Digital Recognition Network v. Asa Hutchinson , 803 F.3d 952 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3084
___________________________
Digital Recognition Network, Inc.; Vigilant Solutions Inc.,
lllllllllllllllllllll Plaintiffs - Appellants,
v.
Asa Hutchinson, in his official capacity as Governor of the State of Arkansas;
Leslie Rutledge, in her official capacity as Attorney General of the State of
Arkansas,1
lllllllllllllllllllll Defendants - Appellees.
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: April 14, 2015
Filed: October 13, 2015
____________
Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
____________
1
Asa Hutchinson is automatically substituted for Mike Beebe, and Leslie
Rutledge is automatically substituted for Dustin McDaniel, pursuant to Federal Rule
of Appellate Procedure 43(c)(2).
COLLOTON, Circuit Judge.
Digital Recognition Network, Inc., and Vigilant Solutions, Inc., contend that
the Arkansas Automatic License Plate Reader System Act, Ark. Code § 12-12-1801
et seq., violates their rights to freedom of speech under the First Amendment. They
sued the attorney general and governor of Arkansas under 42 U.S.C. § 1983 and 28
U.S.C. §§ 2201 and 2202, seeking injunctions prohibiting enforcement of the Act and
a declaration that the Act is unconstitutional. The district court2 granted the officials’
motion to dismiss, ruling that the officials are immune from suit under the Eleventh
Amendment. We affirm the court’s dismissal on the ground that Digital Recognition
Network and Vigilant Solutions lack standing, so there is no Article III case or
controversy.
I.
We recite the facts according to the complaint filed by Digital Recognition and
Vigilant, as we will call the companies for convenience. Vigilant Solutions
developed an automatic license plate reader technique that permits computers to
identify license-plate numbers in digital photographs. Digital Recognition uses
Vigilant’s reader technique to identify license-plate numbers in photographs taken by
cameras that Digital Recognition sells to vehicle repossession companies and others.
A repossession company mounts the cameras on tow trucks and other vehicles, and
the cameras automatically photograph everything the vehicles encounter. Digital
Recognition notifies the driver when a photographed vehicle is subject to
repossession, and sells the license-plate data it collects to clients, such as automobile
finance and insurance companies.
2
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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The clients use the license-plate data to identify cars that are subject to
repossession and to locate cars that have been stolen or fraudulently reported as
stolen. The cameras also date and time-stamp the photographs and record the global
positioning system coordinates for the location at which the picture was taken.
Digital Recognition uses this information to aid its clients in recovering vehicles.
Digital Recognition also partners with Vigilant to make the reader data available to
law enforcement agencies. The agencies use Digital Recognition’s data to locate
missing persons and find stolen vehicles.
Effective August 2013, Arkansas enacted the Automatic License Plate Reader
System Act, which makes it “unlawful for an individual, partnership, corporation,
association, or the State of Arkansas, its agencies, and political subdivisions to use
an automatic license plate reader system.” Ark. Code § 12-12-1803(a). The Reader
System Act, as we will call it for short, permits “any . . . person claiming that a
violation of [the Act] has injured his or her business, person, or reputation,” to bring
an action for damages against the violator. Id. § 12-12-1807(a).
Before the Act became law, Digital Recognition sold three camera kits to
companies operating in Arkansas, and two of them had begun using the kits. Digital
Recognition collected data in Arkansas, and then sold the data to clients and
disseminated it to Vigilant. Law enforcement agencies in Arkansas accessed
Vigilant’s data, sometimes generating investigative leads. Because of the Act, Digital
Recognition’s camera affiliates in Arkansas have stopped using the camera kits, so
Digital Recognition no longer is able to collect license-plate data in Arkansas.
Digital Recognition stopped selling or disseminating license-plate data, and the
company does not offer camera kits for sale. Vigilant no longer receives data from
Digital Recognition or distributes it to law enforcement agencies. The companies
understand the Reader System Act to prohibit these activities. But for the Act, Digital
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Recognition, Vigilant, and their affiliates would resume collection and dissemination
of license-plate data and the sale of camera kits in Arkansas.
Digital Recognition and Vigilant (collectively hereafter, “Digital Recognition”)
sued the governor and attorney general of Arkansas in their official capacities in May
2014. Digital Recognition claimed that “use of [automatic license plate reader]
systems to collect and create information” and dissemination of the information
constitutes speech. According to Digital Recognition, the Act impermissibly restricts
this speech based on its content—license-plate data—and on the identity of the
speaker, because the Act contains exceptions for some entities, such as law
enforcement agencies. See Ark. Code § 12-12-1803(b)(1). Digital Recognition
sought a declaration that the Act violates the Free Speech Clause, and preliminary and
permanent injunctive relief prohibiting application or enforcement of the Act. Digital
Recognition also moved separately for preliminary injunctive relief.
The Arkansas officials moved to dismiss the case, arguing that there is no case
or controversy under Article III, and that they are immune from suit under the
Eleventh Amendment. The district court ruled that Digital Recognition lacked
standing to seek an injunction, but had standing to pursue declaratory relief, because
the court thought a declaratory judgment would redress the company’s injury. The
district court then concluded, however, that sovereign immunity reflected in the
Eleventh Amendment barred the suit against the governor and the attorney general
in their official capacities. The court considered the exception to sovereign immunity
for relief against state officials with authority to enforce state law, see Ex Parte
Young, 209 U.S. 123 (1908), but ruled that the exception did not apply, because the
Arkansas officials “are not connected to enforcement of the [Reader System] Act, nor
have they threatened to enforce it.” The district court denied Digital Recognition’s
motion for preliminary injunctive relief as moot. Digital Recognition appeals, and
we review the district court’s ruling de novo. Anderson-Tully Co. v. McDaniel, 571
F.3d 760, 762 (8th Cir. 2009).
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II.
Digital Recognition argues that the district court erred by dismissing its
complaint based on the Eleventh Amendment and state sovereign immunity. The
state officials make a two-fold response: The Eleventh Amendment bars the suit,
because the officials do not have sufficient connection to enforcement of the Reader
System Act, and there is no Article III case or controversy, because Digital
Recognition lacks standing to sue.
Article III of the U.S. Constitution limits the jurisdiction of the federal courts
to “Cases” and “Controversies.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726
(2013). “[S]tanding is an essential and unchanging part of the case-or-controversy
requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish
standing, a plaintiff must show that he has suffered an injury in fact that is fairly
traceable to the challenged conduct of the defendant and will likely be redressed by
a favorable decision. Id. at 560-61. Digital Recognition must establish standing for
each type of remedy sought, including declaratory and injunctive relief. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); see
Mosby v. Ligon, 418 F.3d 927, 932-33 (8th Cir. 2005).
“The Eleventh Amendment confirms the sovereign status of the States by
shielding them from suits by individuals absent their consent.” Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004). The Eleventh Amendment also bars suits
brought against state officials if “the state is the real, substantial party in interest.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (internal
quotation marks omitted). In Ex Parte Young, the Supreme Court established a
significant exception to this immunity. The Court held that a suit to enjoin a state
official’s enforcement of state legislation on the ground that the official’s action
would violate the Constitution is not a suit against the State, and is thus not barred by
the Eleventh Amendment, so long as the official has “some connection with the
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enforcement the act.” 209 U.S. at 155-60; see Va. Office for Prot. & Advocacy v.
Stewart, 131 S. Ct. 1632, 1638 (2011). The Court reasoned that unconstitutional state
legislation is “void,” and that a state official’s enforcement of that legislation
therefore “is a proceeding without the authority of, and one which does not affect, the
state in its sovereign or governmental capacity.” Ex Parte Young, 209 U.S. at 159.
Enforcement of unconstitutional legislation “is simply an illegal act upon the part of
[the] state official,” and the State may not immunize officials from suit for such
violations of the Constitution. Id. at 159-60.
In a case like this one, the questions of Article III jurisdiction and Eleventh
Amendment immunity are related. Article III requires the plaintiff to show a causal
connection between the state officials and the alleged injury. The Eleventh
Amendment does not preclude jurisdiction over the state officials if there is “some
connection” between the officials and enforcement of the challenged state law. This
court concluded in one case that where state officials had “some connection with the
enforcement” of a state law for purposes of the Ex Parte Young doctrine, then the
case or controversy requirement of Article III was satisfied. Citizens for Equal Prot.
v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006). Bearing in mind this relationship
between the two questions presented, we address the jurisdictional question whether
Digital Recognition has standing to pursue its claim in federal court. See Calderon
v. Ashmus, 523 U.S. 740, 745 & n.2 (1998).
We may assume that Digital Recognition satisfies the injury-in-fact element of
standing, because it has alleged that but for the Act, it would resume collecting and
disseminating license-plate data in Arkansas. This conduct is “arguably affected with
a constitutional interest,” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979), because the “creation and dissemination of information are speech within
the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653,
2667 (2011). The Act makes it “unlawful . . . to use an automatic license plate reader
system,” Ark. Code § 12-12-1803(a), and there is a credible threat that private parties
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will enforce the Act against Digital Recognition if it resumes collection and
dissemination of license plate data. Cf. Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334, 2345-46 (2014). Any “person claiming that a violation of [the Act] has injured
his or her business, person, or reputation” may bring a private damages action against
the violator, Ark. Code § 12-12-1807(a), and the Act permits successful plaintiffs to
recover the greater of actual damages or $1000 in liquidated damages, in addition to
the costs of litigation. Id. § 12-12-1807(b).
Digital Recognition nonetheless lacks standing to sue the governor and
attorney general because the injury of which Digital Recognition complains is not
“fairly traceable” to either official. See Bennett v. Spear, 520 U.S. 154, 167 (1997).
Article III requires “a causal connection” between the injury and the defendant’s
conduct; the injury may not be a result of “the independent action of some third party
not before the court.” Lujan, 504 U.S. at 560 (internal quotation mark omitted).
“[W]hen a plaintiff brings a pre-enforcement challenge to the constitutionality of a
particular statutory provision, the causation element of standing requires the named
defendants to possess authority to enforce the complained-of provision.” Bronson v.
Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007); see Okpalobi v. Foster, 244 F.3d
405, 426 (5th Cir. 2001) (en banc).
The governor and attorney general do not have authority to enforce the Reader
System Act, so they do not cause injury to Digital Recognition. The Act provides for
enforcement only through private actions for damages. Ark. Code § 12-12-1807.
While the attorney general may intervene and defend the constitutionality of the Act
in a private damages suit, see 28 U.S.C. § 2403(b); Fed. R. Civ. P. 5.1; Ark. Code
§§ 16-111-106(b), 25-16-703(a), the attorney general does not initiate enforcement
or seek relief against a putative defendant. Digital Recognition’s injury is “fairly
traceable” only to the private civil litigants who may seek damages under the Act and
thereby enforce the statute against the companies.
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For the same reasons, it is not likely that Digital Recognition’s injury would
be “redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation
marks omitted). Digital Recognition requests a permanent injunction, phrasing this
request as one for an “injunction[] enjoining Defendants from applying or enforcing
the Act’s provisions,” Compl., at 15, and an “injunction against the application or
enforcement of the Act,” id. ¶ 6. But as the district court observed, an injunction
prohibiting the attorney general from intervening in a private damages action to
defend the Act’s constitutionality would not redress Digital Recognition’s injury.
“The redressability prong is not met when a plaintiff seeks relief against a defendant
with no power to enforce a challenged statute.” Bronson, 500 F.3d at 1111; see
Okpalobi, 244 F.3d at 426-27. Private litigants who assert violations of the Reader
System Act may defend the constitutionality of the Act, and they will not be
constrained by any injunction that could be issued against the state officials in this
action. A district court has no authority to enjoin the statute; an injunction would run
only against the defendants in the case. Okpalobi, 244 F.3d at 426 n.34.
Digital Recognition suggests that even if an injunction against the officials
would not redress its injury, the district court could declare the Act unconstitutional,
and the relief accorded by a declaratory judgment would satisfy Article III. A
declaration, the companies argue, would substantially diminish the risk that the Act
would be enforced: private parties would be less likely to sue, the attorney general
would not intervene to defend the Act, and a declaratory judgment would “create
precedent that binds federal and state judges in Arkansas.” This argument, however,
“overlooks the principle that it must be the effect of the court’s judgment on the
defendant that redresses the plaintiff’s injury, whether directly or indirectly.” Nova
Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005) (emphasis added). A
declaration that the Reader System Act is unconstitutional would not redress Digital
Recognition’s injury by virtue of its effect on the defendant officials. Private litigants
with rights to enforce the Act would not be the subject of any relief in this action, and
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any judgment would not oblige private litigants to refrain from proceeding under the
Act.
A declaration of the Act’s unconstitutionality would provide Digital
Recognition with a favorable judicial precedent on an abstract legal issue under the
First Amendment. But if that measure of relief were sufficient to satisfy Article III,
then the federal courts would be busy indeed issuing advisory opinions that could be
invoked as precedent in subsequent litigation. “If courts may simply assume that
everyone (including those who are not proper parties to an action) will honor the legal
rationales that underlie their decrees, then redressability will always exist.” Franklin
v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring in part and
concurring in the judgment). Because the defendant officials do not enforce the Act,
a declaratory judgment would not meet the requirement of redressability. Bronson,
500 F.3d at 1112; Gandy, 416 F.3d at 1159; Okpalobi, 244 F.3d at 423 n.31; id. at
431 (Higginbotham, J., concurring).
Digital Recognition, citing Utah v. Evans, 536 U.S. 452 (2002), contends that
the impact of a favorable decision in future litigation, and the consequent effect on
potential litigants, is sufficient to redress its injury. Evans, a case about methods of
the Census Bureau, held that Utah had standing to sue for an injunction requiring the
Secretary of Commerce to recalculate population numbers and to submit a revised
census report to the President. The new report would “translate[] mechanically into
a new apportionment of Representatives without further need for exercise of policy
judgment.” Id. at 462. Although the President and other officials would not be
directly bound by a determination that the revised report embodied a correct
interpretation of the governing law, the Court deemed it “substantially likely that the
President and other executive and congressional officials would abide by an
authoritative interpretation of the census statute and constitutional provision.” Id. at
463-64. In terms of “standing” doctrine, “the courts would have ordered a change in
a legal status (that of the ‘report’), and the practical consequence of that change
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would amount to a significant increase in the likelihood that the plaintiff would
obtain relief that directly redresses the injury suffered.” Id. at 464.
The relief sought in this case—an injunction prohibiting the attorney general
from intervening to defend the Reader System Act and a declaratory judgment
concerning the constitutionality of the Act—is not so directly related to an alleged
injury as the revised census report and the “purely mechanical” apportionment-related
steps that would follow in Evans. Nor is there a relationship between the state
officials and potential private litigants under the Act that suggests the potential
litigants would consider themselves bound to follow an order directed at the state
officials. Whereas the President, as a practical consequence, was substantially likely
in Evans to adopt a report submitted by his cabinet secretary upon order of a federal
court, there is no comparable reason to assume that potential private litigants seeking
damages under the Act would be influenced by an order precluding the state attorney
general’s intervention in their lawsuits or a declaration directed at the state officials.
See Gandy, 416 F.3d at 1159 n.9.
We also reject Digital Recognition’s contention that the decision of an inferior
federal court “binds . . . state judges in Arkansas,” so that a declaratory judgment in
this case would provide full redress for its injury. Arkansas courts are not bound by
federal law to accept the decision of an inferior federal court on the meaning of the
federal Constitution. See Johnson v. Williams, 133 S. Ct. 1088, 1098 (2013);
Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring); Steffel v.
Thompson, 415 U.S. 452, 482 n.3 (1974) (Rehnquist, J., concurring); United States
ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970); see also Daniel
J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1231
n.495 (1986); David L. Shapiro, State Courts and Federal Declaratory Judgments,
74 N.W. U. L. Rev. 759, 771 (1979); Robert M. Cover and T. Alexander Aleinikoff,
Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L. J. 1035, 1053
(1977). The state supreme court’s statement in Malvern Gravel Co. v. Mitchell, 385
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S.W.2d 144, 147 (Ark. 1964), that it was “bound” to follow “decisions of the Federal
Courts” interpreting the Federal Employers’ Liability Act did not address federal
constitutional questions. Compare, e.g., Busch v. Graphic Color Corp., 662 N.E.2d
397, 403 (Ill. 1996) (“[D]ecisions of the Federal courts interpreting a Federal act . . .
are controlling upon Illinois courts.”), with People v. Williams, 641 N.E.2d 296, 321
(Ill. 1994) (“[D]ecisions of lower Federal courts on Federal constitutional questions
are not binding on State courts.”); see Evan H. Caminker, Why Must Inferior Courts
Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 825 & n.32 (1994)
(explaining that “a state court need not follow the holdings of any inferior federal
court,” but that “[t]his doctrinal rule lay somewhat unsettled until recently”).
Arkansas courts might find persuasive the decisions of lower federal courts resolving
federal constitutional questions, but there is no Arkansas precedent requiring
Arkansas courts to treat such decisions as binding authority.
Digital Recognition also raises a series of arguments based on our decisions
applying the Ex Parte Young exception to Eleventh Amendment immunity. A state
official is amenable to suit to enjoin the enforcement of an unconstitutional state
statute only if the officer has “some connection with the enforcement of the act.” Ex
Parte Young, 209 U.S. at 157; see 281 Care Comm. v. Arneson, 638 F.3d 621, 632
(8th Cir. 2011). Without that connection, the officer would be sued merely “as a
representative of the state” in an impermissible attempt to “make the state a party.”
Ex Parte Young, 209 U.S. at 157. Because our court’s decision in Bruning, 455 F.3d
at 864, reasoned that a showing of “some connection” between a state official and
enforcement of a state law for purposes of Ex Parte Young also satisfies the Article
III requirements of causation and redressability, Digital Recognition asserts that our
Eleventh Amendment cases demonstrate the existence of a case or controversy here.
Bruning did not necessarily state a universal rule that equates the Ex Parte Young
exception with Article III standing to sue, cf. Cressman v. Thompson, 719 F.3d 1139,
1146 n.8 (10th Cir. 2013), but we will assume the asserted equivalence for the sake
of analysis and consider Digital Recognition’s arguments in turn.
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A state official’s requisite connection with the enforcement of a state statute
for purposes of Ex Parte Young may arise out of “the general law” or be “specially
created by the act itself.” 209 U.S. at 157. The Reader System Act, however, does
not authorize the Arkansas attorney general or governor to enforce its provisions.
Nor does the executive authority of the governor, Ark. Const. art. VI §§ 2, 7, or of the
attorney general, see Ark. Const. art. VI, §§ 1, 22; Ark. Code §§ 25-16-703, -713(a),
extend to enforcement of the Act. Digital Recognition claims nonetheless that the
“broad powers” of these officials to enforce the Arkansas Constitution and statutes
create a sufficient connection with the Act to permit suit under Ex Parte Young, and
thus to demonstrate Article III standing.
Digital Recognition relies on Bruning, which held that the Nebraska governor
and attorney general were subject to suit to enjoin their enforcement of a Nebraska
constitutional amendment prohibiting same-sex marriage. See Neb. Const. art. I,
§ 29. This court reasoned that the Nebraska officials had a sufficient connection to
enforcement of the amendment, because “[t]he Governor and the Attorney General
have broad powers to enforce the State’s Constitution and statutes.” Bruning, 455
F.3d at 864. But the court’s statement must be read in context. In Bruning, the
“broad powers” of the officials included authority to enforce the constitutional
amendment at issue. The Nebraska attorney general has power to enforce the
Nebraska Constitution by bringing suit for a declaratory judgment that a state statute
is unconstitutional, see State ex rel. Stenberg v. Moore, 544 N.W.2d 344, 346 (Neb.
1996), or for an injunction prohibiting the enforcement of a state statute on the
grounds that it is unconstitutional. See State ex rel. Meyer v. County of Lancaster,
113 N.W.2d 63, 65 (Neb. 1962). The Nebraska governor has some connection to the
enforcement of the Nebraska Constitution because he may direct the attorney general
to file suit to enjoin application of an unconstitutional state statute. See id. That sort
of enforcement authority is lacking with respect to a statute, like the Arkansas law at
issue here, that provides only for private civil enforcement. See Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341-42 (11th Cir. 1999).
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Digital Recognition focuses on a statement in Bruning that there was an Article
III case or controversy even though the challenged constitutional amendment did “not
require affirmative enforcement by any state official.” Bruning, 455 F.3d at 864. But
again, context is critical to proper application of the precedent. The plaintiffs in
Bruning challenged the constitutional amendment on the ground that it denied them
equal access to the legislative process to advocate for legalizing same-sex marriage.
Id. at 863, 865. This court concluded that a case or controversy existed, even without
any affirmative enforcement by the officials, because the amendment would
discourage enactment of legislation permitting same-sex marriage. Id. at 864. But
if the Nebraska legislature were to enact a statute violating the amendment, then the
state officials would have authority to enforce the constitutional prohibition. The
threat of that enforcement surely played an important role in discouraging legislation
and gave the constitutional amendment the effect challenged by the plaintiffs.
Therefore, the state officials had a sufficient connection to enforcement of the state
constitution to permit a suit against them.
Bruning did not eliminate the longstanding requirement that a state official
must have “some connection with the enforcement” of the law at issue before she is
subject to suit. Ex Parte Young, 209 U.S. at 157. The words of the Supreme Court
in Fitts v. McGhee, 172 U.S. 516 (1899), quoted in Ex Parte Young, continue in
force:
If, because they were law officers of the state, a case could be made for
the purpose of testing the constitutionality of the statute, by an
injunction suit brought against them, then the constitutionality of every
act passed by the legislature could be tested by a suit against the
governor and the attorney general, based upon the theory that the
former, as the executive of the state, was, in a general sense, charged
with the execution of all its laws, and the latter, as attorney general,
might represent the state in litigation involving the enforcement of its
statutes. That would be a very convenient way for obtaining a speedy
judicial determination of questions of constitutional law which may be
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raised by individuals, but it is a mode which cannot be applied to the
states of the Union consistently with the fundamental principle that they
cannot, without their assent, be brought into any court at the suit of
private persons.
Id. at 530.
The companies also cite Bruning for the proposition that challengers of a state
law may sue a state attorney general under Ex Parte Young solely because the
attorney general advises the state legislature or other state officials about
constitutionality of a law. But the attorney general in Bruning was responsible for
“policing compliance” with a constitutional amendment not only by advising the
legislature on a bill’s compatibility with the amendment, but also by standing ready
to enforce the amendment against a statute that contravened the constitution. The
Arkansas attorney general’s authority to advise state officials on the constitutionality
of the Reader System Act, by itself, does not suffice to establish “some connection
with the enforcement” of the Act and a causal connection to Digital Recognition’s
alleged injury.
Digital Recognition argues that the attorney general has the necessary
connection to the enforcement of the Act because she may intervene and defend the
Act’s constitutionality in a private suit for damages. See 28 U.S.C. § 2403(b); Fed.
R. Civ. P. 5.1; Ark. Code §§ 16-111-106(b), 25-16-703(a). In a private suit for
damages, however, the provisions of the Act are enforced by the private plaintiff who
invokes the jurisdiction of the court and seeks damages from a particular defendant
for violations of the Act. Ark. Code § 12-12-1807. If the attorney general intervenes
in the case hypothesized by Digital Recognition, her role would be limited to joining
with the private plaintiff in defending the Act’s constitutionality. See 28 U.S.C.
§ 2403(b); Ark. Code § 16-111-106(b); cf. Campbell v. Entergy Ark., Inc., 211
S.W.3d 500, 506 (Ark. 2005). The private litigant alone seeks to enforce private
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rights under the statute, and if the private litigant elects to discontinue the suit, then
the attorney general has no further role in enforcing the statute against the defendant.
Cf. Mobil Oil Corp. v. Attorney General, 940 F.2d 73, 75-77 (4th Cir. 1991) (holding
that pre-enforcement suit could proceed against a state attorney general where the
attorney general had “an independent power to enforce” the statute through civil
actions in the name of the Commonwealth to enjoin any violation).
Digital Recognition also relies on two decisions of this court concluding that
state officials are subject to suit when they are “potentially proper” defendants based
on enforcement authority that is contingent on an intervening act of a third party. See
Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 807 (8th Cir. 2007);
Reprod. Health Servs. of Planned Parenthood v. Nixon, 428 F.3d 1139, 1145 (8th Cir.
2005). By analogy, Digital Recognition submits that the Arkansas attorney general
has a sufficient connection to the Reader System Act, because she has contingent
authority to defend the constitutionality of the Act in the event of a lawsuit by a
private plaintiff. We decline to extend the prior decisions so far. The cited
authorities, while extending Ex Parte Young to situations where an official’s authority
was contingent, did not lessen the requirement that the official have some connection
with the enforcement of the statute. In our prior cases, the Missouri attorney general
was required, when directed by the governor, to aid local prosecutors “in the
discharge of their . . . duties in the trial courts and in examinations before grand
juries.” Mo. Rev. Stat. § 27.030; see 499 F.3d at 807; 428 F.3d at 1145. The attorney
general thus had the authority, albeit contingent, to enforce the statutes at issue by
criminal prosecution brought in the name of the State. The Arkansas attorney
general, by contrast, has no comparable role in enforcing the Reader System Act; she
might join a private litigant in defending the Act’s constitutionality, but the private
litigant alone seeks to enforce private rights under the statute.
Digital Recognition next contends that the attorney general has the requisite
connection with the Reader System Act because she has authority under Arkansas
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statutory and common law to sue violators to enforce the Act. The companies argue
that the attorney general could bring a civil suit against those who violate the Act
under the Arkansas Deceptive Trade Practices Act, Ark. Code § 4-88-101 et seq.
Digital Recognition claims that a violation of the Reader System Act constitutes an
“unconscionable practice” that is prohibited by Ark. Code. § 4-88-107(a)(10). The
Deceptive Trade Practices Act, however, prohibits unconscionable acts or practices
“in business, commerce, or trade,” Ark. Code. § 4-88-107(a)(10), and thus governs
only “consumer-oriented” action. Skalla v. Canepari, 430 S.W.3d 72, 81-82 (Ark.
2013); see Stonebridge Collection, Inc. v. Carmichael, 791 F.3d 811, 822 (8th Cir.
2015). The collection and dissemination of license-plate data prohibited by the
Reader System Act is not consumer-oriented, and thus does not constitute an
unconscionable act subject to the attorney general’s enforcement authority under the
Deceptive Trade Practices Act.
Digital Recognition also argues that the attorney general could enforce the
Reader System Act under Arkansas common law. The companies note that the
attorney general has the authority to initiate equitable proceedings for the abatement
of public nuisances, including “acts which are injurious to public health, safety, or
morals,” State ex rel. Williams v. Karston, 187 S.W.2d 327, 329 (Ark. 1945), and
obstruction of traffic on the highways, see Owens v. Town of Atkins, 259 S.W. 396,
397 (Ark. 1924); Ahrent v. Sprague, 214 S.W. 68, 69 (Ark. 1919). Even if acts
violating the Reader System Act are also actionable as public nuisances, however, the
attorney general’s enforcement action under the common law would not have “some
connection with enforcement” of the Reader System Act. The attorney general’s
authority to seek injunctions against public nuisances is independent of the Act.
Digital Recognition’s next offering is that the attorney general may seek an
injunction prohibiting the company from violating the Reader System Act by virtue
of her common-law authority to bring civil enforcement actions that protect the public
interest. When the Arkansas attorney general “has a specific statutory mandate to
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protect the public interest, traditional common-law prerequisites for an injunction in
civil litigation, such as irreparable harm . . . , are not applicable.” Mercury Mktg.
Techs. of Del., Inc. v. State ex rel. Beebe, 189 S.W.3d 414, 420 (Ark. 2004).
According to Digital Recognition, it follows from Mercury Marketing that the
attorney general, subject to traditional prerequisites for an injunction, may bring an
enforcement action without a specific statutory mandate whenever necessary “to
protect the public interest”—including to enforce the Reader System Act. This
argument reads too much into Mercury Marketing. The case establishes only that
traditional requirements for injunctions do not apply when the attorney general is
authorized by a specific statute to seek relief.
Digital Recognition follows with a contention that the attorney general and
other state agencies authorized to use license plate readers are likely to be defendants
in lawsuits alleging violations of the Act such as impermissible retention of data.
Even assuming such a likelihood, the attorney general’s role in defending against an
action brought by a private litigant under the Act does not establish that the attorney
general has some connection with enforcement of the Act against Digital Recognition.
Cf. 281 Care Cmte., 638 F.3d at 632 (concluding that Ex Parte Young exception
applied based on a state official’s responsibility to defend decisions of a state office
authorized to enforce the challenged statute, combined with the state official’s
authority to become involved in criminal prosecutions enforcing the statute and to file
civil complaints enforcing the statute).
With respect to the governor, Digital Recognition asserts that he is subject to
suit because he may order the attorney general to refrain from defending the
constitutionality of the Act. But because the attorney general does not have the
requisite connection with enforcement of the Act, any supervisory authority of the
governor over the attorney general is also insufficient to establish a case or
controversy.
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* * *
For these reasons, the judgment of the district court is affirmed.
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