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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
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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
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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
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 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
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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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
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.
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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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