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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

Case 2:14-cv-00441-REB Document 31 Filed 03/30/15 Page 1 of 2

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

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DATED this 30 day of March, 2015.th


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

Case 2:14-cv-00441-REB Document 31 Filed 03/30/15 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]


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

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

Case 2:14-cv-00441-REB Document 31-1 Filed 03/30/15 Page 1 of 21

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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



8/9/2019 2:14-cv-00441 #31

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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


By: /s/ Kirtlan G. Naylor. Naylor, Of the Firm

Attorneys for Defendant City of Coeur d’Alene



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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



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]

8/9/2019 2:14-cv-00441 #31

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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:

[email protected];

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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25/32

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.


8/9/2019 2:14-cv-00441 #31

26/32

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.


8/9/2019 2:14-cv-00441 #31

27/32

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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28/32

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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29/32

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

[email protected]

Attorneysfor Plaintffi

/s/

Kirtlan

G.

Naylor

9291 l6

Dcclaration

of

Gridlcy

MTD

Amd

Complaint

(FINAL

2).wpd

a

DECLARATION

OF

MICHAEL

C.

GRIDLEY.6.


30th

8/9/2019 2:14-cv-00441 #31

30/32

CITY

ATTORNEY'S

OFFICE

c6'iJi

d'Alene

October 20. 2014

Mr.

David

A.

Cortman

Via

email:

[email protected]

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

[email protected]

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

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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

[email protected]

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:

[email protected]

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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