Culinary Workers Union, Local 226 v. Frankie Sue Del Papa, in Her Official Capacity as Attorney General for the State of Nevada, Nevada Bankers Association, Intervenor
Docket: 96-16407
Court: Court of Appeals for the Ninth Circuit; December 26, 1999; Federal Appellate Court
In Culinary Workers Union, Local 226 v. Frankie Sue Del Papa, the Ninth Circuit Court of Appeals addressed a First Amendment challenge under 42 U.S.C. § 1983 regarding a Nevada statute that criminalizes making derogatory statements about banks. The Culinary Workers Union, involved in a labor dispute, distributed handbills criticizing the Commercial Bank of Nevada, prompting a letter from the Attorney General’s Office warning that their actions violated Nevada Revised Statute § 668.105. This statute penalizes willful and malicious derogatory statements about a bank's financial condition. The Attorney General claimed she lacked the authority to enforce the statute, leading the district court to dismiss the case. However, the appellate court found that there was sufficient controversy for jurisdiction, reversing the district court’s decision and remanding the case for further proceedings. The court emphasized the potential chilling effect on free speech caused by the Attorney General's warning.
The union ceased distribution of a handbill after receiving a letter and subsequently filed an action for injunctive and declaratory relief against the attorney general, claiming NRS § 668.105 unconstitutionally restricts free speech, both on its face and in its application. The attorney general opposed the union's request for a temporary restraining order (TRO), asserting that enforcing the law was necessary to prevent potential harm to the bank, its customers, and the public, and that the union's flyer contained malicious false statements. However, the representations in the handbill were true at the time of distribution. The district court granted the TRO, citing irreparable injury to the union's First Amendment rights if the statute were enforced. Following this, the attorney general moved to dismiss the case, arguing that the lawsuit lacked a case or controversy because only local prosecutors can initiate criminal prosecutions under the statute. The district court agreed, concluding that the attorney general lacked specific authority to prosecute the union, thus failing to meet the requirements of an Article III case or controversy. The excerpt highlights the constitutional requirement that federal courts only adjudicate actual cases or controversies, which necessitates that a plaintiff suffer an actual or threatened injury that is traceable to the challenged action and likely to be redressed by a favorable ruling. The excerpt also outlines that, for declaratory and injunctive relief, a "substantial controversy" with immediacy is required, reflecting the doctrines of standing, mootness, and ripeness, though it focuses specifically on the justiciability of the attorney general's claim of lacking authority.
The parties dispute whether the attorney general has the authority to prosecute violations of NRS § 668.105. The attorney general claims no statutory basis exists for initiating such a criminal prosecution, while the union argues that the Commissioner of Financial Institutions, who enforces state banking laws under NRS § 658.105, must act through the attorney general as per NRS § 228.110. The union believes that the attorney general's powers under NRS § 228.120(3) allow her to prosecute violations of any state law, which could include the alleged violations of NRS § 668.105.
Despite the interesting legal question, the court finds it unnecessary to resolve the authority issue. According to the precedent set in Babbitt v. United Farm Workers Nat'l Union, plaintiffs do not need to risk actual prosecution to challenge the constitutionality of a criminal statute. They only need to show they are threatened with prosecution or that prosecution is likely. In this case, the attorney general's explicit threat of prosecution against the union for distributing a handbill creates a tangible fear of criminal charges, which is not merely speculative. Additionally, the attorney general's threat to involve local authorities in prosecution reinforces the existence of a "case or controversy," indicating intent to enforce the statute.
The district court's conclusion that no justiciable claim exists was based on precedent from Southern Pacific Transportation Co. v. Brown, where it was determined that a state attorney general's advisory role did not create a justiciable controversy absent an actual threat of enforcement. In that case, the plaintiff did not receive any enforcement threats. Similarly, in Snoeck v. Brussa, the court noted that a generalized duty to enforce state law does not expose officials to suit without a specific enforcement threat. The excerpt emphasizes that any perceived threat by the Commission was purely speculative, but distinguishes this from the current situation where the attorney general explicitly threatened the union with enforcement of NRS § 668.105, a threat that persisted until a Temporary Restraining Order (TRO) was granted. The state’s argument that the attorney general's later disavowal of authority negated the threat's credibility is rejected; past threats remain significant as per Socialist Workers Party v. Leahy, which maintained that credible threats persist despite disavowals.
Additionally, the argument that the attorney general's letter was not a "genuine threat" because it did not "chill" the union's First Amendment rights is also dismissed. The union ceased distribution of the challenged handbill upon receiving the letter, which indicates more than a mere subjective chilling effect. In First Amendment cases, it is not required for a plaintiff to risk prosecution by defying state law, and the law encourages pre-enforcement challenges to potentially unconstitutional statutes.
Finally, regarding the Eleventh Amendment, it was clarified that while it prohibits federal suits against a state by its citizens absent consent, exceptions exist for actions seeking prospective relief from unconstitutional statutes. The Eleventh Amendment does not obstruct the union's request for declaratory and injunctive relief, provided the state official sued has a connection to the enforcement of the statute to avoid being treated as merely a representative of the state.
A sufficient "connection" exists between the attorney general's actions and the enforcement of the contested statute, supporting the existence of a case and controversy. The attorney general's communications with the union, which included threats to enforce the statute or refer the matter to local prosecutors, establish this connection. The district court erred in dismissing the union's lawsuit due to a perceived lack of controversy, and the Eleventh Amendment does not bar the action. The court may need to assess if a controversy still exists but should not dismiss the case outright. The majority refrains from addressing the constitutional merits of NRS § 668.105, acknowledging the need for further factual development.
In dissent, Circuit Judge Brunetti argues that the trial court's dismissal was correct, asserting that the attorney general lacks the authority to prosecute under NRS § 668.105. The dissent contends that the attorney general's threat to take action does not constitute a justiciable controversy because she cannot initiate prosecutions independently of local district attorneys, as outlined in Nevada law (NRS 173.045 and related statutes).
NRS 228.120(3) empowers the attorney general to conduct prosecutions for state law violations but does not allow for initiating prosecutions. The primary authority for enforcing statutes without explicit provision for the attorney general’s initiation resides with local enforcement agencies. NRS 228.170(1) has been interpreted to permit the attorney general to initiate civil actions only. Consequently, the attorney general lacks authority to initiate criminal prosecutions against Local 226 for violations of NRS § 668.105, which does not address the attorney general's prosecutorial powers.
Local 226 does not cite any statutes granting the attorney general the ability to initiate prosecutions for violations of section 668.105 or other banking laws. They reference NRS § 228.110, 658.105, and 658.195(1) for the attorney general's authority to act on behalf of the Banking Commissioner. NRS § 658.105 assigns enforcement duties to the Banking Commissioner, who can sue and prosecute under NRS § 658.195(1) but is limited to civil actions. Local 226 contends that the term "prosecute" refers to criminal prosecutions and argues that since the Banking Commissioner cannot initiate a criminal prosecution, he must rely on the attorney general’s prosecutorial power.
Local 226 further argues that the attorney general, as the sole legal representative for state executive agencies under NRS § 228.110, must fulfill the enforcement duties of the Banking Commissioner. A ruling that denies the attorney general the authority to prosecute violations of section 668.105 would hinder the Banking Commissioner’s ability to meet his statutory obligations under NRS 658.105 and 658.195(1).
The district court found no basis for Local 226's assertion that the term "prosecute" in section 658.195(1) requires the Banking Commissioner to initiate criminal enforcement actions for banking law violations. The court clarified that while the commissioner can enforce banking statutes through civil actions, there is no authority or precedent indicating that the commissioner has the power to initiate criminal proceedings. Furthermore, even if the commissioner possessed such authority, it does not imply that the attorney general automatically shares it.
The court emphasized that interpreting "prosecute" as a duty to initiate criminal actions conflicts with the statutory framework which designates control over criminal matters to district attorneys, with the attorney general only intervening under specific statutes. The court noted that section 228.110 is concerned solely with civil matters, aimed at preventing unnecessary state expenditures by prioritizing the attorney general's legal services for state agencies.
Additionally, the court referenced other statutes allowing agency commissioners to refer criminal violations to local district attorneys, reinforcing that such referrals do not violate section 228.110. Lastly, the court dismissed Local 226's argument regarding the attorney general's prosecutorial authority, stating that NRS § 658.105 and 658.195(1) do not explicitly grant such power, contrasting them with other statutes that do confer prosecutorial jurisdiction. Thus, the court declined to infer any prosecutorial authority for the attorney general as suggested by Local 226.
To establish a "case" or "controversy" under Article III of the U.S. Constitution, a plaintiff must demonstrate a present injury that is traceable to the challenged action and likely to be addressed by a favorable court ruling. In declaratory judgment cases, a plaintiff must show a genuine threat of enforcement of an allegedly unconstitutional law, without needing to face arrest or prosecution first. However, claims based on imaginary or speculative fears of prosecution are not valid.
In the context of the attorney general's authority, the primary issue is whether the attorney general's threats, lacking enforcement power, create a justiciable controversy. The district court found no justiciable claim based on the attorney general's threats to refer violations to local prosecutors. This finding was contested by the majority. The district court's reasoning drew parallels to the Southern Pacific case, where the Oregon Attorney General’s non-binding advice to district attorneys did not create a traceable constitutional injury. Similarly, under Nevada law, district attorneys have exclusive control over criminal prosecutions unless specifically empowered otherwise. Thus, the attorney general's referral alone does not imply a likelihood of prosecution, leading to the conclusion that the district court correctly determined the absence of a justiciable controversy.
The district court did not address whether the attorney general's threat to take "appropriate action" constituted a genuine threat of prosecution that chilled Local 226's First Amendment rights. In Snoeck v. Brussa, the plaintiffs claimed that the Nevada Commission on Judicial Discipline's complaint form chilled their rights due to a warning about potential contempt proceedings, but the court ruled that any threat was merely speculative, as only the Nevada Supreme Court could initiate contempt actions. Similarly, despite the attorney general's vague threat in this case, it is characterized as speculative since only local prosecutors hold the authority to initiate criminal prosecutions under the relevant statute.
Local 226's reference to Steffel v. Thompson is not applicable, as the plaintiff in Steffel had received concrete threats of imminent arrest, supported by actual arrests of associates. In contrast, Local 226 did not cease all hand billing after the attorney general's letter; it stopped distributing one handbill but quickly began distributing a different one, indicating that the attorney general's threat did not have a chilling effect similar to that experienced in Steffel. The record does not substantiate that Local 226's First Amendment rights were actually chilled by the threat regarding its handbilling activities about Commercial Bank.
The district court's dismissal of Local 226's action against the attorney general is upheld based on the Eleventh Amendment's immunity. For a state official to be sued under Ex Parte Young's exception, there must be a direct connection to the enforcement of the statute in question. A general duty to enforce state law is insufficient. The attorney general, under Nevada law, lacks the authority to initiate criminal prosecutions for violations of NRS § 668.105 and only has general supervisory power over local district attorneys, who hold sole prosecutorial responsibility. Therefore, the attorney general's mere threat of enforcement does not establish the required connection to overcome Eleventh Amendment immunity. The judgment of the district court should be affirmed. Additionally, it is noted that, in extreme situations, a judge may compel the attorney general to prosecute if a district attorney refuses, but there is no evidence supporting Local 226's claim of not distributing handbills after the TRO was dissolved.
