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File Name: 13a0473n.06
Nos. 11-3894/3925
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 13, 2013
DEBORAH S. HUNT, Clerk
SUSAN B. ANTHONY LIST (No. 11-3894) )
a n d C O A LIT IO N O P P O S E D T O )
ADDITIONAL SPENDING & TAXES (No. )
11-3925), )
) ON APPEAL FROM THE UNITED
Plaintiffs - Appellants, ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
v. )
)
STEVEN DRIEHAUS; JOHN ) OPINION
MROCZKOWSKI; BRYAN FELMET; )
JAYME SMOOT; HARVEY SHAPIRO; )
DEGEE WILHELM; LARRY WOLPERT; )
PHILIP RICHTER; CHARLES CALVERT; )
OHIO ELECTIONS COMMISSION; JON )
HUSTED, )
)
Defendants-Appellees. )
Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*
JANE B. STRANCH, Circuit Judge. The Ohio Elections Commission is an independent
agency charged with enforcing the state’s campaign-practices laws. This includes regulating false
and misleading political statements. Shortly before the 2010 general election, then-Congressman
Steven Driehaus filed a complaint with the Commission against Susan B. Anthony List (SBA List),
a pro-life advocacy organization that planned to run advertisements against him. SBA List then
initiated this suit seeking declaratory and injunctive relief against Driehaus, the Commission’s
*
The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio,
sitting by designation.
Susan B. Anthony List, et al v. Driehaus
Nos. 11-3894/3925
members, and the Ohio Secretary of State. The Coalition Opposed to Additional Spending and
Taxes (COAST), an anti-tax advocacy organization, filed a similar federal action, although no state
proceedings had been brought against it. After the election, Driehaus and SBA List chose to
terminate the state proceeding before the Commission adjudicated the dispute. The district court
then consolidated the two federal suits and dismissed all claims for lack of subject matter
jurisdiction. Looking only to whether the claims of SBA List and COAST are ripe, we AFFIRM.
I. BACKGROUND
On March 23, 2010, President Obama signed into law the Patient Protection and Affordable
Care Act, 124 Stat. 119, commonly known as the Affordable Care Act. SBA List, a nonprofit
organization that advances pro-life causes, opposes the legislation because it believes that its
provisions permit taxpayer-funded abortion. In the lead-up to the 2010 general election, SBA List
wanted to put up a billboard in then-Congressman Driehaus’s district criticizing his vote in favor of
the Act. The planned billboard read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-
funded abortion.” But the billboard never went up because the advertising company that owned the
billboard space refused to put up the advertisement after Driehaus’s counsel threatened legal action
against it.
On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission against
SBA List claiming that the advertisement violated two sections of Ohio’s false-statement statute.
The first states that “[n]o person, during the course of any campaign for nomination or election to
public office or office of a political party, by means of campaign materials . . . shall knowingly and
with intent to affect the outcome of such campaign . . . [m]ake a false statement concerning the
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Susan B. Anthony List, et al v. Driehaus
Nos. 11-3894/3925
voting record of a candidate or public official.” Ohio Rev. Code § 3517.21(B)(9). The second
section prohibits posting, publishing, circulating, distributing, or otherwise disseminating “a false
statement concerning a candidate, either knowing the same to be false or with reckless disregard of
whether it was false or not, if the statement is designed to promote the election, nomination, or defeat
of the candidate.” Id. § 3517.21(B)(10).
A word about the Commission’s procedures is critical to understanding what happened next.
Ohio law allows “any person” to file a complaint with the Commission alleging a violation of certain
election laws. Id. § 3517.153(A). If the Secretary of State knows of such a violation, he must lodge
a complaint. Id. § 3501.05(N)(2). A complaint filed shortly before an election is referred to a panel
of Commission members for an expedited hearing to determine whether “probable cause” exists for
the full Commission to hear it. Id. § 3517.156(A). That panel must refer the complaint to the full
Commission if it finds probable cause, dismiss the complaint if it does not, or request a Commission
attorney to investigate the matter further if the evidence is insufficient to decide. Id. § 3517.156(C).
If the Commission finds a violation by clear and convincing evidence, it may refer the matter to a
prosecutor, id. § 3517.155, although a prosecutor is not obligated to act. The full Commission or
probable-cause panel may also determine that a complaint is frivolous and order the complainant to
pay reasonable attorney’s fees, as well as the Commission’s own costs. Id. Finally, a party may
appeal an adverse final decision of the Commission in state court. Id. § 3517.157(D).
On October 14, 2010, a three-member panel voted 2-1 to find probable cause and referred
Driehaus’s complaint to the full Commission. A hearing was set for two weeks later and the parties
began discovery. On October 18, SBA List filed this case in federal district court seeking declaratory
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Nos. 11-3894/3925
and injunctive relief from enforcement of the Ohio statutory scheme, as well as a temporary
restraining order to enjoin the Commission proceeding. The district court denied the motion and
stayed the federal action under Younger v. Harris, 401 U.S. 37 (1971). This court upheld the stay.
See Susan B. Anthony List v. Steven Driehaus, et al., No. 10-4320 (6th Cir. Oct. 28, 2010) (order).
Driehaus and SBA List agreed to postpone the full Commission hearing until after the
election on November 4. When Driehaus lost his bid for re-election, he filed a motion to withdraw
his Commission complaint. SBA List consented to this and the Commission proceedings ceased on
December 2, 2010. Four days later, the district court lifted its stay. On December 21, SBA List
amended its complaint to allege that the Commission proceedings following Driehaus’s complaint
chilled its speech and associational rights. This could happen again, SBA List alleged, if “[a]ny
complainant” decided to “hale” the organization before the Commission. SBA List stated its intent
to engage in “substantially similar activity in the future” and offered that Driehaus “may run for
Congress again.” In June 2011, Driehaus and his family moved to the African nation of Swaziland
for a two-and-a-half-year appointment with the Peace Corps.
Like SBA List, COAST also wished to criticize Driehaus for his vote in favor of the Act.
It intended to send out emails, write blogs, and disseminate press releases with messages similar to
SBA List’s. In one communication, COAST planned to say this: “Despite denials, Driehaus did
vote to fund abortions with tax dollars. Ohio Elections Commission complaint filed to obscure
undeniable truth of his health care vote.” COAST filed this federal suit on October 27, 2010, against
only the Commission. It claimed that it did not publish these messages because its knowledge of the
Commission proceedings against SBA List chilled its ability to speak. COAST did not allege that
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Susan B. Anthony List, et al v. Driehaus
Nos. 11-3894/3925
it was involved in any Commission proceeding, or that the Commission enforced or threatened to
enforce any of the challenged laws against it.
The district court consolidated the two cases and granted the defendants’ motions to dismiss.
As to SBA List’s suit, the motions made by the Commission and Driehaus were granted on standing,
ripeness, and mootness grounds, and the Secretary’s motion was granted on the bases of ripeness and
Eleventh Amendment immunity. As to COAST’s suit, the Commission’s motion was granted based
on standing and ripeness. SBA List and COAST now appeal these judgments. We resolve both
appeals in this decision.
II. DISCUSSION
A. Ripeness of SBA List’s claims
Because the Commission acted on Driehaus’s 2010 complaint, but did not reach a final
decision or penalize SBA List, this case raises questions regarding SBA List’s standing to sue, and
whether its claims are moot or ripe for review. Briggs v. Ohio Elections Comm’n, 61 F.3d 487, 491
(6th Cir. 1995). These doctrines “all originate in Article III’s ‘case’ or ‘controversy’ language,”
which forms the basis of federal-court jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
352 (2006). “We review jurisdictional challenges based on standing, ripeness, and mootness de
novo.” Miller v. City of Cincinnati, 622 F.3d 524, 531 (6th Cir. 2010). “As there is no obligation
to favor one of these justiciability doctrines over the other and as none of these questions goes to the
merits of the case, we may address them in any sequence we wish.” Warshak v. United States, 532
F.3d 521, 525 (6th Cir. 2008) (en banc) (citation omitted). Here, as in Warshak, “[w]e start—and
end—with ripeness.” Id.
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Ripeness “‘is drawn both from Article III limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction.’” Id. (quoting Nat’l Park Hospitality Ass’n v. Dep’t of
Interior, 538 U.S. 803, 808 (2003)). It prevents federal courts from “entangl[ing]” themselves in a
“premature adjudication” of legal matters, even ones involving constitutional issues, “that may with
time be satisfactorily resolved at the local level and that may turn out differently in different
settings.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 537 (6th Cir. 2010)
(citations and internal quotations marks omitted). In its broadest formulation, the ripeness doctrine
poses “a question of timing” and counsels against resolving a case that is “anchored in future events
that may not occur as anticipated, or at all.” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284
(6th Cir. 1997).
“Three factors guide the ripeness inquiry: (1) the likelihood that the harm alleged by the
plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to produce
a fair adjudication of the merits of the parties’ respective claims; and (3) the hardship to the parties
if judicial relief is denied at this stage in the proceedings.” Berry v. Schmitt, 688 F.3d 290, 298 (6th
Cir. 2012) (internal quotation marks omitted).
1. Likelihood of harm
In the First Amendment context, the likelihood-of-harm analysis focuses on “‘how imminent
the threat of prosecution is and whether the plaintiff has sufficiently alleged an intention to refuse
to comply with the statute.’” Id. (quoting Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002)).
Although a plaintiff is not required to “‘expose himself to actual arrest or prosecution’” before
challenging the constitutionality of a statute, id. at 296 (quoting Steffel v. Thompson, 415 U.S. 452,
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Susan B. Anthony List, et al v. Driehaus
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459 (1974)), he must nonetheless show “a credible fear” that it will be enforced against him, Norton,
298 F.3d at 554. We first consider the imminence of the threat of prosecution against SBA List at
the hands of the Commission members, Secretary Husted, and Driehaus. We then evaluate the
sufficiency of SBA List’s alleged intent to disobey the challenged statute.
SBA List argues that its ability to speak is chilled by the possibility that the Commission will
pursue future proceedings against it for speech—similar to the Driehaus ads—in which it plans to
engage. That the billboard never went up, SBA List maintains, shows that its speech already has
been abridged and will be diminished again in the future. SBA List also points to the Commission’s
probable-cause finding and the existence of Ohio’s false-statement statute. Taken together, SBA List
says, this evidence shows that if it desires to engage in similar speech, an imminent threat of
prosecution forces it to choose between risking further harm or abandoning the speech altogether.
We see it differently. In the normal course, we have little trouble finding a threat of future
injury if a plaintiff has been subjected to the challenged action. Briggs, 61 F.3d at 492 (quoting dicta
from Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992)). However, our precedent in the
standing context (which overlaps this part of the ripeness analysis) makes clear that a prior injury,
without more, is not enough to establish prospective harm:
Even when a party has been unlawfully sanctioned in the past, we have heeded the
Supreme Court’s directive that past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects. While previous sanctions might, of
course, be evidence bearing on whether there is a real and immediate threat of
repeated injury . . . where the threat of repeated injury is speculative or tenuous, there
is no standing to seek injunctive relief.
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Susan B. Anthony List, et al v. Driehaus
Nos. 11-3894/3925
Fieger v. Mich. Sup. Ct., 553 F.3d 955, 966 (6th Cir. 2009) (citations and internal quotation marks
omitted) (ellipses in original); see also O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). This is
equally true when a plaintiff alleges that his injury is chilled speech. See Morrison v. Bd. of Educ.
of Boyd Cnty., 521 F.3d 602, 609 n.7 (6th Cir. 2008) (“We make no distinction . . . between
allegations of a past-experienced chill and allegations of chill seeking forward-looking relief.
Without more, both will fail to constitute an injury-in-fact.”). “‘[S]ubjective chill’ alone—without
some other indication of imminent enforcement—d[oes] not constitute injury in fact.” Berry, 688
F.3d at 296.
The prior harms to which SBA List points—the billboard rejection and the probable-cause
hearing—do not help it show an imminent threat of future prosecution. The rejected billboard is
largely irrelevant. SBA List was unable to place the billboard because the private company that had
committed to renting it to SBA List blinked when Driehaus’s counsel threatened legal action. The
Commission had no role in this failed transaction, and SBA List cannot lay this failure at the
Commission’s feet to show that its fear of future enforcement is reasonable.
Neither does the probable-cause hearing show an imminent threat of prosecution based on
prior enforcement, as the Commission never found that SBA List violated Ohio’s false-statement
law. Statutorily, the preliminary hearing to which SBA List was subjected decides only “whether
probable cause exists for the full commission to determine whether a violation of Ohio election law
has occurred.” Ohio Admin. Code § 3517-1-11(A) (emphasis added). A probable-cause
determination is not a “concrete application of state law” that enables SBA List to claim that the law
has been enforced against it. See Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union Local 54,
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Nos. 11-3894/3925
468 U.S. 491, 512 (1984) ( “Because the Commission never imposed this sanction . . . we are
presented with no concrete application of state law. The issue is hence not ripe for review.”). Like
an agency’s “reason to believe” determination that a violation may have occurred, the Commission’s
conclusion that probable cause exists serves only to start proceedings that may—or may not—find
an infraction. See FTC v. Standard Oil of Cal., 449 U.S. 232, 241–42 (1980). A probable-cause
determination is neither a “definitive statement of position,” nor a “definitive ruling or regulation”
that establishes an imminent enforcement threat. Id. at 241, 243.
Attempting to escape this conclusion, SBA List argues that a final Commission adjudication
is not required to show a threat of future harm based on past enforcement activity. It leans heavily
on Briggs and Berry to support its argument that the Commission’s acts are sufficient to demonstrate
imminent injury. In Briggs, after determining that a candidate had violated an election law, the
Commission declined to refer the matter for prosecution but said it would consider the violation in
future investigations involving the candidate. 61 F.3d at 492–93. Briggs “present[ed] a sufficient
future threat of injury” to enable her to challenge the statute’s constitutionality for three reasons: the
Commission actually found a violation, Briggs planned to run for office in Ohio again, and the
Commission’s policy of using past violations to evaluate later complaints meant the finding had
future effect. Id. at 492. Berry involved an attorney’s challenge to an ethics rule that the state bar
association, following an investigation, said he violated. Because the bar association was
unequivocal that his conduct violated the rule and “instructed [him] to avoid such conduct in the
future,” we held that the threat of enforcement hung over the attorney and “more than subjectively
chilled” his speech. 688 F.3d at 297.
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Neither Briggs nor Berry shows that the Commission’s past actions make it likely that the
Commission will threaten SBA List with prosecution anytime soon. The Commission’s probable-
cause determination was not a final adjudication, a finding of a violation, or even a warning that
SBA List’s conduct violated Ohio law. While it green-lighted further investigation, the Commission
expressed no opinion about the application of Ohio law to SBA List’s speech. SBA List does not
suggest that the probable-cause finding would carry any weight in the future—in this hearing or any
other. And its contention that a preliminary assessment that a violation may have occurred
establishes the threat of future harm finds no support in our cases. No sword of Damocles dangles
over SBA List to justify its fears. See Briggs, 61 F.3d at 493.
SBA List’s claim also suffers from another problem peculiar to the Commission’s statutory
powers—namely, that the Commission cannot initiate proceedings, but instead must wait for
someone to bring a complaint. See Ohio Rev. Code § 3517.153(A). This hardly erects an
formidable barrier to enforcement, but it does make its likelihood rather speculative. Who is likely
to bring a complaint to set the wheels of the Commission in motion? SBA List hazards a guess:
“any complainant,” it speculates. At oral argument, SBA List was marginally more specific: “some
citizen in Ohio who supports Obama.” If such conjecture could establish a credible threat of future
harm, any plaintiff could challenge Ohio’s election laws based on any intended speech. Article III’s
“case” or “controversy” requirement does not stretch that far. SBA List has not shown that it labors
under an imminent threat of prosecution by the Commission.
SBA List’s claim that it credibly fears that Secretary Husted will enforce the false-statement
law against it doesn’t fare much better. The organization points to the Secretary’s statutory duty to
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Nos. 11-3894/3925
file a Commission complaint if he “has or should have knowledge of” an election-law violation. Id.
§ 3501.05(N)(2). And it warns that Secretary Husted has “exercised his authority” to enforce false-
statement claims, and has offered “no indication that he intends to discontinue doing so.”
But SBA List does not suggest that the Secretary has ever attempted to enforce the law
against the type of speech it intends to make. And more, Secretary Husted has declined to file a
Commission complaint against the actual statement that gave rise to this litigation during the two-
year period the law allows. See id. § 3517.157(A). SBA List “can point to no action or statement”
that suggests Secretary Husted intends to regulate its speech, making it “far from clear that any harm
will occur . . . in the future.” Adult Video Ass’n v. U.S. Dep’t of Justice, 71 F.3d 563, 568 (6th Cir.
1995).
We finally consider whether SBA List’s fear of imminent enforcement at the hand of
Driehaus is credible. Driehaus’s 2010 complaint tells us two things. First, Driehaus believed that
SBA List violated the false-statement law. Second, Driehaus—just like “any person”—was able to
file a complaint and so trigger enforcement proceedings. SBA List asks us to make a third
inference—namely, that Driehaus’s complaint shows his willingness to file complaints in the future,
posing a continuing threat to SBA List.
This is a stretch. Driehaus remains in Africa on a multi-year assignment with the Peace
Corps. He has no cause to complain about allegedly false election ads lobbed against him. SBA List
says Driehaus may run for office again, but the evidence is thin at best.1 It is also far from certain
1
SBA List cites to a newspaper article that reads:
Asked if there was anything he’d miss about Capitol Hill, Driehaus acted as if he’d
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Susan B. Anthony List, et al v. Driehaus
Nos. 11-3894/3925
that some future Driehaus candidacy would require the same response from SBA List. Without
incumbency, for example, Driehaus may be too insignificant a candidate to attack. Or SBA List may
decide that the Act’s purported funding of abortions is no longer a timely or effective political
message. The degree of speculation required to consider Driehaus a present threat is fatal to SBA
List’s claimed fears.
The next step of the likelihood-of-harm analysis focuses on whether SBA List has
“sufficiently alleged an intention to refuse to comply with the statute.” Berry, 688 F.3d at 298
(internal quotation marks omitted). The statutes SBA List challenges apply only to a person who
“knowingly” makes a false statement or disseminates a statement “knowing [it] to be false or with
reckless disregard of whether it was false or not.” Ohio Rev. Code § 3517.21(B)(9), (10). SBA List
would be closer to establishing ripeness if it had alleged that it intends to violate Ohio’s false-
statement law.
But SBA List does not say that it plans to lie or recklessly disregard the veracity of its speech.
Instead, it alleges the very opposite, insisting that the statement it made and plans to repeat—that the
Act allows for taxpayer-funded abortions—is factually true. An unqualified intention to comply with
a statute whose application depends on “specific facts demonstrating that plaintiffs acted with the
been asked if he’d miss a toothache. He laughed a short, derisive laugh.
“No,” said Driehaus, who was defeated after one term. “It’s a job. I mean, I lost an
election. I move on . . . . I’m not real stuck on being a member of Congress.”
Not exactly a ringing endorsement for the place. So, would he ever run again?
“I might,” he said.
David A. Fahrenthold, Between losing and going home: The House basement,
Washington Post, Dec. 9, 2010, at A1.
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requisite . . . intent” may preclude a party’s ability to show that “the alleged harm will ever come to
pass.” Norton, 298 F.3d at 554. SBA List’s insistence makes the possibility of prosecution for
uttering such statements exceedingly slim, particularly because SBA List can only be liable for
making a statement “knowing” it is false.
It also means the fear animating SBA List’s request for prospective relief is the risk of a false
prosecution. But SBA List offers no basis for this fear, leaving us to speculate about the reasons.
“Not only is that fear misplaced, it’s inadequate to generate a case or controversy the federal courts
can hear.” Glenn v. Holder, 690 F.3d 417, 422 (6th Cir. 2012). SBA List has not sufficiently alleged
an intention to disobey the statute. Given that SBA List has neither done this, nor demonstrated an
imminent threat of prosecution at the hands of any defendant, it cannot show a likelihood of harm
to establish that its challenge is ripe for review.
2. Development of factual record
The factual record here is not sufficiently developed to review SBA List’s claims. Ohio has
not applied its law to SBA List’s speech. The Commission has not found that SBA List violated the
false-statement law. And no prosecutor has taken any action upon any Commission referral. SBA
List says it seeks to engage in substantially similar speech in the future. Allowing such a case to
proceed would require us to guess about the content and veracity of SBA List’s as-yet unarticulated
statement, the chance an as-yet unidentified candidate against whom it is directed will file a
Commission complaint, and the odds that the Commission will conclude the statement violates Ohio
law. A court cannot decide SBA List’s claims on this threadbare record without engaging in
precisely the kind of conjecture that the ripeness doctrine bars.
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SBA List counters that none of these details are relevant because the mere possibility that it
ultimately could be sued for engaging in protected speech is factually sufficient to make this matter
ripe. That is not correct. SBA List’s challenge to the applicability of a statutory scheme to its
conduct would benefit from knowing what the scheme prohibits and what it permits. Ammex, Inc.
v. Cox, 351 F.3d 697, 707–08 (6th Cir. 2003). Some cases surely involve pure questions of law in
which “[n]o factual development can change what the statute bans and what it protects.” Macaw,
132 F.3d at 291. But this is not one of them. And even if SBA List presented a “purely legal
question,” it “remains a purely speculative legal question . . . that may be answered differently in
different settings.” Warshak, 532 F.3d at 528. The current factual record is insufficient to permit
review.
3. Hardship if judicial review is denied
Withholding judicial relief will not result in undue hardship to SBA List. No complaint or
Commission action is pending against SBA List and, for the reasons discussed above, SBA List has
not demonstrated an objective fear of future enforcement. In fact, SBA List’s conduct after Driehaus
filed the complaint in 2010 suggests that its speech has not been chilled.
Recall that the only speech SBA List alleges it was unable to engage in was putting up the
billboard. Apart from this, SBA List continued to actively communicate its message about Driehaus’
voting record. SBA List announced on October 19, 2010, for example, its plan to air radio ads
claiming that Driehaus voted for taxpayer-funded abortion. And after the district court denied SBA
List’s motion for a temporary restraining order, the organization issued a press release stating that
Driehaus did not want his constituents to hear that he voted for taxpayer-funded abortion. Later still,
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appearing on television, SBA List’s president said that even if the Commission prevented SBA List
from putting up its billboards, “we will double down and make sure that our message floods his
district. We’ve got radio ads going out all across his district. We will simply not be intimidated into
silence.”
This is not the sound of chilled speech or a silenced speaker. “SBA List clearly has not been
enjoined from any speech, and all indications are that its speech continues to be robust.” Susan B.
Anthony List, No. 10-4320, at *4. On these facts, there is no hardship where the evidence suggests
SBA List is not deterred from engaging in the very conduct that it claims is encumbered. See
Norton, 298 F.3d at 555. Withholding judicial review will not result in undue hardship to SBA List.
To conclude: the district court correctly determined that SBA List’s challenge is not ripe for
review and properly dismissed it for lack of subject matter jurisdiction.
B. Ripeness of COAST’s claims
COAST’s claims are somewhat different from those of SBA List, but these differences do
not change the analysis. COAST has never been involved in a Commission proceeding and no
individual has enforced or threatened to enforce the challenged laws against it. Its claims stemming
from the mere possibility that Ohio law will be pressed against it are even more speculative than
SBA List’s. The preceding analysis compels the conclusion that COAST’s claims are unripe.
III. CONCLUSION
We AFFIRM the district court’s decision to dismiss these suits.
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