitted to consider the letter because it was attached to the complaint and is therefore treated as part of the complaint. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
7 district court, which was lacking.2 We therefore vacate the denial of leave to
amend and remand for further proceedings in which the district court should either
grant leave to amend on the federal claim or provide a clear explanation for not
doing so.
As we explained above, the district court’s dismissal of the state law claims
on Pennhurst grounds was erroneous. But whether the district court will ultimately
exercise supplemental jurisdiction over the state law claim may depend on whether
it grants leave to amend on the federal claim or, if so, dismisses the federal claim
again after amendment. See 28 U.S.C. § 1367(c)(3). On remand, the district court
should therefore first reconsider whether to grant leave to amend on the federal
claim, then determine whether to exercise supplemental jurisdiction over the state
law claim in light of that decision, and, if so, whether to certify Plaintiffs’ state law
question to the Oregon Supreme Court.
For the foregoing reasons, we AFFIRM dismissal of the Second Amended
Complaint but VACATE the denial of leave to amend and REMAND for further
proceedings.
2 Plaintiffs also have not been given repeated chances to amend their complaint to cure the current deficiency.