Kan. Judicial Watch v. Stout

653 F.3d 1230

KANSAS JUDICIAL WATCH; Honorable Charles M. Hart; Robb Rumsey, Plaintiffs–Appellants,

v.Mike L. STOUT, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Jennifer L. Jones, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; Nancy Anstaett, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; J. Patrick Brazil, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Theodore B. Ice, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications.; Christina Pannbacker; William B. Swearer, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Carolyn Tillotson, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; Robert Fleming; Bruce Buchanan; Mary Davidson Cohen; Robert A. Creighton, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; David J. King, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Lawrence E. Sheppard, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Edward G. Collister, Jr., in his official capacity as Commission Examiner for the Kansas Commission on Judicial Qualifications; Stanton A. Hazlett, in his official capacity as Disciplinary Administrator; Frank D. Diehl, in his official capacity as Deputy Disciplinary Administrator; Alexander M. Walczak, in his official capacity as Deputy Disciplinary Administrator; Janith A. Davis, in her official capacity as Deputy Disciplinary Administrator; Gayle B. Larkin, in her official capacity as Admissions Attorney, Defendants–Appellees.

No. 09–3356.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2011.

Josiah S. Neeley, Bopp, Coleson & Bostrom, Terre Haute, IN (Jeffrey P. Gallant, James Bopp, Jr., and Anita Y. Woudenberg, Bopp, Coleson & Bostrom, Terre Haute, IN; and Austin K. Vincent, Topeka, KS, with him on the briefs) for Plaintiffs–Appellants.George T. Patton, Jr., Bose McKinney & Evans LLP, Indianapolis, IN (Marisol Sanchez, Bose McKinney & Evans LLP, Indianapolis, IN; and Stephen O. Phillips, Office of the Attorney General of the State of Kansas, Topeka, KS, on the brief) for Defendants–Appellees.Before KELLY, EBEL, and HOLMES, Circuit Judges.EBEL, Circuit Judge.

Plaintiffs–Appellants Kansas Judicial Review (“KJR”), the Honorable Charles M. Hart, and Robb Rumsey appeal from the district court's order denying their motion for attorney's fees. This case requires us to decide whether Appellants qualify as “prevailing parties” entitled to attorney's fees under 42 U.S.C. § 1988 where they secured a preliminary injunction that afforded some of the relief sought in the complaint, the district court granted the injunction after finding that Appellants were substantially likely to succeed on the merits of their claims, and the actions of third parties mooted the case before this Court had the opportunity to determine the validity of the preliminary injunction on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the preliminary injunction conferred prevailing-party status on Appellants. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings.

I. BACKGROUND

Our two prior opinions in this case discuss the relevant factual background in some detail, and we recite only those facts necessary to resolve the instant appeal. See Kan. Judicial Review v. Stout (Stout IV), 562 F.3d 1240, 1244–45 (10th Cir.2009); Kan. Judicial Review v. Stout (Stout II), 519 F.3d 1107, 1111–14 (10th Cir.2008). Kansas provides for the popular election of judges in almost half of its judicial districts. In 1995, the Kansas Supreme Court adopted the Kansas Code of Judicial Conduct (the “Code”) to govern the behavior of judges and candidates for state judicial office. See Kan. Sup.Ct. R. 601A (1995). Until March 1, 2009, the Code prohibited judicial candidates from making certain kinds of pledges and commitments and from personally soliciting support for their campaigns. Canon 5A(3)(d)(i) stated that judicial candidates “should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office” (“Pledges Clause”). (Aplt.App., vol. I at 23.) Canon 5A(3)(d)(ii) prohibited judicial candidates from “mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court” (“Commits Clause”). ( Id.) Canon 5C(2) provided that “a candidate shall not personally ... solicit publicly stated support” (“Solicitation Clause”). ( Id. at 24.)

In May 2006, KJR, Hart, and Rumsey sued the individual members of the Kansas Commission on Judicial Qualifications (the “Commission”) ¹ under 42 U.S.C. § 1983 to challenge the constitutionality of these canons. Appellants claimed that the Pledges, Commits, and Solicitation clauses violated the First and Fourteenth Amendments to the U.S. Constitution by infringing on their rights of free speech and association. Specifically, KJR, a nonpartisan political action committee that educates citizens about judicial candidates, alleged that it wished to collect and publish responses to a “2006 Judicial Candidate Questionnaire” (the “Questionnaire”) before the primary election on August 1, 2006. But candidates would not respond to the questions, which were designed to elicit their views on a variety of political and legal issues, for fear of being disciplined under the Pledges and Commits clauses. Hart, an incumbent district judge up for reelection in 2008, asserted that he desired to go door-to-door to seek signatures on a nomination petition, but he feared discipline under the Solicitation Clause. And Rumsey, a candidate for district judge in the 2006 election, alleged that he wanted to express his views to the public by answering the Questionnaire but was afraid to do so because of the canons. Appellants sought a declaration that the canons were unconstitutional, as well as preliminary and permanent injunctive relief prohibiting enforcement of the canons.

On the same day that they filed their complaint, KJR, Hart, and Rumsey also moved for a preliminary injunction to prevent the Commission from initiating disciplinary proceedings under the canons against judicial candidates who responded to the Questionnaire. After a hearing, the district court issued a written order granting preliminary relief. See Kan. Judicial Watch v. Stout (Stout I ), 440 F.Supp.2d 1209 (D.Kan.2006). In a thoughtful and comprehensive opinion, the district court determined that Appellants satisfied each of the four requirements for a preliminary injunction.²Id. at 1225–39. The court first concluded that Appellants were substantially likely to succeed on the merits of their claims. Id. at 1225–38, 1240. It analyzed the canons in light of the Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), and found each of the Pledges, Commits, and Solicitation Clauses unconstitutional on its face and as applied. Stout I, 440 F.Supp.2d at 1233–34 (Pledges and Commits clauses), 1237–38 (Solicitation Clause); see also id. at 1240 (“This Court follows the Supreme Court's opinion in White and finds certain Kansas judicial canons unconstitutional.”). After a painstaking examination of the merits prong of the preliminary-injunction standard, the court succinctly concluded that Appellants satisfied the other three elements. See id. at 1239 (finding that (1) the chilling effect of the canons on the exercise of Appellants' First Amendment rights constituted irreparable injury, (2) the injury to Appellants outweighed any harm to the Commission, and (3) the injunction would serve the public's interest in receiving speech and learning about judicial candidates). Accordingly, the district court enjoined the Commission from enforcing the canons against any judicial candidate. Id. at 1241.

The Commission appealed the grant of the preliminary injunction to this Court on August 11, 2006. Because the appeal “presented ... several novel and unsettled questions of state law, the resolution of which could substantially alter our determination of the federal constitutional issues at stake,” we certified five questions regarding interpretation of the canons to the Kansas Supreme Court. Stout II, 519 F.3d at 1122. In December 2008, that court answered our questions and also indicated that it had been presented with, but not yet considered, proposed revisions to the Code. Kan. Judicial Review v. Stout ( Stout III ), 287 Kan. 450, 196 P.3d 1162, 1171–79 (2008). Approximately one month later, the Kansas Supreme Court amended the Code by adopting Rule 601B, which took effect on March 1, 2009. See Kan. Sup.Ct. R. 601B (2009) (superseding Kan. Sup.Ct. R. 601A (1995)). Rule 601B “completely eliminate[d] the challenged portion of the Solicitation Clause” and “materially narrow[ed] the language and scope of the Pledges and the Commits Clauses.” Stout IV, 562 F.3d at 1245. Consequently, this Court vacated the preliminary injunction, dismissed the Commission's appeal as moot, and remanded the case to the district court for dismissal. Id. at 1249.

After the district court dismissed the case, KJR, Hart, and Rumsey filed a motion seeking attorney's fees. They argued that they qualified as “prevailing parties” entitled to a fee award under 42 U.S.C. § 1988 because the preliminary injunction constituted a “judicially enforceable judgment that materially alter[ed] the legal relationship between the parties.” (Aplt.App., vol. III at 426–27.) On November 19, 2009, the district court denied the motion, reasoning, in pertinent part, as follows:

The primary relief sought by plaintiffs was...