League of United Latin Am. Citizens v. Va. Ferrera

792 F.Supp.2d 1222

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, NEW MEXICO (LULAC), and Dennis W. Montoya, Plaintiffs,

v.Virginia FERRERA, and Paul M. Fish, Defendants.

No. CIV 10–0946 JB/ACT.

United States District Court, D. New Mexico.

May 31, 2011.

Arlon Stoker, Farmington, NM, Hazen H. Hammel, Hammel Law Firm, P.C., Albuquerque, NM, for the Plaintiff.

Jerry A. Walz, Walz and Associates, Albuquerque, NM, for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Motion to Dismiss on the Basis of Lack of Subject–Matter Jurisdiction, filed January 20, 2011 (Doc. 14)(“Motion”). The Court held a hearing on March 7, 2011. The primary issues are: (i) whether Plaintiff Dennis W. Montoya has standing to pursue his claims against the Defendants; (ii) whether Plaintiff League of United Latin American Citizens, New Mexico (“LULAC”) has standing to pursue its claims against the Defendants; and (iii) whether the Court should award the Defendants fees and costs against the Plaintiffs for bringing their claims. The Court will grant the Defendants' motion to dismiss in part and deny the motion in part. Montoya has failed to establish that he has Article III standing to assert his claims, because he has not sufficiently alleged an injury-in-fact fairly traceable to the Defendants' actions, and because he has not sufficiently alleged that a judgment in his favor would likely ameliorate his alleged injury-in-fact. LULAC has failed to establish that it has Article III standing to assert its claims, because it has not sufficiently alleged an injury-in-fact to itself. LULAC has also failed to establish standing as a representative of its members, because its allegations do not sufficiently establish that one of LULAC's members would otherwise have standing to sue in his or her own right. The Court will thus dismiss the Plaintiffs' claims with prejudice. The Court will not, however, award attorneys' fees and costs to the Defendants.

FACTUAL BACKGROUND

LULAC is an advocacy group for Hispanics; it supports Hispanic candidates for elected office in New Mexico. See Complaint for Injunctive Relief for Deprivation of Constitutional Rights of Speech, Assembly and Political Participation ¶ 2, at 2, filed October 5, 2010 (Doc. 1). Montoya is a Spanish-speaking, Spanish-surnamed-civil rights and criminal-defense attorney. See id. ¶ 25, at 6. Montoya qualified to appear on the ballot for the 2010 Democratic Party primary election for a position on the Court of Appeals of New Mexico. See Complaint ¶ 3, at 2. Montoya's opponent, the Honorable Linda Vanzi, New Mexico Court of Appeals Judge, accused Montoya of ethical violations. See Complaint ¶ 4, at 2. Judge Vanzi's disciplinary complaint was leaked to the media, and she publicized her complaint in flyers and direct mail. See Complaint ¶ 4, at 2.

Before the primary election, Defendant Virginia Ferrera, Chief Disciplinary Counsel for the Disciplinary Board, at the behest of Defendant Paul M. Fish, Chair of the Disciplinary Board, filed a summary suspension petition against Montoya. See Complaint ¶ 6, at 2. A summary suspension petition differs from an ordinary disciplinary proceeding in that it is not confidential but is made public record before any investigation is completed. See Complaint ¶ 5, at 2. Rule 17–207 of the New Mexico Rules Annotated states:

A. Summary Suspension. Upon recommendation by the Disciplinary Board, an attorney may be summarily suspended from the practice of law by the Supreme Court:

(1) upon the filing with the Supreme Court of a certified copy of a judgment finding an attorney guilty of a felony or other serious crime, as provided in Rule 16–804 of the Rules of Professional Conduct; (2) upon the Disciplinary Board demonstrating by certificate or otherwise that an attorney has been convicted of or has pleaded guilty or no contest to a felony or serious crime;

(3) upon the filing with the Supreme Court of an order or judgment declaring the attorney to be incompetent or incapacitated;

(4) upon the Disciplinary Board demonstrating by certificate or otherwise that an attorney is incapacitated from continuing to practice law or to defend himself; or

(5) upon the filing in the Supreme Court and service upon an attorney by chief disciplinary counsel of a petition which sets forth facts demonstrating that the continued practice of law by an attorney will result in a substantial probability of harm, loss or damage to the public and that:

(a) the attorney is under investigation by disciplinary counsel for an alleged violation of the Rules of Professional Conduct or a violation of a court rule, statute or other law;

(b) formal disciplinary charges have been filed against the attorney; or

(c) a criminal complaint, information or indictment has been filed against the attorney.

Prior to suspending an attorney pursuant to this Subparagraph (5), the Supreme Court shall cause to be served on the attorney an order to show cause why the petition of chief disciplinary counsel should not be granted and requiring the attorney to appear before the court to respond to the allegations set forth in the petition. The petition shall be served on the attorney at least ten (10) days prior to the date set for the hearing unless a shorter time is ordered by the court. At any time prior to the hearing, an attorney may file an answer to the petition. A copy of the answer shall be served on chief disciplinary counsel.

Rule 17–207A NMRA (bold in original). See Complaint ¶¶ 41, 45, at 9, 10.

The Plaintiffs allege that “[p]ublicity given to the petition gave voters the impression that the [Supreme Court of New Mexico] approved the pending ethical allegations against ... Montoya or regarded them as substantial.” Complaint ¶ 6, at 2. The day after the primary election, the Supreme Court of New Mexico unanimously dismissed the summary suspension proceeding, but the damage had already been done, and Montoya lost the primary election by a 3.5 percent margin. See Complaint ¶ 7, at 3. The Plaintiffs allege that the Defendants' summary suspension petition interfered with the Plaintiffs' constitutional rights to participate in the election process. See Complaint ¶ 8, at 3. The Plaintiffs allege that the timing of the summary suspension, the lack of evidence to support allegations of a substantial probability of harm, loss, or damage to the public, and the publicity given the petition make it reasonable to infer that the Defendants filed the petition in bad faith, with malicious intent to suppress voter turnout and to interfere with the Plaintiffs' right to participate fairly in the election. See Complaint ¶ 47, at 10–11. The Plaintiffs allege that, had the Defendants not filed the summary suspension petition, “there is a substantial probability that ... Montoya would have won the election.” Complaint ¶ 48, at 11. “Instead, ... Montoya lost by roughly 54,000 to 58,000 votes, or 3.5 percent. Also, there was a significantly reduced turnout of voters in certain counties where ... Montoya won the popular vote by as much as 3 to 1.” Complaint ¶ 48, at 11.

PROCEDURAL BACKGROUND

On October 5, 2010, the Plaintiffs filed their Complaint for Injunctive Relief for Deprivation of Constitutional Rights of Speech, Assembly and Political Participation. See Doc. 1. The Plaintiffs allege that the Defendants violated their rights of free speech and free assembly by interfering with the elections under color of state law. See Complaint, Count I. The Plaintiffs seek injunctive relief regarding the use of summary suspension against lawyer-candidates based on unproven allegations pursuant to rule 17–207(A)(5), and declaratory relief that “any provision which allows agents of the New Mexico Supreme Court to make public the existence, nature or content of any pending ethics investigations or unproven ethical allegations against a lawyer-candidate in the context of an election” violates the First and Fourteenth Amendments to the United States Constitution. See Complaint, Prayer for Relief.

On January 20, 2011, the Defendants filed the Defendants' Motion to Dismiss on the Basis of Lack of Subject–Matter Jurisdiction. See Doc. 14. The Defendants request dismissal of the Plaintiffs' Complaint with prejudice, and attorneys' fees and costs as allowed by law. On the same day, the Defendants filed the Defendants' Memorandum in Support of Motion to Dismiss on the Basis of Lack of Subject–Matter Jurisdiction. See Doc. 15 (“Brief”). The Defendants move to dismiss the Complaint under rule 12(b)(1) of the Federal Rules of Civil Procedure. The Defendants argue that Montoya does not have standing to bring this action, because he fails to allege an injury-in-fact that is fairly traceable to the Defendants' conduct, and because he fails to allege the likelihood that his asserted injury would be redressed by the relief sought. The Defendants also argue that LULAC has failed to establish standing, because it fails to allege an injury-in-fact that is fairly traceable to the Defendants. The Defendants further argue that Montoya and LULAC have failed to establish that the case is ripe for litigation.

On January 26, 2011, the Plaintiffs filed their Response to Motion to Dismiss on the Basis of Lack of Subject–Matter Jurisdiction. See Doc. 16 (“Response”). The Plaintiffs argue that the standing of associations like LULAC is specifically favored in First–Amendment cases, because the First Amendment protects the act of banding together to support a political candidate. The Plaintiffs argue that the case is ripe for litigation. They argue that, unless they promise not to do it again, the Defendants can be enjoined. The Plaintiffs argue that the requisite causal connection is satisfied. They also argue that the case is not moot as long as Montoya says that he will run again.

On February 16, 2011, the Defendants filed the Defendants' Reply Brief in Support of Motion to...