Eggum v. Uttecht

Filing 139

ORDER DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFS: Respondent's answer (Dkt. 133 ) and Petitioner's motion to expand the record (Dkt. 126 ) RE-NOTED for 9/20/2019. Signed by Hon. Mary Alice Theiler. (MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARLOW TODD EGGUM,
Petitioner,

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Case No. C14-1328-RAJ-MAT
ORDER DIRECTING PARTIES TO
FILE SUPPLEMENTAL BRIEFS

v.
JERI BOE,
Respondent.

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Having reviewed petitioner’s second amended habeas petition, respondent’s answer, and

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petitioner’s reply, the Court ORDERS the parties to file supplemental briefs on or before

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September 20, 2019, that address all of the questions listed below. The parties should not file

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reply briefs unless ordered by the Court.

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(1)

If the Court were to review petitioner’s First Amendment as-applied claim de novo,

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would the Court apply a strict scrutiny analysis in reviewing Washington’s intimidating a public

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servant statute? See United States v. Alvarez, 567 U.S. 709, 724-25 (2012) (assessing whether

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criminal statute’s content-based restrictions on protected speech could survive the “most exacting

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scrutiny,” which involved compelling governmental interests and restrictions on speech that are

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“actually necessary” to achieve its interest); Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665

ORDER DIRECTING PARTIES TO FILE
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(2015) (holding that a State may restrict the speech of a judicial candidate only if the restriction is

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narrowly tailored to serve a compelling interest); Brown v. Entertainment Merchants Assn., 564

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U.S. 786, 799 (2011) (declining to recognize new category of proscribable speech and applying

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strict scrutiny to determine whether the restriction on the content of protected speech was invalid).

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(2)

If not, how would the Court analyze the merits of petitioner’s claim?

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(3)

If a strict scrutiny analysis is applied, does Washington’s intimidating a public

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servant statute survive such review?
(4)

Petitioner addressed the merits of his First Amendment overbreadth claim by

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reviewing the arguments presented to the Washington Supreme Court and asserting, among other

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things, that the state court’s decision was contrary to or an unreasonable application of State v.

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Stevens, 559 U.S. 460 (2010) (“a law may be invalidated as overbroad if a substantial number of

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its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep”

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(internal quotation marks omitted)). (See Dkt. 125 at 33-38.) Petitioner also argued that forum

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analysis does not apply when a statute does not regulate government property. (Id. at 35, 37.)

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Respondent’s answer did not meaningfully engage with petitioner’s arguments or his

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overbreadth claim, instead distinguishing Stevens on the facts. (See Dkt. 133 at 54, n.10.) But

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whether Stevens is factually distinguishable does not answer the question of whether the

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Washington Supreme Court’s decision applied the incorrect rule or unreasonably applied the

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correct rule.

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Washington Supreme Court’s rejection of petitioner’s overbreadth claim was contrary to or an

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unreasonable application of clearly established law, and (b) if the Court were to conduct a de novo

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review of this claim, whether the statute is overbroad. As petitioner has already addressed 4(a),

Therefore, respondent’s supplemental brief should address (a) whether the

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ORDER DIRECTING PARTIES TO FILE
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he need not do so again but may supplement his prior arguments if appropriate. He also should

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address 4(b).

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(5)

If the statute does not survive strict scrutiny, does the Court need to conduct the

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overbreadth analysis? If the statute survives strict scrutiny, how does the strict scrutiny analysis

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impact the overbreadth analysis, if at all? For example, if the Court determines that the statute

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lawfully criminalizes protected speech under strict scrutiny, does that determination affect whether

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the statute is overbroad?

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The Clerk is directed to RE-NOTE respondent’s answer (Dkt. 133) and petitioner’s motion

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to expand the record (Dkt. 126) for September 20, 2019, and to send copies of this order to the

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parties and the Honorable Richard A. Jones.

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Dated this 30th day of August, 2019.

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A

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Mary Alice Theiler
United States Magistrate Judge

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