*1 672 an arguments
cannot ‘manufacture for and therefore we will not con- appellant’ HARDAGE, Plaintiff-Appellant, Hugh actually claims that were not sider v. argued appellant’s opening brief.” INC., a New CBS BROADCASTING Indep. Washington, Towers v. 350 F.3d Corporation; Viacom Television York (9th Cir.2003), 925, quoting 929 Green- Inc., Corporation; a Delaware Stations (9th FAA, 971, v. 28 F.3d wood Inc., Broadcasting of Viacom Seattle Cir.1994). reason, For we will not Kathy Corporation; Delaware argument Hardage’s manufacture individual, Defendants-Ap- Sparks, an on it in favor. behalf and then rule his pellees. argument This waived. See Green- wood, at 977. 28 F.3d No. 03-35906. petition panel rehearing for is denied. Appeals, United States Court of Judge grant petition. Paez would Ninth Circuit. rehearing pending en petition banc 3,
Argued May and Submitted 2005. petitions this court. No further before 1, may filed. Filed Nov. 2005. be 6, Amended 2006. Jan. Kilbreath,
Claudia Short Cressman & PLLC, Seattle, WA,
Burgess plain- for the
tiff-appellant.
Harry Kathryn J.F. Korrell and S. LLP, Loppnow, Wright Davis Tremaine LEE; Lee, Vicki B. Darrell E. Seattle, WA, defendants-appellees. for the Plaintiffs-Appellants,
v. Stephen WALTERS, Higbee, Brad S. Rankin, George Reid, Richard (in Laura A. Fine their individual and capacities official as members of the WALLACE, SILVERMAN, Before Oregon Racing Commission), PAEZ, Judges. Circuit (in McAdam her individual ca- Joanne pacity only), Defendants-Appellees. ORDER No. 03-35102. 1, panel opinion filed November 2005, is amended as follows: of Appeals, United States Court 14898): Ninth (p.
Add end footnote Circuit. analyzes potential The dissent also March Submitted 2005.* legal guid- effect of enforcement EEOC Filed Dec. guidance ance. This was never cited Hardage of his briefs. cir- “Our
cuit repeatedly has admonished that we * 34(a)(2). panel unanimously R.App. This case suit- Fed. P. finds this argument. able for decision without oral See *2 Clarke,
Kathryn Portland, OR, H. the plaintiffs-appellants.
Hardy Myers, Attorney General for the Williams, Oregon, Mary State of H. Solici- Oregon, tor General for the State of Casey, Attorney Daniel J. Assistant Gen- eral, Salem, OR, defendants-appel- for the lees. HUG, REINHARDT,
Before: BYBEE, Judges. Circuit REINHARDT, Judge: Circuit a disputes involving After series of licensing financing of The New Port- Meadows, (TNPM), land Inc. a horse rac- ing operation partially owned Vicki and Lee, Darrell the Lees filed a section 1983 TNPM, closely-held corporation with a against Stephen in the district court action Rankin, Meadows, Walters, Higbee, George lease on Portland perpetual Brad S. Reid, Portland, Laura Fine and Joanne Oregon. Richard race track McAdam, Oregon Rac all members of the administrative The ORC is state *3 (ORC). The Lees’ com ing Commission agency responsible regulating the alia, alleged, provision inter that a plaint racing industry Oregon. horse Oregon pursuant in the statute to which licenses, all agency inspects supervises ordered excluded from the they had been race meets and monitors track finances. by vio Portland track the ORC Meadows receiving a condition of its race meet As it unconsti process lated due because was ORC, from the TNPM was re- license tutionally vague. summary judgment, On accounts, to maintain quired several bank magistrate judge1 agreed pro that the Account, including Clearing a Mutuel into and, basis, that vision was invalid on ruled gross receipts pari-mutuel from wa- which statute, Oregon the entire Revised Ac- gering deposited, were Purse 462.080(1), void for Statutes section count, out of which to purses paid were vagueness. at trial the Lees did winning During horses. the relevant time claims, prevail damages of their not period, former Administrative they appealed judg the district court’s 462-37-155(28) required Rule race tracks ment. In order to resolve some of these to maintain in their Purse Accounts “suffi- claims, necessary it is to determine the cient funds to cover all monies due horse- validity of the exclusion orders. stakes, rewards, regard purses, men in to ruling We vacate district court’s deposits.” claims and It is not clear from unconstitutionally section applicable the record to what extent stat- because, vague holding after one of its regulated utes and administrative rules unconstitutional, provisions the court failed commingling of funds from the various ac- provision required by to sever that Ore counts. necessary it gon appeal, law. On is not to question. 1990’s, decide constitutional early In began TNPM to upon Lees’ exclusion orders were based In experience financial difficulties. Febru- grounds, separate two one of which was a ary, the owners of Portland Meadows violation of another of the stat $165,000 won a judgment state court ute—a that has not been chal against unpaid TNPM for rent. While lenged. uphold the We exclusion orders reviewing TNPM’s finances in order to unchallenged provision on the basis of the satisfy determine whether it could and therefore need not reach the issue of judgment, Darrell Lee discovered that challenged provision whether the is constit Ferryman had for several months been utional.2 funneling TNPM private funds into a ac- Ferryman count. On March after
FACTUAL AND PROCEDURAL money, had refused to return the HISTORY $165,000 withdrew from TNPM’s Mutuel action, $55,000 At all times relevant to this Clearing Account and from its co-owned, Ferryman, They Lees with Gene Purse Account. used the withdrawn separate disposition 1. Pursuant to Federal Rule of Civil Procedure In a memorandum filed 636(c), herewith, concurrently 73 and Title 28 U.S.C. section we address the re- parties to have consented the case heard mainder of the issues in the Lees’ involved magistrate judge. appeal. person guilty who has been found violat judgment state court money satisfy state, another state or ing laws taxes. pay overdue gambling the United States related to day, having discovered The next adversely wagering or which reflects on accounts, from the two withdrawals Lees’ person’s honesty.” ex ORC meeting emergency convened the ORC plained Darrell Lee’s exclusion as follows: com- presided. The which McAdam over finding by “This is based on the Order Lees’ use of the concluded that the mission n commission that Lee’s conduct has been Purse Clearing and funds from the Mutuel racing detrimental to the best interests of and, pursuant improper Accounts was provisions or he has violated 462.080(1), excluded ordered them relating racing, statutes or the Rules of Meadows. Section Portland from *4 Racing approved by the Commission.” 462.080(1)states: Thus, Darrell Lee was ordered excluded may ex- Oregon Racing Commission The grounds to the first second pursuant any race courses any from and all clude in enumerated the statute.3 Vicki Lee’s deems det- whom the commission person nearly order contained identical exclusion racing interest of or rimental to the best language. any willfully violates any person who 9, 1993, they after tried un- On March any rule or chapter of this or successfully times to retrieve their several any by the commission or order issued personal belongings from Portland Mead- of guilty has been found person who ows, petitioned the Lees for review of their state, another violating any laws of this orders in state court. On March exclusion related to or the United States state 15, Oregon judge court issued a circuit wagering or or which adverse- gambling injunction enjoining, with sev- preliminary honesty. The person’s ly reflects on conditions, eral the enforcement Darrell may take such action with- commission Lee’s exclusion order. hearing a and without providing out first be- subsequent litigation The state court subject to either criminal or civil being a number of parties tween the resolved hearing pro- if liability. no is others, including left issues but several vided, then, days within 10 after 462.080(1), un- constitutionality of section upon demand of the board’s action and party pri- No contends that the resolved. shall party, the commission aggrieved preclusive in a or state court has litigation provided in ORS grant hearing a on this court’s review of the consti- effect hearing except that such chapter 462.080(1) tutionality or the va- of section days than place take no later shall lidity the exclusion orders. following demand. a com- March the Lees filed grounds three On provides
The statute thus
alleging several sec-
plaint in district court
racing
from
venues: the ORC
for exclusion
(1)
arising principally from
tion 1983 claims
any person it “deems det
may exclude
(2)
Portland Meadows.
their exclusion from
racing,”
to the
interest of
rimental
best
they
complaint,
amended
any pro
In their second
“any
who
violates
person
462.080(1)
alia,
inter
alleged,
rule or order
chapter
vision
commission,”
on its face because
(3)“any was unconstitutional
by issued
Thus,
withdrawing
the funds.
violated”
Although
exclusion orders stated
only
the two
one of
upon
even if the ORC relied
based
the first
the Lees were excluded
upon the
grounds,
that it relied
it is clear
ground, the orders listed five
or the second
"has
second.
and rules that each of the Lees
statutes
racing” provision
best interest of
could be
the “detrimental
best
interest of
remainder of
impermissibly vague.
severed from the
the statu
racing”
court,
considering
statutory provision
The district
after
cross-
te.4 Whether a
summary judgment,
motions for
ruled that
a
of state law.
question
Dep’t
severable is
Fabe,
491, 509-10,
rendered the en-
challenged provision
Treasury v.
508 U.S.
(1993).
tirety
unconstitution-
section
went to trial. intent, lative in the enactment of judgment district court in favor of entered statute, part that if of the statute is appealed. the defendants. The Lees unconstitutional, held the remaining parts shall remain force unless: ANALYSIS (1) otherwise; provides statute summary judgment, At parts are so remaining essen- constitutionality challenged tially inseparably connected with 462.080(1). Revised Statutes section dependent upon the unconstitutional court, finding district *5 part that apparent it is that the remain- vagueness, void for ruled that because the ing parts would not have been enacted “detrimental to best interest of racing” the without part; the unconstitutional or provision by was not defined the statute or alone, parts, standing The remaining rules, applicable the administrative it “falls incapable are of incomplete being into the of category statutes that invite in legisla- executed accordance with the arbitrary enforcement.” The district court tive intent. that, although may reasoned the ORC 174.040; § have Lees on excluded the the basis of the Or.Rev.Stat. see also Tilbury v. 112, improper of County, withdrawal funds from the Multnomah 322 Or. 902 P.2d (1995). accounts, 577, TNPM 580 it also to alleged per- could be due Here, none three exceptions ap- of. animosity sonal between ORC and 462.080(1) First, plies. section does not problem Darrell Lee. The is that under provide parts that found to be unconstitu- 462.080(1), ORS appears ORC to Second, are not tional severable. the re- authority have the to exclude Darrell maining exclusion, grounds two for includ- Lee, else, anyone or because of that ing one grounds upon of the relied in the animosity, speech, or of or because for orders, Lees’ exclusion are not “so essen- all, virtually any at as long reason as the tially and inseparably connected” to the ORC concludes that the exclusion would ground of “detrimental to the best interest be “in racing.” the best interests of of racing” apparent that it is that summary in judgment legislature its order would not have enacted the the district court ruled that statute purportedly pro- section without the infirm 462.080(1) facially Third, unconstitutional in vision. remaining grounds for entirety its considering without exclusion are standing complete whether alone the purportedly capable infirm “detrimental in being to the executed accordance argued dently subject Lees have not that the second to constitutional grounds and third for exclusion in section any independent reason. 462.080(1) vague indepen- are or otherwise
677 in of the neces- questions the statute. tutional advance legislative intent of with law, having sity deciding Lyng con- them.” v. Northwest Thus, Oregon state under Ass’n, Cemetery the best the “detrimental Indian Protective 485 that cluded provision was unconsti- 108 L.Ed.2d racing” U.S. S.Ct. 99 interest (1988); tutional, obligated the district court was see also United States v. San- 534 (9th from the remainder n. 9 provision doval-Lopez, F.3d sever 462.080(1). Cir.1997) (“We it failed to do avoid ques- Because constitutional section so, constitutionality ruling dispos- when an alternative basis for its tions itself.”). presents was erroneous. of the case ing section Oregon statute
Upon reviewing the ruling respect court’s with The district orders, we con Lees’ exclusion and the constitutionality Oregon Revised to the need not reach constitu clude that we Its is vacated. Statutes were based question. orders tional regarding the exclusion orders is ruling of funds and improper the Lees’ use upon hold reversed. We the exclusion orders upon unchallenged relied explicitly be lawful. in a differ for exclusion set forth ground PART; IN VACATED REVERSED “any person of the statute: ent REMANDED IN PART. AND violates
who or rule order issued chapter BYBEE, concurring in Judge, Circuit The orders held
commission.” in dissenting part part: alia, violated, regula ORC had inter Lees race governing distribution tions part part. I concur and dissent On supra. n. 3 track’s account funds. See present both a facial appeal, *6 challenge as-applied Oregon Lees’ to Revised Because we can affirm the 462.080(1).1 con majority § un The of the Statute orders the basis exclusion Lees’ reaching as-applied the cludes that the challenged provision, without alter the the Commission offered constitutionality of fails because the “detrimental the grounds for decision and of we de native its racing” provision, interest best those constitutionality of at least one of question the of the consti cline to consider join majority statute, challenged. not I tutionality of the and hold that was point. Inexplicably, howev opinion from Meadows on this exclusion Portland Lees’ er, majority and declines to decide “A fundamental permissible.5 was challenge be of the Lees’ facial principle judicial of restraint merits longstanding judge, that magistrate it finds reaching that courts avoid consti- cause requires state, States correctly another or the United found with this state 5. As the district court claim, respect procedural process gambling wagering to the due or which related or introduced evidence that created no honesty. adversely person's reflects on the genuine issue of material fact. may with- action The commission take such hearing without providing a and out first 462.080(1) § 1. Or. Rev. provides: Stat. lia- being subject or civil to either criminal Racing may ex- Oregon Commission hearing provided, bility. if is no any any courses clude from and all race then, days action within 10 after the board’s deems detri- person whom commission party, aggrieved upon demand any racing to the best or mental interest hearing grant a shall the commission any provision person who violates 183, except chapter provided in ORS chapter any or or order issued rule than hearing place no later shall take such person has commission who or following days guilty violating any demand. laws been found having concluded that the “detrimental to part actually when a of the statute is held racing” provision the best interest of was to be unconstitutional. Revised facially vagueness, void for should § have provides: Statute 174.040 severed the unconstitutional It shall be considered that it legis- is the preserve constitutionality. the statute’s intent, lative the enactment of § See Or. Rev. 174.040. There is no statute, any part the statute is Stat. if need to whether the magistrate determine unconstitutional, held the remaining judge majority failed to sever: Once the parts shall remain in force unless: 462.080(1) concludes that section was con- (1) otherwise; provides The statute here, stitutionally applied necessarily it an- (2) remaining parts are so essen- swers whether the statute is unconstitu- tially inseparably connected with tional on its face. It is not. I dissent dependent upon the unconstitutional jurisprudence because our demands that part that it apparent that the remain- reverse, merely vacate, we and not ing parts would not have been enacted magistrate judge’s holding that section without the part; unconstitutional 462.080(1) is unconstitutional on its face. alone, The remaining parts, standing The magistrate judge incomplete concluded that incapable of being are. facially unconstitu- executed in legisla- accordance with the tional because the that author- tive intent.
izes the Commission to exclude person added). § Or. Rev. Stat. (cid:127) 174.040 (emphasis whom it finds “detrimental to the best majority any part does not hold racing” interest of vested “unbridled dis- Instead, statute unconstitutional. the ma- cretion in the ORC.” The magistrate judge jority assumes that if the “detrimental to based her conclusion on a series cases the best racing” interest of provision was addressing facial challenges to criminal unconstitutional, magistrate judge regulated statutes that conduct related to should have Perhaps severed it. mag- activity First Amendment and concluded judge istrate should have that pro- severed n arbitrary “invites vision; but we have the merits of her enforcement and does not meet even the decision before us. I would reverse the more lax scrutiny applied pro- to statutes magistrate judge because she incorrectly *7 scribing penalties.” civil See Smith v. Go- concluded that the statute was unconstitu- guen, 1242, 415 U.S. 94 S.Ct. 39 face, tional on its not because she failed to L.Ed.2d 605 (invalidating a statute sever the statute. attaching liability anyone criminal “who precedents that, Our clearly provide contemptuously treats flag of the Unit- challenge advance a facial to the constitu States”); ed see also Nunez v. City San tionality statute, of a civil the Lees “must 935, (9th Cir.1997) Diego, 114 F.3d 938 demonstrate that there is no set of circum (invalidating city making ordinance it stances in which the statute ap could be “loiter, wander, unlawful for minors to idle, plied in constitutionally valid manner.” stroll, curfew). play” after 986, Bynum, United States v. 327 F.3d 990 (9th Cir.)
The majority
magis-
concludes that the
Salerno,
(citing United States v.
judge
statute,
trate
739,
failed to sever
745,
as
2095,
481 U.S.
107 S.Ct.
95
required by Oregon law.
(1987)),
denied,
But
law L.Ed.2d 697
cert.
540 U.S.
permit
does not
severing provisions
908,
279,
(2003);
124 S.Ct.
679 904, apply merits. I would denied, analysis 124 of its S.Ct. 2003), 542 U.S. cert. by (2004); challenge required facial test the Su- Myers, 2839, S.D. 159 L.Ed.2d Francisco, in Es- preme Court Salerno County San City and Inc. v. Hoffman Cir.2001). tates, (9th previously By- we have done in 461, We 467-68 253 F.3d num, Ass’n, Hotel & Motel and S.D. of review rigorous standard a less apply I conclude that the Lees cannot argue Myers. not challenges that do vagueness I challenge, a facial and would Amend sustain regulates First the statute judgment. of the Nevertheless, portion reverse that even conduct. ment-related validity facial challenging the party “a I respectfully dissent. grounds out vagueness an ordinance First Amendment domain of the side the is enactment that ‘the
must demonstrate applica in all of its vague
impermissibly Ass’n, 344 F.3d at & Motel
tions.”’ Hotel v. Village Estates (quoting of Hoffman Estates, Inc., 455 U.S.
Flipside, Hoffman
495,
1186,
States Cir.1997): (9th avoid consti 802 n. 9 ‘We ba questions when an alternative tutional Entities, I-X; Does, I- ABC John/Jane presents case it disposing sis for X; Products, a Division of Abbott Ross majority I agree While with self.” Laboratories, Inc., Defendants. for dis that there is an alternative basis 04-15257. No. challenge, there is as-applied of the posing disposing alternative basis for no Appeals, United States Court Indeed, there is no rea challenge. facial Ninth Circuit. magistrate to reverse the refusing son for *8 Nov. 2005. Argued and Submitted judgment outright: majority’s judge’s opinion proves Filed Dec. application. The
capable of constitutional
magistrate judge’s conclusion on its face is is unconstitutional
demonstrably wrong. entirety majority simply vacates ruling on the magistrate judge’s in an engaging without
facial