Am Constitutional v. Davidson ( 2000 )

  •                                                                         F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                             APR 26 2000
                                         TENTH CIRCUIT
                                                                        PATRICK FISHER
     JACK HAWKINS,                                         No. 99-1142
                                                       (D.C. No. 92-N-1828)
               Plaintiffs - Appellees,                       (D. Colo.)
     DONETTA DAVIDSON, Secretary of
     State for the State of Colorado,
               Defendant - Appellant.
                                  ORDER AND JUDGMENT *
    Before KELLY, ALARCON, ** and HENRY, Circuit Judges.
           Defendant-Appellant, Donetta Davidson, Colorado Secretary of State
    (“Secretary”), appeals from the district court’s issuance of a declaratory judgment
    in favor of Plaintiffs-Appellees, American Constitutional Law Foundation, Inc.,
    Eldon W. Cooper, Craig Eley, and Jack Hawkins (“ACLF”), holding that
            This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
            The Honorable Arthur L. Alarcon, Senior United States Circuit Judge for
    the Ninth Circuit, sitting by designation.
    Colorado’s statutory requirement that ballot initiative petition circulators be
    registered voters (“registered circulator requirement”), Colo. Rev. Stat. § 1-40-
    112(1), is in violation of the First Amendment of the United States Constitution,
    and is therefore unenforceable.
          Most of the relevant facts underlying the instant case are set forth in
    American Constitutional Law Found. v. Meyer      , No. 94-1145, 
    1997 WL 282874
    (10th Cir. May 29, 1997) (unpublished) (reversing district court’s dismissal of the
    Plaintiffs’ complaint). Subsequent to the remand, several important developments
    occurred. On January 12, 1999, the Supreme Court, in a related case,    Buckley v.
    Am. Constitutional Law Found. , 
    119 S. Ct. 636
     (1999), held Colorado’s registered
    circulator requirement unconstitutional. Subsequently, ACLF requested that the
    federal district court in this case enter an order enjoining the Secretary from
    disqualifying signatures based on the registered circulator requirement. On
    March 12, 1999, judgment in favor of the Plaintiffs was entered, declaring the
    registered circulator requirement violative of the First Amendment and
    unenforceable. Thereafter, ACLF filed a motion in the state district court to
    reopen the judgment in the state court analogue of these proceedings. That state
    district court judgment had been affirmed by the Colorado Supreme Court’s
    decision in McClellan v. Meyer , 
    900 P.2d 24
     (Colo. 1995). On June 16, 1999, the
    state district court granted ACLF’s motion, and remanded the case to the
    Secretary with directions that she recount ACLF’s petitions without applying the
    unconstitutional registered circulator requirement. On July 7, 1999, the Colorado
    Supreme Court denied the Secretary’s Petition for Relief from the state district
    court’s order.
            The Secretary argues that the district court erred by failing to dismiss
    ACLF’s claims on the ground that the Supreme Court’s decision in Buckley
    rendered the federal action moot. The Secretary also argues that the district court
    erred by failing to dismiss ACLF’s action on the ground that the matter was
    barred by claim preclusion. We exercise jurisdiction pursuant to 28 U.S.C. §
            We need not reach these arguments, as we are convinced that the action has
    been rendered moot by the disposition of the state district court.
            A case is moot when the issues involved are no longer “‘live’ or the parties
    lack a legally cognizable interest in the outcome.”   County of Los Angeles v.
    Davis , 
    440 U.S. 625
    , 631 (1979)    (quoting Powell v. McCormack , 
    395 U.S. 486
    496 (1969). A case may become moot if “(1) it can be said with assurance that
    ‘there is no reasonable expectation ...’ that the alleged violation will recur, and
    (2) interim relief or events have completely and irrevocably eradicated the effects
    of the alleged violation.’”   Davis , 
    440 U.S. 625
    , 631 (1979) (internal citations
    omitted). The crucial question in this inquiry is whether “‘granting a present
    determination of the issues offered...will have some effect in the real world.’”
    Kennecott Utah Copper Corp. v. Becker      , 
    186 F.3d 1261
    , 1266 (10th Cir. 1999)
    (citations omitted).
           A court may also find a party’s claims moot under the doctrine of
    “prudential mootness” even if there is no constitutional mootness problem.
    Courts generally invoke this doctrine in the context of a request for preliminary
    injunction, where it seems that the defendant (usually the government) is in the
    process of changing its policies such that any repeat of the actions in question is
    unlikely. See The Bldg. & Constr. Dep’t v. Rockwell Int’l Corp.       , 
    7 F.3d 1487
    1492 (10th Cir. 1993). This doctrine is rooted in the court’s general discretion in
    creating prospective remedies, “especially with regard to the government of the
    United States where ‘considerations of ... comity for coordinate branches of
    government’ come into play.”      Id.
           Because mootness is jurisdictional, we are empowered to raise the issue sua
    sponte. McClendon v. City of Albuquerque         , 
    100 F.3d 863
    , 867 (10th Cir. 1996).
    When a case becomes moot on appeal, and there is no further practical point to
    the proceeding, the appeals court should issue the appropriate order accordingly.
    See Simpson v. Camper , 
    974 F.2d 1030
    , 1030-31 (8th Cir. 1992) (in the context
    of habeas corpus). It is important to note that it is not enough that a dispute
    exists at the time the case was filed, but rather this is a continuing requirement.
    See McClendon , 100 F.3d at 867.       The parties must continue to have a personal
    stake in the outcome.   Id. Our task is to “look beyond the initial controversy and
    decide whether the present dispute is sufficiently immediate and real.”     Id.
           There is no “reasonable expectation” or “demonstrated probability” that
    the same controversy will recur involving the same complaining party.       Taxpayers
    for the Animas-La Plata Referendum v. Animas-La Plata Water Conservancy
    Dist. , 
    739 F.2d 1472
    , 1479 (10th Cir. 1984) (quoting     Murphy v. Hunt , 
    455 U.S. 478
    , 482 (1982)). The state district court has accorded ACLF all of the relief it
    sought through its action in the federal district court, and there is no demonstrated
    possibility of ACLF being likewise injured in the future. In order to find a live
    controversy, we would have to assume that the Secretary would ignore the
    command of the state district court, to say nothing of the Supreme Court’s
    resolution of the issue, and persist in its use of the unconstitutional initiative
    provision. We will not so speculate,     see McClendon , 100 F.3d at 867-68. Thus,
    the instant matter is now moot.    See Operating Engineers Local Union No.3 v.
    Bohn , 
    737 F.2d 860
    , 863 (10th Cir. 1984) (holding that plaintiff’s substantive
    claims were moot because he had been accorded all of the relief sought).
           The underlying substance of the case has been resolved by the state court,
    given the state district court’s decision to remand the matter to the Secretary for
    reassessment of ACLF’s petitions in light of the unconstitutionality of the
    registered circulator requirement. There is nothing more for the federal courts to
    do in this respect.   As such, we vacate the judgment below and remand for the
    district court to dismiss the action. See United States v. Munsingwear, Inc., 
    340 U.S. 36
    , 39 (1950); Jones v. Temmer, 
    57 F.3d 921
    , 923 (10th Cir. 1995).
           VACATED and REMANDED.
                                            Entered for the Court
                                            Paul J. Kelly, Jr.
                                            Circuit Judge