Am. Charities for Reasonable Fundraising Regulation, Inc. v. O'Bannon
Opinion
*331 This appeal turns on mootness. The issue arose when Utah changed its law governing professional fundraising consultants. Utah officials had interpreted its old law to require the plaintiff, Rainbow Direct Marketing, to register and obtain a permit in the State of Utah. Rainbow viewed these requirements as unconstitutional and unsuccessfully sued in district court. But during the appeal, Utah substantially revised its law, prompting officials to concede that the new restrictions do not apply to Rainbow. This change in the law renders the appeal moot.
I. Applying the old law, officials required Rainbow to comply with Utah's registration and permitting requirements.
Rainbow is a New York company that advises certain charities on fundraising through direct mail. In 2007, Rainbow agreed to consult with a nonprofit group, Straight Women in Support of Homos (SWiSH), on a national campaign to raise funds through direct mail. Before the campaign could begin, however, Utah officials informed Rainbow that they interpreted state law to require Rainbow to register and obtain a Utah permit.
But Rainbow did not want to register or obtain a Utah permit; the permit fee is $250, and Rainbow believed that Utah overenforces its registration laws in a way that inflates the cost of charitable fundraising. Rainbow therefore declined to consult with SWiSH. Losing this opportunity prompted Rainbow to sue, challenging the constitutionality of Utah's registration and permitting requirements. The district court granted summary judgment to the defendant, and Rainbow appealed.
II. Utah changes the law, and officials interpret the new law to relieve Rainbow of the need to register or obtain a permit.
After Rainbow appealed, Utah changed its law. The new law states that a permit is required for a professional fundraising consultant only if it
• maintains a business in Utah or employs someone there or
• advises a charitable organization that is subject to general jurisdiction in Utah.
III. This change in the law renders the appeal moot.
Regardless of whether Utah officials are right, however, the change in the law renders the appeal moot.
*332
Our jurisdiction is limited to "cases" or "controversies." U.S. Const. art. III § 2, cl. 1. When a case or controversy no longer exists, the appeal becomes moot and we lose jurisdiction.
WildEarth Guardians v. Pub. Serv. Co. of Colo.
,
The defendant has satisfied this burden by showing Utah's change in the law. Rainbow denies that the appeal is moot, invokes exceptions to the mootness doctrine, and contends that refusing to consider the appeal on the merits would be unjust.
A. We reject Rainbow's arguments denying that the appeal is moot.
Rainbow denies that the appeal is moot, arguing that (1) the law has not materially changed and (2) disputes remain over damages, interest, and attorneys' fees. We reject these arguments.
1. The change in the law is material.
Given the change in the law, Utah officials concede that Rainbow need not register or obtain a Utah permit. This concession would seemingly remove the alleged injury to Rainbow, rendering the appeal moot.
See
N. Nat. Gas Co. v. Grounds
,
Rainbow considers the changes immaterial, insisting that the constitutional violations remain under the new law. For this contention, Rainbow points to opinions holding that a case or controversy continues when a statutory change fails to substantially ease the burdens falling on the plaintiff. 2 But this contention overlooks the fundamental changes in the Utah law.
Rainbow's challenge to the new law turns on whether SWiSH is subject to general jurisdiction in Utah. Utah insists that SWiSH is not subject to general jurisdiction in the state, which would eliminate Rainbow's obligation to register or obtain a Utah permit. But Rainbow suggests that SWiSH may be subject to general jurisdiction, so the registration and permit obligations might remain.
This disagreement arises on appeal for the first time because the change in the law fundamentally altered the nature of the registration and permit requirements. These fundamental changes in the law moot the appeal even though Rainbow views the new version as unconstitutional.
See
*333
Camfield v. City of Okla. City
,
* * *
The law materially changed, fundamentally altering the issues that had been presented in district court. This change in the law renders the appeal moot.
2. The remaining disputes do not perpetuate a case or controversy.
Rainbow also argues that a case or controversy continues because disputes remain over the availability of damages, interest, and attorneys' fees. We disagree.
As Rainbow argues, the statutory change would not eliminate a pre-existing dispute over damages.
Brown v. Buhman
,
Rainbow did request interest and attorneys' fees. But Rainbow never moved for an award of interest or attorneys' fees. Had Rainbow moved for interest or attorneys' fees, a case or controversy might have remained.
See
Dahlem by Dahlem v. Bd. of Educ. of Denver Pub. Schs.
,
B. The exceptions to mootness do not apply here.
Rainbow contends that the appeal falls into one of two exceptions to the mootness doctrine: (1) capability of repetition and (2) voluntary cessation. These exceptions do not apply here.
Rainbow contends that the alleged wrong falls within the exception for wrongs "capable of repetition which will evade review."
Ind v. Colo. Dep't of Corr.,
The first element requires Rainbow to show that the "allegedly unconstitutional
*334
behavior is
necessarily
of short duration."
Jordan
,
Here the allegedly unconstitutional behavior is the adoption of a statute requiring professional fundraising consultants like Rainbow to register and obtain a permit in Utah. This behavior is not necessarily too quick for resolution through litigation. As a result, the "capability of repetition" exception does not apply.
Rainbow also invokes the exception for voluntary cessation. Under this exception, a defendant's voluntary cessation of the challenged practice would not ordinarily render the appeal moot.
Citizen Ctr. v. Gessler
,
Rainbow argues that Utah's history reflects unconstitutional enforcement. The point is unclear, but presumably Rainbow is arguing that Utah could reinstate the old law or improperly enforce the new law. But Rainbow has not suggested a reason to believe that Utah would rescind or improperly enforce the statutory changes, and the Utah legislature has expressed no intent to reenact the old law. So the exception for voluntary cessation does not apply.
C. Mootness cannot be disregarded based on notions of "manifest injustice."
Rainbow also argues that dismissal for mootness would create "manifest injustice." This argument overlooks the jurisdictional nature of mootness.
See
pp. 331-32, above. Because mootness is jurisdictional, we cannot ignore the issue based on our notions of manifest injustice.
See
Bowles v. Russell
,
IV. Because the appeal is moot, we must remand with instructions for the district court to vacate its judgment.
When the appeal becomes moot based on the prevailing party's unilateral action, we must vacate the district court's judgment.
Schell v. OXY USA Inc.
,
No one pleaded that Rainbow maintains a business in Utah, employs someone in Utah, or currently advises a charitable organization subject to general jurisdiction in Utah.
See
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla.
,
The defendant "acknowledges that dismissing the appeal as moot may require vacating the district court's decision." Appellee's Resp. Br. at 28-29 n.10.
Reference
- Full Case Name
- AMERICAN CHARITIES FOR REASONABLE FUNDRAISING REGULATION, INC.; Rainbow Direct Marketing, LLC, Plaintiffs - Appellants, v. Daniel O'BANNON, Director of the Utah Division of Consumer Protection, Department of Commerce for the State of Utah, Defendant - Appellee.
- Cited By
- 4 cases
- Status
- Published