                                                                        FILED
                   UNITED STATES COURT OF APPEALS                        MAR 28 2013

                                                                     MOLLY C. DWYER, CLERK
                           FOR THE NINTH CIRCUIT                      U .S. C O U R T OF APPE ALS




MANY CULTURES, ONE MESSAGE, A                  No. 11-36008
Washington Unincorporated Association;
RED STATE POLITICS, A Washington               D.C. No. 3:10-cv-05253-KLS
not-for-profit corporation, DBA                U.S. District Court for Western
Conservative Enthusiasts,                      Washington, Tacoma

             Plaintiffs - Appellants,
                                               ORDER
  v.

JIM CLEMENTS, Chair; DAVE
SEABROOK, Vice Chair; JANE
NOLAND; BARRY SEHLIN; JENNIFER
JOLY, in Their Official Capacities as
Officers and Members of the Washington
State Public Disclosure Commission;
DOUG ELLIS, in His Official Capacity as
Interim Executive Director of the
Washington State Public Disclosure
Commission,

             Defendants - Appellees.



Before:     W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior
            District Judge.*




       *
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
      The memorandum disposition filed on February 4, 2013, is withdrawn and is

replaced by the memorandum disposition filed concurrently with this order. With

the original memorandum disposition withdrawn, we deem moot the petition for

panel rehearing.

      IT IS SO ORDERED.




                                       -2-
                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 28 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MANY CULTURES, ONE MESSAGE, A                    No. 11-36008
Washington Unincorporated Association;
RED STATE POLITICS, A Washington                 D.C. No. 3:10-cv-05253-KLS
not-for-profit corporation, DBA
Conservative Enthusiasts,
                                                 MEMORANDUM *
              Plaintiffs - Appellants,

  v.

JIM CLEMENTS, Chair; DAVE
SEABROOK, Vice Chair; JANE
NOLAND; BARRY SEHLIN; JENNIFER
JOLY, in Their Official Capacities as
Officers and Members of the Washington
State Public Disclosure Commission;
DOUG ELLIS, in His Official Capacity as
Interim Executive Director of the
Washington State Public Disclosure
Commission,

              Defendants - Appellees.



                  Appeal from the United States District Court
                     for the Western District of Washington
                 Karen L. Strombom, Magistrate Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted November 9, 2012
                                Seattle, Washington


Before:      W. FLETCHER and FISHER, Circuit Judges, and QUIST, Senior
             District Judge.**

      Appellants Many Cultures, One Message (“MCOM”), and Conservative

Enthusiasts (a.k.a. Red State Politics) appeal the district court’s dismissal of their

suit challenging as unconstitutional two portions of the Washington Revised Code,

Wash. Rev. Code §§ 42.17.200 and 42.17.160. These two provisions of state law

together require certain grassroots citizen-to-citizen lobbying organizations to

register with the state and to disclose information about financial contributions

they receive. The district court held that appellants lack Article III standing. In the

alternative, it held that the statute was constitutional on its face and as applied. We

affirm the district court’s holding that both parties lack Article III standing to

challenge the constitutionality of Washington’s grassroots lobbying law.

      To determine whether a party has sufficient injury to support Article III

standing in the First Amendment context, we look to “whether the plaintiffs have

articulated a ‘concrete plan’ to violate the law in question, whether the prosecuting



**
     The Honorable Gordon J. Quist, Senior United States District Judge for the
Western District of Michigan, sitting by designation.


                                            2
authorities have communicated a specific warning or threat to initiate proceedings,

and the history of past prosecution or enforcement under the challenged statute.”

Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)

(en banc); see also Canatella v. California, 304 F.3d 843, 854 n.14 (9th Cir. 2002)

(looking to a party’s “history” and “continuing activities” in the area, as well as to

the “nature” of the party’s legal challenge). “[P]laintiffs may carry their burden of

establishing injury in fact when they provide adequate details about their intended

speech.” Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir. 2010), cert. denied 131 S.

Ct. 2456 (May 16, 2011). “[T]he Constitution requires something more than a

hypothetical intent to violate the law.” Thomas, 220 F.3d at 1139.

      Neither party here has standing to challenge the constitutionality of the

Washington grassroots lobbying law because neither has demonstrated that it

actually intends to undertake activities that come within the scope of the

challenged statute. Conservative Enthusiasts has not provided evidence of

concrete plans to pursue activities that qualify as grassroots lobbying under the

statute, nor has it even identified specific areas of state policy advocacy in which it

would like to engage.

      MCOM has specified state legislation in the area of eminent domain about

which it proposes to lobby, and has named specific activities it might undertake to


                                           3
achieve those goals. But it has not demonstrated that it actually “intend[s]” to

undertake these activities. Lopez, 630 F.3d at 787. MCOM admits that its website

has been taken down and that it has not been holding regular meetings. Further,

MCOM does not show sufficient “continued activities” in the area of eminent

domain to support standing. Canatella, 304 F.3d at 854 n.14. To the extent that

any lobbying on eminent domain has been undertaken in recent years, it has been

performed by MCOM members as individuals, rather than in their organizational

capacity. Most important, MCOM acknowledges that it has not actually decided

whether to lobby the state; rather, MCOM’s founder has filed this challenge

“[b]ecause if we start lobbying the State, I don’t want to be fined for not doing

something” (emphasis added).

       Because we affirm the district court’s dismissal for lack of Article III

standing, we do not reach appellants’ other contentions. Because we affirm for

lack of standing, we also “vacate the district court’s order and remand with

instructions to dismiss without prejudice.” Fleck & Assocs. v. City of Phoenix, 471

F.3d 1100, 1106 (9th Cir. 2006).

      AFFIRMED in part, VACATED, and REMANDED with instructions.




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