Unofficial Op. PR Apr. Reluctant either to execute or to abandon its contemplated deployment of the information gleaned from DBR, and seeing no other way of resolving the issue, the Association sued. Invoking 42 U. Attorney General Pine moved to dismiss the complaint. He contended that it showed neither a sufficiently definite plan to engage in conduct that would transgress section nor a sufficiently imminent threat of prosecution.
The Association objected to this motion and in due course filed a cross-motion for summary judgment. In opposition, the Attorney General confined his argument to the threshold question of justiciability: he embellished both of the contentions delineated in the motion to dismiss, suggested that the court should defer to his interpretation of the challenged law, and alleged a lack of state action sufficient to support a claim under 42 U. The Association filed a rejoinder, which included a supporting affidavit.
The matter lay fallow for several months. Attorney General Pine did not seek reelection. In November , the voters chose Sheldon Whitehouse to succeed him. Whitehouse took office on January 5, , and was substituted as the named defendant in this suit. See Fed. In June, the district court granted the Association's motion for summary judgment. This appeal followed. Up to that point, Attorney General Whitehouse had not expressed an opinion as to either the constitutionality of section or its applicability to the Association's proposed course of action.
We must therefore accept that determination unless we find that the Attorney General is correct in his thesis that the district court should not have heard the case. Violet , F. That case specifically rejected so extreme a view. See id. The Attorney General grounds this position mainly on a theory that the Association lacked "standing" to pursue its quest for declaratory and injunctive relief. But he uses this term loosely, in a way that brings to mind a panoply of related concepts: standing, ripeness, and mootness. We address these justiciability concerns separately and then treat the Attorney General's assertion that the lower court lacked subject-matter jurisdiction because the operation of section does not involve state action.
Consistent with the summary judgment standard, we afford plenary review. See Coyne , 53 F. Inasmuch as the Attorney General couches his justiciability concerns in terms of standing, we start there. Like all justiciability doctrines, standing is a necessary concomitant to the court's power to adjudicate a case.
See Warth v. Seldin , U. AVX Corp. Despite its importance, the doctrine remains "a morass of imprecision. Gardner , 99 F. We know, however, that standing encompasses both "constitutional requirements and prudential considerations," Valley Forge Christian College v. Here, the Attorney General frames his objection in constitutional terms and, in all events, it is unnecessary to address separately prudential considerations. See Berner v. Delahanty , F. The burden of establishing standing rests with the party who invokes federal jurisdiction. See Bennett v. Spear , U. Accordingly, the Association must show that 1 it personally has suffered some actual or threatened injury, 2 the injury fairly can be traced to the challenged conduct, and 3 a favorable decision likely will redress it.
See Valley Forge , U. DiStefano , 4 F. Neither the second nor the third of these showings has independent significance in this instance. To the extent that the Association had suffered a cognizable injury at the time of filing — a matter which we discuss below — that injury can be traced directly to the looming enforcement of section and can be fully redressed by declaratory and injunctive relief. Thus, the lens of our inquiry narrows to the existence vel non of an actual or threatened injury.
Although inquiries of this sort are both context-contingent and situation-specific, the case law furnishes some guideposts. Charles , U. Moreover, a private party need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights. Thompson , U. Because it ordinarily will be too late to obtain a federal forum once the state has initiated criminal proceedings, see Younger v. Harris , U. See ACLU v. Florida Bar , F. The threat, however, must be credible.
Therein lies the rub. In a pre-enforcement challenge to a statute carrying criminal penalties, standing exists when "the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [the] statute, and there exists a credible threat of prosecution. In practice, it is often difficult to distinguish between fears that are chimerical and those that are realistic. The best that we have been able to do is to insist that, in these purlieus, standing requires an "objectively reasonable" fear of prosecution.
Tatum , U. Determining objective reasonableness demands a frank consideration of the totality of the circumstances, including the nature of the conduct that a particular statute proscribes. Camilo-Robles v. Zapata , F. Here, the Association intends to solicit new members an activity protected by the First Amendment, see Innovative Database Sys.
Morales , F. So, too, the proscription element, because the plain language of section pretermits commercial solicitation. Thus, the pivotal question reduces to whether the Association faced a credible threat of prosecution when it filed suit. Our search for an answer takes place against a background understanding that when First Amendment values are at risk, courts must be especially sensitive to the danger of self-censorship. See Virginia v. American Booksellers Ass'n , U. Keene , U. We reiterate only the bottom line: "when dealing with pre-enforcement challenges to recently enacted or, at least, non-moribund statutes that facially restrict expressive activity by the class to which the plaintiff belongs, courts will assume a credible threat of prosecution in the absence of compelling contrary evidence.
Bartlett , F. May 18, No. CFTC , F. State Bar of Ga. Several factors indicate a credible threat of prosecution here. Section is regulatory in nature, prohibits precisely the conduct that the Association wishes to undertake, and sets severe sanctions for noncompliance.
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Although the Attorney General questions the second of these assumptions, there is simply no plausible way to read the statutory text so that it exonerates the Association's proposed solicitation. This conclusion is buttressed by the circumstances. For one thing, the Association was specifically informed about the existence of section when it obtained the names of real estate licensees from DBR.
The clear implication of this direct monition, particularly when coupled with the unambiguous language of the statute itself, was that the commercial use of these records was foreclosed and that transgressions would not go unpunished. For another thing, the Attorney General had issued no statement interpreting the statute to mean anything other than what its plain language portends. To the contrary, in response to a request from Rhode Island College a few years previously, the Attorney General had opined that although the college could not condition the release of records upon recipients' certifying that they would not use the records to solicit for commercial purposes, it could require recipients to acknowledge their awareness of the commercial use prohibition contained in section The precise wording of this portion of the opinion is revealing.
After reprinting section in full, the Attorney General states that "[i]f the College or any other individual entity learns that the information is in fact being used in contravention of the Act, the College may then notify the Attorney General, who will then take the appropriate course of action as provided for in Section of the Act. This statement sent a clear message that, in April of , the Attorney General deemed section to be alive and well. Thus, the Attorney General, far from eschewing enforcement, placed an imprimatur upon the provision barring the use of public records for commercial solicitation.
To sum up, by obtaining the names of new licensees from DBR, the Association took a significant first step along a path blocked by the statutory proscription. Its interest was manifest and the parameters of the activity that it proposed to undertake were discrete and well-defined.
Inasmuch as the statute appeared to cover that activity, we believe it was reasonable for the Association to infer under all the circumstances that a real possibility of prosecution awaited if it decided to proceed. This is no hypothetical case; the Association had standing when it filed suit because a sufficiently imminent threat of injury loomed. For this reason, the cases relied upon by the Attorney General, all of which involved either plaintiffs who were unlikely to engage in the proscribed activity, see, e.
Zwickler , U. Michaelson , F. Defenders of Wildlife , U. McAdory , U. We add a coda. In resisting this conclusion, the Attorney General relies heavily on the fact that the state has never pursued criminal charges under section His argument has two flaws. First, the record contains no realistic basis for a suggestion that the statutory provision, enacted only twenty years ago, has fallen into desuetude.
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Second, predicting the future from the past is perilous business. There are a minimum of three possible explanations for a history of nonenforcement: a statutory prohibition may have proven to be an effective deterrent, or the proscribed behavior may be difficult to detect, or the state may have decided not to enforce the statute. The threat of future prosecution varies depending on which of these theories most likely accounts for the historical pattern. We consider the possibilities in reverse order. Given the Attorney General's advisory opinion to Rhode Island College and the warning the Association received from DBR, it hardly can be said that the state had disavowed enforcement of section By like token, there is nothing in the record to suggest that commercial solicitation somehow flies below law enforcement radar.
Here, then, the first explanation seems by far the most plausible, especially since the Association provides uncontradicted affidavit support for the proposition that section acts as a deterrent. In view of the pellucid language of the statute and the warnings that it would be enforced, it is not illogical to assume that this phenomenon probably accounts for the absence of prior prosecutions. In all events, the Supreme Court repeatedly has found standing to mount pre-enforcement challenges to laws that had never been enforced.
See, e. Bolton , U. We emulate these examples. It would be little short of perverse to deny a party standing because the statute she challenges is so potent that no one dares violate it, especially when the result is widespread self-censorship. See American Booksellers , U. The Attorney General warns that by finding justiciability here, we will be inviting savants to scour the statute books in search of obscure provisions that may successfully be challenged, thus generating hefty fees under 42 U.
Although courts assuredly should guard against such bounty hunting, this case poses no such danger. The Association has articulated a clear and convincing reason for wanting to engage in a particular course of action which lies at the core of its mission as a membership organization, and section bars the way. If standing is a question of who, then ripeness — which shares standing's constitutional and prudential pedigree, see Public Serv.
Comm'n v. Wycoff Co. Its basic function is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. Gardner , U. To determine whether a case is ripe for review, a federal court must evaluate the fitness of the issue presented and the hardship that withholding immediate judicial consideration will work. Thus, the plaintiff must adduce facts sufficient to establish both fitness and hardship.
See Ernst Young v. Depositors Econ. Protection Corp. These concepts are related but distinct: fitness "typically involves subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed," whereas hardship "typically turns upon whether the challenged action creates a direct and immediate dilemma for the parties. As these preliminaries indicate, standing and ripeness may substantially overlap. The imbrication is nowhere more apparent than in pre-enforcement challenges.
The existence vel non of a credible threat of prosecution, critical to the injury-in-fact requirement for standing, factors into both branches of the ripeness equation. This is as it should be, for the reasonableness of the fear of enforcement is at the core of both standing and ripeness.
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Barr , F. Leahy , F. Despite this overlap, we assume, favorably to the Attorney General, that both standing and ripeness are contested here. To establish ripeness in a pre-enforcement context, a party must have concrete plans to engage immediately or nearly so in an arguably proscribed activity. This gives a precise shape to disobedience, posing a specific legal question fit for judicial review.
A showing that the challenged statute, fairly read, thwarts implementation of the plan adds the element of hardship. Applying these general precepts, we have little difficulty in concluding that the Association's claim was ripe when filed. This is not a case of statutory ambiguity but, rather, one that presents a single, purely legal question: Does Rhode Island's prohibition on using public records for commercial solicitation unconstitutionally restrain free expression?
The Association has described a concrete plan to recruit new members an activity plainly proscribed by the text of section — and no one has suggested any valid reason why resolution of the apparent conflict should await further factual development. Since the controversy was well-defined and amenable to complete and final resolution, it was fit for judicial review. Similarly, the Association refrained from carrying forward its plan because it reasonably feared prosecution under section The Association thus faced the "direct and immediate dilemma," W.
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CHAIN OF TITLE - The recorded history of matters which affect the title to a specific parcel of real property, such as ownership, encumbrances and liens, usually beginning with the original recorded source of the title. CLEAR TITLE - Title to property that is free from liens, defects or other encumbrances, except those which the buyer has agreed to accept, such as mortgage to be assumed, the ground lease of record, and the like; established title; title without clouds. CLOSING - The final stage of consummating a real estate transaction when the seller delivers title to the buyer, in exchange for the purchase price.
CLOSING STATEMENT - A detailed cash accounting of a real estate transaction prepared by an escrow officer or other person designated to process the mechanics of the sale, showing all cash that was received, all charges and credits which were made, and all cash that was paid out in the transaction; also called a settlement statement. The Code of Ethics of the National Association of Realtors, first written in , establishes the high standards of conduct for members of the Realtor community.
The collateral for a real estate mortgage loan is the mortgaged property itself, which has been hypothecated. COLOR OF TITLE - A condition which has the appearance of good title, but which in fact is not valid title, as where title is founded on some written document which on its face appears valid and effective, but which is actually invalid. A licensee found guilty of commingling can have the license suspended or revoked by the Real Estate Commission. COMMON LAW - That body of law which is based on usage, general acceptance, and custom, as manifested in decrees and judgments of the courts; judge-made law, as opposed to codified or statutory law.
In real estate, there are many different types of contracts, including listings, contracts of sale, options, mortgages, assignments, leases, deeds, escrow agreements, and loan commitments, among others.
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COVENANT - A written agreement or promise of two or more parties by which either pledges to perform or not to perform specified acts on a property, or which specifies certain uses or non-uses of the property. Conditions, on the other hand, are contingencies, qualifications or occurrences upon which an estate or property right would be gained or lost. DEED - A written instrument by which a property owner "grantor" transfers to a "grantee" an ownership in real property. The most common occurrence of default on the part of a buyer or lessee is non-payment of money.
DENSITY - A term, frequently used in connection with zoning requirements, which means the maximum number of building units per acre or the number of occupants or families per unit of land area acre, square mile, etc. DEPOSIT - Money offered by a prospective buyer as an indication of good faith in entering into a contract to purchase; earnest money; security for the buyer's performance of a contract. DEPTH TABLE - Tables of percentage designed to provide a uniform system of measuring the additional value to lots which accrues because of added depth, with the extra depth valued according to the added utility which it creates.
Descent literally means the hereditary succession of an heir to property of an ancestor who dies intestate. DOMICILE - The state where an individual has his true, fixed, permanent home and principal business establishment and to which place he has the intention of returning whenever he is absent. DOWER - The legal right or interest a wife acquires in property her husband held or acquired anytime during marriage.
DUE ON SALE CLAUSE - A form of acceleration clause found in some mortgages, especially savings and loan mortgages, requiring the mortgagor to pay off the mortgage debt when selling the secured property, thus resulting in automatic maturity of the note at the lender's option. DUPLEX - A structure that provides housing accommodations for two families by having separate entrances, kitchens, bedrooms, lanais, living rooms and bathrooms. A two-family dwelling. DURESS - Unlawful constraint or action exercised upon a person whereby he is forced to perform some act against his will.
A contract entered into under duress is void. EASEMENT IN GROSS - The limited right of one person to use another's land servient estate , which right is not created for the benefit of any land owned by the owner of the easement; that is, there is no dominant estate, as the easement attaches personally to the owner, not to the land.
A owner's equity is normally the monetary interest over and above the mortgage indebtedness.