Citizens for Resposible Govern. V. Davidson, Nos. 99-1414

Page 1174

236 F.3d 1174 (10th Cir. 2000)

CITIZENS FOR RESPONSIBLE GOVERNMENT STATE POLITICAL ACTION COMMITTEE; STEVE DURHAM; PHIL PANKEY; COLORADO STATE REPUBLICAN CENTRAL COMMITTEE; COLORADO REPUBLICANS FOR CHOICE, an unincorporated Colorado political committee; CROWN POINT COMMUNICATIONS, INC., a Colorado corporation; DOROTHY S. WHAM; WILLIAM THIEBAUT, JR.; DONNA MULLINS GOOD; COLORADO EDUCATION ASSOCIATION EDUCATION POLITICAL ACTION COMMITTEE, a Colorado nonprofit corporation, Plaintiffs-Appellees and Cross-Appellants, and COLORADO RIGHT TO LIFE COMMITTEE, INC.; CITIZENS FOR RESPONSIBLE GOVERNMENT, INC.; LIBERTARIAN PARTY OF COLORADO; LIBERTARIAN PARTY OF DENVER; SANDRA JOHNSON; DOUGLAS E. ANDERSON; DAVID AITKEN; FRED GREENE; FIREARMS COALITION OF COLORADO, INC.; WILLIAM PITTMAN; GREG WALERIUS, Plaintiffs-Cross-Appellants, v. DONETTA DAVIDSON, in her official capacity as the Secretary of State for the State of Colorado, Defendant-Appellant and Cross-Appellee.

REPUBLICAN NATIONAL COMMITTEE; COMMON CAUSE; LEAGUE OF WOMEN VOTERS OF COLORADO; ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, COLORADO CHAPTER, Amici Curiae.

TERRY L. PHILLIPS, Plaintiff-Appellee and Cross-Appellant, v. DONETTA DAVIDSON, Secretary of State of the State of Colorado, Defendant-Appellant and Cross-Appellee.

Nos. 99-1414, 99-1431, 99-1434, 99-1435, 99-1570 & 99-1574

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 26, 2000

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. Nos. 96-S-2844, 96-S-2973, 97-S-221 & 98-S-2412)

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[Copyrighted Material Omitted] Maurice G. Knaizer, Deputy Attorney General, States Services Section (Ken Salazar, Attorney General, Paul Farley, Special Assistant Attorney General, with him on the briefs) Denver, Colorado, for the Defendant-Appellant-Cross-Appellee.

James Bopp, Jr. (Heidi K. Meyer, with him on the briefs), Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Plaintiff-Appellee-Cross-Appellant Citizens for Responsible Government State Political Action Committee and Plaintiffs-Cross-Appellants Colorado Right to Life Committee, Inc., et al.; Timothy M. Tymkovich, Hale, Hackstaff, Tymkovich & Erkenbrack, LLP, Denver, Colorado, for Plaintiffs-Appellees-Cross-Appellants Steve Durham et al. and Plaintiffs-Cross-Appellants Libertarian Party of Colorado et al.; Blain D. Myhre (Edward T. Ramey, with him on the briefs), Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, Colorado, for Plaintiffs-Appellees-Cross-Appellants Colorado Republicans for Choice et al.

Robert F. Hill (Jennifer H. Hunt, with him on the brief) Hill & Robbins, P.C., Denver, Colorado, for the Amici Curiae Common Cause and the League of Women Voters of Colorado.

Michael W. Grebe, General Counsel, Thomas J. Josefiak, Chief Counsel, and Alexander N. Vogel, Deputy Counsel, Republican National Committee, Washington, D.C., filed an amicus brief for the Republican National Committee.

Gregory Luke, John C. Bonifaz and Brenda Wright, National Voting Rights Institute, Boston, Massacushetts, filed an amicus brief for the Association of Community Organizations for Reform Now, Colorado Chapter.

Maurice G. Knaizer, Deputy Attorney General, States Services Section (Ken Salazar, Attorney General, with him on the briefs) Denver, Colorado, for the Defendant-Appellant-Cross-Appellee.

Blain D. Myhre (Edward T. Ramey, with him on the briefs) Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, Colorado, for the Plaintiff-Appellee-Cross-Appellant.

Before KELLY, HENRY, Circuit Judges, and SHADUR, District Judge.^*

KELLY, Circuit Judge.

These appeals arise out of four cases filed in the District of Colorado. In each case, the plaintiffs challenged one or more provisions of Colorado's Fair Campaign Practices Act ("FCPA"), Colo. Rev. Stat. 1-45-101 to -118, on First and Fourteenth Amendment grounds. The district court dismissed some plaintiffs for lack of standing, upheld most of the challenged provisions, and invalidated others as unconstitutional. All parties appealed, addressing various subsections of Colo. Rev. Stat. 1-45-103 (Definitions), 1-45-104 (Contribution Limits), 1-45-105 (Voluntary Spending Limits), 1-45-106 (Unexpended Contributions), and 1-45-107 (Independent Expenditures).¹ While the appeals were pending, the Colorado General Assembly substantially amended the FCPA. See Act of March 15, 2000, H.B. 00-1194, 12, 2000 Colo. Legis. Serv. 36 (West) [hereinafter "H.B. 00-1194"]. Various definitions in 103 were added, deleted, or amended. Section 104 was repealed and replaced with 105.3. Section 105 was repealed and not replaced. Section 106(1) was amended; 106(2) was deleted. Section 107 was unaffected.

Because we hold that the challenges to former 103(12), 104, 105, 106(2) are now moot, we vacate the portions of the district court's orders that deal with those sections or with individual plaintiffs' standing to challenge them. The appeal as to 106(1) is dismissed. We reverse the district court's judgment as to 103(7), 103(10), 103(11), 107(1), and 107(2).

Discussion

As stated above, this case includes appeals and cross-appeals from four separate district court actions. Our review of the record, the parties' notices of appeal, and the briefs indicates that the following provisions of the (pre-H.B. 00-1194) FCPA are at issue here: Colo. Rev. Stat. 1-45-103(7), -103(10), -103(11), -103(12), -104(1), -104(2), -104(4), -104(5), -104(7), -105 generally, -105(1), -105(2), -105(3), -105(4), -105(5), -105(6), -105(7), -106(1), -106(2), -107(1), and -107(2).² In addition to the substantive validity of the statutes, the parties have also briefed numerous questions relating to standing and ripeness. As explained below, many of the foregoing issues have been mooted by the passage of H.B. 00-1194.

I. Mootness

Because "the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction," the court must determine whether a case is moot before proceeding to the merits. McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (citing Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir. 1991)). "A case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 120 S. Ct. 1382, 1390 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (citation omitted)). The crucial question 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) (quotations and citations omitted). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quotations and citations omitted). The parties must continue to have a personal stake in the outcome throughout the case.

A. Generally

In general, the repeal of a challenged statute is one of those events that makes it "absolutely clear that the allegedly wrongful behavior" here, the threat of prosecution under one of the repealed sections "could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120 S. Ct. 693, 708 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968)). Indeed, this court has held that "[a] declaratory judgment on the validity of a repealed [statute] is a textbook example of advising what the law would be upon a hypothetical state of facts." Nat'l Adver. Co. v. City & County of Denver, 912 F.2d 405, 412 (10th Cir. 1990) (quotations and citations omitted). The parties have no legally cognizable interest in the constitutional validity of an obsolete statute. Thus, the parties' challenges to the single-entity requirement in 103(12), to 105 as a whole and with respect to particular subsections, and to 106(2) are clearly moot. See H.B. 00-1194, 2 (deleting challenged language in Colo. Rev. Stat. 1-45-103(12)); 12 (repealing Colo. Rev. Stat. 1-45-105); 4 (deleting Colo. Rev. Stat. 106(2)).

The General Assembly also repealed 104, see H.B. 00-1194, 12, but enacted a new contribution limitation statute in its place. See H.B. 00-1194, 1, codified at Colo. Rev. Stat. 1-45-105.3 (2000). Where a new statute "is sufficiently similar to the repealed [statute] that it is permissible to say that the challenged conduct continues," the controversy is not mooted by the change, and a federal court continues to have jurisdiction. Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 & n.3 (1993); see also Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000) ("[A] superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law.") (quotations and citation omitted); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1548 (8th Cir. 1996). We have carefully compared each challenged provision in 104 to the most analogous provision in 105.3, and we conclude that the differences between the statutes are too numerous and too fundamental to preserve our jurisdiction over the 104 challenges. Compare Colo. Rev. Stat. 1-45-104(2), -104(5) (1999), with Colo. Rev. Stat. 1-45-105.3(1) (2000); compare Colo. Rev. Stat. 1-45-104(4) (1999), with Colo. Rev. Stat. 1-45-105.3(2)(c) (2000); compare Colo. Rev. Stat. 1-45-104(7) (1999), with Colo. Rev. Stat. 1-45-105.3(3) (2000).³ Accordingly, the parties' appeals with respect to subsections (1), (2), (4), (5), and (7) of 104 are all moot.

B. Standing/Ripeness

A number of appellants and cross-appellants also contend that the district court erred in upholding or denying the standing of various parti...