                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         JUL 17 2003
                      UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk



DANIEL J. PEARLMAN,

          Plaintiff-Appellant,
                                                         No. 02-2191
v.
                                                  (District of New Mexico)
                                                 (D.C. No. CIV-02-686-JP)
REBECCA VIGIL-GIRON, Secretary
of State, State of New Mexico,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.


I. BACKGROUND

      Plaintiff Daniel J. Pearlman, acting pro se, filed this 42 U.S.C. § 1983

action in federal district court alleging that Defendant Rebecca Vigil-Giron, New



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mexico Secretary of State, would violate his First and Fourteenth Amendment

rights under the United States Constitution and his rights under the Constitution

of the State of New Mexico by distributing a general election ballot on November

5, 2002 containing printed candidate names. Pearlman sought a writ of

mandamus ordering Vigil-Giron to expunge all printed candidate names and

provide a space for voters to write-in the name of any candidate for all elective

offices on the November 5, 2002 general election ballot and all subsequent

election ballots.

      The district court sua sponte dismissed Pearlman’s complaint on the

grounds that the Eleventh Amendment deprived the court of federal subject matter

jurisdiction. The district court reasoned that the Eleventh Amendment bars suits

by citizens against states in federal district court unless: 1) the state consents to

suit; 2) Congress expressly abrogates the states’ sovereign immunity; or 3) the

citizen sues a state official pursuant to Ex Parte Young, 209 U.S. 123 (1908). The

district court concluded that New Mexico did not consent to be sued by a citizen

challenging the constitutionality of the New Mexico Election Code, and Congress

did not abrogate the states’ sovereign immunity by enacting 42 U.S.C. § 1983.

The district court also concluded that while Pearlman sued a state official and

sought injunctive relief, the Ex Parte Young doctrine did not apply because

Pearlman’s suit implicated New Mexico’s “special sovereignty interests” in


                                           -2-
controlling the management and conduct of elections. Finally, the district court

concluded that the issuance of the writ of mandamus would constitute a form of

relief against the state that is barred under the Eleventh Amendment.

      Pearlman appeals the dismissal of his suit, arguing his claim is not barred

under the Eleventh Amendment because it is asserted against a state official for

prospective injunctive relief pursuant to the Ex Parte Young doctrine. After

Pearlman filed this appeal, Vigil-Giron approved the contested election ballot,

and the general election occurred on November 5, 2002. Vigil-Giron argues that

because the general election ballots were distributed and the November 5, 2002

election occurred, this appeal is moot. This court exercises jurisdiction pursuant

to 28 U.S.C. § 1291 and affirms, concluding that while this case fits the

exception to mootness for conduct “capable of repetition, yet evading review,”

Pearlman’s claim is barred under the Eleventh Amendment because it is frivolous

and, therefore, does not fall within the Ex Parte Young doctrine.

II. DISCUSSION

      A. Mootness

      Vigil-Giron argues that this case is moot and thus fails to present an actual

controversy because the challenged election ballots were issued and the general

election occurred on November 5, 2002. Federal courts may adjudicate only

actual controversies. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990);


                                         -3-
Fischbach v. New Mexico Activities Ass’n, 38 F.3d 1159, 1160 (10th Cir. 1994).

Pursuant to Article III of the United States Constitution, the controversy must

exist at all stages of appellate review. United States v. Seminole Nation, 321 F.3d

939, 943 (10th Cir. 2002); Fischbach, 38 F.3d at 1160. An action is moot, and

this court lacks jurisdiction to adjudicate the matter, once such controversy ceases

to exist. Fischbach, 38 F.3d at 1160. “An exception to the mootness doctrine,

however, arises when the case is ‘capable of repetition, yet evading review.’”

Seminole Nation, 321 F.3d at 943 (citation omitted). This exception requires that:

(1) the duration of the challenged conduct is “too short to be fully litigated prior

to its cessation or expiration,” and (2) there is “a reasonable expectation that the

same complaining party [will] be subjected to the same action again.” Gannett

Co., Inc. v. DePasquale, 443 U.S. 368, 377 (1979) (quotation omitted); Grant v.

Meyer, 828 F.2d 1446, 1449 (10th Cir. 1987) (en banc).

      While the challenged election ballots were issued and the election occurred

prior to appeal, this case fits the narrow exception to the mootness doctrine for

conduct capable of repetition, yet evading review. Ballot production and

certification procedures are short in duration. See N.M. Stat. Ann. § 1-10-4

(noting that not less than forty-nine days before the primary election and fifty-

three days before the general election, the ballot shall be prepared and transmitted

to the secretary of state); see Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (finding


                                          -4-
that while the challenged election was over, the case was not moot because the

controversy was capable of repetition, yet evading review); Storer v. Brown, 415

U.S. 724, 737 n.8 (1974) (same). Therefore, because Pearlman appeals the

production and certification of the New Mexico general election ballot, the

challenged action is limited in duration and will not, unless an exception to

mootness is found, remain justiciable throughout appeal.

      “To constitute an exception to the mootness doctrine, it is not enough that

an issue will escape review because of limited duration.” Seminole Nation, 321

F.3d at 944. There must also be “a reasonable expectation that the same

complaining party . . . [will] be subjected to the same action again” for the

mootness exception to apply. Id. (quotation omitted); Grant, 828 F.2d at 1449.

Pearlman challenges Vigil-Giron’s production and certification of the New

Mexico ballot as a voter. Further, the New Mexico statutes regarding ballot

production and ballot certification continue to remain in effect. Therefore, it is

likely that the same dispute will occur between Pearlman and Vigil-Giron. Grant,

828 F.2d at 1449 (holding that because Colorado law continues to prohibit paying

signature circulators in a ballot initiative and the initiative sought by the plaintiffs

had not yet been enacted, the dispute between the parties was capable of

repetition).




                                           -5-
      Vigil-Giron, however, argues that under this court’s decision in Thournir v.

Buchanan, 710 F.2d 1461 (10th Cir. 1983), this case does not fit the exception to

mootness for conduct capable of repetition, yet evading review. In Thournir, the

plaintiff filed a 42 U.S.C. § 1983 action, alleging that a Colorado election law

was unconstitutional. Id. at 1462. The plaintiff moved for a preliminary

injunction to have her name placed on the election ballot. Id. The district court

denied the plaintiff’s motion for preliminary injunction and the plaintiff appealed.

Id. This court in Thournir held that the plaintiff’s appeal of the denial of a

preliminary injunction was moot because the election had already taken place. Id.

at 1463-65. In dismissing the plaintiff’s appeal as moot, the Thournir court

emphasized the fact that the district court had not addressed the merits of the

plaintiff’s claims and had only addressed plaintiff’s motion for preliminary

injunction. Id. at 1464. Further, the Thournir court reasoned that because the

merits of the plaintiff’s claims could still be addressed by the district court, it was

inappropriate to address them on appeal of the denial of preliminary injunction.

Id. at 1465. Unlike the plaintiff in Thournir, Pearlman is appealing the dismissal

of his claim and not the denial of a motion for preliminary injunction.

Accordingly, Thournir is easily distinguished from this case.

      Therefore, while the challenged ballots were certified and distributed, and

the election occurred prior to this appeal, “this court’s jurisdiction is not defeated


                                           -6-
because this appeal fits the exception to mootness for conduct capable of

repetition, yet evading review.” Seminole Nation, 321 F.3d at 944 (quotation

omitted); see Storer, 415 U.S. at 737 n.8 (“The ‘capable of repetition, yet evading

review’ doctrine, in the context of election cases, is appropriate when there are

‘as applied’ challenges as well as in the more typical case involving only facial

attacks.”).

      B. Eleventh Amendment

      This court reviews the district court’s decision to dismiss Pearlman’s

claims as barred under the Eleventh Amendment de novo. Robinson v. Kansas,

295 F.3d 1183, 1188 (10th Cir. 2002).

      The Eleventh Amendment generally operates as a bar to suits brought

against a state by its own citizen in federal district court. Elephant Butte

Irrigation Dist. v. Dept. of the Interior, 160 F.3d 602, 607 (10th Cir. 1998).

“[T]he rule of state sovereign immunity[, however,] is not absolute.” Robinson,

295 F.3d at 1188. Consequently, the Eleventh Amendment bar is inapplicable if:

1) the state consents to suit; 2) Congress expressly abrogates the states’ immunity;

or 3) the citizen sues a state official pursuant to Ex Parte Young, 209 U.S. 123

(1908). See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1286 (10th Cir. 1999).

Pearlman argues that the Eleventh Amendment does not bar his suit because he is

suing Vigil-Giron pursuant to Ex Parte Young.


                                         -7-
      In determining whether a suit is governed by the Ex Parte Young doctrine,

this court applies a four-part test. Robinson, 295 F.3d at 1191.

      First, we must determine whether this is an action against the state
      officials or against the State of New Mexico itself; second, whether
      the alleged conduct of the state officials constitutes a violation of
      federal law . . .; third, whether the relief Plaintiff[] seek[s] is
      permissible prospective relief or is it analogous to a retroactive
      award of damages impacting the state treasury; and finally, whether
      the suit rises to the level of implicating ‘special sovereignty
      interests.’

Elephant Butte, 160 F.3d at 609 (citation omitted); see Robinson, 295 F.3d at

1191 (applying the Elephant Butte test to plaintiff’s Fourteenth Amendment due

process and equal protection challenges brought against a state official).

      Pearlman brought this suit against Vigil-Giron in her official capacity as

New Mexico Secretary of State, alleging that Vigil-Giron would violate his First

and Fourteenth Amendment rights by failing to expunge all printed candidate

names from the November 5, 2002 general election ballot. Therefore, to the

extent that Pearlman alleged a violation of federal law against a state official, he

satisfied the first part of the Elephant Butte test. See Lewis v. New Mexico Dep’t

of Health, 261 F.3d 970, 976 (10th Cir. 2001) (reasoning that “in allegedly

violating federal law, the officials are stripped of their state authority and the

Eleventh Amendment will not protect them from suit”).

      Pearlman, however, failed to assert a non-frivolous violation of federal law.

“[T]o avoid dismissal based on Eleventh Amendment immunity,” a plaintiff must

                                          -8-
allege that the state official “act[ed] in violat[ion] of federal law and therefore

outside any delegated authority.” Id. While the determination of whether the

plaintiff alleged a violation of federal law “affects both the initial immunity

inquiry and the court’s ultimate decision on the merits,” the court does not

consider the merits at the immunity stage. Id. Rather, the court applies “the

limited jurisdictional standard used to assess whether a claim sufficiently confers

subject matter jurisdiction, asking only whether the claim is wholly insubstantial

and frivolous.” Id. (quotation omitted). A claim is insubstantial and frivolous “if

it is obviously without merit, or foreclosed by prior authoritative decisions.”

Junior Chamber of Commerce, of Rochester, Inc. v. United States Jaycees, 495

F.2d 883, 886 (10th Cir. 1974) (citation omitted).

      Pearlman argues his complaint alleged that Vigil-Giron violated his First

and Fourteenth Amendment rights under the United States Constitution by: (1)

limiting his ability to freely express his political views by writing-in any

candidate, and (2) distributing a ballot with printed candidate names. While

Pearlman’s complaint references prior cases in which he alleged that Vigil-Giron

and her predecessor’s failure to permit write-in voting constituted a violation of

his constitutional rights, such conduct is not alleged as the basis of Pearlman’s

claim in this complaint. The only conduct alleged in the complaint to be in

violation of Pearlman’s constitutional rights is Vigil-Giron’s failure to expunge


                                          -9-
all printed names from the general election ballot. The limited nature of

Pearlman’s allegations is reinforced by the fact that the only relief sought in the

complaint is the expungement of all printed names on the general election ballot

and on all future ballots. Therefore, Pearlman’s complaint only contains a claim

against Vigil-Giron for her failure to expunge printed candidate names from the

New Mexico election ballot.

      In Burdick v. Takushi, the Supreme Court upheld Hawaii election laws

which prohibited write-in voting, reasoning that the ballot access laws were

constitutional and the burden on the plaintiff’s right to vote was counterbalanced

by Hawaii’s interest in supporting the ballot access scheme. 504 U.S. 428, 437-

39 (1992). Inherent in that decision is the rejection of any constitutional right to

a ballot constructed solely for write-in voting. Therefore, because there is no

recognized constitutional right to a ballot free of printed candidate names,

Pearlman’s claim is frivolous and is barred under the Eleventh Amendment. See

Elephant Butte, 160 F.3d at 610-11.




                                         -10-
III. CONCLUSION

     For the foregoing reasons, the district court’s dismissal of Pearlman’s suit

as barred under the Eleventh Amendment is AFFIRMED.



                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




                                       -11-
