                        United States Court of Appeals
                            For the Eighth Circuit


                                  No. 03-2801



                                     *
Republican Party of Minnesota,       * Appeal from the United
Third Congressional District, an     * States District Court for
association,                         * the District of Minnesota
                                     *
             Plaintiff - Appellant,  *
                                     *
             v.                      *
                                     *
Amy Klobuchar, in her official       *
capacity as Hennepin County          *
Attorney; Mike Fahey, in his         *
official capacity as Carver County   *
Attorney,                            *
                                     *
             Defendants - Appellees. *
                                     *


                             Submitted: May 13, 2004
                                Filed: August 26, 2004


Before WOLLMAN, HAMILTON1, and BYE, Circuit Judges.


HAMILTON, Circuit Judge


      1
       The Honorable Clyde H. Hamilton, United States Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
       The Republican Party of Minnesota, Third Congressional District (the Party),
brought this action alleging three as-applied challenges and one First Amendment
facial overbreadth challenge to Minnesota Statute § 211B.06, subdivision 1. Minn.
Stat. Ann. § 211B.06, subd. 1 (West Supp. 2004) (hereinafter referred to in text as
§ 211B.06, subdivision 1). The action follows and stems from the criminal
prosecution of John Knight (Knight), a Party-endorsed candidate for Hennepin
County, Minnesota Commissioner, District 6, who was charged under § 211B.06,
subdivision 1 with four counts of making a false campaign statement about a political
opponent in the fall of 2002.

      The district court2 held the Party lacked standing with respect to each of its
claims, and therefore, dismissed the entire action pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. Alternatively, the district
court dismissed the entire action pursuant to the Younger abstention doctrine. See
Younger v. Harris, 401 U.S. 37 (1971).

      For reasons that follow, we affirm.

                                        I.
       In September 2002, Knight, Linda Koblick (Koblick), and other individuals ran
for the non-partisan position of Hennepin County Commissioner, District 6. The
Party endorsed Knight over Koblick in the race.3 Five days before the primary

      2
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      3
        The Party’s territory totally encompasses Hennepin County Commissioner,
District 6. “Membership” in the Party is defined as “all voters of the Third
Congressional District who desire to support the objectives of the Republican Party,”
which objectives include furthering the principles of the Republican Party within the
Third Congressional District and electing Republicans to federal, state and local
office. (A.A. 78).

                                         -2-
election, Koblick complained to the Hennepin County Attorney’s Office (HCAO) that
Knight’s campaign had placed scripted telephone calls to potential voters falsely
identifying Knight as the only Republican candidate in the race. According to
Koblick, Knight knew she was a member of the Republican Party of Minnesota and
the Party. She also claimed to have served in Party leadership positions, including
being Party chair when he was elected vice chair. Koblick complained that Knight
violated Minnesota Statute § 211B.06, subdivision 1 by claiming to be the only
Republican candidate in the race.4 In relevant part, § 211B.06, subdivision 1
provides:
       A person is guilty of a gross misdemeanor who intentionally participates
       in the preparation, dissemination, or broadcast of paid political
       advertising or campaign material with respect to the personal or political
       character or acts of a candidate . . . that is designed or tends to elect,
       injure, promote, or defeat a candidate for nomination or election to a
       public office . . . that is false, and that the person knows is false or
       communicates to others with reckless disregard of whether it is false.

Minn. Stat. Ann. § 211B.06, subd. 1 (West Supp. 2004).5

      4
       Notably, according to the Party’s first amended complaint, neither the
Republican Party of Minnesota nor the Party maintains membership rolls, and the
Party’s constitution does not have a member removal mechanism except with respect
to members who are on the Party’s executive committee, a mechanism never used
against Koblick.
      5
        In State v. Jude, 554 N.W.2d 750 (Minn. Ct. App. 1996), Minnesota’s
intermediate appellate court held a prior version of this statute, not at issue here,
unconstitutionally overbroad. Instead of the words “the person knows is false or
communicates to others with reckless disregard of whether it is false,” as contained
in the current version, the unamended version contained the words “the person knows
or has reason to believe is false,” Minn. Stat. Ann. § 211B.06, subd. 1 (West 1992).
The Jude court’s overbreadth analysis focused on the unamended version’s “reason
to believe” language. Jude, 554 N.W.2d at 753. The Jude court concluded that this
language potentially allowed punishment for some defamatory speech that was not
published with actual malice, and therefore, the statute was unconstitutionally

                                        -3-
       Due to a conflict of interest, the County Attorney for HCAO, Amy Klobuchar
(Hennepin County Attorney Klobuchar), referred Koblick’s complaint to Michael
Fahey, the County Attorney for neighboring Carver County (Carver County Attorney
Fahey). Following an investigation conducted by the Carver County Attorney’s
Office, on January 9, 2003, a Carver County grand jury indicted Knight on four
counts of violating Minnesota Statute § 211B.06, subdivision 1 by using knowingly
false and misleading claims in his paid political advertising material.6

       On January 30, 2003, the Party filed the present civil action on behalf of Knight
and its other members, in the United States District Court for the District of
Minnesota, against Hennepin County Attorney Klobuchar and Carver County
Attorney Fahey (the Defendants), in their official capacities only. In Count I, the
Party alleged that by prosecuting Knight the Defendants: (1) “are violating the
Party’s freedom of association rights to determine membership requirements and
define what a Republican is”; and (2) “are chilling candidate-members and members
of the Party from discussions regarding re-defining membership and what a
Republican is for the 2004 and 2006 elections.” (A.A. 69-70). In Count II, the Party
alleged that by prosecuting Knight the Defendants, in violation of the First
Amendment, are chilling its and Party members’ free speech rights to declare who is
or is not “a Republican.” (A.A. 71). In Count III, the Party brought a First
Amendment facial overbreadth challenge to § 211B.06, subdivision 1. Finally, in
Count IV, added via an amended complaint, the Party alleged that certain statements
made by counsel for Carver County Attorney Fahey after this case was filed have
resulted in continued intimidation by the Defendants that has further chilled Party
members’ free speech and left them in fear of prosecution. The challenged statements


overbroad. Id. at 754. The current version of § 211B.06, subdivision 1 was enacted
in response to Jude.
      6
       On February 7, 2003, Carver County Attorney Fahey dismissed the indictment
and substituted a criminal complaint.

                                         -4-
were to the effect that, in prosecuting Knight, the Defendants only did what the law
required them to do. As relief, the Party’s first amended complaint seeks: (1) a
permanent injunction against the prosecution of Knight and its other members under
§ 211B.06, subdivision 1 for establishing Party membership requirements; (2) a
declaration that § 211B.06, subdivision 1 is facially and as applied to the facts of this
case unconstitutional; and (3) reimbursement for all litigation costs, expenses, and
expert witness fees as allowed by law. Notably, the Party expressly alleged in its first
amended complaint that it “did not and has not taken a position on whether John
Knight was the only Republican candidate [in the race for Hennepin County
Commissioner, District Number 6] . . . .” (A.A. 71).

      The Defendants filed motions to dismiss the Party’s first amended complaint
on numerous grounds, including lack of standing and Younger abstention. Without
addressing the other grounds raised by the Defendants, the district court dismissed the
Party’s first amended complaint on the ground that the Party lacked standing, see Fed.
R. Civ. Proc. 12(b)(1), and, alternatively, on the ground of Younger abstention. The
Party noted a timely appeal.

       On September 5, 2003, during the pendency of this appeal, the state court
dismissed with prejudice the four criminal charges against Knight for violating
§ 211B.06, subdivision 1. The dismissal with prejudice came as the result of Knight’s
fulfillment of an agreement to read a scripted apology into the court record and to
make a total donation of $500 to nonpolitical charities.

                                           II.
      The gravamen of the Party’s three as-applied First Amendment challenges is
that Knight’s § 211B.06, subdivision 1 prosecution for use of the telephone script
claiming to be the lone Republican candidate in the race for Hennepin County
Commissioner, District 6, is chilling it and its members from defining and expressing
membership policies as well as making membership determinations. The district

                                          -5-
court dismissed these three claims on the alternative grounds of lack of standing, see
Fed. R. Civ. Proc. 12(b)(1), and Younger abstention. See Younger, 401 U.S. at 37.
The Party challenges the district court’s action as erroneous.

       As previously set forth, while this case was pending on appeal, all criminal
charges against John Knight for his alleged violations of § 211B.06, subdivision 1
have been dismissed with prejudice. This undisputed factual development raises the
threshold jurisdictional issue of whether the Party’s three claims alleging “as-applied”
First Amendment challenges to § 211B.06, subdivision 1 (Counts I, II, and IV) should
be dismissed as moot.

       “In order to invoke the jurisdiction of the federal courts, the parties must
demonstrate an actual, ongoing case or controversy within the meaning of Article III
of the Constitution.” Iron Cloud v. Sullivan, 984 F.2d 241, 242 (8th Cir. 1993)
(internal quotation marks omitted). Federal courts are not empowered “to give
opinions upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before it.” Church of
Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks
omitted); see also Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“The rule in federal
cases is that an actual controversy must be extant at all stages of review, not merely
at the time the complaint is filed.”) (internal quotation marks omitted).

      “A case becomes moot if it can be said with assurance that there is no
reasonable expectation that the violation will recur or if interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Kennedy
Building Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004). A narrow
exception to the mootness doctrine exists when a dispute is capable of repetition yet
evades review. Webster Groves Sch. Dist. v. Pulitzer Publ’g. Co., 898 F.2d 1371,
1373-74 (8th Cir. 1990). A dispute is capable of repetition yet evades review when
the challenged action is too short in duration for timely review and a reasonable

                                         -6-
expectation exists that the complaining party will be subject to the same action again.
Id.

       For analytical purposes, Counts I, II, and IV are “as-applied” challenges under
the First Amendment. An as-applied challenge consists of a challenge to the statute’s
application only as-applied to the party before the court. See generally City of
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 758-59 (1988). If an as-applied
challenge is successful, the statute may not be applied to the challenger, but is
otherwise enforceable. See id.

        Here, each of the Party’s as-applied challenges to § 211B.06, subdivision 1
(Counts I, II, and IV) hinges on Knight being prosecuted for allegedly violating
§ 211B.06, subdivision 1 by claiming to be the only Republican candidate in the race
for Hennepin County Commissioner, District 6. Because all of the § 211B.06,
subdivision 1 charges against Knight have been dismissed with prejudice, the chance
of Knight being prosecuted again for such conduct is nil. Moreover, there is no
evidence that the Party, or even one of its members, is under imminent threat of
prosecution for violation of § 211B.06, subdivision 1 based upon the use of the
telephone script. In short, we can say with fair assurance that there is no reasonable
expectation that the alleged violation will recur. Accordingly, we hold that Counts
I, II, and IV are moot.7 Renne v. Geary, 501 U.S. 312, 320 (1991) (holding that
respondents have “failed to demonstrate a live dispute involving the actual or
threatened application of [state statute] to bar particular speech”).

      Finally, we reject any notion that Counts I, II, and IV fall within the mootness
doctrine’s narrow exception for claims capable-of-repetition-yet-evading-review.


      7
       We note that Knight made an apology and a five hundred dollar charitable
donation in connection with the case. The record suggests nothing other than he
acted voluntarily in agreeing to these terms.

                                         -7-
First, the charges against Knight were dismissed with prejudice. Second, the facts
here suggest nothing more than rank speculation that any other member of the Party
will be subjected to criminal prosecution under § 211B.06, subdivision 1 for
participating in the telephone script operation.

     In sum, we affirm, on mootness grounds, the district court’s dismissal of
Counts I, II, and IV.8

                                           III.
        We next address the district court’s dismissal of, for lack of standing, the
Party’s First Amendment facial overbreadth claim (Count III). The gravamen of the
Party’s First Amendment facial overbreadth claim is that § 211B.06, subdivision 1
chills it from engaging in party discussions regarding membership determinations and
chills its members from repeating those determinations. We review a district court’s
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) de novo. Hansen v.
United States, 248 F.3d 761, 763 (8th Cir. 2001).

   “The aim of facial overbreadth analysis is to eliminate the deterrent or chilling
effect an overbroad law may have on those contemplating conduct protected by the
First Amendment.” Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977)
(footnote and internal quotation marks omitted). Thus, “the overbreadth doctrine
permits the facial invalidation of laws that inhibit the exercise of First Amendment
rights if the impermissible applications of the law are substantial when judged in
relation to the statute’s plainly legitimate sweep.” City of Chicago v. Morales, 527
U.S. 41, 52 (1999) (internal quotation marks omitted). We note, however, the
Supreme Court’s recent statement that facial challenges to criminal statutes on First

      8
       Given our affirmance of the district court’s dismissal of the Party’s as-applied
First Amendment claims on mootness grounds, we express no opinion on the district
court’s alternative grounds for dismissal of these claims--i.e., lack of standing and
Younger abstention.

                                         -8-
Amendment overbreadth grounds “are especially to be discouraged.” Sabri v. United
States, 124 S. Ct. 1941, 1948 (2004). According to the Court:
       Not only do they invite judgments on fact-poor records, but they entail
       a further departure from the norms of adjudication in federal courts:
       overbreadth challenges call for relaxing familiar requirements of
       standing, to allow a determination that the law would be
       unconstitutionally applied to different parties and different
       circumstances from those at hand.

Id.

       As we have previously stated, federal courts only have jurisdiction to hear
actual cases and controversies. U.S. Const. art. III, § 2, cl. 1. “Standing is the
threshold question in determining whether a federal court may hear a case.” Eckles
v. City of Corydon, 341 F.3d 762, 767 (8th Cir. 2003) (internal quotation marks
omitted). Thus, a party invoking federal jurisdiction, here the Party, has the burden
of establishing standing to bring its First Amendment facial overbreadth claim.
Schanou v. Lancaster County Sch. Dist., 62 F.3d 1040, 1045 (8th Cir. 1995). The
following is the “‘irreducible minimum,’” United Food and Commercial Workers
Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996), of the
constitutional standing requirements:
       First, the plaintiff must have suffered an “injury in fact”--an invasion of
       a legally protected interest which is (a) concrete and particularized, and
       (b) actual or imminent, not conjectural or hypothetical. Second, there
       must be a causal connection between the injury and the conduct
       complained of--the injury has to be fairly traceable to the challenged
       action of the defendant, and not the result of the independent action of
       some third party not before the court. Third, it must be likely, as
       opposed to merely speculative, that the injury will be redressed by a
       favorable decision.




                                        -9-
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992) (internal quotation and
citation marks omitted) (alteration marks omitted). See also Friends of the Earth,
Inc., v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180-81 (2000).



       With regard to a First Amendment facial overbreadth claim, actual injury can
exist for standing purposes even if the plaintiff has not engaged in the prohibited
expression as long as the plaintiff is objectively reasonably chilled from exercising
his First Amendment right to free expression in order to avoid enforcement
consequences. See Meese v. Keene, 481 U.S. 465, 473-75 (1987); Pittman v. Cole,
267 F.3d 1269, 1283 (11th Cir. 2001). A plaintiff suffers from an objectively
reasonable chilling of his First Amendment right to free expression by a criminal
statute only if there exists a credible threat of prosecution under that statute if the
plaintiff actually engages in the prohibited expression. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298-99, 301-03 (1979).

       Additionally, of particular relevance in the present case, the facial overbreadth
doctrine “is a departure from traditional rules of standing,” Alexander v. United
States, 509 U.S. 544, 555 (1993), such that a party whose own expressive conduct
may be unprotected is allowed to assert the First Amendment rights of others not
before the court because “broadly written statutes may have such a deterrent effect
on free expression that they should be subject to challenge even by a party whose own
conduct may be unprotected,” Members of City Council of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 798 (1984). See also SOB, Inc. v. County of Benton, 317
F.3d 856, 864 (8th Cir. 2003) (“To prevent the chilling of protected First Amendment
interests, [the overbreadth] doctrine permits an individual whose own speech or
conduct may be prohibited to challenge a statute on its face because it also threatens
others not before the court--those who desire to engage in legally protected
expression but who may refrain from doing so.” (internal quotation marks and ellipses
omitted)).

                                         - 10 -
       The district court dismissed the Party’s First Amendment facial overbreadth
claim pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing, and
therefore lack of subject matter jurisdiction, on the basis that the Party failed the
injury-in-fact requirement of constitutional standing. We agree.

       As stated previously, the gravamen of the Party’s First Amendment facial
overbreadth claim is that § 211B.06, subdivision 1 chills it from engaging in party
discussions regarding membership determinations and chills its members from
repeating those determinations. Assuming arguendo the Party can validly assert the
First Amendment rights of its members, the Party lacks standing to bring its First
Amendment facial overbreadth claim because although the Party has alleged an
intention on behalf of itself and its members to engage in a course of conduct
arguably affected with a constitutional interest, such course of conduct (i.e.,
determining party membership and publishing party membership determinations) is
not proscribed by § 211B.06, subdivision 1. There is nothing in the statute which
prevents a political party from deciding who is and is not one of its members.
Moreover, there is nothing in the statute which prevents a member of a political party
from repeating a membership determination of that party. Finally, § 211B.06,
subdivision 1 contains no language which can even arguably be construed to prohibit
a political party from endorsing a particular political candidate. Therefore, neither
the Party nor its members are subject to “a credible threat of prosecution” under
§ 211B.06, subdivision 1 for engaging in the conduct for which the Party invokes
First Amendment protection. Babbitt, 442 U.S. at 298.

       In sum, we hold the district court did not err in dismissing the Party’s First
Amendment facial overbreadth claim for lack of standing. Accordingly, we affirm
the district court’s dismissal of that claim (Count III).9


     Given our affirmance of the district court’s dismissal of the Party’s First
      9

Amendment facial overbreadth claim for lack of standing, we express no opinion on

                                        - 11 -
                                        IV.
      In conclusion, we affirm the district court’s dismissal of Counts I, II, III, and
IV. We affirm the dismissal of Counts I, II, and IV as moot and affirm the dismissal
of Count III for lack of standing.10




the district court’s alternative ground for dismissal of such claim, i.e., Younger
abstention.
      10
         The Party has moved to supplement the record with a copy of the official
court transcript of the state court hearing at which the state court dismissed Knight’s
§ 211B.06, subdivision 1 prosecution. We grant this motion. The Party has also
moved to supplement the record with a copy of an order and memorandum of law in
an unrelated Minnesota state court case the Party believed we would have a difficult
time obtaining. We deny this motion.

      The Defendants have moved to strike a September 1, 2003 newspaper article
from the Addendum to the Party’s opening brief regarding dismissal of Knight’s
§ 211B.06, subdivision 1 prosecution and to strike the portions of the Party’s brief
which rely on the article. We deny this motion as moot.

                                        - 12 -
