10-4572-cv
National Organization for Marriage, Inc. v. Walsh


                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                                              _____________________

                                                    August Term, 2011

         (Argued: August 24, 2011                                            Decided: April 22, 2013)

                                               Docket No. 10-4572-cv
                                              _____________________

                               NATIONAL ORGANIZATION FOR MARRIAGE, INC.,

                                                                 Plaintiff-Appellant,

                                                          -v.-

  JAMES WALSH, in his official capacity as co-chair of the New York State Board of Elections,
     DOUGLAS KELLNER, in his official capacity as co-chair of the New York State Board of
   Elections, EVELYN AGUILA, in her official capacity as commissioner of the New York State
  Board of Elections, GREGORY PETERSON, in his official capacity as commissioner of the New
                                York State Board of Elections,

                                                           Defendants-Appellees.
                                            _______________________
Before:
                   NEWMAN, HALL, Circuit Judges, PRESKA,1 Chief District Judge.
                                  _______________________

          Plaintiff-Appellant, a nonprofit advocacy organization, sued Defendants-Appellees,

officials of the New York State Board of Elections, seeking a declaratory judgment that the

“political committee” definition of New York Election Law § 14-100.1 violates the First

Amendment to the United States Constitution, and requesting preliminary and permanent

injunctions barring the enforcement of the law. The district court dismissed the case for lack of



          1
       Hon. Loretta A. Preska, of the United States District Court for the Southern District of
New York, sitting by designation.
subject-matter jurisdiction. We hold that Plaintiff’s claims were ripe for adjudication and are not

moot. We therefore vacate the judgment of the district court dismissing the case, and remand to

the district court for further consideration. Judge Newman dissents in a separate opinion.

       VACATED AND REMANDED.

                              _______________________

                                                     RANDY ELF (James Bopp, Jr., Jeffrey P.
                                                     Gallant, Austin J. Hepworth, James Madison
                                                     Center for Free Speech, and Laurence Behr,
                                                     Barth Sullivan Behr, Buffalo, NY, on the
                                                     brief), James Madison Center for Free
                                                     Speech, Terre Haute, IN, and as substitute
                                                     counsel Kaylan L. Phillips, ActRight Legal
                                                     Foundation, Washington, DC, and John C.
                                                     Eastman, Center for Constitutional
                                                     Jurisprudence, Orange, CA, for Plaintiff-
                                                     Appellant.

                                                     KENNETH A. MANNING (Michael B. Powers,
                                                     Craig R. Bucki, on the brief) Phillips Lytle
                                                     LLP, Buffalo, NY, for Defendants-Appellees
                                                     Douglas Kellner and Evelyn Aquila.

                                                  Justin E. Driscoll, Brown & Weinraub,
                                                  PLLC, Albany, NY, for Defendants-
                                                  Appellees James Walsh and Gregory
                                                  Peterson.
                                   _______________________

Hall, Circuit Judge:

       Plaintiff-Appellant the National Organization for Marriage (“NOM”) appeals from the

judgment of the United States District Court for the Western District of New York (Arcara, J.)

dismissing its amended complaint for lack of subject-matter jurisdiction. Contrary to the district

court, we hold that NOM pleaded a ripe “case or controversy” necessary to confer Article III

jurisdiction. Prudential considerations related to ripeness do not bar review. Moreover, the case

is not moot. We therefore vacate the judgment of the district court dismissing the case, and
                                              2
remand for the district court to consider, in the first instance, whether to dismiss NOM’s

complaint on the merits.

I.     Background

       On September 16, 2010, NOM filed its complaint in federal district court seeking a

declaratory judgment that New York Election Law § 14-100.1, which defines the term “political

committee” for the purposes of state elections, violates the First Amendment to the United States

Constitution. NOM also requested a preliminary and a permanent injunction barring the

enforcement of the law. In the complaint, which named as Defendants four members of the New

York State Board of Elections in their official capacity, NOM identified itself as a “non-

sectarian,” “non-partisan,” and “non-profit corporation.”2 Although the complaint itself did not

describe NOM’s mission, an exhibit attached to the complaint explained that NOM is dedicated

to opposing same-sex marriage. In furtherance of that goal, NOM asserted that it would seek, in

September and October 2010, “to engage in multiple forms of speech in New York,” including

direct mailings and television, radio, and internet advertisements.3 NOM alleged that the threat

of being labeled a “political committee” chilled this form of protected speech. Defendants

moved to dismiss the complaint, arguing inter alia that NOM’s claim was not ripe because the

Board of Elections had not yet threatened any enforcement of the challenged election law

provisions.




       2
         Because the district court dismissed this case at the pleading stage, we recite the facts as
found in NOM’s complaint. Our review encompasses not only the complaint itself, but also “any
documents attached thereto or incorporated by reference and documents upon which the
complaint relies heavily.” Bldg. Indus. Elec. Contractors Ass’n v. City of N.Y., 678 F.3d 184,
187 (2012) (quotation marks omitted).
       3
           Examples of these advertisements were attached as exhibits.
                                                3
       NOM, in response, filed a more developed amended complaint. The amended complaint

alleged that NOM sought in September 2010 and would seek in October 2010 to directly

advocate, by various means, for the election of certain candidates for state wide political office.

NOM further asserted that it intended to engage in “materially similar” speech in “materially

similar situations in the future.” Although NOM disclaimed any intention to coordinate its

express advocacy with any candidate or candidate committee or political party, or to contribute

to any of these entities, NOM maintained that its express advocacy for candidates could render it

a “political committee” for the purposes of § 14-100.1.

       Section 14-100.1 provides, in full, that

       “political committee” means any corporation aiding or promoting and any
       committee, political club or combination of one or more persons operating or co-
       operating to aid or to promote the success or defeat of a political party or
       principle, or of any ballot proposal; or to aid or take part in the election or defeat
       of a candidate for public office or to aid or take part in the election or defeat of a
       candidate for nomination at a primary election or convention, including all
       proceedings prior to such primary election, or of a candidate for any party
       position voted for at a primary election, or to aid or defeat the nomination by
       petition of an independent candidate for public office; but nothing in this article
       shall apply to any committee or organization for the discussion or advancement of
       political questions or principles without connection with any vote or to a national
       committee organized for the election of presidential or vice-presidential
       candidates; provided, however, that a person or corporation making a contribution
       or contributions to a candidate or a political committee which has filed pursuant
       to [New York Election Law §] 14-118 shall not, by that fact alone, be deemed to
       be a political committee as herein defined.

According to the amended complaint, and confirmed by affidavits the Defendants filed in

connection with their opposition to NOM’s motion for a preliminary injunction, “political

committees” must: (1) file a registration statement and designate a treasurer, see N.Y. Elec. Law

§ 14-118; (2) maintain certain financial records, see §§ 14-102, 14-108, 14-122; and (3) make

periodic reports based on these records to the Board of Elections disclosing, inter alia,

contributions received and expenditures made, see id. §§ 14-102, 14-104. NOM feared that if it
                                               4
failed to comply with these provisions of New York law, it would be subject to state civil and

criminal liability. NOM also asserted (without explanation) that New York law “chills [it] from

proceeding with its speech.” As with the first complaint, NOM attached numerous exhibits to its

complaint showing the type of mailings and broadcasts NOM wanted to propagate, declaring that

it would engage in these activities “only if the [district c]ourt grants the requested relief.”

       The district court accepted NOM’s amended complaint as a superseding pleading

pursuant to Fed. R. Civ. P. 15(a)(1) and dismissed the case for lack of jurisdiction. The district

court observed that the complaint did not allege that NOM had tried to ascertain its status with

the Board of Elections, nor that the Board had attempted to enforce the “political committee”

definition of § 14-100.1 against NOM. In the district court’s view, this meant NOM’s claims

were not ripe because it had no “actual and well-founded fear that the law w[ould] be enforced

against it.” The court concluded by surmising “at least a notable chance” that NOM could avoid

the political committee designation altogether by virtue of the savings clause of § 14-100.1,

which exempts entities not involved with elections.4

II.    Discussion

       We review de novo a district court’s determination that it lacks subject-matter jurisdiction

on ripeness grounds. Connecticut v. Duncan, 612 F.3d 107, 112 (2d Cir. 2010) (“A district

court’s ripeness determination is . . . a legal determination subject to de novo review.);

Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998) (“Ripeness is a

constitutional prerequisite to exercise of jurisdiction by the federal courts.”). In addition, we

have an independent duty to consider other aspects of subject-matter jurisdiction nostra sponte.

See Kalson v. Paterson, 542 F.3d 281, 286 n.10 (2d Cir. 2008) (“The fact that neither party
       4
         The district court also denied NOM’s motion for reconsideration, a judgment NOM
does not appeal.
                                               5
raised a jurisdictional issue on appeal is of no matter; we are obligated to determine whether

jurisdiction exists nostra sponte.”).

       A.      Ripeness

       To be justiciable, a cause of action must be ripe—it must present “a real, substantial

controversy, not a mere hypothetical question.” AMSAT Cable Ltd. v. Cablevision of Conn., 6

F.3d 867, 872 (2d Cir. 1993). Ripeness “is peculiarly a question of timing.” Thomas v. Union

Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985). A claim is not ripe if it depends upon

“contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id.

at 580-81. The doctrine’s major purpose “is to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v.

Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by Califano v. Sanders, 430

U.S. 99, 105 (1977).

       “The ripeness doctrine is drawn both from Article III limitations on judicial power and

from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v.

Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks omitted). Thus, the

doctrine implicates two distinct conceptual jurisdictional criteria. Simmonds v. INS, 326 F.3d

351, 356-57 (2d Cir. 2003).

               Both [criteria] are concerned with whether a case has been brought
       prematurely, but they protect against prematureness in different ways and for
       different reasons. The first of these ripeness requirements has as its source the
       Case or Controversy Clause of Article III of the Constitution, and hence goes, in a
       fundamental way, to the existence of jurisdiction. The second is a more flexible
       doctrine of judicial prudence, and constitutes an important exception to the usual
       rule that where jurisdiction exists a federal court must exercise it.

               These two forms of ripeness are not coextensive in purpose.
       Constitutional ripeness is a doctrine that, like standing, is a limitation on the
       power of the judiciary. It prevents courts from declaring the meaning of the law
       in a vacuum and from constructing generalized legal rules unless the resolution of
                                                  6
        an actual dispute requires it. But when a court declares that a case is not
        prudentially ripe, it means that the case will be better decided later and that the
        parties will not have constitutional rights undermined by the delay. It does not
        mean that the case is not a real or concrete dispute affecting cognizable current
        concerns of the parties within the meaning of Article III. . . . Prudential ripeness
        is, then, a tool that courts may use to enhance the accuracy of their decisions and
        to avoid becoming embroiled in adjudications that may later turn out to be
        unnecessary or may require premature examination of, especially, constitutional
        issues that time may make easier or less controversial.

Id. at 357 (citations omitted).

                1.      Constitutional Ripeness

        Often, the best way to think of constitutional ripeness is as a specific application of the

actual injury aspect of Article III standing. The “irreducible constitutional minimum of standing

contains three elements”: (1) “the plaintiff must have suffered an injury in fact,” i.e., “an

invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the

injury and the conduct complained of”; and (3) “it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-561 (1992) (quotation marks, citations, alterations, and footnotes

omitted). Constitutional ripeness, in other words, is really just about the first Lujan factor—to

say a plaintiff’s claim is constitutionally unripe is to say the plaintiff’s claimed injury, if any, is

not “actual or imminent,” but instead “conjectural or hypothetical.”5 See id. at 560; see also New

        5
          Views such as Judge Leval’s concurrence in Bronx Household of Faith v. Board of
Education of City of New York, 492 F.3d 89, 111 (2d Cir. 2007) (Leval, J., concurring) (agreeing
that “[r]ipeness overlaps in some respects with standing,” but noting that “the central concerns of
ripeness doctrine are somewhat distinct from standing”), are not to the contrary. As Judge Leval
noted, constitutional standing and constitutional ripeness are somewhat different in practice. To
say a party’s claims are not ripe acknowledges, at least impliedly, that they someday might be.
See id. (“The concept of ripeness assumes that the relationship between the parties might at some
point ripen into an injury sufficiently direct and realized to satisfy the requirements of Article III
standing.”). Denying standing is more categorical. Logically, however, there is no difference.
                                                   7
York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 n.8 (2d Cir. 2008) (“Standing and

ripeness are closely related doctrines that overlap most notably in the shared requirement that the

plaintiff's injury be imminent rather than conjectural or hypothetical.” (quotation marks and

alterations omitted)); Ross v. Bank of Am., N.A.(USA), 524 F.3d 217, 226 (2d Cir. 2008) (because

the ripeness and standing doctrines “overlap,” claims that were sufficiently “actual and

imminent” to establish Article III standing also were ripe for adjudication, “not merely

speculative or hypothetical”).6

       Despite the language of Lujan and similar cases, however, we assess pre-enforcement

First Amendment claims, such as the ones NOM brings, under somewhat relaxed standing and

ripeness rules. A plaintiff must allege something more than an abstract, subjective fear that his

rights are chilled in order to establish a case or controversy. See Laird v. Tatum, 408 U.S. 1, 13-

14 (1972). But a real and imminent fear of such chilling is enough. As the Eleventh Circuit has

explained, without the possibility of pre-enforcement challenges, plaintiffs contesting statutes or

regulations on First Amendment grounds “face an unattractive set of options if they are barred

from bringing a facial challenge”: refraining from activity they believe the First Amendment




From a constitutional perspective, it does not matter whether one case might someday “ripen”
into an imminent or actual controversy, and the other might not. In both scenarios, there simply
is no present case or controversy sufficient to satisfy the strictures of Article III.
       6
          For this reason, we consider the parties’ constitutional standing and constitutional
ripeness challenges together. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8
(2007) (“[S]tanding and ripeness boil down to the same question in this case.”); Brooklyn Legal
Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225-26 (2d Cir. 2006), abrogated on other
grounds by Bond v. United States, 131 S. Ct. 2355, 2361 (2011) (“Because [the] ripeness
arguments concern only th[e] shared requirement” that the injury be imminent, “our analysis of
[the] standing challenge applies equally and interchangeably to [the] ripeness challenge. We
therefore do not address ripeness separately, but consider it together with, and as part of, the
standing inquiry.”).
                                                  8
protects, or risk civil or criminal penalties for violating the challenged law. Fla. League of Prof’l

Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir. 1996).

       This distinction explains our holding in Vermont Right to Life Committee, Inc. v. Sorrell,

221 F.3d 376, 382 (2d Cir. 2000). In that case, Vermont statutory provisions required “political

advertisements” to contain certain disclosures and mandated that expenditures for some “mass

media activities” be reported to the state. Id. at 379. The plaintiff, a pro-life nonprofit

organization, brought suit under 42 U.S.C. § 1983, seeking a declaratory judgment that the

provisions were facially unconstitutional under the First Amendment and seeking an injunction

barring the defendants, a group of state officials sued in their official capacities, from enforcing

the law. Id. When it filed suit, the plaintiff had not been charged with violating any of the

challenged provisions. Id. at 381. The plaintiff believed, however, that its advocacy activities

did not comply with the law, and it maintained that it would cease its non-compliant behavior

unless the provisions were declared unconstitutional. Id. We acknowledged that the usual

standing rules applied, but, citing well-established Supreme Court precedent, we also recognized

that “[a] plaintiff bringing a pre-enforcement facial challenge against a statute need not

demonstrate to a certainty that it will be prosecuted under the statute to show injury, but only that

it has an actual and well-founded fear that the law will be enforced against it.” Id. at 382

(quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988) (quotation marks

omitted)). “The alleged danger of the statute is, in large measure, one of self-censorship; a harm

that can be realized even without an actual prosecution.” Id. (quotation marks and alterations

omitted). “When the plaintiff has alleged an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by a statute, and there exists a credible

threat of prosecution thereunder,” that plaintiff “should not be required to await and undergo a

                                                  9
criminal prosecution as the sole means of seeking relief.” Id. (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

       In Vermont Right to Life Committee, it did not matter that the law at issue imposed only

civil, and not criminal, liability. Id. (“The fear of civil penalties can be as inhibiting of speech as

can trepidation in the face of threatened criminal prosecution.”). Nor did it make a difference

that the state denied that the plaintiff actually was subject to the challenged law. Id. What

mattered was that the plaintiff faced a “credible threat” that the law would be enforced against it.

Id. That was enough to give standing.

       This case is no different from Vermont Right to Life Committee, and NOM’s claims are

ripe. Attached to NOM’s complaint was an example of a radio advertisement NOM wanted to

broadcast in New York:

               Think legalizing same-sex marriage doesn’t affect your family?
               ....
               Legalizing gay marriage has consequences for kids. Massachusetts
       schools teach second graders that boys can marry other boys. A California public
       school took first graders to a same-sex wedding, calling it “a teachable moment.”

             Kids have enough to deal with already, without pushing gay marriage on
       them. And it’s not just kids who’ll face the consequences.

               The rights of people who think marriage means a man and a woman will
       no longer matter: We’ll all have to accept same-sex marriage whether we like it
       or not.

              Carl Paladino knows that in these troubled times in New York, we don’t
       have time to push gay marriage on New York families.

               This Election Day, vote for Carl Paladi[n]o for governor.

              As the election approaches, tell your family and friends to vote for Carl
       Paladino. He’ll stand up for marriage between one man and one woman.

       Paid for by National Organization for Marriage


                                                  10
Comparing that proposed advertisement with the plain text of § 14-100.1, which says,

among other things, that a “political committee” is an organization working “to promote

the success or defeat of a political party or principle, or of any ballot proposal; or to aid

or take part in the election or defeat of a candidate for public office,” NOM plausibly

contends that it would have been a “political committee” under New York law if it had

aired its commercials during the fall of 2010.

       In holding NOM’s claimed injury was “too remote,” the district court relied in

part on the savings clause of § 14-100.1. It reasoned that the provision exempting “any

committee or organization for the discussion or advancement of political questions or

principles without connection with any vote or to a national committee organized for the

election of presidential or vice-presidential candidates” meant that NOM had a “notable

chance” of avoiding enforcement. But NOM’s complaint contends, and the

advertisements attached to its complaint demonstrate, that it wanted expressly to connect

its speech to particular candidates and elections. We thus give credence to NOM’s

assertion that it “fears it is a political committee under New York law,” which “chills

[NOM] from proceeding with its speech.” That is enough to make the complaint ripe.

               2.      Prudential Ripeness

       Having dismissed the case on constitutional ripeness grounds, the district court had no

occasion to consider Defendants’ prudential ripeness arguments. We consider them briefly.

       To determine whether to abstain from a case on prudential ripeness grounds, “we proceed

with a two-step inquiry, requiring us to evaluate both the fitness of the issues for judicial

decision and the hardship to the parties of withholding court consideration.” Grandeau, 528 F.3d



                                                  11
at 131-32 (quotation marks and citation omitted).7 “The ‘fitness’ analysis is concerned with

whether the issues sought to be adjudicated are contingent on future events or may never occur.”

Id. at 132 (quotation marks and citation omitted). “In assessing this possibility of hardship, we

ask whether the challenged action creates a direct and immediate dilemma for the parties.” Id. at

134.

       Assessment of both factors counsels against abstention. Although “the factual record is

not yet fully developed,” the dispute primarily “presents legal questions and there is a concrete

dispute between the parties.” Sharkey v. Quarantillo, 541 F.3d 75, 89 (2d Cir. 2008). The issues

presented have sharpened into a live case which is “fit for judicial decision.” See id. What

future contingencies remain, see Grandeau, 528 F.3d at 132, are not determinative of the

questions before us. It is true that the New York Board of Elections, in Defendants’ words, has

made “no specific effort . . . to classify NOM as a political committee.” But there is nothing in

the record to indicate that the Board of Elections must specifically find NOM to be a “political

committee” for NOM to meet that definition. Rather, on the face of the statute, the designation

“political committee” appears to be self-executing. And NOM’s complaint asserts that it meets

all the elements of § 14-100.1 to merit such classification. Thus, it appears NOM would have no

warning of imminent enforcement by the Board of Elections, beyond NOM’s own knowledge

that it was violating the law.8 It is disingenuous for Defendants to insinuate that New York

might not enforce § 14-100.1 against NOM, when the statute quite clearly applies to NOM’s
       7
           This two-step inquiry also may bear on the constitutional ripeness analysis. See id. at
132 n.9.
       8
          At oral argument, we asked Appellees to submit a supplemental letter elaborating on
this point. That letter confirms that, on NOM’s request, the New York State Board of Elections
would have provided an opinion letter indicating whether NOM’s activities would classify it as a
“political committee.” See Appellees’ Letter, Aug. 30, 2011, at 1. There is no indication,
however, that such a letter is required before an organization can be labeled a “political
committee.”
                                                 12
activities, at least as NOM alleges them to be, and when Defendants’ counsel, at oral argument,

stated that the New York Board of Elections currently regulates approximately 11,000 “political

committees.”

       Defendants’ contention that NOM failed to describe the “materially similar” situations in

which it planned to speak in the future is similarly unpersuasive. For one thing, at the time NOM

brought suit, it presented the court with several advertisements it wanted to broadcast

immediately, not in the future. For ripeness purposes, its future plans are of less relevance.9

Further, NOM’s mere statement that its future speech will be “materially similar” to the 2010

advertisements is sufficiently precise. To the extent the advertisements it provided to the district

court render NOM susceptible to the “political committee” definition, similar advertisements in

the future probably will too.

       Whether NOM will suffer hardship if we withhold our ruling is an even easier question to

answer. NOM asserts that it will have to submit to a definition it believes is unconstitutional. If

NOM is right on the merits, forcing it to break the law before we will answer the constitutional

question “creates a direct and immediate dilemma,” and a significant hardship. Grandeau, 528

F.3d at 134. There is no prudential reason to abstain.

       B.      Mootness

       Because NOM’s complaint concerns the 2010 election cycle, which has now long passed,

NOM must overcome a second procedural hurdle—mootness. Defendants’ brief does not

address mootness (NOM’s does). Federal courts have no constitutional power to consider a

moot case, which does not present a live controversy. See Irish Lesbian & Gay Org. v. Giuliani,

143 F.3d 638, 647 (2d Cir. 1998) (“The mootness doctrine is derived from the constitutional
       9
         They are, of course, relevant for mootness purposes. Mootness is discussed infra at
Section II.B.
                                                13
requirement that federal courts may only decide live cases or controversies.”). We thus have a

duty to consider mootness nostra sponte. See Kalson, 542 F.3d at 286.

        Although the November 2010 election is over, this case is not moot, for it falls within the

judicially created exception for cases “capable of repetition, yet evading review.” See FEC v.

Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007). “The exception applies where (1) the

challenged action is in its duration too short to be fully litigated prior to cessation or expiration,

and (2) there is a reasonable expectation that the same complaining party will be subject to the

same action again.” Id. (quotation marks omitted); see also, e.g., Porter v. Jones, 319 F.3d 483,

490 (9th Cir. 2003) (“Election cases often fall within this exception, because the inherently brief

duration of an election is almost invariably too short to enable full litigation on the merits.”).

This case is like Wisconsin Right to Life. NOM’s complaint clearly alleges that the organization

plans to do “materially similar” advertising in “materially similar situations in the future,” and

consequently that “New York law will apply to NOM as it does now.” NOM’s “injury of self-

censorship is capable of repetition yet evading review.” Cal. Pro-Life Council, Inc. v. Getman,

328 F.3d 1088, 1095 n.4 (9th Cir. 2003).

        C.      Merits

        Having determined that NOM’s case presents a live controversy that is ripe for

consideration, we must vacate the district court’s determination that it lacked jurisdiction.

Because that conclusion prevented the district court from reaching the merits of NOM’s claims,

we decline to comment on the substance of NOM’s claims in the first instance. As ours is not a

court of first review, “when we reverse on a threshold question, we typically remand for

resolution of any claims the lower courts’ error prevented them from addressing.” Zivotofsky ex

rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430 (2012); see, e.g., PDK Labs., Inc. v. United

                                                  14
States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in

part and concurring in judgment) (stating “the cardinal principle of judicial restraint—if it is not

necessary to decide more, it is necessary not to decide more—counsels us to go no further.”).

We therefore remand this case for further proceedings leaving the initial determination of the

merits to the district court.


III.    Conclusion

        The judgment of the district court dismissing this case is VACATED, and the case is

REMANDED to the district court for further proceedings.




                                                 15
     Docket No. 10-4572
     National Organization for Marriage v. Walsh


     Jon O. Newman, Circuit Judge, dissenting:

 1        The National Organization for Marriage (“NOM”), an advocacy

 2   organization, seeks a ruling from a federal district court that

 3   New York’s definition of a “political committee,” see N.Y. Elec.

 4   Law § 14-100.1, violates the First Amendment. NOM seeks such a

 5   ruling to avoid compliance with various requirements imposed on a

6    “political committee,” such as registration, see id. § 14-118,

 7   maintenance of records, see id. §§ 14-102, -108, -122, and filing

 8   reports of contributions and expenditures, see id. §§ 14-102, -

 9   104. Because no New York official has expressed the view that NOM

10   is a “political committee” and the New York State Board of

11   Elections (“Board of Elections”) has advised us of its

12   willingness to respond to an inquiry from NOM as to whether the

13   Board would classify NOM as a “political committee,” NOM’s

14   lawsuit is not now ripe for adjudication, as the District Court

15   correctly ruled, see National Organization for Marriage, Inc. V.

16   Walsh, No. 10-cv-751A, 2010 WL 4174664, at *4 (W.D.N.Y. Oct. 25,

17   2010). From the majority’s contrary ruling, I respectfully

18   dissent.

19        As the majority recognizes, NOM is obliged to assert “an

20   invasion of a legally protected interest which is...actual or

21   imminent, not conjectural or hypothetical.” Lujan v. Defenders of


                                     1
 1   Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks

 2   and citations omitted). I recognize that in some circumstances a

 3   pre-enforcement challenge may be brought to adjudicate the

4    validity of statutes alleged to violate the First Amendment. See,

 5   e.g., Vermont Right to Life Committee v. Sorrell, 221 F.3d 376

 6   (2d Cir. 2000). I also recognize that a plaintiff intending to

 7   engage in conduct arguably proscribed by statute need not subject

 8   itself to criminal prosecution or the imposition of civil

 9   penalties to test its First Amendment claim. Finally, I also

10   recognize that in some circumstances, a plaintiff’s own

11   apprehension that it will be subject to allegedly

12   unconstitutional state law requirements can suffice to permit a

13   pre-enforcement challenge. But such apprehension cannot suffice

14   in circumstances, like those in this case, where the relevant

15   regulatory body (a) has given no indication that the challenged

16   regulations apply to the plaintiff, (b) stands ready to respond

17   to an inquiry as to whether the challenged regulations apply to

18   the plaintiff, and (c) is required to afford the plaintiff notice

19   in the event the body intends to depart from advice that the

20   regulations do not apply. In such circumstances, the plaintiff’s

21   fear of adverse consequence cannot be said to be “well-founded,”

22   id. At 382.

23        We recently upheld an as-applied challenge to state

24   regulations alleged to impair First Amendment rights where the


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 1   relevant regulatory body declined to give pre-enforcement advice

 2   that would have clarified the meaning of the regulations. See

 3   Hayes v. New York State Attorney Grievance Committee, 672 F.3d

 4   158, 170 (2d Cir. 2012). In the pending case, however, the Board

 5   of Elections, responding to our inquiry at oral argument, has

 6   commendably advised that it “would respond to a letter

 7   questioning whether an entity’s activities would classify it as a

 8   ‘political committee’ pursuant to New York Elections Law § 14-

 9   100(1).” Letter from Craig R. Bucki, counsel to Defendants-

10   Appellees, to Catherine O’Hagan Wolfe, Clerk of Court, at 1 (Aug.

11   30, 2011). The Board noted that it has issued formal opinions in

12   reply to inquiries, see, e.g., 1975 N.Y. State Bd. of Elections

13   Opinion # 13, 1976 N.Y. State Bd. of Elections Opinion #5. The

14   Board also noted that it responds to “telephone requests for

15   informal advice as to whether an entity constitutes a political

16   committee.” Bucki letter, at 1.

17        In Vermont Right to Life Committee State officials sought to

18   preclude a pre-enforcement challenge on the ground that they had

19   no intention of enforcing challenged regulations against the

20   plaintiff. 221 F.3d at 383. We properly rejected the State’s

21   claim that the plaintiff’s fear of suit was not well-founded

22   because “there is nothing to prevent the State from changing its

23   mind.” Id. The majority contends that the pending case “is no

24   different from Vermont Right to Life Committee, [slip op. P. __]


                                       3
 1   but that assertion overlooks a crucial difference between that

 2   case and ours. Not only does the Board of Elections stand ready

 3   to advise NOM whether it is considered to be a “political

 4   committee,” but the Board recognizes that, in the event that it

 5   advises that NOM is not a “political committee,” the Board may

 6   not change its mind without giving NOM the prior notice required

 7   by Williams v. Solafani, 444 F. Supp. 906, 912 (S.D.N.Y. 1978),

 8   aff’d sub nom. Williams v. Velez, 580 F.2d 1046 (mem. 1978).

 9   Furthermore, if the Board were unreasonably to delay either its

10   response to NOM’s inquiry or its notice of a change of mind, that

11   circumstance would surely warrant NOM’s prompt return to court.

12   See Hirschfeld v. Board of Elections of City of New York, 984

13   F.2d 35, 40 (2d Cir. 1993) (prohibiting elections board to change

14   its mind after undue delay). Thus, it is simply not so, as the

15   majority contends, that “NOM would have no warning of imminent

16   enforcement by the Board of Elections, beyond Nom’s own knowledge

17   that it was violating te law.”1 [slip op. P. __]

18        Instead of obliging NOM to inquire of the Board of Elections

19   whether it is a “political committee,” the majority returns this

20   case to the District Court for a ruling on NOM’s constitutional


          1
           The majority’s footnote 8 observes that an inquiry by NOM
     to the Board of Elections is not required “before an organization
     can be labeled a ‘political committee.’” Quite so. But the
     absence of a state law inquiry requirement is entirely irrelevant
     to whether federal court ripeness requirements oblige a plaintiff
     to take advantage of an available inquiry procedure before
     launching a pre-enforcement challenge.

                                     4
 1   claims. That course, and the inevitable appeal, will likely

 2   precipitate far-reaching constitutional rulings that would be

 3   entirely avoided if the Board of Elections determines, upon a

 4   proper inquiry, that it does not consider NOM to be a “political

 5   committee.”

 6        No doubt NOM would be interested in knowing whether New York

 7   would violate the First Amendment if the Board of Elections, if

 8   asked, were to determine that NOM was a “political committee,”

 9   but Federal courts do not sit to satisfy litigants’ intellectual

10   curiosity. I respectfully dissent.




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