The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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PLATINUM SPORTS LTD, doing business as
Plaintiff-Appellant, --
Allstars, a Michigan Corporation,
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Nos. 12-1811/1812
,
>
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v.
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Defendants-Appellees. N-
RICK SNYDER and BILL SCHUETTE,
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:11-cv-14635—John Corbett O’Meara, District Judge.
Decided and Filed: May 13, 2013
Before: DAUGHTREY, SUTTON and KETHLEDGE, Circuit Judges.
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COUNSEL
ON BRIEF: Timothy Patrick Murphy, Saint Clair Shores, Michigan, for Appellant.
Ann Sherman, Margaret A. Nelson, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellees.
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OPINION
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SUTTON, Circuit Judge. In 2011, the Michigan legislature enacted two laws.
One barred sexually oriented businesses from displaying signs on the premises that
contained more than “words or numbers.” Mich. Comp. Laws § 125.2833. The other
imposed similar restrictions on off-site billboards. Mich. Comp. Laws § 252.318a. Two
businesses affected by the legislation sued Governor Rick Snyder (and in one lawsuit
also named Attorney General Bill Schuette), challenging the laws on First Amendment
grounds. See Compl. at 18, Top Flight Entm’t, Ltd. v. Snyder, No. 5:11-cv-13133 (E.D.
1
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Mich. July 20, 2011); Amend. Compl. at 14, 16, ABCDE Operating, LLC v. Snyder, No.
5:11-cv-11426 (E.D. Mich. May 6, 2011). The district court preliminarily enjoined
enforcement of the laws. In response, the Governor and the Attorney General stipulated
to a final judgment declaring both laws facially unconstitutional and permanently
enjoining their enforcement. Top Flight, No. 5:11-cv-13133 (Aug. 26, 2011), ECF No.
10; ABCDE, No. 5:11-cv-11426 (Aug. 25, 2011), ECF No. 25. That, one might have
thought, was the end of that.
Yet two months later, on October 21, 2011, Platinum Sports, represented by the
same attorney who had won the first set of lawsuits, sued the same defendants,
challenging the same laws (and one other largely irrelevant provision) on the same free-
speech grounds. Whether Platinum Sports wished to seize potential defeat from the jaws
of established victory or hoped to pile victory (and potential § 1988 fees) on top of
victory is not clear. What is clear is that the federal courts have no authority to resolve
this “dispute.” The hardest question is which Article III defect to invoke. We choose
lack of standing, lack in particular of a cognizable injury, and on that ground affirm the
district court’s dismissal of the case.
A party who brings a facial challenge to a law “seeks to vindicate not only his
own rights, but those of others who may also be adversely impacted by the statute in
question.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A successful facial
challenge invalidates a law in all of its applications, “forbidd[ing]” any enforcement of
it. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The upshot is that a State may
not enforce such a law against anyone.
In this instance, the district court entered a stipulated final judgment declaring
the two laws facially unconstitutional and enjoining the Governor and Attorney General
from enforcing either law. Nor is there any reason to fear the Governor or Attorney
General will sidestep these orders. They agreed to their entry. If any doubt remained
about the point, the Governor and Attorney General eliminated it in this case. In their
appellate brief, they have recognized the “provisions to be unconstitutional,” Br. at 22,
and have promised that they “will not be enforced,” id. at 16. Anything in this world is
Nos. 12-1811/1812 Platinum Sports v. Snyder Page 3
possible, we suppose. But the legal possibility that this Governor or this Attorney
General will enforce these laws in the face of these injunctions is: zero.
Where does that leave Platinum Sports? In good shape, so far as its authority to
erect signs and billboards goes; in bad shape, so far as this lawsuit goes. A claimant
does not present the kind of “case or controversy” required by Article III of the United
States Constitution unless it suffers an injury caused by the defendant and redressable
by a court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). A cognizable
injury must be “actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal
quotation marks omitted).
As the district court concluded and as we must agree, Platinum Sports has no
cognizable theory of injury. It offers no explanation how it was injured before the laws
were preliminarily enjoined, and it cannot show any injury going forward in view of the
injunctions.
Every effort by Platinum Sports to prove otherwise misses the net and the rim.
It claims that its sign and billboard speech will be “chilled” by the continued appearance
of the statutes “on the books.” Reply Br. at 1. The word “chill,” to be sure, often
warrants judicial attention, particularly when it appears within 25 words of “speech” and
“First Amendment.” But not here: whatever chilling effect the on-the-books existence
of these laws might have in the abstract is removed by the concrete injunction preventing
their enforcement.
Otherwise, every sexually oriented business would have a cognizable injury until
it filed and won what would become a parade of lawsuits. If one stipulated injunction
barring enforcement of a law does not remove the “chilling” effect of an (invalid) law
still “on the books,” it is hard to see why a second, third and fourth injunction would
eliminate this kind of injury. It would not. Yet this theory of injury looks at the problem
through the wrong end of the lens. Even in the First Amendment context, the question
is whether the claimant has an “actual and well-founded fear that the law will be
enforced against them.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393
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(1988). Absent some “credible threat” of enforcement, no injury exists. Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
White v. United States, 601 F.3d 545 (6th Cir. 2010), offers a useful illustration.
Several bird breeders challenged the validity of the Animal Welfare Act, 7 U.S.C.
§§ 2131–56, which bans “animal fighting venture[s],” such as cockfighting, id. § 2156.
Worried that prosecutors might mistake their lawful breeding activities for illegal ones,
they claimed that the law hampered their rights of association and travel. White,
601 F.3d at 554. Any such risk, we concluded, was too remote to establish a cognizable
Article III injury. The claim “that they might incur injury in the future if the law is not
properly followed” rested on speculation and conjecture, id., precluding a “well-founded
fear” of enforcement, Am. Booksellers, 484 U.S. at 393. See also Kilroy v. Husted, No.
12-3590 (6th Cir. Oct. 1, 2012) (order dismissing First Amendment challenge due to
prior ruling that the challenged statute was unconstitutional).
The same is true here. Platinum Sports has nothing to fear but, to borrow a
phrase, fear itself, and that assuredly does not amount to a “well-founded fear” of
enforcement. On this record, Platinum Sports has no reason to withhold its speech and
thus no injury.
Shifting gears from the threat of enforcement by executive branch officials and
from the chilling effect of laws on the books, Platinum Sports argues that the current
legislature, more precisely one legislator, poses a risk. The sponsor of the laws, State
Senator Tupac Hunter, it is true, sought public support for enforcing the statutes.
Senator Hunter invited the public to sign an online petition showing “that you support
[the two laws] and that you expect local law enforcement officials to enforce the laws
and fine those businesses that fail to remove or change their signs.” R.10-7 (12-1812).
At one point, that effort might have meant something. By the time the district court had
entered a stipulated injunction against enforcement of the laws, however, that effort had
come to a halt. Quite notably, Platinum Sports does not argue that Senator Hunter has
urged any state official to defy the injunction, whether through an online petition or
otherwise.
Nos. 12-1811/1812 Platinum Sports v. Snyder Page 5
So far, we have focused on the threat of future injury—through future
enforcement of the laws. And with good reason: that is the focus of Platinum Sports’s
complaint and the focus of the theory of injury laid out in its briefs below and on appeal.
Of course, the invalidation of a statute would not erase an injury that had occurred before
the court’s injunction. That sort of money-damages claim generally could proceed
beyond the pleading stage. But Platinum Sports never mentions or develops a
retroactive theory of damages. It mentions damages in both complaints but, as the bulk
of its complaints and as its appellate and district court briefs confirm, that theory relates
only to the supposed loss of income caused by the ongoing “chilling” effect of having
the laws on the books. As we have shown, any supposed loss of income suffered from
the company’s advertisement decisions after the injunctions would be of its own
making—and not attributable to the State. By focusing on these latter arguments and
ignoring a damages theory based on any effect of the law before the injunctions,
Platinum Sports has forfeited a retroactive damages claim. See Conlin v. Mortg. Elec.
Registration Sys., Inc., __F.3d__, 2013 WL 1442263, at *3 n.5 (6th Cir. 2013); Indah
v. SEC, 661 F.3d 914, 924 (6th Cir. 2011); Bennett v. MIS Corp., 607 F.3d 1076, 1083
n.5 (6th Cir. 2010).
Even if that were not the case, even if Platinum Sports had not forfeited a
retroactive theory of damages, the complaint would face a similar fate—a properly
granted motion to dismiss. Neither defendant has ever enforced or threatened to enforce
the challenged statutes, and Platinum Sports accordingly cannot point to a constitutional
violation that would support a claim. Surely, as a result, the defendants would be
entitled to qualified immunity.
None of Platinum Sports’s other arguments establish standing. In this setting,
claim preclusion, contrary to Platinum Sports’s submission, has nothing to do with
Article III injury. The question is not whether claim preclusion does, or does not,
prohibit the Governor and Attorney General from enforcing the laws against Platinum
Sports. All that matters is that the district court’s orders declared the laws facially
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unconstitutional, necessarily prohibiting their enforcement against anyone, including the
plaintiff.
Also irrelevant is Platinum Sports’s ingenuity in coming up with another
potential reason to invalidate the laws: the Equal Protection Clause. Once a court
declares a law facially unconstitutional and enjoins its enforcement by the State, any risk
of injury from enforcement of the law ends. An Article III injury does not arise from the
possibility that the law contains still another constitutional flaw. If anything, an
additional theory of invalidity undermines Platinum Sports’s position, as the second
theory offers more, as opposed to fewer, reasons not to fear enforcement of the law.
Also beside the point is Platinum Sports’s claim that the billboard statute,
together with a separate permitting statute, Mich. Comp. Laws § 252.306, operates as
an impermissible prior restraint on speech. Platinum Sports’s only complaint about the
permitting statute is that it implements the billboard law. In view of the earlier
decisions, there is nothing to implement and accordingly no potential injury caused by
this separate provision. Just as an unchallenged provision of an Act that defines its terms
would not create a cognizable risk of injury after the operative provisions were
invalidated, so the same is true of the permitting provision.
Platinum Sports adds that Attorney General Bill Schuette was not a party to one
of the two prior cases and neither were any local prosecutors. That changes nothing.
The “executive power” of Michigan is “vested in the governor,” Mich. Const. art. V, § 1,
and the Attorney General, as the top legal official in the State, is bound by a permanent
injunction against his top client: the Governor. As for local prosecutors, they answer to
the Attorney General, who is obligated to “supervise the work of . . . prosecuting
attorneys.” Mich. Comp. Laws § 14.30. Any effort by a prosecutor at this point to
enforce the statutes—keeping in mind that no one has threatened any such thing—would
be ultra vires. All of this explains why Platinum Sports did not name any prosecutors
in this case but sued only the Governor and the Attorney General.
For these reasons, we affirm the dismissal of this case.