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Missourians for Fiscal Accountability v. Klahr

United States District Court, W.D. Missouri, Central Division

April 27, 2015

JAMES KLAHR, in his official capacity as Executive Director of the Missouri Ethics Commission, Defendant.


ORTRIE D. SMITH, Senior District Judge.

On the strength of the Eighth Circuit's decision in National Right to Life Political Action Committee v. Connor , 323 F.3d 684 (8th Cir. 2003), the Court concludes Plaintiff's claims are not ripe for adjudication. The case is dismissed without prejudice.


Plaintiff is a "political organization" within the meaning of section 527 of the Internal Revenue Code. It was formed on October 22, 2014, with the intent of collecting contributions and expending money to advocate for Proposition 10, a proposed amendment to the Missouri Constitution that was to be voted upon during the November 4, 2014 general election. To that end, on October 29, 2014, Plaintiff endeavored to register as a "campaign committee" as required by Missouri statutes. However, Plaintiff was concerned that provisions of Missouri law precluded Plaintiff from collecting or expending funds in connection with its support of Proposition 10, and on October 30 it filed this suit seeking a temporary restraining order ("TRO"), preliminary and permanent injunctions, and a declaration, all establishing that such a prohibition violates the First Amendment and enjoining Defendant - the Director of the Missouri Ethics Commission ("MEC"), who was sued only in his official capacity - from enforcing what Plaintiff has described as a thirty-day blackout period. On October 31, Plaintiff filed a separate Motion for Temporary Restraining Order; a hearing was held later that day, and on November 2 the Court issued a TRO that enjoined Defendant "from enforcing the thirty-day blackout period imposed by Section 130.011 of the Missouri Revised Statutes, " which permitted Plaintiff to "take actions that violate the blackout period" and precluded Defendant from investigating or sanctioning Plaintiff for taking those actions. The TRO expired by its terms after the election.

Two days after the election, the Court directed the parties to show cause why the case should not be dismissed for lack of jurisdiction because the dispute was rendered moot by the election's occurrence. The parties agreed that Missouri law required Plaintiff to register at least thirty days in advance of any future elections it desired to participate in, so - based on Connor's discussion of mootness - the Court concluded the dispute was not moot. In a footnote, the Court observed that "Connor held the dispute over a similar provision involving different types of campaign committees was not moot after the election in question occurred, but that the dispute was not ripe. The circumstances... appear to differentiate this case from Connor." However, the parties had not addressed - and the Court had not purported to apply - Connor's holding regarding ripeness.

On January 8, 2015, the Court directed the parties to file Briefs addressing whether a final judgment should be entered based on the rationale expressed in the TRO. Among the arguments presented by Defendant is a contention that the case must be dismissed because the dispute is not ripe for adjudication.


Section 130.011(8) of the Revised Missouri Statutes defines a "campaign committee" in terms that include limitations on what a campaign committee is and can do. In pertinent part, the statute provides that a campaign committee must "be formed no later than thirty days prior to the election for which the committee receives contributions or makes expenditures...." Arguably, then, a campaign committee cannot collect or expend money for any election that occurs within thirty days of its formation.[1] And, while Plaintiff "exists" in the sense that it is a "political organization" under Section 527 of the Internal Revenue Code, the parties agree that the designation as a "campaign committee" under state law is election-specific, and a political organization such as Plaintiff must "re-register" should it wish to collect or expend funds in connection with a future election. E.g., Doc. # 19 at ("Defendant Klahr agrees [that i]f MFA chooses to accept contributions or make expenditures in support of or in opposition to another ballot initiative during a future election, ยง130.011 requires that MFA re-register as a campaign committee at least 30 days before the election.").

A. Mootness

The Court suggested that this case had become moot (stale) because the election of November 2014 passed, reasoning that Plaintiff could no longer advocate for passage of Proposition 10, and the mootness exception for disputes capable of repetition yet evading review did not apply because the November 2014 election could not occur again. In response, Plaintiff argued that it might accept contributions and make contributions in future elections, which would (as discussed above) necessitate re-registering as a campaign committee. While it may appear that any conflict with the thirty-day requirement could be avoided if Plaintiff simply registered at least thirty days before it engaged in this activity - and thus diminish the likelihood of the dispute recurring - Plaintiff cited Connor for the contrary proposition.

Connor involved a challenge to Section 130.011(10) of the Revised Missouri Statutes - a provision that applies to a different type of committee but that similarly requires registration within a specified period before the election for which the committee raises or expends contributions. In that case, the plaintiffs desired to involve itself in the 2000 election for Governor of Missouri, but not until approximately three weeks before the election. As explained by the Court of Appeals:

Prior to October 16, 2000, when then-Missouri Governor and United States Senate candidate Mel Carnahan was killed in an airplane crash, neither NRLC or NRLPAC intended to make expenditures with respect to any Missouri race in the November 7, 2000, election. Rather, NRLPAC had been vigorously advocating Carnahan's defeat in his race against then-incumbent Senator John Ashcroft. As a result of Carnahan's death, NRLPAC decided to shift its focus and efforts toward the Missouri gubernatorial race between Jim Talent and Bob Holden. NRLPAC immediately printed new political communications expressly advocating Jim Talent's election in that race. It planned to distribute these communications beginning October 17, 2000, twenty-one days before the election.

Connor , 323 F.3d at 687.

One of the claims in Connor is virtually identical to the claim asserted in this case: it alleged "that Missouri Revised Statute section 130.011(10) is an unconstitutional prior restraint on political speech because it requires a continuing committee' to be formed and registered at least thirty days before an election in order to make expenditures." Id. at 690. After the November 2000 election occurred, the district court dismissed this claim for the alternative reasons that it was (1) moot and (2) no longer ripe. The Eighth Circuit disagreed with the mootness analysis: it agreed that the dispute was moot, but held that the exception for disputes capable of repetition yet evading review should apply. With respect to whether the dispute was capable of repetition, the court stated that it "believe[d] that any number of events... might cause [a committee] to become involved in a state race within thirty days of an election. For instance, polls might reveal a closer race than expected and attract [a committee's] resources. New information or effective advertising could drastically alter public opinion in the weeks before an election. Trends in ...

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