National Institute of Family and Life Advocates et al v. Harris et al
Filing
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ORDER granting in part and deny in part Defendants' Motions to dismiss. (Doc. Nos. 8 , 19 , 25 , 26 . Motions to dismiss filed by Defendants Becerra, Montgomery, and Foley (Doc. Nos. 8, 19, 26) are DENIED. Defendant Browns motion to dismiss (Doc. No. 25) is GRANTED. The remaining Defendants shall file an answer to the Complaint within the next forty-five (45) days from the date of this Order. Signed by Judge John A. Houston on 9/29/2017. (jpp)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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NATIONAL INSTITUTE OF FAMILY
AND LIFE ADVOCATES d/b/a NIFLA,
a Virginia corporation; PREGNANCY
CARE CENTER d/b/a PREGNANCY
CARE CLINIC, a California corporation;
and FALLBROOK PREGNANCY
RESOURCE CENTER, a California
corporation,
Plaintiffs,
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v.
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XAVIER BECERRA, in his official
capacity as Attorney General for the
State of California; THOMAS
MONTGOMERY, in his official
capacity as County Counsel for San
Diego County; MORGAN FOLEY, in
his official capacity as City Attorney for
the City of El Cajon; and EDMUND G.
BROWN, JR., in his official capacity as
Governor of the State of California,
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Defendants.
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Civil No. 15cv2277 JAH(DHB)
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS
[Doc. Nos. 8, 19, 25, 26]
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INTRODUCTION
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Currently pending before this Court are Defendants’ Xavier Becerra, in his
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official capacity as Attorney General for the State of California (“Becerra”), Edmund D.
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Brown,
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(“Brown”),(collectively, “the State Defendants”), Thomas Montgomery in his official
in
his
official
capacity
as
Governor
of
the
State
of
California
15cv2277
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capacity as County Counsel for San Diego County (“the County Defendant”), and
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Morgan Foley, in his official capacity as attorney for the City of El Cajon (“the City
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Defendant”), motions to dismiss Plaintiffs’ National Institute of Family and
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Advocates d/b/a NIFLA (“NIFLA”), Pregnancy Care Center d/b/a Pregnancy Care Clinic,
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and Fallbrook Pregnancy Resource Center (collectively, “Plaintiffs”) complaint pursuant
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to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Doc. Nos. 8,
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19, 25, 26.1 After a thorough review of the parties’ submissions, the Court GRANTS IN
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PART and DENIES IN PART Defendants’ motions to dismiss.
Life
BACKGROUND
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Plaintiff NIFLA is a national network of non-profit pro-life pregnancy centers.
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Plaintiffs Pregnancy Care Clinic and Fallbrook Pregnancy Resource Center are two
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similarly classified pregnancy centers located in this judicial district. Plaintiffs filed the
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instant complaint on October 13, 2015. Plaintiffs challenge the constitutionality of
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California Assembly Bill 775, known as “the Reproductive FACT Act” (“the Act”), which
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was signed into law on October 9, 2015. Doc. No. 1.
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The Act imposes two professional notice requirements on clinics (such as Plaintiffs)
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providing pregnancy-related services. The first notice requirement applies to any clinic
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that is a “licensed covered facility. ” Cal. Health & Safety Code § 123471(a) & (b). The
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second notice requirement applies to any “unlicensed covered facility.” Id.
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Section 123471(a) requires licensed covered facilities to provide the following
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notice:
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California has public programs that provide immediate free or low-cost access to
comprehensive family planning services (including all FDA-approved methods of
contraception), prenatal care, and abortion for eligible women. To determine whether you
qualify, contact the county social services office at [insert the telephone number].
Cal.H&S § 123471(a)(1). This notice must be either posted at the facility, printed for
distribution to clients, or provided digitally to be read by clients upon arrival.
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When Plaintiffs originally filed suit, Kamala Harris was California's Attorney
General. Since that time, Harris has been elected and sworn in to the United States Senate
and Xavier Becerra has been sworn in as the 33rd Attorney General of the State of
California. Under Federal Rule of Civil Procedure 25(d), a public officer's successor is
automatically substituted as a party. The Court therefore substitutes Becerra for Harris.
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Cal. Health & Safety Code §§ 123472(a)(2)(A)-( C).
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Section 123471(a) also requires unlicensed covered facilities to clearly and
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conspicuously “disseminate to clients on site and in any print and digital advertising
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materials including Internet Web sites” the following notice:
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This facility is not licensed as a medical facility by the State of California and has
no licensed medical provider who provides or directly supervises the provision of services.
Cal. Health & Safety Code § 123472(b)(2)-(3).
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Facilities covered under the Act that fail to comply with these requirements are
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liable for a civil penalty of five hundred dollars ($500) for the first offense and one
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thousand ($1,000) for each subsequent offense. Cal. Health & Safety § 123473(a). The
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prosecuting authority, including the Attorney General, city attorney or counsel, “may bring
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an action to impose a civil penalty” but only if both of the following has been done:
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(1) Providing the covered facility with reasonable notice of noncompliance, which
informs the facility that it is subject to a civil penalty if it does not correct the violation
within 30 days from the date the notice is sent to the facility.
(2) Verifying that the violation was not corrected within the 30-day period
described in paragraph (1).
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Cal. Health & Safety Code § 123473(a)(1)-(2).
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On October 21, 2015, Plaintiffs filed a motion for preliminary injunction. Doc.
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No. 3. On January 28, 2016, the parties appeared before this Court for a hearing on the
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motion. Doc. No. 45. On February 9, 2016, the Court denied Plaintiffs’ motion for a
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preliminary injunction. Doc. No. 46. On February 28, 2017, Plaintiffs’ filed an appeal to
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the Court of Appeals for the Ninth Circuit. Doc. No. 47.
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On December 28, 2016, the Ninth Circuit affirmed the District Court’s decision
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Doc. No. 59. The panel addressed Appellants’ justiciability claims before moving to the
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merits of Appellants’ arguments. (Appellants argued that the Act violated their
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fundamental rights, including their First Amendment guarantees to free speech and free
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exercise of religion.)
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The panel found Appellant’s claims were “constitutionally and prudentially ripe.”
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The panel also determined that the proper level of scrutiny to apply concerning
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Plaintiffs’ free speech claim was intermediate scrutiny for licensed clinics, (which the Act
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survived), and with respect to the unlicensed clinics, any level of scrutiny, (which the Act
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also survived). Doc. No. 59 at 4. The panel ultimately concluded that the Act was a
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neutral law of general applicability that survived rational basis review. As such, the Ninth
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Circuit affirmed this Court’s decision that Appellants were unable to demonstrate a
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likelihood of success on the merits of their First Amendment claims.
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Currently pending before the Court are Defendants motions to dismiss. Defendant
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Montgomery filed a motion to dismiss on November 4, 2015. Doc. No. 8. Defendant
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Foley filed a motion to dismiss on November 9, 2015. Doc. No. 19. Defendant Brown
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filed a motion to dismiss on November 13, 2015. Doc. No. 25. Defendant Becerra filed
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a motion to dismiss on November 13, 2015. Doc. No. 26.
DISCUSSION
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I.
Legal Standard
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A. Federal Rule of Civil Procedure 12(b)(1)
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek
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to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court
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is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d
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769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it
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confirms its own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ.,
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523 U.S. 83, 95 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district
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court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial,
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resolving factual disputes where necessary. See Augustine v. United States, 704 F.2d 1074,
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1077 (9th Cir. 1983). In such circumstances, “[n]o presumptive truthfulness attaches to
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plaintiff’s allegations, and the existence of disputed facts will not preclude the trial court
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from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Thornhill
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Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir.
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1979)). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing
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that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
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(1994).
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B.
Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule
12(b)(6) where the complaint lacks a cognizable legal theory or fails to allege sufficient
facts to support a cognizable legal theory. Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the factual allegations permit “the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In other words, “the non-conclusory ‘factual content,’ and
reasonable inferences from that content, must be plausibly suggestive of a claim entitling
the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)
(citing Iqbal, 556 U.S. at 678). “Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679.
In reviewing a motion to dismiss under Rule 12(b)(6), a court must assume the
truth of all factual allegations and construe the factual allegations in the light most
favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38
(9th Cir. 1996). However, legal conclusions need not be taken as true merely because they
are “cast in the form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th
Cir. 2003). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
557). The court may consider facts alleged in the complaint, documents attached to the
complaint, documents relied upon but not attached to the complaint when authenticity
is not contested, and matters of which the court takes judicial notice. Lee v. City of Los
Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). If a court determines that a complaint
fails to state a claim, the court should grant leave to amend unless it determines that the
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pleading could not possibly be cured by the allegation of other facts. Doe v. United States,
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58 F.3d 494, 497 (9th Cir. 1995).
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II.
Analysis
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Defendant Thomas Montgomery (“the County Defendant”), contends that the
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Court should dismiss Plaintiffs’ complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
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Federal Rules of Civil Procedure. See Doc. 8 at 2. Montgomery argues that Plaintiffs’
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claims are not ripe for review and the Court lacks subject matter jurisdiction over the
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action. Id. As a result, Montgomery argues that the complaint fails to state a claim upon
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which relief can be granted. Id.
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Defendant Morgan Foley (“the City Defendant”), similarly contends that the Court
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should dismiss Plaintiffs’ complaint pursuant to Rules 12(b)(1) and 12(b)(6). Foley argues
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that Plaintiffs’ lack standing to challenge the Act and that their claims are not ripe for
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review. As a result, Foley argues the Court lacks subject matter jurisdiction. Doc. 19 at 9.
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In addition, Foley posits that challenges to the Act cannot be brought against Foley as
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City Attorney for the City of El Cajon as Foley did not draft or enact the Act. Doc. 19 at
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Defendant Edmund D. Brown, in his official capacity as Governor of the State of
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California (“Brown”), also moves to dismiss the complaint on the grounds it fails to state
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a claim upon which relief may be granted. Defendant Brown also argues that Plaintiffs’
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claims are barred by Eleventh Amendment immunity. Doc. 25. Brown contends that the
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Eleventh Amendment bars suit against a state or its instrumentalities for legal or
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equitable relief in the absence of consent by the state or an abrogation of that immunity
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by Congress. Doc 25 at 10. In addition, Brown argues that the Plaintiffs lack standing
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to sue the governor as they have not alleged a case or controversy sufficient to meet the
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requirements of Article III. Id.
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Defendant Kamala Becerra, in his official capacity as Attorney General for the
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State of California (“Becerra”), moves to dismiss Plaintiffs’ complaint pursuant to Rule
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12(b)(1) on the grounds that the Court lacks jurisdiction over the subject matter because
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the issue is not ripe for judicial review. Doc 26.
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I. Ripeness
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First, the Court turns to Defendants’ ripeness arguments under 12(b)(1).
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The ripeness doctrine seeks to distinguish matters that are premature for judicial review
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because the injury is speculative and may
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appropriate for federal action. Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir.
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2010), see also E. Chemerinsky, Federal Jurisdiction 2.4.1 (4th ed.). The Court’s “role is
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neither to issue advisory opinions nor to declare rights in hypothetical cases, but to
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adjudicate live cases or controversies consistent with the powers granted the judiciary in
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Article III of the Constitution.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d
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1134, 1138 (9th Cir. 2000).
Ripeness has both a constitutional and a prudential component. Id. At 1138.
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Under the constitutional component, the court considers “whether the plaintiffs face a
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realistic danger of sustaining a direct injury as a result of the statute’s operation or
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enforcement,” or whether the alleged injury is too ‘imaginary’ or ‘speculative’ to support
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jurisdiction.” Id. At 1139. The constitutional component of ripeness is the same or similar
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to the injury in fact prong of standing. Id. Prudential ripeness involves “two overarching
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considerations: the fitness of the issues for judicial review and the hardship to the parties
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of withholding court consideration.” Id. At 1141.
never occur from those cases that are
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Here, the Court is satisfied that this case is ripe for review. On December 28, 2016,
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the Ninth Circuit issued its decision on Plaintiffs’ appeal of the District Court’s denial of
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Plaintiff’s Motion for a Preliminary Injunction. See Doc. No. 59. The Court held that
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appellants’ claims were constitutionally and prudentially ripe, rejecting Defendants’
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arguments that the claims were not justiciable.
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The panel weighed three factors in determining that the case was constitutionally
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ripe: (1) whether plaintiffs articulated a concrete plan to violate the statute in question;
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(2) whether the prosecuting authorities communicated a specific warning or threat to
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initiate proceedings; and (3) the history of past prosecution or enforcement of the
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challenged statute. See Doc. 59 at 15. As policy, “[t]hese factors allow for plaintiffs to
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bring pre-enforcement challenges to laws that they claim infringe their fundamental
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rights.” Id.
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The panel reasoned that Plaintiffs’ pre enforcement challenge was appropriate
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because Appellants explicitly stated they will not comply with the Act. The Court noted
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this “pledge of disobedience” has been made though Appellants are aware that violators
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of the Act are subject to civil penalties. In addition, the Court noted that the Attorney
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General had not stated that she would not enforce the Act. Further, because the Act
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did not go into effect until January 1, 2016, approximately one month before the District
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Court heard the motion for a preliminary
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demonstrate a significant history of enforcement.
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injunction, appellants were unable to
The Court also reasoned that the case was prudentially ripe. The Court held that
two factors merited consideration in determining prudential ripeness : (1) the fitness of
the issues for judicial discretion and (2) hardship to the parties if the it were to withhold
jurisdiction.
The Court held that here, both factors favored a finding of prudential ripeness. Id.
The Court noted that “this action turns on a question of law.” Id. “Appellants seek to
enjoin the enforcement of the Act on the grounds that it is unconstitutional. We require
no further factual development.” Id. In addition, the Court held the parties would face
significant immediate hardships should the Court decline to exercise jurisdiction. Id. As
the Court noted, “without a decision, Appellants must continually choose between obeying
the law or following their strongly held convictions about abortion, and the AG will have
to choose whether or not to enforce a law without the benefit of a ruling on its
constitutionality.” Id.
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Accordingly, in following the Ninth Circuit’s holding that the action is both
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prudentially and constitutionally ripe, the Court’s DENIES Defendants’ motions to
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dismiss under 12(b)(1).
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II. Standing
Next, the Court addresses Defendants arguments under the standing doctrine of
12(b)(1). A necessary element of Article III’s “case” or “controversy” requirement is that
a litigant must have “‘standing’ to challenge the action sought to be adjudicated in the
lawsuit.” Valley Forge Christian College v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir.
2000).
The “irreducible constitutional minimum” of Article III standing has three elements.
LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered
“an injury in fact — an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual and imminent, not conjectural or hypothetical.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations
omitted). Second, plaintiff must show a causal connection between the injury and the
conduct complained of; i.e., “the injury has to be fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the independent action of some third
party not before the court.” Id. (quoting Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41-42 (1976))(alterations in original). Third, it must be
“likely,” and not merely “speculative,” that the plaintiff’s injury will be redressed by a
favorable decision. Id. at 561. If the Court finds plaintiff lacks Article III standing, it must
dismiss plaintiff’s claim for lack of subject matter jurisdiction under Rule 12(b)(1). Nichols
v. Brown, 859 F. Supp. 2d 1118. 1127 (C.D. Cal. 2012).
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The doctrines of “standing and ripeness are closely related, in that the application
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of either is intended to “prevent courts from becoming enmeshed in abstract questions
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which have not contritely affected the parties.” Pence v. Andrus, 586 F.2d 733, 737 (9th
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Cir. 1978); Pac. Legal Found. v. State Energy Res. Conservation & Dev. Comm'n, 659
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F.2d 903, 915 (9th Cir. 1981), aff'd sub nom. Pac. Gas & Elec. Co. v. State Energy Res.
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Conservation & Dev. Comm'n, 461 U.S. 190, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983).
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Here, two Defendants make claims under the standing doctrine of 12(b)(1). First,
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Defendant Foley argues that Plaintiff’s lack standing to sue because Plaintiffs’ complaint
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fails to allege facts that demonstrate that they have suffered or will suffer any injury as a
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result of the challenged portion of the Act or that the likelihood of any alleged injury will
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be redressed by a favorable decision. Doc. 19 at 10. Defendant Foley argues that there has
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been no injury in fact that is concrete and particularized or actual or imminent. Id. In
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addition, Defendant Foley argues that there must be a genuine threat of imminent
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prosecution. Foley also argues that any facial challenges to the act cannot be brought
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against Foley as the City Attorney for the City of El Cajon as he did not draft or enact the
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Act. Doc. 19 at 6.
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Defendant Brown argues that Plaintiff lacks standing to sue Brown in his official
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capacity as governor of the State of California. Brown argues that “the Eleventh
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Amendment bars suit against a state or its instrumentalities for legal or equitable relief in
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the absence of consent by the state or an abrogation of that immunity by Congress.” Doc.
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No. 25 at 10. Brown contends the Eleventh Amendment bars suits against state officials
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when the “state is a real, substantial, party in interest.” Id. Brown posits that a limited
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exception under Ex Parte Young applies when “such officer must have some connection
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with the enforcement of the act, or else it is merely making him a party as a representative
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of the State, thereby attempting to make the State a party.” 209 U.S. 123 (1908), Id.
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Brown points to Plaintiffs’ complaint, which names him as a party “simply because
he is the Governor...and chief executive of the State of California.” Compl 26. Brown
argues that Ninth Circuit case law supports dismissing the action against him. Brown
argues that in Long v. Van de Kamp, supra, the operators of a motorycle shop sued the
Attorney General, seeking to enjoin him from enforcing the statute. The Ninth Circuit
directed dismissal on the basis of the Eleventh Amendment, noting that a connection, or
threat of enforcement, must exist between the official sued and enforcement of the
allegedly unconstitutional statute. Long, 961 F.2d at 152.
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Defendant Brown argues that here, the circumstances are similar to Long. The
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complaint, Defendant argues, alleges no connection between the Governor and
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enforcement of the Act. Defendant posits that the Act authorizes three officials other than
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the Governor to enforce its provisions once it becomes effective.2
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This Court finds that, echoing the panel’s reasoning, Appellants have alleged
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standing sufficient to
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Defenders of Wildlife 504 U.S. 555(1992). Much like the doctrine of ripeness, the
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standing doctrine requires the Court to analyze whether there has been a direct injury.
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Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000)
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(“measuring whether the litigant has asserted an injury that is real and concrete rather
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than speculative and hypothetical, the ripeness inquiry merges almost completely with
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standing” citing Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L.Rev.
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153, 172 (1987)).
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meet the threshold justiciability prong laid out in Lujan v.
Here, the panel noted that pre-enforcement challenges have long been
recognized, a lack of enforcement history does not compel a lack of genuine threat of
imminent prosecution, and the parties face immediate and significant hardship as
“appellants must routinely choose between holding fast to their firmly held beliefs
about abortion or complying with the Act.” Doc. 59 at 15, 17. Therefore, this Court
finds that Appellants have alleged standing sufficient to challenge the Act.
As to Defendant Foley, this Court finds that Foley is a proper Defendant. Foley
posits that as the City Attorney for the City of El Cajon, he did not draft or enact the
Act, and as a result is not a proper defendant. However, the Ninth Circuit noted that
“the Act grants the City Attorney the power to enforce the Act...The City Attorney,
therefore is a proper defendant.” Doc 59 at 12, fn. 2.
As to Defendant Brown, this Court agrees with Brown and finds that he is not a
proper defendant. Unlike the case of Defendant Foley, Plaintiffs allege no specific
Defendant Brown also argues that there is no threat of enforcement. Per the
Ninth Circuit’s decision, this Court disagrees.
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connection between Defendant Brown and enforcement of the Act. The Court finds
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there is no threat of enforcement sufficient to name Brown as a proper defendant, or to
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find an exception akin to that of Ex Parte Young. Brown does not enforce the Act and
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does not stand to do so in the future. Brown’s general responsibility to enforce
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California laws as its Governor does not give rise to the requisite enforcement
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connection needed to name him as a Defendant. Nat'l Conference of Pers. Managers,
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Inc. v. Brown, 690 F. App'x 461, 463 (9th Cir. 2017)
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CONCLUSION AND ORDER
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1) Motions to dismiss filed by Defendants’ Becerra, Montgomery, and Foley
(Doc. Nos. 8, 19, 26) are DENIED;
2) Defendant Brown’s motion to dismiss (Doc. No. 25) is GRANTED;
3) The remaining Defendants’ shall file an answer to the Complaint within the
next forty-five (45) days from the date of this Order.
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Dated:
September 29, 2017
JOHN A. HOUSTON
United States District Judge
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