NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 11 2014
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
ROBIN FARRIS; RECALL DALE No. 12-35949 WASHAM, a Washington political committee; OLDFIELD & HELSDON, D.C. No. 3:11-cv-05431-RJB PLLC, a Washington professional limited liability company, MEMORANDUM* Plaintiffs - Appellants,
v.
AMIT D. RANADE, Chair; GRANT S. DEGGINGER, Attorney, Vice Chair; KATHY TURNER; KATRINA ASAY, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; ANDREA MCNAMARA DOYLE, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission,
Defendants - Appellees.
ROBIN FARRIS; RECALL DALE No. 13-35040 WASHAM, a Washington political committee; OLDFIELD & HELSDON, D.C. No. 3:11-cv-05431-RJB PLLC, a Washington professional limited liability company,
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Plaintiffs - Appellants,
AMIT D. RANADE, Chair; GRANT S. DEGGINGER, Attorney, Vice Chair; KATHY TURNER; KATRINA ASAY, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; ANDREA MCNAMARA DOYLE, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission,
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted February 6, 2014 Seattle, Washington
Before: FISHER, GOULD and CHRISTEN, Circuit Judges.
The plaintiffs appeal the district court’s summary judgment order, insofar as
it declined to address the plaintiffs’ facial challenge to Washington Revised Code §
42.17A.405(3). They also appeal the district court’s ruling that their motion for
attorney’s fees was untimely and that they did not demonstrate excusable neglect
warranting an extension of the deadline. We have jurisdiction under 28 U.S.C. §
2 1291. We affirm the summary judgment order but vacate and remand on the
attorney’s fees issue.
1. In Farris v. Seabrook (Farris I), 677 F.3d 858, 867 (9th Cir. 2012),
we affirmed the district court’s preliminary injunction order, concluding that “the
State did not identify a sufficiently important interest to justify [§ 42.17A.405(3)’s]
$800 limit on contributions to recall committees.”1 Most of the underlying facts
relevant to the current appeal are fully set forth in Farris I and need not be
repeated. Of particular relevance here, we acknowledged the State’s interest in
preventing the actuality or appearance of quid pro quo corruption in recall
elections, but likened Washington recall committees to political action committees
making independent expenditures to support or oppose candidates, for which
contribution limits had been invalidated because of tenuous connections or no
connection to the candidates themselves. See id. at 865-67. We explained that
“[n]either the State nor amici . . . presented any evidence showing that
contributions to recall committees in Washington raise the specter of corruption,
and certainly not in this case,” but noted that “the outcome might be different if
there were evidence that contributions were being made with a ‘wink and a nod’
1 The limit has since been raised to $950. See Wash. Admin. Code § 390- 05-400.
3 from Council members indicating that a particular candidate would be appointed.”
See id. at 867 & n.8.
On remand, the district court’s summary judgment order applied Farris I to
the evidence presented and entered a permanent injunction, stating that the court
would “grant summary judgment for Plaintiffs and hold RCW § 42.17A.405(3)
unconstitutional as applied to Plaintiffs.” The court found that “[t]here is no
evidence of coordination of expenditures or ‘a wink and a nod’ to justify the
State’s anti-corruption interest. The Government has presented no evidence
demonstrating an issue of material fact regarding the appearance of or actual
corruption.” The district court also determined that “[b]ecause this Court should
provide Plaintiffs’ requested relief and hold that RCW § 42.17A.405(3) is
unconstitutional as applied to Plaintiffs, the Court need not address whether RCW
§ 42.17A.405(3) is unconstitutional on its face.”
We agree with the district court’s decision not to address the plaintiffs’
broader facial challenge. Given the record in this case, the plaintiffs have received
all the relief to which they are entitled. The district court’s order was somewhat
ambiguous as to the scope of its injunctive relief, insofar as its application beyond
the immediate case. The court stated that § 42.17A.405(3) was unconstitutional as
applied to the plaintiffs, but also that the defendants were enjoined from enforcing
4 § 42.17A.405(3) “against Plaintiffs in this case only” (emphasis added). We
construe the district court’s order and corresponding injunction as precluding
enforcement of § 42.17A.405(3) against the plaintiffs in all similar circumstances,
where there is no evidence or appearance of corruption. The defendants
themselves have acknowledged that “the [Washington Public Disclosure]
Commission read the order in the broadest manner possible, i.e., that it is enjoined
from ever enforcing Wash. Rev. Code § 42.17A.405(3)’s contribution limits
against the Recall Proponents.”2 Even if there may be non-parties to this litigation
who generally may enforce § 42.17A.405(3) and who theoretically might not be
bound by the district court’s injunction, see Fed. R. Civ. P. 65(d)(2), Farris I and
the district court’s order clearly preclude enforcement of §42.17A.405(3) against
the plaintiffs when there is no evidence or appearance of corruption, because the
provision is unconstitutional in such instances. Accordingly, the plaintiffs have
received all the relief to which they are entitled.
2 The defendants also said that “until a court directs that the Commission may interpret the order more narrowly, the Commission remains permanently enjoined from enforcing the contribution limits against the Recall Proponents.” We conclude that the Commission is enjoined from enforcing § 42.17A.405(3) against the plaintiffs in the future, but, consistent with Farris I and as we have emphasized, only in cases where there is no evidence or appearance of corruption.
5 This interpretation comports with the general notion that courts should favor
narrow constitutional rulings over broad ones. See, e.g., Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008) (“Facial challenges are
disfavored for several reasons.”); United States v. Raines, 362 U.S. 17, 21 (1960)
(“This Court . . .
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUL 11 2014
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
ROBIN FARRIS; RECALL DALE No. 12-35949 WASHAM, a Washington political committee; OLDFIELD & HELSDON, D.C. No. 3:11-cv-05431-RJB PLLC, a Washington professional limited liability company, MEMORANDUM* Plaintiffs - Appellants,
v.
AMIT D. RANADE, Chair; GRANT S. DEGGINGER, Attorney, Vice Chair; KATHY TURNER; KATRINA ASAY, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; ANDREA MCNAMARA DOYLE, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission,
Defendants - Appellees.
ROBIN FARRIS; RECALL DALE No. 13-35040 WASHAM, a Washington political committee; OLDFIELD & HELSDON, D.C. No. 3:11-cv-05431-RJB PLLC, a Washington professional limited liability company,
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Plaintiffs - Appellants,
AMIT D. RANADE, Chair; GRANT S. DEGGINGER, Attorney, Vice Chair; KATHY TURNER; KATRINA ASAY, in their Official Capacities as Officers and Members of the Washington State Public Disclosure Commission; ANDREA MCNAMARA DOYLE, in His Official Capacity as Interim Executive Director of the Washington State Public Disclosure Commission,
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted February 6, 2014 Seattle, Washington
Before: FISHER, GOULD and CHRISTEN, Circuit Judges.
The plaintiffs appeal the district court’s summary judgment order, insofar as
it declined to address the plaintiffs’ facial challenge to Washington Revised Code §
42.17A.405(3). They also appeal the district court’s ruling that their motion for
attorney’s fees was untimely and that they did not demonstrate excusable neglect
warranting an extension of the deadline. We have jurisdiction under 28 U.S.C. §
2 1291. We affirm the summary judgment order but vacate and remand on the
attorney’s fees issue.
1. In Farris v. Seabrook (Farris I), 677 F.3d 858, 867 (9th Cir. 2012),
we affirmed the district court’s preliminary injunction order, concluding that “the
State did not identify a sufficiently important interest to justify [§ 42.17A.405(3)’s]
$800 limit on contributions to recall committees.”1 Most of the underlying facts
relevant to the current appeal are fully set forth in Farris I and need not be
repeated. Of particular relevance here, we acknowledged the State’s interest in
preventing the actuality or appearance of quid pro quo corruption in recall
elections, but likened Washington recall committees to political action committees
making independent expenditures to support or oppose candidates, for which
contribution limits had been invalidated because of tenuous connections or no
connection to the candidates themselves. See id. at 865-67. We explained that
“[n]either the State nor amici . . . presented any evidence showing that
contributions to recall committees in Washington raise the specter of corruption,
and certainly not in this case,” but noted that “the outcome might be different if
there were evidence that contributions were being made with a ‘wink and a nod’
1 The limit has since been raised to $950. See Wash. Admin. Code § 390- 05-400.
3 from Council members indicating that a particular candidate would be appointed.”
See id. at 867 & n.8.
On remand, the district court’s summary judgment order applied Farris I to
the evidence presented and entered a permanent injunction, stating that the court
would “grant summary judgment for Plaintiffs and hold RCW § 42.17A.405(3)
unconstitutional as applied to Plaintiffs.” The court found that “[t]here is no
evidence of coordination of expenditures or ‘a wink and a nod’ to justify the
State’s anti-corruption interest. The Government has presented no evidence
demonstrating an issue of material fact regarding the appearance of or actual
corruption.” The district court also determined that “[b]ecause this Court should
provide Plaintiffs’ requested relief and hold that RCW § 42.17A.405(3) is
unconstitutional as applied to Plaintiffs, the Court need not address whether RCW
§ 42.17A.405(3) is unconstitutional on its face.”
We agree with the district court’s decision not to address the plaintiffs’
broader facial challenge. Given the record in this case, the plaintiffs have received
all the relief to which they are entitled. The district court’s order was somewhat
ambiguous as to the scope of its injunctive relief, insofar as its application beyond
the immediate case. The court stated that § 42.17A.405(3) was unconstitutional as
applied to the plaintiffs, but also that the defendants were enjoined from enforcing
4 § 42.17A.405(3) “against Plaintiffs in this case only” (emphasis added). We
construe the district court’s order and corresponding injunction as precluding
enforcement of § 42.17A.405(3) against the plaintiffs in all similar circumstances,
where there is no evidence or appearance of corruption. The defendants
themselves have acknowledged that “the [Washington Public Disclosure]
Commission read the order in the broadest manner possible, i.e., that it is enjoined
from ever enforcing Wash. Rev. Code § 42.17A.405(3)’s contribution limits
against the Recall Proponents.”2 Even if there may be non-parties to this litigation
who generally may enforce § 42.17A.405(3) and who theoretically might not be
bound by the district court’s injunction, see Fed. R. Civ. P. 65(d)(2), Farris I and
the district court’s order clearly preclude enforcement of §42.17A.405(3) against
the plaintiffs when there is no evidence or appearance of corruption, because the
provision is unconstitutional in such instances. Accordingly, the plaintiffs have
received all the relief to which they are entitled.
2 The defendants also said that “until a court directs that the Commission may interpret the order more narrowly, the Commission remains permanently enjoined from enforcing the contribution limits against the Recall Proponents.” We conclude that the Commission is enjoined from enforcing § 42.17A.405(3) against the plaintiffs in the future, but, consistent with Farris I and as we have emphasized, only in cases where there is no evidence or appearance of corruption.
5 This interpretation comports with the general notion that courts should favor
narrow constitutional rulings over broad ones. See, e.g., Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 450 (2008) (“Facial challenges are
disfavored for several reasons.”); United States v. Raines, 362 U.S. 17, 21 (1960)
(“This Court . . . is bound by two rules, to which it has rigidly adhered: one, never
to anticipate a question of constitutional law in advance of the necessity of
deciding it; the other, never to formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.” (internal quotation marks
omitted)); Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1144-45,
1155-56 (10th Cir. 2007) (holding that an as-applied ruling on part of a campaign
finance reform amendment was sufficient and that the court did not need to reach a
facial challenge, as “the nature of judicial review constrains a federal court to
consider only the case that is actually before it”).
Finally, even if the district court abused its discretion in striking declarations
concerning standing that the plaintiffs filed with their reply brief, the additional
recall campaign Jeffrey Helsdon described in his declaration did not include
evidence or the appearance of corruption. Accordingly, Farris I and the district
court’s order extend to this second recall campaign, so the plaintiffs’ challenge to
this portion of the court’s order is moot.
6 2. The district court correctly ruled that the plaintiffs’ motion for
attorney’s fees was filed after the applicable 14-day deadline. See Fed. R. Civ. P.
54(d)(2)(B) (“Unless a statute or a court order provides otherwise, the motion [for
attorney’s fees] must: (i) be filed no later than 14 days after the entry of judgment .
. . .”). On the other hand, the court erred in analyzing whether the plaintiffs’ error
was the result of excusable neglect and they were entitled to an extension of the
deadline. See Fed. R. Civ. P. 6(b)(1) (“When an act may or must be done within a
specified time, the court may, for good cause, extend the time: . . . (B) on motion
made after the time has expired if the party failed to act because of excusable
neglect.”).
The court relied primarily on Kyle v. Campbell Soup Co., 28 F.3d 928 (9th
Cir. 1994), and the three-judge panel opinion in Pincay v. Andrews (Pincay I), 351
F.3d 947 (9th Cir. 2003), in evaluating possible excusable neglect. But we
reversed Pincay I in our en banc decision in the same case, see Pincay v. Andrews
(Pincay II), 389 F.3d 853, 860 (9th Cir. 2004) (en banc), and Pincay II cited Kyle
as part of “[o]ur circuit’s confusion” on excusable neglect, id. at 857. Moreover,
the district court listed all four factors from Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), but did not address
the first and fourth in its analysis. See Pioneer, 507 U.S. at 395 (A court typically
7 considers four factors in determining whether a moving party engaged in excusable
neglect: (1) “the danger of prejudice” to the opposing party; (2) “the length of the
delay and its potential impact on judicial proceedings”; (3) “the reason for the
delay, including whether it was within the reasonable control of the movant”; and
(4) “whether the movant acted in good faith.”); see also Ahanchian v. Xenon
Pictures, Inc., 624 F.3d 1253, 1261-62 (9th Cir. 2010) (“[T]he district court here
neither cited nor applied the Pioneer[] test, but instead based its decision solely on
whether the reason for the delay – the third Pioneer[] factor – could establish
excusable neglect. By ignoring the other three factors, the district court abused its
discretion.”); Lemoge v. United States, 587 F.3d 1188, 1194 (9th Cir. 2009) (“[W]e
conclude that it will always be a better practice for the district court to touch upon
and analyze at least all four of the explicit Pioneer[] factors.”).
On remand, the district court should reevaluate the excusable neglect issue
by addressing all four factors of the Pioneer test under our current law.
Costs on appeal awarded to the plaintiffs.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.