Bradburn et al v. North Central Regional Library District

Filing 60

REPLY MEMORANDUM re 37 MOTION Certification of Questions of State Constitutional Law re 29 Statement of Facts, 28 MOTION for Summary Judgment filed by North Central Regional Library District. (Adams, Thomas)

Bradburn et al v. North Central Regional Library District

Doc. 60

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The Honorable Edward F. Shea
Thomas D. Adams

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3 Celeste Mountain Monroe

4 KARR TUTTLE CAMPBELL
5 1201 Third Avenue, Suite 2900

Seattle, Washington 98101-3028

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7 Attorneys for North Central Regional Library District
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON AT SPOKANE

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SARA BRABUR, PEAR CHERRGTON, CHAES
HEINEN, and THE SECOND

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AMNDMENT FOUNATION,
Plaintiffs,
v.

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NORTH CENTRAL REGIONAL LIBRARY DISTRICT,

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Defendant.

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NO. CV-06-327-EFS

NCRL'S REPL Y IN SUPPORT OF

MOTION FOR CERTIFICATION OF
QUESTIONS OF STATE CONSTITUTIONAL LA W

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Plaintiffs may misunderstand Defendant North Central Regional Library

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District's ("NCRL") Motion for Certifcation of Questions State Constitutional

Law. (Ct. Rec. 37). NCRL's Motion is not about subject matter jurisdiction or
NCRL'S REPL Y IN SUPPORT OF

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MOTION FOR CERTIFICATION OF
QUESTIONS OF STATE

CONSTITUTIONAL LAW - 1
CV-06-327-EFS
#661446 v i 142703-00 i

Law Offces

KARR TUTTLE CAMPBELL
A Professional Service Corporation
1201 Third Avenue, Suite 2900. Seattle. Washington 98101-3028 Telepbone [phone], Facgmile [phone]

Dockets.Justia.com

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this Court's capacity to decide issues of state law. The question is whether this

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Court should allow the Washington Supreme Court the opportunity to resolve

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dispositive issues of first impression under Ar. I, § 5 of the Washington
Constitution. As held in Barnes-Wallace v. City of San Diego, 471 F.3d 1038,
1046.47 (9th Cir. 2006), federal courts are bound "to resolve state constitutional

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questions before reaching federal challenges."

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A. Standards for Certification.
Plaintiffs cite Lehman Bros. v. Schein, 416 U.S. 386 (1974) for the idea

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that "difficulty in ascertaining local law" is insufficient reason to direct the

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parties to state court. In Lehman, the Court vacated an appellate ruling and
remanded for consideration of certification. The principles discussed in Lehman

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apply with even greater force where as here, the case should turn on state
constitutional law and RCW 2.60.040 offers direct access to Washington's
highest court. See 416 U. S. at 394 (Rehnquist, J. concurring)( certification is a

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"desirable means" to have an undecided point of state law resolved).
Plaintiffs note that certification burdens state courts and may cause delay and
expense but certification also offers systemic benefits such as advancement of

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state and federal comity. In In Re Elliott, 74 Wash.2d 600, 610 (1968), the
NCRL'S REPLY IN SUPPORT OF MOTION FOR CERTIFICATION OF QUESTIONS OF STATE CONSTITUTIONAL LA W - 2
CV-06-327-EFS
#661446 vI 142703-001

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Law Offces

KARR TUTTLE CAMPBELL
A Professional Service CorporaJíon
1201 Tbird Avenue, Suite 2900, Seatte, Washington 98101-3028 Telephone [phone], Facsimile [phone]

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Court found that Washington's certification statute sets a permissive, not a
mandatory, standard and "... does not impose onerous or unconstitutional

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dictates upon this Court." Similarly, the United States Supreme Court wrote in
Arizonans for Offcial English v. Arizona, 520 U.S. 43, 77 (1997) that

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certification offers the opportunity to save time, energy and resources and build
a cooperative judicial federalism.
Plaintiffs imply that certification is inappropriate because existing

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Washington law allows this Court to rule on Plaintiffs' claims under Art. I, §5.

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Plaintiffs cite five cases in which federal courts have resolved free speech cases
in part under Ar. I, §5. (Ct. Rec. 52, pg. 4). These cases do not address

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certification. The fact that certification was not invoked does not mean the
procedure was inappropriate or that it was considered and rejected.

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The cases also are distinguishable. For example, in Seattle Affliate of
October 22nd v. City of Seattle, 430 F. Supp.2d 1185, 1196 (2006) the Court
limited its ruling to a federal analysis because there was no argument that Ar. I,

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§5 should be interpreted more broadly than the First Amendment. Here,
Plaintiffs do make such an argument. (Ct. Rec. 40, pg. 19) In Clark v. City of
Lakewood, 259 F .3d 996, 1016 (9th Cir. 2001), the Court held a regulation to
NCRL'S REPLY IN SUPPORT OF MOTION FOR CERTIFICATION OF QUESTIONS OF STATE CONSTITUTIONAL LAW - 3
CV -06-327-EFS
#661446 vI 142703-001

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Law Offces

KARR TUTTLE CAMPBELL
A Professional Service Corporation
1201 Third Avenue, Sui Ie 2900, Seattle, Washington 98101-3028 Telephone [phone], Facsimile [phone]