Doe et al v. Caldwell et al
Filing
71
ORDER & REASONS denying 64 Motion To Proceed With Briefing Schedule and District Court Proceedings. Signed by Judge Martin L.C. Feldman on 2/20/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EMMA DOE, ET AL.
CIVIL ACTION
v.
NO. 12-1670
JAMES CALDWELL, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the plaintiffs’ motion to proceed with
briefing schedule and district court proceedings.
For the reasons
that follow, the plaintiffs’ motion is DENIED.
Background
This putative class action lawsuit follows this Court’s March
29, 2012 ruling in Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La.
2012), in which the Court declared that Louisiana’s sex offender
registry
law,
which
mandates
sex
offender
registration
by
individuals convicted of violating the State’s Crime Against Nature
by Solicitation statute, but not those convicted for the identical
sexual conduct under the Prostitution statute, deprived individuals
of Equal Protection of the laws; the nine plaintiffs in Doe I have
since been relieved by the State of their sex offender registration
obligations.1
In this new lawsuit, the plaintiffs and proposed
1
The facts underlying the Equal Protection challenge
advanced in Doe I are more completely set forth in that opinion.
851 F. Supp. 2d 995 (E.D. La. 2012).
In Louisiana, the
solicitation of oral or anal sex for compensation can be prosecuted
under two statutes: the solicitation provision of the Prostitution
1
statute and the Crime Against Nature by Solicitation statute. The
solicitation provision of the Prostitution statute outlaws “[t]he
solicitation by one person of another with the intent to engage in
indiscriminate
sexual
intercourse
with
the
latter
for
compensation.”
La.R.S. 14:82(A)(2).
The Prostitution statute
defines “sexual intercourse” as “anal, oral, or vaginal sexual
intercourse.”
La.R.S. 14:82(B).
The Crime Against Nature by
Solicitation statute forbids “solicitation by a human being of
another with the intent to engage in any unnatural carnal
copulation for compensation.”
La.R.S. 14:89.2(A).
“Unnatural
carnal copulation” is defined as oral or anal sexual intercourse.
See, e.g., Louisiana v. Smith, 766 So.2d 501, 504-05 (La. 2000).
On February 15, 2011 nine plaintiffs, proceeding
pseudonymously, sued the defendants in their official capacities
under 42 U.S.C. § 1983 to challenge the constitutionality of
Louisiana’s mandatory inclusion of one particular crime on the
State’s sex offender registry, the Crime Against Nature by
Solicitation statute. This Court determined that there was no
rational legislative purpose in requiring registration as a sex
offender for persons convicted for violation of Crime Against
Nature by Solicitation when conviction for the same sexual conduct
under the identical solicitation provision of Louisiana’s
Prostitution statute commanded no sex offender registration. See
Doe I.
On June 27, 2012, several plaintiffs, proceeding
pseudonymously, on their behalf and on behalf of others similarly
situated, sued the defendants in their official capacities under 42
U.S.C. § 1983 in this Court. These plaintiffs allege that they and
the class they seek to represent are identically situated to the
prevailing plaintiffs in Doe I. Plaintiffs allege that:
The[se] defendants, by continuing to require
plaintiffs and all other individuals similarly
situated to register as sex offenders, are
violating the rights guaranteed to the named
plaintiffs and the plaintiff class under the
Fourteenth Amendment to the United States
Constitution.
Plaintiffs seek a judgment
declaring that the defendants’ actions violate
the rights of individuals required to register
as sex offenders pursuant to a CANS conviction
to the equal protection of the laws and
applying this Court’s prior ruling to the
entire class of individuals whose rights are
so violated.
Plaintiffs further seek an
injunction compelling defendants to remove
2
class members now challenge the requirement that, notwithstanding
Doe I, the State claims to be without the authority to act and they
continue to face mandatory sex offender registration as a result of
their convictions for Crime Against Nature by Solicitation.
The facts of this case are more completely set forth in this
Court’s December 20, 2012 Order and Reasons, in which the Court
denied the defendants’ motion to dismiss; in particular, the Court
held that the Ex parte Young exception to sovereign immunity
applied, that the plaintiffs demonstrated that they have standing
to bring their claim, and that the plaintiffs stated an Equal
Protection claim under 42 U.S.C. § 1983 sufficient to withstand the
defendants’ Rule 12(b)(6) challenge.
See Doe v. Caldwell, --- F.
Supp. 2d ---, No. 12-1670, 2012 WL 6674415 (E.D. La. Dec. 20,
2012).
Although
the
plaintiffs
had
also
requested
class
certification and summary judgment, the Court determined that these
motions and issues were not adequately briefed. See id.
That same
day, on December 20, the Court reset the hearing on the plaintiffs’
motions for summary judgment and for class certification, and
ordered that the parties comply with a special briefing schedule in
advance of the April 10, 2013 hearing date. Shortly thereafter, on
January 3, 2013 the defendants filed an interlocutory appeal to the
plaintiffs and all other individuals similarly
situated from the sex offender registry and to
expunge all records signaling their past
inclusion on the registry.
3
U.S. Court of Appeals for the Fifth Circuit, challenging this
Court’s
determination
that
sovereign immunity applies.
the
Ex
parte
Young
exception
to
It is the defendants’ pending appeal
of this Court’s ruling on sovereign immunity that has prompted the
plaintiffs to now request that the Court certify the defendants’
appeal as frivolous so as not to delay this case, and require that
the parties adhere to the Court’s briefing schedule in connection
with the plaintiffs’ motions for class certification and for
summary judgment, notwithstanding the defendants’ interlocutory
appeal.
I.
A.
The plaintiffs want the Court to continue to require the
parties to adhere to the briefing schedule on the motions for class
certification
and
summary
judgment,
pending
the
defendants’
interlocutory appeal to the Fifth Circuit on the sovereign immunity
issue. They suggest that the Court may, in its discretion, certify
that the defendants’ interlocutory appeal on immunity grounds is
frivolous and thereby continue to determine the merits of the case
notwithstanding the pending appeal.
On the other hand, the defendants request that the Court deny
the plaintiffs’ motion, given that the Court has been divested of
jurisdiction once the notice of appeal was filed.
Moreover, the
defendants suggest that the Fifth Circuit has not expressly allowed
for the exercise of dual jurisdiction in circumstances such as
4
these:
the defendants insist that the Fifth Circuit has not
adopted
the
practice
of
allowing
district
courts
to
certify
collateral order appeals on immunity grounds as frivolous and to
proceed on the merits while the appeal is pending; even if such a
practice were permitted, the defendants suggest that the plaintiffs
have failed to show that the defendants’ appeal is frivolous.
B.
The Court declines the plaintiffs’ invitation to exercise its
discretion to certify the defendants’ appeal as frivolous.
It is
undisputed that this Court was divested of jurisdiction when the
defendants filed their notice of interlocutory appeal.
See, e.g.,
Williams v. Brooks, 996 F.2d 728, 729-30 (5th Cir. 1993).
It is
likewise undisputed that the Fifth Circuit may well itself dismiss
the defendants’ appeal as frivolous, and that the plaintiffs could
raise this issue in the already pending appeal.
See 5TH CIR. R.
42.2 (“If upon the hearing of any interlocutory motion or as a
result of a review under 5TH CIR. R. 34, it appears to the court
that the appeal is frivolous and entirely without merit, the appeal
will be dismissed.”).
In
response
to
the
plaintiffs’
characterization
of
the
defendants’ sovereign immunity argument as ‘frivolous,’ this Court
indeed previously observed that the defendants’ submission was “at
best, a submission of tortured reasoning....” See Doe v. Caldwell,
2012 WL 6674415, at *11 n.10.
On the other hand, the process that
5
the plaintiffs urge this Court to invoke seems appropriate only in
extraordinary circumstances. This is especially so where, as here,
the Court stopped short of deeming the defendants’ submission
frivolous and the plaintiffs’ argument, while compelling, can be
raised in the Fifth Circuit, which has jurisdiction over the
pending appeal.
Under the contentious circumstances presented by
the parties and their counsel in this case, the Court declines to
exercise its discretion to consider the merits of the plaintiffs’
case while the defendants’ appeal is pending.2
Accordingly, IT IS
ORDERED: that the plaintiffs’ motion to proceed with briefing
schedule and district court proceedings is DENIED, and this matter
is hereby stayed until counsel moves to reopen the case upon
resolution of the appeal. As always, all counsel should be mindful
of their professional obligations under Rule 11 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 1927.
New Orleans, Louisiana, February 20, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
2
It may well be that by this tactic the defendants will
have in the end increased the plaintiffs’ claim for attorneys’ fees
and costs, but that is not a concern of this Court. And whether
defendants’ conduct is ultimately deemed frivolous will be decided
by the appellate court so that this Court’s impartiality will not
be questioned by making such a finding.
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