Powell's Books, Inc., et al v. John Kroeger, et al

Filing 60

Filed (ECF) Appellees Elizabeth Ballard, Jack Banta, Bernice Barnett, Walter M. Beglau, Brad Berry, Edwin I. Caleb, Stephen D. Campbell, Jason Carlile, Tim Colahan, Thomas W. Cutsforth, Peter L. Deuel, Everett Dial, Michael Dugan, John Fisher, John Foote, Paul Frasier, Dean Gushwa, Douglass Harcleroad, John Haroldson, Robert Hermann, Mark Huddleston, Ryan Joslin, John Kroeger, Joshua Marquis, Wade M. McLeod, Eric J. Nisley, Dan Norris, Daniel Ousley, William Bryan Porter, Michael D. Schrunk, David A. Schutt, John Sewell, Matt Shirtcliff, Tim Thompson, Marion Weatherford and Gary Williams in 09-35153, Appellees Steve Atchison, Elizabeth Ballard, Jack Banta, Bernice Barnett, Walter M. Beglau, Brad Berry, Edwin I. Caleb, Stephen D. Campbell, Jason Carlile, Tim Colahan, Thomas W. Cutsforth, Peter L. Deuel, Everett Dial, Michael Dugan, John Fisher, John Foote, Paul Frasier, Dean Gushwa, Douglass Harcleroad, John Haroldson, Robert Hermann, Mark Huddleston, Ryan Joslin, John R. Kroger, Joshua Marquis, Wade M. McLeod, Eric J. Nisley, Dan Norris, Daniel Ousley, William Bryan Porter, Michael D. Schrunk, David A. Schutt, John Sewell, Matt Shirtcliff, Tim Thompson, Marion Weatherford and Gary Williams in 09-35154 reply to response (). Date of service: 06/30/2010. [7390428] [09-35153, 09-35154] (ECL)

Powell's Books, Inc., et al v. John Kroeger, et al

Doc. 60

JOHN R. KROGER Attorney General of Oregon DAVID B. THOMPSON Interim Solicitor General MICHAEL A. CASPER Assistant Attorney General ERIN C. LAGESEN Assistant Attorney General 1162 Court St. Salem, Oregon 97301-4096 Telephone: [phone] Counsel for Appellees IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT POWELL'S BOOKS, INC., et al, Plaintiffs-Appellants, v. JOHN KROGER, et al., Defendants-Appellees. _______________________________ AMERICAN CIVIL LIBERTIES UNION OF OREGON, et al., Plaintiffs-Appellants, v. JOHN KROGER, et al, Defendants-Appellees. At issue in this case is the constitutionality of two related Oregon criminal statutes that regulate the provision of pornography to children and Page 1 - REPLY IN SUPPORT OF MOTION TO CERTIFY ECL:mxg\2121506
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

U.S.C.A. No. 09-35153

REPLY IN SUPPORT OF MOTION TO CERTIFY

U.S.C.A. No. 09-35154

REPLY IN SUPPORT OF MOTION TO CERTIFY

Dockets.Justia.com

minors: Or. Rev. Stat. §§ 167.054 and 057. The constitutionality of those statutes hinges on their meaning and scope. Neither the Oregon Supreme Court nor the Oregon Court of Appeals has construed them, the issue of their proper construction is an important one (because the Oregon legislature made a concentrated effort to craft them to comply with the Oregon Constitution's requirements for the regulation of speech), and the statutes certainly are subject to a plausible interpretation that renders them compatible with the First Amendment. Those circumstances are precisely the ones that the Supreme Court has held warrant certification because, under such circumstances, "the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court." Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997); Kremen v. Cohen, 325 F.3d 1035, 1037-38 (2003) (recognizing that certification is appropriate for "significant" legal issues that have not been resolved by the state courts "because of deference to the state court on significant state law matters."). Plaintiffs do not contend that the legal issue is not significant, or unworthy of review by the Oregon Supreme Court. Rather, they assert that certification is unwarranted because, in their view, a court could not possibly construe the statutes in a way that renders them consistent with the First Amendment. (Bookseller Plaintiffs' Response at 4; ACLU Plaintiffs' Response Page 2 - REPLY IN SUPPORT OF MOTION TO CERTIFY ECL:mxg\2121506
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

at 1-5). But if the statutes are construed in the way the Oregon Court of Appeals construed former Or. Rev. Stat. § 167.065 in Maynard, i.e., as targeting hardcore pornography, then they are consistent with the First Amendment. Plaintiffs also suggest that certification is unwarranted because, in their view, this court is capable of construing the statutes at issue itself. (ACLU Plaintiffs' Response at 3; Bookseller Plaintiffs' Response at 5). But the issue is not whether this court is capable of construing the statutes; this court certainly is. Rather, the issue is whether, to promote comity and federalism, this court should give the state courts the first opportunity to construe them. Kremen, 325 F.3d at 1037-1038 & 1037 n. 1 ("Although we are quite capable of resolving the issue presented, we should not reach out to grab the question in the first instance simply because the case involves a novel and `sexy' issue."). Bookseller plaintiffs suggest that the request to certify is too late. (Bookseller Plaintiffs' Response at 5). That the Supreme Court itself has certified important issues of state law to state high courts indicates that it is never too late for a federal court to seek the opinion of the state's highest court on a significant, unanswered question of state law. Cf. Arizonans for Official English, 520 U.S. at 79-80 (directing lower federal courts to wait for Arizona Supreme Court to construe amendment to Arizona Constitution before ruling on Page 3 - REPLY IN SUPPORT OF MOTION TO CERTIFY ECL:mxg\2121506
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

federal constitutional questions, noting that this court and district court could have simplified case by certifying questions to Arizona Supreme Court earlier). Moreover, this court often certifies questions after a case has been argued and/or submitted. See, e.g., Patton v. Target Corp., 580 F.3d 942 (9th Cir. 2009); Farmer v. Baldwin, 563 F.3d 1042 (9th Cir. 2009); Paolini v. Albertson's, Inc., 418 F.3d 1023 (9th Cir. 2005); Harrigfeld v. Hancock, 317 F.3d 1094 (9th Cir. 2003). ACLU plaintiffs argue that certification is inappropriate because it will prolong the alleged "chilling effect" of the challenged statutes. (ACLU Plaintiffs' Response at 4). But it is speculative whether the certification process will cause significant delay in the resolution of the case. Moreover, in light of the district court's narrow construction of the statutes, and Maynard's similarly narrow construction of a prior related statute, any "chilling effect" is minimal. Finally, plaintiffs argue that, if this court certifies the question of the construction of Or. Rev. Stat. §§ 167.054 and 057, it should certify different questions than those proposed by the state. The state believes that the questions it proposed, which were crafted based on the questions the Supreme Court certified to the Virginia Supreme Court in Virginia v. American Booksellers Ass'n, 484 U.S. 383, 398 (1988), are the state law questions that must be answered in order for this court to evaluate whether the statutes, correctly Page 4 - REPLY IN SUPPORT OF MOTION TO CERTIFY ECL:mxg\2121506
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construed, comply with the First Amendment. Nonetheless, the state recognizes that both this court and the Oregon Supreme Court have the discretion to formulate the questions differently. See Western Helicopter Services v. Rogerson Aircraft, 311 Or. 361, 370-71, 811 P.2d 627 (1991) (recognizing that Oregon Supreme Court "has the discretion to reframe questions and is not bound to answer the questions as certified," and noting that court will ordinarily work with certifying court to recast questions). The state further acknowledges that the questions proposed by plaintiffs, with some exceptions, are alternative ways of asking the Oregon Supreme Court to construe Or. Rev. Stat. §§ 167.054 and 057. However, some of the questions proposed by plaintiffs should not be certified. The questions that ask for the Oregon Supreme Court's opinion as to whether the statutes meet the requirements of the First Amendment as construed in Miller v. California, 413 U.S. 15 (1973), and New York v. Ginsberg, 390 U.S. 269 (1968), are not proper certified questions because they ask the state court to resolve an issue of federal law ­ a task for this court, once the Oregon Supreme Court has spoken on the scope and meaning of Or. Rev. Stat. §§ 167.054 and 057. In addition, Bookseller Plaintiffs' proposed question regarding jury instructions will not assist this court in evaluating the question before it ­

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whether Or. Rev. Stat. §§ 167.054 and 057, correctly construed, comply with the First Amendment. As a result, it should not be certified. In sum, the issue of the proper construction of Or. Rev. Stat. §§ 167.054 and 057 is an important legal issue for Oregon that its state appellate courts have not had the opportunity to resolve, and it is an issue that ultimately will be determinative of whether the statutes are consistent with the First Amendment. This court should give the Oregon Supreme Court the opportunity to rule on it before evaluating whether to invalidate Oregon's statutes on federal constitutional grounds. Respectfully submitted, JOHN R. KROGER Attorney General DAVID B. THOMPSON Interim Solicitor General MICHAEL A. CASPER Assistant Attorney General
/s/ Erin C. Lagesen _______________________________ ERIN C. LAGESEN

Assistant Attorney General Attorneys for Appellees

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Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]

CERTIFICATE OF SERVICE I hereby certify that on June 30, 2010, I directed the to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Rachel G. Balaban Attorney at Law Sonnenschein & Rosenthal LLP 1221 Avenue of the Americas 24th Floor New York, New York 10020

/s/ Erin C. Lagesen _______________________________ ERIN C. LAGESEN

Assistant Attorney General MICHAEL A. CASPER Assistant Attorney General Attorneys for Appellees

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Department of Justice 1162 Court Street NE Salem, OR 97301-4096 [phone]