                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-2057


SOUTH CAROLINA CITIZENS FOR LIFE, INCORPORATED,

                 Plaintiff - Appellant,

           v.

KENNETH C. KRAWCHECK; MARVIN D. INFINGER; EDWARD E. DURYEA;
JOHNNIE M. WALTERS; ROBERT A. BRUCE; PRISCILLA L. TANNER;
SUSAN P. MCWILLIAMS, in their official capacities as
commissioners of the South Carolina State Ethics Commission,

                 Defendants – Appellees,

           and

HENRY MCMASTER, in his official         capacity     as   the   South
Carolina Attorney General,

                 Defendant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:06-cv-02773-TLW)


Argued:   September 24, 2008              Decided:   November 20, 2008


Before WILLIAMS, Chief Judge, AGEE, Circuit Judge, and T. S.
ELLIS, III, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.


Reversed and remanded by unpublished opinion.      Senior Judge
Ellis wrote the opinion, in which Chief Judge Williams and Judge
Agee joined.
ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute,
Indiana, for Appellant.    Christian Stegmaier, COLLINS & LACY,
Columbia, South Carolina, for Appellees.    ON BRIEF: Jeffrey P.
Gallant, BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for
Appellant.   Joel W. Collins, Jr., Robert F. Goings, COLLINS &
LACY, Columbia, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
ELLIS, Senior District Judge:

      This is an appeal from a dismissal on ripeness grounds of

an action challenging the constitutionality of two provisions of

South Carolina election law.           For the reasons that follow, we

reverse and remand to the district court for decision on the

merits.



                                       I.

      South    Carolina     Citizens   for     Life,   Inc.   (“SCCL”)      is    a

nonprofit corporation established to present information to the

public    on    abortion,    euthanasia,      and   related   issues      and    to

advocate a pro-life position on these issues.                 One of the ways

SCCL advances its pro-life mission is to inform the public about

the   positions    of    candidates    for    public   office    on    abortion-

related issues by distributing voter guides.                  SCCL planned to

distribute voter guides by direct mail regarding the candidates

for the House District 79 seat prior to South Carolina’s 2006

general election, held on November 7, 2006.              The group expected

to spend approximately $15,000 on the voter guides.

      SCCL     became    concerned     that    this    mass     mailing     might

implicate      South    Carolina   election     law.     Specifically,       SCCL

worried that it might be considered a “committee” under South




                                       3
Carolina law if it distributed the voter guides as planned. 1           If

SCCL were a committee, it would be required to register as such,

maintain    records    of   its     expenditures,   and   regularly   file

certified campaign reports.         S.C. Code Ann. §§ 8-13-1302, -1304,

-1308.     If SCCL failed to comply with these requirements, it

would risk criminal and civil penalties.            Id. §§ 8-13-1510, -

1520.

     On September 22, 2006, SCCL sent a letter and a sample

voter    guide   to   the   South   Carolina   State   Ethics   Commission


     1
       As amended in 2003, the Ethics, Government Accountability,
and Campaign Reform Act of 1991 (“Ethics Act”) defines a
“committee” as including

     an association, a club, an organization, or a group of
     persons which, to influence the outcome of an elective
     office, receives contributions or makes expenditures
     in excess of five hundred dollars in the aggregate
     during an election cycle.

S.C. Code Ann. § 8-13-1300(6) (2007).   The statute in turn
defines the phrase “[i]nfluence the outcome of an elective
office” as including

     any communication made, not more than forty-five days
     before an election, which promotes or supports a
     candidate   or   attacks   or  opposes   a   candidate,
     regardless of whether the communication expressly
     advocates a vote for or against a candidate.

Id. § 8-13-1300(31)(c).   The term “communication” includes “any
paid message conveyed through . . . direct mail.”    Id. § 8-13-
1300(31)(c)(ii).     Therefore,   given  that  SCCL   anticipated
distributing its voter guides within forty-five days of the
election at a cost of more than five hundred dollars, SCCL would
fall within the statute’s definition of a “committee” if the
voter guides were deemed to “promote[] or support[] a candidate
or attack[] or oppose[] a candidate.”


                                      4
(“Commission”) requesting by October 1, 2006, both an informal

and    a    formal     advisory       opinion    regarding    whether     the   guide

represented a communication made to “[i]nfluence the outcome of

an    elective       office”     under   § 8-13-1300(31)(c)      and    whether   the

planned distribution would make SCCL a “committee” under § 8-13-

1300(6).          As the state agency responsible for the enforcement of

the Ethics Act, the Commission investigates alleged violations

of the statute, and after an administrative hearing may either

impose a civil penalty or refer the matter to the State Attorney

General for appropriate action.                    Id. § 8-13-320.        The state

legislature has authorized the Commission to issue and publish

advisory opinions. 2           Id. § 8-13-320(11).

       On    September         29,   2006,   the   Executive    Director     of   the

Commission responded to SCCL’s request.                      Explaining that the

Commission had not previously addressed the issues raised and

citing      ongoing       litigation     regarding    the    constitutionality     of

S.C.       Code    Ann.    §    8-13-1300(31)(c), 3    the    Executive    Director

       2
       The Commission has promulgated regulations on advisory
opinions that distinguish between informal and formal opinions.
S.C. Code Regs. 52-301 to -303 (2007). The regulations specify
that “[u]pon receipt of a request for opinion, the Commission
will provide an informal advisory opinion, if appropriate.” Id.
at 52-302.    The full Commission considers the request for a
formal advisory opinion at a public meeting. Id. at 52-302 to -
303.
       3
       See S. Carolinians for Responsible Gov’t v. Krawcheck, No.
3:06-cv-1640-MJP (D.S.C. filed May 30, 2006).


                                             5
declined to render an informal advisory opinion and suggested

that the issue should be resolved instead by a formal advisory

opinion of the full Commission.                 The letter indicated that SCCL

could    have   its   request         placed    on    the    agenda    for    the   next

Commission meeting, scheduled for November 15, 2006.

     A few days later, SCCL filed this First Amendment action in

district court, naming as defendants the members of the State

Ethics Commission. 4       SCCL challenged South Carolina’s definition

of committee as unconstitutionally overbroad and its definition

of   “[i]nfluence        the    outcome        of    elective    office”      as    both

unconstitutionally overbroad and vague.                     S.C. Code Ann. §§ 8-13-

1300(6), -1300(31)(c).            SCCL sought a declaration that these

provisions        were         both      facially           unconstitutional         and

unconstitutional as applied to it; the organization also sought

injunctive relief.             Although the complaint was filed about a

month    before    South       Carolina’s       2006       general    election,     SCCL

specifically      asserted       its     intent       to     distribute      materially

similar voter guides before future elections.

     On September 27, 2007, the district court dismissed SCCL’s

action as lacking jurisdiction on the ground that it was not

ripe, concluding (i) that the case was not fit for judicial

     4
       SCCL also initially named Henry McMaster, the Attorney
General of South Carolina, but early on voluntarily dismissed
him as a party.



                                           6
decision because the Commission had not taken any action against

SCCL and (ii) that SCCL would suffer no considerable hardship

from the court’s withholding consideration because there was no

“imminent threat of Commission action.”                     (J.A. at 208.)             SCCL

timely appealed, and we have jurisdiction pursuant to 28 U.S.C.

§ 1291 (2006).



                                           II.

       The   sole    issue    on    appeal       is   whether    the   district    court

properly dismissed the suit for lack of jurisdiction.                          The scope

of our review is clear: “Jurisdictional questions are questions

of law properly reviewed de novo.”                     Charter Fed. Sav. Bank v.

Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992).

In particular, we review de novo a district court’s dismissal

for lack of ripeness.              Miller v. Brown, 462 F.3d 312, 316 (4th

Cir. 2006).         It is also settled that “[t]he burden of proving

ripeness falls on the party bringing suit.”                     Id. at 319.

       The doctrine of ripeness stems from Article III’s command

that    federal      courts    have      jurisdiction          only    over    cases    or

controversies and represents one of the justiciability doctrines

designed to assess whether an actual case or controversy exists.

See    Allen   v.    Wright,       468   U.S.     737,   750    (1984)    (identifying

ripeness, along with standing, mootness, and political question,

as “doctrines that cluster about Article III”).                               As we have

                                             7
noted, “[r]ipeness concerns the ‘appropriate timing of judicial

intervention.’”        Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d

379, 389 (4th Cir. 2001) (quoting Renne v. Geary, 501 U.S. 312,

320    (1991)).       In    short,       the    inquiry      is   designed       to    prevent

judicial      consideration         of   a     dispute    “until       a   controversy        is

presented in clean-cut and concrete form.”                           Miller, 462 F.3d at

318–19 (citation and internal quotation marks omitted).

       To determine whether a claim is ripe, a court must evaluate

(i) “the fitness of the issues for judicial decision” and (ii)

“the      hardship         to     the        parties       of        withholding         court

consideration.”            Abbott    Labs.      v.    Gardner,       387    U.S.      136,   149

(1967).       With respect to the first prong, we have noted that

“[a]   case    is    fit    for     judicial        decision      when     the   issues      are

purely legal and when the action in controversy is final and not

dependent on future uncertainties.”                       Miller, 462 F.3d at 319.

As for the second prong, hardship “is measured by the immediacy

of the threat and the burden imposed on the [plaintiffs] who

would be compelled to act under threat of enforcement of the

challenged law.”           Charter Fed. Sav. Bank, 976 F.2d at 208–09.

Importantly,        because       free       speech    can      be    chilled      prior      to

enforcement, a plaintiff bringing a First Amendment claim need

only   show    a    “credible       threat      of    prosecution,”         rather     than   a

“threat of specific future harm.”                     See Doe v. Duling, 782 F.2d

1202, 1206 (4th Cir. 1986).                   And there is a presumption that a

                                                8
credible threat of prosecution exists “when a statute on its

face restricts a party from engaging in expressive activity.”

Va. Soc’y for Human Life, 263 F.3d at 388.

       These principles, applied here, compel the conclusion that

this pre-enforcement action is ripe for adjudication.                                First,

the    issues       in    this    First       Amendment    challenge      are      fit   for

judicial decision at this time.                     They are purely legal, and the

South Carolina Ethics Act is final.                       Second, SCCL will suffer

hardship if the district court withholds consideration of these

issues.      With the statute in place, SCCL may not distribute its

voter guide unless it undertakes significant compliance measures

or     is    willing      to     risk    prosecution.           And    the     threat     of

prosecution is sufficiently credible since the South Carolina

statute facially restricts SCCL’s expressive activities.                                 The

controversy is therefore ripe for review.

       Nor    is    this    a    novel     or      surprising   result;      two    of   our

previous      decisions          are    controlling,      one     of   which       involved

essentially identical facts.                    In North Carolina Right to Life,

Inc. v. Bartlett, 168 F.3d 705, 709 (4th Cir. 1999), a group

challenged, among other things, North Carolina’s definition of

“political committee” after it became concerned that it might be

considered      a    “committee”         if   it    distributed    a   voter    guide,     a

status that would require it either to register and regularly

file    reports      or    to     face    criminal      penalties.        To    ascertain

                                                9
whether that fear was well-founded, the group wrote to the State

Board    of    Elections,          which     “did    not    indicate          that    it    would

interpret the statute to mean anything other than what its plain

language would suggest.”                Id. at 710.             Consequently, the group

refrained      from     distributing          its       guide    and     brought       suit      in

federal district court challenging North Carolina’s definition

of political committee on the ground that it included entities

that engage solely in issue advocacy.                           Id. at 709.            On these

facts, the district court reached the merits, and we affirmed,

rejecting      a    case     or    controversy       argument.           In    reaching         this

conclusion, we noted that “this case presents a statute aimed

directly       at    plaintiffs        who    will       have     to     take    significant

compliance measures or risk criminal prosecution.”                                   Id. at 711

(citation and internal quotation marks omitted).                                     In holding

that     the       dispute        constituted       a    case     or     controversy,             we

necessarily found the matter to be ripe.                         Similarly, in Virginia

Society for Human Life, we held ripe an issue advocacy group’s

challenge to the FEC’s definition of “express advocacy,” even

though the FEC had taken no steps to initiate an enforcement

action against the group.              263 F.3d at 389–90.

        None   of    the     arguments       presented      by     the    members          of   the

Commission convince us that this case is distinguishable from

either    North      Carolina       Right     to    Life    or    Virginia       Society         for



                                              10
Human Life. 5      Nor do they persuade us that we should depart from

those      precedents.       Relying      on    a    basis    articulated      by    the

district court, the Commissioners first argue that the case’s

issues are not fit for judicial decision because there has been

no   administrative        action   for   the       court    to   review,   let     alone

final      action,   and     that   SCCL’s      claims       therefore      depend    on

speculative future contingencies.                   This argument overlooks that

SCCL       seeks   adjudication      of    the       constitutionality        of      two

provisions of state law, not judicial review of the Commission’s

actions.      The challenged provisions are certainly “final and not

dependent upon future uncertainties.”                 Miller, 462 F.3d at 319.

       With respect to the hardship prong of the ripeness inquiry,

the Commissioners first argue that the district court correctly

concluded that no hardship had been proved because SCCL failed

       5
       Neither the Commissioners nor the district court attempted
to distinguish North Carolina Right to Life.     As for Virginia
Society for Human Life, the Commissioners assert the district
court’s conclusion that the case is distinguishable because the
FEC had taken action that injured the Virginia Society for Human
Life (“VSHL”), while the Commission simply declined to issue an
advisory opinion to SCCL.     Yet, the FEC action on which the
Commissioners rely was the agency’s announcement that it would
take no action on VSHL’s petition for a rule repealing the
challenged regulation.   Va. Soc’y for Human Life, 263 F.3d at
382.   The FEC had taken no steps to initiate an enforcement
action and, indeed, had adopted a policy of not enforcing the
regulation in the Fourth Circuit.    Id. at 386.   We nonetheless
found that VSHL faced a credible threat of prosecution because
VSHL had alleged intent to engage in issue advocacy outside of
the Fourth Circuit; we also noted that the Commission could
abandon the policy with a simple vote. Id. at 387–89.



                                          11
to show that it faced “an imminent threat of Commission action.”

(J.A.      208.)      As    noted    above,     however,        the   controlling        cases

establish         that     SCCL    need   only      show    a      credible      threat    of

prosecution, which they have done here by challenging a statute

that facially restricts their expressive activity.                            Second, the

Commissioners argue that SCCL will incur no hardship from the

district court’s refusal to consider their case at this time

because the compliance measures SCCL would be compelled to take

if     they       wished    to    distribute        their    voter      guides     are     not

particularly         burdensome.          Although      the      parties      dispute     the

precise nature of these compliance measures, there is no dispute

that       SCCL    would    at    least   be    required      to      register    and     then

regularly          file     certified      campaign         reports      regarding        its

expenditures. We find these measures sufficiently burdensome to

satisfy the hardship prong of the ripeness test.                              Accordingly,

because the issues in this matter are fit for judicial review,

and because SCCL would incur hardship from the court’s refusal

to resolve the matter, we find this dispute ripe. 6


       6
       The alternative grounds asserted by the Commissioners as
supporting the district court’s dismissal—(i) that SCCL lacks
standing, (ii) that the action has become moot, (iii) that the
action should be dismissed pursuant to abstention doctrines, and
(iv) that SCCL failed to exhaust administrative remedies—also
all fail.   First, SCCL has standing to bring this suit for the
reasons explained in North Carolina Right to Life and Virginia
Society for Human Life.     Second, SCCL’s action is not moot
because, even though SCCL initiated this action with the hope of
(Continued)
                                               12
                                       III.

     For the foregoing reasons, we reverse the district court’s

dismissal   on   ripeness   grounds.      The   case   is   remanded   for

consideration of the merits. 7

                                                  REVERSED AND REMANDED




being able to distribute voter guides for an election that has
passed, its complaint specifically alleges intent “to distribute
materially similar voter guides before future elections.” (J.A.
13.)   Accordingly, this case “falls under the exception for a
case that is capable of repetition yet evades review because of
the length of time required for courts to resolve the matter.”
Va. Soc’y for Human Life, 263 F.3d at 390 n.3.            Third,
abstention in this case is inappropriate given that “courts have
been particularly reluctant to abstain in cases involving facial
challenges based on the First Amendment because the delay
involved might itself effect the impermissible chilling of the
very constitutional right the litigant seeks to protect.” N.C.
Right to Life, 168 F.3d at 711 n.1 (citations and internal
quotation marks omitted).      Finally, there is no exhaustion
requirement that bars SCCL’s claim as the “adjudication of the
constitutionality of [legislative] enactments has generally been
thought beyond the jurisdiction of administrative agencies.”
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994)
(citation and internal quotation marks omitted).
     7
        SCCL urged us to resolve the merits of their First
Amendment challenge on appeal, rather than remand. However, we
think it most appropriate to remand, with the expectation that
the district court will be sensitive to the frequency of
election cycles and resolve this matter expeditiously.



                                  13
