Gerald Geier, et al v. Missouri Ethics Commission, et al

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Bobby E. Shepherd and Stephanie M. Rose AUTHORING JUDGE:Bobby E. Shepherd (PUBLISHED); Granting [4002275-2] motion to supplement record filed by Mr. Hugh Athelstan Eastwood. [4037550] [12-3853]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3853
___________________________
Gerald Geier; Stop Now!
lllllllllllllllllllll Plaintiffs - Appellants
v.
Missouri Ethics Commission; Dennis Rose; Vernon Dawdy; John Munich; Louis
J. Leonatti; William Stoltz; Charles E. Weedman
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: April 9, 2013
Filed: May 21, 2013
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Before COLLOTON and SHEPHERD, Circuit Judges, and ROSE,1 District Judge.
____________
SHEPHERD, Circuit Judge.
Seeking to enjoin a state enforcement proceeding, Gerald Geier and Stop Now!
(collectively, “Stop Now!”) filed this lawsuit in federal court against the Missouri

1

The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa, sitting by designation.

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Ethics Commission and several of its members (collectively, the “Commission”). The
district court2 abstained under the Younger doctrine and subsequently denied Stop
Now!’s motion to amend its complaint as moot, having declined jurisdiction over the
case. We affirm.
I.
Gerald Geier and others formed Stop Now!, a political action committee, in
1991 to oppose tax increases in the Kansas City area. By 2002, Stop Now! was no
longer active but continued filing statements of limited activity until 2011. On April
2, 2012, the Commission brought an enforcement action against Stop Now!, alleging
that it had failed to file ongoing reports and other required documentation. In
response, Stop Now! brought this action in federal court against the Commission on
November 20, 2012. Stop Now! alleged that the Commission’s enforcement action
violated the First Amendment and sought a preliminary injunction, a permanent
injunction, and a declaration that Geier had no personal liability.
On November 30, 2012, the district court held a telephonic hearing and sua
sponte raised the issue of whether it should abstain under the Younger doctrine.3
2

The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
3

The Younger abstention doctrine stems from the Supreme Court’s decision in
Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Supreme Court “held that a
federal court should not enjoin a pending state criminal proceeding except in the very
unusual situation that an injunction is necessary to prevent great and immediate
irreparable injury.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477
U.S. 619, 626 (1986). The Court’s decision was based “on equitable principles and
on the more vital consideration of the proper respect for the fundamental role of
States in our federal system.” Id. (internal citation and quotation marks omitted).
Although Younger was a state criminal proceeding, the Supreme Court later extended
the doctrine’s application to civil proceedings and state administrative proceedings.
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After hearing arguments from both sides, the district court announced during the
hearing its decision to abstain. It found that the Missouri state proceedings, through
its administrative and appellate process, provided an adequate forum for Stop Now!
to raise constitutional issues.
On December 3, 2012, Stop Now! filed a motion seeking to amend its
complaint to include factual allegations that Geier’s political speech had been chilled
as a result of the Commission’s proceedings. In its motion, Stop Now! acknowledged
that it “underst[ood] that the court has declined to accept jurisdiction under the
Younger Abstention doctrine,” but that “[t]he purpose of this Motion is to ensure that
the record is complete in the Eighth Circuit.” The district court then issued an order
on December 5, 2012, explaining that “[p]er the Court’s oral order during the hearing
of 11/30/12, the Court abstains under the Younger doctrine and the case is
dismissed.” As a result, Stop Now!’s motion to file an amended complaint was
“dismissed as moot.”
II.
Stop Now! raises two issues on appeal. First, it contends that the district court
erred by refusing to allow it to amend its complaint. Second, Stop Now! argues the
district court abused its discretion by abstaining under the Younger doctrine.
A.
Stop Now! contends that the district court erred by denying its motion to amend
because it was entitled to amend its pleading “as a matter of course” within 21 days

See id. at 627.

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after serving its complaint, citing Rule 15 (a)(1)(A) of the Federal Rules of Civil
Procedure. We review the district court’s denial of the motion to amend a complaint
for an abuse of discretion and issues regarding an amendment’s futility de novo.
United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822 (8th Cir.
2009). The Federal Rules of Civil Procedure allow a party to “amend its pleading
once as a matter of course within . . . 21 days after serving it.” Fed. R. Civ. P.
15(a)(1)(A). And while amendments to a party’s complaint should be liberally
granted, “different considerations apply to motions filed after dismissal.” Dorn v.
State Bank of Stella, 767 F.2d 442, 443 (8th Cir. 1985) (per curiam).
We have previously held that after a court dismisses a complaint, a party’s right
to amend under Rule 15 terminates. Id. (citing Czeremcha v. Int’l Ass’n of
Machinists & Aerospace Workers, AFL-CIO, 724 F.2d 1552, 1556 n.6 (11th Cir.
1984)). But although a party may have lost its right to amend, it could still file a
motion for leave to amend its complaint. Id. Granting such a motion for leave to
amend is inappropriate, however, if the district court has “indicated either that no
amendment is possible or that dismissal of the complaint also constitutes dismissal
of the action.” Id. (quoting Czeremcha, 724 F.2d at 1556 n.6).
This
distinction—between a dismissal of a complaint and a dismissal of an entire
action—depends on whether the court intended the dismissal to be a final, appealable
order. See Czeremcha, 724 F.3d at 1555-56. “[D]ismissing a complaint constitutes
dismissal of the action when it states or clearly indicates that no amendment is
possible—e.g., when the complaint is dismissed with prejudice or with express denial
of leave to amend—or when circumstances otherwise indicate that no amendment is
possible—e.g., when the limitations period has expired.” Whitaker v. City of
Houston, Tex., 963 F.2d 831, 835 (5th Cir. 1992). If, however, the “order does not
expressly or by clear implication dismiss the action,” under Czeremcha, the order
only dismissed the complaint, and thus the party may amend under Rule 15(a) with

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the court’s permission. Id. With these principles in mind, we turn to the procedural
history in this case.
Stop Now!’s attorney indicated during the telephonic hearing on November 30,
2012, that he intended to file an amended complaint alleging that his client’s speech
was chilled. At oral argument, counsel conceded that this statement alone did not
constitute an oral motion to amend under Rule 15.4 Thus, during the November 30,
2012 hearing, before Stop Now! moved to amend the complaint, the district court
abstained under Younger. Then, on December 3, 2012, Stop Now! filed a motion to
amend its complaint to include the allegation that Geier’s political speech had been
chilled as a result of the Commission’s enforcement proceeding. Two days later, on
December 5, 2012, the district court issued an order clarifying that its decision to
abstain constituted dismissal of the entire action. “Where Younger abstention is
otherwise appropriate, the district court generally must dismiss the action, not stay it
pending final resolution of the state-court proceedings.” Tony Alamo Christian
Ministries v. Selig, 664 F.3d 1245, 1251 (8th Cir. 2012). As a result, because the
entire case had been dismissed before Stop Now! moved to amend, granting leave to
amend would have been improper. See Dorn, 767 F.2d at 443 (holding that granting
leave to amend is inappropriate when district court dismisses entire action).
Even assuming that the action was not completely dismissed until the district
court filed its December 5, 2012 order, we conclude that any error was harmless

4

Counsel is correct. This court has held that even though motions to amend are
to be given freely under Rule 15, “[t]he particularity requirement of Rule 7(b) is met
by submitting a proposed amendment with the motion for leave to amend the
complaint.” Wolgin v. Simon, 722 F.2d 389, 394 (8th Cir. 1983); see also Clayton
v. White Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir. 1985) (“It is clear, however, that
in order to preserve the right to amend the complaint, a party must submit the
proposed amendment along with its motion.”).

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because Stop Now!’s proposed amendment to its complaint was futile. A district
court’s denial of leave to amend a complaint may be justified if the amendment would
be futile. Crest Const. II, Inc. v. Doe, 660 F.3d 346, 358 (8th Cir. 2011). And while
Rule 15 is broadly construed to allow amendments, district courts need not “indulge
in futile gestures.” Holloway v. Dobbs, 715 F.2d 390, 392-93 (8th Cir. 1983) (per
curiam). Here, the substance of the amendment merely incorporated a factual
argument alleging that Geier’s speech was chilled. The district court had already
considered this argument during the hearing before making its ruling on the
applicability of the Younger abstention doctrine. Therefore, we conclude Stop
Now!’s attempt to amend the complaint was futile.
B.
Next, Stop Now! contends that the district court misapplied the Younger
abstention doctrine because Missouri’s statutory scheme is patently unconstitutional
based on Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d 864 (8th Cir.
2012) (en banc). “We review the district court’s decision to abstain under Younger
for abuse of discretion.” Night Clubs, Inc. v. City of Fort Smith, Ark., 163 F.3d 475,
479 (8th Cir. 1998). A district court abuses its discretion when it makes an error of
law. See United States v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002); Plouffe v.
Ligon, 606 F.3d 890, 894-95 (8th Cir. 2010) (Colloton, J., concurring).
The Younger abstention doctrine provides that courts should not exercise
federal jurisdiction where “(1) there is an ongoing state proceeding, (2) which
implicates important state interests, and (3) there is an adequate opportunity to raise
any relevant federal questions in the state proceeding.” Plouffe, 606 F.3d at 892.
Stop Now! concedes that the first two prongs are satisfied. As a result, we must
determine whether the third prong is satisfied or, alternatively, whether an exception
applies. We discuss these two issues in turn.

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First, Stop Now! carries the burden of demonstrating the Missouri proceedings
do not provide an “adequate opportunity” for it to raise its constitutional claims. See
Plouffe, 606 F.3d at 893. On appeal, Stop Now! does not explain why the Missouri
administrative system would not allow it to adequately raise constitutional claims.5
In fact, Missouri allows for judicial review of final administrative decisions. See Mo.
Rev. Stat. § 536.100 (providing that litigant who exhausted administrative remedies
is entitled to judicial review); see also Missouri Ethics Comm’n v. Cornford, 955
S.W.2d 32, 33 (Mo. Ct. App. 1997) (reviewing Administrative Hearing Commission
decision adverse to the Missouri Ethics Commission). Further, Missouri’s statutory
framework provides that the scope of judicial review includes analyzing whether the
agency’s action constituted a “violation of constitutional provisions.” Mo. Rev. Stat.
§ 536.140(2)(1). Therefore, we conclude Stop Now! has failed to establish that it
will not have an adequate opportunity to raise its constitutional claims through the
Missouri administrative process; consequently, Younger abstention was appropriate
unless and exception applies.
Second, Stop Now! alternatively argues that this case is an exception to the
Younger abstention doctrine because it concerns the First Amendment. In Younger,
the Supreme Court suggested that an exception, making abstention improper, might
exist if a state’s statute is “flagrantly and patently violative of express constitutional
prohibitions in every clause, sentence and paragraph, and in whatever manner and
against whomever an effort might be made to apply it.” Younger v. Harris, 401 U.S.

5

Indeed, Stop Now! has actually raised its constitutional challenges before the
Missouri Administrative Hearing Commission. While this satisfies the requirement
that a plaintiff “must at least attempt to raise its federal claims in state court before
we will consider its argument that it is impossible to do so,” Night Clubs, 163 F.3d
at 481 (internal quotation marks and citation omitted), it does not follow that, as a
result, abstention is inappropriate, as Stop Now! argues.

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37, 53-54 (1971) (internal quotation marks omitted). This is an “extremely narrow
exception.” Plouffe, 606 F.3d at 894.
According to Stop Now!, the Missouri statutory scheme governing political
action committees is unconstitutional in light of our recent decision in Minnesota
Citizens. Additionally, Stop Now! contends that the district court should have
refused to abstain because the statute was plainly unconstitutional, citing City of
Houston, Tex. v. Hill, 482 U.S. 451, 468 (1987). Relying on the Supreme Court’s
language in Hill that it was “particularly reluctant to abstain in cases involving facial
challenges based on the First Amendment,” 482 U.S. at 467, Stop Now! argues that
abstention is inappropriate when First Amendment issues are implicated. Stop
Now!’s reliance on Minnesota Citizens and Hill is misplaced.
Minnesota Citizens addressed Minnesota subjecting “political funds to the
same regulatory burdens as PACs.” 692 F.3d at 872. Stop Now!, however, is a PAC
and not the same type of small association or partnership the court considered in
Minnesota Citizens. Therefore, this court’s holding in Minnesota Citizens,
concerning specific provisions of Minnesota’s campaign finance statutes, does not
make Missouri’s separate statutory scheme “flagrantly and patently violative of
express constitutional prohibitions in every clause, sentence and paragraph.” See
Younger, 401 U.S. at 53 (internal quotation marks omitted).

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Stop Now! also relies heavily on Hill, but Hill was a Pullman6 abstention case
that neither addressed Younger nor concerned an ongoing state enforcement
proceeding. See Hill, 482 U.S. at 455. Moreover, Hill does not preclude the
application of Younger abstention whenever a First Amendment concern is raised.
Merely invoking the First Amendment does not automatically exclude the application
of the Younger abstention doctrine. To the contrary, this court has applied Younger
abstention in cases raising First Amendment issues. See Tony Alamo Christian
Ministries v. Selig, 664 F.3d 1245, 1250 (8th Cir. 2012) (First Amendment challenge
alleging state’s case plan for children violated Free Exercise Clause); Night Clubs,
163 F.3d at 481 (First Amendment challenge to exotic dancing restriction). Aside
from alleging that Geier’s speech has been chilled, Stop Now! has not explained how
the Missouri statute is unconstitutional in “every clause, sentence and paragraph,” and
thus it cannot meet this “extremely narrow exception.” See Plouffe, 606 F.3d at 894
(internal quotation marks omitted).
In sum, Stop Now! has failed to carry its burden of proving that it cannot
adequately raise its constitutional issues in Missouri’s administrative proceedings or
courts, nor can it meet the narrow exception recognized by Younger. Therefore, we
affirm the district court’s decision to abstain.

6

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). Pullman
abstention was developed to avoid federal courts incorrectly deciding unsettled statelaw questions which preceded federal constitutional issues. Arizonans for Official
English v. Arizona, 520 U.S. 43, 76 (1997). To accomplish this, parties were remitted
to state courts to litigate their state-law issues, but could return to federal court to
adjudicate their federal-law claims if the resolution of the state-law issue “did not
prove dispositive of the case.” Id.

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III.
Based on the foregoing, we affirm.7
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7

Additionally, we grant Stop Now!’s motion to supplement the record.

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