2:14-cv-00441 #33

DAVID A. CORTMAN* [email protected] Georgia Bar No. 188810 KEVIN H. THERIOT* [email protected] Georgia Bar No. 373095 RORY T. GRAY* [email protected] Georgia Bar No. 880715 JEREMY D. TEDESCO* [email protected] Arizona Bar No. 023497 JONATHAN A. SCRUGGS* [email protected] Arizona Bar No. 030505 ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480)-444-0020 (480)-444-0028 Fax VIRGINIA MCNULTY ROBINSON [email protected] Idaho Bar No. 7380 ROBINSON LAW, PLLC 1910 Northwest Blvd., Suite 200 Coeur d’Alene, Idaho 83814 (208) 664-1139 (208) 664-1171 Fax Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

DONALD KNAPP; EVELYN KNAPP; HITCHING POST WEDDINGS, LLC, Plaintiff, v. CITY OF COEUR D'ALENE, Defendant.

CASE NO. 2:14-CV-00441-REB

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS

FIRST AMENDED COMPLAINT

ORAL ARGUMENT REQUESTED

Case 2:14-cv-00441-REB Document 33 Filed 04/23/15 Page 1 of 25

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

MOTION TO DISMISS STANDARD ........................................................................................... 7

ARGUMENT .................................................................................................................................. 8

I. The Knapps Have Article III Standing. .............................................................................. 8

A. The Knapps Have Suffered an Injury-in-Fact ......................................................... 8

1. Plaintiffs Have Violated § 9.56 and Have a Concrete Plan to Continue Doing So. ................................................................................... 10

2. The City Specifically Threatened to Enforce § 9.56 Against the Knapps Multiple Times, Both Pre- and Post-Litigation. .......................... 13

3. The Past Enforcement Factor Is Neutral In This Case. ............................. 15

B. The City’s Conduct Caused The Plaintiffs’ Injuries. ............................................ 16

C. Plaintiffs’ Injuries Will Be Redressed By A Favorable Ruling. ........................... 17

II. The Knapps’ Claims Are Ripe. ......................................................................................... 17

CONCLUSION ............................................................................................................................. 20


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TABLE OF AUTHORITIES

Cases:

American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501 (9th Cir. 1992) .............................................................................................16

Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002) .........................................................................................9, 17

Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009) ..................................................................................... 10-11

Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) ...............................................................................................9

Colwell v. Department of Health and Human Services, 558 F.3d 1112 (9th Cir. 2009) .....................................................................................18, 20

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) .............................................................................................................8

Kolender v. Lawson, 461 U.S. 352 (1983) ...........................................................................................................12

Lew v. Kona Hospital, 754 F.2d 1420 (9th Cir. 1985) .............................................................................................8

Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) ...............................................................................1, 9, 12, 16

Nampa Classical Academy v. Goesling, 714 F. Supp. 2d 1079 (D. Idaho 2010). ...............................................................................7

Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827 (9th Cir. 2014) .............................................................................................18

San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996) .........................................................................................9, 20

Steffel v. Thompson, 415 U.S. 452 (1974) .............................................................................................................2

Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...............................................................................10, 14, 19

Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 1999) ................................................................................... passim


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Wilbur v. Locke, 423 F. 3d 1101 (9th Cir. 2005) .................................................................................... 16-17

Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004). ..............................................................................................7

Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000) .............................................................................................16


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INTRODUCTION

For-profit businesses do not close for seven days for no reason, especially since doing so

imposes financial consequences on the owners and employees. Yet that is what Ministers

Donald and Evelyn Knapp did, shutting the doors to their business, The Hitching Post, for seven

days after same-sex marriage was legalized in Idaho. Plaintiffs’ First Amended Verified

Complaint (“Compl.”) ¶¶ 32, 372-378. They did so because the City of Coeur d’Alene had

repeatedly threatened them—publicly, privately, and specifically—that they would be in

violation of City Ordinance § 9.56 if they followed their religious convictions and declined to

perform a same-sex wedding ceremony at their for-profit wedding chapel should same-sex

marriage become legal. Id. ¶¶ 5-28. The City informed the Knapps that each day violating the

ordinance would subject them to up to 180 days imprisonment and $1,000 in fines. Id. ¶¶ 16-18.

As any citizen would, the Knapps took the City’s threats very seriously. Mrs. Knapp was

so certain they would be arrested that she packed her and her husband’s bags for jail. Compl. ¶

384. And Mr. Knapp suffered “severe stress and anxiety on account of his fear of being arrested

and prosecuted by the City,” which resulted in numerous sleepless nights. Id. ¶¶ 29-30.

The City cannot now disclaim responsibility for causing the Knapps to close The

Hitching Post given that, in addition to the threats of criminal liability, the City made clear

multiple times that it is The Hitching Post’s status as a for-profit corporation that makes them

subject to § 9.56. Compl. ¶¶ 36-38, 325-27, 341, 354, 359, 442. These threats clearly pass the

threshold of a “credible” rather than “imaginary or speculative” threat required for pre-

enforcement challenges. Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir. 2010).

The Knapps could not stay closed forever because The Hitching Post is how they make a

living. Compl. ¶¶ 380-81. They had already lost income. Id. ¶¶ 373, 378-79. So they reopened

on October 16, 2014, but “in a constant state of fear that they would be arrested and prosecuted if


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they declined to perform a same-sex ceremony.” Id. ¶¶ 383, 394. One day after reopening, the

Knapps received and declined a request to perform a same-sex wedding ceremony. Id. ¶¶ 385-

390. Their reasonable fear of prosecution became concrete as they found themselves in violation

of a law they had specifically been warned not to violate. So the Knapps exercised the only

remedy available to protect themselves: they immediately filed suit and a motion for a

temporary restraining order to avoid being prosecuted under § 9.56, id. ¶¶ 391-92, for “it is not

necessary [for a person to] 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.” Steffel v.

Thompson, 415 U.S. 452, 459 (1974).

Three days after filing this lawsuit, on October 20, 2014, the City Attorney responded

with a letter confirming that § 9.56 applies to the Knapps because they operate The Hitching

Post as a for-profit business. Compl. Ex. 1. Specifically, the letter repeatedly stated that the

ordinance applies to for-profit businesses, like The Hitching Post, and that it does not apply to

non-profit religious corporations:

• “If [the Knapps] are truly operating a not-for-profit religious corporation they

would be specifically exempted from the City’s anti-discrimination ordinance…”;

• “On the other hand, if they are providing services primarily or substantially for

profit and they discriminate in providing those services based on sexual

orientation then they would likely be in violation of the ordinance.”;

• “I want to be clear that absent a change in the City’s anti-discrimination

ordinance or other applicable state or federal law, the City will not prosecute

legitimate, nonprofit religious corporations, associations, educational

institutions, or societies….” Compl. Ex. 1 (emphasis added).


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The City Attorney also indicated that he had “reviewed the 63 page complaint and the

attached exhibits,” id., which verify under oath that The Hitching Post is, and always has been, a

for-profit corporation that offers its services for profit. Since they operate a for-profit, limited

liability company, id. ¶¶ 143-146, they are thus subject to § 9.56 according to the repeated and

unequivocal statements in the letter (and those made prior to the lawsuit being filed as well) that

§ 9.56 applies to for-profit corporations.

A public and media firestorm ensued. Compl. ¶¶ 450-57. In response, the City issued a

second letter on October 23, 2014, in which the City stated, for the very first time, that the

Hitching Post is exempt from the ordinance. Id. ¶¶ 458-460 & Ex. 9.

The question to be resolved in relation to Defendant’s motion is thus whether a city that

specifically threatens—before and after litigation commences—to enforce a criminal law whose

penalties include fines and jail time against a person and causes that person to incur damages by

attempting to avoid violating the ordinance, escape all responsibility by later stating—after

intense public scrutiny, criticism, and legal action—that it will not enforce the ordinance?

The answer must be “no.” The harm that the City has caused does not simply go away

because it has flip-flopped as a litigation tactic. Nor does it cure the language in the challenged

ordinance that is unclear enough to allow such a transparent change in position.

BACKGROUND

In addition to the facts cited in the Introduction, Plaintiffs provide the following timeline,

which summarizes the key facts related to this Court’s subject matter jurisdiction, with each

instance of a specific threat of enforcement shaded in gray (citations are to the Complaint.):

May 13, 2014: Federal district court invalidates Idaho marriage laws, ¶ 335.


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Shortly after May 13, 2014, it is publicly reported that The Hitching Post will not perform same-sex marriages because of owners’ religious beliefs, ¶¶ 3-4, 336-37.

May 15, 2014: City attorney makes public statement that the Hitching Post would likely be subject to § 9.56, ¶¶ 338-346.

Mid-June, 2014: Mr. Knapp calls city attorney’s office and again receives confirmation that § 9.56 requires him and the Hitching Post to perform same-sex wedding ceremonies, ¶¶ 21-27. October 7, 2014: Ninth Circuit

legalizes same-sex marriage in Idaho and issues its mandate the same day, permitting same-sex marriages to proceed immediately, ¶¶ 31, 369-71.

October 7, 2014: Out of fear of being prosecuted if they decline a same-sex ceremony request, the Knapps close their business and remain closed on Oct. 8, 9, 10, 11, 14, and 15, as well, losing clients and income on each day, ¶¶ 372-73, 378-79.

Oct. 16, 2014: The Knapps reopen The Hitching Post, but “in a constant state of fear that they would be arrested and prosecuted if they declined to perform a same-sex ceremony,” ¶¶ 383, 394.

Oct. 17, 2014: The Knapps receive and decline two requests to perform same-sex wedding ceremonies, ¶¶ 385-90.

Oct. 17, 2014: The Knapps file this lawsuit to avoid fines and jail time for following their faith, ¶¶ 391-92.

Oct. 20, 2014: In response to lawsuit, City attorney sends letter confirming that for-profit businesses, like The Hitching Post, are subject to § 9.56, ¶¶ 38-40, 443-49 & Ex. 1.

May 20, 2014: Mr. Knapp calls city attorney’s office who confirms that he will be in violation of § 9.56 and subject to its penalties if he declines to perform a same-sex ceremony because the Hitching Post is a for-profit business, ¶¶ 8-19, 359-367.

May 15, 2014: City attorney makes a second public statement that “for profit wedding chapels” would likely be subject to ¶ 9.56, ¶¶ 353-356.


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In sum, both before and after the Knapps filed this lawsuit, the City asserted multiple

times that, because they operated a for-profit company, they would be subject to criminal fines

and jail time if they followed their religious beliefs and declined to perform a same-sex wedding

ceremony. The very first time the City stated that the Knapps were exempt from the ordinance

came nearly one week after the lawsuit was filed, and after intense public scrutiny. Compl. ¶¶

42, 460.

The City claims that the Knapps’ September 2014 incorporation in Idaho as a limited

liability company (LLC) made them exempt from the ordinance, and that if the Knapps had

informed the City of this corporate change it would have told them that the ordinance did not

apply to them. Defs.’ Mem. 5. This rewriting of recent history cannot carry the day (especially

on a motion to dismiss, where Plaintiffs’ allegations must be taken as true). Indeed, in his post-

litigation letter to the Knapps, the City Attorney confirmed that he had reviewed the entire

Complaint and its exhibits, which included all information pertaining to the Knapps’ for-profit

LLC. Compl. ¶¶ 445-46 & Ex. 1. Yet he stated repeatedly in that letter (as the City had prior to

the lawsuit) that for-profit businesses are subject to the ordinance and that the City’s exemption

of “religious corporations” applied only to religious non-profits. See supra.

The City treats the formation of the LLC as a watershed moment that changed

everything, yet all the Knapps did was exchange one for-profit corporate form (a S Corp in

Washington) for another for-profit corporate form (a LLC in Idaho). Compl. ¶¶ 142-146, 152.

In forming the LLC, the Knapps did not change how they run their business. Id. ¶¶ 159-160.

Rather, they simply memorialized what has always been the religious purpose of their business

and the fact that they have always run it according to their religious beliefs. Id. ¶ 150.


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The City claims that The Hitching Post is exempt from the ordinance because the Knapps

described their LLC as a “religious corporation” in their operating agreement. Defs.’ Mem. 4,

12. But there are multiple problems with this contention. First, the City Attorney knew the

Knapps conceived of their business as a religious corporation when he wrote the post-litigation

letter confirming that for-profits are subject to § 9.56 and that only religious nonprofit

organizations fit within the ordinance’s religious corporation exemption. Compl. ¶¶ 445-46 &

Ex.1.1 The City confirmed again and again, both before and after the lawsuit’s filing, that for-

profit corporations cannot be “religious corporations” under § 9.56. Id. ¶¶ 36-38, 325-27, 341,

354, 359, 442. That is why the Knapps filed suit.

Second, it is irrelevant to the enforcement of § 9.56 that the Knapps or other business

owners describe their businesses as religious corporations in internal corporate governance

documents. What matters is the City’s definition of “religious corporation.” 2 And here, the City

has no definition. Compl. ¶¶ 323-24.3 It is precisely this lack of definition (which persists to

this day) that allowed the City to flip-flop on whether the Knapps were exempt, and announce

that they were, for the first time, only after the Knapps filed suit and the City faced public outcry.

But the harm had already been done, with the City’s repeated threats forcing the Knapps to close

and lose income for several days after same-sex marriage was legalized because they feared

being criminally fined or sent to jail for violating § 9.56. Id. ¶¶ 372-73, 378-79.

1 In fact, the City was well aware of “the Hitching Post’s religious goals, reliance on religious ministers, and unwillingness to perform same-sex wedding ceremonies” as early as May 2014, long before the Knapps formed an LLC, based on public reports and Mr. Knapp's calls to the City to inquire about whether he would violate § 9.56 if he declined to perform a same-sex wedding ceremony. Compl. ¶¶ 9-27, 364-65. 2 Idaho state law also does not recognize a “religious corporation” as an official corporate form. Compl. ¶¶ 147-48. 3 Moreover, during the time this case was stayed, the parties attempted to negotiate a definition of “religious corporation,” but the City ultimately refused to define the term.


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MOTION TO DISMISS STANDARD

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), this Court must

“take the allegations in the plaintiff’s complaint as true.” Wolfe v. Strankman, 392 F.3d 358, 362

(9th Cir. 2004). The City tries to upset this presumption by labeling their motion a “factual”

attack. Defs’ Mem. 8. In a factual attack, “the challenger disputes the truth of the allegations

that, by themselves, would otherwise invoke federal jurisdiction,” Wolfe, 392 F.3d at 362, by

appending “extrinsic evidence” to a motion to dismiss that creates a fact dispute. Nampa

Classical Academy v. Goesling, 714 F. Supp. 2d 1079, 1087 (D. Idaho 2010). Under such

circumstances, the plaintiff’s allegations can lose their presumption of truthfulness. Id.

The affidavit and letters the City appended to its motion create no fact disputes, thus the

Knapps’ allegations are presumed true. The letters were already appended to the Complaint,

Compl. Exs. 1 & 9, so they change nothing. And the self-serving affidavit is just the City’s

attempt to put its spin on the letters in a transparent attempt to escape liability for repeatedly

threatening the Knapps with criminal fines and jail time if they followed their religious

convictions by declining to perform a same-sex wedding ceremony.

For example, relying on the affidavit, the City makes the following claim: “The purpose

of the [October 20, 2014] letter was to inform Plaintiffs that, as a religious corporation, they

would not be subject to the ordinance. (Gridley Dec., ¶ 10).” Defs.’ Mem. 7. Of course, that is

not what the letter says at all. Rather, it confirms that the Knapps are subject to the ordinance

because they operate a for-profit business. Compl. Ex. 1 (“[I]f they are providing services

primarily or substantially for profit and they discriminate in providing those services based on

sexual orientation then they would likely be in violation of the ordinance”) (emphasis added). It

further confirms that the Knapps “would be specifically exempted from the City’s anti-

discrimination ordinance” only if they are “truly operating a not-for-profit religious


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corporation.” Id. (emphasis added). The City cannot cancel the presumption of truthfulness

afforded Plaintiffs’ allegations by filing a self-serving affidavit that contradicts the plain

language of the letter confirming that the Knapps were subject to § 9.56’s criminal penalties.

The City also questions the Complaint’s allegations that the Knapps twice called a city

official who told them that they would be subject to § 9.56 if they declined to perform same-sex

wedding ceremonies. Defs.’ Mem. 3. But these statements are sworn testimony, see Lew v.

Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (“A verified complaint may be treated as an

affidavit”), that the City has introduced no facts to rebut. Moreover, the October 20, 2014 letter

confirms that these threats were made. Compl. Ex. 1 (“My office has responded to questions

from your clients in the past and told them that … they would likely be governed by the anti-

discrimination ordinance if a complaint was made.”).

There are no fact disputes here, just post-litigation obfuscations and revisions of history

that this Court should ignore.

ARGUMENT

I. The Knapps Have Article III Standing.

To satisfy Article III’s standing requirements, Plaintiffs must show (1) they have suffered

an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the

Defendant; and (3) it is likely that the injury will be redressed by a favorable decision. Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

A. The Knapps Have Suffered an Injury-in-Fact

As established supra, the City repeatedly and specifically threatened the Knapps that it

would enforce § 9.56 against them if same-sex marriage was legalized in Idaho and they declined

to perform a same-sex wedding ceremony. Thus, when same-sex marriage became legal on


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October 7, 2014, the Knapps felt they had no choice but to close their business to avoid being

prosecuted. Compl. ¶ 372. They remained closed for seven days, losing income each day. Id.

¶¶ 373, 378-79.

The City says the Knapps’ claimed injuries are “purely speculative and hypothetical,”

Defs.’ Mem. 13, but it is difficult to imagine a more concrete and particularized injury than being

forced to close your business and lose income. Indeed, the Ninth Circuit has repeatedly

recognized that such “[e]conomic injury is clearly a sufficient basis for standing.” San Diego

Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996); see also Clark v. City of

Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001) (“The Court routinely recognizes … economic

injury resulting from governmental actions … as sufficient to satisfy the Article III ‘injury in

fact’ requirement.”) (citation omitted); Bernhardt v. Cty. of L.A., 279 F.3d 862, 872 (9th Cir.

2002) (even a “speculative” damages claim is sufficient to confer standing at the motion to

dismiss stage, because plaintiff’s allegation must be taken as true).

The City claims that the Knapps have failed to allege with particularity that they suffered

damages. Defs.’ Mem. 13. But at this stage of the proceedings, their allegations that they lost

clients and income as a result of being closed for seven days must be accepted as true. The City

can test these allegations during discovery, but for the purposes of this motion they are true and

sufficient to satisfy the injury-in-fact requirement.

The City also correctly notes that because this is a pre-enforcement challenge, the Knapps

must demonstrate a credible threat of enforcement. Lopez, 630 F.3d at 786. This determination

is made based on a three inquiries: (1) whether plaintiffs articulated a concrete plan to violate the

law in question; (2) whether the prosecuting authorities have communicated a specific warning

or threat to initiate proceedings; and (3) the history of past prosecution or enforcement under the


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challenged statute. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.

1999). The Knapps’ Amended Complaint clearly pleads a credible threat of enforcement.

1. Plaintiffs Have Violated § 9.56 and Have a Concrete Plan to Continue Doing So.

The City claims that the Plaintiffs have failed to allege a concrete plan that would violate

the ordinance, Defs.’ Mem. 11, but that plainly is not the case. They have consistently declined

same-sex wedding ceremony requests in the past, Compl. ¶¶ 306-313 (discussing past denials),

have continued declining them since reopening their business, id. ¶¶ 385-390, 395-425 (detailing

numerous same-sex wedding ceremony denials since reopening The Hitching Post), and will

continue doing so in the future, id. ¶ 425 (testifying that they will not perform same-sex wedding

ceremonies in the future). There is thus no question that they have a concrete plan to violate §

9.56.

Indeed, the Ninth Circuit found similar evidence sufficient to allege a concrete plan to

violate the law at issue in Stormans Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). There, a state

regulation required a pharmacy to sell and stock Plan B, a drug that could cause abortions. The

plaintiff pharmacy objected to stocking and selling the drug due to its religious beliefs and sued

prior to enforcement of the rule. The court found that the pharmacy cleared the “concrete plan”

hurdle because it could “point to specific past instances when they have refused to sell Plan B or

have made the decision not to stock the medication, which are direct violations of the challenged

rules.” Id. at 1123. The Knapps have done the same here, and more, by pointing not only to

specific past denials but also to ongoing denials after same-sex marriage became legal.

Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009), another of the City’s cases, is

also instructive. The plaintiffs there challenged a city policy that discontinued health care

insurance coverage to employees after they retired. Id. at 1094. The plaintiffs were current


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employees who had not yet retired. The Ninth Circuit rejected the plaintiffs claimed injury—

denial of health insurance coverage—as too speculative because it was “contingent upon two

events: (1) each Plaintiff’s retirement from City service; and (2) the City’s official denial of

benefits to him or her.” Id. at 1096. The Court rightly noted that it was “possible that neither of

the two events will occur. Plaintiffs could change jobs, be terminated, or die … before retiring.

Or, by the time Plaintiffs retire, the City may have abandoned its current policy in favor of one

that provides insurance coverage to retired employees.” Id. at 1096-97. No such speculation

exists here. The Knapps have been injured by the City’s repeated threats, which forced them to

close their business for several days, losing clients and income. And they continue to receive

and decline specific requests to perform same-sex wedding ceremonies, thus leaving no doubt

that they will violate § 9.56 in the future.

The City contends that the Knapps cannot have a concrete plan to violate § 9.56 because

they are exempt from it. Defs.’ Mem. 11. But that conflates violations with exemptions. It is

plain that the Knapps violate the ordinance when they decline to perform a same-sex ceremony

because they are a for-profit business, a fact the city confirmed multiple times both before and

after the lawsuit was filed. Compl. ¶¶ 36-38, 325-27, 341, 354, 359, 443-44, Ex. 1. It is a

separate question whether an organization is exempt from the ordinance. The City repeatedly

said The Hitching Post was not exempt until public pressure resulting from this lawsuit forced

the City to flip-flop. Of course, that “exemption” was granted only after the City initially

responded to the lawsuit by confirming that the Knapps were not exempt. Id., Ex. 1.

This also highlights the ongoing nature of the harm in this case. The City’s statement

that it will not enforce § 9.56 against the Knapps in the future is blatant litigation posturing, is

not binding on the City, and could be revoked at any time for any reason. Compl. ¶¶ 43, 460-70.


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It thus cannot undermine the Knapps’ Article III standing to seek prospective relief. Lopez, 630

F.3d at 788 (disavowing past interpretation of a challenged law that made it applicable to

plaintiffs “must be more than a mere litigation position”).4 One of the key constitutional

problems here is that § 9.56 is a criminal statute with indefinite terms. Compl. ¶¶ 585-593. See

Kolender v. Lawson, 461 U.S. 352, 357 (1983) (“a penal statute” must contain terms “with

sufficient definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement.”). Namely, “religious

corporation” is nowhere defined. Id. ¶¶ 323-34. This lack of definition is what permitted the

City to flip-flop on the question of whether The Hitching Post is exempt. While this case was

stayed for several months, the parties worked to remove this ambiguity by defining “religious

corporation,” but the City ultimately refused to define the term.

As a result, the very source of the problem—that § 9.56 gives the City unfettered

discretion to exempt whoever it wants and that business owners have no way of knowing

whether their conduct violates this criminal law—persists. Only an order from this Court can

rectify the damages the Knapps have already incurred and the ongoing threat the Knapps and

other business owners are under as a direct result of § 9.56’s ambiguous terms. Compl. ¶¶ 460-

70 (specifying ongoing threat of enforcement due to City’s unfettered discretion to determine

what qualifies as a “religious corporation”).

4 The City’s statement also has no bearing whatsoever on the Knapps’ standing to seek compensatory damages related to their closure of the Hitching Post, since its “promise” not to prosecute them did not occur until over two weeks after they were forced to close due to the City’s repeated threats. See Compl. ¶ 372 (closure began on October 7, 2014) and ¶¶ 458-60 (letter promising not to prosecute dated October 23, 2014).


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2. The City Specifically Threatened to Enforce § 9.56 Against the Knapps Multiple Times, Both Pre- and Post-Litigation.

The City contends that the Knapps fail the second prong in judging whether there is a

credible threat of enforcement by claiming that it has “not threatened Plaintiffs with

prosecution.” Defs.’ Mem. 11. This cannot be squared with the well-pled allegations of the

Amended Complaint, which are deemed true at this stage. As set forth supra, the Complaint

alleges that the City specifically told the Knapps several times before litigation that they would

be in violation of the ordinance if they declined to perform a same-sex ceremony. Then, in a

post-litigation letter, they confirmed their prior threats and asserted again that the Knapps were

subject to § 9.56 because they operated a for-profit business and that only religious non-profits

were exempted as “religious corporations.”

It thus boggles the mind for the City to assert that the Knapps’ “decision to close their

business was a unilateral decision based purely on speculation.” Defs.’ Mem. 14. It was entirely

rational for the Knapps to shut down their business for several days when the City had repeatedly

threatened them with criminal fines and jail time if they declined to perform same-sex wedding

ceremonies because of their religious beliefs. Any citizen similarly threatened would have

responded in a similar fashion. Further, the credibility of the City’s threat, and the

reasonableness of the Knapp’s closure in response, were confirmed by the City’s post-litigation

letter stating that for-profit organizations, like The Hitching Post, are subject to § 9.56.

The City’s cases do not help them, but rather support the Knapps. For example, Thomas

states that “neither the mere existence of a proscriptive statute nor a generalized threat of

prosecution satisfies the” injury in fact requirement. 220 F.3d at 1139. The Knapps do not rely

on the “mere existence” of § 9.56 or generalized threats to enforce it, but rather specific and

repeated threats to enforce § 9.56 against them both pre- and post-litigation.


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Stormans also supports the Knapps. There, the Ninth Circuit found a credible threat of

enforcement when an individual pharmacist called the Board responsible for enforcing the Plan

B regulation to ask whether she would be in violation if she declined to dispense the drug based

on a religious objection. 586 F.3d at 1123. The Board informed her that she would not be in

violation of the rules, but that her pharmacy “would be subject to discipline ‘[i]f another

pharmacist is not available or if the patient will not wait for the change of shift.’” Id. Because

her employer would not accommodate her in this manner, the pharmacist was forced to find

other employment, which turned out being at a location with a longer commute, less income, and

less hours. Id. Here, the Knapps twice called the City to inquire whether they would be in

violation of the ordinance if they declined to perform same-sex wedding ceremonies, and both

times the City told them “yes.” Compl. ¶¶ 6-27, 366-67. This same threat was confirmed

several additional times, both before and after the Knapps filed suit. Just as there was a credible

threat in Stormans, so too does one exists here.

The City’s argument that it never threatened to enforce § 9.56 against the Knapps is

based completely on their post-litigation obfuscations. First, the City relies on its Oct. 23, 2014

letter, in which it stated—for the very first time—that it would not enforce § 9.56 against the

Knapps. Defs.’ Mem. 11-12. The City cannot retroactively undo the actual and real harm its

repeated threats caused the Knapps (namely, loss of clients and income due to business closure)

by claiming after suit is filed that it no longer intends to enforce the ordinance against them.

Second, the City relies on the fact that the Knapps exchanged one for-profit corporate

form (S Corp) for another for-profit corporate form (LLC), claiming that any “alleged threats

were made against the S Corporation, which no longer exists.” Defs.’ Mem. 12. But as

explained supra, the Knapps’ formation of the LLC changed nothing. The corporation remained


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for-profit. Compl. ¶¶ 142-146, 152. All the Knapps did was memorialize what has always been

the corporation’s religious purpose and the religious principles upon which they run it. Id. ¶¶

150, 159-60. Moreover, the City Attorney’s October 20, 2014, post-litigation letter indicated

that he had reviewed all documents pertaining to the LLC and reaffirmed the threat that the

Knapps were subject to § 9.56 because their business is for-profit, id., Ex.1, a warning that

occurred after The Hitching Post transitioned to an LLC.

Finally, the City claims it matters that the “Plaintiffs consider[] themselves a ‘religious

corporation.’” Defs.’ Mem. 12. But it doesn’t. What matters is how the City defines “religious

corporation,” and they have no definition, Compl. ¶¶ 323-24, and refuse to provide one.

Obviously, the City would not grant an exemption to any organization that added these two

“magic words” to its for-profit corporate documents. And the City is also unwilling to grant

“religious corporation” status to for-profit companies run according to the religious beliefs of

their owners, considering that the City failed during settlement negotiations to agree upon a

definition of “religious corporation” that included religiously-run for-profit businesses like The

Hitching Post. Instead, the City has opted to retain the unfettered discretion that allowed it to

threaten the Knapps with enforcement in the first place and to later flip-flop its position on their

exempt status once the heat of litigation and public scrutiny turned up.

3. The Past Enforcement Factor Is Neutral In This Case.

At the time the Knapps filed this lawsuit, § 9.56 had been on the books for a little over a

year. Compl. ¶ 314. By contrast, in Thomas the challenged statute had “been on the books” for

“twenty-five years” and the record indicated that not even a single criminal prosecution had

occurred. 220 F. 3d at 1140. Nonetheless, the Court found the “past prosecution factor [to be] a

neutral one.” Id. at 1141. Given the short time § 9.56 has been on the books, and that discovery

has yet to commence, this factor should also be considered “neutral” at this time.


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B. The City’s Conduct Caused The Plaintiffs’ Injuries.

The traceability prong of Article III standing is an easy hurdle here because the Plaintiffs’

injuries are “fairly traceable to the challenged action of [the City.]” Wilbur v. Locke, 423 F. 3d

1101, 1107 (9th Cir. 2005). As discussed supra, the Knapps have sufficiently alleged that the

City’s repeated pre-and post-litigation threats to enforce § 9.56 against them was the direct cause

of their business closure and loss of clients and income. See Young v. City of Simi Valley, 216

F.3d 807, 815 (9th Cir. 2000) (“[E]conomic loss … is a cognizable injury and is sufficient to

satisfy the Article III standing requirement.”).

In addition to their damages claim, the Knapps’ claims for declaratory and injunctive

relief also satisfy Article III’s traceability prong. The City flip-flopped and announced nearly a

week after the Knapps filed suit—for the first time, after it had repeatedly threatened to

prosecute them, and after its post-litigation confirmation of those threats—that it would not

prosecute the Knapps under § 9.56. This is the type of situation where “the government dropped

charges ‘not because [the charges] were considered inapplicable, but for tactical reasons.’”

Lopez, 630 F.3d at 792 (alteration in original) (quoting Am.-Arab Anti-Discrimination Comm. v.

Thornburgh, 970 F.2d 501, 508 (9th Cir. 1992)).

Significantly, in Lopez the Ninth Circuit found that the college’s promise not to take any

action against the plaintiff was legitimate and not a mere litigation tactic because the college

“had not taken any steps to enforce the [challenged] policy against Lopez, either before or after

Lopez’s threat to sue the school.” 630 F.3d at 792. The exact opposite is true here, laying bare

the City’s post-lawsuit flip-flop for the mere litigation tactic that it is. Such transparent litigation

posturing cannot defeat the Knapps’ standing to seek declaratory and injunctive relief, id. at 788,

especially where § 9.56 leaves the Knapps and other business owners guessing as to whether

their conduct will subject them to § 9.56’s criminal fines and jail time in the future.


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C. Plaintiffs’ Injuries Will Be Redressed By A Favorable Ruling.

Redressability does not require the Knapps to show that there is a “guarantee that their

injuries will be redressed by a favorable decision.” Wilbur, 423 F.3d at 1108 (citation and

quotation marks omitted). Rather, they need “show only that a favorable decision is likely to

redress [their injuries].” Id. (citation and quotation marks omitted).

The Knapps easily satisfy this deferential standard. Their request for compensatory

damages would redress the economic injury caused when they closed their business for seven

days because of the City’s repeated threats to enforce § 9.56 against them. And their request for

declaratory and injunctive relief would prevent City officials from imposing criminal penalties

on the Knapps and other business owners by way of their unfettered discretion to determine what

qualifies as a “religious organization” under § 9.56’s exemption.

II. The Knapps’ Claims Are Ripe.

Ripeness includes “both a constitutional and a prudential component.” Thomas, 220 F.3d

at 1138. The Knapps’ claims easily satisfy both components.5

Constitutional ripeness often “coincides squarely with standing’s injury in fact prong.”

Id.; see also Defs.’ Mem. 17 (agreeing that “the doctrine of standing and the constitutional

component of ripeness are intertwined and often indistinguishable, and the analysis almost

completely merge”). Accordingly, the City rightly briefed the same three factors in evaluating

whether the Knapps suffered an injury in fact, Defs.’ Mem. 11, as they do in evaluating whether

they satisfy constitutional ripeness, id. at 17-18. The Knapps have already shown the existence 5 Notably, the City is not even arguing the right jurisdictional doctrine. There clearly was a credible threat of enforcement and concrete injury at the time the Knapps filed suit. And, critically, the first time the City said it would not enforce § 9.56 came after the case was filed. This implicates the mootness doctrine, not ripeness. And the Knapps’ claims for actual and nominal damages, Compl. at 79, ¶ A, overcome any mootness concerns. Bernhardt, 279 F.3d at 872 (noting that a claim for actual damages, and even a claim for nominal damages, “will prevent dismissal for mootness”).


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of a credible threat of enforcement under this three factor test, and have already responded to the

City’s arguments regarding the Knapps’ alleged exemption from the ordinance, the alleged lack

of threatened enforcement, and the City’s post-litigation “promise” not to prosecute the Knapps.

See pp. 10-15, supra. These same arguments and responses demonstrate that the Knapps’ claims

are ripe as well, and so are not rehashed here.

Notably, though, constitutional ripeness is a particularly easy hurdle in this case because

the Knapps suffered economic injuries—closure of their business and loss of income. For

example, in Colwell v. Department of Health and Human Services, 558 F.3d 1112, 1123 (9th Cir.

2009), the Ninth Circuit found the “ripeness requirement of Article III … satisfied” based on its

prior conclusion that the plaintiffs had suffered a “concrete rather than abstract” injury for

standing purposes because of the economic harm the challenged policy had caused them.

This case is thus nothing like the types of cases where constitutional ripeness is typically

found lacking, in which a plaintiff’s claimed injury relies on some future contingency. See, e.g.,

Thomas, 220 F.3d at 1139 (plaintiff pledged their intent to violate the housing law in the future

by declining to rent to unmarried, cohabiting couples, but could not “specify when, to whom,

where, or under what circumstances”); see also Protectmarriage.com-Yes on 8 v. Bowen, 752

F.3d 827, 840 (9th Cir. 2014) (political action committee’s objections to contributor reporting

requirements not ripe because the committee had “not offered any information regarding when

they may next support a campaign opposing same-sex marriage, what type of campaign they will

support, where they will support it, what their involvement will entail, or whether their donors

will likely face personal harassment”).

The concrete, economic injuries the Knapps have suffered as a result of the City’s

repeated and specific, pre- and post-litigation threats to enforce § 9.56 against them remove this


19

case from the realm of uncertain future injuries that often trips up plaintiffs in the ripeness

context. Further, the City’s transparent litigation tactic of promising not to prosecute the Knapps

does not cure the past harm their threats caused, nor does it render the Knapps’ claims for

prospective relief unripe. They continue to receive and decline to perform same-sex wedding

ceremonies, Compl. ¶¶ 393-427, and the City’s ephemeral “promise” not to sue, § 9.56’s failure

to define “religious corporation,” and the City’s flip-flopping on whether The Hitching Post is

exempt from the ordinance, makes the Knapps legitimately and credibly fearful that the City will

again change its mind in the future and enforce it.

Prudential ripeness is a “discretionary” doctrine. Thomas, 220 F.3d at 1142. It requires a

court to determine (1) whether the issues are fit for review, and (2) whether withholding court

consideration would cause a hardship. Id. at 1141. Both factors are easily satisfied here.

In asserting that this Court should elect not to decide this case due to prudential ripeness

considerations, the City only offers its now familiar (and thoroughly discredited) obfuscations:

that the Knapps are allegedly exempt from the ordinance; that the City never threatened to

enforce § 9.56 against the Knapps; and that the City’s post-litigation “promise” not to prosecute

the Knapps resolves this case. Defs.’ Mem. 19-20. These arguments are insufficient to undo the

Knapps’ satisfaction of Article III standing and constitutional ripeness, and they likewise fail to

support a decision not to rule based on prudential ripeness.

Indeed, the prudential ripeness factors are easily met here. A claim is “fit for decision” if

it raises primarily legal issues and does not require further factual development. Stormans, 586

F.3d at 1126. Here, the record includes a nearly 600 allegation Amended Complaint that

thoroughly sets forth all of the relevant facts, plus multiple exhibits that provide further factual

material and context. This case is thus unlike Thomas, where the court exercised its discretion to


20

decline jurisdiction because of the “remarkably thin and sketchy” record, 220 F.3d at 1141, and

San Diego Gun Rights Committee, where the court declined to rule because “a decision on the

merits of plaintiffs’ constitutional claims would be devoid of any factual context whatsoever,” 98

F.3d at 1132. No such problem exists here. Instead, this case is like Stormans, where “there are

no incomplete hypotheticals or open factual questions akin to those in Thomas.” 586 F.3d at

1126. Indeed, the Knapps have already suffered concrete, economic harm because of the City’s

repeated and specific threats to enforce § 9.56.

The “hardship” prong is also satisfied here. “Hardship in this context ‘does not mean just

anything that makes life harder; it means hardship of a legal kind, or something that imposes a

significant practical harm upon the plaintiff.’” Colwell, 558 F.3d at 1128. The plaintiffs in

Colwell failed to meet this requirement because they conceded that the government had “not

threatened any direct action against them” and because the law they challenged did not

“contemplate any kind of financial sanction.” Id. at 1128-29. Here, the Knapps have alleged

repeated and specific threats to enforce § 9.56 against them that caused them to close their

business and lose income and that § 9.56 imposes not mere “financial sanctions,” but criminal

fines and jail time. This is hardship personified.

CONCLUSION

For the foregoing reasons, the Plaintiffs respectfully request that the City’s motion to

dismiss be denied. They also respectfully request oral argument on this motion.

Respectfully submitted this 23rd day of April, 2015,

By: /s/Jeremy D. Tedesco By: /s/Virginia McNulty Robinson

JEREMY D. TEDESCO* ALLIANCE DEFENDING FREEDOM *Admission pro hac vice

VIRGINIA MCNULTY ROBINSON ROBINSON LAW, PLLC

ATTORNEYS FOR PLAINTIFFS


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 23rd day of April, 2015, I filed the foregoing

electronically through the CM/ECF system, which caused the following parties or counsel to be

served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Kirtlan G. Naylor Jacob H. Naylor Landon S. Brown NAYLOR & HALES, P.C. 950 Bannock Street, Suite 610 Boise, ID 83702 (208) 383-9511 (208) 383-9516 Fax

By: /s/Virginia McNulty Robinson

VIRGINIA MCNULTY ROBINSON [email protected] Idaho Bar No. 7380 ROBINSON LAW, PLLC 1910 Northwest Blvd., Suite 200 Coeur d’Alene, Idaho 83814 (208) 664-1139 (208) 664-1171 Fax


Documents

2:14-cv-00441 #33