Many Cultures, One Message v. Jim Clements

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 4, 2013
• Docket: 11-36008
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 04 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MANY CULTURES, ONE MESSAGE, A No. 11-36008 Washington Unincorporated Association; RED STATE POLITICS, A Washington D.C. No. 3:10-cv-05253-KLS not-for-profit corporation, DBA Conservative Enthusiasts, MEMORANDUM * Plaintiffs - Appellants,

v.

JIM CLEMENTS, Chair; DAVE SEABROOK, Vice Chair; JANE NOLAND; BARRY SEHLIN; JENNIFER JOLY, in Their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; DOUG ELLIS, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Karen L. Strombom, Magistrate Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted November 9, 2012 Seattle, Washington

Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior District Judge.**

Appellants Many Cultures, One Message (“MCOM”), and Conservative

Enthusiasts (a.k.a. Red State Politics) appeal the district court’s dismissal of their

suit challenging as unconstitutional two portions of the Washington Revised Code,

Wash. Rev. Code §§ 42.17.200 and 42.17.160. These two provisions of state law

together require certain grassroots citizen-to-citizen lobbying organizations to

register with the state and to disclose information about financial contributions

they receive. The district court held that appellants lack Article III standing. In the

alternative, it held that the statute was constitutional on its face and as applied. We

affirm the district court’s holding that both parties lack Article III standing to

challenge the constitutionality of Washington’s grassroots lobbying law.

To determine whether a party has sufficient injury to support Article III

standing in the First Amendment context, we look to “whether the plaintiffs have

articulated a ‘concrete plan’ to violate the law in question, whether the prosecuting

** The Honorable Gordon J. Quist, Senior United States District Judge for the Western District of Michigan, sitting by designation.

2 authorities have communicated a specific warning or threat to initiate proceedings,

and the history of past prosecution or enforcement under the challenged statute.”

Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)

(en banc); see also Canatella v. California, 304 F.3d 843, 854 n.14 (9th Cir. 2002)

(looking to a party’s “history” and “continuing activities” in the area, as well as to

the “nature” of the party’s legal challenge). “[P]laintiffs may carry their burden of

establishing injury in fact when they provide adequate details about their intended

speech.” Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir. 2010), cert. denied 131 S.

Ct. 2456 (May 16, 2011). “[T]he Constitution requires something more than a

hypothetical intent to violate the law.” Thomas, 220 F.3d at 1139.

Neither party here has standing to challenge the constitutionality of the

Washington grassroots lobbying law because neither has demonstrated that it

actually intends to undertake activities that come within the scope of the

challenged statute. Conservative Enthusiasts has not provided evidence of

concrete plans to pursue activities that qualify as grassroots lobbying under the

statute, nor has it even identified specific areas of state policy advocacy in which it

would like to engage.

MCOM has specified state legislation in the area of eminent domain about

which it proposes to lobby, and has named specific activities it might undertake to

3 achieve those goals. But it has not demonstrated that it actually “intend[s]” to

undertake these activities. Lopez, 630 F.3d at 787. MCOM admits that its website

has been taken down and that it has not been holding regular meetings. Further,

MCOM does not show sufficient “continued activities” in the area of eminent

domain to support standing. Canatella, 304 F.3d at 854 n.14. To the extent that

any lobbying on eminent domain has been undertaken in recent years, it has been

performed by MCOM members as individuals, rather than in their organizational

capacity. Most important, MCOM acknowledges that it has not actually decided

whether to lobby the state; rather, MCOM’s founder has filed this challenge

“[b]ecause if we start lobbying the State, I don’t want to be fined for not doing

something” (emphasis added).

Because we affirm the district court’s dismissal for lack of Article III

standing, we do not reach appellants’ other contentions.

AFFIRMED.