MARIAN OLSON, d/b/a BANNACK PUBLISHING CO., Plaintiff - Appellant,
THE CITY OF GOLDEN, a Colorado Home Rule Municipal Corporation, Defendant-Appellee
(D.C. No. 1:07-CV-01851-MSK-KMT) (D. Colo.)
Before MURPHY, EBEL, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
David M. Ebel Circuit Judge.
Plaintiff-Appellant Marian Olson appeals the district court's denial of her facial and as-applied constitutional challenges to campaign finance regulations implemented by Defendant-Appellee the City of Golden, Colorado (the "City"). See Golden Municipal Code § 1.05. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we VACATE, as an advisory opinion on a moot issue, the portion of the district court's decision denying on its merits Olson's challenge to the City's application of the campaign finance regulations to the October 2005 issue of Olson's newsletter, the Voice of Golden, and we REMAND that claim to the district court with instructions to dismiss it as moot. But, for the reasons discussed below, many of which are the same as those given by the district court, we AFFIRM the district court's denial of all of Olson's other claims.
The opinion below contains a thorough rendition of the facts, see Olson v. City of Golden, 814 F.Supp.2d 1123, 1126-28 (D. Colo. 2011), so we provide only a brief summary here. Appellant Olson, d/b/a Bannack Publishing Company, publishes the Voice of Golden (the "Voice"), an "alternative newspaper" that Olson distributes free of charge to around 7, 300 residences within the city limits of Golden. According to Olson, the Voice encourages Golden residents to "pay attention to" and "get involved" in local issues affecting the community, and it provides a forum for viewpoints underserved by Golden's mainstream papers. Aplt. App. at 1926.
Around 2005, the City passed Golden Municipal Code § 1.05, entitled "Local Campaign Finance – Reporting Requirements, " (the "Ordinance") which requires, among other things, that "[a]ny person making non-committee expenditures totaling more than $50.00 . . . deliver notice in writing of such expenditures to the City Clerk not later than three business days after the day that such funds are expended or services or materials provided, " Golden Municipal Code § 1.05.060, or be subject to a $50 per diem fine, Golden Municipal Code § 1.05.090(8) (collectively, the "Disclosure Requirements"). The Golden Code also contains a provision, apart from the Ordinance but applicable thereto, which allows the City to recover costs and fees associated with abating violations of the Ordinance (the "Fee-shifting Provision"). Golden Municipal Code § 1.01.150.
Several days after Olson published the October 2005 issue of the Voice, she received notice from a member of the Golden City Council that the contents of that issue triggered the Ordinance's Disclosure Requirements. In response, Olson submitted a report containing all the statutorily required information; however, a short time later, Olson withdrew her report based on her belief that the contents of the October 2005 issue did not trigger the Disclosure Requirements. Pursuant to the procedure prescribed by the Ordinance, see Golden Municipal Code § 1.05.120, the City attempted to resolve the dispute with Olson first by agreement, but when it was unable to do so, it referred Olson's case to a special prosecutor, who then filed suit against Olson in municipal court. The parties eventually settled the municipal case out of court, after Olson agreed to report the expenses she incurred in connection with the October 2005 issue of the Voice, and the City agreed to dismiss its claim to collect attorney fees and costs from Olson.
Olson then filed suit in federal court under 42 U.S.C. § 1983, challenging the constitutionality of the Ordinance on its face and as applied to her. She argued primarily that (1) the Ordinance was overbroad and vague because it defined "expenditure" as speech "related to the support or opposition of any candidate, ballot issue, ballot question or issue" (the "related-to phrase"); and (2) several features of the Ordinance—including its Fee-shifting Provision and lack of any exemption for the press—unduly burdened and chilled speech in violation of the First Amendment.
With Olson's federal suit still pending, the City amended the Ordinance in 2010 (the "2010 Amendment"), replacing the challenged related-to phrase in the definition of "expenditure" with language capturing only speech "expressly advocating the election or defeat of any candidate, ballot issue, ballot question, or issue" (the "express-advocacy phrase"); the 2010 Amendment also added a provision exempting the press from compliance with the Disclosure Requirements. In supplemental briefing, Golden argued to the district court that the 2010 Amendment mooted Olson's facial claims. Without moving to amend her complaint or the pretrial order governing the dispute, Olson responded that the new reporting requirements remained constitutionally overbroad and the new press exemption was insufficient because it did not exempt the Voice from the Ordinance's Disclosure Requirements, and therefore that her facial challenge and claim for injunctive relief remained live for the court's consideration. The district court dismissed Olson's facial challenges to the Ordinance as moot and denied her as-applied challenges to the Ordinance on their merits.
STANDARD OF REVIEW
This case was submitted to the district court on the parties' briefs without oral argument, on a stipulated record, and pursuant to a pretrial order agreed upon by the parties. The parties agree that the district court's order sufficiently resembles a grant of summary judgment that we apply the relevant legal standards de novo. See N.M. Youth Organized v. Herrera, 611 F.3d 669, 675 (10th Cir. 2010). We review the district court's construction of the pretrial order for an abuse of discretion. Trujillo v. Uniroyal Corp., 608 F.2d 815, 817 (10th Cir. 1979).
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Because this case implicates the First Amendment, we have an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Golan v. Holder, 609 F.3d ...