Jones v. Jegley

947 F.3d 1100

Peggy JONES, Plaintiff - Appellee

v.Larry JEGLEY, Prosecuting Attorney for Pulaski County, In His Official Capacity; Sybal Jordan Hampton, In Her Official Capacity as a Member of the Arkansas Ethics Commission; Tony Juneau, In His Official Capacity as a Member of the Arkansas Ethics Commission; Ashley Driver Younger, In Her Official Capacity as a Member of the Arkansas Ethics Commission; Alice L. Eastwood, In Her Official Capacity as a Member of the Arkansas Ethics Commission; Lori Klein, In Her Official Capacity as a Member of the Arkansas Ethics Commission, Defendants - Appellants

Institute for Free Speech, Amicus on Behalf of Appellee(s)

No. 19-2260

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2019

Filed: January 27, 2020

Counsel who presented argument on behalf of the appellant was Brittany Nicole Edwards, AAG, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; William C. Bird, AAG, of III, AAG, of Little Rock, AR., Daniel L. McFadden, AAG, of Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Chad W. Pekron, of Little Rock, AR. The following attorney(s) appeared on the appellee brief; John E. Tull, III, of Little Rock, AR., Thomas Christoph Keller, of Little Rock, AR., Brittany S. Ford, of Little Rock, AR.

The following attorney(s) appeared on the amicus brief; Allen J. Dickerson, of Washington, DC., Parker Douglas, of Washington, DC.

Before KELLY, MELLOY, and STRAS, Circuit Judges.

STRAS, Circuit Judge.

Peggy Jones wishes to donate to candidates running for state office in Arkansas’s 2022 election. Arkansas law prohibits her from doing so until two years before election day. Jones claims that this "blackout period" violates her First Amendment rights. The district court¹ concluded that she is likely to win and granted a preliminary injunction. We affirm.

I.

In Arkansas, individuals may donate up to $2,700 to a candidate for public office for the primary election and then donate up to the same amount once again for the general election. Ark. Code § 7-6-203(b)(1) ; see id. § 7-6-201(7) (providing that a primary election and a general election "each constitute[s] a separate election"). But there is a catch: candidates can only accept contributions within two years of an election. Id. § 7-6-203(e). If money changes hands during a "blackout period," Arkansas has been clear that both the donor and the candidate who received the contribution can be prosecuted. Brief of Appellants at 1; see Ark. Code § 7-6-202.

Jones is a "longtime political activist" who has frequently donated to political campaigns in Arkansas. She wants to donate now to candidates who have expressed a willingness to run in 2022. But her fear of prosecution, at least according to her complaint, has stopped her in her tracks. Hoping to clear the path, however, she has filed a lawsuit challenging the blackout period and has named Pulaski County Prosecutor Larry Jegley and the Commissioners of the Arkansas Ethics Commission (collectively, "Arkansas") as the defendants.² After concluding that Jones was likely to win on the merits, the district court granted her request for a preliminary injunction. Arkansas asks us to vacate the injunction on appeal. See 28 U.S.C. § 1292(a)(1).

II.

Our starting point is jurisdiction, and specifically whether Jones has established standing to sue. Standing has three requirements: (1) an injury in fact; (2) a causal connection between the injury and the challenged law; and (3) a likelihood that a favorable decision will redress the injury. Telescope Media Grp. v. Lucero , 936 F.3d 740, 749 (8th Cir. 2019) (citing Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) ). The dispute is over the first one: whether Jones has suffered an injury in fact.

At this stage, we assume that the allegations in the complaint are true and view them in the light most favorable to Jones. See Heartland Acad. Cmty. Church v. Waddle , 335 F.3d 684, 689 (8th Cir. 2003) ; see also Lujan v. Def. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (explaining that "each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation"). Under this standard, Jones must have alleged in her complaint, at a minimum, that she has "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and ... a credible threat of prosecution thereunder." Susan B. Anthony List v. Driehaus , 573 U.S. 149, 159, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (citation omitted) (explaining how to establish an injury in fact in a pre-enforcement constitutional challenge); see also 281 Care Comm. v. Arneson , 638 F.3d 621, 627 (8th Cir. 2011) (stating that "[s]elf-censorship can ... constitute [an] injury in fact" for a free-speech claim when a plaintiff reasonably decides "to chill [her] speech in light of the challenged statute").

Jones’s complaint clears this hurdle. In it, she alleges that she would donate to candidates running in the 2022 election if it were not illegal to do so. This general expression of intent is enough. See Ark. Right to Life State Political Action Comm. v. Butler , 146 F.3d 558, 560 (8th Cir. 1998) ; see also Constitution Party of S.D. v. Nelson , 639 F.3d 417, 420 (8th Cir. 2011) (concluding that " ‘general factual allegations of injury resulting from the defendant’s conduct’ will suffice to establish Article III standing at the pleading stage" (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 )).

She did not stop there. Once Arkansas began to question whether she had standing, she filed an affidavit expressing her desire to donate to Arkansas State Senator Mark Johnson. The affidavit stated that she has donated to Johnson before and wishes to make another contribution in advance of the 2022 election. See Davis v. Anthony, Inc. , 886 F.3d 674, 677 (8th Cir. 2018) (noting the "wide discretion" of trial courts to consider affidavits and other evidence of "disputed jurisdictional facts" at the pleading stage (citation omitted)). Together, the allegations in Jones’s complaint and the affidavit leave us with no doubt that she has done enough at this stage to establish an intended "course of conduct arguably affected with a constitutional interest." Susan B. Anthony List , 573 U.S. at 159, 134 S.Ct. 2334 (citation omitted).

Jones has also adequately alleged a credible threat of prosecution. Arkansas insists that donors who make contributions during a blackout period, as Jones wants to do, can be prosecuted for "knowingly fail[ing] to comply" with campaign-finance laws. Ark. Code § 7-6-202. Nevertheless, Arkansas argues that any threat of prosecution at this point is not "credible" because Jones has not actually violated the statute. We have repeatedly rejected the argument that a plaintiff must risk prosecution before challenging a statute under the First Amendment, and we do so again here. See, e.g. , Telescope Media Grp. , 936 F.3d at 749 ; 281 Care Comm. , 638 F.3d at 627 ; St. Paul Area Chamber of Commerce v. Gaertner , 439 F.3d 481, 485 (8th Cir. 2006) ; Ark. Right to Life , 146 F.3d at 560. As we explained in 281 Care Committee , as long as there is no "evidence—via official policy or a long history of disuse—that authorities" have "actually" refused to enforce a statute, a plaintiff’s fear of prosecution for illegal activity is objectively reasonable. 638 F.3d at 628.

Arkansas also argues that there is no credible threat of prosecution because Senator Johnson has not yet become a "candidate" under Arkansas law. Ark. Code § 7-6-201(2). To be sure, Senator Johnson has not, as Arkansas points out, "publicly announced" that he is running for reelection. But no public announcement is necessary. Rather, anyone who "has knowingly and willingly taken affirmative action, including solicitation of funds, for the purpose of seeking nomination for or election to any public office" is a "[c]andidate." Id.

Here, Johnson has already "knowingly and willingly" taken at least one "affirmative action": he allegedly told Jones that he was running in 2022. He has not yet solicited or accepted contributions for his reelection bid, but the reason is clear: any attempt to do so would expose him to criminal liability for violating the blackout period. Under these circumstances, Jones has established, at least at this stage, that if she were to donate to Senator Johnson now, the threat of prosecution would be credible.

III.

Having dealt with standing, our next task is to address whether Jones was entitled to a preliminary injunction. When deciding whether to grant one, the district court had to consider four equitable factors: whether Jones "[was] likely to succeed on the merits, [whether s]he [was] likely to suffer irreparable harm in the absence of preliminary relief, [whether] the balance of equities tip[ped] in h[er] favor, and [whether] an injunction [was] in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also Benisek v. Lamone , ––– U.S. ––––, 138 S. Ct. 1942, 1943–44, 201 L.Ed.2d 398 (2018) (per curiam); Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th Cir. 1981) (en banc). Only the conclusion that Jones is likely to succeed on the merits—generally the most important factor in First Amendment cases—is contested here. See Phelps-Roper v. Nixon , 545 F.3d 685, 690 (8th Cir. 2008) (explaining that, in a First Amendment case, likelihood of success on the merits is "often the determining factor in whether a preliminary injunction should issue"), overruled on other grounds by Phelps-Roper v. City of Manchester , 697 F.3d 678 (8th Cir. 2012) (en banc).

A.

The district court was right that, at this early stage of the...