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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 83702Telephone No. (208) 383-9511Facsimile No. (208) 383-9516Email: [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,

Defendants.

Case No. 2:14-CV-00441-REB

DEFENDANT’S MOTION TO DISMISS

Defendant, City of Coeur d’Alene by and through its attorneys of record, the law firm

of Naylor & Hales, P.C., hereby moves this Court to dismiss all claims against Defendant under

F.R.C.P. 12(b)(1), because Plaintiffs do not have standing and their claims are not ripe for review.

This motion is supported by a memorandum.

DATED this 23 day of February, 2015.rd

NAYLOR & HALES, P.C.

By: /s/ Kirtlan G. Naylor. Naylor, Of the FirmAttorneys for Defendant City of Coeur d’Alene

DEFENDANT’S MOTION TO DISMISS - 1

Case 2:14-cv-00441-REB Document 24 Filed 02/23/15 Page 1 of 2

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on the 23 day of February, 2015, I electronically filed therd

foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of ElectronicFiling to the following person(s):

David A. Cortman; [email protected] Kevin H. Theriot; [email protected] T. Gray; [email protected] D. Tedesco; [email protected] Jonathan A. Scruggs; [email protected] Virginia McNulty Robinson [email protected]

Attorneys for Plaintiff

/s/ Kirtlan G. Naylor

9293_06 MTD.wpd

DEFENDANT’S MOTION TO DISMISS - 2

Case 2:14-cv-00441-REB Document 24 Filed 02/23/15 Page 2 of 2

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 [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 83702Telephone No. (208) 383-9511Facsimile No. (208) 383-9516Email: [email protected] ; [email protected] ; [email protected]

Attorneys for Defendant



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 INSUPPORT OF MOTION TO DISMISS

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 . 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. 1, ¶¶ 26, 29.) Hitching Post Weddings, LLC, is a “religious

corporation” created on September 12, 2014. ( Id. at ¶ 111, 115; Dkt. 1-4; Declaration of Michael

DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS - 1

Case 2:14-cv-00441-REB Document 24-1 Filed 02/23/15 Page 1 of 21

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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C. Gridley in Support of Motion to Dismiss, hereafter “Gridley Dec.”, ¶ 8.) On October 17, 2014,

Plaintiffs filed a Verified Complaint (“Complaint”) against Defendant alleging: (1) violation of their

First Amendment right to freedom of speech, compelled speech, viewpoint discrimination, and

unconstitutional conditions; (2) violation of their First Amendment right to free exercise of religion;

(3) violation of their rights under the Idaho Free Exercise of Religion Protected Act; (4) violation

of their Fourteenth Amendment right to equal protection; and (5) violation of their Fourteenth

Amendment right to due process. (Dkt. 1.)1

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.” C OEUR

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, Hitching Post Weddings, LLC, is excepted from the

ordinance because it is a religious corporation. Additionally, the Knapps are excepted from the

Plaintiffs also filed a Motion for a Temporary Restraining Order and/or Preliminary1

Injunction (Dkt. 3.), which Defendant objects to. However, as the resolution of Defendant’sMotion to Dismiss may render Plaintiffs’ motion as moot, Defendant will wait until resolution of this Motion to Dismiss to file a response to Plaintiffs’ motion, unless the Court directs otherwise.



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ordinance as members, owners, and operators of a religious corporation. Therefore, Plaintiffs will

not be in violation of the ordinance if they refuse to perform same-sex weddings. Since the

ordinance does not apply to Plaintiffs, Plaintiffs lack standing to challenge the constitutionality of

the ordinance and their claims are not ripe for review.

II. BACKGROUND

The Knapps purchased a wedding chapel in 1989. (Dkt. 1, ¶ 67.) When the Knapps

purchased the chapel, they began operating the business as an S-Corporation. ( Id. at ¶ 109.) The

Knapps continued to operate the business as an S-Corporation until September 12, 2014. ( See Dkt.

1, ¶ 110; Gridley Dec., ¶ 8.) This S-Corporation no longer exists.

On May 13, 2014, a federal district court judge invalidated an Idaho law defining marriage

as the union between a man and a woman. (Dkt. 1, ¶ 282.) After various stays and legal

proceedings, same-sex marriage became legal in Idaho on October 15, 2014. ( Id. at ¶ 324.)

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 ¶ 286.) 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 ¶ 286.) 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 ¶ 297.)

At that time, the Knapps still operated the Hitching Post as the S-Corporation. ( See Id. at ¶ 109.)

Around May 20, 2014, and again around June 20, 2014, the Knapps allegedly called a city



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official to inquire whether the Hitching Post, the S-Corporation, would be subject to the city’s

ordinance. ( Id. at ¶¶ 306-318.) Based on the general hypothetical presented to the city and the city’s

limited knowledge of the Hitching Post’s organizational structure, the Knapps were allegedly

informed that the ordinance would require the Hitching Post to perform same-sex marriages, should

such marriages be upheld by the courts. ( Id. ) The Knapps were never informed that they would be

prosecuted pursuant to the ordinance if they refused to perform same-sex marriages.

Thereafter, the Knapps took preemptive action to ensure that they would not have to perform

same-sex marriages in case those marriages became legal. On September 12, 2014, the Knapps

formed Hitching Post Weddings, LLC. ( Id. at ¶ 110; Gridley Dec., ¶ 8; Dkt. 1-4.) 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. Around the same time, the Knapps

“took the opportunity to memorialize their practices, goals, and purposes” for the new entity,

Hitching Post Weddings, LLC. (Dkt., ¶ 111.) In doing so, the Knapps created an operating

agreement that identified the new entity’s character, ethos, and goals. ( Id. at ¶ 113; Dkt. 1-4.) The

operating agreement stated that the Hitching Post was a “religious corporation” with the primary

purpose to “help people create, celebrate, and build lifetime, monogamous, one-man-one-woman

marriages as defined by the Holy Bible.” (Dkt. 1 . ¶ 115; Dkt. 1-4, p. 4.) Additionally, the operating

agreement stated, “The Christian religion requires that all its adherents, and especially its ministers,

apply their religious precepts and doctrines to all facets of their lives, including their work and the

operation of their business.” (Dkt. 1-4, p. 4.)

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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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

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



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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

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-DiscriminationOrdinance Because They are Unable to Articulate an Injury in Fact as They areExempt from the Ordinance.

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



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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,

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)).

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 or imminent. Lujan v. Defenders of Wildlife , 504 U.S. 555,

560 (1992). When challenging a statute on First Amendment grounds, Courts apply a more lenient

standard for demonstrating injury in fact. Lopez v. Candaele , 630 F.3d 775, 785 (9th Cir. 2010).

In such instances, plaintiffs do not need to demonstrate that they suffered a direct injury from the

challenged restriction. Id. Instead, the plaintiffs may satisfy the injury in fact requirement by

“demonstrating a realistic danger of sustaining a direct injury as a result of the statute’s operation

or enforcement.” Id. (quoting Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 298

(1979)).

As a result of this more lenient standard, plaintiffs may, in certain circumstances, bring a



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lawsuit challenging a law before the law is enforced against them. When plaintiffs bring suit

challenging the constitutionality of a statute prior to the statute 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).

1. Concrete Plan to Violate the Ordinance

The Constitution requires something more than a hypothetical intent to violate the law;

therefore, plaintiffs must articulate a concrete plan to violate the law in question by giving details

about their future conduct such as when, to whom, where, or under what circumstances the law will

be violated. Lopez , 630 F.3d at 787; Thomas , 220 F.3d at 1140. A general intent to violate the law

at some unknown date in the future is not sufficient. Protectmarriage.com-Yes on 8 v. Bowen , 752

F.3d 827, 838 (9th Cir. 2014).

In the instant case, Plaintiffs have failed to articulate that they have a concrete plan which



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would violate the ordinance in the future. Plaintiffs are excepted from the ordinance and will not2

be in violation of the ordinance if they refuse to perform same-sex weddings pursuant to that

exception. As discussed above, the Knapps created Hitching Post Weddings, LLC, on September

12, 2014. (Gridley Dec., ¶ 8.) Shortly thereafter, the Knapps signed an Operating Agreement of

Hitching Post Weddings, L.L.C. (Dkt. 1-4.) This operating agreement was signed on October 6,

2014. ( Id. at p. 23.) The operating agreement stated that “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.” ( Id. at p. 4.) The operating agreement further states that the company’s

purpose “is to help people create, celebrate, and build lifetime, monogamous, one-man-one-woman

marriages as defined by the Holy Bible.” ( Id. ) The operating agreement is explicit that Hitching

Post Weddings, LLC is a religious corporation operating under religious principles in furtherance

of religious beliefs.

As a result of the Knapp’s creation of Hitching Post Weddings, LLC and their formation of

the operating agreement, the Knapps unambiguously began operating a religious corporation by at

As well as having no concrete plan to violate the ordinance in the future, Plaintiffs also2

failed to allege that they violated the ordinance at all. Plaintiffs contend that they violated theordinance in May 2014 when an employee declined a wedding request. (Complaint, ¶¶ 261-263.)However, at that time, same-sex marriage was not legal in Idaho and the Knapps were operatingthe Hitching Post as an S-Corporation. Since that time, same-sex marriage was legalized inIdaho and Plaintiffs created a religious corporation, which is excepted from the ordinance.Therefore, Plaintiffs cannot allege that the newly created religious corporation has a concrete

plan to violate the law in the future because of the actions of the former S-Corporation, which nolonger exists. Plaintiffs also contend that they violated the ordinance on October 17, 2014.(Complaint, ¶ 111.) However, the Plaintiffs were excepted from the ordinance at that time andtherefore did not violate the ordinance by declining to perform a same-sex wedding ceremony,nor were they threatened with prosecution for this denial.



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least October 6, 2014. As a religious corporation, Hitching Post Weddings, LLC is excepted from

the ordinance. Additionally, the Knapps, as owners and operators of a religious corporation, are

excepted from the ordinance when performing actions associated with the operation of Hitching Post

Weddings, LLC. The Plaintiff’s complaint alleges that the Plaintiffs “intend to decline any other

requests they receive to perform same-sex wedding ceremonies at The Hitching Post.” (Complaint,

¶ 265.) Even if Plaintiffs fulfill their plan of denying every request for same-sex marriages, they will

not be in violation of the ordinance. The ordinance does not apply to the current Plaintiffs. 3

Based on the foregoing, Plaintiffs cannot demonstrate that they have a concrete plan to

violate the ordinance. Plaintiffs, as presently constituted, have not violated the ordinance and they

make no allegations that would indicate a plausible plan to violate the ordinance in the future.

Indeed, they cannot violate the ordinance as presently constituted because they are excepted from

the ordinance.

2. Threat by Prosecuting Authorities to Initiate Proceedings

A specific warning or threat to prosecute a plaintiff for violation of the challenged law is

evidence of the government’s preliminary efforts to enforce the law. Lopez , 630 F.3d at 786. In

a pre-enforcement challenge that alleges a First Amendment free speech violation, the plaintiffs only

need to establish that a threat of potential enforcement caused them to self-censor and not follow

through with a concrete plan to violate the law. Protectmarriage.com , 752 F.3d at 838.

Evidence that the prosecuting authority decided not to prosecute the plaintiffs for violations

The only way Plaintiffs can articulate a plan to violate the ordinance would be to allege3

that they intend to create a non-religious corporation and deny the services of that corporation tocustomers based on their sexual orientation. Plaintiffs have made no such allegations. Further,such allegations would be entirely hypothetical and speculative and would not satisfy the“concrete plan” requirement to demonstrate an injury in fact.



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of the challenged law demonstrates that plaintiffs have no fear of prosecution sufficient to establish

standing. In Sacks v. Office of Foreign Assets Control , 466 F.3d 764 (9th Cir. 2006), the United

States Department of Treasury established sanction regulations against Iraq, including a travel ban

and a ban on unlicensed medical donations. Id. at 769. The plaintiff violated these regulations by

repeatedly traveling to Iraq and delivering unlicensed medical supplies. Id. at 767. He was charged

with violating the travel ban, but he was not charged with violating the unlicensed medical donations

regulation. Id. at 769-70.

The plaintiff challenged both regulations, and the Ninth Circuit held that the plaintiff lacked

standing to challenge the medical donation regulations because he was not charged with violating

that regulation and he faced no threat of such a charge. Id. at 774-75. The court analyzed the

relevant factors under a pre-enforcement challenge and found that the plaintiff had satisfied two of

the requirements. Specifically, the plaintiff had more than a concrete plan to violate the regulation

because he actually had violated it on numerous occasions. Id. at 773. Additionally, he alleged that

violators of the regulation had historically been targeted and prosecuted for their actions. Id.

However, the plaintiff failed to establish that he was threatened with prosecution for violating the

regulation. Indeed, the court stated:

[Plaintiff’s] fear of prosecution runs aground on the government’s decision tocharge and penalize him for only the violation of the Travel Ban and not for theMedicine Restrictions violation.. . . .Contrary to [Plaintiff’s] contention, the government’s decision to penalize himfor only the Travel Ban violation, when it was fully aware he had also violatedthe Medicine Restrictions, indicates that the government does not intend to

penalize him for any of his numerous violations of the Medicine Restrictions.

Id. at 773-74. Accordingly, the court found that the plaintiff was unable to establish a concrete and

imminent injury in fact, and held that he did not have standing to challenge the medical donations



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regulation. Id. at 775. Therefore, a prosecuting authority’s refusal to prosecute a violation of the

challenged law can be evidence that the plaintiffs lack a concrete and imminent injury in fact.

Additionally, the threat of prosecution cannot be imaginary or speculative. In Steffel v.

Thompson , 415 U.S. 452 (1974), the plaintiff and a companion were protesting American

involvement in Vietnam by distributing handbills outside a shopping center. Id. at 455-56. Law

enforcement threatened plaintiff with arrest for criminal trespassing on three occasions. Id. Plaintiff

filed suit seeking declaratory relief and claiming that the criminal trespass law, as applied, violated

his First and Fourteenth Amendments. Id. at 455. The Supreme Court found that the plaintiff faced

a threat of prosecution that could not be characterized as imaginary or speculative. Id. at 459. The

court pointed out that the plaintiff had been warned twice to stop handbilling and he was told a third

time that he would be arrested if he did it again. Id. Further, his companion had been arrested and

prosecuted for the same activities that the plaintiff was engaged in. Id. Accordingly, the court found

that the plaintiff could challenge the very law that formed the basis of the threats of criminal

prosecution against him. Id.4

In the instant case, Plaintiffs have failed to demonstrate that they have been threatened with

prosecution. First, city officials have recognized that Plaintiffs are excepted from the ordinance and

have refused to prosecute them for any perceived violations. (Gridley Dec., ¶¶ 8, 12.) Second, the

Complaint fails to articulate a single threat of prosecution made against Plaintiffs after they became

a religious corporation. ( Id. at ¶ 9.) Plaintiffs allege that city officials threatened them pursuant to

However, the Court remanded the case back to the district court to determine whether 4

other elements of the case or controversy requirement existed. Specifically, the Vietnam war hadended, and there remained a question of whether the plaintiff desired to continue handbilling inlight of those recent developments. See Steffel , 415 U.S. at 459-60.



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the ordinance on four separate occasions. Specifically, the Plaintiffs alleges that: (1) on May 15,

2014, a city official told a newspaper reporter that the Hitching Post would “probably” be subject

to the ordinance (Complaint, ¶ 286); (2) on May 15, 2014, a city official told a local television

station that a wedding chapel could “in theory” be in violation of the ordinance if it refused to

perform same-sex marriages ( Id. at ¶ 297); (3) around May 20, 2014, Knapp contacted a city official

and the official informed Knapp that he would have to perform same-sex marriages ( Id. at ¶ 310);

and (4) around June 20, 2014, Knapp contacted a city official who informed Knapp that he would

have to perform same-sex marriages ( Id. ¶ 318).

However, these allegations do not constitute specific threats of prosecution against the

Plaintiffs. First, each alleged “threat” was made prior to when the Knapps created a religious

corporation on September 12, 2014. Prior to the creation of the religious corporation, the Knapps

were owners and operators of an S-Corporation. Each alleged threat made by city officials in the

Complaint were statements made in regards to the S-Corporation. City officials never issued a single

threat of prosecution against the Knapps or Hitching Post Weddings, LLC, after the Plaintiffs created

a religious corporation and became exempt from the ordinance. Accordingly, as presently

constituted, the Plaintiffs have never been threatened with prosecution pursuant to the ordinance.

Even if the statements made by city officials were construed to be threats against the

Plaintiffs as presently constituted, such threats are not the type of specific threats sufficient to

establish standing. As discussed in Sacks and Steffel , the threat must be a threat of prosecution, not

simply an explanation of an ordinance’s penalty provision. Here, the first two alleged “threats” were

statements made to third parties and only articulated that the Knapps “in theory” and “probably”

would be subject to the ordinance. The statements never directly threatened the Knapps with



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the ordinance. Indeed, Defendant has not prosecuted anyone for violation of the ordinance during

the ordinance’s one and one-half year existence. (Gridley Dec., ¶ 5.) Thus, there is no historical

basis for Plaintiffs to establish a threat sufficient to support a pre-enforcement challenge.

Based on the foregoing factors, Plaintiffs have failed to allege an injury in fact. Plaintiffs

have not violated the ordinance and have no concrete plan to violate the ordinance because they are

excepted from it as a religious corporation. Additionally, Defendant has never threatened Plaintiffs,

as presently constituted, with prosecution for violation of the ordinance. Finally, Defendant has

never prosecuted any individual or business in the past for violation of the ordinance. 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 and their Complaint must be

dismissed. 5

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

Additionally, since Plaintiffs failed to articulate an injury in fact, they cannot satisfy the5

remaining two elements of standing. Specifically, Plaintiffs cannot demonstrate a causalconnection or that their injury could be redressed by a favorable judicial decision because theyhave not suffered any injury in fact.



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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.

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 , 752 F.3d at 838. “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



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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.

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



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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.6

The ripeness analysis in the present case is even more attenuated than the analysis in Thomas .

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. 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

See also San Diego County Gun Rights Committee v. Reno , 98 F.3d 1121 (9th Cir.6

1996) (finding that the plaintiffs did not satisfy the standing and ripeness requirements tochallenge a law regulating the sale and manufacture of firearms because, in part, the plaintiffsfailed to establish a concrete plan to violate the law when they only claimed that they intended toviolate the law at some point in the future).



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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 or will be subject to prosecution in the future. 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 Defendant’s ordinance because they cannot

establish an injury in fact. 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. As a result, Plaintiffs do not have standing and their 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 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 Complaint must be dismissed.

DATED this 23 day of February, 2015.rd

NAYLOR & HALES, P.C.By: /s/ Kirtlan G. Naylor. Naylor, Of the FirmAttorneys for Defendant City of Coeur d’Alene



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Kirtlan G. NaylorJacob H. Naylorlandon S. Brown

USB No. 35691

USB No. 84741

ISB No. 9023]NAYLOR & HALES, P.C.Attomeys at l,aw950 W. Bannock Street, Ste. 610Boise, Idaho 83702Telephone No. (208) 383-951 IFacsimile No. (208) 383-9516Emai I : kirt(@naylorhales.com iake(@naylorhal es.com I andon(@naylorhalcs. com

Attomevs for Defendant



DONALD KNAPP; EVELYN KNAPP;HITCHING POST WEDDINGS, LLC, Case No. 2:14-CV-00441-REB

Plaintiffs,

DECLARATION OF MICHAEL C.GRIDLEY

CITY OF COI]T]R D'ALENE,

Defendants

I, MICIIAEL C. GRIDLEY, declare underpenalty ofperjury that the following is true and

correct:

1. I have personal knowledge of the matters set forth herein and ifcalled upon to testifuof 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.

vs.


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12. I have communicated to the Plaintiffs that they will not be prosecuted for refusing to

perlorm same-sex marriages. So long as Plaintiffs remain a religious corporation, the Plaintiffs will

not be prosecuted pumuant to the anti-discrimination ordinance.

PURSUANT to 28 U.S.C. $ 1746, I declare under penalty of perjury that the foregoing is true

and correct.

EXECUTED on tt',;s ?zg*dayof February. 20 I 5.

C

DECLARATION OF MICHAEL C. GRIDLEY - 4.


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CERTIFICA OF SERVICE

I hereby certifu that on the _ day of February, 2015, I electronically filed the foregoingwith the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing tothe following person(s):

David A. Corffnan; dcortrnan(a)allianccdclcndingfrccdom.orgKevin H. Theriot; ktheriot(@al I i ancedefendi n gfreedom.orgRory T. Gray; rgray(a)alliancedefendingfreedom.orgJeremy D. Tedesco; itedesco(rDalliancefendingfteedom.orgJonathan A. Scruggs; iscruses(a)alliancefendingfreedom.orqVirginia McNulty Robinson vrobinson(a)robi nsonlaw-pllc.com

Attorneys Jbr Plaintffi

/s/ Kirtlan G. Naylor

DECLARATION OF MICIIAEL C. GRIDLEY - 5.


23rd

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CITY ATTORNEY'S OFFICE

c6Udl-d'AteneIDAHO

Octobcr 20. 2014

Mr. David A. Cortman Via cmail: [email protected] I iancc I)efcnding F-rccdom1000 Hurricanc Shoals l{oad NE, Suite D-l 100l.awrenccvillc, GA 30043

llE: Knapp, ct al v. City of Coeur d'Alene

[)car Mr. (iortman:

My officc has rcspondcd to questions lrom your clients in thc past and told them that, based on thelacts prescnted and thcir corporate status at thc time. thcy would tikcly be govemed by the anti-discrimination ordinancc if a complainl was nrade against them. Thcir lawsuit was something of asurprise becausc we havc had cordial conversalions with them in thc ptst and they have neverdiscloscd that thcy have recently become a rcligious corporation. However it now appears that on orabout October 6,20'14 they filcd with the Idaho Secrelary of State as a religious cor?oration. Theseare new lacts. l['they are opcrating as a legitimate not-for- proflt religious corporation then they arecxempt liom thc ordinance like any other church or religious association. On the other hand, iftheyarc providing sorvices primarily or substantially lor profit and they discriminate in providing thosescrvices based on sexual orientation then they would likcly be in violation ofthe ordinance.

I want to bc cloar that absent a change in thc (lity's anli-discrimination ordinance or other applicablestate or t'cdcral law, thc City will not prosecutc legitinrate, nonprofit religious corporations,associations, cducational institutions, or socictios or othcr excnrpt organizations or anyone else as arcsult of their lawful cxcrcise ol'their first amendment rights of lreedom of spcech and religion. Inaddition to spocifically cxempting rcligious corporations, associations. educational institutions, andsocictics. scction 9.56.040 of the anti-discrimination ordinance slatcs that thc ordinance shatl beconstrued and applied in a manner consistent with first amcndmcnt jurisprudence regardingthc frccrlom of specch and cxcrcisc of religion .

710 E. Mullan AvenueCoeur d'Alene, Idaho 83814

(208)7 6e-2j48 - F Ax (208)7 [email protected]

EXHIBIT A

I am thc city attomey tirr the city ol Cocur d'Alcne. Idaho. As we discussed today by telephone Ihavc revicwed the 63 page complaint and tho attached cxhibits filed by your clients in their lawsuitagainst thc City. Whilc I appreciate your clients' conccms, it appears fiom thc documents filed intheir lawsuit that they arc claiming to bc opcrating a religious corporation . lfthey are trulyoperating a not-for-prolit religious corporation they would be specifically excmpted from the City'santi-discrimination ordinance, Municipal Code 9.56.010 et se

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I helievc that given the current f'acts your clicnts' lawsuit is prcmaturc and not ripe lor adjudication.As such. I would ask that you rcvicw this lettcr with your clicnts and urge thcm to dismiss theirlawsuit bclorc any morc time and resourccs arc cxpendcd. Plcirse call nle il'you have any qucstions.

Vcry tru

(lCity Altomey

Ms. Virginia McNulty RobinsonRobinson Law, PLLCI 910 Northwest Btvd., Suite 200(loeur d'Alene. ID 83814

Via email: vrobinsonlaw-pllc.com

EXHIBIT A

I


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CIl'Y A]*fORNEY'S OFFICE

c6Udi'd'AteneIOAHO

7l(l lr. lrlullan r\r,crruc(lurur rl'r\lt:nc, klaho tillti l.l

(20 )76e-1j.ur - r;Ax (20rt)76e-1j.l9I r:r;llc4ctlaitl.rtrllrvrltr'.cdair.l.org

( )ctobcr l 1- l0 I -l

Mr. l)avid A. CortmanAll iancc I)cfcnding l.'rcedom1Ofi) Ilurricanc Shoals Road Nl:. Suitc I)-l100Lawrcnccvillc. (iA 30043

V ia cnrai l : dcortmanftal l iancedel'cndingfreedom.org

RIi: Knapp, ct al v. City of (ircur d'Alcnc

l)car IVI r. ('ortlntn

'l-his lcttcr is intcndcd as a clarilication ol'my letter to you on October 20, 2014 regarding the abovercfcrcnccd casc.

lJased on thc lacts prcscnted to thc city by your clicnts' pleadings in the abovc ret'erenced lawsuit andfurthcr rcview and analysis olthe city's anti-discrimination ordinance (MC 9.56.010 , ct scq.) it is nryopinion and thc city's position that as currcntly reprcscntcd, thc conduct by I Iitching Post Wcddingsl-.1..('. is cxempt liom the rcquircmcnls ol'thc ordinancc and would not bc sub.iect to prosccution undcrthc ordinancc il'a conrplaint was rcccivcd h1, thc city.

Plcasc contact mc il'you havc any questions.

Very truly yours.

ichacl C.GCity Attonrcy

Ms. Virginia McNulty RobinsonIlobinson Law. PLI-CIt) l0 Northwcst Blvd.. Suite 200Cocur d'Alcnc, ID 83tl l4

Via cmail: vrobinsonlaw-pllc.com

Kirtlan (i. NaylorNaylor& llalcs. P.C.950 Wcst llannock St., Suite 610Iloisc. II) 113702

Via cmail: kirl rt-nuvlorhrtlcs.cont


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