Kenneth H. Adams v. James B. Alcorn
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:15-cv-00012-EKD. [999798308]. [15-1478, 15-1483]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1478
24TH
SENATORIAL
DISTRICT
REPUBLICAN
COMMITTEE;
KENNETH H. ADAMS, individually and as Chairman of the
24th Senatorial District Republican Committee,
Plaintiffs - Appellants,
and
DANIEL MOXLEY,
Intervenor/Plaintiff,
v.
JAMES B. ALCORN, in his official capacity as Chairman of the
Virginia State Board of Elections; CLARA BELLE WHEELER, in
her official capacity as Vice-Chairman of the Virginia State
Board of Elections; SINGLETON B. MCALLISTER, in her official
capacity as Secretary of the Virginia State Board of
Elections;
VIRGINIA
DEPARTMENT
OF
ELECTIONS;
EMMETT W. HANGER, JR.,
Defendants - Appellees.
------------------------------------REPUBLICAN PARTY OF VIRGINIA, INC.,
Amicus Supporting Appellants.
No. 15-1483
DANIEL MOXLEY,
Intervenor/Plaintiff – Appellant,
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24TH SENATORIAL DISTRICT REPUBLICAN COMMITTEE; KENNETH H.
ADAMS, individually and as Chairman of the 24th Senatorial
District Republican Committee,
Plaintiffs,
v.
JAMES B. ALCORN, in his official capacity as Chairman of the
Virginia State Board of Elections; CLARA BELLE WHEELER, in
her official capacity as Vice-Chairman of the Virginia State
Board of Elections; SINGLETON B. MCALLISTER, in her official
capacity as Secretary of the Virginia State Board of
Elections;
VIRGINIA
DEPARTMENT
OF
ELECTIONS;
EMMETT W. HANGER, JR.,
Defendants - Appellees.
------------------------------------REPUBLICAN PARTY OF VIRGINIA, INC.,
Amicus Supporting Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Elizabeth K. Dillon,
District Judge. (5:15-cv-00012-EKD)
Argued:
December 9, 2015
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
GREGORY
and
April 19, 2016
DIAZ,
Circuit
Affirmed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge Diaz joined. Chief Judge Traxler wrote
a dissenting opinion.
ARGUED:
Jeffrey R. Adams, WHARTON, ALDHIZER & WEAVER, PLC,
Harrisonburg, Virginia, for Appellants.
Joshua D. Heslinga,
OFFICE
OF
THE
ATTORNEY
GENERAL
OF
VIRGINIA,
Richmond,
Virginia, for Appellees.
Richard Dean Boyer, BOYER LAW
FIRM, PLLC, Lynchburg,
Virginia,
for
Intervenor. ON
BRIEF:
Thomas E. Ullrich, WHARTON, ALDHIZER & WEAVER, PLC, Staunton,
2
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Virginia; John C. Wirth, NELSON, MCPHERSON, SUMMERS & SANTOS,
L.C., Staunton, Virginia, for Appellants.
Mark R. Herring,
Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy
Attorney General, John W. Daniel II, Deputy Attorney General,
Kristina Perry Stoney, Senior Assistant Attorney General,
Anna T. Birkenheier, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees
Alcorn, Wheeler, McAllister, and the Virginia Department of
Elections; Chris Ashby, ASHBY LAW PLLC, Alexandria, Virginia,
for Appellee Emmett W. Hanger, Jr.
Patrick M. McSweeney,
MCSWEENEY, CYNKAR & KACHOUROFF, PLLC, Powhatan, Virginia, for
Amicus Curiae.
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GREGORY, Circuit Judge:
The
24th
Senatorial
District
Republican
Committee
of
Virginia and Committee Chairman Kenneth H. Adams (together, the
“Committee”), and Plaintiff-Intervenor Daniel Moxley, appeal the
district
court’s
dismissal
subject matter jurisdiction.
the
following
reasons,
we
of
their
complaints
for
lack
See Fed. R. Civ. P. 12(b)(1).
conclude
that
the
district
of
For
court
correctly dismissed the plaintiffs’ and plaintiff-intervenor’s
complaints and therefore affirm.
I.
A.
Under Virginia law, political parties generally “have the
right to determine the method by which a party nomination for a
member of . . . any statewide office shall be made.”
Ann. § 24.2-509(A).
Va. Code
“Notwithstanding” this general rule, the
Incumbent Protection Act (the “Act”) provides that “[a] party
shall nominate its candidate for election for a General Assembly
district where there is only one incumbent of that party for the
district by the method designated by that incumbent, or absent
any designation by him by the method of nomination determined by
the party.”
Va. Code Ann. § 24.2-509(B) (emphasis added).
The Republican Party of Virginia (the “Party”) is governed
pursuant to its Plan of Organization (the “Plan”), which the
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Committee acknowledges “is the Party’s definitive statement on
any matter it addresses.”
3.
According
to
the
Pls.’ Mem. Supp. Mot. Prelim. Inj. at
Plan,
Legislative
District
Committees
(“LDCs”) are unincorporated associations designated pursuant to
the
Plan
that
“determine
whether
candidates
for
Legislative
District public office shall be nominated by Mass Meeting, Party
Canvass, Convention or Primary, where permitted to do so under
Virginia Law.”
J.A. 163.
The Committee is the LDC responsible
for determining the method of nomination for candidates seeking
the Republican nomination for the 24th Senatorial District for
the Virginia General Assembly.
In
December
2014,
the
Committee
exercised
its
authority
under the Plan and adopted a resolution designating a convention
as the method of nominating the Republican candidate for the
24th Senate District seat in the 2015 election.
On February 23,
2015,
relied
incumbent
state
senator
Emmett
Hanger
on
the
authority granted to him by the Act and designated a primary as
the method of nomination.
B.
The Committee filed this suit pursuant to 42 U.S.C. §§ 1983
and 1988 against the members of the Virginia State Board of
Elections and the Virginia Department of Elections (together,
the “Commonwealth”) seeking declaratory and injunctive relief.
The Committee’s complaint alleges that the Act infringes on its
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First Amendment right to freedom of association by preventing it
from determining the method of nomination in contravention of
the terms of the Plan. 1
Senator
Hanger
and
Moxley,
who
sought
the
Party’s
nomination for Senator Hanger’s seat on the 24th District, both
moved to intervene.
Moxley alleged that the Act violates his
constitutional rights under the Equal Protection Clause of the
Fourteenth
electoral
Amendment
advantage
because
and
it
confers
invidiously
on
an
incumbent
discriminates
against
an
him
and all other potential challengers to Hanger.
Plaintiffs
filed
a
motion
for
preliminary
injunction
seeking to enjoin the Commonwealth from implementing a primary.
Three
days
before
a
scheduled
hearing
on
the
preliminary
injunction, the defendants filed a motion to dismiss, arguing
that the Committee failed to establish standing because the Plan
expressly
incorporates
Virginia
law
into
its
delegation
of
authority to the LDC.
At the outset of the motion hearing, the district court
asked counsel whether there were any “issues of disputed fact.”
J.A. 203.
Counsel for the Committee responded, “We believe we
1
Although the Committee argues here that it also raises an
equal protection challenge, it did not plead a claim under the
Equal Protection Clause in the district court.
Because this
issue is raised for the first time on appeal, we decline to
address it.
See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993).
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not.”
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The
district
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court
heard
from
both
sides
on
standing issue and the proper interpretation of the Plan.
the
See
J.A. 213-229.
The
district
court
subsequently
granted
the
defendants’
motions to dismiss, holding that the plaintiffs failed to meet
their burden to establish standing, and denying the remaining
pending motions as moot, including the motions for preliminary
injunction.
II.
On appeal, the plaintiffs argue that the district court
erred by dismissing the complaint for lack of subject matter
jurisdiction.
We review the district court’s dismissal for lack
of standing de novo.
Lee Graham Shopping Center, LLC v. Estate
of Kirsch, 777 F.3d 678, 680 (4th Cir. 2015).
To have standing, a plaintiff must demonstrate (1) “he has
suffered
an
actual
or
threatened
injury,”
(2)
“a
causal
connection between the injury complained of and the challenged
action,” and (3) “the injury can be redressed by a favorable
decision.”
Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir.
1997).
“injury
An
protected
. . .
and
interest
(b)
hypothetical.”
in
fact”
which
is
actual
or
is
(a)
“an
invasion
concrete
imminent,
and
not
of
a
legally
particularized
conjectural
or
Lujan v. Defenders of Wildlife, 504 U.S. 555,
7
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560 (1992) (internal quotation marks omitted).
The plaintiffs
have
to
the
burden
standing.
of
alleging
sufficient
facts
demonstrate
Marshall, 105 F.3d at 906 (citing FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 231 (1990)).
III.
Before
we
turn
to
the
language
of
the
Plan
itself,
we
address the Committee’s argument that the construction of the
Plan is a jurisdictional fact intertwined with the facts central
to the merits of the dispute and that dismissal under Federal
Rule of Civil Procedure 12(b)(1) prior to allowing discovery was
premature.
evidence
In the alternative, the Committee argues that the
was
insufficient
to
dismiss
at
the
12(b)(1)
stage,
particularly because the proper construction of the Plan was a
contested fact.
The Committee concedes that it waived a hearing
on the motions to dismiss, but nevertheless insists that the
district court failed to develop sufficient facts to resolve the
jurisdictional issue.
“[A] defendant may challenge subject matter jurisdiction in
one of two ways.”
Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982)).
simply
fails
“First, the defendant may contend that a complaint
to
allege
facts
jurisdiction can be based.”
upon
which
subject
matter
Id. (citing Adams, 697 F.2d at
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1219).
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Alternatively,
jurisdictional
the
allegations
Adams, 697 F.2d at 1219.
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defendant
of
the
may
contend
complaint
were
“that
not
the
true.”
In the second scenario, “[a] trial
court may then go beyond the allegations of the complaint” and
hold an evidentiary hearing to “determine if there are facts to
support
the
jurisdictional
allegations.”
Id.
There
is
no
presumption of truth and the court weighs the evidence presented
in a 12(b)(1) hearing to determine jurisdiction.
Id.
“If,
however, the jurisdictional facts are intertwined with the facts
central
to
truthfulness
the
merits
should
of
attach
the
to
complaint,
the
‘a
presumption
plaintiff’s
of
allegations.’”
Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015) (citing
Kerns, 585 F.3d at 193).
relevant
factual
And “the court should resolve the
disputes
only
after
appropriate
discovery.”
Id. (citation omitted).
The Committee relies primarily on our decision in Kerns for
its argument that dismissal at the pleading stage was premature.
However, we have said that the “controlling jurisdictional fact
in Kerns—whether an employee was acting within the scope of her
employment for purposes of the Federal Tort Claims Act—has no
analog” where the issue before the court is “purely a legal
question
that
discovery.”
2012).
In
can
be
readily
resolved
in
the
absence
of
Blitz v. Napolitano, 700 F.3d 733, 739 (4th Cir.
Blitz,
we
analyzed
9
whether
the
Transportation
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Security
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Administration’s
checkpoint
screening
§ 46110.
Id.
at
question,
and
granted
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standard
constituted
735.
The
operating
an
“order”
district
defendant’s
under
court
motion
procedures
had
to
49
for
U.S.C.
decided
dismiss
the
under
Federal Rule of Civil Procedure 12(b)(1), without reviewing the
written
procedures
record before it.
themselves
and
Id. at 738.
without
an
administrative
We decided that because an
extensive administrative record had been filed in a similar case
before
the
D.C.
Circuit,
and
that
such
a
record
would
be
submitted if Plaintiffs filed their petition in the appropriate
court, the record before the district court was sufficient to
answer the jurisdictional question.
Id. at 739.
Like Blitz, we find that the record before the district
court in this case was sufficient to decide the jurisdictional
question.
Not only did the record contain the complete Party
Plan,
district
the
review of it.
court
undertook
a
thorough
and
exacting
See J.A. 363-69.
Moreover, the Committee and the Commonwealth both clearly
represented to the district court that there were no issues of
disputed fact.
“factual
J.A. 203.
stipulation”
preliminary
injunction.
was
The Committee now contends that its
“limited”
There
is
to
no
the
evidence
motion
for
from
the
transcript that the Committee’s stipulation was indeed limited
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way
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and
no
argument
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presented
for
what
the
legal
significance of such a limitation might be.
The Committee also fails to present a compelling argument
as to what evidence additional discovery would have brought to
light.
When asked by the district court whether there was “any
evidence [they could] provide . . . as to why that particular
phrase is in that part of the plan and not in other portions of
the
plan,”
evidence,
counsel
no.”
for
J.A.
the
223.
Committee
The
replied:
Committee’s
“Not
insistence
any
that
discovery was necessary is particularly puzzling given the fact
that no one sought or mentioned discovery at the hearing or in
the briefs they submitted after the hearing.
See J.A. 312.
Finally, the district court’s singular use of the phrase
“more reasonable” to describe the Committee’s construction of
the Plan in its opinion does not in and of itself transform what
is
essentially
a
legal
question
into
a
factual
one.
“The
interpretation of a written contract is a question of law that
turns upon a reading of the document itself, and a district
court is in no better position than an appellate court to decide
such an issue.”
Seabulk Offshore, Ltd. v. Am. Home Assur. Co.,
377
418
F.3d
408,
(4th
Cir.
2004).
Because
the
proper
construction of the Plan is a question of law and the record
before
the
district
court
was
sufficient,
jurisdictional discovery was not necessary.
11
we
conclude
that
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IV.
Whether the Committee has standing depends on whether its
alleged
injury
was
the
result
of
the
Act
or
voluntary decision on behalf of the Party.
a
lawful
and
The Commonwealth
argues that the Party has limited its authority to determine
unilaterally the method of nomination through its adoption of
Article V Section D(1)(a) of the Party Plan, which reads, “The
Legislative
candidates
District
for
Committee
Legislative
shall
District
determine
public
office
whether
shall
be
nominated by Mass Meeting, Party Canvass, Convention or Primary,
where
permitted
(emphasis added).
to
do
so
under
Virginia
Law.”
J.A.
163
We agree.
A.
We have previously held that where an “alleged injury is
caused by a voluntary choice made by the Virginia Republican
Party and not [the challenged state law],” plaintiffs do not
establish causation.
Marshall, 105 F.3d at 906.
In Marshall,
two members of the Party challenged Virginia’s open-primary law,
which allows primary voting for all individuals qualified to
vote regardless of party affiliation, alleging that it burdened
their rights to free speech and freedom of association.
905
(citing
senator
John
Va.
Code
Warner
Ann.
§ 24.2-530).
exercised
12
his
power
Id. at
Then-incumbent
under
the
Act
U.S.
and
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selected a primary as the means of nomination for his seat.
Several months later, the Party also adopted a primary.
Id.
Id.
The district court dismissed the suit for lack of subject
matter
jurisdiction,
and
we
affirmed,
concluding
that
the
plaintiffs failed to satisfy the causation and redressability
components of the standing inquiry.
Id. at 905-07.
We found
that it was the Party’s decision to conduct an open primary,
rather than the open primary law itself, that was the cause of
plaintiffs’
alleged
unconstitutional
for
injury
a
because
political
(1)
party
to
it
choose
was
an
not
“open”
primary and (2) there was “no indication” that the Party “would
have a ‘closed’ primary in the absence of the Open Primary Law
or change to a ‘closed’ primary if we declared the Open Primary
Law unconstitutional.”
Id. at 906.
“In other words, if a
political party’s choice of an ‘open’ primary is a lawful and
voluntary one, the decision of the party is the cause of the
alleged ‘forced’ association, not the state law requiring the
‘open’ primary.”
U.S.
191,
199
Id. at 906 (citing Marchioro v. Chaney, 442
(1979)
(“There
can
be
no
complaint
that
the
party’s right to govern itself has been substantially burdened
by statute when the source of the complaint is the party’s own
decision.”)).
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B.
We now turn to the construction of the Plan to determine
whether
the
Party
voluntarily
submitted
to
the
Act
and
incorporated it by reference into the Plan.
“The
constitution
and
by-laws
adopted
by
a
voluntary
association constitutes a contract between the members, which,
if not immoral or contrary to public policy, or the law, will be
enforced by the courts.”
Gottlieb v. Econ. Stores, Inc., 102
S.E.2d 345, 351 (Va. 1958) (citation omitted).
Therefore, we
interpret the Plan according to general principles of contract
interpretation under Virginia law.
In Virginia, “courts adhere to the ‘plain meaning’ rule in
interpreting
and
enforcing
a
contract.”
Hitachi
Credit
Corp. v. Signet Bank, 166 F.3d 614, 624 (4th Cir. 1999).
Am.
If the
contract “is complete on its face” and “plain and unambiguous in
its
terms,”
we
do
instrument itself.”
a
single
possible
parties
document
. . .
have
not
“search
Id.
Furthermore, we “read the contract as
and
giv[ing]
not
used
give
for
meaning
its
to
the
meaning
every
effect
to
words
aimlessly.”
beyond
clause
presumption
Id.
the
where
that
the
(citations
omitted.)
Whether the Party voluntarily submitted to the Act turns on
the
meaning
of
Virginia Law.”
the
clause
“where
permitted
to
do
so
under
This phrase does not appear anywhere else in the
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Plan, despite the fact that there are similar delegations in
three other parts of the Plan’s text.
For example, article III,
section
State
D(1)(b)
provides
that
“[the
Central
Committee]
shall determine whether candidates for statewide public office
shall be nominated by Convention, Party Canvass or Primary.”
Similarly,
article
[Congressional]
candidates
for
Convention,
§ D(1)(a)
IV,
section
District
District
Party
(“The
Committee
public
Canvass
Unit
D(1)(a)
or
specifies
shall
office
determine
shall
Primary.”
Committee
that
be
See
shall
“The
whether
nominated
also
determine
art.
by
III
whether
candidates for local and constitutional public offices shall be
nominated by Mass Meeting, Party Canvass, Convention, or Primary
and whether Unit Chairman and Committee members shall be elected
by Mass Meeting, Party Canvass, Convention, or Primary.”).
When
asked at the hearing if the Committee had “any evidence . . . as
to why that particular phrase is in that part of the plan and
not
in
any
other
portions
of
the
plan,”
Committee answered, “Not any evidence, no.”
counsel
for
J.A. 223.
the
The
Plan’s omission of the relevant language in three near-verbatim
parallel provisions reflects a deliberate choice to provide a
limited delegation of authority to the LDCs.
See Smith Barney,
Inc. v. Critical Health Sys., 212 F.3d 858, 861 (4th Cir. 2000)
(relying
on
the
principle
of
expressio
alterius to interpret contract clause).
15
unius
est
exclusio
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Furthermore, the fact that the Plan defines “primary” as
“subject to the Election Laws of the Commonwealth of Virginia,
except to the extent that any provisions of such laws conflict
with this Plan, infringe the right to freedom of association, or
are otherwise invalid” indicates that the Party was well aware
of
how
to
draft
language
challenge to Virginia law.
(emphasis
added).
A
that
supported
a
constitutional
J.A. 23 (Plan at Art. II, ¶ 24)
faithful
reading
of
the
contract
that
“gives effect to the presumption that the [Party has] not used
words aimlessly” requires us to view these selective omissions
and inclusions as intentional and meaningful.
at 624.
Hitachi, 166 F.3d
If the Party had intended to preserve its ability to
unilaterally
choose
the
method
districts, it could have done so.
of
nomination
for
legislative
Similarly, if it had intended
to give the Committee the authority to challenge a provision of
Virginia law, it could have done so.
The plain language of the
contract, read as a single document, shows clearly that it did
not.
The Committee contends that the language is more naturally
read as “an acknowledgment of the potential for conflict between
the Act and the Plan . . . and a statement that the outer limits
of an LDC’s authority to select the method of nomination are
defined by the coercive force of Virginia law.”
this
differs
from
the
Commonwealth’s
16
To the extent
interpretation,
it
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certainly
does
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not
conflict
nonexistent language.
would
have
us
constitutional
with
it,
unless
we
read
in
And that is precisely what the Committee
do—read
Virginia
unconstitutional. 2
Pg: 17 of 37
the
phrase
law”
and
“Virginia
assume
law”
that
as
the
“valid,
Act
is
In interpreting a contract under Virginia
law, however, we “cannot read in[] . . . language which will add
to or take away from the meaning of the words already contained
therein.”
Wilson v. Holyfield, 313 S.E.2d 396, 398 (Va. 1984).
The Committee’s tortured reading contravenes the plain language
of the Plan and requires us to assume the outcome of the very
challenge before us.
2
The dissent relies on DIRECTV, Inc. v. Imburgia, 136 S.
Ct. 463, 469 (2015), to support the proposition that “the phrase
‘Virginia Law’ in the Plan . . . cannot be construed to include
invalid Virginia statutes.”
Dissenting op. at 12.
DIRECTV
concerned the interpretation of the phrase “law of your state”
in a customer service agreement arbitration clause.
DIRECTV,
136 S. Ct. at 466.
The California Court of Appeals had
interpreted “law of your state” to include California law it
conceded was invalidated by the Supreme Court’s decision in AT&T
Mobility LLC v. Concepcion, 563 U.S. 333 (2011).
Id. at 467.
The Supreme Court reversed, holding that the California Court of
Appeal’s interpretation did “not place arbitration contracts ‘on
equal footing with all other contracts,’” did “not give ‘due
regard . . . to the federal policy favoring arbitration,’” and
therefore was “pre-empted by the Federal Arbitration Act.” Id.
at 471.
DIRECTV is of no import here because no state or
federal court has held that Virginia’s Incumbent Protection Act
is unconstitutional or preempted by federal law. Thus, even if
we did construe “‘Virginia law’ to encompass only valid Virginia
law,” as the dissent suggests, the Incumbent Protection Act,
unlike California’s pre-Concepcion state law, has never been
invalidated by statute or this, or any other, Court.
17
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The
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Committee’s
Marshall
are
attempts
similarly
Pg: 18 of 37
to
distinguish
unavailing.
As
we
the
facts
explained
of
above,
disagreement over the Plan’s meaning does not transform this
legal dispute over contract interpretation into a factual one.
Moreover, our holding in Marshall was clear:
where the alleged
injury is caused by the Party’s voluntary choice, the Party does
not establish causation.
cases
is
traceable
to
105 F.3d at 906.
the
Party’s
The injury in both
voluntary
choice:
Marshall, the choice was to hold an open primary.
Id.
in
Here,
the choice was to defer to the incumbent’s selected nomination
method by limiting the authority of the LDC.
Whatever factual
distinctions may exist do not render inapplicable the analysis
and holding of Marshall.
Finally, the Committee’s suggestion that the district court
erred by failing to secure a definitive interpretation of the
Plan from the Party is untimely and therefore waived, as any
request should have been made to the district court.
Helton v.
AT&T, Inc., 709 F.3d 343, 360 (4th Cir. 2013) (citing Muth v.
United States, 1 F.3d at 250 (4th Cir. 1993)).
We conclude that the language of the Plan is clear and
unambiguous:
the Plan delegates to the Committee the authority
to determine the nomination method unless Virginia law otherwise
limits
that
authority.
Where
Virginia
law
sets
forth
an
alternative method of nomination, the Plan does not give the
18
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Committee
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the
determination.
authority
to
Pg: 19 of 37
supersede
or
challenge
that
Because the Party has made a voluntary choice to
limit the Committee’s authority in this way, the plaintiffs have
“no complaint that the party’s right to govern itself has been
substantially burdened by” the Act because “the source of the
complaint is the party’s own decision.”
Marshall, 105 F.3d at
906 (citing Marchioro, 442 U.S. at 199).
Accordingly, we affirm
the district court’s holding that the Committee lacks standing
to bring this suit.
V.
Lastly,
we
address
Moxley’s
claim
that
he
has
standing
independent of the Party to bring his equal protection claim.
Under Virginia law, there are two entities that have the
right to determine the nomination method:
incumbents.
political parties and
Moxley is a member of the Party and, as a member,
he is contractually bound by the Plan’s rules and decisions.
See Gottlieb v. Econ. Stores, Inc., 102 S.E.2d 345, 351 (Va.
1958)
(“The
constitution
and
by-laws
adopted
by
a
voluntary
association constitutes a contract between the members, which,
if not immoral or contrary to public policy, or the law, will be
enforced by the courts.” (citation omitted)).
The Plan does not
authorize individual party officials or members to determine the
nomination method for legislative districts.
19
Moxley seems to
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recognize this, as he acknowledges that if the Committee had
chosen a primary, he would have been “uninjured” because he has
“no legal claim to any other method of nomination.”
J.A. 344.
Because neither Virginia law nor the Plan gives Moxley “a
legally protected interest” in determining the nomination method
in the first place, he fails to make out “an invasion of a
legally protected interest,” i.e. actual injury, in this case.
Lujan, 504 U.S. at 560 (emphasis added); see, e.g., Friends for
Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 321 (4th Cir.
2002)
(observing
that
land
transaction
which
would
prevent
development of land previously designated as a roadway did not
impact
plaintiffs’
“liberty
interest
in
access
to
their
community” because “under Virginia law they have no entitlement
to the construction of a roadway”).
The dissent relies on out of circuit authority to support
its
view
that
Moxley’s
alleged
interest
in
depriving
his
opponent the ability to choose “the nominating method that would
best ensure his re-nomination” is sufficient to establish his
own independent standing.
Dissenting op. at 4 (citing Texas
Democratic Party v. Benkiser, 459 F.3d 582, 585-87 & n.4 (5th
Cir. 2006); Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994);
Owen v. Mulligan, 640 F.2d 1130, 1132-33 (9th Cir. 1981)).
But
even if we assume Moxley has a legally protected interest, he
still fails to demonstrate how that injury is redressable by a
20
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decision of this Court.
Pg: 21 of 37
In Benkiser, for example, the Fifth
Circuit found that plaintiff political party’s “threatened loss
of
political
favorable
power
decision,
candidate.”
. . .
which
likely
would
would
preclude
be
redressed
by
a
Republican
Benkiser, 459 F.3d at 587 (emphasis added).
a
party
Here,
however, the plain language of the Plan indicates that only the
LDC shall determine the method of nomination and only where the
application of Virginia law does not limit that authority.
Even
in the absence of the Act, Moxley is bound by the LDC’s choice
of nomination method.
Accordingly, even if the Act were held
unconstitutional, the Party is not precluded from “voluntarily
elect[ing]” to defer to the incumbent’s choice, “which it is
legally entitled to do.”
Marshall, 105 F.3d at 907.
And “there
is nothing [we] can do to prevent” the Party from deferring to
the incumbent’s choice.
Id.
VI.
We must apply the plain language of the contract.
For the
foregoing reasons, the decision of the district court is
AFFIRMED.
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TRAXLER, Chief Judge, dissenting:
The majority affirms the dismissal of this case for lack of
standing because it believes the contractual term “Virginia Law”
includes
Virginia
statutes
unconstitutionality.
does
not
because
are
void
for
Because I believe that the phrase plainly
encompass
the
that
Virginia
Supreme
Court
statutes
has
that
construed
are
invalid,
nearly
and
identical
language to mean valid state law, I respectfully dissent.
I.
Virginia
Code
§
24.2–509(A)
provides
that
“[t]he
duly
constituted authorities of the political party for the district,
county, city, or town in which any other office is to be filled
shall have the right to determine the method by which a party
nomination
for
that
office
shall
be
made.” 1
This
lawsuit
involves constitutional challenges to a statutory exception to
that rule that can deprive the political parties of the right to
choose the nomination method for candidates for the Virginia
General Assembly.
That exception, commonly referred to as the
Incumbent Protection Act (“the Act”), states in pertinent part,
“Notwithstanding Section A, . . . [a] party shall nominate its
candidate for election for a General Assembly district where
1
Section 24.2-509(A) also includes similar language
concerning the nomination of candidates for the United States
Senate or for any statewide office.
22
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there is only one incumbent of that party for the district by
the
method
designated
by
that
incumbent,
or
absent
any
designation by him by the method of nomination determined by the
party.”
Va. Code § 24.2–509(B).
Central to this appeal is the Plan of Organization (the
“Plan”) of the Republican Party of Virginia (the “Party”), which
is a contract governing the Party’s members and operation.
The
24th Senatorial District Republican Committee and its chairman
(collectively, the “Committee”) brought this action in federal
district court against the Virginia Department of Elections and
various officials with the Virginia State Board of Elections
(collectively, “the Defendants”), claiming that the Act violated
its First Amendment right to free association by denying the
Committee its right under the terms of the Plan to decide the
nomination
method
for
candidates
seeking
the
Republican
nomination for the Virginia General Assembly in its district.
(The
Committee
complaint.)
attached
the
Plan
as
an
exhibit
to
its
Senator Emmett Hanger, the incumbent, and Daniel
Moxley, a Republican challenger, later intervened in the suit.
Moxley
asserted
a
claim
alleging
that
the
Act
violated
his
Fourteenth Amendment right to equal protection under the law by
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allowing the incumbent Hanger to choose the nomination method. 2
The district court eventually dismissed the entire case for lack
of standing.
See Adams v. Alcorn, No. 5:15cv00012, 2015 WL
1524481 (W.D. Va. Apr. 2, 2015).
The Committee and Moxley have
appealed.
We review de novo a district court order dismissing for
lack of standing.
(4th Cir. 2013).
See Cooksey v. Futrell, 721 F.3d 226, 234
On review of a dismissal of a complaint, we
“assume all well-pled facts to be true” and “draw all reasonable
inferences in favor of the plaintiff.”
Nemet Chevrolet Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)
(alteration
&
internal
quotation
marks
omitted).
“consider exhibits attached to the complaint.”
We
also
Cooksey, 721
F.3d at 234 (internal quotation marks omitted).
Plaintiffs have “the burden of establishing standing” in
order to show that a district court possesses subject-matter
jurisdiction over a case.
(4th
Cir.
2006).
The
Miller v. Brown, 462 F.3d 312, 316
doctrine
includes three components:
of
constitutional
standing
“(1) the plaintiff must allege that
he or she suffered an actual or threatened injury that is not
conjectural or hypothetical[;] (2) the injury must be fairly
2
Senator Hanger
favored a convention.
chose
a
primary,
24
whereas
the
Committee
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traceable
to
Filed: 04/19/2016
the
challenged
Pg: 25 of 37
conduct;
and
decision must be likely to redress the injury.”
(3)
a
favorable
Id.
A.
The injury the Committee alleges here is the deprivation of
the
right
to
choose
the
Assembly position at issue.
nomination
method
for
the
General
And the injury Intervenor Moxley
alleges is that his opponent was given the unfair advantage of
being allowed to choose the nominating method that would best
ensure his re-nomination. 3
Among other relief, the parties’
3
Moxley’s alleged interest in depriving his opponent of
that advantage, and thereby increasing his own prospects for
winning the nomination, is sufficient to establish his standing.
See Texas Democratic Party v. Benkiser, 459 F.3d 582, 586-87 &
n.4 (5th Cir. 2006) (holding that plaintiff political party had
standing to sue to prevent opposing party from removing a
candidate from the ballot and replacing him with a new candidate
in part because obtaining that relief would improve the chance
of winning for the party’s candidate); Schulz v. Williams, 44
F.3d 48, 53 (2d Cir. 1994) (holding, based on “[t]he wellestablished concept of competitors’ standing,” that political
party chairman had standing to challenge placement of another
party’s gubernatorial candidate on the ballot because that
placement could reduce the chances that the plaintiff’s party
would receive the number of votes it needed to retain its place
on the ballot); Owen v. Mulligan, 640 F.2d 1130, 1132-33 (9th
Cir. 1981) (holding that candidate had standing to sue to compel
Postal Service to cancel a bulk-mail permit being used by a
political opponent to mail political literature insofar as the
reduced-cost
mailings
put
the
plaintiff
candidate
at
a
competitive disadvantage).
Cf. Bostic v. Schaefer, 760 F.3d
352, 371 (4th Cir. 2014) (“[W]hen the government erects a
barrier that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group, the
injury in fact is the denial of equal treatment resulting from
the imposition of the barrier.” (alterations & internal
quotation marks omitted)).
25
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complaints each request a declaration that the Act violates the
United States Constitution.
the
constitutionality
district
court
of
believed
The district court concluded that
the
the
Act
Act
was
was
irrelevant
not
the
because
cause
of
the
these
alleged injuries and the requested declaratory relief would do
nothing
to
redress
the
alleged
injuries
in
any
event.
Adams, 2015 WL 1524481, at *7; see also id. at *4.
the
district
court
reasoned,
because
the
See
That is so,
Party
chose
to
incorporate the Act’s terms into its Plan, whether the Act was
constitutional or not; thus, it was the Plan, and not the Act,
that was the cause in fact of the alleged injuries.
See id.;
Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir. 1997) (“Because
the alleged injury is caused by a voluntary choice made by the
Virginia
Republican
plaintiffs
have
Party
not
and
not
established
the
Open
Primary
causation.”).
It
Law,
the
is
the
correctness of this reading of the Plan that is at the heart of
the case before us.
The parties agree that the Plan should be interpreted as a
contract among the members of the Republican Party of Virginia
(“the
Party”)
principles.
and
construed
to
ordinary
contract
See Gottlieb v. Economy Stores, Inc., 102 S.E.2d
345, 351 (Va. 1958).
contract
according
presents
a
Because the interpretation of a written
question
of
26
law,
we
review
the
district
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court’s interpretation de novo.
See Seabulk Offshore, Ltd. v.
American Home Assur. Co., 377 F.3d 408, 418 (4th Cir. 2004).
Under Virginia law, “[i]t is well established that, when
the terms of a contract are clear and unambiguous, a court must
give them their plain meaning.”
Pocahontas Mining Ltd. Liab.
Co. v. Jewell Ridge Coal Corp., 556 S.E.2d 769, 771 (Va. 2002).
A
court
determines
a
contract’s
plain
meaning
by
words “their usual, ordinary, and popular meaning.”
giving
its
Id. at 772.
We therefore need to look at the Plan terms.
For
most
offices,
the
Plan
unqualifiedly
provides
that
particular Party committees will choose the nomination method.
See Plan at Art. III, § D(1)(b) (providing that the [“State
Central
Committee”]
candidates
for
will
statewide
decide
public
the
nomination
office);
Plan
at
method
Art.
for
IV,
§
D(1)(a) (providing that the “District Committee” will decide the
nomination method for candidates for the United States House of
Representatives; Plan at Art. VI, § D(1)(a) (providing that the
“Unit
Committee”
will
decide
the
nomination
method
candidates for local and constitutional public offices).
choice
parties
reflects
the
the
fact
unqualified
that
right
Virginia
to
make
law
those
regard to their candidates for those offices.
24.2–509(A).
The
Plan
provision
gives
for
This
political
decisions
with
See Va. Code §
concerning
the
General
Assembly, however, has a special proviso that reflects the Act’s
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potential to deny the Party the right to choose the nomination
method.
Accordingly, it states:
The Legislative District Committee shall determine
whether candidates for Legislative District public
office shall be nominated by Mass Meeting, Party
Canvass, Convention or Primary, where permitted to do
so under Virginia Law.
Plan at Art. V, § D(1)(a) (emphasis added).
Central
to
these
appeals
is
the
question
of
how
the
emphasized language (the “qualifying language”) applies if the
Act, which gives the nomination-method decision to an incumbent,
is
unconstitutional.
The
Committee
argues
the
Act
is
unconstitutional and cannot be applied, thus giving the election
decision
to
the
Committee.
The
Defendants
contend
that
“Virginia Law” includes the Act, even if it is unconstitutional.
In my view, the plain meaning of the Plan is the one that
the Committee urges.
the
Supreme
Court
Both the United States Supreme Court and
of
Virginia
have
held
that
the
law
of
a
particular state includes the United States Constitution, such
that an unconstitutional Virginia statute is no law at all.
Howlett
ex
rel.
Howlett
v.
Rose,
496
U.S.
356,
367
See
(1990)
(“[T]he Constitution and laws passed pursuant to it are as much
laws in the States as laws passed by the state legislature.”);
Ex parte Siebold, 100 U.S. 371, 376 (1879) (“An unconstitutional
law is void, and is as no law.”); Marbury v. Madison, 5 U.S.
137,
180
(1803)
(“[A]
law
repugnant
28
to
the
constitution
is
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void.”); Spiak v. Seay, 40 S.E.2d 250, 251 (Va. 1946) (“The
provision of the Constitution of the United States on interstate
extradition, together with the Acts of Congress on the subject,
are a part of the supreme law of the land and therefore a part
of the law of each State.”).
natural
meaning
of
statutes
that
are
For that reason, the ordinary and
“Virginia
void
Law”
does
because
not
they
include
violate
Virginia
the
U.S.
Constitution.
Indeed,
present
only
case,
days
the
after
Supreme
we
Court
heard
oral
held
that
argument
language
in
the
nearly
identical to that now before us unambiguously conveyed that very
meaning.
(2015).
See DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 469
In that case, DIRECTV entered into a service contract
with its customers that included an arbitration provision that
stated that it would be unenforceable if the “law of your state”
made waivers of class arbitration unenforceable.
(internal
quotation
contract
provided
governed
by
the
marks
that
omitted).
the
Federal
quotation marks omitted).
Another
arbitration
Arbitration
Id. at 466
section
provision
Act.”
Id.
of
“shall
the
be
(internal
Two of DIRECTV’s customers brought
suit in 2008 against DIRECTV in a California state court seeking
damages for early termination fees that the customers alleged
violated
California
state
law.
29
See
id.
Invoking
the
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arbitration provision, DIRECTV requested arbitration.
The state trial court denied the request.
See id.
See id.
DIRECTV appealed to the California Court of Appeal, which
affirmed.
See id. at 466-67.
Under that court’s analysis, the
enforceability of the arbitration provision turned on the effect
of a rule of California state law that resulted from a 2005
California
Supreme
Court
decision,
Discover
Bank
v.
Superior
Court, 113 P.3d 1100, 1110 (Cal. 2005), and which was embodied
in California statutory law as well (the “Discover Bank rule”). 4
See DIRECTV, 136 S. Ct. at 466-67.
Under the Discover Bank
rule, the arbitration provision would have been unenforceable as
a matter of California state law.
See id.
However, in 2011,
the United States Supreme Court held that the Discover Bank rule
was preempted and invalidated by the Federal Arbitration Act
(“FAA”)
because
the
rule
“st[ood]
as
an
obstacle
to
the
accomplishment and execution of the full purposes and objectives
4
Discover Bank held “that a waiver of class arbitration in
a consumer contract of adhesion that predictably involves small
amounts of damages and meets certain other criteria” that were
not contested in DIRECTV was “unconscionable under California
law and should not be enforced.” DIRECTV, Inc. v. Imburgia, 136
S. Ct. 463, 466 (2015) (alteration & internal quotation marks
omitted).
The applicable California statutes referenced above
were sections 1751 and 1781(a) of California’s Consumers Legal
Remedies Act. See id. at 466-67.
30
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of
Doc: 56
Congress”
Filed: 04/19/2016
that
the
FAA
Pg: 31 of 37
embodied.
AT&T
Mobility
LLC
v.
Concepcion, 563 U.S. 333, 352 (2011).
Although it recognized that Concepcion had invalidated the
Discover
Bank
rule,
see
DIRECTV,
136
S.
Ct.
at
467,
the
California Court of Appeal nonetheless believed that DIRECTV’s
entitlement
to
arbitration
contractual
phrase
“law
depended
of
your
on
the
state,”
meaning
see
id.
of
at
the
466.
Concluding that the
parties intended that phrase to mean “the
law
including
of
California
the
Discover
Bank
rule
and
irrespective of that rule’s invalidation in Concepcion,” id. at
468, the court affirmed the lower court’s denial of DIRECTV’s
request to enforce the arbitration agreement, see id. at 467.
And the California Supreme Court denied discretionary review.
See id.
The
United
States
Supreme
Court
petition for certiorari and reversed.
the
California
Court
of
Appeal’s
then
granted
DIRECTV’s
The Court assumed that
decision
was
correct
as
a
matter of state contract law, but nonetheless considered whether
that state law was consistent with the FAA.
See id. at 468.
The Supreme Court concluded that in ruling that “law of your
state” included state laws that were invalidated by federal law,
the California court did not “place[] arbitration contracts on
equal footing with all other contracts.”
DIRECTV, 136 S. Ct. at
468-69 (internal quotation marks omitted).
31
The Supreme Court
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offered many reasons for its conclusion, most of which related
to the fact that the California court’s interpretation could not
be justified in light of generally applicable law. 5
See id. at
468-71.
The Court began by considering the ordinary meaning of the
phrase
“law
of
your
state.”
The
Court
natural meaning is “valid state law.”
concluded
Id. at 469.
that
the
In fact, the
Court determined that it would not even be reasonable to read
“law of your state” to include state law that was invalid under
the Supremacy Clause.
not
found
any
See id.
contract
case
And the Court noted that it had
from
any
state
“that
interprets
similar language to refer to state laws authoritatively held to
be invalid.”
case
Id.; see id. at 470 (“[W]e can find no similar
interpreting
the
words
‘law
of
your
state’
to
include
invalid state laws.”).
The Court also noted that construing “law of your state” to
exclude
law
that
be
was
invalidated
contract
would
consistent
contract
interpretation.
after
with
See
5
id.
the
formation
applicable
at
469.
of
principles
The
the
of
Court
The Court also noted that particular language the Court of
Appeal used suggested that the court might have intended its
holding to be limited to the arbitration context.
See id. at
470.
32
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particularly
agreements,
Filed: 04/19/2016
cited
which
Pg: 33 of 37
California
are
caselaw
construed
holding
according
to
that
normal
plea
contract
principles, are “‘deemed to incorporate and contemplate not only
the existing law but the reserve power of the state to amend the
law or enact additional laws.’”
Id. (quoting Doe v. Harris, 302
P.3d 598, 601-02 (Cal. 2013)).
And the Court referred to the
fact that “judicial construction of a statute ordinarily applies
retroactively.”
Id. (citing Rivers v. Roadway Express, Inc.,
511 U.S. 298, 312-13 (1994)).
In
my
view,
the
reasons
cited
by
the
Supreme
Court
in
DIRECTV also demonstrate that the phrase “Virginia Law” in the
Plan
before
us
here
Virginia statutes.
ordinary
meaning
cannot
be
construed
to
include
invalid
Under the Supreme Court’s reasoning, the
of
the
phrase
“Virginia
Law”
is
“valid
[Virginia] law,” and a reading that included invalid Virginia
statutes
original).
would
not
even
be
reasonable.
Id.
(emphasis
in
Additionally, the contract and statutory principles
that the DIRECTV Court relied on provide further support this
interpretation,
just
as
similar interpretation. 6
they
supported
the
DIRECTV
Court’s
See id.
6
Similar to the California caselaw cited by the Supreme
Court in DIRECTV, see id. at 469, the Supreme Court of Virginia
has held, in the context of interpreting a plea agreement, that
“contracts are deemed to implicitly incorporate the existing law
and the reserved power of the state to amend the law or enact
(Continued)
33
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Because I would construe “Virginia Law” to encompass only
valid Virginia law, I would read “Virginia Law” – and Virginia
Code § 24.2-509(A) in particular – to “permit[]” the Committee
to choose the nomination method in the event that § 24.2-509(B)
is
unconstitutional.
See
Va.
Code
§ 24.2-509(A)
(“The
duly
constituted authorities of the political party for the district,
county, city, or town in which any other office is to be filled
shall have the right to determine the method by which a party
nomination for that office shall be made.”).
And because I
would read the Plan as authorizing the Committee to choose the
nominating
method
unconstitutional,
I
in
do
the
not
event
agree
that
with
the
§ 24.2-509(B)
district
is
court’s
conclusion that it is the Plan itself that is the cause of the
parties’
alleged
redressability. 7
injuries
and
an
obstacle
preventing
Accordingly, I would hold that the district
additional laws for the public welfare.”
743 S.E.2d 146, 150 (Va. 2013).
7
Smith v. Commonwealth,
The fact that no court has determined prior to the
initiation of this case that § 24.2-509(B) is unconstitutional
has no bearing on standing.
Under DIRECTV’s reasoning,
“Virginia Law” excludes invalid Virginia statutes, including
unconstitutional statutes whose unconstitutionality had not yet
been recognized by any court at the time the Plan was adopted.
See DIRECTV, 136 S. Ct. at 466-71 (holding that the “law of your
state” excluded state laws that, after the formation of the
contract at issue – and after the initiation of the lawsuit at
issue – were held by the Supreme Court to be preempted by the
FAA). Consequently, if the Committee and Moxley are correct on
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34
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court erred in concluding that the Committee and Moxley failed
to establish standing under our Marshall decision.
B.
Defendants contend that, even if the Committee and Moxley
would otherwise have established standing, they failed to do so
because
Virginia
particular
could
nomination
Constitution.
have
enacted
method
legislation
without
running
requiring
afoul
of
a
the
See Appellees’ brief at 29-32 (citing Miller v.
Brown, 503 F.3d 360, 368 (4th Cir. 2007)).
However, even if
Defendants are correct that Virginia could have constitutionally
enacted
such
legislation,
this
argument
at
most
goes
to
the
merits of the claims asserted in this case; it does not relate
to standing.
See Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2663-65 (2015) (Arizona
legislature
challenged
legislature
of
its
statute
on
constitutional
basis
that
authority
it
deprived
to
initiate
redistricting; although Court concluded that legislature did not
have the authority it asserted, that point related only to the
the
merits
of
their
claims
that
§ 24.2-509(B)
is
unconstitutional, then they are also correct, under the
reasoning of DIRECTV, that “Virginia Law” does not include
§ 24.2-509(B) and that the Plan authorizes the Committee to
choose the nomination method.
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merits of the legislature’s claim, not to its standing to assert
the claim).
The Committee alleged injuries from operation of the Act in
that it prevents it from selecting the nomination method for the
General
Assembly
position
at
issue
here.
Moxley
alleged
injuries from the Act in that it was allowing his opponent to
choose
the
nominating
ensure his reelection.
mechanism
that
he
believed
would
best
Both sought to have the Act declared
void so that the Committee’s designation of a convention would
be
upheld
and
their
injuries
could
be
avoided.
These
allegations were sufficient to establish that the dispute would
“be resolved . . . in a concrete factual context conducive to a
realistic appreciation of the consequences of judicial action,”
as
the
standing
doctrine
requires.
Valley
Forge
Christian
College v. Americans United for Separation of Church & State,
Inc.,
454
district
U.S.
court
464,
472
erred
in
(1982).
dismissing
I
therefore
this
case
believe
for
lack
the
of
standing. 8
8
The fact that Senator Hanger defeated Moxley in the
primary long ago does not moot this appeal because the issues
presented fit into the “capable of repetition, yet evading
review” exception to the mootness doctrine.
See FEC v. Wisc.
Right to Life, Inc., 551 U.S. 449, 462 (2007).
Although this
exception applies only if the issue is capable of repetition in
regard
to
the
same
plaintiff,
see
Stop
Reckless
Econ.
Instability Caused by Democrats v. FEC, 814 F.3d 221, 229-32
(4th Cir. 2016), there is a reasonable expectation that each of
(Continued)
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II.
In
sum,
dismissing
jurisdiction.
I
would
the
reverse
the
complaints
I
for
respectfully
district
lack
dissent
of
from
court’s
judgment
subject-matter
the
majority’s
contrary decision.
the plaintiffs and intervenor Moxley will be subject to the same
action again in future elections, see North Carolina Right to
Life Comm. Fund for Indep. Political Expenditures v. Leake, 524
F.3d 427, 435 (4th Cir. 2008) (holding that constitutional
challenges to system of public financing for judicial elections,
brought by two political committees and a candidate, were not
mooted by the election even though neither the political
committees nor the candidate had specifically alleged an intent
to participate in future election cycles; concluding that “there
is a reasonable expectation that the challenged provisions will
be applied against the plaintiffs again during future election
cycles”; rejecting “the argument that an ex-candidate’s claims
may be ‘capable of repetition yet evading review’ only if the
ex-candidate specifically alleges an intent to run again in a
future election”).
37
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