Livingwell Medical Clinic, Inc. et al v. Harris et al
Filing
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ORDER REQUIRING ADDITIONAL BRIEFING ON MOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Jeffrey S. White on December 7, 2015. (jswlc2, COURT STAFF) (Filed on 12/7/2015)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LIVINGWELL MEDICAL CLINIC, INC.,
PREGNANCY CARE CENTER OF THE
NORTH COAST, INC., and CONFIDENCE
PREGNANCY CENTER, INC.,
ORDER REQUIRING ADDITIONAL
BRIEFING ON MOTION FOR
PRELIMINARY INJUNCTION
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Plaintiffs,
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v.
For the Northern District of California
United States District Court
No. C 15-04939 JSW
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KAMALA HARRIS, Attorney General of the
State of California; KAREN SMITH, M.D.,
Director of California Department of Public
Health; MICHAEL COLANTUONO, City
Attorney of Grass Valley, California; ALISON
BARRAT-GREEN, Country Counsel of Nevada
County, California; CINDY DAY-WILSON,
City Attorney of Eureka, California; JEFFREY
S. BLANCK, County Counsel of Humboldt
County, California; CHRISTOPHER A.
CALLIHAN, City Attorney of Salinas,
California; CHARLES J. MCKEE, County
Counsel of Monterey County, California;
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Defendants.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE NOTICE
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OF THE FOLLOWING QUESTIONS. The Court HEREBY ORDERS the parties to submit
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additional briefing on the following questions in advance of the hearing now set for December 17,
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2015 at 9:00 a.m. Due to the timing of this motion, the Court shall require the parties to submit
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simultaneous briefs to address the following questions, to be submitted no later than noon on
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Wednesday, December 9, 2015. The parties shall file replies to each other’s responses by no later
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than noon on Friday, December 11, 2015.
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1.
It appears that the parties do not dispute that Plaintiffs qualify as “licensed covered facilities”
under the Reproductive FACT Act (“Act”) and Plaintiffs have made it very clear that they
every intention of violating the terms of the statute once it is in effect. In order to satisfy the
“case or controversy” requirements to demonstrate standing or ripeness in this context,
however, a generalized threat of prosecution is insufficient. See Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 1999); see also Libertarian Party of Los
Angeles v. Nowen, 2011 WL 486553, at *3 (C.D. Cal. Feb. 3, 2011) (holding that plaintiffs
cannot establish standing where there are no facts alleged suggesting a credible threat of
enforcement and only “‘general threats’ by public officials to ‘enforce those laws which they
are charged to administer’”). Is there more than a mere generalized threat of future
prosecution under the statute by defendant government officials? Do defendants intend to
suspend enforcement of the statute until its constitutionality is adjudicated?
2.
Are Plaintiffs making an as-applied or a facial challenge to the Act? If only an as-applied
challenge, what would be the scope of the factual record? Should the Court decide a matter
of constitutional significance in a vacuum? See Am.-Arab Anti-Discrimination Comm. v.
Thornburgh, 970 F.2d 501, 511 (9th Cir. 1992).
3.
In Wolfson v. Brammer, the court recognized that although Wolfson had never been
threatened with enforcement proceedings, he had censored his own speech to comply with
the challenged code and had therefore had suffered a “constitutionally recognized injury.”
616 F.3d 1045, 1059 (9th Cir. 2010) (citing Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
393 (1988) (holding that self-censorship is “a harm that can be realized even without an
actual prosecution.”)); California Pro-Life Council, Inc. v. Getman, 328 F.3d 1888, 1094-95
(9th Cir. 2003); see also Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (“In First
Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing
of ‘self-censorship, which occurs when a claimant is chilled from exercising h[is] right to
free expression.’”); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003)
(same). Here, Plaintiffs claim that they will not comply with the Act once it has become
effective. Accordingly, what is the constitutionally recognized injury Plaintiffs have
sustained at this juncture? Is the fear of enforcement of a civil fine sufficient to establish
injury? See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979).
4.
In order to obtain a preliminary injunction, Plaintiffs must establish that they are “likely to
suffer irreparable harm in the absence of preliminary relief.” Winter v. Natural Resources
Defense Council, 555 U.S. 7, 20 (2008). Although “‘direct limitation on speech,’ including
those imposed via the regulated, mandatory communication of specific content, ‘creates a
presumption of irreparable harm,’” is that presumption rebutted here by Plaintiffs’ repeated
representations that they will not abide by the mandates of the Act? See Safelite Group, Inc.
v. Jepsen, 764 F.3d 258, 266 n.4 (2d Cir. 2014). Although deprivation of a constitutional
right would be irreparable harm, if Plaintiffs’ speech is actually not chilled by the enactment
of the Act, how do they intend to demonstrate that they have suffered irreparable harm (as
opposed to the potential imposition of a remedial civil fine)?
5.
Should the Court find that the mandated notice requirement at issue is neither commercial
speech nor primarily medical treatment or conduct, on what bases do Defendants distinguish
the non-binding decisions in Evergreen Ass’n, Inc. v. New York, 740 F.3d 233, 244-250 (2d
Cir. 2014) and Centro Tepeyac v. Montgomery County, 722 F.3d 184, 188-193 (4th Cir.
2013)?
6.
Should this matter be coordinated with earlier-filed cases challenging the same statute? See
A Woman’s Friend Pregnancy Resource Clinic v. Harris, 15-cv-02122 KJM (E.D. Cal. filed
Oct. 10, 2015); National Institute of Family and Life Advocates v. Harris, 15-cv-02277 JAH
(S.D. Cal. filed Oct. 13, 2015).
7.
Should there be any bond if an injunction is granted? If so, what amount?
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For the Northern District of California
United States District Court
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8.
Will either party if they do not prevail on this motion for preliminary injunction file a notice
of appeal and, if so, will that party request a stay or injunction pending appeal?
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IT IS SO ORDERED.
Dated: December 7, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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