Alaska Right to Life v. Feldman ( 2007 )

  •                  FOR PUBLICATION
                   v.                          No. 05-35902
    JEFFREY M. FELDMAN; NANCY                    D.C. No.
    NOLAN; PATRICIA COLLINS; BEN J.          CV-04-00239-A-
    ESCH; THOMAS NAVE; PETER                       RRB
    12878           ALASKA RIGHT TO LIFE v. FELDMAN
    NOLAN; PATRICIA COLLINS; BEN J.             No. 05-36027
    ASCHENBRENNER; RICHARD L.                    D.C. No.
    VAN GOOR,                                    OPINION
             Appeal from the United States District Court
                      for the District of Alaska
             Ralph R. Beistline, District Judge, Presiding
                       Argued and Submitted
                 August 6, 2007—Anchorage, Alaska
                       Filed September 21, 2007
            Before: J. Clifford Wallace, John T. Noonan, and
                    Richard A. Paez, Circuit Judges.
                        Opinion by Judge Paez
                   ALASKA RIGHT TO LIFE v. FELDMAN            12881
    James Bopp, Jr., Thomas J. Marzen, Anita Y. Woudenberg,
    Terre Haute, Indiana, and William F. Sherman, Anchorage,
    Alaska, for plaintiffs-appellants Alaska Right to Life Political
    Action Committee and Michael Miller.
    Jan Hart DeYoung, Anchorage, Alaska, for defendants-
    appellants Jeffrey M. Feldman, Nancy Nolan, Patricia Collins,
    Ben J. Esch, Thomas Nave, Peter Aschenbrenner, Richard L.
    Burton, and Ethel L. Staton.
    Neil T. O’Donnell, Anchorage, Alaska, for defendant-
    appellee Steve Van Goor.
    12882          ALASKA RIGHT TO LIFE v. FELDMAN
    PAEZ, Circuit Judge:
       In October 2002, the Alaska Right to Life Political Action
    Committee (“ARL PAC”) circulated a questionnaire to the
    twelve Alaska state court judges who were seeking retention
    votes in the then-upcoming November 2002 election. The
    questionnaire solicited the judges’ views on a variety of legal
    and political issues such as abortion and assisted suicide. Only
    four judges responded. None indicated a view with respect to
    any of the positions listed in the questionnaire but all provided
    explanations for their decisions not to participate, including
    concern that responding would require subsequent recusal,
    provisions of the Alaska Code of Judicial Conduct (“Code”)
    that prohibit judges from pledging, promising, or committing
    to particular conduct in judicial office, one judge’s personal
    code of judicial ethics, and “advice from Judicial Conduct
    Commission in my state.”
       In October 2004, approximately one month prior to Alas-
    ka’s 2004 general election, ARL PAC and individual
    plaintiff-appellant Michael Miller (collectively “Plaintiffs”)
    brought suit against eight named members of the Alaska
    Commission on Judicial Conduct (“Commission”) and six
    named members of the Disciplinary Commission of the
    Alaska Bar Association (“Bar”), challenging the constitution-
    ality of three provisions in the Alaska Code of Judicial Con-
    duct (“Code”): (1) requiring disqualification from any
    proceeding in which a judge’s impartiality might reasonably
    be questioned; (2) prohibiting judicial candidates from mak-
    ing pledges or promises of particular conduct in judicial
    office; and (3) restricting statements that commit or appear to
    commit a judicial candidate to a particular view or decision
    regarding a case likely to come before the court. ARL PAC
    and Miller alleged that the two canons containing these three
    restrictions chilled judicial candidates from responding to
    their survey, in violation of the First Amendment. ARL PAC
                   ALASKA RIGHT TO LIFE v. FELDMAN            12883
    did not circulate a questionnaire to any of the ten judges who
    were seeking retention in the 2004 election prior to the filing
    of the Complaint, and neither the Commission nor the Bar
    ever threatened to enforce any provision of the Code against
    judges who might have chosen to respond to such a question-
    naire. The district court nonetheless concluded that ARL PAC
    and Miller’s suit was justiciable. On the merits, the court
    invalidated the canon that prohibits pledges and promises of
    conduct in judicial office and statements that commit or
    appear to commit a judicial candidate to a particular view or
    decision but rejected Plaintiffs’ challenge to the canon requir-
    ing disqualification from proceedings in which a judge’s
    impartiality might reasonably be questioned. The parties
    cross-appealed. ARL PAC and Miller also appealed the dis-
    trict court’s orders denying their motion for attorneys’ fees
    and costs against the Commission and granting Defendant-
    Appellee Steve Van Goor’s motion for attorneys’ fees and
    costs against Plaintiffs.
       Because ARL PAC and Miller’s constitutional challenges
    were not ripe, we vacate the district court’s order and judg-
    ment and remand with instructions to dismiss. Without a more
    fully developed factual record, including evidence of some
    real threat of enforcement, and without a showing that with-
    holding federal adjudication would impose hardship on Plain-
    tiffs, we conclude that the district court should have declined
    jurisdiction for lack of a justiciable case or controversy. This
    conclusion renders moot Plaintiffs’ appeal from the order
    denying its motion for attorneys’ fees and costs against the
    Commission and their motion to dismiss the portion of their
    appeal regarding their challenge to the constitutionality of
    Alaska’s disqualification clause. We affirm the district court’s
    order granting attorney’s fees and costs to Van Goor.
      Alaska selects its Supreme Court justices and lower court
    judges through a nomination and appointment procedure.
    12884            ALASKA RIGHT TO LIFE v. FELDMAN
    When a vacancy arises on the state bench, the Alaska Judicial
    Council (“Council”)1 nominates two or more candidates, one
    of whom the governor then appoints to the position. Alaska
    Const. art. IV, § 5. Justices and judges are subject to a non-
    partisan retention vote during the first general election that
    takes place more than three years after their appointment to
    the bench. Id. § 6.2 Thereafter, each Justice stands for reten-
    tion every ten years and each judge stands for retention every
    six years. Id.
       Among its other duties, the Alaska Supreme Court is
    charged with “mak[ing] and promulgat[ing] rules governing
    the administration of all courts,” id. § 15, including the
    Alaska Code of Judicial Conduct. These two appeals concern
    two canons of the Code: Canon 3E(1), which requires that “a
    judge shall disqualify himself or herself in a proceeding in
    which the judge’s impartiality might reasonably be ques-
    tioned,” and Canon 5A(3)(d), which establishes that:
         [a] candidate for judicial office[3] . . . (d) shall not:
         (i) make pledges or promises of conduct in judicial
         office other than to faithfully and impartially per-
         form the duties of the office; (ii) make statements
         that commit or appear to commit the candidate to a
         The Council comprises three attorneys who are selected by the govern-
    ing body of the state bar; three non-attorneys who are appointed by the
    governor; and the Chief Justice of the Alaska Supreme Court. See Alaska
    Const. art. IV, § 8.
         The Alaska Constitution only provides for the Supreme Court and the
    Superior Courts. The Court of Appeals and the district court were sepa-
    rately established by statute; similar merit selection procedures to those
    established in Article IV of the Alaska Constitution for Supreme Court
    justices and Superior Court judges apply to judges on these two other
    courts. See (explaining selection
    and retention procedures).
         The commentary to the canons defines a candidate for judicial office
    as one “seeking selection for or retention in judicial office, whether by
    election or appointment.”
                     ALASKA RIGHT TO LIFE v. FELDMAN                  12885
          particular view or decision with respect to cases,
          controversies or issues that are likely to come before
          the court.
    Subclause (i) of Canon 5A(3)(d) is commonly referred to as
    a “pledge and promise clause;” subclause (ii) is known as a
    “commit clause.” Only the Alaska Supreme Court may
    impose sanctions against judges for violations of the Code,
    see Alaska Stat. §§ 22.30.011(d)(1)(2), 22.30.070(b); that
    court therefore has exclusive authority definitively to interpret
    the Code’s provisions.
       The Commission,4 however, bears the initial burden of
    investigating allegations of judicial misconduct, including
    alleged violations of the Code. Alaska Stat. § 22.30.011(a),
    (b). After conducting an investigation and hearing, the Com-
    mission may either exonerate the judge or “refer the matter to
    the supreme court with a recommendation that the judge be
    reprimanded, suspended, removed, or retired from office or
    publicly or privately censured by the supreme court.” Id.
    § 22.30.011(d). In addition to its investigation and recommen-
    dation duties, Rule 19(a) of the Commission’s Rules of Proce-
    dure authorizes, but does not require, the Commission to issue
    a formal advisory opinion upon written request of a state judi-
    cial officer; such an opinion provides an absolute defense in
    any subsequent disciplinary proceedings based on that con-
    duct. Pursuant to Rule 19(d), however, informal verbal guid-
    ance provided by Commission members and staff has no legal
    effect and does not provide a recognized defense to a later
    disciplinary charge.
       The Disciplinary Commission of the Alaska Bar Associa-
    tion is an entirely separate entity charged with “supervis[ing]
       The Commission consists of nine members: three state court justices or
    judges, three bar members who have practiced law in Alaska for at least
    ten years, and “three persons who are not judges, retired judges, or mem-
    bers of the state bar.” Alaska Stat. art. IV, § 10.
    12886             ALASKA RIGHT TO LIFE v. FELDMAN
    the investigation of all complaints against attorneys.” Bar
    Counsel R. 10(c)(1)(2); see also Bar Counsel R. 11(a)(7)
    (providing that appointed Bar Counsel will “investigate
    alleged misconduct of attorneys”). While the Bar has author-
    ity to enforce Alaska Rule of Professional Conduct 8.2(b),
    which requires that lawyers who are candidates for judicial
    office “comply with the applicable provisions of the Code of
    Judicial Conduct,” and therefore derivatively to interpret the
    Code of Judicial Conduct, it has never done so. This power
    presumably applies only prior to an individual attorney’s ini-
    tial appointment to the bench, as a judicial candidate seeking
    a retention vote is already a judicial officer subject to the
    Commission’s enforcement of the Code.
       In October 2002, ARL PAC, which describes itself as “a
    not-for-profit membership corporation organized to provide
    assistance to the unborn child and to promote social welfare
    and the common good and general welfare of the people of
    the States of Alaska,” circulated a questionnaire to the twelve
    judges who were seeking retention in the upcoming Novem-
    ber 2002 election. The questionnaire listed nine positions
    relating to abortion, assisted suicide, in vitro fertilization and
    cloning, wrongful life, and wrongful birth and asked respon-
    dents to check “Agree,” “Disagree,” “Undecided,” or “De-
    cline” in response to each position.5 A footnote to the
        One item on abortion, for example, asked candidates to indicate their
    position with respect to this statement: “Recognizing the judicial obliga-
    tions to follow binding precedents of higher courts and applicable consti-
    tutional and statutory provisions, to honor stare decisis, and to decide any
    future case based on the law and facts of that case, in accord with the posi-
    tion of the Alaska Right to Life Committee, I believe that the unborn child
    is biologically human and alive and that the right to life of human beings
    should be respected at every stage of their biological development.”
       The item relating to in vitro fertilization asked for candidates’ position
    vis-à-vis the following: “Recognizing the judicial obligation to follow
    binding precedents of higher courts and applicable constitutional and stat-
    utory provisions, to honor stare decisis, and to decide any future case
    based on the law and facts of that case, in accord with the position of the
    Alaska Right to Life Committee, I believe that human beings whose lives
    begin by in vitro fertilization or cloning and who exist outside the body
    of a woman are not personal property and should be treated in accord with
    their best interests in any dispute over their disposition.”
                     ALASKA RIGHT TO LIFE v. FELDMAN                  12887
    “Decline” option stated that checking this response indicated
    the judge’s good faith belief that “under a reasonable con-
    struction of applicable Canons of Judicial Conduct or because
    my recusal would be subsequently required, I must decline to
    respond to this particular question.” A cover letter from ARL
    PAC’s executive director Karen Vosburgh explained the orga-
    nizations’s intention to “inform interested voters of your
    response” and further stated that “if you choose not to respond
    to our questionnaire, we will advise our members to vote for
       On October 16, 2002, the Commission’s executive director
    Marla Greenstein sent Vosburgh a letter that expressed her
    “concerns with Alaska judges responding to the questionnaire
    in any other way than ‘decline.’ ”6 In Greenstein’s view,
          questions that reflect a pre-judgment of a controver-
          sial issue or a judicial philosophy that could predict
          the outcome in a case are to be avoided. So too,
          questions that, if answered, are likely to lead to dis-
          qualification. . . . It is my professional opinion that
          judges who answer the questions in your question-
          naire would be creating situations that would require
          them to be disqualified from sitting on cases involv-
          ing those issues.
    Greenstein also referenced the United States Supreme Court’s
    decision in Republican Party of Minnesota v. White, 
    536 U.S. 765
     (2002), which struck down a provision of Minnesota’s
    code of judicial conduct that forbid any candidate for judicial
    office from “ ‘announc[ing] his or her views on disputed legal
    or political issues.’ ” Id. at 768. Greenstein noted that the
    Alaska Code did not contain such a clause, that distinguish-
    able provisions of the Alaska Code restricted judicial speech,
    and that White arose in the context of a contested judicial
       The record does not reflect how Greenstein learned about the question-
    12888            ALASKA RIGHT TO LIFE v. FELDMAN
    election scheme rather than Alaska’s non-partisan retention
    scheme. Greenstein copied this letter to all Alaska judges.
       Of the twelve questionnaires it distributed, ARL PAC
    received four responses. Justice Walter Carpeneti checked
    “Decline” in response to each question and, on each page of
    the questionnaire, handwrote “might” in place of “would” in
    the footnoted phrase “my recusal would be subsequently
    required.” In an accompanying letter, which, like Greenstein’s
    letter was dated October 16, 2002, Justice Carpeneti
    explained, “I am not at all certain that responding to your
    group’s questions is allowed under the Alaska code and that
    it would not subject me to later recusal.” He did, however, list
    three cases in which he participated as an Alaska Supreme
    Court justice that “rais[ed] some of the issues covered in your
       Judge Charles R. Pengilly checked “Decline” in response to
    all nine questions and submitted a letter, also dated October
    16, 2002, expressing his uncertainty as to whether the
    Supreme Court’s decision in White had any impact on the
    constitutionality on Alaska’s own Code of Judicial Conduct.
    He also relayed that he had discussed the questionnaire with
    Greenstein, who “shares my ambivalence about the impact of
    White . . . but does advise against responding to your ques-
    tions on the ground that recusal would be required in the
    event any of these issues come [sic] before the court.” He
    concluded, “I hesitate to answer only because it is far from
    clear that judges in Alaska have that freedom [to discuss the
    issues in the questionnaire].”7
       Judge Sigurd E. Murphy did not complete the questionnaire
    but submitted a letter, dated October 24, 2002, announcing his
    decision to “decline to respond to your questionnaire gener-
    ally for the reasons set forth in the October 16, 2002 letter
    addressed to you from the Alaska Commission on Judicial
       Judge Pengilly subsequently retired from the bench.
                    ALASKA RIGHT TO LIFE v. FELDMAN              12889
    Conduct.” Judge Murphy also expressed his view that
    responding to the questionnaire would violate his own
    “ ‘Judges’ Code’ which I prepared and have given to attor-
    neys and others interested in my view of the judicial ethics
    that I live by.”
       Judge Jane Kauvar returned the questionnaire, checking
    “Decline” in response to each question. At the end of the
    questionnaire Judge Kauvar wrote simply: “Based on advice
    from Judicial Conduct Commission in My State.” No judge
    sought a formal advisory opinion from the Commission.
       ARL PAC chose not to publish any of these responses; nor
    did it distribute a questionnaire to any of the ten judges who
    sought retention in the next general election, which took place
    in November 2004. Instead, on October 1, 2004, ARL PAC
    and Miller, “an individual and resident of the State of Alas-
    ka,” filed a 42 U.S.C. § 1983 action in the United States Dis-
    trict Court for the District of Alaska against eight named
    members of the Commission and six named members of the
    Bar, all sued in their official capacities. The Complaint raised
    First Amendment challenges to Alaska Canons 3E(1) and
    5A(3)(d)(i) and (ii), asserting that the former was unconstitu-
    tional on its face and that both were unconstitutional as
    applied to the “2004 questionnaire.”8 ARL PAC and Miller
    also asserted that the Commission’s enforcement policy of
    both canons, as expressed in Greenstein’s October 16, 2002,
    letter, unconstitutionally chilled protected political speech.
    Alleging injury to Plaintiffs’ rights to receive—and in ARL-
    PAC’s case also to distribute—judicial campaign speech, the
    Complaint sought declaratory and injunctive relief, costs and
    attorneys’ fees.
      After ARL PAC voluntarily dismissed all Bar members
    except Defendant Van Goor, who heads the Bar’s Disciplin-
       Although the Complaint repeatedly referred to the “2004 question-
    naire,” as noted, ARL PAC never distributed a questionnaire in 2004.
    12890          ALASKA RIGHT TO LIFE v. FELDMAN
    ary Commission, Van Goor filed a motion to dismiss the
    claims against him. The district court granted the motion, in
    light of Plaintiffs’ concession that their lawsuit did not
    involve attorney-applicants and that Van Goor had no author-
    ity to enforce the Code against judicial officers.
       The Commission and ARL PAC and Miller then filed
    cross-motions for summary judgment on the First Amend-
    ment challenges to Canons 3E(1) and 5A(3)(d)(i) and (ii). The
    district court held that ARL PAC and Miller’s claims were
    justiciable and that abstention was “neither warranted nor
    appropriate.” ARL PAC v. Feldman, 
    380 F. Supp. 2d 1080
    1082 (D. Alaska 2005). On the merits, the district court held
    that Canon 5A(3)(d)(i) and (ii) violated the First Amendment
    but that Canon 3E(1) was constitutional. Id. at 1083-84. In a
    post-judgment order, it denied ARL PAC and Miller’s motion
    for costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 on
    grounds that their successful challenge to Canon 5A(3)(d)(i)
    and (ii) “was significantly compromised by their lack of suc-
    cess” in challenging the recusal clause in Canon 3E(1). In a
    separate order the district court granted in part Van Goor’s
    § 1988 motion for costs and attorneys’ fees.
       The Commission timely appealed the district court’s sum-
    mary judgment invalidating Canon 5A(3)(d)(i) and (ii) in No.
    05-35902. ARL PAC and Miller timely appealed the district
    court’s summary judgment upholding Canon 3E(1), denying
    their motion for fees and costs against the Commission, and
    awarding fees and costs to Van Goor in No. 05-36027. After
    briefing for this appeal was complete, ARL PAC and Miller
    filed a motion to dismiss the portion of their appeal in No. 05-
    36027 challenging the district court’s judgment as to the con-
    stitutionality of Canon 3E(1). In light of our conclusion that
    Plaintiffs’ claims are not ripe and that the district court should
    have declined jurisdiction over their cause of action, we deny
    the motion as moot.
                   ALASKA RIGHT TO LIFE v. FELDMAN             12891
       The district court had original jurisdiction under 28 U.S.C.
    § 1331. We have jurisdiction over the parties’ timely cross-
    appeals under § 1291.
       We review de novo a district court’s grant of summary
    judgment, Delta Sav. Bank v. United States, 
    265 F.3d 1017
    1021 (9th Cir. 2001), including legal determinations regarding
    standing and ripeness, Cal. Pro-Life Council, Inc. v. Getman,
    328 F.3d 1088
    , 1093 (9th Cir. 2003). We review the grant or
    denial of attorneys’ fees under 42 U.S.C. § 1988 for abuse of
    discretion. Magg v. Wessler, 
    993 F.2d 718
    , 719 (9th Cir.
       Federal jurisdiction is limited to “actual ‘cases’ and ‘con-
    troversies.’ ” Allen v. Wright, 
    468 U.S. 737
    , 750 (1984). This
    principle of justiciability has both constitutional and pruden-
    tial components. See id. at 750-51 (explaining justiciability
    doctrines). Relevant here are the doctrines of standing and
       Article III standing is a “controlling element[ ] in the defi-
    nition of a case or controversy.” Hein v. Freedom from Reli-
    gion Found. Inc., ___ S. Ct. ___, 
    2007 WL 1803690
    , at *9
    (U.S. June 25, 2007) (internal quotation marks omitted). At an
    “irreducible constitutional minimum,” Article III standing
    requires proof (1) that the plaintiff suffered an injury in fact
    that is “concrete and particularized” and “actual or imminent,
    not conjectural or hypothetical;” (2) of a causal connection
    between that injury and the complained-of conduct; and (3)
    that a favorable decision will likely redress the alleged injury.
    See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61
    (1992). In addition to these Article III requirements of injury
    in fact, causation, and redressibility, prudential standing con-
    cerns require that we consider, for example, whether the
    12892             ALASKA RIGHT TO LIFE v. FELDMAN
    alleged injury is more than a “mere generalized grievance,”
    whether the plaintiff is asserting her own rights or the rights
    of third parties, and whether the claim “falls within the zone
    of interests to be protected or regulated by the constitutional
    guarantee in question.” See Johnson v. Stuart, 
    702 F.2d 193
    196 (9th Cir. 1983) (internal quotation marks omitted).
       Like standing, the ripeness doctrine has both constitutional
    and prudential components. See Nat’l Park Hospitality Ass’n
    v. Dep’t of the Interior, 
    538 U.S. 803
    , 808 (2003) (“The ripe-
    ness doctrine is ‘drawn both from Article III limitations on
    judicial power and from prudential reasons for refusing to
    exercise jurisdiction.’ ” (quoting Reno v. Catholic Soc. Servs.,
    509 U.S. 43
    , 57 n.18 (1993))). For purposes of a preen-
    forcement challenge such as ARL PAC and Miller’s, the con-
    stitutional ripeness inquiry focuses on
          (1) whether the plaintiffs have articulated a concrete
          plan to violate the law in question, (2) whether the
          prosecuting authorities have communicated a spe-
          cific warning or threat to initiate proceedings, and
          (3) the history of past prosecution or enforcement
          under the challenged statute.
    Getman, 328 F.3d at 1094 (internal quotation marks omitted).9
    Prudential ripeness, in turn, involves “two overarching con-
    siderations: the fitness of the issues for judicial review and the
    hardship to the parties of withholding court consideration.”
    Thomas, 220 F.3d at 1141(internal quotation marks omitted).
        The constitutional component of ripeness often overlaps with the
    injury-in-fact prong of Article III standing. See Thomas v. Anchorage
    Equal Rights Comm’n, 
    220 F.3d 1134
    , 1138 (9th Cir. 2000) (en banc)
    (referring to ripeness as “standing on a timeline”); see also id. at 1138-39
    (“The constitutional component of the ripeness inquiry is often treated
    under the rubric of standing and, in many cases, ripeness coincides
    squarely with standing’s injury in fact prong.”).
                   ALASKA RIGHT TO LIFE v. FELDMAN             12893
       For the reasons that follow, we conclude that the district
    court should have declined to exercise jurisdiction on pruden-
    tial ripeness grounds, given the inadequately developed record
    and the absence of a showing that withholding jurisdiction
    would impose hardship on the parties. As a result, we need
    not reach the question of Plaintiffs’ standing. See Arizonans
    for Official English v. Arizona, 
    520 U.S. 43
    , 66-67 (1997)
    (explaining that a court may properly assume standing in
    order to analyze mootness because both questions “go[ ] to
    the Article III jurisdiction of this Court and the courts below,
    not to the merits of the case”).
       [1] In considering whether the record before us is fit for
    review, we begin with the principle that a court cannot decide
    constitutional questions in a vacuum. See Thomas, 220 F.3d
    at 1141. While “pure legal questions that require little factual
    development are more likely to be ripe,” a party bringing a
    preenforcement challenge must nonetheless present a “con-
    crete factual situation . . . to delineate the boundaries of what
    conduct the government may or may not regulate without run-
    ning afoul” of the Constitution. San Diego Gun Rights Comm.
    v. Reno, 
    98 F.3d 1121
    , 1132 (9th Cir. 1996). We lack such a
    “concrete factual situation” here. Although Alaska Statute
    section 22.30.011(a)(3)(E) authorizes the Commission, on its
    own motion or upon receipt of a written complaint, to inquire
    into an allegation that a judge has acted in violation of the
    Code, the record here does not show that the Commission has
    so much as contemplated that such an inquiry might be war-
    ranted were a judge to respond to ARL PAC’s questionnaire.
    No judge requested—and the Commission therefore did not
    issue—a formal advisory opinion on the propriety of respond-
    ing to the questionnaire. Executive Director Greenstein’s let-
    ter, which did not threaten investigation, at most constituted
    informal guidance and, therefore, under the Commission’s
    own Rule of Procedure 19(d), had no legal effect.
    12894            ALASKA RIGHT TO LIFE v. FELDMAN
       Even if the Commission had initiated an inquiry against a
    judge who responded to ARL PAC’s questionnaire and then
    recommended sanctions,10 we would still lack any reason to
    expect the Alaska Supreme Court to adopt and act upon a rec-
    ommendation that ran afoul of the First Amendment. Our only
    insight into the Alaska Supreme Court’s likely construction of
    any of the challenged clauses is the commentary to Canon
    5A(3)(d), which discusses a Seventh Circuit case that struck
    down, on First Amendment grounds, an Illinois canon that is
    similar but not identical to Canon 5A(3)(d). See Buckley v.
    Ill. Judicial Inquiry Bd., 
    997 F.2d 224
     (7th Cir. 1993). The
    commentary to Canon 5A(3)(d) concludes that “[t]he [Alaska]
    Code should be interpreted in a manner that does not infringe
    First Amendment rights,” indicating a strong likelihood that
    the Alaska Supreme Court would construe the canon to avoid
    the constitutional concerns addressed in Buckley and White.
       [2] The fact that Alaska’s high court has not yet had an
    opportunity to construe the canons at issue here or to apply
    them to the speech ARL PAC and Miller hope to solicit fur-
    ther militates in favor of declining jurisdiction. See Renne v.
    501 U.S. 312
    , 323 (1991) (explaining that
    “[p]ostponing consideration of the [constitutional] questions
    presented, until a more concrete controversy aries, also has
    the advantage of permitting the state courts further opportu-
    nity to construe [the challenged law], and perhaps in the pro-
    cess to materially alter the question to be decided” (internal
    quotation marks omitted)). Because only the Alaska Supreme
    Court has authority to impose disciplinary measures for viola-
    tions of the Code, see Alaska Stat. §§ 22.30.011(d)(2),
    22.30.070, it alone has the ultimate authority to construe and
    apply the provisions at issue here. On this record, an open
    question exists whether that court would act on a hypothetical
         As noted, upon the Commission’s recommendation the Alaska
    Supreme Court may reprimand, suspend, or publicly or privately censure
    a judge; additional measures include removing or retiring the judge from
    office. Alaska Stat. § 22.30.011(d)(2).
                   ALASKA RIGHT TO LIFE v. FELDMAN             12895
    recommendation by the Commission to discipline a judge
    who responded to the questionnaire, let alone whether it
    would do so on the basis of the specific provisions that ARL
    PAC and Miller challenge. Declining jurisdiction not only
    gives the Alaska Supreme Court the first opportunity to con-
    strue the canons in the context of judicial campaign speech,
    should the appropriate circumstances arise, but to do so in a
    manner that comports with the United States Supreme Court’s
    decision in White. See Christian Coal. of Alabama v. Cole,
    355 F.3d 1288
    , 1291 n.1 (11th Cir. 2004) (affirming district
    court’s dismissal for lack of jurisdiction in a similar challenge
    and noting that the Alabama Supreme Court should have the
    first opportunity to construe its code of judicial conduct in the
    aftermath of White).
       [3] Without a clearer showing that a judge would reason-
    ably risk discipline by responding to the questionnaire, this
    record is therefore unfit to review Plaintiffs’ First Amendment
    claims. See Babbitt v. United Farm Workers Nat’l Union, 
    442 U.S. 289
    , 304 (1979) (concluding, on prudential ripeness
    grounds, that the district court should not have exercised juris-
    diction when it was “impossible to know” whether the State
    would apply the challenged statutory provision in the manner
    plaintiffs alleged would implicate constitutional concerns and
    refusing to adjudicate the constitutional claim based solely on
    a “hypothesi[s] that such an event will come to pass”); cf.
    Duke Power Co. v. Carolina Envt’l Study Group, Inc., 
    438 U.S. 59
    , 81-82 (1978) (concluding that “[t]he prudential con-
    siderations embodied in the ripeness doctrine” weighed in
    favor of “prompt [federal court] resolution of the claims pre-
    sented” when delaying adjudication would put the court in
    “ ‘no better position later than we are now’ to decide this
    question” (quoting Blanchette v. Conn. Gen. Ins. Co., 
    419 U.S. 102
    , 143-45 (1974))).
       [4] Just as ARL PAC and Miller’s failure to demonstrate a
    likelihood of enforcement of the challenged canons against
    12896          ALASKA RIGHT TO LIFE v. FELDMAN
    the judicial speech they would like to solicit renders their suit
    presently unfit for review, it also weighs against a conclusion
    that withholding federal jurisdiction would impose hardship.
    In First Amendment contexts, the Supreme Court has recog-
    nized that the harm suffered by a party who restricts allegedly
    protected speech in order to avoid civil sanction or criminal
    penalty may warrant preenforcement review in some cases.
    See, e.g., Virginia v. Am. Booksellers Ass’n, 
    484 U.S. 383
    393 (1988) (concluding that a preenforcement challenge was
    justiciable when plaintiffs restricted their speech based on “an
    actual and well-founded fear that the law will be enforced
    against them”). A court may adopt this somewhat relaxed
    approach to justiciability, however, only upon a showing that
    the plaintiff “is immediately in danger of sustaining[ ] a direct
    injury as a result of [an executive or legislative] action.” Laird
    v. Tatum, 
    408 U.S. 1
    , 12-13 (1972). There is no such showing
       [5] In San Diego Gun Rights Committee, we concluded that
    the plaintiffs would not suffer hardship if we declined juris-
    diction over their preenforcement challenge because they had
    not shown a credible threat of enforcement so as to justify
    judicial review. See 98 F.3d at 1132 (explaining that when
    “none of the plaintiffs have been charged under the [chal-
    lenged] Act with any criminal violation” and did not “face a
    credible threat of prosecution,” they could not demonstrate
    hardship sufficient to warrant jurisdiction). ARL PAC and
    Miller’s claim of hardship is even weaker than that in San
    Diego Gun Rights Committee. Not only is there a lack of any
    credible threat of enforcement, but neither plaintiff is poten-
    tially subject to enforcement of the Code. Even with a more
    convincing showing that a judge reasonably risked discipline
    by responding to the questionnaire, “[t]he self-censorship
    door to standing does not open for every plaintiff. The poten-
    tial plaintiff must have an ‘actual or well-founded fear that the
    law will be enforced against him or her.’ ” Getman, 328 F.3d
    at 1095 (quoting Am. Booksellers, 484 U.S. at 393) (emphasis
    added). ARL PAC’s decision not to circulate a 2004 question-
                   ALASKA RIGHT TO LIFE v. FELDMAN             12897
    naire at most can be chalked up to futility rather than First
    Amendment chill. Because the organization would not itself
    have risked civil sanction or criminal penalty, it has not “suf-
    fered the constitutionally recognized injury of self-
    censorship.” Getman, 320 F.3d at 1095; cf. Am. Booksellers,
    484 U.S. at 392 (finding that plaintiffs suffered self-
    censorship when the challenged statute was “aimed directly at
    plaintiffs”); Canatella v. California, 
    304 F.3d 843
    , 855 (9th
    Cir. 2002) (concluding that plaintiff attorney’s challenge to
    state bar statutes was ripe when he faced a credible threat of
    future disciplinary proceedings so as to pose “ongoing harm
    to the expressive rights of [other] California attorneys to the
    extent they refrain from what [plaintiff] believes to be consti-
    tutionally protected activity”); ACLU v. Fla. Bar, 
    999 F.2d 1486
    , 1492 (11th Cir. 1993) (holding that a judicial candidate
    suffered the injury of self-censorship when defendant’s threat-
    ened enforcement of the challenged regulations “placed
    [plaintiff] in the position of having to refrain from potentially
    protected political speech in order to avoid possible disciplin-
    ary action”).
       [6] Nor will delaying adjudication prejudice ARL PAC and
    Miller’s ability to vindicate their constitutional claims later,
    with a better factual record. See San Diego Gun Rights
    Comm., 98 F.3d at 1133 (concluding that dismissal would not
    create undue hardship because “Plaintiffs will have the oppor-
    tunity to raise their constitutional objections . . . if and when
    the government initiates a criminal prosecution against them
    under the [challenged] statute”).
       [7] Our decision that the district court should have declined
    jurisdiction renders moot ARL PAC and Miller’s appeal from
    the district court’s order denying their motion for attorneys’
    fees and costs against the Commission: because they are no
    longer the prevailing parties they are not entitled to fees under
    42 U.S.C. § 1988. Our jurisdictional holding also renders
    12898           ALASKA RIGHT TO LIFE v. FELDMAN
    moot their motion to dismiss the portion of their appeal from
    the district court’s judgment denying their challenge to Canon
      The only remaining matter is ARL PAC and Miller’s
    appeal from the district court’s order granting attorneys’ fees
    and costs to Van Goor. As an initial matter, we note that a
    court may award attorneys’ fees and costs even after dismiss-
    ing for lack of jurisdiction. See 28 U.S.C. § 1919;
    Corp. v. L.L. Bean Inc., 
    398 F.3d 1125
    , 1139 (9th Cir. 2005).
       Section 1988 provides that “[i]n any action or proceeding
    to enforce a provision of [§ 1983], . . . the court, in its discre-
    tion, may allow the prevailing party . . . a reasonable attor-
    ney’s fee.” A prevailing defendant may recover attorneys’
    fees when a § 1983 plaintiff’s claims are “groundless, without
    foundation, frivolous, or unreasonable.” Karam v. City of Bur-
    352 F.3d 1188
    , 1195 (9th Cir. 2003) (internal quotation
    marks omitted). “The terms ‘frivolous’, ‘unreasonable’ and
    ‘without foundation’ as used in this context do not have
    appreciably different meanings.” Thomas v. Bible, 
    983 F.2d 152
    , 154 n.2 (9th Cir. 1993).
       [8] The district court did not abuse its discretion by award-
    ing Van Goor attorneys’ fees and costs. Because ARL PAC
    never distributed its questionnaire to any attorney-applicants,
    Van Goor never had an opportunity even to consider enforc-
    ing the challenged canons, by way of his authority to enforce
    Alaska Rule of Professional Conduct 8.2(b). The “result” of
    the claims against Van Goor were therefore both “obvious . . .
    [and] wholly without merit,” Karam, 352 F.3d at 1195 (inter-
    nal quotation marks and alteration omitted), entitling Van
    Goor to fees. See also Price v. Hawaii, 
    939 F.2d 702
    , 709 (9th
    Cir. 1991) (affirming a grant of attorneys’ fees to the prevail-
    ing defendant under § 1988 when the complaint “patently
    failed to state a claim” and lacked any factual basis).
                   ALASKA RIGHT TO LIFE v. FELDMAN             12899
       ARL PAC and Miller’s challenges to Canons 3E(1) and
    5A(3)(d)(i) and (ii) are not ripe for federal review. The factual
    record does not show that even one judge who was subject to
    the challenged canons’ enforcement in 2004 had a clear inten-
    tion to violate them, that the Commission plans to enforce
    these canons, or that the Alaska Supreme Court would inter-
    pret them in a way that would restrict the speech ARL PAC
    and Miller hope to solicit. Nor will delaying adjudication hin-
    der ARL PAC and Miller’s ability to bring their challenges
    later with a more fully developed factual record. The next
    general election in which any current judge will stand for
    retention will take place in November 2008, leaving Plaintiffs
    plenty of time to develop a stronger record and then to seek
    review in either state or federal court, sufficiently in advance
    of the election. Moreover, because neither ARL PAC nor Mil-
    ler are themselves subject to the challenged canons, they face
    no risk of self-censorship.
       [9] We therefore vacate the district court’s order granting
    summary judgment and the judgment. In No. 05-35902, we
    remand with instructions to dismiss the Plaintiffs’ action. In
    No. 05-36027, we affirm the district court’s order granting
    attorneys’ fees and costs to Van Goor, deny Plaintiffs’ chal-
    lenge to the district court’s order regarding the constitutional-
    ity of Canon 3E(1), and deny as moot Plaintiffs’ motion to
    dismiss that portion of their appeal.
    IN PART.

Document Info

DocketNumber: 05-35902

Filed Date: 9/21/2007

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (27)

Pittman v. Cole , 355 F.3d 1288 ( 2004 )

Laird v. Tatum , 408 U.S. 1 ( 1972 )

Regional Rail Reorganization Act Cases , 419 U.S. 102 ( 1974 )

Duke Power Co. v. Carolina Environmental Study Group, Inc. , 438 U.S. 59 ( 1978 )

Babbitt v. Farm Workers , 442 U.S. 289 ( 1979 )

Allen v. Wright , 468 U.S. 737 ( 1984 )

Virginia v. American Booksellers Assn., Inc. , 484 U.S. 383 ( 1988 )

Renne v. Geary , 501 U.S. 312 ( 1991 )

Lujan v. Defenders of Wildlife , 504 U.S. 555 ( 1992 )

Reno v. Catholic Social Services, Inc. , 509 U.S. 43 ( 1993 )

Arizonans for Official English v. Arizona , 520 U.S. 43 ( 1997 )

Republican Party of Minn. v. White , 536 U.S. 765 ( 2002 )

National Park Hospitality Association v. Department of the ... , 538 U.S. 803 ( 2003 )

nely-l-johnson-mark-t-johnson-by-his-guardian-ad-litem-pamela , 702 F.2d 193 ( 1983 )

dr-nui-loa-price-aka-maui-loa-individually-and-in-his-capacity-as-chief , 939 F.2d 702 ( 1991 )

Carl Wesley Thomas v. Paul Bible , 983 F.2d 152 ( 1993 )

Garth Maag v. Richard Wessler Valley County, Montana , 993 F.2d 718 ( 1993 )

robert-c-buckley-and-illinois-judges-association-intervening-v-illinois , 997 F.2d 224 ( 1993 )

American Civil Liberties Union and Larry Schack v. The ... , 999 F.2d 1486 ( 1993 )

96-cal-daily-op-serv-7760-96-daily-journal-dar-12811-san-diego , 98 F.3d 1121 ( 1996 )

View All Authorities »