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Licensing requirements and Ripeness: Davis v. City of Selma, California

Stephanie Davis (“Plaintiff”) is a spiritual counselor providing counseling in the County of Fresno, but sought to provide spiritual counseling within the incorporated City of Selma, California (“Defendant” or “City”). Plaintiffs spiritual and counseling activities are founded on and motivated by her fundamental religious beliefs, and utilize a variety of methodologies and techniques that are tailored to the client’s specific spiritual needs and goals. Plaintiff asserts that her opinions are “representations of faith and revelation and are not intended to induce reliance of expressions of fact.” Rather, Plaintiff works with her clients “to help them achieve a greater understanding of their lives, and how their spiritual health affects their interpersonal relationships and life decisions.” According to Plaintiff, the description of her services fits within the definition of “Fortune Teller” under Title V, Chapter 20 of the Selma Municipal Code (“the Code”). “[T]he term “Fortune Telling” shall mean and include the practice of astrology for compensation, palmistry, phrenology, life reading, fortune telling, cartomancy, clairvoyance, clairaudience, crystal gazing, medium shift, prophecy, augury, divination, necromancy, and graphology.” The Code requires “Fortune Tellers” to obtain a license in order to provide services within the City.

On August 20, 2010, Plaintiff filed a complaint against the City asserting causes of action for alleging violations of the First and Fourteenth Amendments, as well as the Religious Land Use and Institutionalized Persons Act. Specifically, Plaintiff asserted that the City’s licensing requirements are unduly burdensome, intrusive, and restrictive. However, to what extent Plaintiff “sought” a business license—that is, what specific measures were undertaken toward obtaining the proper license under the Code—was a point of contention in this action. Plaintiff alleged that she began the application process by providing Defendants her background information, but subsequently abandoned the process because it was so restrictive. The court concluded that Plaintiff, by alleging that application for a license is objectively futile, self-censored herself by abandoning the application process. In response to Plaintiff’s complaint, Defendant argued that the action should be dismissed for lack of subject matter jurisdiction because Plaintiff’s claims are not ripe. Additionally, Defendant argued that Plaintiff failed to state a claim of a constitutional violation or a violation of the Religious Land Use and Institutionalized Persons Act.

Article III of the United States Constitution gives the court jurisdiction over “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 474 (1990) (emphasis added). To satisfy the “case or controversy” requirement, Plaintiff must show she has standing and that her claim is ripe. The ripeness doctrine is designed to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies . . . .” Abbot Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). There are two components to ripeness: a constitutional component and a prudential component. Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010). If the court finds there is no constitutional ripeness, then the claim may be dismissed for lack of subject matter jurisdiction and prudential ripeness need not be decided. See id. at 1063.

Constitutional Ripeness

A constitutional challenge to a proscriptive statute is ripe if the Plaintiff is subject to a “genuine threat of imminent prosecution.” Wolfson, 616 F.3d at 1058 (quoting San Diego County Gun Rights Commission v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)). To determine if there is an imminent threat of prosecution, the court must first determine whether the Plaintiff has articulated a concrete plan to violate the law in question. Id. Second, the court must determine whether the prosecuting authorities have communicated a specific warning or threat to initiate enforcement proceedings. Id. Lastly, history and past prosecution or enforcement under the challenged statute will be considered. Id. However, these ripeness requirements are applied less stringently to First Amendment claims, and therefore, a plaintiff is not required to wait for a threatened injury to be consummated before challenging a statute that allegedly restricts the protected conduct. Wolfson, 616 F.3d at 1058 (quoting California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003)).

Under the first prong of the constitutional ripeness analysis, the “concrete plan” does not have to be set in stone. For example, in Wolfson, the plaintiff planned on running for judicial office in the future, but not in the next judicial race. Because the plaintiff had a plan and an intent to run in the future, the court found this to be a sufficient “concrete plan.” By contrast, the court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992), held that intent was lacking when plaintiffs were unable to specify when they would next return to observe the endangered species in other countries. The court in Lujan reasoned that “some day” intentions are not concrete plans and do not satisfy the first prong of the ripeness test. In the instant case, Plaintiff failed to allege a clear intent to violate the Code in the future. Rather, the only allegation made by the Plaintiff is that, at the request of her clients, she sought to provide spiritual counseling within the city limits of Selma. The court held that this fell short of the requirements of the first prong, as Plaintiff had not claimed any concrete plan to open and operate a fortune telling business in the City. Plaintiff simply alleged that her clients have requested that she being to provide counseling within the city. The court held that Plaintiff’s “plans” were more apposite to those in Lujan than Wolfson, and, therefore, Plaintiff had not met the first element of the constitutional ripeness test.

The second prong of the constitutional ripeness test requires the court to determine whether prosecuting authorities have communicated a specific warning or threat to initiate enforcement proceedings. Without claiming that she has ever been threatened with prosecution, that prosecution is likely, or even that prosecution is remotely possible, Plaintiff cannot satisfy the second prong of the constitutional ripeness analysis. Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1140 (9th Cir. 1999). Here, Plaintiff does not allege that she ever received a threat of enforcement of the Code against her. Plaintiff only claims that the Code is burdensome and places restrictions on her protected speech. According to the court, neither of Plaintiff’s allegations were sufficient to show a threat of enforcement, and thus, Plaintiff did not satisfy the second element of constitutional ripeness.

The final prong of the constitutional ripeness test calls for a consideration of the history and past enforcement of the challenged statute. Because Plaintiff’s allegations did not meet the first two elements of the constitutional ripeness analysis, the court was not required to decide this last element. Nevertheless, Plaintiff’s argument was that the challenged provision of the Code had not been enforced, as people that qualify as Fortune Tellers under the code—such church pastors and marriage and family counselors engaging in prophecy—are not required to apply for a “Fortune Teller” permit. However, the court did not find this argument convincing. Thus, the court concluded that Plaintiff’s claims were not ripe, and, therefore, Defendant’s motion to dismiss Plaintiff’s First and Fourth Amendment claims for lack of subject matter jurisdiction were granted.

RLUIPA Ripeness

Along with her constitutional claims, Plaintiff alleged that the Coe violates the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Specifically, Plaintiff claimed that the Code placed a substantial burden on her religious beliefs and her ability to practice those beliefs without using the least restrictive means. A claim that alleges a violation of RLUIPA must also meet the case or controversy requirement set out in Article III. The plaintiff in a RLUIPA case must have standing and a ripe claim before the court can adjudicate the case. To determine if such claims are ripe, the court applied the Williamson County final decision requirement, which requires a final adjudication of the injury at the local level prior to filing a federal claim. The requirement gives the federal court a fuller record on which to base its decision, as it is the only way to know how an ordinance will be applied to the particular person or property at issue. Prior to imposing this requirement, the court must answer two threshold questions: 1) whether the plaintiff experienced any immediate injury as a result of the city’s action, and 2) whether requiring the plaintiff to pursue additional remedies would further define the plaintiff’s alleged injuries.

In addressing the first threshold question, the court found that the plaintiff had not alleged nor suffered an immediate injury. The court paralleled the instant case to that of Murphy v. New Milford Zoning Commission, 402 F.3d 342, 351 (2nd Cir. 2005), in which the Second Circuit held that plaintiff’s receipt of a cease-and-desist letter did not constitute an immediate injury because the defendant did not have the power to fine or prosecute the plaintiffs, and would have had to go through state court action for any penalty to be determined. Similarly, Plaintiff had never been the subject of any threat of prosecution or injury, nor did Plaintiff allege that she suffered any immediate injury as a result of the ordinance.

Next, the court was required to determine whether pursuit of other remedies would further define Plaintiff’s alleged injuries. If there is another process of adjudication at the local level not engaged by the Plaintiff, then the injury usually requires further definition. Murphy, 402 F.3d at 351. In regards to this question, Defendant asserted that, without an application and rejection or acceptance of the application, there was no final, formalized action that defines the nature and the extent of the impact on Plaintiff. The court agreed, finding that “[r]equiring Plaintiff to at least apply for a “Fortune Teller” license would add to the record and help the Court determine the way in which the license is issue and how the additional zoning ordinance is applied to Plaintiff. Plaintiff’s injury would be better defined if the application process yielded a final decision as to whether or not Plaintiff could engage in fortune telling in the City.”

Therefore, the court held that Plaintiff’s constitutional claims were not ripe under Article III’s case and controversy requirement, nor were her RLUIPA claims ripe for consideration under the Williamson County Final decision requirement. Accordingly, all of Plaintiff’s causes of action were dismissed.

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