Wisconsin Right to Life, Inc. v. Schober

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 03-3128
WISCONSIN RIGHT TO LIFE, INCORPORATED
and WISCONSIN RIGHT TO LIFE POLITICAL
ACTION COMMITTEE,
Plaintiffs-Appellants,
v.

JOHN C. SCHOBER, chairperson of the Wisconsin
State Elections Board; and each of its members,
DONALD R. GOLDBERG, SHANE FALK, MARTHA LOVE,
PATRICK J. HODAN, DAVID HALBROOKS, GORDON MYSE,
KIRBY BRANT, JOHN P. SAVAGE, and KEVIN J. KENNEDY,
its executive director,
Defendants-Appellees.

____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 03-C-367—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 15, 2004—DECIDED APRIL 27, 2004
____________

Before COFFEY, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Plaintiffs Wisconsin Right to Life,
Inc. and Wisconsin Right to Life Political Action Committee
(collectively “Right to Life”) brought suit against the
2 No. 03-3128

individual members of the Wisconsin State Elections Board,
seeking injunctive relief against a 2002 Wisconsin campaign
finance law. Because the district court had already declared
the statute to be unconstitutional in a previous case,
Wisconsin Realtors Ass’n v. Ponto, 233 F. Supp. 2d 1078
(W.D. Wis. 2002), the district court concluded that Right to
Life lacked an Article III case or controversy and dismissed
the case. We affirm.

I. History
Right to Life vigorously participates in elections and
promotes its views in other fora for public discussion. The
Board “has general authority over and responsibility for
administering the state’s laws relating to elections and
election campaigns.” Wis. Realtors Ass’n, 233 F. Supp. 2d at
1082.
In July of 2002, Wisconsin enacted a statute which in-
cluded a series of changes to its campaign finance laws. See
2001 Wis. Act 109 (codified throughout Wis. Stat. § 11); see
also Wis. Realtors Ass’n, 233 F. Supp. 2d at 1081-83 (briefly
describing the legislative history and purported effect of key
provisions of the statute). The amendments were scheduled
to go into effect on July 1, 2003. Many individuals and
organizations, including Right to Life, that participated in
Wisconsin politics were concerned that their activities
would be curtailed by Act 109.
The constitutionality of the statute was in doubt from the
beginning. On July 26, 2002, the State’s Attorney General
filed a petition with the Wisconsin Supreme Court, seeking
a declaratory judgment as to the constitutionality of the
amendments. Interestingly, the petition included the fol-
lowing disclosure: “[a]s officers of the Court . . . the Office of
the Attorney General must advise the Court that it has
concluded that the constitutionality of the provisions noted
above cannot be defended because they are plainly in con-
No. 03-3128 3

flict with well-established constitutional principles.” In
Re Constitutionality of the Revisions to the Wisconsin
Campaign Finance Law Enacted in the 2002 Special Session
of the Legislature, Pet. For Leave to Commence Original
Action at 6. The Wisconsin Supreme Court declined to issue
an opinion on the constitutionality of the statute.
Also on July 26, 2002, a coalition of Wisconsin political
associations, not including Right to Life, filed suit in the
Western District of Wisconsin to challenge the statute’s
constitutionality. See Wis. Realtors Ass’n, 233 F. Supp. 2d
at 1081. The district court, on December 11, 2002, held that
one section of the statute violated the First Amendment on
its face.1 Moreover, because the statute included a non-
severability clause, the court held that all of the campaign
finance sections of Act 109 were “voided.”2 The district court
enjoined the Board from enforcing the statute against the
Wisconsin Realtors Ass’n plaintiffs. The Board did not
appeal.
Of course, the fact that a district court declared the stat-
ute to be unconstitutional does not automatically remove
the offending text from Wisconsin law. Since January of
2003, a group of legislators has attempted to formally

1
The provision “prohibits any independent group from making a
communication featuring a candidate within 30 days of an election
unless it has filed a report detailing ‘the name of each candidate
who will be supported or whose opponent will be opposed and the
total disbursements to be made.’ ” Wis. Realtors Ass’n, 233 F.
Supp. 2d at 1090 (emphasis in original) (quoting § 1uck of 2001
Wis. Act 109).
2
“Section 9115(2y)(b) of 2001 Wis. Act 109 requires that all of the
new campaign finance provisions be invalidated if a court finds
any provision unconstitutional.” Wis. Realtors Ass’n, 233 F. Supp.
2d at 1093 (emphasis in original). The Wisconsin Realtors Ass’n
court goes on to describe a lone exception to this ruling that is not
relevant to the case before us.
4 No. 03-3128

repeal Wisconsin Act 109 and make other changes to
Wisconsin law. See 2003 Senate Bill 12, available at http:/
/www.legis.state.wi.us/2003/data/SB12hst.html. Because
the bill is still pending, however, Wisconsin Act 109 re-
mains on the books. In fact, the Board’s website includes a
link to the body of Wisconsin campaign finance law,
including Act 109.
On January 15, 2003, Right to Life requested an Advisory
Opinion from the Board on whether it would enforce the
provisions of the statute—held to be unconstitutional one
month earlier—against Right to Life in the next election in
July of 2003. On January 28, 2003, the Board, for reasons
known only to its members, summarily declined to issue
such an opinion.
On July 11, 2003, after the purported effective date of the
statute and less than two weeks before the special elections
scheduled for July 22, Right to Life filed suit in the Western
District of Wisconsin, seeking a temporary restraining order
and a preliminary injunction against the Board. Right to
Life feared that the Board would enforce the statute
because: (1) the injunctive relief provided to the Wisconsin
Realtors Ass’n plaintiffs did not extend to non-parties; and
(2) the Board refused to assure Right to Life that the law
would not be applied.
After the litigation ensued, the Board hastily issued a
letter to Right to Life indicating that it would not enforce
the law against the organization. Nevertheless, Right to
Life persisted in seeking injunctive relief.
The district court below considered the pleadings of Right
to Life and the Board and held a hearing. The court con-
cluded that the case or controversy requirement, U.S.
Const. art. III, § 2, was not met at the time of the com-
mencement of the suit and dismissed the case. The district
court also expounded alternate grounds for its decision by
pointing to the post-litigation letter from the Board that
No. 03-3128 5

made clear that the Board considered the statute to be
unconstitutional and void, thus mooting Right to Life’s case.
The district court suggested that the Board should change
its website to reflect the Wisconsin Realtors Ass’n decision.
The Board complied with that request, and the website now
explains that by “linking its website to [Wisconsin cam-
paign statutes], the Elections Board, in no way, is attempt-
ing to enforce, adopt[,] or apply any of the statutory lan-
guage that has been held unconstitutional . . . .” See
http://elections.state.wi.us/.

II. Analysis
Under Article III of the Constitution, the judicial power
of the United States extends only to cases and controver-
sies. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102
(1998). This jurisdictional requirement ensures that the
resources of the federal judiciary are not expended on
advisory opinions and hypothetical disputes. “Concepts such
as standing, mootness[,] and ripeness assure that cases will
be litigated by those having an actual stake in the outcome
and that decisions will be made in an arena of real and
substantial problems to be redressed by specific solutions.”
Jorman v. Veterans Admin., 830 F.2d 1420, 1424 (7th Cir.
1987).
Here, the Board asserts that Right to Life lacks standing,
or, alternately, that the case is moot. We review de novo the
legal questions of standing, Plotkin v. Ryan, 239 F.3d 882,
884 (7th Cir. 2001), and mootness, Fed’n of Adver. Indus.
Representatives, Inc. v. City of Chicago, 326 F.3d 924, 928-
29 (7th Cir. 2003) (“Federation”). We review factual deter-
minations necessary to the questions of standing and
mootness for clear error, but this standard of review does
not apply to the case at hand because the district court was
able to dismiss on justiciability grounds without making
factual findings.
6 No. 03-3128

A. Standing
The required elements of Article III standing are: “(i) an
injury in fact, which is an invasion of a legally protected
interest that is concrete and particularized and, thus,
actual or imminent, not conjectural or hypothetical; (ii) a
causal relation between the injury and the challenged con-
duct, such that the injury can be fairly traced to the chal-
lenged action of the defendant; and (iii) a likelihood that the
injury will be redressed by a favorable decision.” Reid L. v.
Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir. 2004)
(quoting Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir.
2003)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). Right to Life, the party invoking federal
jurisdiction, bears the burden of establishing standing.
Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th
Cir. 1999).
To satisfy the injury-in-fact requirement, Right to Life
“must establish that [it] has sustained or is immediately in
danger of sustaining some direct injury.” Tobin for Governor
v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir.
2001). Because the statute has not been enforced against
Right to Life (or anyone else for that matter), Right to Life
needs to show a “reasonable probability” that it will suffer
“tangible harm.” Shimer v. Washington, 100 F.3d 506, 508
(7th Cir. 1996) (quoting Hoover v. Wagner, 47 F.3d 845, 847
(7th Cir. 1995)). Mere speculation is not enough to establish
an injury in fact. See Tobin for Governor, 268 F.3d at 528
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983)).
Right to Life submits that the threat of enforcement
inherent in the statute chilled its participation in the July
2003 special election and will continue to chill its speech
unless the federal courts provide injunctive relief. “A
plaintiff who mounts a pre-enforcement challenge to a
statute that he claims violates his freedom of speech need
No. 03-3128 7

not show that the authorities have threatened to prosecute
him; the threat is latent in the existence of the statute.”
Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (internal
citations omitted); see Virginia v. Am. Booksellers Ass’n Inc.,
484 U.S. 383, 393 (1988). The instant case, however,
presents a unique circumstance because the statute at issue
has been declared unconstitutional by a district court and
that ruling was not appealed.
Although it is highly unusual to seek injunctive relief
when a judgment that was not appealed has already ren-
dered a challenged statute unconstitutional, Right to Life’s
argument in favor of Article III standing is not “frivolous,”
as the Board contends. Right to Life presents a two-step
argument. First, Right to Life points out that the injunction
entered against the Board to prevent enforcement of the
statute against the Wisconsin Realtors Ass’n plaintiffs did
not extend to Right to Life. Indeed, district courts lack the
authority to enjoin the “enforcement of contested statutes
or ordinances except with respect to the particular federal
plaintiffs.” McKenzie v. City of Chicago, 118 F.3d 552, 555
(7th Cir. 1997) (quoting Doran v. Salem Inn, Inc., 422 U.S.
922, 931 (1975)); see also Fed. R. Civ. P. 65(d) (“Every order
granting an injunction . . . is binding only upon the parties
to the action . . . .”). Right to Life is correct in asserting that
the injunction against enforcement granted in the Wiscon-
sin Realtors Ass’n case does not protect it, a non-party to
the Wisconsin Realtors Ass’n case.
The second step of Right to Life’s argument is that the
declaratory judgment granted in the Wisconsin Realtors
Ass’n case does not limit the power of the Board to bring
prosecutions under the statute. Certainly, the statute can-
not be repealed by a district-court opinion; only the Wiscon-
sin legislature can repeal the statute. Furthermore, a
district court’s declaration that the statute is unconstitu-
tional does not automatically stop state officials from trying
to enforce the statute. Coupled with the Board’s refusal to
8 No. 03-3128

issue an advisory opinion, Right to Life reasons that this is
enough to present a live controversy to the federal courts.
Right to Life’s argument, however, fails to tie this theor-
etical harm to an actual and imminent threat of enforce-
ment. The Board did not appeal the Wisconsin Realtors
Ass’n case. Implicitly, the Board has conceded that the
statute is unconstitutional. The State’s Attorney General
conceded before the Wisconsin Realtors Ass’n litigation that
the statute was unconstitutional in its petition to the
Wisconsin Supreme Court to determine the constitution-
ality of Act 109. Right to Life makes no effort to satisfy
its burden of persuasion by showing that any Wisconsin
official, let alone the Board, has ever tried to enforce a
statute in these circumstances.
Notwithstanding its curious and abstruse refusal to re-
spond to Right to Life’s inquiry before the filing of this case,
we do not assume that the Board intended to ignore its
responsibilities under the Constitution. If the Board had
wished to contest the results of the Wisconsin Realtors Ass’n
case, it could have appealed that case to this court. Right to
Life’s injury simply is conjectural, not actual or imminent.
We are not convinced that, at the time of the commence-
ment of this suit, there was a “reasonable probability” that
the Board would enforce this statute.
Our decision is fortified by language from a case Right to
Life quoted in its brief, albeit without the italicized portion:
“Pending review in the Court of Appeals and in this Court,
the Government has been free to continue to apply the
statute [that had been declared unconstitutional by
the district court].” Kennedy v. Mendoza-Martinez, 372 U.S.
144, 155 (1963) (emphasis added). Unlike the Kennedy case,
the Board did not appeal the decision in the Wisconsin
Realtors Ass’n case. This would be a different case if
Wisconsin Realtors Ass’n were still working its way through
the appeals process.
No. 03-3128 9

Because there is no injury in fact, Right to Life could not
present a case or controversy required by Article III at the
commencement of the litigation. However, even assuming
arguendo that Right to Life had Article III standing, this
case was mooted by events occurring subsequent to its
filing.

B. Mootness
Under Article III, “cases that do not involve ‘actual,
ongoing controversies’ are moot and must be dismissed for
lack of jurisdiction.” Federation, 326 F.3d at 929 (quoting
Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 990-91
(7th Cir. 2000)). Mootness is often described as “the doctrine
of standing set in a time frame: The requisite personal
interest that must exist at the commencement of
the litigation (standing) must continue throughout its ex-
istence (mootness).” E.g., Arizonans for Official English
v. Arizona, 520 U.S. 43, 68 n.22 (1997); United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). But see
Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167,
189-90 (2000) (explaining that this description of mootness
is “not comprehensive”). The party asserting mootness bears
the burden of persuasion. Laidlaw, 528 U.S. at 189.
In analyzing whether this case is moot, then, we must
consider any changes in the relationship between the par-
ties that have occurred since July 11, 2003, the date litiga-
tion commenced. Most notably, the Board finally issued
a letter clearly indicating that it would not enforce the
statute against Right to Life because it considered the
statute to be unconstitutional. Furthermore, since the dis-
trict court’s decision, the Board added a disclaimer to its
website link to the Wisconsin statutes. This disclaimer
makes clear that the Board’s link to the statutes is not
an attempt to “enforce, adopt, or apply” the statutory
language held to be unconstitutional in Wisconsin Realtors
Ass’n.
10 No. 03-3128

Even if Right to Life had standing at the commence-
ment of this litigation, the Board’s subsequent actions have
mooted the case. The statute was held to be unconstitu-
tional before its effective date and has never been enforced.
The Board’s private and public assurances, evidenced by the
letter and website disclaimer, that the statute will not be
enforced in the future means there is no behavior to enjoin.
In Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1988),
appeal dismissed, 503 U.S. 916 (1992), we refused to
provide injunctive relief in a similar circumstance:
We believe that the defendants’ now public policy
of non-enforcement of the [statute and regulations],
particularly in view of the reasons therefor (i.e., that
enforcement is barred by clear Supreme Court prece-
dent), moots any challenge to that requirement. While
we share plaintiffs’ concern that the State has not acted
to remove or amend the statute and regulations, we
know of no authority by which we can require it to do
so. The most we could do, and all plaintiffs request of
us, is to enjoin their enforcement. Federal courts do not,
as a rule, enjoin conduct which has been discontinued
with no real prospect that it will be repeated.
Ragsdale, 841 F.2d at 1365-66. In the instant case, the
Board did not appeal the district court’s clear invalidation
of the campaign law statute. Moreover, the post-litigation
actions of the Board make it clear that there is no real
prospect that the Board will ever enforce this statute. There
is no case or controversy.
Despite being in total agreement with the Board about
the applicability of the statute to its campaign activities,
Right to Life insists that the Board’s “voluntary cessation
of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice.” City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)
(explaining that a defendant would be free to return to his
No. 03-3128 11

illegal activity once the case was dismissed if the case were
necessarily mooted by repeal or revision of a law). This is
certainly true in circumstances like those in Aladdin’s
Castle, where the city indicated an intention to re-enact the
disputed ordinance if the case were mooted and the district
court opinion vacated. Id. at 289 n.11.
But here, there is no illegal activity to which to return.
The statute was declared to be unconstitutional before it
went into effect, and it has never been enforced. The
Board’s assertions that it will not now enforce the statute
are extremely credible given that it has never enforced the
statute in the past. Also, unlike Aladdin’s Castle, our deci-
sion bears only upon whether a case or controversy exists in
this case, not to the underlying constitutionality of the
statute.
Furthermore, “when the defendants are public offi-
cials . . . we place greater stock in their acts of self-cor-
rection, so long as they appear genuine.” Federation, 326
F.3d at 929 (quoting Magnuson v. City of Hickory Hills, 933
F.2d 562, 565 (7th Cir. 1991)). It is true that the Wisconsin
legislature failed to formally repeal the offending statute.
See Federation, 326 F.3d at 930 (holding that the repeal of
a contested ordinance moots an injunction request and
noting that “[o]nly in cases where there is evidence that the
repeal was not genuine has the [Supreme] Court refused to
hold the case moot”). But we follow Ragsdale in holding that
a case is moot when a state agency acknowledges that it
will not enforce a statute because it is plainly unconstitu-
tional, in spite of the failure of the legislature to remove the
statute from the books. See Ragsdale, 841 F.2d at 1365-66.

III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
determination that no case or controversy exists as required
by Article III.
12 No. 03-3128

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—4-27-04