* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 17 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANIEL J. PEARLMAN, Plaintiff-Appellant,

v. REBECCA VIGIL-GIRON, Secretary of State, State of New Mexico, Defendant-Appellee. No. 02-2191 (District of New Mexico) (D.C. No. CIV-02-686-JP)

ORDER AND JUDGMENT *

Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.

I. BACKGROUND Plaintiff Daniel J. Pearlman, acting pro se , filed this 42 U.S.C. § 1983 action in federal district court alleging that Defe ndant Rebecca Vigil-Giron, New-2-

Mexico Secretary of State, would violate his First and Fourteenth Amendment rights under the United States Constitution and his rights under the Constitution of the State of New Mexico by distributing a genera l election ballot on November 5, 2002 containing printed candidate names. Pearlm an sought a writ of mandamus ordering Vigil-Giron to expunge all printe d candidate names and provide a space for voters to write-in the name of any candidate for all elective offices on the November 5, 2002 general election ba llot and all subsequent election ballots. The district court sua sponte dismissed Pearlman’s complaint on the grounds that the Eleventh Amendment deprived the co urt of federal subject matter jurisdiction. The district court reasoned that the Eleventh Amendment bars suits by citizens against states in federal district court unless: 1) the state consents to suit; 2) Congress expressly abrogates the states’ s overeign immunity; or 3) the citizen sues a state official pursuant to Ex Parte Young , 209 U.S. 123 (1908). The district court concluded that New Mexico did not co nsent to be sued by a citizen challenging the constitutionality of the New Mexico Election Code, and Congress did not abrogate the states’ sovereign immunity by enacting 42 U.S.C. § 1983. The district court also concluded that while Pearlm an sued a state official and sought injunctive relief, the Ex Parte Youngdoctrine did not apply because Pearlman’s suit implicated New Mexico’s “special so vereignty interests” in-3-

controlling the management and conduct of elections . Finally, the district court concluded that the issuance of the writ of mandamus would constitute a form of relief against the state that is barred under the E leventh Amendment. Pearlman appeals the dismissal of his suit, arguing his claim is not barred under the Eleventh Amendment because it is assertedagainst a state official for prospective injunctive relief pursuant to the Ex Parte Youngdoctrine. After Pearlman filed this appeal, Vigil-Giron approved th e contested election ballot, and the general election occurred on November 5, 20 02. Vigil-Giron argues that because the general election ballots were distribut ed and the November 5, 2002 election occurred, this appeal is moot. This courtexercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms , concluding that while this case fits the exception to mootness for conduct “capable of repet ition, yet evading review,” Pearlman’s claim is barred under the Eleventh Amend ment because it is frivolous and, therefore, does not fall within the Ex Parte Youngdoctrine. II. DISCUSSION A. Mootness Vigil-Giron argues that this case is moot and thus fails to present an actual controversy because the challenged election ballots were issued and the general election occurred on November 5, 2002. Federal cou rts may adjudicate only actual controversies. Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990);-4-

Fischbach v. New Mexico Activities Ass’n , 38 F.3d 1159, 1160 (10th Cir. 1994). Pursuant to Article III of the United States Consti tution, the controversy must exist at all stages of appellate review. United States v. Seminole Nation , 321 F.3d 939, 943 (10th Cir. 2002); Fischbach , 38 F.3d at 1160. An action is moot, and this court lacks jurisdiction to adjudicate the matter, once such controversy ceases to exist. Fischbach , 38 F.3d at 1160. “An exception to the mootness d octrine, however, arises when the case is ‘capable of repeti tion, yet evading review.’” Seminole Nation , 321 F.3d at 943 (citation omitted). This excepti on requires that: (1) the duration of the challenged conduct is “too short to be fully litigated prior to its cessation or expiration,” and (2) there is “ a reasonable expectation that the same complaining party [will] be subjected to the s ame action again.” Gannett Co., Inc. v. DePasquale , 443 U.S. 368, 377 (1979) (quotation omitted); Grant v. Meyer , 828 F.2d 1446, 1449 (10th Cir. 1987) (en banc). While the challenged election ballots were issued a nd the election occurred prior to appeal, this case fits the narrow exceptio n to the mootness doctrine for conduct capable of repetition, yet evading review. Ballot production and certification procedures are short in duration. See N.M. Stat. Ann. § 1-10-4 (noting that not less than forty-nine days before the primary election and fiftythree days before the general election, the ballot shall be prepared and transmitted to the secretary of state); see Moore v. Ogilvie , 394 U.S. 814, 816 (1969) (finding-5-

that while the challenged election was over, the ca se was not moot because the controversy was capable of repetition, yet evading review); Storer v. Brown , 415 U.S. 724, 737 n.8 (1974) (same). Therefore, becaus e Pearlman appeals the production and certification of the New Mexico gene ral election ballot, the challenged action is limited in duration and will n ot, unless an exception to mootness is found, remain justiciable throughout ap peal. “To constitute an exception to the mootness doctrin e, it is not enough that an issue will escape review because of limited duration.” Seminole Nation , 321 F.3d at 944. There must also be “a reasonable expe ctation that the same complaining party . . . [will] be subjected to the same action again” for the mootness exception to apply. Id . (quotation omitted); Grant , 828 F.2d at 1449. Pearlman challenges Vigil-Giron’s production and ce rtification of the New Mexico ballot as a voter. Further, the New Mexico statutes regarding ballot production and ballot certification continue to rem ain in effect. Therefore, it is likely that the same dispute will occur between Pea rlman and Vigil-Giron. Grant , 828 F.2d at 1449 (holding that because Colorado lawcontinues to prohibit paying signature circulators in a ballot initiative and th e initiative sought by the plaintiffs had not yet been enacted, the dispute between the p arties was capable of repetition).-6-

Vigil-Giron, however, argues that under this court’ s decision in Thournir v. Buchanan , 710 F.2d 1461 (10th Cir. 1983), this case does no t fit the exception to mootness for conduct capable of repetition, yet eva ding review. In Thournir , the plaintiff filed a 42 U.S.C. § 1983 action, alleging that a Colorado election law was unconstitutional. Id . at 1462. The plaintiff moved for a preliminary injunction to have her name placed on the election ballot. Id . The district court denied the plaintiff’s motion for preliminary injun ction and the plaintiff appealed. Id . This court in Thournir held that the plaintiff’s appeal of the denial of a preliminary injunction was moot because the electio n had already taken place. Id

. at 1463-65. In dismissing the plaintiff’s appeal a s moot, the Thournircourt emphasized the fact that the district court had notaddressed the merits of the plaintiff’s claims and had only addressed plaintiff’s motion for preliminary injunction. Id . at 1464. Further, the Thournircourt reasoned that because the merits of the plaintiff’s claims could still be add ressed by the district court, it was inappropriate to address them on appeal of the deni al of preliminary injunction. Id. at 1465. Unlike the plaintiff in Thournir , Pearlman is appealing the dismissal of his claim and not the denial of a motion for pre liminary injunction. Accordingly, Thourniris easily distinguished from this case. Therefore, while the challenged ballots were certif ied and distributed, and the election occurred prior to this appeal, “this c ourt’s jurisdiction is not defeated-7-

because this appeal fits the exception to mootness for conduct capable of repetition, yet evading review.” Seminole Nation , 321 F.3d at 944 (quotation omitted); see Storer , 415 U.S. at 737 n.8 (“The ‘capable of repetition, yet evading review’ doctrine, in the context of election cases, is appropriate when there are ‘as applied’ challenges as well as in the more typi cal case involving only facial attacks.”). B. Eleventh Amendment This court reviews the district court’s decision to dismiss Pearlman’s claims as barred under the Eleventh Amendment de novo

. Robinson v. Kansas , 295 F.3d 1183, 1188 (10th Cir. 2002). The Eleventh Amendment generally operates as a bar to suits brought against a state by its own citizen in federal distr ict court. Elephant Butte Irrigation Dist. v. Dept. of the Interior , 160 F.3d 602, 607 (10th Cir. 1998). “[T]he rule of state sovereign immunity[, however,] is not absolute.” Robinson , 295 F.3d at 1188. Consequently, the Eleventh Amend ment bar is inapplicable if: 1) the state consents to suit; 2) Congress expressl y abrogates the states’ immunity; or 3) the citizen sues a state official pursuant to Ex Parte Young , 209 U.S. 123 (1908). See J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1286 (10th Cir. 1999). Pearlman argues that the Eleventh Amendment does no t bar his suit because he is suing Vigil-Giron pursuant to Ex Parte Young

.-8-

In determining whether a suit is governed by the Ex Parte Youngdoctrine, this court applies a four-part test. Robinson , 295 F.3d at 1191. First, we must determine whether this is an action against the state officials or against the State of New Mexico itself; second, whether the alleged conduct of the state officials constitu tes a violation of federal law . . .; third, whether the relief Plaint iff[] seek[s] is permissible prospective relief or is it analogous t o a retroactive award of damages impacting the state treasury; and finally, whether the suit rises to the level of implicating ‘special sovereignty interests.’ Elephant Butte , 160 F.3d at 609 (citation omitted); see Robinson , 295 F.3d at 1191 (applying the Elephant Butte test to plaintiff’s Fourteenth Amendment due process and equal protection challenges brought aga inst a state official). Pearlman brought this suit against Vigil-Giron in h er official capacity as New Mexico Secretary of State, alleging that Vigil- Giron would violate his First and Fourteenth Amendment rights by failing to expun ge all printed candidate names from the November 5, 2002 general election ba llot. Therefore, to the extent that Pearlman alleged a violation of federal law against a state official, he satisfied the first part of the Elephant Butte test. See Lewis v. New Mexico Dep’t of Health , 261 F.3d 970, 976 (10th Cir. 2001) (reasoning that “in allegedly violating federal law, the officials are stripped o f their state authority and the Eleventh Amendment will not protect them from suit” ). Pearlman, however, failed to assert a non-frivolous violation of federal law. “[T]o avoid dismissal based on Eleventh Amendment i mmunity,” a plaintiff must-9-

allege that the state official “act[ed] in violat[i on] of federal law and therefore outside any delegated authority.” Id . While the determination of whether the plaintiff alleged a violation of federal law “affec ts both the initial immunity inquiry and the court’s ultimate decision on the me rits,” the court does not consider the merits at the immunity stage. Id . Rather, the court applies “the limited jurisdictional standard used to assess whether a claim sufficiently confers subject matter jurisdiction, asking only whether th e claim is wholly insubstantial and frivolous.” Id . (quotation omitted). A claim is insubstantial an d frivolous “if it is obviously without merit, or foreclosed by pri or authoritative decisions.” Junior Chamber of Commerce, of Rochester, Inc. v. U nited States Jaycees , 495 F.2d 883, 886 (10th Cir. 1974) (citation omitted). Pearlman argues his complaint alleged that Vigil-Gi ron violated his First and Fourteenth Amendment rights under the United St ates Constitution by: (1) limiting his ability to freely express his politica l views by writing-in any candidate, and (2) distributing a ballot with print ed candidate names. While Pearlman’s complaint references prior cases in whic h he alleged that Vigil-Giron and her predecessor’s failure to permit write-in vo ting constituted a violation of his constitutional rights, such conduct is not alle ged as the basis of Pearlman’s claim in this complaint . The only conduct alleged in the complaint to be in violation of Pearlman’s constitutional rights is Vi gil-Giron’s failure to expunge-10-

all printed names from the general election ballot. The limited nature of Pearlman’s allegations is reinforced by the fact th at the only relief sought in the complaint is the expungement of all printed names o n the general election ballot and on all future ballots. Therefore, Pearlman’s c omplaint only contains a claim against Vigil-Giron for her failure to expunge printed candidate names from the New Mexico election ballot. In Burdick v. Takushi , the Supreme Court upheld Hawaii election laws which prohibited write-in voting, reasoning that th e ballot access laws were constitutional and the burden on the plaintiff’s ri ght to vote was counterbalanced by Hawaii’s interest in supporting the ballot acces s scheme. 504 U.S. 428, 437- 39 (1992). Inherent in that decision is the reject ion of any constitutional right to a ballot constructed solely for write-in voting. T herefore, because there is no recognized constitutional right to a ballot free of printed candidate names, Pearlman’s claim is frivolous and is barred under the Eleventh Amendment. See Elephant Butte , 160 F.3d at 610-11.-11-

III. CONCLUSION For the foregoing reasons, the district court’s dis missal of Pearlman’s suit as barred under the Eleventh Amendment is AFFIRMED

.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge