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Institute for Justice v. Hawkins

United States District Court, W.D. Oklahoma

August 9, 2019

(1) INSTITUTE FOR JUSTICE, Plaintiff,
v.
(1) JOHN HAWKINS, Chairman of the Oklahoma Ethics Commission;(2) KAREN LONG, Vice-Chairman of the Oklahoma Ethics Commission; (3) HOLLY EASTERLING, Commissioner of the Oklahoma Ethics Commission; (4) CHARLIE LASTER, Commissioner of the Oklahoma Ethics Commission; (5) CATHY STOCKER, Commissioner of the Oklahoma Ethics Commission; (6) ASHLEY KEMP, Executive Director of the Oklahoma Ethics Commission, Defendants.

          ORDER

          TIMOTHY D. DeGIUSTI Chief United States District Judge.

         Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint [Doc. No. 26]. Plaintiff Institute for Justice (“Institute”) has filed a response [Doc. No. 30] and Defendants have replied [Doc. No. 31]. The matter is fully briefed and at issue.

         BACKGROUND

         The Institute is a nonprofit, public interest law firm that engages in public advocacy, litigation, and strategic research. The Institute employs two individuals with principal job duties of lobbying and two lobbyists working under contract. The Institute states in its Complaint [Doc. No. 1] that one of the in-house lobbyists is registered as a lobbyist in Oklahoma. The Institute alleges this registered lobbyist has lobbied in Oklahoma during the year prior to filing the instant action.

         The Institute's goal is to engage state and federal government officers and employees on issues involving licensing laws, occupational restrictions, and the influence of special interest groups. To achieve this goal, the Institute would like to distribute the book “Bottleneckers: Gaming the Government for Power and Private Profit” to officers and employees of the legislative and executive branches of the State of Oklahoma.

         The edition of “Bottleneckers” that the Institute seeks to distribute has a retail value of $15.00. The Institute requested an advisory opinion from the Oklahoma Ethics Commission (“OEC”) to determine the legality of distributing this book. The OEC interpreted the Institute's questions as:

May an executive or legislative lobbyist give to a state officer or employee a book which the lobbyist principal may purchase at a discounted author rate of approximately $15?” Complaint [Doc. No. 1] at ¶ 21. The OEC answered that Ethics Rule 5 prohibits gifting a book to a state officer or employee if the market value is greater than $10.00.

         The Institute claims that this restriction violates its First Amendment rights to freedom of speech and to “petition the government for the redress of grievances, and specifically the right to express their ideas, hopes, and concerns to government officers and employees.” Complaint at ¶ 39. The Institute requests a declaratory judgment that Ethics Rules 5.6, 5.8, 5.11, and 5.13, as applied to the distribution of informational materials to legislative branch officers and employees: (1) unconstitutionally regulate political speech; and, (2) unconstitutionally regulate petitions to the government. The Institute also seeks a permanent injunction.

         Defendants move to dismiss this case on the basis that the Institute: (1) lacks standing as it was not a lobbyist or lobbyist principal at the time the Complaint was filed; and, (2) fails to state a claim for which relief can be granted. Defendants also request that the Court decline to exercise its discretion to entertain this declaratory judgment action. In response to Defendants' Motion, the Institute concedes that it was not a lobbyist or lobbyist principal at the time the Complaint was filed, but asserts that it has since attained that status and contends that it has properly stated a claim for relief. Response at 6.

         Because the Court finds that the Institute lacked standing at the time the Complaint was filed, the Court need not address whether the Institute has sufficiently stated a claim for which relief can be granted.

         STANDARD OF DECISION

         A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial attack or a factual attack. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack questions the sufficiency of the complaint's allegations. Id. In reviewing a facial attack, a district court must accept the allegations in the complaint as true. Id. In a factual attack, the moving party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. Id. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. Id. Instead, the court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts. Id. In this case, Defendants raise a factual attack on jurisdiction and present materials outside the Complaint. Therefore, the Court does not presume the truthfulness of the Complaint's factual allegations.

         “Constitutional standing is a threshold jurisdictional question” that “must be satisfied prior to adjudication by Article III courts” of claims brought pursuant to the Federal Declaratory Judgment Act. Trant v. Oklahoma, 874 F.Supp.2d 1294, 1299 (W.D. Okla. 2012), aff'd, Trant v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014). “Standing doctrine is designed to determine who may institute the asserted claim for relief.” ACORN v. City of Tulsa, Okl., 835 F.2d 735, 738 (10th Cir. 1987) (quoting Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C. Cir. 1986) (emphasis in original)). “Absent a plaintiff with constitutional standing, federal courts lack jurisdiction.” Id.

         “‘[S]tanding is determined at the time the action is brought . . . and we generally look to when the complaint was first filed, not to subsequent events' to determine if a plaintiff has standing.” S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013) (quoting Mink v. Suthers,482 F.3d 1244, 1253-54 (10th Cir. 2007)) (internal citation omitted); see also, Brown v. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016) (“We measure standing as of the time the plaintiff files suit.”). “The burden is on the plaintiff to establish standing.” Brown, 822 F.3d at 1164 (citing Summers ...


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