United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL, District Judge.
This action for declaratory and injunctive relief is filed by Plaintiff regarding Plaintiff's request for an advisory opinion from the Commissioner of Political Practices of the State of Montana, Jonathan Motl ("Commissioner"). Now before the Court is the Commissioner's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Under the Younger Abstention Doctrine. The motion is opposed.
Plaintiff Montanans for Community Development ("MCD") wanted to print and distribute grassroots lobbying ads (the "Quandt Flyer") prior to the November 5, 2013, election and to print and distribute similar communications prior to future elections. (Doc. 1, Complaint, ¶ 1.) On October 4, 2013, MCD requested an advisory opinion from the Commissioner. (Doc. 1, ¶ 55.) On October 18, 2013, the Commissioner declined to provide an advisory opinion because he determined that inadequate facts had been presented for the purpose requested. (Doc. 1, ¶ 55.) On October 29, 2013, MCD submitted a second advisory opinion request that provided additional facts. (Doc. 1, ¶ 56.) On October 30, 2013, the Commissioner responded and again asserted that insufficient facts were available to render an advisory opinion. (Doc. 1, ¶56.) On that same day, October 30, 2013, MCD filed a Petition for Declaratory Ruling Before the Commissioner. (Doc. 1, ¶ 57.) Five days later, on November 4, 2013, the Commissioner denied the Petition as being procedurally inadequate and improperly plead pursuant to A.R.M. 1.3.227 and invited MCD to replead. (Doc. 1, ¶ 58.)
On election day, November 5, 2013, MCD filed the instant declaratory judgment action in federal district court seeking a ruling that Montana law (Title 13, Montana Code Annotated) and administrative rules (Chapter 44.10, A.R.M.) do not apply to MCD's proposed grassroots lobbying activities and enjoining the Commissioner from enforcing Title 13, Montana Code Annotated, or Chapter 44.10, Administrative Rules of Montana, against MCD prior to future elections.
Pursuant to Rule 12(b)(1), Fed.R.Civ.P., a motion to dismiss for lack of subject matter jurisdiction should be granted if the plaintiff fails to allege sufficient facts in the complaint to establish facially the court's subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). However, when there is a factual challenge to the complaint, a court may also review additional evidence beyond the complaint in order to determine the existence of federal jurisdiction to hear the case. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). If it is determined that the plaintiff lacks Article III standing, then the case must be dismissed for lack of subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02 (1998).
Article III of the United States Constitution provides that federal courts shall hear only cases and controversies, and among the criteria for determining whether a case or controversy exists is the doctrine of standing. In order to demonstrate standing, the plaintiff must show that he has suffered, or imminently will suffer, an injury that is (1) "concrete and particularized, " (2) fairly traceable to defendant's conduct, and (3) redressable by a favorable court resolution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If a plaintiff lacks standing, the district court lacks subject matter jurisdiction to entertain the suit, and it should be dismissed. Cetacean Cmt. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).
Plaintiff MCD has the burden of establishing Article III standing. Chandler v. State Farm Mut. Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). However, in deciding this issue, the court must accept the material allegations of the complaint and construe it in the plaintiff's favor. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Courts do not accept the truth of legal conclusions even when presented as factual allegations. Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
In determining whether an imminent injury is threatened in a preenforcement action such as this one, the plaintiff must show "a reasonable likelihood that the government will enforce the challenged law against them." Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010). Here, the Commissioner has provided Plaintiff with one advisory opinion as to the "express advocacy" standard (A.R.M. 44.10.323(3)) that the Commissioner has used in the past and continues to use. (Doc. 8-13 at 1-2.). That apparently has been settled to Plaintiff's satisfaction. The Commissioner did not provide the other requested advisory opinion for lack of a factual basis and, subsequently, for lack of proper pleading, but the Commissioner stated that "this is not to say that the Commissioner is closed to this determination since it would be of potential benefit to a well-informed political participant if such a determination could be made. MCD and its counsel are commended for attempting to frame this daunting task." (Doc. 8-15 at 2-3.) Indeed, the Commissioner has openly acknowledged that he may ultimately take the same position advocated by Plaintiff: "[T]he facts, when fully identified, may be such that the Commissioner agrees that the Flyer is an issue advocacy expense." (Doc. 8-13 at 2.) Currently, however, the Commissioner is awaiting a proper pleading from Plaintiff. Under these circumstances, Plaintiff has not shown a reasonable likelihood that the Commissioner will enforce the challenged law against it. Essentially, the administrative proceeding is paused at the mid-point for Plaintiff to amend its pleading with the requested factual basis and in proper form as required by Montana regulation.
As to any past injury for MCD's printing costs of the Flyer prepared before the November 5, 2013, election, such costs are not redressable by this Court, which is limited to prospective injunctive relief by the Eleventh Amendment. See Wheaton v. Webb-Petett, 931 F.2d 613, 619-20 (9th Cir. 1991). Neither has MCD shown it imminently will suffer injury as to similar mailings prior to future elections where there is no showing of a credible threat of adverse state action by the Commissioner.
The Doctrine of Ripeness is intended "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000). The ...