In this lаwsuit, plaintiff Esther Koontz seeks injunctive and declaratory relief under
Judging the constitutionality of democratically enacted laws is among "the gravest and most delicate" enterprises a federal court ever undertakes. Blodgett v. Holden ,
I. Facts
House Bill 2409
In June 2017, Kansas enacted House Bill 2409 ("the Kansas Law"). This law requires all state contractors to certify that
[E]ngaging in a refusal to deal, terminating business activities or performing other actions that are intended to limit commercial relations with persons or entities doing business in Israel or in territories controlled by Israel, if those actions are taken either: (1) In compliance with or adherence to calls for a boycott of Israel other than those boycotts to which50 U.S.C. § 4607 (c)1 applies; or (2) in a manner that discriminates on the basis of nationality, national origin or religion, and that is not based on a valid business reason ....
Multiple legislators made statements during debate about the Kansas Law that its purpose was to stop people from antagonizing Israel. And multiple private individuals testified to the same effect. Several individuals emphasized the need to oppose "Boycott, Divestment, Sanctions" campaigns, which protest the Israeli government's treatment of Palestinians in the occupied Palestinian territories and Israel by applying economic pressure to Israel. During a committee hearing about the bill
Plaintiff's Boycott of Israel
In May 2017, plaintiff Esther Koontz began boycotting Israeli businesses. She first became motivated to boycott Israel in 2016 when she saw a presentation about conditions in Israel and Palestine. And on July 6, 2017, Mennonite Church USA passed a resolution calling on Mennonites to take steps to redress the injustice and violence that both Palestinians and Israelis have experienced. Ms. Koontz is a member of a Mennonite Church organization. Specifically, this organization's resolution called on Mennonites to boycott products associated with Israel's occupation of Palestine. As a consequence, plaintiff decided she would not buy any products or services from Israeli companies or from any company who operates in Israeli-occupied Palestine.
Plaintiff's Efforts to Contract with Kansas
Plaintiff is a curriculum coach at a public school in Wichita, Kansas. As part of her regular duties, she supports her school's curriculum and teaches teachers how to implement it. Before she began working in this position, plaintiff taught math in the Wichita public schools. During the 2016-17 academic year, the Kansas State Department of Education ("KSDE") selected plaintiff to participate as a teacher trainer in KSDE's Math and Science Partnership program. In this program, KSDE contracts with professional educators to provide coaching and training to public school
On May 31, 2017, plaintiff successfully completed the requisite training to serve as trainer for the program. Shortly afterward, the program director for the Math and Science Partnership, Melissa Fast, began sending plaintiff travel requests asking her to lead training programs for оther teachers. Plaintiff said she was willing to conduct three of the trainings that Ms. Fast initially offered her. In the future, plaintiff asserts, she would like to do as many training sessions as she can.
On July 10, 2017, the program director asked Ms. Koontz to sign a certification confirming that she was not participating in a boycott of Israel, as the Kansas Law requires. Initially, plaintiff did not respond because she wanted to consider her options. On August 9, 2017, plaintiff emailed the program director and told her that she had decided to refuse to sign the certification. The program director responded that Kansas could not pay plaintiff as a contractor unless she signed the certification.
Despite plaintiff's eligibility and interest in participating in the Math and Science Partnership program, the KSDE declined to contract with plaintiff because she would not sign the certification. But in this case, defendant Randall D. Watson
II. Ripeness
Before the court can reach the merits of plaintiff's motion, it must decide whether her claim is ripe for judicial review. Kan. Judicial Review v. Stout ,
Typically, federal courts "apply a two-factor test to determine whether an issue is ripe."
The ripeness factors considered in a facial First Amendment challenge case are: "(1) hardship to the parties by withholding review; (2) the chilling effect the challenged law may have on First Amendment liberties; and (3) fitness of the controversy for judicial review." Richardson ,
A. "Hardship to the Parties by Withholding Review"
This first factor requires the court to "ask whether the [Kansas Law] create[s] a 'direct and immediate dilemma for the parties.' " Stout ,
On appeal, Stout 's defendants again challenged the ripeness of plaintiffs' claims. Id. at 1115-16. They argued that no one had initiated a disciplinary action against the judicial candidates for violating the restrictions and so, "plaintiffs' fears of prosecution are illusory." Id. at 1117. The Circuit rejected defendants' argument, reasoning: "So long as the [provisions] remain in effect in their current form, the state is free to initiate such action against candidates [for judicial office]." Id. at 1118 (citing Grant v. Meyer ,
The Kansas Law challenged in the current case puts plaintiff in a different posture than the plaintiffs in Richardson and Stout . Ms. Koontz's boycott of Israel does not expose her to fear of prosecution (as in Richardson ,
The second factor of the relaxed ripeness test requires the court to assess "the chilling effect the challenged law may havе on First Amendment liberties."
This corollary, then, frames the threshold question under this second factor: Is the Kansas Law challenged here vague? In one sense, it is not. It imposes a bright line rule. All prospective contractors must certify to Kansas that they are not boycotting Israel. See Kan. Stat. Ann § 75-3704f(a). If they don't so certify, they can't contract with the state. But a second aspect of the Kansas Law injects a significant degree of uncertainty. This provision authorizes the Kansas Secretary of Administration to waive the Kansas Law's certification requirement "if the secretary determines that compliance is not practicable ."
When is compliance "not practicable?" The Kansas Law does not say. Indeed, it provides no guidance about the meaning intended for this important term. Defendant's Opposition to plaintiff's injunction motion (Doc. 11) is mum on the subject as well. It never mentions the issue at all. But at oral argument, defense counsel described the standard applied to date by Kansas's Secretary of Administration. The Secretary has received, defense counsel represented, a few requests to waive the certification requirement. Some requests were submitted by putative contractors who asserted that they just didn't "want to fill out another government form and deal with the state government to be a contractor." Counsel argued that the Secretary reasonably had determined it was "practicable" for these stubborn applicants to comply with the Kansas Law's certification requirement. Counsel contrasted this kind of contractor with Ms. Koontz. He explained that the plaintiff is "a member of a church, a church [where] there's a religious belief that would oppose doing business with Israel." So, defense counsel asserted, the Secretary of Administration "would grant the waiver when presented with evidence; [but] not [grant a waiver to a contractor who] just [said,] 'I don't want to do it.' "
The court is not yet prepared to decide the constitutional sufficiency of such a malleable, uncertain definition for a term so central to the Kansas Law and to the ripeness analysis of plaintiff's claim. But the court has sufficient information to decide that "the arguable vagueness of [the Kansas Law] greatly militates in favor of a finding of ripeness." Stout ,
C. Fitness of the Controversy for Judicial Review
The third and final factor of the relaxed ripeness test considers whether
Here, Ms. Koontz presents a facial challenge to the Kansas Law under the First Amendment. This brings it within the holding in ACORN and Awad . And even if one construed the case's claims as ones presenting only an as applied challenge-which the court does not-the facts controlling that analysis are not disputed materially.
D. ACORN v. Tulsa
While sections A, B, and C complete the analysis required by the three-part relaxed ripeness test, the court devotes a fourth section to the ripeness discussion in ACORN v. Tulsa,
In ACORN , the plaintiffs brought a facial First Amendment challenge to an ordinance adopted by the City of Tulsa, Oklahoma.
The district court held plaintiffs' challenge was not ripe for judicial review because the plaintiffs never had asked the Park and Recreation Board for permission to protest in the park.
Defendant's ripeness argument here contradicts ACORN . He argues that plaintiff's challenge to the Kansas Law is not ripe because she never asked the Secretary of Administration to waive the certification requirement. He also supplies evidence-an
E. Conclusion: Plaintiff's Claim is Ripe for Judicial Review
The court concludes that Ms. Koontz's First Amendment challenge to the Kansas Law is ripe for judicial review under the relaxed ripeness test applied to facial challenges under the First Amendment. It thus rejects defendant's arguments to the contrary.
III. Mootness
Defendant's memorandum opposing plaintiff's injunction motion also references mootness.
The mootness doctrine is "grounded in the requirement that any case or dispute that is presented to a federal court be definite, concrete and amenable to specific relief." Jordan v. Sosa ,
While it is not entirely clear, it seems that defendant may have intended to invoke the voluntary cessation doctrine. Under it, a defendant cannot moot a case by voluntary ceasing the allegedly wrongful conduct if the defendant could engage in the conduct again after a court would dismiss a case challenging it. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. ,
Here, the affidavit from the Secretary of Administration asserts that she would
Here, defendant never asserts that he permanently will abandon enforcement of the Kansas Law's certification requirement. Given this, the dispute presented by plaintiff's Complaint presents a "definite, concrete and amenable to specific relief" claim. Jordan ,
IV. The Preliminary Injunction Analysis
Having concluded that Ms. Koontz's challenge to the Kansas Law presents a claim that is ripe but not moot, the court now turns to the merits of thе pending motion. This motion seeks a preliminary injunction pending a final judgment in the case. Specifically, plaintiff asks for an order that temporarily enjoins defendant from enforcing the requirement established in
A. The Showing a Party Must Make to Deserve a Preliminary Injunction
Federal Rule of Civil Procedure 65(a) authorizes district courts to issue preliminary injunctions. The relief afforded under this rule has a limited purpose-a preliminary injunction is "merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch ,
"To obtain a preliminаry injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party's favor; and (4) the preliminary injunction is in the public interest."
Verlo v. Martinez ,
The parties here agree about some things. For example, they agree about the facts. They also agree that plaintiff must make the four showings required by Verlo v. Martinez , among other cases. But predictably, they disagree sharply about how the court should apрly those four requirements.
For one, defendant argues that a preliminary injunction here would alter the status quo-not preserve it-thus increasing plaintiff's burden. Specifically, defendant contends, when a district court considers a preliminary injunction that would alter the status quo, the court must "closely scrutinize[ ] [the movant's request] to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft ,
1. Is plaintiff likely to succeed on the mеrits of her claim?
Plaintiff asserts that by enforcing the Kansas Law, defendant is violating
Plaintiff asserts a variety of legal theories that show defendant is depriving plaintiff of a constitutional right. See Doc. 4 at 10-23. But the court concludes it must address just one of them to decide the current motion.
Under the First Amendment,
Plaintiff here has met her initial burden. The First Amendment protects the right to participate in a boycott as the Supreme Court held explicitly in NAACP v. Claiborne Hardware Co. ,
In Claiborne , defendants-supporters of civil rights-organized a boycоtt of all white merchants after city and county officials had refused defendants' demands for racial equality.
The Supreme Court granted certiorari and reversed the Mississippi Supreme Court.
The Supreme Court explained that the boycott at issue in Claiborne included many elements.
Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments. The black citizens ... banded together and collectively expressed their dissatisfaction with a social structure that haddenied them rights to equal treatment and respect.
The same analysis applies to the Kansas Lаw. The conduct prohibited by the Kansas Law is protected for the same reason as the boycotters' conduct in Claiborne was protected. Ms. Koontz, other members of the Mennonite Church, and others have "banded together" to express, collectively, their dissatisfaction with Israel and to influence governmental action. Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens. She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne . The court concludes that plaintiff has carried her burden on the current motion to establish that she and others are engaged in protected activity.
Ms. Koontz's satisfaction of her initial burden shifts the burden to defendant. Umbehr ,
Whеn evaluating whether a law serves a compelling governmental purpose, a court must inquire into the circumstances of the law's enactment. Doe v. City of Albuquerque ,
The Kansas Law also aims to minimize any discomfort that Israeli businesses may feel from the boycotts. This, too, is an impermissible goal. See, e.g. , Matal v. Tam , --- U.S. ----,
The authority the Kansas Law grants the Secretary of Administration to waive the certification requirement also undermines any rationale offerеd by defendant. As the Supreme Court noted in City of Ladue v. Gilleo ,
The defendant's written Opposition to plaintiff's injunction motion never argued the constitutionality of the Kansas Law. At the hearing on the motion, the court asked defense counsel to address this omission. He did. When asked whether there was an argument to be made that the Kansas Law is indeed constitutional, defense counsel said there was. He cited Rumsfeld v. Forum for Academic & Institutional Rights, Inc. ,
In Rumsfeld , the Congress had enacted a law requiring a law school, to be eligible for federal funding, to "offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access."
The Supreme Court disagreed.
The Supreme Court also concluded that the law did not force the law schools to host or accommodate the military's message.
The Kansas Law here is different than the requirement at issue in Rumsfeld . The conduct the Kansas Law aims to regulate is inherently expressive. See Claiborne ,
In sum, the court holds that plaintiff is likely to succeed on the merits. This is so even if-as defendant contends-a preliminary injunction would alter the status quo. The court has "closely scrutinized [plaintiff's] request" and concludes "that the exigencies of the case support granting" this extraordinary remedy. O Centro Espirita ,
2. Will plaintiff suffer irreparable harm if the court does not grant an injunction?
Next, plaintiff must establish that she will sustain irreparable harm absent a preliminary injunction. Verlo ,
Ms. Koontz asserts that the analysis is simple. She is correct. The Supreme Court squarely has decided this point. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns ,
The district court declined to issue a preliminary injunction, reasoning that loss of employment did not constitute irreparable harm.
Defendant here makes a similar argument to the one discredited in Elrod . He argues that Ms. Koontz will not sustain irreparable harm if the Kansas Law's certification requirement is left in place while the cаse is adjudicated on the merits. Defendant says that plaintiff can present evidence about the number of training sessions she would have conducted. And since each session fetches a payment of $600, simple math will permit a damage award to make her whole-assuming the court concludes that defendant has disenfranchised her constitutional rights.
While this argument has a pragmatic appeal, it is not one the First Amendment will abide. As referenced above, the Supreme Court already has decided the question. See
Nor will the pragmatic appeal of defendant's argument withstand closer scrutiny. Ms. Koontz has sued defendant in his official capacity. Doc. 1 ¶ 7. The Eleventh Amendment forbids recovery of damages in federal court suits against state officials suеd in their official capacity. See Chamber of Commerce of U.S. v. Edmondson ,
Defendant also argues that plaintiff's harm is not imminent because she already has refused to sign the certification. And, defendant argues, any future trainings plaintiff might give are speculative. To support his argument, defendant cites Pinson v. Pacheco ,
In Pinson , the Tenth Circuit held that a movant for a preliminary injunction had failed to show irreparable harm. Id. at 492. The movant claimed that he would sustain irreparable harm because federal prison officials had refused to honor his request
In Schrier , the district court denied plaintiff's preliminary injunction motion.
Here, defendant's argument focuses on the wrong harm. Plaintiff's harm stems not from her decision to refuse to sign the certification, but rather from the plainly unconstitutional choiсe the Kansas Law forces plaintiff to make: She either can contract with the state or she can support a boycott of Israel. Her harm is ongoing because the Kansas Law is currently chilling plaintiff's and other putative state contractors' speech rights.
In short, the court finds that Ms. Koontz has shown that she will sustain irreparable harm unless the court enjoins defendant from enforcing the Kansas Law's certification requirement. She thus has shouldered her burden on the second element of the injunction standard.
3. Does plaintiff's irreparable harm outweigh any harm defendant will sustain if the court grants the preliminary injunction?
Plaintiff next argues that her irreparable harm outweighs any harm defendant would bear if the court issued a preliminary injunction. Plaintiff asserts that defendant "does not have an interest in enforcing a law that is likely constitutionally infirm." See Edmondson ,
Defendant argues that plaintiff has not shown any imminent or threatened injury and an injunction will harm Kansas and defendant greatly. Defendant notes that in 2016, Kansas exported more than $56 million worth of goods to Israel and imported more than $83 million worth of goods. Defendant fears that enjoining the Kansas Law will cause Israeli companies to refuse to do business in Kansas, or with Kansas companies, and thus harm the Kansas economy.
Defendant's argument is not persuasive. Defendant adduced no evidence that Israeli companies will refuse to do business in or with the State of Kansas unless its ban against Israeli boycotts is enforced. And defendant has not forwarded any evidence that Kansas commerce has increased because of, or in anticipation of, the bоycott ban. If such evidence existed, one would expect the defense to have access to it and have presented it. It didn't.
After balancing the relative harms imposed by a preliminary injunction, the
4. Is the requested injunction adverse to the public harm?
The fourth and final touchstone of the preliminary injunction standard requires the injunction's proponent to show that it will not be adverse to the public interest. Plaintiff argues that a preliminary injunction will serve the public interest because it will protect constitutional rights. See Edmondson ,
Defendant argues that an injunction will not serve the public interest because Israel is an important trade partner, as explained аbove. Defendant also argues that it is in the public interest to enforce a law that prevents Kansans from discriminating against foreign companies doing business in Kansas. Last, defendant argues that enforcing the Kansas Law is in the public interest because the Kansas Law passed the Kansas House 99 to 13 and the Kansas Senate 36 to 3.
Here, the court already has concluded that it is highly likely that the Kansas Law is invalid and thus enjoining it will protect a constitutional right. See supra , Part IV.A.1. Defendant has failed to produce evidence that an injunction will affect Kansas's relationship with Israeli companies. While the Kansas Law may have been passed by the legislature with flying colors, that showing merely would demonstrate that one state legislature had enacted a statute. Such a showing would not place the Kansas Law on the same level as an amendment to our Constitution-the very first amendment adopted by our founders and one ratified by three fourths of our states. See U.S. Const. art. V. A desire to рrevent discrimination against Israeli businesses is an insufficient public interest to overcome the public's interest in protecting a constitutional right. The court finds that an injunction will serve the public interest.
V. Conclusion
For reasons explained above, the court grants plaintiff's Motion for Preliminary Injunction (Doc. 3).
IT IS THEREFORE ORDERED THAT plaintiff's Motion for Preliminary Injunction (Doc. 3) is granted. Defendant is preliminarily enjoined from enforcing
IT IS FURTHER ORDERED THAT the parties must meet and confer to discuss a proposed schedule for the remainder of this case. Counsel for the partiеs are directed to contact the chambers of United States Magistrate Judge K. Gary Sebelius to request a Scheduling Conference to govern the remainder of the case. Counsel may either call his chambers at 785-338-5480 or email ksd_sebelius_chambers@ksd.uscourts.gov.
IT IS SO ORDERED.
Notes
This federal provision preempts state law from contradicting a federal statute prohibiting certain types of boycotts. See
House Bill 2409
Randall Watson is the Kansas Commissioner of Education and the Chief Administrative Officer of the KSDE. He is charged with enforcing compliance with the Kansas Law for all KSDE independent contractors.
In a broader sense, the ripeness requirement implicates a federal court's subject matter jurisdiction under Article III's case and controversy clause. Acorn v. City of Tulsa, Okla. ,
Typically, the federal courts view such a challenge as a motion under Fed. R. Civ. P. 12(b)(1).
Defendant primarily relies on Levin v. South Carolina Department of Health & Human Services , 12-CV-0007,
Even if defendant does not present a mootness challenge, the court has a duty to assure itself that a case is not moot because, like ripeness, mootness is a jurisdictional prerequisite that the court must determine before proceeding. Jordan v. Sosa ,
The First Amendment applies to the states through the Fourteenth Amendment's Due Process Clause. iMatter Utah v. Njord ,
In some respects, the issue here is easier than the one in Claiborne . In that case, some of the boycotters had exerted discipline against persons who refused to join their boycott. Id. at 903-04,
See