Comprehensive Health of Planned Parenthood Great Plains et al v. Lyskowski et al

Filing 113

MEMORANDUM to Counsel. Signed on 6/8/17 by District Judge Howard F. Sachs. (Anderson, Christy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

COMPREHENSIVE HEALTH OF PLANNED )
PARENTHOOD GREAT PLAINS, et al.
)
)
Plaintiffs,
)
)
v.
) Case No. 2:16-cv-04313-HFS
)
DR. RANDALL WILLIAMS, in his official
)
capacity as Director of the Missouri
)
Department of Health and Senior Services, )
et al.,
)
)
Defendants.
)

MEMORANDUM TO COUNSEL

The Court of Appeals having denied a stay without prejudice, I assume the
parties are focused on clinic licensing and resubmission of a stay motion prior to the
opening of clinics. My reading of the briefing suggests some deficiency on both sides
(and by me) in fleshing out the dispute over the binding effect of Supreme Court
pronouncements of “underlying facts” in Hellerstedt. I have summarily stated that the
lower federal courts “cannot second-guess the Supreme Court” regarding such facts,
citing MKB Management Corp. v. Stenehjem, 795 F.3d 768, 772 (8th Cir. 2015). The
best Eighth Circuit explanation may be in Judge Bye’s opinion in Carhart v. Gonzalez,
413 F.3d 791, 799-801 (8th Cir. 2005) (writing for Judges Fagg and Loken)
(distinguishing between “adjudicatory facts” and “legislative facts,” sometimes referred
to as “social facts”). While Carhart was reversed on the merits, the procedural point

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seems not to have been questioned. The Gonzalez ruling itself reaffirmed the special
status of appellate “factual findings where constitutional rights are at stake.” Gonzalez v.
Carhart, 550 U.S. 124, 168 (2007). The State Defendants are relying on “collateral
estoppel” and the “fundamental” distinction between findings of fact and conclusions of
law (Reply in Court of Appeals, page 7), apparently in connection with adjudicatory facts
in private litigation.
Judge Easterbrook supports the view I have expressed when he says, “[a]fter a
majority of the Supreme Court has concluded that photo ID requirements promote
confidence, a single district judge cannot say as a ‘fact’ that they do not even if 20
political scientists disagree with the Supreme Court.” Frank v. Walker, 768 F.3d 744,
750 (7th Cir. 2014). Judge Posner, writing for half the judges on the Circuit, dissented
from denial of a rehearing, but the Posner opinion attempts to distinguish rather than to
take issue with the Supreme Court. Frank v. Walker, 773 F.3d 783 (7th Cir. 2014).
In the previously cited decision of the Missouri Supreme Court in State ex rel.
Simmons v. Roper, 112 S.W.3d 397 (2004), where the State Defendants contend the
United States Supreme Court was appropriately successfully challenged (over the
objection of Justice O’Connor), the Missouri Court did succeed in its view of the merits,
but without any endorsement of the procedural impetuousness that was objected to in
the dissent (p. 418), joined by Judge Benton.
Accepting my duty as expressed by Judge Easterbrook, the great bulk of material
offered by the State Defendants would be rejected as seeking to contradict the factual
pronouncements of the Hellerstedt majority. While defendants would ultimately have an

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opportunity to ask the Supreme Court to back-track, Hellerstedt would currently be
enforced as written.
Presumably these cites and any response in briefing with the Circuit would be of
interest to the reviewing judges if there is a renewed motion to stay.

/s/ Howard F. Sachs
.
Howard F. Sachs
United States District Judge

June 8, 2017
Kansas City, Missouri

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