                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                                    PUBLISH
                                                                  SEP 6 2001
                  UNITED STATES COURT OF APPEALS
                                                          PATRICK FISHER
                               TENTH CIRCUIT                         Clerk



 RICK HOMANS,

             Plaintiff-Appellant,

 v.                                                 No. 01-2271

 CITY OF ALBUQUERQUE,
 a Municipal corporation; MARGIE
 BACA ARCHULETA, in her capacity
 as Clerk of the City of Albuquerque,

             Defendants-Appellees.


      ON EMERGENCY MOTION FOR PRELIMINARY INJUNCTION
       APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF NEW MEXICO
                    (D.C. No. 01-CV-917-MV)


Submitted on the briefs:

Thomas C. Bird and Richard L. Alvidrez, of Keleher & McLeod, P.A.,
Albuquerque, New Mexico, for Plaintiff-Appellant.

Randy M. Autio and Daniel E. Ramczyk, Assistant City Attorneys, Albuquerque,
New Mexico; Brenda Wright and John C. Bonifaz, of National Voting Rights
Institute, Boston, Massachusetts, for Defendants-Appellees.


Before KELLY and MURPHY , Circuit Judges.


PER CURIAM .
        Plaintiff-Appellant Rick Homans has filed an emergency motion for an

injunction pending appeal, Fed. R. App. P. 8; 10th Cir. R. 8.1 & 8.2, and an

alternative motion for suspension of the appellate rules and expedited review of

the district court’s denial of his application for a preliminary injunction, Fed. R.

App. P. 2, 10th Cir. R. 2 We find that the emergency motion for an injunction

pending appeal is well taken and should be granted thereby obviating the need to

decide the alternative motion.



                                       Background

        Plaintiff-Appellant, Rick Homans is a duly qualified mayoral candidate in

the upcoming October 2, 2001, Albuquerque mayoral election. He brought this

action against Defendants-Appellees, the City of Albuquerque, and Margie Baca

Archuleta, Clerk of the City of Albuquerque, seeking declaratory relief that

Article XIII, Section 4(d)(2) of the Albuquerque City Charter violates the First

Amendment of the United States Constitution. He also sought a preliminary and

permanent injunction against the City and the Clerk enjoining them from

enforcing the provision. That provision limits the acceptance of campaign

contributions and expenditures by mayoral candidates to $174,720.00 1 The


1
    In pertinent part, the provision states:
                                                                         (continued...)

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district court found that under the terms of the City Charter, Mr. Homans is

subject to a $500 fine for each violation of the expenditure limitations and, if Mr.

Homans is successful in his bid for mayor, a potential public reprimand and

removal from office by the Albuquerque City Council. D. Ct. Memo. Op. &

Order at 2. Mr. Homans does not challenge the limitation on individual campaign

contributions of no more than 5% of the mayor’s annual salary contained in

Article XIII , Section 4(e) of the Albuquerque City Charter. I App. Doc. 3 at 1

n.1.

         After a hearing, the district court granted Mr. Homans a temporary

restraining order. Ten days later, the district court held another hearing, receiving

further evidence, and denied a preliminary injunction. The district court

acknowledged that the Supreme Court had invalidated, on First Amendment

grounds, certain federal provisions limiting campaign expenditures, while


1
    (...continued)
          (d)   Limits to Campaign Financing.      No candidate shall allow or
                accept contributions or make expenditures in excess of the
                following for any election:
                ....
                (2)    To a candidate for the office of Mayor, contributions or
                       expenditures equal to twice the amount of the annual
                       salary paid by the City of Albuquerque to the Mayor as
                       of the date of filing of the Declaration of Candidacy.

I App. Doc. 3, Ex. D. The current mayoral salary is $87,360.00.      Id. Doc. 3 at 4;
Doc. 4 at 2.


                                            -3-
upholding other provisions limiting campaign contributions. D. Ct. Memo. Op. &

Order at 10 (citing Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)). However,

the district court was persuaded to read the holding of Buckley v. Valeo narrowly

based not only on the passage of time, but also by “[t]he abundance of judicial

commentary on compelling governmental interests which fall outside the ambit of

Buckley . . . .” Memo. Op. & Order at 10. The district court determined that the

expenditure limits were narrowly tailored to meet compelling governmental

interests, specifically, preserving faith in democracy and reducing the appearance

of corruption. The district court found an inverse relationship between voter

turnout and campaign expenditures, at least in Albuquerque. It also determined

that the public favors spending limits as improving the fairness of elections and

insuring that all may become candidates, regardless of financial resources,

without becoming beholden to special interests.



                                     Discussion

      For us to consider a request for a stay or an injunction pending appeal, 10th

Cir. R. 8.1 requires the applicant to address the following: “(a) the likelihood of

success on appeal; (b) the threat of irreparable harm if the stay or injunction is not

granted; (c) the absence of harm to opposing parties if the stay or injunction is

granted; and (d) any risk of harm to the public interest.” In ruling on such a


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request, this court makes the same inquiry as it would when reviewing a district

court’s grant or denial of a preliminary injunction. McClendon v. City of

Albuquerque, 100 F.3d 863, 868 n.1 (10th Cir. 1996). Thus, we must consider,

based on a preliminary record, whether the district court abused its discretion and

whether the movant has demonstrated a clear and unequivocal right to relief.

Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1066 (10th Cir. 2001).

       The district court determined that Mr. Homans had not shown a likelihood

of success on the merits because Buckley v. Valeo did not present an absolute bar

to expenditure limits and the expenditure provision was narrowly tailored to meet

a compelling governmental interest. It also determined that the public interest

was better served by the denial of an injunction given public opinion about the

benefits of expenditure limitations and the probable increased voter turnout with

those limitations. Recognizing the importance of Mr. Homans’ First Amendment

right to political expression, the district court found that Mr. Homans made a

sufficient showing of irreparable harm to merit a preliminary injunction and that

the balance of the harms favored Mr. Homans. 2

       Before turning to these factors, Fed. R. App. P. 8(a)(1)(C) also requires that

a motion for an injunction while an appeal is pending must ordinarily be made

first in the district court. Mr. Homans suggests that he should be excused from


2
    We agree.

                                         -5-
this requirement because the district court would essentially make the same

inquiry it made before and only a short time remains before the October 2, 2001

election. Although it remains this court’s strong preference that relief pending

appeal be sought first in the district court, we have excused this requirement

where another application to the district court would serve little purpose.

McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996). We do

so here because of the immediacy of the problem and the district court’s legal

error concerning the First Amendment.

      Mr. Homans has demonstrated a substantial likelihood of success on the

merits on his First Amendment claim that campaign expenditure limitations are

unconstitutional given the Supreme Court’s clear statement that such limitations

are subject to “the exacting scrutiny applicable to limitations on core First

Amendment rights of political expression” and do not survive even under the

rationale of (1) deterring corruption and preventing evasion of contribution limits,

(2) equalizing the financial resources of the candidates, and (3) restraining the

cost of election campaigns for its own sake. Buckley, 424 U.S. at 54-55. In

arguing that Buckley need not be overruled to sustain expenditure limitations,

Defendants remind us that “[t]he facts do matter, even when the courts are

applying the strictest standard of constitutional review.” Aplees. Memo. at 9.

When it comes to the First Amendment, however, an appellate court makes an


                                         -6-
independent examination of the record to protect against the diminution of First

Amendment rights. Wells v. City & County of Denver, 257 F.3d 1132, 1146-47

(10th Cir. 2001).

      The district court made factual findings to support its identification of

compelling governmental interests served by the expenditure limitations. The

compelling governmental interests identified by the district court, under the broad

headings of preserving faith in democracy and deterring the appearance of

corruption, are really no different than the interests deemed insufficient to justify

expenditure limitations in Buckley.

      The district court also perceived that the Supreme Court currently was

divided over Buckley’s scope. It bears noting that the Supreme Court cases relied

upon by the district court all involve limitations on contributions, and even then,

the statements are not those of a majority even if joined by other members of the

Court. See, e.g., Colorado Republican Federal Campaign Committee v. Federal

Election Comm’n, 518 U.S. 604, 649-50 (1996) (Stevens, J. dissenting); Nixon v.

Shrink Missouri Government PAC, 528 U.S. 377, 405 (2000) (Breyer, J.

concurring); id. at 409 (Kennedy, J. dissenting). Moreover, the Supreme Court

has not suggested that the distinction between campaign expenditures and

campaign contributions is about to change. FEC v. Colorado Republican Federal

Campaign Committee, 121 S. Ct. 2351, 2356 (2001) (“We first examined the


                                          -7-
Federal Election Campaign Act of 1971 in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct.

612, 46 L. Ed. 2d 659 (1976) (per curiam), where we held that the Act's

limitations on contributions to a candidate's election campaign were generally

constitutional, but that limitations on election expenditures were not. Id., at

12-59, 96 S. Ct. 612. Later cases have respected this line between contributing

and spending.”).

      The district court also relied upon a concurring opinion in Kruse v. City of

Cincinnati, 142 F.3d 907, 919-20 (6th Cir. 1998) (Cohn, D.J., concurring),

suggesting that Buckley might not be the last word on expenditure limits. We

note that the panel in Kruse held an expenditure limitation invalid on the strength

of Buckley, employing an analysis similar to that we employ here. Similarly, in

Landell v. Sorrell, 118 F. Supp. 2d 459, 481-83 (D. Vt. 2000), a district court

invalidated a campaign expenditure limitation in Vermont.

      Having determined that Mr. Homans has demonstrated a substantial

likelihood of success on the merits, we believe that the public interest is better

served by following binding Supreme Court precedent and protecting the core

First Amendment right of political expression. Although Defendants argue that

Mr. Homans has not demonstrated irreparable harm because he should have

sought a judicial determination before exceeding the expenditure limitations and

seeking federal injunctive relief, we are unpersuaded. Mr. Homans was not


                                          -8-
required to participate in state court proceedings to vindicate his federal rights,

see Edwards v. Balisok, 520 U.S. 641, 649 (1997) (“§ 1983 contains no judicially

imposed exhaustion requirement”) and Mr. Homans reasonably relied upon

assurances that the expenditure caps would not be enforced.

      Because all of the requirements have been satisfied for an injunction

pending appeal, Defendants City of Albuquerque and Defendant Margie Baca

Archuleta, in her capacity of Clerk of the City of Albuquerque, are hereby

enjoined from further enforcing Article XIII, Section 4(d)(2) of the Albuquerque

City Charter, pending further order of this court.

      IT IS SO ORDERED.




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