Case 2:14-cv-00441-REB Document 34 Filed 05/11/15 Page 1 of 11

Kirtlan G. Naylor
[ISB No. 3569]
Jacob H. Naylor
[ISB No. 8474]
Landon S. Brown
[ISB No. 9023]
NAYLOR & HALES, P.C.
Attorneys at Law
950 W. Bannock Street, Ste. 610
Boise, Idaho 83702
Telephone No. (208) 383-9511
Facsimile No. (208) 383-9516
Email: kirt@naylorhales.com; jake@naylorhales.com; landon@naylorhales.com
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DONALD KNAPP; EVELYN KNAPP;
HITCHING POST WEDDINGS, LLC,

Case No. 2:14-CV-00441-REB

Plaintiffs,
REPLY MEMORANDUM IN SUPPORT
OF DEFENDANTS MOTION TO
DISMISS (Dkt. 33)

vs.
CITY OF COEUR DALENE,
Defendant.

Defendant City of Coeur dAlene (City), by and through its attorneys of record, Naylor &
Hales, P.C., hereby files this Reply Memorandum in response to Plaintiffs Response to Defendants
Motion to Dismiss First Amended Complaint (Dkt. 33). Based on the arguments set forth below,
and those set forth in Defendants Memorandum in Support of Motion to Dismiss Plaintiffs First
Amended Complaint (Dkt. 31-1), Defendants' motion should be granted.

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I. ARGUMENT
In Plaintiffs initial complaint, they alleged that they had standing to challenge the ordinance
because city officials threatened to prosecute them pursuant to the ordinance. (Dkt. 1, 281-318.)
Since Plaintiffs had not been prosecuted under the ordinance when they filed suit, their standing
argument was entirely characterized as a pre-enforcement challenge of the ordinance. (Dkt. 33, p.
10-15.) This theory of standing requires a plaintiff to show that they face a genuine threat of
imminent prosecution. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009). To
determine if a plaintiff faces a genuine threat of imminent prosecution a court considers: (1) whether
plaintiffs have a concrete plan to violate the law; (2) whether prosecuting authorities communicated
a specific threat to initiate proceedings; and (3) the history of prosecution under the ordinance.
Thomas v. Anchorage Equal Rights Commn, 220 F.3d 1134, 1139 (9th Cir. 1999).
The City filed a Motion to Dismiss the initial complaint alleging that Plaintiffs did not have
standing because they were exempt from the ordinance and had not been threatened with
prosecution. (Dkt. 24-1.) In an attempt to maintain their lawsuit, Plaintiffs responded by filing their
Amended Complaint and asserting for the first time that they suffered economic injury because they
closed their business for seven days. (Dkt. 29, 32-33.) This theory of standing is completely
different from a pre-enforcement challenge because it alleges injury-in-fact. A plaintiff asserting
standing based on an injury-in-fact must show: (1) an injury in fact; (2) that the injury is fairly
traceable to the challenged action; and (3) that the injury will likely be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
In addition to asserting economic injury, Plaintiffs also maintain that they have standing for
a pre-enforcement challenge based on alleged threats of prosecution. (Dkt. 29, 19-28.) However,
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Plaintiffs have failed to establish standing based on either theory. First, Plaintiffs failed to
demonstrate that they faced a genuine threat of imminent prosecution because they have repeatedly
and unambiguously been informed that they are exempt from the ordinance and will not be
prosecuted for denying same sex wedding ceremonies. Second, Plaintiffs attempt to maintain their
lawsuit by alleging economic injury also fails because Plaintiffs cannot demonstrate that their
decision to close their business was fairly traceable to the ordinance.
A.

Plaintiffs Cannot Establish Standing to Bring a Pre-Enforcement Challenge.

1.

Plaintiffs Have No Concrete Plan to Violate the Ordinance.

Plaintiffs allege that they have a concrete plan to violate the ordinance because they have and
will continue to refuse to perform same-sex marriage. (Dkt. 33, p. 10.) Plaintiffs ask the Court to
ignore the fact that they are exempt from the ordinance for purposes of this analysis. (Dkt. 33, p.
11.) However, it is the fact that Plaintiffs are exempt from the ordinance that proves that they cannot
demonstrate the genuine threat of imminent prosecution necessary to establish standing.1
Plaintiffs also suggest that their exempt status may change in the future, which could then
result in a violation of the ordinance. (Dkt. 33, p. 11-12.) This suggestion is based on pure
speculation. Plaintiffs attempt to cure this speculation by alleging that the City has flip-flopped
its position as a litigation tactic, and could change their position at any time. (Dkt. 33, pp. 3, 6, 11,
1

Plaintiffs cite to Stormans Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009), to support
their position. However, Stormans is distinguishable from the instant case. In Stormans, the
challenged rule required pharmacies to dispense Plan B upon request. Id. at 1116. The rule did
not include a religious exception. Therefore, the plaintiff pharmacy was subject to the rule.
Moreover, the pharmacy was being actively investigated for violating the rule. Id. at 1117.
Because the pharmacy was subject to the rule and being actively investigated for violating it, the
Ninth Circuit found that the pharmacy had standing. Id. at 1121. Here, Plaintiffs are not subject
to the ordinance and are not being actively investigated for violating it. Thus, they cannot
establish standing.
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12, 15, 16, 19.) This is simply not true. The Citys decision on whether Plaintiffs were exempt from
the ordinance was based entirely on the information the Knapps provided to the City. (Dkt. 31-2,
4.) Initially, the information provided to the City was so limited that the City could not conclude
that the Hitching Post was exempt from the ordinance. In fact, Plaintiffs themselves did not
memorialize the religious nature and purpose of their business until around October 6, 2014. (See
Dkt. 29, 144-45; Dkt. 1-4; Gridley Dec. 8.) This information was not provided to the City until
Plaintiffs filed their lawsuit on October 17, 2014. (Gridley Dec. 7, 8.) Based on this new
information, the City conducted the proper analysis and determined that Plaintiffs were exempt from
the ordinance. Id. Plaintiffs exemption status had nothing to do with a litigation tactic, but was
based entirely on the new information provided to the City, which the City did not receive until the
commencement of this lawsuit. Plaintiffs exemption status will only change if Plaintiffs alter their
business in a manner that would take them outside the exemption. However, Plaintiffs do not allege
that they have a concrete plan to remove themselves from the exemption.
2.

Plaintiffs Cannot Demonstrate a Specific Warning or Threat.

Plaintiffs attempt to establish a specific threat sufficient to establish standing by relying on

a letter written by the City and directed to Plaintiffs counsel.2 Plaintiffs mischaracterize the letter
2

Plaintiffs also allege that the City has failed to rebut their claim that they twice called
city officials and were informed that they would be subject to the ordinance. (Dkt. 33, p. 8.)
Contrary to Plaintiffs assertion, the City has provided a declaration which admits that Plaintiffs
contacted two city officials in the spring of 2014. (Dkt. 31-2, 6.) However, in those phone
calls, Plaintiffs never informed city officials that they believed they operated a religious
corporation, that the purpose of the Hitching Post was to promote biblical marriages, or that the
Hitching Post performed only religious ceremonies. (Id.) In fact, Plaintiffs had not yet
themselves memorialized their religious beliefs and purposes. (Dkt. 29-2.) Based on the
information articulated to the City, it appeared to city officials that Plaintiffs were not operating a
religious corporation at that time. (Dkt. 31-2, 6.) Plaintiffs cannot establish standing on the
basis of a conversation they had with city officials wherein they omitted information pertinent to
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by selectively choosing certain phrases that seemingly benefit their position. (Dkt. 33, p. 2-3.)
However, looking at the entire letter in context indicates that the City intended not to prosecute
Plaintiffs for declining to perform same-sex weddings. Moreover, the specific language in the letter
does not specifically apply to the Hitching Post.
Considering the entire letter in context, it is apparent that the City was expressing its intent
not to prosecute Plaintiffs. The City starts the letter by stating that Plaintiffs now claim to be
operating a religious corporation, which if true would make them specifically exempted from the
ordinance. (Dkt. 31-3) (emphasis in original). The City then stated that based on previous
information which the Knapps presented to them, the Hitching Post appeared to be subject to the
ordinance, but that based on the new information contained in their court filings, it appeared that they
were a religious corporation.3 (Id.) The City then clearly stated that they would not prosecute
anyone as a result of their lawful exercise of their first amendment rights of freedom of speech and
religion. (Id.) The City informed Plaintiffs that in addition to the exemption, the ordinance shall
be construed and applied in a manner consistent with first amendment jurisprudence
regarding the freedom of speech and exercise of religion. (Id) (emphasis in original). The City
ended the letter stating its opinion that Plaintiffs lawsuit was premature and not ripe for
adjudication, and requesting that they dismiss the lawsuit. (Id.)
When reviewing the letter in proper context and considering the entirety of the letter, it is

the Citys analysis of whether they were subject to the ordinance.

3

The court filings reviewed by the City included the Complaint, (Dkt. 1), Operating
Agreement (Dkt. 1-4), Employee Policy (Dkt. 1-5), Customer Policy (Dkt. 1-6), and Wedding
Vows (Dkt. 1-7), all of which considered together demonstrated to city officials that Plaintiffs
operated a religious corporation. (Dkt. 31-2, 8.)
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clear that the intent of the letter was to inform Plaintiffs that they would not be prosecuted pursuant
to the ordinance, and therefore, their lawsuit was premature. Plaintiffs attempt to characterize the
letter as a threat based on selective phrases is inconsistent with the entirety of the letter.
Accordingly, Plaintiffs cannot rely on those selective phrases to establish standing for their claims.
Moreover, the phrases of the letter selected by Plaintiffs do not specifically relate to
Plaintiffs. The portions of the letter which Plaintiff rely on make two distinctions: (1) not-for-profit
religious corporations are exempt from the ordinance; and (2) for-profit businesses would likely be
in violation of the ordinance. However, Plaintiffs operate a for-profit religious corporation. (Dkt.
29-2, p. 4; Dkt. 29, 37.) Therefore, Plaintiffs do not fit as a not-for-profit religious corporation,
but they also are not strictly a for-profit business, as their main purpose is to help people create,
celebrate, and build lifetime, monogamous, one-man-one-woman marriages as defined by the Holy
Bible. (Dkt. 29-2, p. 4.) Because the phrases selected by Plaintiffs do not refer specifically to
Plaintiffs business entity, it is unreasonable for Plaintiffs to construe the letter as a specific threat
of prosecution. At most, the letter simply provided the Plaintiffs with confusion. Any confusion was
immediately dispersed when the City sent a second letter on October 23, 2014, which clearly and
unambiguously informed Plaintiffs that the conduct by Hitching Post Weddings L.L.C. is exempt
from the requirements of the ordinance and would not be subject to prosecution under the ordinance
if a complaint was received by the city. (Dkt. 31-4.) Further, Plaintiffs have failed to articulate any
injury that occurred as a result of the October 20, 2014, letter.
B.

Plaintiffs Cannot Establish Economic Injury Because the Ordinance did not Force
Them to Close their Business.
Since Plaintiffs cannot demonstrate a pre-enforcement challenge, they now assert standing

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based on alleged economic injury. However, Plaintiffs failed to establish that they suffered an
injury-in-fact that is fairly traceable to the challenged action of the Defendant. Plaintiffs allege that
they suffered economic injury because they closed their business for a period of seven days. (Dkt.
33, p. 9.) At times, economic injury can be sufficient to establish standing. San Diego County Gun
Rights Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996). However, a plaintiff asserting
economic injury still must demonstrate that their alleged economic injury is fairly traceable to the
challenged ordinance. Id. Additionally, [a] plaintiff who challenges a statute must demonstrate a
realistic danger of sustaining a direct injury as a result of the statutes operation or enforcement.
Babbitt v. United Farm Workers Natl Union, 442 U.S. 289, 298 (1974). When a plaintiff alleges
economic injury, the plaintiff must demonstrate that the economic injury was the result of a
challenged statutes operation or enforcement. See Arizona Contractors Assn, Inc. v. Napolitano,
526 F.Supp.2d 968, 979-80 (D. Ariz. 2007).
To establish that an ordinances operation or enforcement resulted in economic injury, a
plaintiff must demonstrate that compliance with the ordinance resulted in economic loss. See
Colwell v. Department of Health and Human Services, 558 F.3d 1112 (9th Cir. 2009); National
Audubon Society, Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002); Arizona Contractors Assn, Inc. v.
Napolitano, 526 F.Supp.2d 968, 979-80 (D. Ariz. 2007). If the economic loss did not result from
the plaintiffs compliance with an ordinance, then the economic loss was caused by an independent
factor and the plaintiff cannot demonstrate standing.
For instance, in San Diego County Gun Rights Committee, the Ninth Circuit found that the
plaintiffs did not have standing based on economic injury because they could not establish the
necessary connection between the challenged law and the alleged economic loss. Id, 98 F.3d at
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1130. In that case, the plaintiffs challenged a law which regulated the manufacture and distribution
of firearms. Id. at 1124. The plaintiffs had not violated the law and had not demonstrated a
sufficient threat that they would be prosecuted for violating the law. Id. at 1127-28. Therefore, the
plaintiffs attempted to establish standing by showing economic loss. Specifically, the plaintiffs
alleged that the regulation caused the price of banned devices and grandfathered arms to increase
from 40% to 100%, which hindered their ability to purchase guns. Id. at 1130. However, the Ninth
Circuit recognized that the regulation was not the only relevant or sole factor affecting the price of
grandfathered arms.

Id.

The price was also affected by third-party weapon dealers and

manufacturers as well as an entirely separate regulatory scheme. Id. Thus, the Court found that any
connection between the challenged regulation and the increase in the price of arms would be
tantamount to sheer speculation and would be insufficient to establish standing. Id. Thus, when
the operation or enforcement of a law is not the only relevant or sole factor causing economic loss,
such economic loss is insufficient to establish standing.
In the instant case, Plaintiffs cannot establish that the ordinances operation or enforcement
resulted in a direct economic injury. Here, the ordinance does not require the Plaintiffs to close their
business for any period of time. The ordinance also does not require the Plaintiffs to incur any type
of expense to continue operating their business. Additionally, no city official ever informed
Plaintiffs that they would need to close their business or incur any type of economic loss. Instead,
Plaintiffs decision to close their business was entirely based on their own independent decision.
Whatever that independent decision may have been-whether it was to organize their business after
restructuring, whether it was to prepare their complaint, or whether it was to protest same sex
marriage-it is undisputed that Plaintiffs decision to close their business was not a result of the
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ordinances operation and enforcement.

Instead, Plaintiffs alleged economic loss is akin to the alleged economic loss in San Diego
County Gun Rights Committee. In that case, independent factors such as third-party dealers and
manufacturers, and other regulatory schemes, contributed to the plaintiffs economic loss. Id., 98
F.3d at 1130. Here, Plaintiffs decision to close their business was also a result of independent
factors and not the operation and enforcement of the ordinance. The ordinance does not prohibit
Plaintiffs from performing weddings. Economic loss only confers standing if the loss was a direct
result of a plaintiffs compliance with an ordinance. Plaintiffs cannot establish that their alleged
economic loss is a result of the ordinances operation and enforcement. Accordingly, Plaintiffs
cannot establish standing based on alleged economic injury that resulted from their independent
decision to close their business.
Moreover, Plaintiffs alleged economic loss is based purely on speculation. Plaintiffs closed
their business on October 7, 8, 9, 10, 11, 14, and 15. Same-sex marriage was not legal in Idaho until
October 15, 2014. Therefore, assuming Plaintiffs were subject to the ordinance (which they are not),
they would not have been in violation of the ordinance on October 7, 8, 9, 10, 11, and 14, because
same-sex marriages were still prohibited on those dates. Thus, Plaintiffs alleged economic injury
can only be based on lost revenue as a result of closing their business on October 15. However,
Plaintiffs decision to remain closed on October 15 was based purely on speculation. Specifically,
Plaintiffs speculated that: (1) their new business structure was subject to the ordinance; (2) a samesex wedding ceremony would have been requested on October 15; (3) the Knapps refusal to perform
the same-sex wedding ceremony would have been reported to prosecuting authorities; and (4)
prosecuting authorities would have initiated prosecutorial proceedings against the Knapps. This is
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far too speculative to establish standing based on a unilateral decision to close a business.
Additionally, it makes no sense why they were closed on October 15, but opened on October 16. If
the threat of prosecution was present as Plaintiffs assert on October 15, it would be there on October
16, yet they opened for business.
Based on the foregoing, Plaintiffs are unable to establish standing based on alleged economic
injury. Plaintiffs cannot demonstrate that their alleged economic injury was a direct result of the
ordinances operation or enforcement. Even if their economic injury was a result of the ordinances
operation and enforcement, the economic loss is too speculative to establish standing.
V. CONCLUSION
For the foregoing reasons, the Defendant respectfully requests that its Motion to Dismiss
(Dkt. 31) be granted.
DATED this 11th day of May, 2015.
NAYLOR & HALES, P.C.

By: /s/ Kirtlan G. Naylor. Naylor, Of the Firm

Attorneys for Defendant City of Coeur dAlene

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CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of May, 2015, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the
following person(s):
David A. Cortman; dcortman@alliancedefendingfreedom.org
Kevin H. Theriot; ktheriot@alliancedefendingfreedom.org
Rory T. Gray; rgray@alliancedefendingfreedom.org
Jeremy D. Tedesco; jtedesco@alliancefendingfreedom.org
Jonathan A. Scruggs; jscruggs@alliancefendingfreedom.org
Virginia McNulty Robinson vrobinson@robinsonlaw-pllc.com
Attorneys for Plaintiff

/s/ Kirtlan G. Naylor

9293_19 R eply M emo in Support of M TD FIN AL.w pd

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