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Kirtlan G. Naylor [ISB No. 3569]
Jacob H. Naylor [ISB No. 8474]
Landon S. Brown [ISB No. 9023]
NAYLOR & HALES, P.C.
Attorneys at Law
950 W. Bannock Street, Ste. 610Boise, Idaho 83702
Telephone No. (208) 383-9511
Facsimile No. (208) 383-9516
Email: [email protected]; [email protected]; [email protected]
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DONALD KNAPP; EVELYN KNAPP;
HITCHING POST WEDDINGS, LLC,
Plaintiffs,
vs.
CITY OF COEUR D’ALENE,
Defendant.
Case No. 2:14-CV-00441-REB
DEFENDANT’S MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED
COMPLAINT
Defendant City of Coeur d’Alene, by and through its attorneys of record, Naylor & Hales,
P.C., hereby moves this Court to dismiss all claims against Defendant under Federal Rules of Civil
Procedure 12(b)(1), because Plaintiffs do not have standing and their claims are not ripe for review.
In support of this motion, Defendant relies upon the pleadings and other documents that have
been filed in this case, as well as the Memorandum in Support and the Declaration of Michael C.
Gridley, filed herewith.
DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT - 1
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DATED this 30 day of March, 2015.th
NAYLOR & HALES, P.C.
By: /s/ Kirtlan G. Naylor. Naylor, Of the Firm
Attorneys for Defendant City of Coeur d’Alene
CERTIFICATE OF SERVICE
I hereby certify that on the 30 day of March, 2015, I electronically filed theth
foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of
Electronic Filing to the following person(s):
David A. Cortman; [email protected]
Kevin H. Theriot; [email protected]
Rory T. Gray; [email protected]
Jeremy D. Tedesco; [email protected]
Jonathan A. Scruggs; [email protected]
Virginia McNulty Robinson [email protected]
Attorneys for Plaintiff
/s/ Kirtlan G. Naylor
9293_18 Motion to Dismiss Amd Complaint.wpd
DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’
FIRST AMENDED COMPLAINT - 2
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Kirtlan G. Naylor [ISB No. 3569]
Jacob H. Naylor [ISB No. 8474]
Landon S. Brown [ISB No. 9023]
NAYLOR & HALES, P.C.
Attorneys at Law
950 W. Bannock Street, Ste. 610Boise, Idaho 83702
Telephone No. (208) 383-9511
Facsimile No. (208) 383-9516
Email: [email protected]; [email protected]; [email protected]
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DONALD KNAPP; EVELYN KNAPP;
HITCHING POST WEDDINGS, LLC,
Plaintiffs,
vs.
CITY OF COEUR D’ALENE,
Defendant.
Case No. 2:14-CV-00441-REB
DEFENDANT’S MEMORANDUM IN
SUPPORT OF MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED
COMPLAINT
Defendant City of Coeur d’Alene, by and through its attorneys of record, Naylor & Hales,
P.C., brings this Memorandum in Support of Motion to Dismiss Plaintiffs’ First Amended Complaint .
As shown below, all claims against Defendant must be dismissed because Plaintiffs’ lack standing
and their claims are not ripe for review.
I. INTRODUCTION
Plaintiffs Donald and Evelyn Knapp are members, owners, and operators of Plaintiff Hitching
Post Weddings, LLC. (Dkt. 29, ¶¶ 53, 56.) Hitching Post Weddings, LLC, is a “religious
corporation” created on or around September 12, 2014. ( Id. at ¶¶ 57, 144-46; Dkt. 29-2; Declaration
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of Michael C. Gridley in Support of Motion to Dismiss Plaintiffs’ First Amended Complaint,
hereafter “Gridley Dec.”, ¶ 8.) On March 16, 2015, Plaintiffs filed a First Amended Verified
Complaint (“Amended Complaint”) alleging various federal claims. (Dkt. 29.)
Plaintiffs’ claims arose as a result of Defendant enacting an anti-discrimination ordinance.
On June 4, 2013, the Coeur d’Alene City Council passed Ordinance 9.56, which makes it a
misdemeanor to “deny to or to discriminate against any person because of sexual orientation and/or
gender identity/expression the full enjoyment of any of the accommodations, advantages, facilities
or privileges of any place of public resort, accommodation, assemblage, or amusement.” COEUR
D’ALENE, IDAHO, ORDINANCES ch. 9.56.030(B). The ordinance also contains certain exceptions.
Specifically, the ordinance does not apply to “[r]eligious corporations, associations, educational
institutions, or societies.” Id. at 9.56.040(B)(1). Plaintiffs contend that their rights have been
violated because the anti-discrimination ordinance requires them to choose between violating the
ordinance by refusing to perform same-sex marriages or violating their religious beliefs by
performing same-sex marriages. However, Plaintiffs qualify as a religious corporation and are
exempt from the ordinance. Since the ordinance does not apply to Plaintiffs, Plaintiffs lack standing
to bring this lawsuit and their claims are not ripe for review.
II. BACKGROUND
The Knapps purchased a wedding chapel in 1989. (Dkt. 29, ¶ 94.) When the Knapps
purchased the chapel, they began operating the business as an S-Corporation. ( Id. at ¶¶ 95, 101,
143.) The Knapps continued to operate the business as an S-Corporation until September 12, 2014.
(See Dkt. 29, ¶¶ 145-46; Gridley Dec., ¶ 8.) This S-Corporation no longer exists.
On May 13, 2014, a federal district court judge invalidated an Idaho law defining marriage
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as the union between a man and a woman. (Dkt. 29, ¶ 369.) After various stays and legal
proceedings, same-sex marriage became legal in Idaho on October 15, 2014. ( Id. at ¶ 376.)
As the same-sex marriage controversy was being resolved in the court room, the media took
notice of the issue and provided coverage of the story. On May 15, 2014, a local newspaper ran a
story about whether wedding chapels would violate the city’s ordinance if they refused to perform
same-sex marriages. ( Id. at ¶¶ 340-42.) The article included a quote from a city official stating, “I
would think that the Hitching Post would probably be considered a place of public accommodation
that would be subject to the ordinance.” ( Id. at ¶ 341.) That same day, a local television station aired
a report about same-sex marriages. During that segment, a city official stated that a wedding chapel
that refused to perform same-sex marriages “in theory” could violate the ordinance. ( Id. at ¶ 354.)
At that time, city officials had no knowledge or information which would lead them to believe that
the Knapps operated a “religious corporation.” In fact, the Knapps still operated the Hitching Post
as the S-Corporation and had not yet memorialized their purpose, character, ethos, and goals. (See
Id. at ¶¶ 143-45; Gridley Dec. ¶ 8.)
Around May 20, 2014, and again around June 20, 2014, the Knapps allegedly called a city
official to inquire whether the Hitching Post, the S-Corporation, would be subject to the city’s
ordinance. ( Id. at ¶¶ 9-27.) Based on the city’s limited knowledge of the Hitching Post’s
organizational structure and without any knowledge of Plaintiffs’ purpose, character, ethos, and
goals, the city official allegedly informed the Knapps that the ordinance would require the Hitching
Post to perform same-sex marriages, should such marriages be upheld by the courts. ( Id.) However,
the Knapps were never informed that they would be prosecuted pursuant to the ordinance if they
refused to perform same-sex marriages. Additionally, the Knapps never informed city officials that
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they believed they operated a “religious corporation,” that their purpose was to promote biblical
marriages, or that they exclusively performed religious ceremonies. (Gridley Dec. ¶ 6.)
Thereafter, the Knapps took preemptive action to ensure that they would not have to perform
same-sex marriages in case those marriages became legal in Idaho. On September 12, 2014, the
Knapps formed Hitching Post Weddings, LLC. (Dkt. 29, ¶¶ 144-45; Gridley Dec., ¶ 8; Dkt. 29-2.)
This new business entity replaced the former S-Corporation, and the Knapps started performing all
business operations using the new business entity, Hitching Post Weddings, LLC. ( Id.) Around the
same time, the Knapps identified and memorialized Hitching Post Weddings, LLC’s “character,
ethos, and goals” by creating an operating agreement. (Dkt., 29 ¶ 161; Dkt. 29-2.) The operating
agreement stated:
The Hitching Post is a religious corporation owned solely by ordained ministers
of the Christian religion who operate this entity as an extension of their sincerely
held religious beliefs and in accordance with their vows taken as Christian
ministers. The purpose of the Hitching Post is to help people create, celebrate,
and build lifetime, monogamous, one-man-one-woman marriages as defined by
the Holy Bible.
(Dkt. 29. ¶ 163; Dkt. 29-2, p. 4) (emphasis added). Additionally, the operating agreement stated,
“The Hitching Post provides wedding and marriage-related services for the purpose of publicly
expressing and promoting that marriage is the union of one man and one woman” and “for the
purposes of promoting the social institution of marriage as a fundamental building block of our
society and promoting the public understanding of marriage as the union of one man and one
woman.” ( Id.) (emphasis added).
To ensure that the new company, Hitching Post Weddings, LLC, accomplished its goals, the
Knapps created and implemented certain policies and procedures, including requiring all employees
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to sign a new policy stating that they would abide by the new rules and regulations of the company.
(Dkt. 29, ¶¶ 169-74; Dkt. 29-3.) The Hitching Post Weddings, LLC also created a customer policy
informing customers that it was a “religious corporation owned by Christian ministers for a religious
purpose.” (Dkt. 29, ¶¶ 178-80; Dkt. 29-4.) The new employee and customer policies were created
when Hitching Post Weddings, LLC, was formed–around September 12, 2014 to October 6, 2014.
(Dkt. 29, ¶ 144-45; Dkt. 29-2; Dkt. 29-3; Dkt. 29-4; Gridley Dec., ¶ 8.)
As a result of their preemptive actions, the Knapps successfully reorganized their business
activities and memorialized their belief that Hitching Post Weddings, LLC, was a religious
corporation with the purpose of promoting biblical marriages by at least October 6, 2014. (See Dkt.
29, ¶¶ 144-45; Dkt. 1-4; Gridley Dec. ¶ 8.) After memorializing their belief that Hithcing Post
Weddings, LLC, was a religious corporation, and after memorializing their purpose, character, ethos,
and goals, Plaintiffs never inquired with city officials whether their newly formed entity would be
subject to the anti-discrimination ordinance. (Gridley Dec. ¶ 9.) Further, after Plaintiffs changed
their business organization and memorialized their belief that they were a religious corporation, city
officials never stated or threatened the newly formed entity with prosecution if Plaintiffs refused to
perform same-sex marriages. ( Id.)
Even though Plaintiffs took these preemptive actions to fit within the exception found in §
9.56, and despite receiving no threats of prosecution from Defendant and making no inquiries to
Defendant regarding the newly formed entity, Plaintiffs elected to close Hitching Post Weddings,
LLC, on October 7-11, 2014 and October 14-15, 2014. (Dkt. 29, ¶¶ 372-78.) Notably, same-sex
marriages could not be performed in Idaho until October 15, 2014. (Dkt. 29, ¶ 376.) Plaintiffs
reopened their business on October 16, 2014. (Dkt. 29, ¶ 383.)
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On October 17, 2014, Plaintiffs’ allege that two customer contacted them and asked if they
would perform a same-sex wedding. (Dkt. 29, ¶¶ 385, 389.) Plaintiffs declined the invitations. ( Id.
at ¶¶ 386, 390.) That same day, Plaintiffs filed a lawsuit against Defendant seeking relief from
application of the City’s anti-discrimination ordinance. (See generally Dkt. 1.) Plaintiffs filed suit
without receiving a single threat that their newly formed entity would be prosecuted pursuant to the
ordinance, and apparently without realizing that their new entity was a “religious corporation,”
excepted from the ordinance. Additionally, Plaintiffs filed suit before any formal action was
threatened or taken against Plaintiffs for any alleged violation of the ordinance.
That same day, city officials obtained the Verified Complaint and several exhibits attached
to the complaint. (See Dkt. 1.) These exhibits included the operating agreement, employee policy,
and customer policy. (Dkt. 1-1; Dkt. 1-2; Dkt. 1-3.) Upon reading these documents, city officials
first learned that Plaintiffs reorganized their business affairs and considered themselves a “religious
corporation.” (Gridley Dec. ¶ 7.) Additionally, based on these documents, city officials first learned
that Plaintiffs’ purpose was to promote biblical marriages. Indeed, the complaint informed city
officials that all wedding services provided by the Hitching Post were “religious ceremonies” and
were entirely based on religious messages and biblical scriptures. (Dkt. 1, ¶¶ 190, 159-226.) Prior
to this date, city officials never knew that Plaintiffs considered themselves a “religious corporation,”
that their purpose was to promote biblical marriages, or that their services were exclusively
“religious ceremonies.” (Gridley Dec. ¶ 7.) After reviewing these documents, city officials
determined that Hitching Post Weddings, LLC, qualified as a religious corporation and was exempt
from the ordinance. ( Id.)
On October 20, 2014, the City Attorney sent a letter to Plaintiff’s attorney informing him that
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Plaintiffs were exempt from the ordinance because they were a religious corporation. (Dkt. 29-1.)
The purpose of the letter was to inform Plaintiffs that, as a religious corporation, they would not be
subject to the anti-discrimination ordinance. (Gridley Dec., ¶ 10.) On October 23, 2014, the City
Attorney sent Plaintiffs’ attorney another letter reasserting that Plaintiffs were exempt from the
ordinance and would not be subject to prosecution under the ordinance if a complaint was ever
received by the city. ( Id.)
On October 23, 2014, the Coeur d’Alene police department received a complaint from an
individual in Massachusetts who alleged that Plaintiffs refused to perform a same-sex marriage.
(Gridley Dec., ¶ 11.) No action was taken in regard to the complaint because Defendant recognized
that Plaintiffs were exempt from the ordinance. ( Id.) Thereafter, Defendant continued to
communicate to the Plaintiffs that they would not be prosecuted for refusing to perform same-sex
marriages. ( Id. at ¶ 12.) On February 23, 2015, Defendant filed a Motion to Dismiss on the grounds
that Plaintiffs’ lacked standing. (Dkt. 24.) The motion included a declaration from the City
Attorney, swearing that Plaintiffs would not be prosecuted pursuant to the anti-discrimination
ordinance so long as they remained a religious corporation. (Dkt. 24-2, ¶ 12.) Plaintiffs received
the motion and declaration, and in response, filed a First Amended Verified Complaint, re-asserting
their allegations from their Verified Complaint and adding claims challenging the constitutionality
of the ordinance on its face. (Dkt. 29.)
III. LEGAL STANDARDS
A. FRCP 12(b)(1) Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may ask the court to dismiss
a case for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal courts are courts of
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limited jurisdiction and possess only the power authorized by the United States Constitution and
statute. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). It is presumed
that a cause lies outside the federal court’s limited jurisdiction, and the burden of establishing
otherwise rests on the party asserting jurisdiction. Id. Subject matter jurisdiction is a “threshold
matter,” which a court must determine before proceeding to the merits of the case. Steel Co. v.
Citizens for a Better Env’t , 523 U.S. 83, 94 (1998).
A defendant may move to dismiss a cause of action for lack of subject matter jurisdiction in
one of two ways. See Thornhill Pub. Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.
1979); Nampa Classical Academy v. Goesling , 714 F.Supp.2d 1079, 1087 (D. Idaho 2010). The
challenge may be a “facial” challenge where the defendant attacks the sufficiency of the allegations
supporting subject matter jurisdiction. Nampa Classical Academy, 714 F.Supp.2d at 1087 (citing
Thornhill Pub. Co., 594 F.2d at 733). Or, the challenge may be a “factual” challenge attacking the
existence of subject matter jurisdiction in fact. Id. A factual attack may be accompanied by extrinsic
evidence and the court is “ordinarily free to hear evidence regarding jurisdiction and to rule on that
issue prior to trial, resolving factual disputes where necessary.” Carijano v. Occidental Petroleum
Corp., 686 F.3d 1027, 1032 (9th Cir. 2012) (quoting Augustine v. United States, 704 F.2d 1074,
1077 (9th Cir. 1983)). In such instances, no presumption of truthfulness attaches to the plaintiff’s
allegations in the complaint, and the existence of disputed material facts do not preclude the court
from evaluating for itself the merits of jurisdictional claims. Thornhill Pub. Co., 594 F.2d at 733
(citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir. 1977)). “Moreover,
when considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted
to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to
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resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988). The burden is on the plaintiff, as the party asserting jurisdiction, to
prove that federal jurisdiction is proper. Kokkonen, 511 U.S. at 377.
B. Article III Jurisdictional Requirements
“Article III of the Constitution confines the judicial power of federal courts to deciding actual
‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, __ U.S. __, __, 133 S.Ct. 2652, 2661 (2013).
The case or controversy requirement must be satisfied at all stages of litigation and review, not
merely at the time the complaint is filed. Steffel v. Thompson, 415 U.S. 452, 459 n.10, (1974). Both
standing and ripeness are essential aspects of the case or controversy requirement and must be
present in order for a person to invoke the power of a federal court. Hollingsworth, __ U.S. at __,
133 S.Ct. at 2661; Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). Absent standing
or ripeness, a federal court has no subject matter jurisdiction to hear a case.
IV. ARGUMENT
A. Plaintiffs’ Failed to Establish Standing to Challenge the Anti-Discrimination
Ordinance Because They are Unable to Articulate an Injury in Fact that isCausally Connected to Defendant’s Conduct.
To establish standing, Plaintiffs have the burden of demonstrating that: (1) they suffered an
injury in fact–an invasion of a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical; (2) the existence of a causal connection
between the injury and the conduct complained of–that is, the injury is “fairly traceable” to the
challenged action of the defendant, and not the result of the independent action of some third party
not before the court; and (3) it is “likely,” as opposed to merely “speculative,” that the injury will
be redressed by a favorable judicial decision. Gibson v. Credit Suisse AG, 787 F.Supp.2d 1123,
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1128-29 (D. Idaho 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). See
also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). “As with all questions of
subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the
complaint. . . . The party invoking the jurisdiction of the court cannot rely on events that unfolded
after the filing of the complaint to establish its standing.” Wilbur v. Locke, 423 F.3d 1101, 1107 (9th
Cir. 2005) abrogated on other grounds by Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010)
(quoting Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005)). As standing is a
core component of the case or controversy requirement, it must be established “through all stages
of federal proceedings,” including the filing of a complaint and the filing of subsequent amended
complaints. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990).
Plaintiffs’ allegations are generally based on three types of injuries: (1) that Defendant
threatened them with prosecution, which caused them injury; (2) that Defendant’s conduct caused
them to close their business, resulting in loss income; and (3) that Defendant created an uncertainty
in the application of the ordinance, which chilled and deterred Plaintiffs from conducting wedding
ceremonies. These allegations are not sufficient to establish standing as they are based on
hypothetical injuries and/or are not causally connected to Defendant’s alleged conduct. Accordingly,
all claims must be dismissed.
1. Plaintiffs Cannot Establish an Injury in Fact Regarding Alleged Threats of
Prosecution Made by Defendants.
In regards to Defendant’s alleged threats of prosecution, Plaintiffs cannot establish the first
prong of standing because they have not suffered an injury in fact. To demonstrate an injury in fact,
Plaintiffs must demonstrate that they received an injury that is concrete and particularized and actual
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or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Here, Plaintiffs have not
been prosecuted with violation of the ordinance. When plaintiffs bring suit challenging the
constitutionality of a statute or ordinance prior to the statute or ordinance being enforced against the
plaintiffs (a “pre-enforcement challenge”), the plaintiffs must show that they face a credible threat
of adverse action sufficient to establish standing. Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir.
2010). The mere existence of a proscriptive law is not sufficient to create an injury in fact. Thomas
v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999). Additionally, a
generalized threat of prosecution will not satisfy this requirement. Stormans, Inc. v. Selecky, 586
F.3d 1109, 1122 (9th Cir. 2009). Instead, there must be a genuine threat of imminent prosecution.
Id. The Court makes three inquires when considering whether a plaintiff demonstrated a genuine
threat of imminent prosecution sufficient to bring a pre-enforcement challenge: (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 challenged statute. Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999).
In the instant case, Plaintiffs have failed to articulate that there exists a genuine threat of
imminent prosecution. First, Plaintiffs have failed to allege a concrete plan which would violate the
ordinance in the future. Indeed, Plaintiffs cannot establish this prong as they are exempt from the
ordinance and will not violate the ordinance by declining same-sex weddings.
Second, prosecuting authorities have not threatened Plaintiffs with prosecution. City officials
have informed Plaintiffs numerous times that they are excepted from the ordinance. On October 23,
2014, city officials, in writing, informed Plaintiffs that they were exempt from the ordinance and
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would not be subject to prosecution. (Gridley Dec., ¶ 10.) On February 23, 2015, the City Attorney
signed a sworn declaration stating that Plaintiffs would not be prosecuted pursuant to the ordinance.1
(Dkt. 24-2.) Further, Defendant has never initiated any type of proceedings against Plaintiffs.
Additionally, the Amended Complaint fails to articulate a single threat made by city officials against
Plaintiffs. All alleged threats were made against the S Corporation, which no longer exists.
Moreover, the statements made to the S Corporation were simply city official’s unofficial analysis
of how the ordinance “in theory” and “probably” could apply, based on the limited information
provided to city officials. (See Dkt. ¶¶ 19-25, 341, 354.) At that time, city officials had no
information indicating that Plaintiffs considered themselves a “religious corporation,” had the
purpose of promoting biblical marriages, or performed exclusively “religious ceremonies.” Once
Plaintiffs established Hitching Post Weddings, LLC, and informed city officials of their religious
purpose, city officials acknowledged that they were a “religious corporation” excepted from the
ordinance and never made any statements to Plaintiffs indicating that they would be prosecuted
under the ordinance. (Gridley Dec., ¶ 9.)
Third, Plaintiffs fails to allege a single instance where city officials initiated proceedings
against an individual or business for violation of the ordinance. Indeed, Defendant has not
Evidence that the prosecuting authority decided not to prosecute the plaintiffs for 1
violations of the challenged law demonstrates that plaintiffs have no fear of prosecution
sufficient to establish standing. See Sacks v. Office of Foreign Assets Control , 466 F.3d 764,
773-74 (9th Cir. 2006) (finding that plaintiff lacked standing to challenge a medicine restriction
ban when prosecutors indicated that they had no intend on prosecuting the plaintiff for violation
of the medicine restriction ban). See also Mink v. Suthers, 482 F.3d 1244, 1255-56 (10th Cir.
2007) (finding that a plaintiff lacked standing because he could not demonstrate a “credible fear
of prosecution” when: (1) he potentially violated a law; (2) law enforcement opened an
investigation into his conduct; (3) he filed a complaint while the investigation was ongoing; (4)
the prosecutor then declined to prosecute him; (5) he then filed an amended complaint, knowing
that he would not be prosecuted).
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prosecuted anyone for violation of the ordinance during the ordinance’s one and one-half year
existence. (Gridley Dec., ¶ 5.) As a result of the applicable factors, Plaintiffs are unable to
demonstrate that they have received an injury in fact. Accordingly, they lack standing to challenge
the ordinance based on any alleged threats to prosecute them.
2. Plaintiffs Cannot Establish an Injury in Fact that is Causally Connected
to Defendants in Regards to their Allegation of Lost Income.
Plaintiffs contend that they lost income when they closed the Hitching Post on October 7, 8,
9, 10, 11, 14, and 15, because city officials allegedly informed them that they would be in violation
of the ordinance. (Dkt. 29, ¶¶ 372-73, 378-79.) This allegation fails to establish standing because
it does not allege an injury in fact and Plaintiffs cannot demonstrate a causal connection.
In regards to the injury in fact prong, Plaintiffs have failed to allege with particularity that
they have suffered actual injury. Plaintiffs only allege that they have lost clients and income on those
days. However, Plaintiffs never allege that they had any weddings scheduled on those dates, or that
anybody came to their business requesting a wedding on those dates. Instead, their allegation is
purely speculative and hypothetical. Plaintiffs merely assume that they would have had a customer
had they remained open. This is not the type of injury in fact required by Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 1999). In that case, the Ninth Circuit en banc panel
required that a plaintiff seeking to establish standing based on lost income must demonstrate when,
to whom, where, or under what circumstances they turned down a customer. Id. at 1139. Plaintiffs
have failed to make such allegations. Accordingly, they cannot establish an injury in fact.
Additionally, Plaintiffs cannot allege that there is a causal connection between their alleged
injury and the conduct of Defendants. As discussed above, Plaintiffs reorganized their business and
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memorialized their purpose by October 6, 2014. By at least that date, the Hitching Post Weddings,
LLC, was a religious corporation exempt from the ordinance. Plaintiffs never received any threats
in any manner after that date. (Moreover, any alleged threats made against Plaintiffs before that date
were simply city official’s unofficial legal analysis of the ordinance and not a threat of prosecution.)
Therefore, Plaintiffs were under no threat of prosecution when they elected to close their business
on October 7, 8, 9, 10, 11, 14, and 15. City officials never informed Plaintiffs that they would be
subject to prosecution if they remained open on those dates. (Gridely Dec. ¶ 9.) Plaintiffs never
inquired whether they would be prosecuted if they remained open on those dates. ( Id.) Plaintiffs’
decision to close their business was a unilateral decision based purely on speculation. More so,
same-sex marriage was not legal in Idaho on October 7, 8, 9, 10, 11, and 14. Therefore, even if
Plaintiffs were subject to the ordinance (which they were not), they still would not have violated the
ordinance by remaining open and denying same-sex marriages on those dates. Additionally, on
October 15, 2014, when same-sex marriage became legal, Plaintiffs would not have been subject to
the ordinance because they were exempt. Therefore, they were under no legitimate threat of
prosecution which would require them to close their business on that date. Even if they were,
Plaintiffs failed to allege that they had a wedding scheduled on October 15, 2014, that they had to
cancel, which resulted in loss income. As a result, Plaintiffs have failed to establish standing based
on loss income when they unilaterally closed their business.2
The Knapps also allege that they suffered an injury when they only renewed their lease2
for one year instead of seven years for fear that the City might require them to perform same-sex
marriages sometime in the next seven years. (Dkt. 29, ¶ 434-35.) For the same reasons
discussed above, Plaintiffs also cannot establish standing based on this allegation. Specifically,
this allegation is based on pure speculation and is not sufficient to establish standing.
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3. Plaintiffs’ Cannot Establish Standing Based on the Alleged
“Uncertainty” of the Ordinance’s Application.
Plaintiffs allege that Defendant “changed its mind” about the application of the ordinance’s
exception, which has created an “uncertainty” that “will chill and deter [Plaintiffs] from conducting
wedding ceremonies.” (Dkt. 29, ¶¶ 465-470.) Plaintiffs allege that this “uncertainty” arose as a
result of letters sent to Plaintiffs’ attorney on October 20, 2014, and October 23, 2014. (Dkt. 29, ¶¶
441-460.) According to Plaintiffs, the October 20, 2014, letter allegedly articulated that only non-
profit entities would be excepted from the ordinance, and the October 23, 2014, letter allegedly
changed course by stating that Plaintiffs were excepted from the ordinance. This allegation is
insufficient to establish standing as no injury in fact occurred as a result of the alleged “uncertainty.”
The alleged uncertainty of the ordinance’s application has not chilled or deterred Plaintiffs
from conducting wedding ceremonies. There is no allegation in the Amended Complaint that the
uncertainty of the letters caused Plaintiffs to decline to perform any wedding ceremonies after
October 20, 2014. Indeed, the Amended Complaint indicates that Plaintiffs reopened the wedding
chapel on October 16, 2015, and have not closed or refused to perform religious wedding ceremonies
since that date. (Dkt. 29, ¶ 383.) Therefore, to the extent that the October 20 letter may have caused
confusion, Plaintiffs still suffered no injury as they continued to fully operate after that date. Any
confusion or uncertainty was immediately dispersed on October 23, 2014, when city officials sent
Plaintiffs attorney a letter clearly and unambiguously stating that Plaintiffs were exempt from the
ordinance. (Gridley Dec. ¶ 10.) Thus, at the latest, any alleged “uncertainty” was dispersed on
October 23, 2014. Moreover, on February 23, 2015, Plaintiffs received a signed declaration from
the City Attorney swearing that “Plaintiffs will not be prosecuted pursuant to the anti-discrimination
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ordinance.” (Dkt. 24-2.) Accordingly, when Plaintiffs filed their Amended Complaint on March
16, 2015, Defendant had communicated to them as clear as possible that they would not be
prosecuted pursuant to the ordinance. There was no threat to Plaintiffs at all, and certainly no threat
that was sufficiently real and immediate to show an existing controversy. As a result, Plaintiffs lack 3
standing to challenge the constitutionality of the ordinance.
B. Plaintiffs’ Claims Lack Ripeness as the Ordinance Does Not Apply to Plaintiffs.
Ripeness is also an essential aspect of the case or controversy requirement. See Stormans,
Inc., 586 F.3d at 1122. “Ripeness is peculiarly a question of timing, designed to prevent the courts,
through avoidance of premature adjudication, from entangling themselves in abstract
disagreements.” Id. (internal quotation marks omitted). Where standing is primarily concerned with
who is a proper party to litigate a particular matter, ripeness addresses when that litigation may
occur. Colwell v. Dep’t of Health and Human Services, 558 F.3d 1112, 1123 (9th Cir. 2009).
Accordingly, courts are limited to adjudicating only live cases or controversies consistent with the
Article III powers granted to the judiciary branch. Stormans, Inc., 586 F.3d at 1122. The ripeness
inquiry contains two components: (1) a constitutional component; and (2) a prudential component.
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 1999).
The constitutional component “coincides squarely with standing’s injury in fact prong and
can be characterized as standing on a timeline.” Stormans, Inc., 586 F.3d at 1122. “For example,
a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Bova v. City of Medford , 564 F.3d 1093, 1096 (9th Cir.
A sufficiently real and immediate threat or controversy is required to establish standing3
for equitable relief, including a declaratory judgment or injunctive relief. See City of Los Angeles
v. Lyons, 461 U.S. 95, 104 (1983).
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2009) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). If the
contingent events do not occur, the plaintiff will not suffer an injury that is concrete and
particularized enough to establish the “injury in fact” prong of standing. Id. As a result, the doctrine
of standing and the constitutional component of ripeness are intertwined and often indistinguishable,
and the analysis almost completely merge. Thomas, 220 F.3d at 1138-39. Whether the issue is
analyzed as standing or ripeness, the Constitution requires the existence of a case or controversy and
that the issues presented are “definite and concrete, not hypothetical or abstract.” Id. at 1139.
After weighing the “injury in fact” factors under the standing analysis, the court will conclude
that a pre-enforcement action is ripe for review if the alleged injury is “reasonable” and “imminent”
and not merely “theoretically possible.” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 838
(9th Cir. 2014). “A claim is not ripe where the asserted threat is wholly contingent on the occurrence
of unforeseeable events, or where the plaintiffs do not confront a realistic danger of sustaining a
direct injury as a result of the statute’s operation or enforcement.” Id. The Ninth Circuit discussed
the constitutional component of the ripeness analysis in Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134 (9th Cir. 1999). In that case, the plaintiffs were landlords that owned
residential rental properties. Id. at 1137. The plaintiffs were devote Christians who did not believe
in renting rooms to unmarried cohabitating people. Id. The state of Alaska and the City of
Anchorage both adopted anti-discrimination laws that prohibited a landlord from refusing to rent on
the basis of marital status. Id. The plaintiffs filed suit alleging that enforcement of the law infringed
upon their First Amendment rights to free exercise of religion and free speech. Id. at 1139.
The Ninth Circuit en banc panel concluded that the case was not ripe for review. Id. at 1141.
Specifically, the plaintiffs were unable to demonstrate a concrete plan to violate the law. Id. at 1139.
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Although they refused to rent to unmarried couples in the past, they were unable to identify when,
to whom, where, or under what circumstances they refused those particular renters. Id. Additionally,
their pledge to violate the law in the future did not rise to the level of an articulated, concrete plan
because they again could not specify when, to whom, where, or under what circumstances they
would turn down a renter. Id.
Further, there was no threat of enforcement of the law against the plaintiffs. Id. at 1140. The
plaintiffs had not been threatened with prosecution and no action had been brought against them.
Id. The court found that the threat of enforcement based on a future violation was beyond
speculation. Id. Moreover, the record was void of past instances were the law was enforced in a
similar situation. Indeed, no criminal prosecutions were ever initiated as a result of a violation of
the anti-discrimination laws. Id. Only two civil complaints were ever filed, and these came from
actual prospective tenants, not hypothetical complaints. Id. at 1140-41.
Based on these factors, the en banc panel concluded that the case was not ripe for review.
Id. at 1141. The threat of prosecution was entirely dependent on future unforeseeable events such
as whether the plaintiffs retained their rental properties; whether an unmarried couple sought to lease
the property; whether the couple filed a complaint with the enforcement agency; and whether the
enforcement agency decided to prosecute the complaint. Id. Accordingly, the plaintiffs did not face
a realistic danger of sustaining a direct injury as a result of the anti-discrimination laws. Id.4
The ripeness analysis in the present case is even more attenuated than the analysis in Thomas.
See also San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir.4
1996) (finding that the plaintiffs did not satisfy the standing and ripeness requirements to
challenge a law regulating the sale and manufacture of firearms because, in part, the plaintiffs
failed to establish a concrete plan to violate the law when they only claimed that they intended to
violate the law at some point in the future).
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In Thomas, the plaintiffs’ claim was not ripe because the plaintiffs: (1) could not identify when, to
whom, where, or under what circumstances they would violate the laws; (2) the plaintiffs were never
threatened with prosecution; and (3) the prosecuting authority never initiated proceedings against
anyone pursuant to the challenged laws. Here, the same factors weigh in favor of finding that
Plaintiffs’ claims are not ripe. First, the Plaintiffs cannot demonstrate that they will violate the
ordinance because they are excepted from the ordinance. In Thomas, the plaintiffs were challenging
laws that they could potentially be prosecuted for if they declined renters based on marital status.
Here, Plaintiffs cannot be prosecuted pursuant to the ordinance because they are excepted from it.
Second, the Plaintiffs have never been threatened with prosecution as they are presently constituted.
Third, Defendant has never initiated prosecution proceedings against anyone for violation of the
ordinance. Additionally, city officials have provided Plaintiffs with a sworn declaration swearing
that Plaintiffs will not be prosecuted pursuant to the ordinance so long as they remain a religious
corporation. (Dkt. 24-2.) Thus, Plaintiffs’ claims are not ripe for review.
The prudential component of ripeness requires the court to make two inquires: (1) whether
the issues are fit for judicial review; and (2) whether withholding court consideration would cause
a hardship to the parties. Id. at 1141. In inquiring into whether hardships would result from
withholding court consideration, the court will look at whether there exists any real or imminent
threat of enforcement against the plaintiffs. Id. at 1142.
In the instant case, the Court should elect not to decide this case as a result of the prudential
component of ripeness. First, as demonstrated by the constitutional component, this case is not fit
for judicial review. The record contains no allegations that the Plaintiffs have ever been threatened
with prosecution, will be subject to prosecution in the future, or have suffered any injury as a result
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of Defendant’s alleged conduct. Second, withholding court consideration will not cause hardship
to the parties. Plaintiffs are under no threat of prosecution and are under no pressure to deny their
religious beliefs because they are exempt from the ordinance. The Plaintiffs may decline to perform
same-sex marriages, thereby adhering to their religious beliefs, without the fear of prosecution.
Thus, there is no hardship to decline court consideration.
V. CONCLUSION
Plaintiffs do not have standing to challenge the ordinance because they cannot establish an
injury in fact or a causal connection to Defendant’s conduct. Plaintiffs are excepted from the
ordinance. Therefore, they cannot demonstrate a concrete intent to violate the law and they cannot
show a genuine threat of imminent prosecution. Plaintiffs also have suffered no injury as a result
of Defendant’s alleged conduct. As a result, Plaintiffs do not have standing and their Amended
Complaint must be dismissed. Additionally, Plaintiffs’ claims are not ripe for review. Plaintiffs
have not suffered an injury in fact and are under no threat of prosecution; therefore, they cannot
demonstrate that their alleged injury is reasonable and imminent. Moreover, Plaintiffs will suffer
no hardship as a result of dismissal of their Amended Complaint. Plaintiffs can continue to adhere
to their religious beliefs without fear of prosecution because they are excepted from the ordinance.
Accordingly, Plaintiffs’ claims are not ripe for review and their Amended Complaint must be
dismissed.
DATED this 30 day of March, 2015.th
NAYLOR & HALES, P.C.
By: /s/ Kirtlan G. Naylor. Naylor, Of the Firm
Attorneys for Defendant City of Coeur d’Alene
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS - 20
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CERTIFICATE OF SERVICE
I hereby certify that on the 30 day of March, 2015, I electronically filed the foregoing withth
the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the
following person(s):
David A. Cortman; [email protected]
Kevin H. Theriot; [email protected]
Rory T. Gray; [email protected]
Jeremy D. Tedesco; [email protected]
Jonathan A. Scruggs; [email protected]
Virginia McNulty Robinson [email protected]
Attorneys for Plaintiff
/s/ Kirtlan G. Naylor
9293_17 Memo Re MTD Amd Complaint_FINAL.wpd
DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS - 21
Case 2:14-cv-00441-REB Document 31-1 Filed 03/30/15 Page 21 of 21
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]
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Kirtlan
G.
Naylor
[rSB
No.
356e]
Jacob H.
Naylor
[ISB
No.
8474]
Landon
S.
Brown
[rSB
No.9o23]
NAYLOR
&
IIALES,
P.C.
Attorneys
at
Law
950
W.
Bannock
Street, Ste. 610
Boise,Idaho
83702
Telephone
No.
(208)
383-9511
Facsimile
No.
(208)
383-9516
Email:
iake@,naylorhales.com;
landon@,naylorhales.com
Attorneys
for
Defendant
IN THE
UNITED STATES
DISTRICT
COURT
FOR THE DISTRICT
OF
IDAHO
DONALD KNAPP;
EVELYN
KNAPP;
HITCHING
POST
WEDDINGS, LLC,
Case
No. 2:14-CY -0044 1
-REB
vs.
Plaintiffs,
DECLARATION
OF
IVtrCHAEL
C.
GRIDLEY
CITY OF COE,UR
D'ALENE,
Defendants
I, MICHAEL
C. GRIDLEY, declare
underpenaltyofperjurythat
the
following is true and
correct:
l.
I have
personal
knowledge
of
the matters set
forth
herein
and if
called upon
to
testiff
of
them
I
could
do so competently.
2.
I
am
the
City Attorney for
the
City
of
Coeur
d'Alene,
Idaho.
As
the
City Attorney,
I am
responsible
for all litigation involving the City of
Coeur
d'Alene.
This
includes
prosecutions
pursuant
to
city ordinances.
DECLARATION
OF
MICHAEL
C.
GRIDLEY.
1.
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3. I amfamiliarwith
DonaldKnapp, EvelynKnapp,
andHitchingPostWeddings,
LLC,
( Plaintiffs ).
4.
As
a result
of
my
job
responsibilities,
I
am
familiar
with
Coeur
d'Alene City
Ordinance
$
9.56
( anti-discrimination
ordinance ). I am also familiarwith
the exception to the anti-
discrimination
ordinance,
Coeur d'Alene
City Ordinance
$
9.56.040(BX I
).
The
exception
provides,
inpart, that
religious
corporations
are excepted
from
the
anti-discrimination
ordinance.
Religious
corporation
is not
defined in
the
ordinance. Whether or
not
a business
is
a
religious
corporation
is
determined on a case-by-case analysis
based on a variety of
factors. My
opinion about whether
a
business
qualifies
as
a
religious corporation
exempt
from
the ordinance
would
be dependant
on
the information
provided
to
me
about
the
particular
business.
5. The
anti-discrimination
ordinance
has
been
in
force
for
approximately one
and
one-
half
years,
and the
City
has
pursued
no
prosecutions pursuant
to
the
ordinance.
6.
In
the spring
of
2014, Donald Knapp
contacted
myself and another
city
official
and
inquired
whether the
Hitching
Post
would be
in
violation
of
the
anti-discrimination ordinance.
Donald
Knapp never
informed
me
that
he
believed
the Hitching
Post
was a religious corporation,
that the
pulpose
of
the
Hitching
Post
was to
promote
biblical
marriage, or that the
Hitching
Post
performed
only
religious
ceremonies.
Based
on the
information I
had
at that time,
it
appeared that
the
Hitching
Post
was
not
operating
as a
religious
corporation.
I
had
no contrary
information
that
would
have indicated
that the
Hitching Post qualified
as a
religious
corporation.
7
.
On
October
17
,2014,
Plaintiffs filed
a
Verified
Complaint
against the
City
of Coeur
d'Alene.
Upon
reading
the Verified
Complaint
and its
accompanlng
exhibits,
I
learned that
Plaintiffs
substantially
changed
their
business entity
and
considered themselves
a religious
DECLARATION
OF
MICIIAEL
C. GRIDLEY
-
2.
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corporation.
This
was
the first time I
was aware that
Plaintiffs
considered that
they operated
a
religious
corporation.
The
Verified
Complaint
also
informed
me that Plaintiffs'
purpose
was
to
promote
biblical
marriage
and that
Plaintiffs'
only
performed
religious
ceremonies. Based
on this
new information,
it
appeared to me
that the
Hitching
Post
qualified
as a
religious
corporation
excepted
from
the anti-discrimination
ordinance.
8.
Based
upon the contents
of
the
Verified
Complaint
and
corporate
filing
records,
Plaintiffs
formed
a
religious
corporation
by at
least
the time
period
of
September 12,2014, to
October
6,2014.
Specifically,
Plaintiffs
created a
new
entity,
Hitching
Post
Weddings,
LLC, and
filed
a
certificate
of
organization
with
the Idaho
Secretary
of
State
on
September
12,2014.
Afterwards,
Plaintiffs
drafted anew operating agreement,
signed October
6,2014,which
articulated
that the new
entity's
purpose
was to
promote
biblical
marriages. Around that
same
time,
Plaintiffs
also
created
new
employee
and
customer
policies,
which
stated
that the new
entity was
a
religious
corporation owned by
Christian
ministers for
a
religious
purpose.
Based
on
this
new information,
the Plaintiffs
operated
as a
religious
corporation
by
at least
October 6,2014. Upon
information
and
belief,
the Plaintiffs have
operated
as
a
religious
corporation
since
at least
October 6,2014, and
still
currently
operate as a
religious
corporation. As a result,
the
Hitching Post
Weddings,
LLC,
and its
owners, Donald and Evelyn
Knapp,
as
presently
constituted,
are a
religious
corporation
excepted
from
the anti
-di scrimination
ordinance.
9. Since
Plaintiffs
formed
a
religious
corporation, city
officials
have
never
threatened
Plaintiffs
with
prosecution
if
theyrefused
to
perform
same-sex wedding
ceremonies.
Additionally,
after forming
a
religious
corporation,
the
Plaintiffs
have not
requested an
opinion from
city
officials
whether their newly formed
religious
corporation
would be
subject
to
prosecution
pursuant
to
the
DECLARATION
OF
MICHAEL
C.
GRIDLEY.3.
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anti-discrimination
ordinance. Prior
to
October
7
,2014,city
officials
never
informed
Plaintiffs
that
theyneededto
close
theirbusiness
ortheywouldbe subjecttoprosecutionpursuantto
the
ordinance.
Additionally, Plaintiffs
never inquired
with
city officials about
whether they
would
be
prosecuted
pursuant
to the
ordinance if their
business
remained
open
from
October
7,2014,
through
October
15,2014.
10. After
reading
the
Verified Complaint,
I
sent
a
leffer
to
Plaintiffs'
attorney, on
October
20,2014,
attached
as
Exhibit
A, to
clarify
that the Plaintiffs
were
not
subject to
prosecution,.
The
purpose
of the
letter
was to inform
the
Plaintiffs
that,
as a
religious
corporation,
they
would
not
be
prosecuted
under the anti-discrimination ordinance, and therefore,
I
believed
their lawsuit
was
premature
and
not ripe
for adjudication.
After
sending the
letter it
was
clarified
to
me
that
Hitching
Post
Weddings,
LLC
was a
for-profit
religious
corporation.
This information
did
not
alter
my
conclusion that
Plaintiffs
operated
a
religious
corporation exempt
from
the ordinance.
However,
recognizing that my first letter may have
caused
confusion, I sent a second
letter
to
Plaintiffs'
attorney
on
October
23,2014, attached
as
Exhibit
B,
clariffing
that Plaintiffs
were
exempt
from the
anti-discrimination
ordinance
and
would
not
be
subject to
prosecution
under the ordinance.
ll. On October 23,2014, the Coeur d'Alene
Police Department received a
verbal
complaint from a
person
asserting that
Plaintiffs
refused to
perform
a
same-sex
wedding
ceremony.
I knew that Plaintiffs
were
excepted
from
the anti-discrimination ordinance;
therefore,
I
informed
the
Police
Department
that
Plaintiffs
had
committed
no legal
wrong
and
would
not
be
prosecuted
for any
violation.
DECLARATION OF
MICHAEL C. GRIDLEY.4.
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12.
I
have
communicated to
the Plaintiffs
that theywill not
be
prosecuted
for refusing
to
perform
same-sex
marriages.
So
long as
Plaintiffs
remain
a religious
corporation,
the Plaintiffs
will
not
be
prosecuted
pursuant
to
the
anti-discrimination
ordinance.
PURSUANTto28U.S.C.
SlT46,Ideclareunderpenaltyofperjurythattheforegoingistrue
and correct.
EXECUTE
O
on tt
isflday
of
March,
2015.
C.
(
DECLARATION
OF
MICHAEL
C. GRIDLEY
-
5.
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CERTIFICATE
OF SERVICE
I hereby
certiff that on the
_
day of
March,
2Ol5,I
electronically
filed
the
foregoing
with
the
Clerk
of
the
Court
using the
CM/ECF
system
which
sent
a Notice
of
Electronic Filing
to the
lollowing
person(s):
David
A. Corhnan; dcortman
@,al
I
i
an cedefendi ngfreedom.
org
Kevin
H. Theriot;
Rory T.
Gray;
rerav@al liancedefendi nefreedom.orq
Jeremy
D.
Tedesco;
i
tedesco@,al
I
i
ancefendi
ngfreedom.org
Jonathan A.
Scruggs;
i
scrugss@al
I
i
ancefendingfreedom.
org
Virginia
McNulty
Robinson
Attorneysfor Plaintffi
/s/
Kirtlan
G.
Naylor
9291 l6
Dcclaration
of
Gridlcy
MTD
Amd
Complaint
(FINAL
2).wpd
a
DECLARATION
OF
MICHAEL
C.
GRIDLEY.6.
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CITY
ATTORNEY'S
OFFICE
c6'iJi
d'Alene
October 20. 2014
Mr.
David
A.
Cortman
Via
email:
Alliance
Defending
Freedom
1000 Hurricane Shoals Road NE,
Suite
D-1 100
Lawrenceville, GA 30043
RE:
Knapp,
et
al v.
City of
Coeur
d'Alene
[)ear
Mr.
Gortman
I am
the
city
attomey
for
the
city of
Coeur
d'Alene, Idaho.
As
we
discussed
today by telephone I
have
reviewed the
63
page
complaint
and
the
attached
exhibits
filed
by
your
clients
in
their lawsuit
against the City.
While
I
appreciate
your
clients'
concems,
it
appears from the documents
filed in
their lawsuit
that they
are claiming to be
operating
a
religious
corporation .
lf
they
are
truly
operating a not-for-profit
religious
corporation they
would
be specifically exempted
from the
City's
anti-discrimination
ordinance,
Municipal
Code
9.56.01 0 et seq.
My office has responded
to
questions
from
your
clients
in
the
past
and told
them that,
based
on the
facts
presented
and their
corporate
status
at the time,
they
would likely be
govemed
by
the anti-
discrimination ordinance
if
a complaint was made against
them.
Their lawsuit was something of a
surprise
because we have had cordial
conversations
with
them in
the
past
and
they
have
never
disclosed that they have recently
become
a religious
corporation.
However
it
now
appears
that on or
about
October
6,2014
they
filed with the
Idaho
Secretary
of
State
as
a religious corporalion. These
are new flacts.
[fthey
are operating as
a
legitimate not-for-
profit
religious corporation then
they
are
exempt
from the
ordinance
like any
other
church or
religious association. 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
lederal law, the
City
will
not
prosecute
legitimate,
nonprofit
religious
corporations,
associations, educational
institutions,
or societies or other exempt organizations or anyone else as
a
result
of their
lawfi:l
exercise
oftheir
first
amendment rights
offreedom of
speech
and
religion.
In
addition to specifically
exempting
religious
corporations,
associations, educational
institutions, and
societies, section 9.56.040
ofthe anti-discrimination
ordinance states that the ordinance
shall
be
construed and
applied in
a
manner
consistent
with
first
amendment
jurisprudence
regarding
the freedom of speech and
exercise
of religion .
710 E. Mullan Avenue
Coeur
d'Alene, Idaho
83814
(208)7
69-2348
-
F AX
(208\7
69-2349
www.cdaid.org
IDAHO
EXHIBIT A
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I
believe that
given
the current facts
your
clicnts' lawsuit is
premature
and
not
ripe for
adjudication.
As
such,
I
would ask that
you
review
this letter
with
your
clients
and urge
them to dismiss their
Iawsuit beforc
any
more
time
and
resources
arc
expended. Please
call
me
if
you
have any
questions.
Very
v
C.
City Attomey
Ms.
Virginia McNulty
Robinson
Robinson
Law, PLLC
1910
Northwest Blvd.,
Suite
200
Coeur
d'Alene,
ID
83
814
Via email:
vrobinsonlaw-pllc.com
EXHIBIT A
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CITY ATTORNEY'S
OFFICE
c,;'d,ii d'Arene
IDAH O
7't0
E.
Mullan
Avenue
Coeur d'Alene, Idaho 83814
(208)7 69-2348
-
F AX (208)7 69-849
www.cdaid.org
October 23. 2014
Mr. David A. Cortman
Alliance
Defending
Freedom
1000 Hurricane
Shoals
Road
NE,
Suite
D-l100
Lawrenceville, GA 30043
Via email:
RE: Knapp, et al v. City of Coeur d'Alene
Dear
Mr.
Cortman:
This
letter is intended as
a clarification of my
letter
to
you
on October
20, 2014 regarding the above
referenced case.
Based on
the facts
presented
to
the
city by
your
clients'
pleadings in
the
above
referenced
lawsuit and
further
review
and
analysis
of the
city's
anti-discrimination
ordinance
(MC
9.56.010,
et seq.) it is my
opinion and
the city's
position
that
as currently
represented, the conduct by Hitching
Post
Weddings
L.L.C. is exempt from the requirements olthe ordinance and
would
not
be
subject to
prosecution
under
the
ordinance
if
a complaint was
received
by the city.
Pleasc contact me ifyou have any
questions.
Very
truly
yours,
ichacl C.
City
Attomey
cc Ms. Virginia McNulty Robinson
Robinson Law. PLLC
I
910 Northwest
Blvd.. Suite
200
Coeur
d'Alene,
ID
83814
Via cmail: vrobinsonlaw-pllc.com
Kirtlan G. Naylor
Naylor
Hales,
P.C.
950 West Bannock
St,,
Suite 610
Boise, lD 83702
Via email: [email protected]
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