Motion for Relief from Order

Transcription

4:10-cv-03147-JFB-TDT Doc # 103 Filed: 05/16/13 Page 1 of 4 - Page ID # 937
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LESLIE YOUNG,
)
)
Civil Case No.:
Plaintiff,
)
4:10-cv-03147-JFB-TDT
)
v.
)
)
NOTICE OF MOTION AND
DAVE HEINEMAN, et al.,
) MOTION FOR RELIEF FROM ORDER
)
[FRCP 60(b)(5); Local Rule 7.1]
Defendants.
)
[Oral Argument Requested]
__________________________________ )
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD TAKE NOTICE:
That on May 16, 2013, or as soon thereafter as is convenient for the Court, Plaintiff Leslie
Young will and hereby does move for relief from this Court’s Order Staying Proceedings.
This motion is based on Fed. R. Civ. P. 60(b)(5) and (6), on the grounds that that Order has
now been fully satisfied and that applying it prospectively is no longer equitable, and that
further abstention by this Court is not warranted by existing law. This motion is supported
by this Notice and Motion, the attached Memorandum of Points and Authorities, and
Declaration of Timothy Sandefur, esq., in support thereof, and by all other papers and
arguments filed in this action and the arguments that may be presented in the oral argument
that is hereby requested.
DATED: May 16, 2013.
Respectfully submitted,
TIMOTHY SANDEFUR
Pacific Legal Foundation
PERRY ANDREW PIRSCH
Berry Law Firm, PC
s/ Timothy Sandefur
TIMOTHY SANDEFUR*
Cal. State Bar No. 224436
Attorney for Plaintiff
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: [email protected]
-1-
PERRY ANDREW PIRSCH, No. 21525
Berry Law Firm, PC
2650 North 48th Street
P.O. Box 4554
Lincoln, NE 68504
Telephone: (402) 466-8444
Facsimile: (402) 466-1793
E-Mail: [email protected]
*pro hac vice
-2-
CERTIFICATE OF SERVICE
I hereby certify that on May 16, 2013, I electronically filed the foregoing with the
clerk of the court by using the CM/ECF system.
s/ Timothy Sandefur
TIMOTHY SANDEFUR*
*pro hac vice
-3-
LESLIE YOUNG,
)
)
Civil Case No.:
Plaintiff,
)
4:10-cv-03147-JFB-TDT
)
v.
)
)
MEMORANDUM OF
)
POINTS AND AUTHORITIES
)
IN SUPPORT OF PLAINTIFF’S
Defendants.
_________________________________ )
[FRCP 60(b)(5)-(6); Local Rule 7.1]
[Oral Argument Requested]
INTRODUCTION
On April 30, 2013, this Court issued an order staying all proceedings in this matter in
order to allow the Defendants to “make a determination as to whether plaintiff is or is not
representing herself to the public as a Nebraska broker.” Stay Order, Docket No. 102 at 14.
Defendants have now announced that they have made that final determination, and Plaintiff
therefore asks that this Court vacate its previous stay order and continue with the proceedings
in this case.
Plaintiff Leslie Young operates an internet-based business that helps homeowners to
sell their property “for sale by owner.” Ms. Young acts as an advertising agent, helping
people to publish information to the general public. Defendants, however, issued her a Cease
and Desist Order in which they contended that her speech activities qualified as practicing
“brokerage” without a license. That Order gave Ms. Young until July 30, 2010, to
-1-
voluntarily appeal the Order for review by the Nebraska Real Estate Commission.
Ms. Young does not now, and never has, challenged the validity of that Order, and does not
seek to appeal it, revisit its merits, or relitigate any matters relating to it. Cf. Wooley v.
Manyard, 430 U.S. 705, 707-08 (1977). Instead, she filed suit in this Court on July 29, 2010,
seeking only prospective injunctive relief to bar the Defendants from any future prohibition
of her business activities. Cf. id. at 708.
Defendants moved to dismiss this case pursuant to Younger v. Harris, 401 U.S. 37
(1971), alleging that there were still “ongoing proceedings” relating to the Cease and Desist
Order. On April 30, 2013, this Court ruled that it would stay federal proceedings so as to
allow the Commission “to determine if plaintiff is a ‘broker’ or ‘agent’ and is in violation of
Nebraska law,” Docket No. 102 at 13, and to “make a determination as to whether plaintiff
is or is not representing herself to the public as a Nebraska broker.” Id. at 14. On May 3,
2013, Ms. Young’s counsel asked the Commission if any further proceedings were available
or were required to make its determination final. See Declaration of Timothy Sandefur in
Support of Plaintiff’s Motion for Relief (Sandefur Dec.) at ¶2. The Commission answered
by letter on May 13, 2013, that its Cease and Desist Order has now “bec[o]me final,” and that
“[t]he period for Ms. Young to request a hearing before the Commission has now expired.”
Exhibit B to Sandefur Dec.
This Court’s Stay Order has now been “satisfied” for purposes of Fed. R. Civ.
P. 60(b)(5), so that applying it prospectively is no longer equitable. Likewise, the
Defendants’ clarification of the finality of the Cease and Desist Order constitutes the
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Defendants’ final determination that Ms. Young acted as a “broker” for purposes of
Nebraska law, and that if she were to attempt again to operate—i.e., which she contends
consists solely of speech acts protected by the First Amendment—she would be subject to
criminal and civil penalties. Ms. Young is therefore constitutionally entitled to seek
prospective injunctive relief from that order in this Court. See Wooley, 430 U.S. at 707-08;
Anderson v. Schultz, 871 F.2d 762, 765 (8th Cir. 1989); Planned Parenthood of Greater
Iowa, Inc. v. Atchison, 126 F.3d 1042, 1047 (8th Cir. 1997). These factors justify relief from
the Stay Order under Fed. R. Civ. P. 60(b)(6). Ms. Young therefore asks that this Court
vacate its Stay Order and restore this case to its active calendar.
ARGUMENT
I
DEFENDANTS HAVE NOW MADE A FINAL
DETERMINATION THAT YOUNG’S ACTIONS
QUALIFY AS “BROKERAGE” UNDER STATE LAW
A plaintiff in a Section 1983 case may seek prospective injunctive relief from a
federal court to bar the state from any future conduct that would violate her First Amendment
rights. She is not required to exhaust any administrative or state judicial remedies before
doing so. See Patsy v. Bd. of Regents, 457 U.S. 496, 500-01 (1982). In Wooley, for example,
the Plaintiffs were repeatedly fined for obscuring their license plates because they objected
to the state motto on religious grounds. 430 U.S. at 707-08. Like Ms. Young, they did not
seek to revisit the merits of any previous citation, but only sought to bar the state from
prosecuting them for the same conduct in the future. Id. at 711. The Supreme Court ruled
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that this was the proper means by which to protect their First Amendment Rights:
“Younger . . . recognized that principles of judicial economy, as well as proper state-federal
relations, preclude federal courts from exercising equitable jurisdiction to enjoin ongoing
state prosecutions,” the Court declared, but
when a genuine threat of prosecution exists, a litigant is entitled to resort to a
federal forum to seek redress for an alleged deprivation of federal rights.
Younger principles aside, a litigant is entitled to resort to a federal forum in
seeking redress under 42 U.S.C. § 1983 for an alleged deprivation of federal
rights.
Id. at 710 (citations omitted).
Similarly, in Schultz, the Eighth Circuit ruled that parents who wanted to challenge
a compulsory school attendance law could do so if, like Ms. Young, they “[came] to federal
court only seeking . . . prospective relief.” 871 F.2d at 765 (citing Wooley, 430 U.S. at 711).
And in Atchison, that court again ruled that a plaintiff threatened with, but not yet subject to,
“coercive [administrative] proceedings” could seek prospective injunctive relief from a
federal court. 126 F.3d at 1047.
Ms. Young is in the same position as the plaintiff in Kercado-Melendez v.
Aponte-Roque, 829 F.2d 255 (1st Cir. 1987), cert. denied, 486 U.S. 1044 (1988), who was
deprived of her teaching certificate in consequence of her political beliefs. Instead of seeking
further state review she filed a Section 1983 case seeking prospective injunctive relief to
protect her First Amendment rights. Id. at 257. The court ruled that the availability of state
review procedures—as opposed to their actual pendency—is not sufficient for abstention.
[T]here is a significant difference between a civil rights plaintiff who seeks to
use the federal courts to stop or nullify an ongoing state proceeding . . . and a
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civil rights plaintiff who has an option to initiate a state proceeding . . . . In the
former case, abstention is appropriate; in the latter, the Patsy rule prevails,
and the plaintiff may seek federal court protection. Id. at 261.
This Court’s April 30 order was issued to allow the 2010 Cease and Desist Order to
become final. See Stay Order, Docket No. 102 at 14. The Commission has now declared
that it is final. See Exhibit B to Sandefur Dec. It is therefore absolutely clear that if
Ms. Young were to publish information about “for sale by owner” properties in Nebraska,
she would be subject to criminal prosecution and civil penalties.
Neb. Rev. Stat.
§§ 81-885.10, 81-885.45, 28-106(1). She therefore has the right to ask this court for an
injunction against future state prosecution that would violate her First Amendment rights.
Cf. ForSaleByOwner.com Corp. v. Zinnemann, 347 F. Supp. 2d 868, 879-80 (E.D. Cal. 2004)
(state violated First Amendment by attempting to demand a for-sale-by-owner website obtain
a brokerage license).
II
FURTHER ABSTENTION WOULD BE CONTRARY TO LAW
Now that the Commission has made its final determination that Ms. Young’s actions
qualify as “brokerage” under Neb. Rev. Stat. § 81-885.01, and that the Cease and Desist
Order is final, there are no pending state proceedings going on with regard to Ms. Young.
As the Eighth Circuit has made clear, “Younger requires that the state proceeding must be
ongoing at the time the district court enters its order regarding abstention.” Night Clubs, Inc.
v. City of Fort Smith, 163 F.3d 475, 480 (8th Cir. 1998). Ms. Young is not trying to intrude
on any prior proceeding or relitigate the merits of the Commission’s determination that her
-5-
past activities qualified as “brokerage.” She is not attempting to appeal the Cease and Desist
Order. Instead, she seeks only prospective injunctive relief from any future prosecution.
Like the plaintiffs in Wooley, she requests protection against any future prosecutions by the
state predicated on her speech acts. See also Coley v. Clinton, 635 F.2d 1364, 1371 n.6 (8th
Cir. 1980) (the “threat of repeated unconstitutional” enforcement actions is a basis for federal
court review).
Like the plaintiffs in Wooley, she cannot be forced to resort to state courts for
protection of her federal constitutional rights. A plaintiff in a Section 1983 case is not
required to pursue any state court remedies before seeking protection from the federal courts.
Patsy, 457 U.S. at 500-01; Atchison, 126 F.3d at 1047; Walker v. Wegner, 624 F.2d 60, 61
(8th Cir. 1980). On the contrary, Ms. Young has the right to “initiate [federal] action to
enjoin unconstitutional state conduct,” since she “has not exposed [herself] to a state
enforcement proceeding, and is not a defendant in such a proceeding, but merely seeks to
sweep away an illegal obstacle to [her] activities.” Atchison, 126 F.3d at 1047-48. She may
seek a federal court’s protection without exhausting state remedies precisely because
Section 1983 guarantees rights against state authority. Patsy, 457 U.S. at 505 (“A major
factor motivating the expansion of federal jurisdiction through [section 1983] was the belief
of the 1871 Congress that the state authorities had been unable or unwilling to protect the
constitutional rights of individuals or to punish those who violated these rights.”).
As the Fourth and Fifth Circuit Courts of Appeals have observed in similar cases, a
finalized Cease and Desist Order is a threat of future enforcement, and “the period between
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the threat of enforcement and the onset of formal enforcement proceedings may be an
appropriate time for a litigant to bring its First Amendment challenges in federal court.” See
Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989), cert. denied, 495
U.S. 904 (1990); accord, Louisiana Debating & Literary Ass’n v. City of New Orleans, 42
F.3d 1483, 1491 (5th Cir.), cert. denied, 515 U.S. 1145 (1995). “The mere availability of
state judicial review of state administrative proceedings does not amount to the pendency of
state judicial proceedings” requiring abstention. Thomas v. Texas State Bd. of Med. Exam’rs,
807 F.2d 453, 456 (5th Cir. 1987).
As the Eighth Circuit has noted, “[a]bstention is an extraordinary and narrow
exception to the virtually unflagging obligation of federal courts to exercise the jurisdiction
given them.” In re Otter Tail Power Co., 116 F.3d 1207, 1215 (8th Cir. 1997) (citation
omitted). Since the purpose of this Court’s Stay Order has been satisfied—to allow the
Commissions’ determination that Ms. Young’s activities qualify as “brokerage” under State
law—Ms. Young should be free to pursue prospective injunctive relief against the State
abridging her First Amendment rights.
CONCLUSION
Defendants have now made a final determination that Ms. Young’s activities qualify
as the practice of “brokerage” under Neb. Rev. Stat. § 81-885.01. Ms. Young faces criminal
and civil penalties if she engages in actions that she contends are protected by the First
Amendment. She therefore is entitled to a federal forum to obtain prospective injunctive
relief against further enforcement of unconstitutional statutes.
-7-
Having satisfied the
requirements of Fed. R. Civ. P. 60(b)(5) and (6), she respectfully requests that this Court
rescind its stay order and allow the parties to proceed to discovery.
DATED: May 16, 2013.
Respectfully submitted,
TIMOTHY SANDEFUR
PERRY ANDREW PIRSCH
Berry Law Firm, PC
s/ Timothy Sandefur
TIMOTHY SANDEFUR*
Cal. State Bar No. 224436
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: [email protected]
PERRY ANDREW PIRSCH, No. 21525
Berry Law Firm, PC
2650 North 48th Street
P.O. Box 4554
Lincoln, NE 68504
Telephone: (402) 466-8444
Facsimile: (402) 466-1793
E-Mail: [email protected]
*pro hac vice
-8-
s/ Timothy Sandefur
TIMOTHY SANDEFUR*
*pro hac vice
-9-
LESLIE YOUNG,
)
)
Civil Case No.:
Plaintiff,
)
4:10-cv-03147-JFB-TDT
)
v.
)
)
DECLARATION OF
)
TIMOTHY SANDEFUR
)
IN SUPPORT OF PLAINTIFF’S
Defendants.
__________________________________ )
I, Timothy Sandefur, declare as follows:
1.
I am one of the attorneys for Plaintiff Leslie Rae Young. I have personal
knowledge of the facts stated herein, and if called upon to testify as a witness, I could and
would testify competently thereto under oath as follows.
2.
On May 3, 2013, I wrote a letter to Christopher Heinrich, esq., and Adam
Prochaska, esq., attorneys for Defendants. I caused that letter to be served on Messrs.
Heinrich and Prochaska. A true and correct copy of that letter and the proof of service are
attached hereto as Exhibit A.
3.
On May 13, 2013, I received an answering letter from Mr. Heinrich. A true
and correct copy of that letter is attached hereto as Exhibit B.
I declare under penalty of perjury that the foregoing is true and correct, to the best of
my knowledge, and that this declaration was executed this 16th day of May, 2013, at
Sacramento, California.
s/ Timothy Sandefur
TIMOTHY SANDEFUR
-1-
s/ Timothy Sandefur
TIMOTHY SANDEFUR*
*pro hac vice
-2-
4:10-cv-03147-JFB-TDT Doc # 105-1 Filed: 05/16/13 Page 1 of 3 - Page ID # 953

Motion for Relief from Order

Transcription

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