Case 2:14-cv-00441-REB Document 33 Filed 04/23/15 Page 1 of 25

DAVID A. CORTMAN*
dcortman@alliancedefendingfreedom.org
Georgia Bar No. 188810
KEVIN H. THERIOT*
ktheriot@alliancedefendingfreedom.org
Georgia Bar No. 373095
RORY T. GRAY*
rgray@alliancedefendingfreedom.org
Georgia Bar No. 880715
JEREMY D. TEDESCO*
jtedesco@alliancedefendingfreedom.org
Arizona Bar No. 023497
JONATHAN A. SCRUGGS*
jscruggs@alliancedefendingfreedom.org
Arizona Bar No. 030505
ALLIANCE DEFENDING FREEDOM
15100 N. 90th Street
Scottsdale, AZ 85260
(480)-444-0020
(480)-444-0028 Fax
VIRGINIA MCNULTY ROBINSON
vrobinson@robinsonlaw-pllc.com
Idaho Bar No. 7380
ROBINSON LAW, PLLC
1910 Northwest Blvd., Suite 200
Coeur dAlene, Idaho 83814
(208) 664-1139
(208) 664-1171 Fax
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
DONALD KNAPP; EVELYN KNAPP;
HITCHING POST WEDDINGS, LLC,
Plaintiff,
v.

CASE NO. 2:14-CV-00441-REB

PLAINTIFFS RESPONSE TO
DEFENDANTS MOTION TO DISMISS
FIRST AMENDED COMPLAINT

CITY OF COEUR D'ALENE,

ORAL ARGUMENT REQUESTED
Defendant.

Case 2:14-cv-00441-REB Document 33 Filed 04/23/15 Page 2 of 25

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 3
MOTION TO DISMISS STANDARD........................................................................................... 7
ARGUMENT .................................................................................................................................. 8
I.

The Knapps Have Article III Standing. .............................................................................. 8

A.

II.

The Knapps Have Suffered an Injury-in-Fact ......................................................... 8

1.

Plaintiffs Have Violated 9.56 and Have a Concrete Plan to

Continue Doing So.................................................................................... 10

2.

The City Specifically Threatened to Enforce 9.56 Against the

Knapps Multiple Times, Both Pre- and Post-Litigation. .......................... 13

3.

The Past Enforcement Factor Is Neutral In This Case. ............................. 15

B.

The Citys Conduct Caused The Plaintiffs Injuries. ............................................ 16

C.

Plaintiffs Injuries Will Be Redressed By A Favorable Ruling. ........................... 17

The Knapps Claims Are Ripe. ......................................................................................... 17

CONCLUSION ............................................................................................................................. 20

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TABLE OF AUTHORITIES
Cases:
American-Arab Anti-Discrimination Committee v. Thornburgh,
970 F.2d 501 (9th Cir. 1992) .............................................................................................16
Bernhardt v. County of Los Angeles,
279 F.3d 862 (9th Cir. 2002) .........................................................................................9, 17
Bova v. City of Medford,
564 F.3d 1093 (9th Cir. 2009) ..................................................................................... 10-11
Clark v. City of Lakewood,
259 F.3d 996 (9th Cir. 2001) ...............................................................................................9
Colwell v. Department of Health and Human Services,
558 F.3d 1112 (9th Cir. 2009) .....................................................................................18, 20
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167 (2000) .............................................................................................................8
Kolender v. Lawson,
461 U.S. 352 (1983) ...........................................................................................................12
Lew v. Kona Hospital,
754 F.2d 1420 (9th Cir. 1985) .............................................................................................8
Lopez v. Candaele,
630 F.3d 775 (9th Cir. 2010) ...............................................................................1, 9, 12, 16
Nampa Classical Academy v. Goesling,
714 F. Supp. 2d 1079 (D. Idaho 2010). ...............................................................................7
Protectmarriage.com-Yes on 8 v. Bowen,
752 F.3d 827 (9th Cir. 2014) .............................................................................................18
San Diego County Gun Rights Committee v. Reno,
98 F.3d 1121 (9th Cir. 1996) .........................................................................................9, 20
Steffel v. Thompson,
415 U.S. 452 (1974) .............................................................................................................2
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) ...............................................................................10, 14, 19
Thomas v. Anchorage Equal Rights Commission,
220 F.3d 1134 (9th Cir. 1999) ................................................................................... passim

ii

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Wilbur v. Locke,
423 F. 3d 1101 (9th Cir. 2005) .................................................................................... 16-17
Wolfe v. Strankman,
392 F.3d 358 (9th Cir. 2004). ..............................................................................................7
Young v. City of Simi Valley,
216 F.3d 807 (9th Cir. 2000) .............................................................................................16

iii

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INTRODUCTION
For-profit businesses do not close for seven days for no reason, especially since doing so
imposes financial consequences on the owners and employees. Yet that is what Ministers
Donald and Evelyn Knapp did, shutting the doors to their business, The Hitching Post, for seven
days after same-sex marriage was legalized in Idaho.

Plaintiffs First Amended Verified

Complaint (Compl.) 32, 372-378. They did so because the City of Coeur dAlene had
repeatedly threatened thempublicly, privately, and specificallythat they would be in
violation of City Ordinance 9.56 if they followed their religious convictions and declined to
perform a same-sex wedding ceremony at their for-profit wedding chapel should same-sex
marriage become legal. Id. 5-28. The City informed the Knapps that each day violating the
ordinance would subject them to up to 180 days imprisonment and $1,000 in fines. Id. 16-18.
As any citizen would, the Knapps took the Citys threats very seriously. Mrs. Knapp was
so certain they would be arrested that she packed her and her husbands bags for jail. Compl.
384. And Mr. Knapp suffered severe stress and anxiety on account of his fear of being arrested
and prosecuted by the City, which resulted in numerous sleepless nights. Id. 29-30.
The City cannot now disclaim responsibility for causing the Knapps to close The
Hitching Post given that, in addition to the threats of criminal liability, the City made clear
multiple times that it is The Hitching Posts status as a for-profit corporation that makes them
subject to 9.56. Compl. 36-38, 325-27, 341, 354, 359, 442. These threats clearly pass the
threshold of a credible rather than imaginary or speculative threat required for preenforcement challenges. Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir. 2010).
The Knapps could not stay closed forever because The Hitching Post is how they make a
living. Compl. 380-81. They had already lost income. Id. 373, 378-79. So they reopened
on October 16, 2014, but in a constant state of fear that they would be arrested and prosecuted if

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they declined to perform a same-sex ceremony. Id. 383, 394. One day after reopening, the
Knapps received and declined a request to perform a same-sex wedding ceremony. Id. 385390. Their reasonable fear of prosecution became concrete as they found themselves in violation
of a law they had specifically been warned not to violate. So the Knapps exercised the only
remedy available to protect themselves:

they immediately filed suit and a motion for a

temporary restraining order to avoid being prosecuted under 9.56, id. 391-92, for it is not
necessary [for a person to] first expose himself to actual arrest or prosecution to be entitled to
challenge a statute that he claims deters the exercise of his constitutional rights. Steffel v.
Thompson, 415 U.S. 452, 459 (1974).
Three days after filing this lawsuit, on October 20, 2014, the City Attorney responded
with a letter confirming that 9.56 applies to the Knapps because they operate The Hitching
Post as a for-profit business. Compl. Ex. 1. Specifically, the letter repeatedly stated that the
ordinance applies to for-profit businesses, like The Hitching Post, and that it does not apply to
non-profit religious corporations:

If [the Knapps] are truly operating a not-for-profit religious corporation they

would be specifically exempted from the Citys anti-discrimination ordinance;

On the other hand, if they are providing services primarily or substantially for
profit and they discriminate in providing those services based on sexual
orientation then they would likely be in violation of the ordinance.;

I want to be clear that absent a change in the Citys anti-discrimination

ordinance or other applicable state or federal law, the City will not prosecute
legitimate,

nonprofit

religious

corporations,

associations,

institutions, or societies. Compl. Ex. 1 (emphasis added).

educational

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The City Attorney also indicated that he had reviewed the 63 page complaint and the
attached exhibits, id., which verify under oath that The Hitching Post is, and always has been, a
for-profit corporation that offers its services for profit. Since they operate a for-profit, limited
liability company, id. 143-146, they are thus subject to 9.56 according to the repeated and
unequivocal statements in the letter (and those made prior to the lawsuit being filed as well) that
9.56 applies to for-profit corporations.
A public and media firestorm ensued. Compl. 450-57. In response, the City issued a
second letter on October 23, 2014, in which the City stated, for the very first time, that the
Hitching Post is exempt from the ordinance. Id. 458-460 & Ex. 9.
The question to be resolved in relation to Defendants motion is thus whether a city that
specifically threatensbefore and after litigation commencesto enforce a criminal law whose
penalties include fines and jail time against a person and causes that person to incur damages by
attempting to avoid violating the ordinance, escape all responsibility by later statingafter
intense public scrutiny, criticism, and legal actionthat it will not enforce the ordinance?
The answer must be no. The harm that the City has caused does not simply go away
because it has flip-flopped as a litigation tactic. Nor does it cure the language in the challenged
ordinance that is unclear enough to allow such a transparent change in position.
BACKGROUND
In addition to the facts cited in the Introduction, Plaintiffs provide the following timeline,
which summarizes the key facts related to this Courts subject matter jurisdiction, with each
instance of a specific threat of enforcement shaded in gray (citations are to the Complaint.):
May 13, 2014: Federal district court
invalidates Idaho marriage laws, 335.

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Shortly after May 13, 2014, it is

publicly reported that The Hitching
Post will not perform same-sex
marriages because of owners religious
beliefs, 3-4, 336-37.
May 15, 2014: City attorney makes
public statement that the Hitching Post
would likely be subject to 9.56,
338-346.

May 15, 2014: City attorney makes a

second public statement that for profit
wedding chapels would likely be
subject to 9.56, 353-356.

May 20, 2014: Mr. Knapp calls city

attorneys office who confirms that he
will be in violation of 9.56 and
subject to its penalties if he declines to
perform a same-sex ceremony because
the Hitching Post is a for-profit
business, 8-19, 359-367.

Mid-June, 2014: Mr. Knapp calls city

attorneys office and again receives
confirmation that 9.56 requires him
and the Hitching Post to perform samesex wedding ceremonies, 21-27.

October 7, 2014: Ninth Circuit

legalizes same-sex marriage in Idaho
and issues its mandate the same day,
permitting same-sex marriages to
proceed immediately, 31, 369-71.

October 7, 2014: Out of fear of being

prosecuted if they decline a same-sex
ceremony request, the Knapps close
their business and remain closed on
Oct. 8, 9, 10, 11, 14, and 15, as well,
losing clients and income on each day,
372-73, 378-79.

Oct. 16, 2014: The Knapps reopen The

Hitching Post, but in a constant state
of fear that they would be arrested and
prosecuted if they declined to perform
a same-sex ceremony, 383, 394.

Oct. 17, 2014: The Knapps receive and

decline two requests to perform samesex wedding ceremonies, 385-90.
Oct. 17, 2014: The Knapps file this
lawsuit to avoid fines and jail time for
following their faith, 391-92.

Oct. 20, 2014: In response to lawsuit,

City attorney sends letter confirming
that for-profit businesses, like The
Hitching Post, are subject to 9.56,
38-40, 443-49 & Ex. 1.

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In sum, both before and after the Knapps filed this lawsuit, the City asserted multiple
times that, because they operated a for-profit company, they would be subject to criminal fines
and jail time if they followed their religious beliefs and declined to perform a same-sex wedding
ceremony. The very first time the City stated that the Knapps were exempt from the ordinance
came nearly one week after the lawsuit was filed, and after intense public scrutiny. Compl.
42, 460.
The City claims that the Knapps September 2014 incorporation in Idaho as a limited
liability company (LLC) made them exempt from the ordinance, and that if the Knapps had
informed the City of this corporate change it would have told them that the ordinance did not
apply to them. Defs. Mem. 5. This rewriting of recent history cannot carry the day (especially
on a motion to dismiss, where Plaintiffs allegations must be taken as true). Indeed, in his postlitigation letter to the Knapps, the City Attorney confirmed that he had reviewed the entire
Complaint and its exhibits, which included all information pertaining to the Knapps for-profit
LLC. Compl. 445-46 & Ex. 1. Yet he stated repeatedly in that letter (as the City had prior to
the lawsuit) that for-profit businesses are subject to the ordinance and that the Citys exemption
of religious corporations applied only to religious non-profits. See supra.
The City treats the formation of the LLC as a watershed moment that changed
everything, yet all the Knapps did was exchange one for-profit corporate form (a S Corp in
Washington) for another for-profit corporate form (a LLC in Idaho). Compl. 142-146, 152.
In forming the LLC, the Knapps did not change how they run their business. Id. 159-160.
Rather, they simply memorialized what has always been the religious purpose of their business
and the fact that they have always run it according to their religious beliefs. Id. 150.

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The City claims that The Hitching Post is exempt from the ordinance because the Knapps
described their LLC as a religious corporation in their operating agreement. Defs. Mem. 4,
12. But there are multiple problems with this contention. First, the City Attorney knew the
Knapps conceived of their business as a religious corporation when he wrote the post-litigation
letter confirming that for-profits are subject to 9.56 and that only religious nonprofit
organizations fit within the ordinances religious corporation exemption. Compl. 445-46 &
Ex.1.1 The City confirmed again and again, both before and after the lawsuits filing, that forprofit corporations cannot be religious corporations under 9.56. Id. 36-38, 325-27, 341,
354, 359, 442. That is why the Knapps filed suit.
Second, it is irrelevant to the enforcement of 9.56 that the Knapps or other business
owners describe their businesses as religious corporations in internal corporate governance
documents. What matters is the Citys definition of religious corporation. 2 And here, the City
has no definition. Compl. 323-24. 3 It is precisely this lack of definition (which persists to
this day) that allowed the City to flip-flop on whether the Knapps were exempt, and announce
that they were, for the first time, only after the Knapps filed suit and the City faced public outcry.
But the harm had already been done, with the Citys repeated threats forcing the Knapps to close
and lose income for several days after same-sex marriage was legalized because they feared
being criminally fined or sent to jail for violating 9.56. Id. 372-73, 378-79.

In fact, the City was well aware of the Hitching Posts religious goals, reliance on religious
ministers, and unwillingness to perform same-sex wedding ceremonies as early as May 2014,
long before the Knapps formed an LLC, based on public reports and Mr. Knapp's calls to the
City to inquire about whether he would violate 9.56 if he declined to perform a same-sex
wedding ceremony. Compl. 9-27, 364-65.
2
Idaho state law also does not recognize a religious corporation as an official corporate form.
Compl. 147-48.
3
Moreover, during the time this case was stayed, the parties attempted to negotiate a definition
of religious corporation, but the City ultimately refused to define the term.

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MOTION TO DISMISS STANDARD

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), this Court must
take the allegations in the plaintiffs complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362
(9th Cir. 2004). The City tries to upset this presumption by labeling their motion a factual
attack. Defs Mem. 8. In a factual attack, the challenger disputes the truth of the allegations
that, by themselves, would otherwise invoke federal jurisdiction, Wolfe, 392 F.3d at 362, by
appending extrinsic evidence to a motion to dismiss that creates a fact dispute. Nampa
Classical Academy v. Goesling, 714 F. Supp. 2d 1079, 1087 (D. Idaho 2010). Under such
circumstances, the plaintiffs allegations can lose their presumption of truthfulness. Id.
The affidavit and letters the City appended to its motion create no fact disputes, thus the
Knapps allegations are presumed true. The letters were already appended to the Complaint,
Compl. Exs. 1 & 9, so they change nothing. And the self-serving affidavit is just the Citys
attempt to put its spin on the letters in a transparent attempt to escape liability for repeatedly
threatening the Knapps with criminal fines and jail time if they followed their religious
convictions by declining to perform a same-sex wedding ceremony.
For example, relying on the affidavit, the City makes the following claim: The purpose
of the [October 20, 2014] letter was to inform Plaintiffs that, as a religious corporation, they
would not be subject to the ordinance. (Gridley Dec., 10). Defs. Mem. 7. Of course, that is
not what the letter says at all. Rather, it confirms that the Knapps are subject to the ordinance
because they operate a for-profit business. Compl. Ex. 1 ([I]f they are providing services
primarily or substantially for profit and they discriminate in providing those services based on
sexual orientation then they would likely be in violation of the ordinance) (emphasis added). It
further confirms that the Knapps would be specifically exempted from the Citys antidiscrimination ordinance only if they are truly operating a not-for-profit religious

Case 2:14-cv-00441-REB Document 33 Filed 04/23/15 Page 12 of 25

corporation. Id. (emphasis added). The City cannot cancel the presumption of truthfulness
afforded Plaintiffs allegations by filing a self-serving affidavit that contradicts the plain
language of the letter confirming that the Knapps were subject to 9.56s criminal penalties.
The City also questions the Complaints allegations that the Knapps twice called a city
official who told them that they would be subject to 9.56 if they declined to perform same-sex
wedding ceremonies. Defs. Mem. 3. But these statements are sworn testimony, see Lew v.
Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (A verified complaint may be treated as an
affidavit), that the City has introduced no facts to rebut. Moreover, the October 20, 2014 letter
confirms that these threats were made. Compl. Ex. 1 (My office has responded to questions
from your clients in the past and told them that they would likely be governed by the antidiscrimination ordinance if a complaint was made.).
There are no fact disputes here, just post-litigation obfuscations and revisions of history
that this Court should ignore.
ARGUMENT
I.

The Knapps Have Article III Standing.

To satisfy Article IIIs standing requirements, Plaintiffs must show (1) they have suffered

an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
Defendant; and (3) it is likely that the injury will be redressed by a favorable decision. Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
A.

The Knapps Have Suffered an Injury-in-Fact

As established supra, the City repeatedly and specifically threatened the Knapps that it
would enforce 9.56 against them if same-sex marriage was legalized in Idaho and they declined
to perform a same-sex wedding ceremony. Thus, when same-sex marriage became legal on

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October 7, 2014, the Knapps felt they had no choice but to close their business to avoid being
prosecuted. Compl. 372. They remained closed for seven days, losing income each day. Id.
373, 378-79.
The City says the Knapps claimed injuries are purely speculative and hypothetical,
Defs. Mem. 13, but it is difficult to imagine a more concrete and particularized injury than being
forced to close your business and lose income.

Indeed, the Ninth Circuit has repeatedly

recognized that such [e]conomic injury is clearly a sufficient basis for standing. San Diego
Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996); see also Clark v. City of
Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001) (The Court routinely recognizes economic
injury resulting from governmental actions as sufficient to satisfy the Article III injury in
fact requirement.) (citation omitted); Bernhardt v. Cty. of L.A., 279 F.3d 862, 872 (9th Cir.
2002) (even a speculative damages claim is sufficient to confer standing at the motion to
dismiss stage, because plaintiffs allegation must be taken as true).
The City claims that the Knapps have failed to allege with particularity that they suffered
damages. Defs. Mem. 13. But at this stage of the proceedings, their allegations that they lost
clients and income as a result of being closed for seven days must be accepted as true. The City
can test these allegations during discovery, but for the purposes of this motion they are true and
sufficient to satisfy the injury-in-fact requirement.
The City also correctly notes that because this is a pre-enforcement challenge, the Knapps
must demonstrate a credible threat of enforcement. Lopez, 630 F.3d at 786. This determination
is made based on a three inquiries: (1) whether plaintiffs articulated a concrete plan to violate the
law in question; (2) whether the prosecuting authorities have communicated a specific warning
or threat to initiate proceedings; and (3) the history of past prosecution or enforcement under the

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challenged statute. Thomas v. Anchorage Equal Rights Commn, 220 F.3d 1134, 1139 (9th Cir.
1999). The Knapps Amended Complaint clearly pleads a credible threat of enforcement.
1.

Plaintiffs Have Violated 9.56 and Have a Concrete Plan to Continue

Doing So.

The City claims that the Plaintiffs have failed to allege a concrete plan that would violate
the ordinance, Defs. Mem. 11, but that plainly is not the case. They have consistently declined
same-sex wedding ceremony requests in the past, Compl. 306-313 (discussing past denials),
have continued declining them since reopening their business, id. 385-390, 395-425 (detailing
numerous same-sex wedding ceremony denials since reopening The Hitching Post), and will
continue doing so in the future, id. 425 (testifying that they will not perform same-sex wedding
ceremonies in the future). There is thus no question that they have a concrete plan to violate
9.56.
Indeed, the Ninth Circuit found similar evidence sufficient to allege a concrete plan to
violate the law at issue in Stormans Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). There, a state
regulation required a pharmacy to sell and stock Plan B, a drug that could cause abortions. The
plaintiff pharmacy objected to stocking and selling the drug due to its religious beliefs and sued
prior to enforcement of the rule. The court found that the pharmacy cleared the concrete plan
hurdle because it could point to specific past instances when they have refused to sell Plan B or
have made the decision not to stock the medication, which are direct violations of the challenged
rules. Id. at 1123. The Knapps have done the same here, and more, by pointing not only to
specific past denials but also to ongoing denials after same-sex marriage became legal.
Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009), another of the Citys cases, is
also instructive. The plaintiffs there challenged a city policy that discontinued health care
insurance coverage to employees after they retired. Id. at 1094. The plaintiffs were current

10

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employees who had not yet retired. The Ninth Circuit rejected the plaintiffs claimed injury
denial of health insurance coverageas too speculative because it was contingent upon two
events: (1) each Plaintiffs retirement from City service; and (2) the Citys official denial of
benefits to him or her. Id. at 1096. The Court rightly noted that it was possible that neither of
the two events will occur. Plaintiffs could change jobs, be terminated, or die before retiring.
Or, by the time Plaintiffs retire, the City may have abandoned its current policy in favor of one
that provides insurance coverage to retired employees. Id. at 1096-97. No such speculation
exists here. The Knapps have been injured by the Citys repeated threats, which forced them to
close their business for several days, losing clients and income. And they continue to receive
and decline specific requests to perform same-sex wedding ceremonies, thus leaving no doubt
that they will violate 9.56 in the future.
The City contends that the Knapps cannot have a concrete plan to violate 9.56 because
they are exempt from it. Defs. Mem. 11. But that conflates violations with exemptions. It is
plain that the Knapps violate the ordinance when they decline to perform a same-sex ceremony
because they are a for-profit business, a fact the city confirmed multiple times both before and
after the lawsuit was filed. Compl. 36-38, 325-27, 341, 354, 359, 443-44, Ex. 1. It is a
separate question whether an organization is exempt from the ordinance. The City repeatedly
said The Hitching Post was not exempt until public pressure resulting from this lawsuit forced
the City to flip-flop. Of course, that exemption was granted only after the City initially
responded to the lawsuit by confirming that the Knapps were not exempt. Id., Ex. 1.
This also highlights the ongoing nature of the harm in this case. The Citys statement
that it will not enforce 9.56 against the Knapps in the future is blatant litigation posturing, is
not binding on the City, and could be revoked at any time for any reason. Compl. 43, 460-70.

11

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It thus cannot undermine the Knapps Article III standing to seek prospective relief. Lopez, 630
F.3d at 788 (disavowing past interpretation of a challenged law that made it applicable to
plaintiffs must be more than a mere litigation position). 4

One of the key constitutional

problems here is that 9.56 is a criminal statute with indefinite terms. Compl. 585-593. See
Kolender v. Lawson, 461 U.S. 352, 357 (1983) (a penal statute must contain terms with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.). Namely, religious
corporation is nowhere defined. Id. 323-34. This lack of definition is what permitted the
City to flip-flop on the question of whether The Hitching Post is exempt. While this case was
stayed for several months, the parties worked to remove this ambiguity by defining religious
corporation, but the City ultimately refused to define the term.
As a result, the very source of the problemthat 9.56 gives the City unfettered
discretion to exempt whoever it wants and that business owners have no way of knowing
whether their conduct violates this criminal lawpersists. Only an order from this Court can
rectify the damages the Knapps have already incurred and the ongoing threat the Knapps and
other business owners are under as a direct result of 9.56s ambiguous terms. Compl. 46070 (specifying ongoing threat of enforcement due to Citys unfettered discretion to determine
what qualifies as a religious corporation).

The Citys statement also has no bearing whatsoever on the Knapps standing to seek
compensatory damages related to their closure of the Hitching Post, since its promise not to
prosecute them did not occur until over two weeks after they were forced to close due to the
Citys repeated threats. See Compl. 372 (closure began on October 7, 2014) and 458-60
(letter promising not to prosecute dated October 23, 2014).

12

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2.

The City Specifically Threatened to Enforce 9.56 Against the

Knapps Multiple Times, Both Pre- and Post-Litigation.

The City contends that the Knapps fail the second prong in judging whether there is a
credible threat of enforcement by claiming that it has not threatened Plaintiffs with
prosecution. Defs. Mem. 11. This cannot be squared with the well-pled allegations of the
Amended Complaint, which are deemed true at this stage. As set forth supra, the Complaint
alleges that the City specifically told the Knapps several times before litigation that they would
be in violation of the ordinance if they declined to perform a same-sex ceremony. Then, in a
post-litigation letter, they confirmed their prior threats and asserted again that the Knapps were
subject to 9.56 because they operated a for-profit business and that only religious non-profits
were exempted as religious corporations.
It thus boggles the mind for the City to assert that the Knapps decision to close their
business was a unilateral decision based purely on speculation. Defs. Mem. 14. It was entirely
rational for the Knapps to shut down their business for several days when the City had repeatedly
threatened them with criminal fines and jail time if they declined to perform same-sex wedding
ceremonies because of their religious beliefs. Any citizen similarly threatened would have
responded in a similar fashion.

Further, the credibility of the Citys threat, and the

reasonableness of the Knapps closure in response, were confirmed by the Citys post-litigation
letter stating that for-profit organizations, like The Hitching Post, are subject to 9.56.
The Citys cases do not help them, but rather support the Knapps. For example, Thomas
states that neither the mere existence of a proscriptive statute nor a generalized threat of
prosecution satisfies the injury in fact requirement. 220 F.3d at 1139. The Knapps do not rely
on the mere existence of 9.56 or generalized threats to enforce it, but rather specific and
repeated threats to enforce 9.56 against them both pre- and post-litigation.

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Stormans also supports the Knapps. There, the Ninth Circuit found a credible threat of
enforcement when an individual pharmacist called the Board responsible for enforcing the Plan
B regulation to ask whether she would be in violation if she declined to dispense the drug based
on a religious objection. 586 F.3d at 1123. The Board informed her that she would not be in
violation of the rules, but that her pharmacy would be subject to discipline [i]f another
pharmacist is not available or if the patient will not wait for the change of shift. Id. Because
her employer would not accommodate her in this manner, the pharmacist was forced to find
other employment, which turned out being at a location with a longer commute, less income, and
less hours. Id. Here, the Knapps twice called the City to inquire whether they would be in
violation of the ordinance if they declined to perform same-sex wedding ceremonies, and both
times the City told them yes. Compl. 6-27, 366-67. This same threat was confirmed
several additional times, both before and after the Knapps filed suit. Just as there was a credible
threat in Stormans, so too does one exists here.
The Citys argument that it never threatened to enforce 9.56 against the Knapps is
based completely on their post-litigation obfuscations. First, the City relies on its Oct. 23, 2014
letter, in which it statedfor the very first timethat it would not enforce 9.56 against the
Knapps. Defs. Mem. 11-12. The City cannot retroactively undo the actual and real harm its
repeated threats caused the Knapps (namely, loss of clients and income due to business closure)
by claiming after suit is filed that it no longer intends to enforce the ordinance against them.
Second, the City relies on the fact that the Knapps exchanged one for-profit corporate
form (S Corp) for another for-profit corporate form (LLC), claiming that any alleged threats
were made against the S Corporation, which no longer exists. Defs. Mem. 12. But as
explained supra, the Knapps formation of the LLC changed nothing. The corporation remained

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for-profit. Compl. 142-146, 152. All the Knapps did was memorialize what has always been
the corporations religious purpose and the religious principles upon which they run it. Id.
150, 159-60. Moreover, the City Attorneys October 20, 2014, post-litigation letter indicated
that he had reviewed all documents pertaining to the LLC and reaffirmed the threat that the
Knapps were subject to 9.56 because their business is for-profit, id., Ex.1, a warning that
occurred after The Hitching Post transitioned to an LLC.
Finally, the City claims it matters that the Plaintiffs consider[] themselves a religious
corporation. Defs. Mem. 12. But it doesnt. What matters is how the City defines religious
corporation, and they have no definition, Compl. 323-24, and refuse to provide one.
Obviously, the City would not grant an exemption to any organization that added these two
magic words to its for-profit corporate documents. And the City is also unwilling to grant
religious corporation status to for-profit companies run according to the religious beliefs of
their owners, considering that the City failed during settlement negotiations to agree upon a
definition of religious corporation that included religiously-run for-profit businesses like The
Hitching Post. Instead, the City has opted to retain the unfettered discretion that allowed it to
threaten the Knapps with enforcement in the first place and to later flip-flop its position on their
exempt status once the heat of litigation and public scrutiny turned up.
3.

The Past Enforcement Factor Is Neutral In This Case.

At the time the Knapps filed this lawsuit, 9.56 had been on the books for a little over a
year. Compl. 314. By contrast, in Thomas the challenged statute had been on the books for
twenty-five years and the record indicated that not even a single criminal prosecution had
occurred. 220 F. 3d at 1140. Nonetheless, the Court found the past prosecution factor [to be] a
neutral one. Id. at 1141. Given the short time 9.56 has been on the books, and that discovery
has yet to commence, this factor should also be considered neutral at this time.

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B.

The Citys Conduct Caused The Plaintiffs Injuries.

The traceability prong of Article III standing is an easy hurdle here because the Plaintiffs
injuries are fairly traceable to the challenged action of [the City.] Wilbur v. Locke, 423 F. 3d
1101, 1107 (9th Cir. 2005). As discussed supra, the Knapps have sufficiently alleged that the
Citys repeated pre-and post-litigation threats to enforce 9.56 against them was the direct cause
of their business closure and loss of clients and income. See Young v. City of Simi Valley, 216
F.3d 807, 815 (9th Cir. 2000) ([E]conomic loss is a cognizable injury and is sufficient to
satisfy the Article III standing requirement.).
In addition to their damages claim, the Knapps claims for declaratory and injunctive
relief also satisfy Article IIIs traceability prong. The City flip-flopped and announced nearly a
week after the Knapps filed suitfor the first time, after it had repeatedly threatened to
prosecute them, and after its post-litigation confirmation of those threatsthat it would not
prosecute the Knapps under 9.56. This is the type of situation where the government dropped
charges not because [the charges] were considered inapplicable, but for tactical reasons.
Lopez, 630 F.3d at 792 (alteration in original) (quoting Am.-Arab Anti-Discrimination Comm. v.
Thornburgh, 970 F.2d 501, 508 (9th Cir. 1992)).
Significantly, in Lopez the Ninth Circuit found that the colleges promise not to take any
action against the plaintiff was legitimate and not a mere litigation tactic because the college
had not taken any steps to enforce the [challenged] policy against Lopez, either before or after
Lopezs threat to sue the school. 630 F.3d at 792. The exact opposite is true here, laying bare
the Citys post-lawsuit flip-flop for the mere litigation tactic that it is. Such transparent litigation
posturing cannot defeat the Knapps standing to seek declaratory and injunctive relief, id. at 788,
especially where 9.56 leaves the Knapps and other business owners guessing as to whether
their conduct will subject them to 9.56s criminal fines and jail time in the future.

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C.

Plaintiffs Injuries Will Be Redressed By A Favorable Ruling.

Redressability does not require the Knapps to show that there is a guarantee that their
injuries will be redressed by a favorable decision. Wilbur, 423 F.3d at 1108 (citation and
quotation marks omitted). Rather, they need show only that a favorable decision is likely to
redress [their injuries]. Id. (citation and quotation marks omitted).
The Knapps easily satisfy this deferential standard. Their request for compensatory
damages would redress the economic injury caused when they closed their business for seven
days because of the Citys repeated threats to enforce 9.56 against them. And their request for
declaratory and injunctive relief would prevent City officials from imposing criminal penalties
on the Knapps and other business owners by way of their unfettered discretion to determine what
qualifies as a religious organization under 9.56s exemption.
II.

The Knapps Claims Are Ripe.

Ripeness includes both a constitutional and a prudential component. Thomas, 220 F.3d

at 1138. The Knapps claims easily satisfy both components. 5

Constitutional ripeness often coincides squarely with standings injury in fact prong.
Id.; see also Defs. Mem. 17 (agreeing that the doctrine of standing and the constitutional
component of ripeness are intertwined and often indistinguishable, and the analysis almost
completely merge). Accordingly, the City rightly briefed the same three factors in evaluating
whether the Knapps suffered an injury in fact, Defs. Mem. 11, as they do in evaluating whether
they satisfy constitutional ripeness, id. at 17-18. The Knapps have already shown the existence
5

Notably, the City is not even arguing the right jurisdictional doctrine. There clearly was a
credible threat of enforcement and concrete injury at the time the Knapps filed suit. And,
critically, the first time the City said it would not enforce 9.56 came after the case was filed.
This implicates the mootness doctrine, not ripeness. And the Knapps claims for actual and
nominal damages, Compl. at 79, A, overcome any mootness concerns. Bernhardt, 279 F.3d at
872 (noting that a claim for actual damages, and even a claim for nominal damages, will
prevent dismissal for mootness).

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of a credible threat of enforcement under this three factor test, and have already responded to the
Citys arguments regarding the Knapps alleged exemption from the ordinance, the alleged lack
of threatened enforcement, and the Citys post-litigation promise not to prosecute the Knapps.
See pp. 10-15, supra. These same arguments and responses demonstrate that the Knapps claims
are ripe as well, and so are not rehashed here.
Notably, though, constitutional ripeness is a particularly easy hurdle in this case because
the Knapps suffered economic injuriesclosure of their business and loss of income. For
example, in Colwell v. Department of Health and Human Services, 558 F.3d 1112, 1123 (9th Cir.
2009), the Ninth Circuit found the ripeness requirement of Article III satisfied based on its
prior conclusion that the plaintiffs had suffered a concrete rather than abstract injury for
standing purposes because of the economic harm the challenged policy had caused them.
This case is thus nothing like the types of cases where constitutional ripeness is typically
found lacking, in which a plaintiffs claimed injury relies on some future contingency. See, e.g.,
Thomas, 220 F.3d at 1139 (plaintiff pledged their intent to violate the housing law in the future
by declining to rent to unmarried, cohabiting couples, but could not specify when, to whom,
where, or under what circumstances); see also Protectmarriage.com-Yes on 8 v. Bowen, 752
F.3d 827, 840 (9th Cir. 2014) (political action committees objections to contributor reporting
requirements not ripe because the committee had not offered any information regarding when
they may next support a campaign opposing same-sex marriage, what type of campaign they will
support, where they will support it, what their involvement will entail, or whether their donors
will likely face personal harassment).
The concrete, economic injuries the Knapps have suffered as a result of the Citys
repeated and specific, pre- and post-litigation threats to enforce 9.56 against them remove this

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case from the realm of uncertain future injuries that often trips up plaintiffs in the ripeness
context. Further, the Citys transparent litigation tactic of promising not to prosecute the Knapps
does not cure the past harm their threats caused, nor does it render the Knapps claims for
prospective relief unripe. They continue to receive and decline to perform same-sex wedding
ceremonies, Compl. 393-427, and the Citys ephemeral promise not to sue, 9.56s failure
to define religious corporation, and the Citys flip-flopping on whether The Hitching Post is
exempt from the ordinance, makes the Knapps legitimately and credibly fearful that the City will
again change its mind in the future and enforce it.
Prudential ripeness is a discretionary doctrine. Thomas, 220 F.3d at 1142. It requires a
court to determine (1) whether the issues are fit for review, and (2) whether withholding court
consideration would cause a hardship. Id. at 1141. Both factors are easily satisfied here.
In asserting that this Court should elect not to decide this case due to prudential ripeness
considerations, the City only offers its now familiar (and thoroughly discredited) obfuscations:
that the Knapps are allegedly exempt from the ordinance; that the City never threatened to
enforce 9.56 against the Knapps; and that the Citys post-litigation promise not to prosecute
the Knapps resolves this case. Defs. Mem. 19-20. These arguments are insufficient to undo the
Knapps satisfaction of Article III standing and constitutional ripeness, and they likewise fail to
support a decision not to rule based on prudential ripeness.
Indeed, the prudential ripeness factors are easily met here. A claim is fit for decision if
it raises primarily legal issues and does not require further factual development. Stormans, 586
F.3d at 1126. Here, the record includes a nearly 600 allegation Amended Complaint that
thoroughly sets forth all of the relevant facts, plus multiple exhibits that provide further factual
material and context. This case is thus unlike Thomas, where the court exercised its discretion to

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decline jurisdiction because of the remarkably thin and sketchy record, 220 F.3d at 1141, and
San Diego Gun Rights Committee, where the court declined to rule because a decision on the
merits of plaintiffs constitutional claims would be devoid of any factual context whatsoever, 98
F.3d at 1132. No such problem exists here. Instead, this case is like Stormans, where there are
no incomplete hypotheticals or open factual questions akin to those in Thomas. 586 F.3d at
1126. Indeed, the Knapps have already suffered concrete, economic harm because of the Citys
repeated and specific threats to enforce 9.56.
The hardship prong is also satisfied here. Hardship in this context does not mean just
anything that makes life harder; it means hardship of a legal kind, or something that imposes a
significant practical harm upon the plaintiff. Colwell, 558 F.3d at 1128. The plaintiffs in
Colwell failed to meet this requirement because they conceded that the government had not
threatened any direct action against them and because the law they challenged did not
contemplate any kind of financial sanction. Id. at 1128-29. Here, the Knapps have alleged
repeated and specific threats to enforce 9.56 against them that caused them to close their
business and lose income and that 9.56 imposes not mere financial sanctions, but criminal
fines and jail time. This is hardship personified.
CONCLUSION
For the foregoing reasons, the Plaintiffs respectfully request that the Citys motion to
dismiss be denied. They also respectfully request oral argument on this motion.
Respectfully submitted this 23rd day of April, 2015,
By: /s/Jeremy D. Tedesco
JEREMY D. TEDESCO*
ALLIANCE DEFENDING FREEDOM
*Admission pro hac vice

By: /s/Virginia McNulty Robinson

VIRGINIA MCNULTY ROBINSON
ROBINSON LAW, PLLC

ATTORNEYS FOR PLAINTIFFS

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Case 2:14-cv-00441-REB Document 33 Filed 04/23/15 Page 25 of 25

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 23rd day of April, 2015, I filed the foregoing
electronically through the CM/ECF system, which caused the following parties or counsel to be
served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Kirtlan G. Naylor
Jacob H. Naylor
Landon S. Brown
NAYLOR & HALES, P.C.
950 Bannock Street, Suite 610
Boise, ID 83702
(208) 383-9511
(208) 383-9516 Fax

By: /s/Virginia McNulty Robinson

VIRGINIA MCNULTY ROBINSON
vrobinson@robinsonlaw-pllc.com
Idaho Bar No. 7380
ROBINSON LAW, PLLC
1910 Northwest Blvd., Suite 200
Coeur dAlene, Idaho 83814
(208) 664-1139
(208) 664-1171 Fax

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