Dean v. Blumenthal

07-1986-cv
Dean v. Blumenthal

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________

August Term, 2008
(Argued: November 10, 2008 Decided: August 11, 2009)

Docket No. 07-1986-cv
_______________

MARTHA DEAN ,
Plaintiff-Appellant,

ROBERT FARR,
Plaintiff,
—v.—

RICHARD BLUMENTHAL,
Defendant-Appellee.
_______________

B e f o r e : KATZMANN and HALL, Circuit Judges.*
______________

Appeal from an April 9, 2007 judgment of the United States District Court for the District
of Connecticut (Thompson, J.), dismissing a First Amendment challenge to a prohibition on
contributions by, inter alia, certain law-firm employees to candidates for Connecticut Attorney
General. We hold that all requested relief, other than damages, is moot and that appellee is
entitled to qualified immunity from damages because there was no clearly established right under
the First Amendment to receive campaign contributions at the time of the challenged conduct.
Accordingly, we AFFIRM the judgment of the district court.
_________________________________

KAREN LEE TORRE , Law Offices of Karen Lee Torre, New
Haven, CT, for Appellant.

GREGORY T. D’AURIA , Associate Attorney General

*
The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the
Supreme Court on August 8, 2009. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(b); Local Rule 0.14(2); United States
v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 (Richard Blumenthal, Attorney General, Susan Quinn
Cobb, Assistant Attorney General, Jane R. Rosenberg,
Assistant Attorney General, on the brief ), Office of the
Attorney General for the State of Connecticut, Hartford,
CT, for Appellee.

PER CURIAM:

Martha Dean appeals from an April 9, 2007 judgment of the United States District Court

for the District of Connecticut (Thompson, J.), dismissing her complaint. Dean, a former and

possibly future candidate for Attorney General in Connecticut, argues that a contractual

prohibition on contributions to candidates for the Office of the Attorney General from, inter alia,

certain employees of private law firms that performed legal work for the State violated Dean’s

rights under the First Amendment. Because the challenged contractual language has not been

enforced in over six years and could not reasonably be expected to be reimplemented, we hold

that Dean’s requested relief of a declaratory judgment, injunctive relief, and a cease-and-desist

order are moot. We also hold that appellee Richard Blumenthal is entitled to qualified immunity

from Dean’s claim for damages because there was no clearly established right under the First

Amendment to receive campaign contributions during the relevant period. Accordingly, we

affirm the judgment of the district court.

BACKGROUND

Under Connecticut General Statute § 3-125, the Attorney General for the State of

Connecticut (“Attorney General”) “may procure such assistance as he [or she] may require” in

carrying out his or her official responsibilities. Pursuant to this statute, the State of Connecticut,

acting through its Attorney General, has contracted a portion of the State’s legal business to the

private bar.

2
 From 1995 to October 2002, Attorney General Richard Blumenthal included and enforced

the following provision in contracts with outside counsel:

No partner, owner, director and/or employee, with managerial and/or discretionary
authority, of the COUNSEL may directly or indirectly make financial donations to
any candidate for the Office of the Attorney General of the State of Connecticut
during the course of this agreement.

The Attorney General interpreted this language to apply to all lawyers in a contracting law firm

as well as to spouses of covered lawyers. According to the Attorney General, this provision was

included in order to avoid the appearance that the contracting law firm was being awarded a

contract in exchange for future campaign contributions.

In 2002, this policy was challenged by appellant Martha Dean, who was the Republican

Party’s candidate in Connecticut for the Office of the Attorney General. Her opponent was

appellee Blumenthal, who at that time had held the office for twelve years. Prior to election day,

Dean filed a complaint in which she alleged that Blumenthal’s policy on campaign donations

deprived her of “needed financing for her campaign as a result of willing contributors

withholding contributions for fear of suffering the loss of the State’s business.” (Compl. ¶ 19.)

Pursuant to 42 U.S.C. § 1983, Dean asserted that Blumenthal’s policy both violated her right

under the First Amendment to receive campaign contributions and deprived her of her “right to

receive funding for her campaign from otherwise willing supporters without due process of law”

in violation of the Fourteenth Amendment. (Compl. ¶¶ 21–22, 26.) Dean also alleged violations

of the Connecticut Constitution. She sought relief including damages, a judgment declaring the

contractual bar on campaign contributions to be null and void, a cease-and-desist order, and a

preliminary injunction enjoining the promulgation of the policy.

3
 Approximately one week prior to the election, Blumenthal temporarily suspended the

contractual prohibition on campaign contributions pending a final decision by the district court.

A letter was faxed to all firms with contracts with the Office of the Attorney General notifying

them of the suspension. Blumenthal, however, continued to refuse to accept any campaign

contributions from partners and associates (as well as their spouses) of any law firm holding an

outside counsel contract with the Attorney General’s office. After winning re-election,

Blumenthal moved to dismiss Dean’s complaint.

Approximately four years passed between Blumenthal’s motion to dismiss and the district

court’s eventual ruling. Because the lawsuit had not been resolved by the next election cycle in

2006, Blumenthal continued his suspension of the campaign contribution prohibition.1 Once

again, a letter was faxed to all firms with open contracts with the Office of the Attorney General

notifying them of the policy’s continued suspension. In addition, the Connecticut General

Assembly passed campaign finance legislation in December 2005 that prohibited contributions

from, inter alia, state contractors and prospective state contractors to certain committees

affiliated with a candidate for the Office of Attorney General. See S. 2103, 2005 Gen. Assem.,

Spec. Sess. (Conn. 2005). As a result of this legislation, Blumenthal publicized to all firms with

contracts with the Office of the Attorney General that the contractual bar on campaign

contributions would be “wholly and permanently superseded” by the statutory ban as of

December 31, 2006, the effective date of the campaign finance legislation.

1
Although Dean did not run for Attorney General in 2006, she pursued her claims on the
ground that she was considering a campaign in the following election cycle and, regardless of her
political intentions, was entitled to damages as well as attorney’s fees. Robert Farr, the
Republican Party’s nominee for the Office of Attorney General in 2006, was added as a party to
Dean’s complaint. Farr subsequently filed a notice of voluntary dismissal, which was approved
by the district court. Thus, he is not a party to this appeal.

4
 In September 2006, the district court granted Blumenthal’s motion to dismiss. The court

held that Dean’s claim under the Fourteenth Amendment failed because she could not

demonstrate a liberty or property interest in the receipt of campaign contributions. It also

dismissed Dean’s state law claims as barred by the Eleventh Amendment.2 During the following

week, the district court dismissed Dean’s remaining claim, which was based on the First

Amendment. The district court concluded that Dean lacked standing because there existed no

constitutional right to receive campaign contributions.

DISCUSSION

As a preliminary matter, we address our subject-matter jurisdiction over this appeal,

which we have an independent obligation to evaluate even in the absence of a challenge from any

party. Sharkey v. Quarantillo, 541 F.3d 75, 88 (2d Cir. 2008). We lack jurisdiction if we

conclude that a case is moot. Fox v. Bd. of Trs. of the State Univ. of N.Y., 42 F.3d 135, 140 (2d

Cir. 1994); see also Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974) (“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.”). “A case might become moot if subsequent events made it absolutely

clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation

2
Dean states in her brief that she does not appeal the dismissal of her state-law claims,
but she then argues that Blumenthal violated the separation of powers “set forth in the
Constitution of the State of Connecticut.” In addition, Dean states in a section of her brief
entitled “Summary of the Argument” that her federal right to due process was violated because
“the restrictions established the defendant as the sole arbiter of when the restrictions had been
violated with no meaningful review of his decisions.” But she has failed to develop either her
state separation-of-powers or federal due process arguments and has therefore waived them. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the
briefs are considered waived and normally will not be addressed on appeal.”).

5
marks omitted); see Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“It has

long been settled that a federal court has no authority 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.” (internal quotation marks omitted)).

We conclude that much of Dean’s appeal is moot and therefore beyond our jurisdiction to

review. Dean’s complaint principally seeks a declaratory judgment, injunctive relief, and a

cease-and-desist order regarding an “office policy” that (it is undisputed) no longer exists.

(Compl. at 12.) Dean attempts to avoid this complication by contending that Blumenthal could

re-enact the policy at any moment, which might affect her if she runs in the next election and

which, in any event, may amount to unconstitutional conduct that is capable of repetition yet

evades review. See Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 71 (2d Cir. 2001) (“A

narrow exception to the principle that a moot claim is to be dismissed, available only in

exceptional situations, is that the court may adjudicate a claim that, though technically moot, is

capable of repetition, yet evading review.” (citations and internal quotation marks omitted)).

It is clear, however, that the Attorney General will not re-enact the contractual bar on

campaign contributions. The Attorney General has represented to the Court that he “has no

intent to reintroduce the challenged provision into his contracts.” Standing alone, this

representation might not suffice to render moot Dean’s requested relief. See United States v. W.

T. Grant Co., 345 U.S. 629, 633 (1953) (holding that, although defendant had “disclaimed any

intention” to revive the challenged conduct, “[s]uch a profession does not suffice to make a case

moot although it is one of the factors to be considered in determining the appropriateness of

granting an injunction against the now-discontinued acts”); see also Friends of the Earth, Inc.,

528 U.S. at 189 (describing the “heavy burden of persuading the court that the challenged

6
conduct cannot reasonably be expected to start up again” (internal quotation marks and brackets

omitted)). But the Attorney General’s claim is bolstered by his voluntary practice of not

enforcing the contractual prohibition over the past six years and of deleting the contractual

prohibition over two years ago.

Moreover, although “[v]oluntary cessation of illegal conduct does not necessarily render

the controversy moot,” N.Y. State Nat’l Org. for Women v. Terry, 159 F.3d 86, 91–92 (2d Cir.

1998), the Attorney General has further represented that Connecticut’s campaign finance

legislation, Conn. Gen. Stat. § 9-612(g)(2)(A), “wholly and permanently superseded” the

contractual bar, thus rendering it “superfluous.” It is true, as Dean asserts, that the statutory and

contractual language do not cover identical conduct. For example, the Office of the Attorney

General acknowledged that the contractual provision applied to contracts in all amounts, while

§ 9-612(g)(2)(A) applies only to contracts in excess of $50,000. See Conn. Gen. Stat. § 9-

612(g)(1)(C). Nonetheless, it is undisputed that, in reliance upon his interpretation that the

statutory and contractual language cover sufficiently similar situations, the Attorney General

voluntarily eliminated the contractual bar upon the statute’s effective date over two years ago.

The Attorney General also has not reimplemented his practice despite a favorable ruling from the

district court in April 2007 that Dean lacked standing to challenge the contractual prohibition.

Consequently, there is no “reasonably concrete basis to anticipate that the expired rule will be

reenacted in a form that will raise the same questions.” 13C Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 3533.6 (3d ed. 2008).

In light of (1) the undisputed fact that the contractual bar is no longer in effect, (2) the

Attorney General’s consistent and voluntary conduct over an extended period of time in not

enforcing the contractual ban, (3) his removal of the challenged contractual language based upon

7
his belief that legislation has “wholly and permanently” rendered the challenged practice

unnecessary, (4) his representations that he has no intention to re-implement the practice, and

(5) his declining to reimplement the challenged practice despite a favorable ruling from the

district court dismissing Dean’s complaint, we conclude that Dean’s requested relief for a

declaratory judgment, injunctive relief, and a cease-and-desist order are moot. See Catanzano v.

Wing, 277 F.3d 99, 107 (2d Cir. 2001) (“Since both Plaintiffs and Defendants agree that the State

is no longer implementing the fiscal assessment laws, and there is no reason to expect that fiscal

assessments are now occurring or that the legislature will reenact the laws, no controversy now

exists with respect to this claim and it is therefore moot.”).

Dean’s complaint, however, also seeks damages, and Blumenthal’s withdrawal of the

challenged policy does not render moot Dean’s requested relief for past constitutional violations.

See Stokes v. Vill. of Wurtsboro, 818 F.2d 4, 6 (2d Cir. 1987) (“‘Claims for damages or other

monetary relief automatically avoid mootness, so long as the claim remains viable.’” (quoting

13A Charles Alan Wright, Arthur R. Miller, & Edward Cooper, Federal Practice and Procedure

§ 3533.3 (2d ed. 1984))); see also Beyah v. Coughlin, 789 F.2d 986, 988–89 (2d Cir. 1986)

(holding that an allegedly unconstitutional practice, which no longer affects plaintiff, “may well

moot [plaintiff’s] claims for declaratory and injunctive relief” but does not moot the request for

damages). Even if Dean’s actual damages are speculative, “[i]t is clear that nominal damages are

available in actions alleging violations of constitutionally protected rights.”3 Fox, 42 F.3d at 141.

3
Although Dean’s complaint seeks only “damages,” this term can include nominal
damages. See, e.g., Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 651 (2d Cir. 1998)
(“[W]e have not precluded the award of nominal damages in the past if the complaint explicitly
sought compensatory damages.”); Beyah, 789 F.2d at 989 (holding that plaintiff’s potential
entitlement to nominal damages prevented his claim from being moot, even where defendant
contended that plaintiff would not be able to establish requested compensatory and punitive

8
 Because Dean’s claims are not moot insofar as she seeks damages, we now consider

Dean’s claim that the Attorney General’s policy violated her purported First Amendment right to

receive campaign contributions. Blumenthal disputed the existence of any such right, and the

district court agreed. Although we affirm the district court’s judgment, we do not adopt its

reasoning.4 See In re Certain Underwriter, 294 F.3d 297, 302 (2d Cir. 2002) (“[W]e are . . . free

to affirm an appealed decision on any ground which finds support in the record.” (internal

quotation marks omitted)). Instead, we conclude that, regardless of whether a right to receive

campaign contributions exists, it was not clearly established at the time of Blumenthal’s alleged

misconduct, and Blumenthal is therefore entitled to qualified immunity.5 See Pearson v.

Callahan, 129 S. Ct. 808, 815 (2009) (“The doctrine of qualified immunity protects government

damages).
4
The district court dismissed Dean’s claim under the First Amendment for lack of
standing because it concluded that there was no constitutional right to receive campaign
contributions. To establish Article III standing, a plaintiff must allege that she has suffered an
injury-in-fact that is traceable to the challenged action of the defendant, and that is likely to be
redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The
injury-in-fact must be an invasion of a judicially cognizable interest that is (a) concrete and
particularized and (b) actual or imminent. Id. It is true that “[t]he question whether there is an
injury quickly becomes blended with the question whether to recognize the asserted interest that
has in fact been impaired.” 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3531.4 (3d ed. 2008). The district court, however, erroneously conflated the
requirement for an injury-in-fact with the constitutional validity of Dean’s claim. Dean has
asserted that, as a result of the challenged contractual ban, she suffered the loss of a substantial
base of financing for her campaign and cites, as an example, a request for a contribution refund
from a supporter. Dean has therefore alleged a concrete, particularized, and actual harm that is
sufficient to establish Article III standing.
5
Dean never explained whether her complaint was brought against Blumenthal in his
official or individual capacity. We therefore examined the “course of proceedings to determine
the nature of the liability to be imposed,” Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993)
(internal quotation marks omitted), and have construed Dean’s claims to be brought against
Blumenthal in his individual capacity, thus making him eligible to raise a qualified immunity
defense. See Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993).

9
officials ‘from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’”

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))).6

Before discussing whether the right at issue was clearly established, however, we first

explain how we approach our analysis of qualified immunity in light of the Supreme Court’s

recent re-examination of its holding in Saucier v. Katz, 533 U.S. 194 (2001), which had

mandated a two-step sequence for resolving government officials’ claims of qualified immunity.

In the first step under Saucier, courts had asked the following question: “Taken in the light most

favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

a constitutional right?” Id. at 201. If a violation of a constitutional right was discerned, then the

second question required by Saucier was “whether the right was clearly established.” Id.

In Pearson v. Callahan, the Supreme Court recognized that Saucier’s protocol “is often

beneficial,” such as where the analysis of the facts under clearly established law “make[s] it

apparent that . . . the relevant facts do not make out a constitutional violation at all” and where

the question presented does “not frequently arise in cases in which a qualified immunity defense

is unavailable.” 129 S. Ct. at 818. But the Court rejected Saucier’s obligatory, two-step rule for

6
We consider whether Blumenthal is entitled to qualified immunity even though this
argument is put forward for the first time on appeal. Although “it is a well-established general
rule that an appellate court will not consider an issue raised for the first time on appeal,” Greene
v. United States, 13 F.3d 577, 586 (2d Cir. 1994), this “rule is prudential, not jurisdictional, [and]
we have discretion to consider waived arguments,” Sniado v. Bank Austria AG, 378 F.3d 210,
213 (2d Cir. 2004) (per curiam). “We have exercised this discretion . . . where the argument
presents a question of law and there is no need for additional fact-finding.” Id. “The matter of
whether a right was clearly established at the pertinent time is a question of law.” Kerman v.
City of New York, 374 F.3d 93, 108 (2d Cir. 2004). In this case, we asked the Attorney General
at oral argument to discuss qualified immunity in response to Dean’s argument that the Eleventh
Amendment did not bar her damages claim because the Attorney General had been sued in his
personal capacity.

10
resolving all qualified immunity claims. Id. at 817. The Court noted a variety of situations in

which a two-step rule was inappropriate, including where:

(1) “[I]t is plain that a constitutional right is not clearly established but far from
obvious whether in fact there is such a right.”

(2) A “constitutional question is so fact-bound that the decision provides little
guidance for future cases.”

(3) “[I]t appears that the question will soon be decided by a higher court.”

(4) The constitutional decision rests “on an uncertain interpretation of state law.”

(5) The “answer to whether there was a violation may depend on a kaleidoscope
of facts not yet fully developed.”

(6) The “briefing of constitutional questions is woefully inadequate.”

(7) A decision “may make it hard for affected parties to obtain appellate review of
constitutional decisions.”

(8) Where the “sequence in which judges reach their conclusions in their own
internal thought processes” is different from the two-step sequence prescribed by
Saucier, thereby creating a “risk that a court may not devote as much care as it
would in other circumstances to the decision of the constitutional issue.”

Id. at 818–20 (internal quotation marks and brackets omitted). Based on these concerns, the

Court held that “courts should have the discretion to decide whether th[e Saucier] procedure is

worthwhile in particular cases.” Id. at 821.

We exercise our discretion here and will initially evaluate whether the constitutional right

asserted by Dean was clearly established during the relevant period. Only if the right was clearly

established will we then consider whether the facts that Dean has alleged make out a violation of

a constitutional right. We invert the once-mandatory Saucier sequence because, as discussed

below, it is clear that a constitutional right to receive campaign contributions was not clearly

established, but it is “far from obvious whether in fact there is such a right.” Id. at 818. We also

11
do not believe that a challenge to a practice that has been defunct for over six years, where

injunctive relief is moot and where damages are speculative, presents an appropriate opportunity

to explore the complexities of a difficult constitutional question.

In turning to our analysis of whether the constitutional right at issue here was clearly

established, we may consider:

(1) whether the right in question was defined with “reasonable specificity”;
(2) whether the decisional law of the Supreme Court and the applicable circuit
court support the existence of the right in question; and (3) whether under
preexisting law a reasonable defendant official would have understood that his or
her acts were unlawful.

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991).

In attempting to demonstrate a right under the First Amendment to enjoy, in her words, “a

meaningful opportunity to raise funds sufficient to mount an effective campaign,” Dean argues

principally by analogy to other First Amendment rights. First, Dean contends that the receipt of

campaign contributions is like the right to receive speech or information, which is protected by

the First Amendment. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (“It is now

well established that the Constitution protects the right to receive information and ideas.”

(internal quotation marks omitted)); Application of Dow Jones & Co., 842 F.2d 603, 607 (2d Cir.

1988) (“[T]he First Amendment unwaveringly protects the right to receive information and

ideas.”). Second, she asserts that the right to receive campaign contributions necessarily follows

from the “reciprocal” rights to make campaign contributions and expenditures, which enjoy

protection under the First Amendment. See Buckley v. Valeo, 424 U.S. 1, 23 (1976)

(“[C]ontribution and expenditure limitations both implicate fundamental First Amendment

12
interests.”).7

We do not believe that a reasonable person would have known of a firmly established

First Amendment right to receive campaign contributions when the challenged policy was in

effect. Indeed, Dean has failed to cite any decision available during the relevant time period in

which either this Court or the Supreme Court specifically held that a candidate has a First

Amendment right to receive campaign contributions. See In re County of Erie, 546 F.3d 222,

229 (2d Cir. 2008) (“The question of whether a right is ‘clearly established’ is determined by

reference to the case law extant at the time of the violation.”). Instead, she relies heavily upon

Randall v. Sorrell, 548 U.S. 230 (2006), in which the Supreme Court struck down a Vermont

statute’s limitations on campaign contributions and expenditures. Because this case was decided

several years after Dean’s complaint was filed and after Blumenthal had discontinued the

challenged practice, any rule articulated by Randall could not have been clearly established

during the relevant period.

We emphasize that, although we do not consider the right to receive campaign

contributions to have been well-established during the relevant time period, we do not agree with

the district court’s conclusion that such a right is “inconsistent with the structure of the [Supreme

Court’s] opinion in Randall.” To the contrary, although Randall did not recognize a First

Amendment right to receive campaign contributions, its analysis did not foreclose such

recognition. See, e.g., id. at 248 (“[W]e must determine whether [the Vermont statute’s]

7
The act of contribution, which relates to both expressive and associational rights,
involves protected speech because “[m]aking a contribution, like joining a political party, serves
to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their
resources in furtherance of common political goals.” Buckley, 424 U.S. at 22; see also Fed.
Election Comm’n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440 (2001)
(“Spending for political ends and contributing to political candidates both fall within the First
Amendment’s protection of speech and political association.”).

13
contribution limits prevent candidates from amassing the resources necessary for effective

campaign advocacy.” (internal quotation marks and brackets omitted)); id. at 248–49

(“[C]ontribution limits that are too low can also harm the electoral process by preventing

challengers from mounting effective campaigns against incumbent officeholders, thereby

reducing democratic accountability.”). The district court in this case placed great weight upon

the fact that the Supreme Court in Randall considered as one among several factors—but did not

view as dispositive—that the contested statute’s “contribution limits will significantly restrict the

amount of funding available for challengers to run competitive campaigns.”8 Id. at 253. The

district court reasoned that if there were a right to receive contributions, then the Supreme Court

would have recognized a First Amendment violation in Randall after concluding that the

contribution limits significantly restricted the funding for challengers’ campaigns.

We take issue with the district court’s reasoning in two respects. First, the record in

Randall merely “suggest[ed]” but did “not conclusively prove” that Vermont’s statute

significantly restricted a contender’s funding. Id. In light of the record’s inconclusiveness, a

consideration of additional factors may have been necessary. Second, even if the Supreme Court

recognized a First Amendment right to receive campaign contributions, that right need not be

absolute and other considerations might be relevant. See Buckley, 424 U.S. at 25 (“[I]t is clear

that neither the right to associate nor the right to participate in political activities is absolute. . . .

8
In concluding that the campaign contribution limits were too restrictive, the Supreme
Court also considered: (1) the statute’s “insistence that political parties abide by exactly the same
low contribution limits that apply to other contributors,” which it concluded “threatens harm
to . . . the right to associate in a political party”; (2) the requirement that volunteer expenses be
included in calculating contribution limits; (3) the fact that the statute’s limits were not adjusted
for inflation, but declined in real value each year; and (4) the fact that nowhere in the record was
there any special justification for the statute’s low and restrictive contribution limits. Randall,
548 U.S. at 256–62.

14
Even a significant interference with protected rights of political association may be sustained if

the State demonstrates a sufficiently important interest and employs means closely drawn to

avoid unnecessary abridgment of associational freedoms.” (citations, internal quotation marks,

and parentheses omitted)).

In sum, Blumenthal is entitled to qualified immunity from Dean’s claims for damages

because a right to receive campaign contributions was not clearly established when the Attorney

General’s challenged practice was in effect.9

CONCLUSION

For the foregoing reasons, the judgment of the district court dismissing the complaint is

AFFIRMED.

9
Dean also seeks attorney’s fees, presumably pursuant to 42 U.S.C. § 1988. It is true that
“mootness is not determinative as to the propriety of an award of attorney’s fees,” which, instead,
turns on whether plaintiff is a “prevailing party.” LaRouche v. Kezer, 20 F.3d 68, 75 (2d Cir.
1994) (internal quotation marks omitted). But, given that we are affirming the district court’s
dismissal of Dean’s complaint and that there has been no “material alteration of the legal
relationship of the parties,” Dean is clearly not a prevailing party and therefore is not entitled to
attorney’s fees. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human
Res., 532 U.S. 598, 604–05 (2001) (rejecting argument that party may be considered “prevailing”
where defendant’s change in conduct is voluntary (internal quotation marks omitted)).

15