UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

STUART L. STEIN, 

 Plaintiff - Appellant,

v.

STATE OF NEW MEXICO; BARBARA 

J. VIGIL, Chief Justice; PETRA JIMENEZ 

MAES, Justice; JUDITH K. 

NAKAMURA, Justice; EDWARD L. 

CHAVEZ, Justice; CHARLES W. 

DANIELS, Justice, 

 Defendants - Appellees.

No. 16-2114

(D.C. No. 1:15-CV-00776-WJ-KBM)

(D. N.M.)

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ORDER AND JUDGMENT*

_________________________________

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

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Stuart L. Stein, pro se, appeals from the district court’s order dismissing his 

complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

1

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

April 10, 2017

Elisabeth A. Shumaker

Clerk of Court
2

Mr. Stein is a disbarred lawyer who previously maintained an estate planning 

practice in New Mexico, which included guardianship and conservatorship cases. He 

filed suit seeking a declaration that two New Mexico statutes and a court rule

regarding the sealing of certain records in guardianship and conservatorship 

proceedings violated his First Amendment rights. In particular, Mr. Stein challenged

N.M. Stat. Ann. §§ 45-5-303(I) & 45-5-407(M) and N.M.R.A. 1-079(C). According 

to Mr. Stein, he also feared “prosecution” under 1-079(J), which provides that any 

person who knowingly discloses any material from a sealed record may be held in 

contempt of court. 

On April 29, 2016, the district court issued a memorandum opinion and order 

in which it dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(1) on the 

grounds that Mr. Stein lacked standing to assert his claims, and alternatively, that the 

 1 Mr. Stein also appeals from the district court’s denial of his amended motion 

for a preliminary injunction. Because we agree with the court that it lacked subject

matter jurisdiction, his appeal of this issue is moot. Also, Mr. Stein appeals the 

court’s denial of his motion to recuse, and asks this court to reassign the case on 

remand. See Aplt. Opening Br. at 46 (“The Court of Appeals should reverse the 

[order denying the motion to recuse] . . . and when returned to the District Court, 

instruct the clerk to assign the case to a District Judge who has never served in a New 

Mexico state judge position prior to elevation to the federal bench”). However, our 

conclusion that the court lacks subject matter jurisdiction also renders the recusal 

issue moot. Issues are moot where they do not pertain to or otherwise affect our 

decision to affirm the district court’s dismissal on the lack of subject matter 

jurisdiction. See Kaw Nation v. Springer, 341 F.3d 1186, 1187 (10th Cir. 2003)

(declining to decide issues that do not affect the outcome of a dispute); Tonkovich v. 

Kan. Bd. of Regents, 254 F.3d 941, 946 (10th Cir. 2001) (where this court affirms 

dismissal of the complaint, a motion to recuse on remand is moot). 
3

complaint failed to state claims pursuant to Fed. R. Civ. P. 12(b)(6). This appeal 

followed.

2

 

The purpose of Mr. Stein’s suit was “to show the abuse suffered by wards and 

their families under the current system and to seek changes to assure fairness for 

himself and his family should he be subject to a guardianship or conservatorship in 

the future.” Aplt. App. at 8. He claimed to have seen “activities in court on 

[guardianship and conservatorship] matters where Judges, attorneys, appointed 

guardians and conservators . . . acted against the best interests of the ward and his/her 

family and for their own best pecuniary or other interests and to cover up their own 

wrongful actions.” Id. But according to Mr. Stein, he was afraid to speak out for 

fear of being “subject to contempt.” Id. at 11. He also argued the need for unfettered 

access to all of the guardianship and conservatorship files in the New Mexico state 

courts to root out corruption in the system. 

The district court concluded that Mr. Stein lacked Article III standing because 

he had not suffered an injury in fact. We agree. 

To meet “the case-or-controversy requirement imposed by Article III of the 

Constitution,” Mr. Stein must have standing. Ward v. Utah, 321 F.3d 1263, 1266 

(10th Cir. 2003). Id. To meet this requirement, Mr. Stein “must demonstrate that 

 2 Mr. Stein also sought relief on Equal Protection grounds as well. But 

because he has not raised this argument on appeal, it is abandoned. See Tran v. Tr. of 

State Colleges in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in 

the opening brief are deemed abandoned or waived.” (internal quotation marks 

omitted)). 
4

(1) he . . . has suffered an injury in fact; (2) there is a causal connection between the 

injury and the conduct complained of; and (3) it is likely that the injury will be 

redressed by a favorable decision.” Id. (internal quotation marks omitted). “We 

review issues of standing de novo.” Id. (internal quotation marks omitted). 

“Because of the significance of First Amendment rights, the Supreme Court 

has enunciated other concerns that justify a lessening of prudential limitations on 

standing.” Id. (internal quotation marks omitted). Still, “[a] plaintiff [such as 

Mr. Stein who is] bringing a facial challenge to a statute on First Amendment 

grounds, . . . must nonetheless establish an injury-in-fact sufficient to satisfy Article 

III’s case-or-controversy requirement.” Id. at 1267. 

For Mr. Stein to establish an injury in fact, he must demonstrate the “invasion 

of a legally protected interest which is (a) concrete and particularized, and (b) actual 

or imminent, not conjectural of hypothetical.” ACLU of N.M. v. Santillanes, 546 

F.3d 1313, 1318 (10th Cir. 2008) (internal quotation marks omitted). We agree with 

the district court that Mr. Stein failed to demonstrate a right of unfettered access to 

the guardianship and conservatorship files, or any threat of immediate harm. As

such, Mr. Stein lacks standing.

3

 3 Because Mr. Stein’s lack of standing is fatal to his case, we need not address 

the district court’s conclusion regarding his failure to state a claim for relief. 
5

The judgment of the district court is affirmed.

Entered for the Court

Mary Beck Briscoe

Circuit Judge