Herbert Moncier v. Bill Haslam

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0469n.06

Case No. 14-5324 F LED
UNITED STATES COURT OF APPEALS JUN 3 o 2014
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
HERBERT SANFORD MONCIER, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BILL HASLAM, Governor of the State of ) DISTRICT OF TENNESSEE
Tennessee; MARK GOINS, Tennessee )
Coordinator of Elections, )
)
Defendants-Appellees. ) 0 P IN I 0N

BEFORE: MERRITT, COLE, and WHITE, Circuit Judges.

COLE, Circuit Judge. In 1994, the Tennessee General Assembly enacted a plan for the

selection, evaluation, and retention of judges who serve on the Supreme Court of Tennessee and

the state’s appellate courts (“the Tennessee Plan”). Under the Tennessee Plan, the Governor may

temporarily fill judicial vacancies by appointment, but those gubernatorial appointees must then

run in a retention election to fulfill the remainder of the unexpired term they are serving. Herbert

Moncier, proceeding pro se, brought suit under Section 1983, challenging the Tennessee Plan on

the grounds that it violates his (and the people of Tennessee’s) First and Fourteenth Amendment

rights to ballot access and political association. The district court dismissed Moncier’s suit due

to lack of standing after determining that he alleged, at most, a generalized grievance involving

an abstract question of wide public significance. For similar reasons, we affirm.
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I. BACKGROUND

This appeal involves a challenge to the constitutionality of Tennessee Code §§ 17-4-101

through 17-4-116, known commonly as the Tennessee Plan, which governs the way in which

judges of the Tennessee appellate courts are initially selected and thereafter stand for election.

By now, the Tennessee Plan is no stranger to legal challenge, both at the federal and state level.

See, e.g., Johnson v. Bredesen, 356 F. App’x 781 (6th Cir. 2009) (affirming district court’s

dismissal of a federal constitutional challenge to the Tennessee Plan as it related to the election

of state supreme court justices); Hooker v. Haslam, No. M2012-01299-SC-R11-CV, 2014 WL

1010367 (Term. Mar. 17, 2014) (holding that the Tennessee Plan, as it relates to state appellate-

court judges, does not violate the state constitution).

The Tennessee Plan provides that if a vacancy occurs in the office of an appellate-court

judge by death, resignation, or otherwise, the Governor shall fill the vacancy by appointing one

of the three persons nominated by the Judicial Nominating Commission (“JNC”).’ Tenn. Code

§ 17-4-112(a)(1). Likewise, if an incumbent appellate-court judge determines not to seek

retention for another term, the Tennessee Plan provides that a vacancy occurs in that office upon

the expiration of the incumbent’s term, effective September 1. Id. § 17-4-116(a). In such event,

the Governor may fill the vacancy under the procedures outlined in §S 17-4-112 or 17-4-113, but

the Governor’s appointee must then stand for a retention election at the next August general

election to fill the remainder of the unexpired term. Id. § 17-4-116(a).

1
Though not relevant to this appeal, the Tennessee General Assembly amended the Tennessee Plan to terminate
operation of the INC. See Tenn. Code § 4-29-233(a)( 15). Following this change in the law, the JNC wound up its
business and then ceased to exist as of July 1, 2013. See id. § 4-29-112. Nevertheless, the appointments at issue in
this appeal were all filled with the assistance of the INC prior to winding up its affairs, and the Tennessee Plan
remains substantively unchanged in all other respects.

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On May 24, 2013, Judge Joseph Tipton of the Tennessee Court of Criminal Appeals

notified Governor Bill Haslam that he would not seek retention for another term in the August

2014 election. The INC then issued notice that it was accepting applications to fill the vacancy

Judge Tipton’s decision would create and subsequently held a public hearing to interview

interested candidates and to allow public comment on the qualifications of the applicants. The

JNC ultimately submitted several names to the Governor, and from those names, the Governor

selected Robert H. Montgomery to fill the vacancy. Thus, under the Tennessee Plan,

Montgomery will fill the vacancy created upon the expiration of Judge Tipton’s term, effective

September 1, 2014, but Montgomery must run in an August 2016 retention election (involving a

simple yes-or-no vote) to be eligible to serve the remainder of that term. See Id. § 17-2-116(a).

Herbert Moncier, the plaintiff in this suit, wishes to fill Judge Tipton’ s position on the

Tennessee Court of Criminal Appeals. He did not, however, submit an application to the INC to

be considered for the seat, nor did he appear at the public meeting or otherwise comment on the

qualifications of the actual applicants. Moncier instead requested that Mark Goins, the State

Coordinator of Elections, place his name on the August 2014 ballot as a candidate for the office.

Coordinator Goins denied Moncier’ s request and directed him to the “Tennessee statutes that

provide for the manner judges are appointed and stand for election in Tennessee.”

Moncier filed this suit in federal district court against Governor Haslam and Coordinator

Goins, seeking a declaration that the Tennessee Plan is unconstitutional. Moncier alleged that, in

implementing the Tennessee Plan to fill Judge Tipton’s seat, the defendants are violating his

First and Fourteenth Amendment rights under the United States Constitution by denying him

access to the August 2014 ballot and the right to political association.

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The defendants answered Moncier’s complaint and requested that the district court

dismiss the suit, citing a lack of subject-matter jurisdiction because Moncier purportedly lacked

standing. On December 6, 2013, Moncier filed an application for a temporary injunction

directing Coordinator Goins to provide him with a nomination petition for the office of judge of

the Tennessee Court of Criminal Appeals and to provide him with instructions on how many

nominating signatures are required, from which counties those signatures are required, and the

deadline for filing a nominating petition. Moncier also filed several motions to amend his

complaint and his motion for temporary injunctive relief. The district court did not rule on these

individual motions prior to dismissing the suit.

On February 28, 2014, the district court issued a memorandum opinion dismissing

Moncier’s complaint and denying his motion for a temporary injunction. Moncier v. Haslam,

No. 3:13—CV—630—TAV—HBG, 2014 WL 806418, at *8 (M.D. Tenn. Feb. 28, 2014). The court

determined that Moncier had failed to establish the constitutional minimums for standing based

on his First and Fourteenth Amendment claims. Id. at *37 “At bottom,” the court reasoned,

“[Moncier’s] complaint is a generalized grievance that involves abstract questions of wide public

significance,” and not a request for relief from a concrete and particularized injury, as required

for Article III standing. Id. at * 5 (citation and internal quotation marks omitted). Accordingly,

the district court dismissed Moncier’s complaint and denied his motion for a temporary

injunction due to lack of subject-matter jurisdiction. Id. at *7 Whether for mootness or futility,

the district court also denied Moncier’ s various motions to amend, strike, and supplement his

complaint and motion for temporary injunctive relief. Id. at *8. The court then directed the clerk

to close Moncier’s case in its entirety. Id.

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Moncier timely filed a notice of appeal challenging the dismissal of his complaint and an

amended notice of appeal challenging the denial of his motion for a temporary injunction.

Moncier did not, however, appeal the denial of his motions to amend his other filings.

Accordingly, we need not address the claims he presented in those tendered amendments. See

Fed. R. App. P. 3(c)(1)(B) (requiring notices of appeal to “designate the judgment, order, or part

thereof being appealed”); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1998) (holding

that compliance with Rule 3 is both a “mandatory and jurisdictional” prerequisite to appeal

(internal quotation marks omitted)).

II. ANALYSIS

We review de novo the dismissal of a case for lack of standing. Prime Media, Inc. v. City

of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007). As the party seeking relief in federal court,

Moncier bears the burden of establishing that he has standing. See Summer v. Earth Island Inst.,

555 U.S. 488, 493 (2009).

A. Requirements for Standing

Article III of the United States Constitution restricts the federal judicial power to the

resolution of “Cases” and “Controversies.” U.S. Const., art. III, § 2. This case-or-controversy

requirement is satisfied only where a plaintiff has standing to bring suit. Sprint Commc ‘ns Co. v.

APCC Servs., Inc., 554 U.S. 269, 273 (2008). To assert Article III standing, a plaintiff must

establish the following: “(1) an injury in fact (i.e., a concrete and particularized invasion of a

legally protected interest); (2) causation (i.e., a fairly traceable connection between the alleged

injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and

not merely speculative that the plaintiff’s injury will be remedied by the relief the plaintiff seeks

in bringing suit).” Id. (brackets, ellipsis, citation, and internal quotation marks omitted). The

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Supreme Court has described these criteria as the “irreducible constitutional minimum” for

bringing suit in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

In addition to the Article III standing requirements described above, federal courts have

long imposed prudential limitations on the exercise of their jurisdiction. See, e.g., Allen v.

Wright, 468 U.S. 737, 751 (1984); Barrows v. Jackson, 346 U.S. 249, 255—56 (1953). But see

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386—88 (2014)

(abrogating a line of prudential-standing cases not relevant to this appeal). Under these

prudential limitations, courts should refrain from exercising jurisdiction “when the asserted harm

is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of

citizens.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted); Wuliger v. Mfrs. Ltfe

Ins. Co., 567 F.3d 787, 793 (6th Cir. 2009). Moreover, “plaintiff[s] generally must assert [their]

own legal rights and interests,” without resting their claims on the rights or interests of third

parties. Warth, 422 U.S. at 499; Wuliger, 567 F.3d at 793.

Our standing inquiry focuses primarily on the party bringing suit, and not the merits of

the action. Valley Forge Christian Coll. v. Ams. Unitedfor Separation of Church & State, Inc.,

454 U.S. 464, 484 (1982). Nevertheless, this inquiry often depends on the nature and source of

the claims and requires a “careful judicial examination of the complaint’s allegations to ascertain

whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.”

Allen, 468 U.S. at 752 (asking, among other questions, whether the claimed injury is “too

abstract, or otherwise not appropriate to be judicially cognizable”; whether “the line of causation

between the illegal conduct and injury is too attenuated”; and whether “the prospect of obtaining

relief from the injury as a result of a favorable ruling [is] too speculative”), abrogated on other

grounds by Lexmark, 134 5. Ct. at 1386.

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B. Moncier Lacked Standing to Challenge the Tennessee Plan

After careful consideration of Moncier’ s constitutional challenge to the Tennessee Plan,

the district court determined that he lacked standing because the injuries of which he complained

were not “concrete and particularized,” but rather “generalized” and “abstract,” involving

“questions of wide public significance” to all Tennesseans. Moncier, 2014 WL 806418, at *5_6.

We agree.

We do not write on a blank slate in determining whether Moncier has standing. His suit

represents the latest in a long line of cases seeking to upend the Tennessee Plan for one reason or

another. See Hooker, 2014 WL 1010367, at *2 n.3 (collecting unsuccessful cases challenging

the Tennessee Plan on state and federal constitutional grounds, filed in both state and federal

court). Five years ago, we addressed a nearly identical challenge to the Tennessee Plan as it

relates to the election of justices of the state supreme court. Johnson, 356 F. App’x at 781—82.

There, we held that plaintiffs who were similarly situated to Moncier lacked standing to bring

claims under the Fourteenth Amendment to the United States Constitution. Id. at 783—84.

Relying on Supreme Court precedent, we determined that the plaintiffs could not “challenge laws

of general application where their own injury is not distinct from that suffered in general by other

taxpayers or citizens.” Id. at 784 (quoting Hem v. Freedom From Religion Found., Inc.,

551 U.S. 587, 598 (2007)). We explained that “the judicial power of the United States defined

by Art[iclej III is not an unconditional authority to determine the constitutionality of legislative

or executive acts.” Id. (brackets, citation, and internal quotation marks omitted). Because the

plaintiffs merely alleged that, in carrying out the Tennessee Plan, state officials were not

complying with the Fourteenth Amendment, the plaintiffs “failed to assert a particularized stake

in the litigation” and therefore lacked standing. Id. (internal quotation marks omitted).

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Moncier’s challenge to the Tennessee Plan suffers from many of the same shortcomings.

Rather than asserting a “particularized stake in the litigation,” Moncier’ s complaint contained

mostly general allegations that the manner in which Tennessee selects and retains its appellate-

court judges violates his rights and the rights of all Tennessee voters under the First and

Fourteenth Amendments. His complaint repeatedly maintained that “the people of Tennessee”

have been or will be deprived of their right to vote for the office of Judge of the Tennessee Court

of Criminal Appeals in the August 2014 general election and that he seeks relief on their behalf.

Moncier, 2014 WL 806418, at * 5. Moreover, as the district court determined, at a hearing on

Moncier’s various motions to amend his filings, “[Moncier] claimed he was injured because he

wanted to run for office, [and] he emphasized that he was pursuing this litigation on behalfofthe

people of Tennessee to make a point about the manner in which appellate court judges are

selected and retained.” Id. (emphasis added).

This is precisely the type of generalized grievance courts have found ill-suited for judicial

resolution. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220—21

(1974) (“[S]tanding to sue may not be predicated upon an interest. . . which is held in common

by all members of the public, because of the necessarily abstract nature of the injury all citizens

share.”). In Lance v. Coffman, 549 U.S. 437 (2007) (per curiam), the Supreme Court affirmed

the dismissal of a challenge to Colorado’s 2003 redistricting plan brought by four private citizens

because “[t]he only injury plaintiffs allege is that the law—specifically the Elections Clause

[U.S. Const. art. I, § 4, cl. 1]—has not been followed.” Id. at 442. The Court went on to state

that the asserted injury “is precisely the kind of undifferentiated, generalized grievance about the

conduct of government that we have refused to countenance in the past.” Id. (distinguishing the

Lance plaintiffs from other voting-rights plaintiffs and cases where the Court found standing).

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Moncier makes no effort to distinguish his claims under the First and Fourteenth

Amendments (which rely heavily on Anderson v. Celebreeze, 460 U.S. 780 (1983), and Burdick

v. Takushi, 504 U.S. 428 (1992)) from Hem, Schelesinger, Lance, or any number of other

Supreme Court cases that denied standing where a plaintiff asserted “a general interest common

to all members of the public” in the conduct of their government. Lance, 549 U.S. at 440

(quoting Ex parte Levitt, 302 U.S. 633, 634 (1937) (Jer curiam)). The crux of Moncier’s

complaint is that Tennessee voters cannot, in all instances, elect the judges of the state’s

appellate courts. This injury is “plainly undifferentiated and common to all members of the

public.” Id. at 440—41 (internal quotation marks omitted); Johnson, 356 F. App’x at 784.

Moncier presents a closer call on the issue of standing to the extent that he alleges he was

denied the opportunity to appear on the August 2014 ballot. Here, his purported injury differs

slightly from the plaintiffs who challenged the Tennessee Plan in Johnson v. Bredesen. One of

the Johnson plaintiffs, John Jay Hooker, initially argued that the Tennessee Plan violated his

constitutional rights because it denied him an opportunity to be a candidate for the Supreme

Court of Tennessee. 356 F. App’x at 782. The district court nevertheless found that Hooker

lacked standing because he made “no contention of unequal treatment as a potential candidate

pursuant to the equal protection clause” and because our court already held that Hooker “ha[d]

no property right to run for a state office.” Johnson v. Bredesen, Nos. 3:07-0372, 3:07-0373,

2008 WL 701584, at *5 (M.D. Tenn. Mar. 13, 2008) (citing Hooker v. Anderson, 12 F. App’x

323, 324 (6th Cir. 2001) (affirming the district court’s dismissal of Hooker’s suit and noting that

he had no property right to be a candidate)). Nevertheless, Hooker did not appeal that portion of

the district court order, so we had no cause to determine whether he had standing to challenge the

Tennessee Plan based on his own desire to run for office. Johnson, 356 F. App’x at 782.

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Here, the district court “recognized [Moncier’s] injury in that he was denied the

opportunity to be placed on the August 2014 ballot” but found that, “on the basis of his

allegations and arguments,” Moncier had yet again presented “a generalized grievance shared by

a large class of citizens.” Moncier, 2014 WL 806418, at *5 (“Undoubtedly, any Tennessean who

desires to run for the office of an appellate judge would encounter the exact same obstacles that

plaintiff has asserted here.”). There is some purchase to the district court’s rationale, though

Moncier points out that his harm is somewhat unique in that (1) only a licensed attorney can

qualify for one of the state’s appellate judgeships; (2) only a resident from the Eastern Grand

Division can qualify for the particular judgeship Moncier seeks; and (3) unlike other qualified

voters, Moncier took some steps to seek this judgeship (though he failed to apply to the INC).

Ultimately, we need not weigh-in on this portion of the district court’s opinion because

there is no federally protected interest in seeking a state-court judgeship that, under state law (as

interpreted by the state supreme court), already has been lawfully filled by gubernatorial

appointment. See Snowden v. Hughes, 321 U.S. 1, 7 (1944) (“The right to become a candidate

for state office . . . is a right or privilege of state citizenship . .
. .“); Newman v. Voinovich,

986 F.2d 159, 161, 163 (6th Cir. 1993) (affirming dismissal under Rule 12(b)(6) of a suit

challenging Ohio’s judicial-appointment procedures under the First and Fourteenth

Amendments); Burks v. Perk, 470 F.2d 163, 165 (6th Cir. 1972) (“Public office is not property

within the meaning of the Fourteenth Amendment.”); see also Wilson v. Birnberg, 667 F.3d 591,

598 (5th Cir. 2012) (“[T]here is no constitutional right to run for state office protected by the

Fourteenth Amendment.” (citation and internal quotation marks omitted)); Velz v. Levy, 401 F.3d

75, 86—87 (2d Cir. 2005) (“[Plaintiff] lacks a constitutionally cognizable property interest in her

employment as an elected official.”).

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Because Moncier has no federally protected interest in appearing on the ballot as a

candidate for state-court judge, dismissal would have been equally appropriate under Federal

Rule of Civil Procedure 12(b)(6). Newman, 986 F.2d at 163. We note that the defendants twice

requested dismissal on this ground below.

Moncier cites Anderson v. Celebrezze and Burdick v. Takushi, but those cases offer no

refuge. Anderson and Burdick established “the right of individuals to associate for the

advancement of political beliefs, and the right of qualified voters ... to cast their votes

effectively.” See Miyazawa v. City of Cincinnati, 45 F.3d 126, 127 (6th Cir. 1995) (quoting

Anderson, 460 U.S. at 787)). Together, they created a balancing test, commonly referred to as

“the Anderson-Burdick standard,” for courts to apply when reviewing constitutional challenges

to state election laws. See Obamafor Am. v. Husted, 697 F.3d 423, 428—30 (6th Cir. 2012).

But both Anderson and Burdick presupposed that state law required an election for a

particular office in the first place. Anderson, 460 U.S. at 782 (reviewing Ohio’s process for

presidential candidates to qualifr for the general-election ballot); Burdick, 504 U.S. at 430

(reviewing Hawaii’s write-in balloting system for electing members of the state legislature).

Neither case mandated that states organize their governments in a particular manner or provide

for the election of state-court judges. Nor did either case stipulate when states may deem a

particular office vacant or specify how states must fill those vacancies. Accordingly, Anderson

and Burdick bear little weight on Moncier’ s challenge to the Tennessee Plan, which provides that

Judge Tipton’s seat on the court of criminal appeals will remain occupied by gubernatorial

appointment until 2016. Ultimately, Moncier’s reliance on Anderson and Burdick falls short

because he has no recognized right under the United States Constitution to run for an office that,

under state law, already has been filled.

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Moncier also asserts that the district court erred in dismissing his complaint because he

pleaded an additional twenty causes of action, including several causes of action under the

Tennessee Constitution and state statutory quo warranto procedures, all of which provided him

with the requisite standing or claim for relief. Moncier pleaded these additional causes of action,

however, in his proposed amended complaint, which the district court declined to allow him to

file. Moncier, 2014 WL 806418, at *8. Moncier did not notice an appeal of that denial, nor has

he alleged in his briefing with this court that the district court abused its discretion by denying

his various motions to amend his pleadings. Consequently, the issue of whether Moncier has

standing or a plausible claim for relief under the additional causes of action he asserted is not

properly before this court. See United States v. Johnson, 440 F.3d 832, 845—46 (6th Cir. 2006)

(“An appellant abandons all issues not raised and argued in its initial brief on appeal.” (brackets

and internal quotation marks omitted)). Because Moncier asserted no cognizable legal right

under the United States Constitution, his state claims are best left to the state courts.

III. CONCLUSION

We affirm the dismissal of Moncier’s Section 1983 action and the denial of his request

for preliminary injunctive relief. We decline to consider Moncier’s remaining filings with this

court, including an application for a temporary injunction on appeal and two motions to take

judicial notice of news accounts and newly discovered events in Tennessee, because our

dismissal renders them moot.

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