United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
lawsuit, plaintiff Esther Koontz seeks injunctive and
declaratory relief under 42 U.S.C. § 1983. She asks the
court to enjoin enforcement of a Kansas law requiring all
persons who enter into a contract with the State of Kansas to
certify that they are not engaged in a boycott of Israel. Ms.
Koontz claims that this law violates both the First Amendment
and the Fourteenth Amendment's Equal Protection Clause.
This matter comes before the court on Ms. Koontz's Motion
for Preliminary Injunction (Doc. 3). The parties have briefed
the issue fully and presented oral argument on it.
the constitutionality of democratically enacted laws is among
“the gravest and most delicate” enterprises a
federal court ever undertakes. Blodgett v. Holden,
275 U.S. 142, 147-48 (1927) (Holmes, J., concurring). But
just as surely, following precedent is a core component of
the rule of law. When the Supreme Court or our Circuit has
established a clear rule of law, our court must follow it.
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989). As this Order explains, the Supreme
Court has held that the First Amendment protects the right to
participate in a boycott like the one punished by the Kansas
law. The court thus grants plaintiff's motion and imposes
the preliminary injunction specified at the end of this
2017, Kansas enacted House Bill 2409 (“the Kansas
Law”). This law requires all state contractors to
certify that they are not engaged in a boycott of Israel.
Kan. Stat. Ann. § 75-3740f(a). The Kansas Law defines a
[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 which 50 U.S.C. § 4607(c) 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 . . . .
Id. § 75-3740e(a). The Kansas Law also allows
the Secretary of Administration for the State of Kansas to
waive this requirement “if the secretary determines
that compliance is not practicable.” Id.
§ 75-3740f(c). The Kansas Law took effect on July 1,
2017. 2017 Kan. Sess. Laws 1126.
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
that became the Kansas Law, the Director of Marketing and
Research for the Kansas Department of Commerce testified that
Israel and Kansas are substantial trading partners. The
Department of Commerce calculated that in 2016, Kansas
exported $56 million worth of commodities to Israel while
importing $83 million from Israel. The Kansas Law's
fiscal note asserted that the Kansas Law would not affect the
Kansas state government fiscally.
Boycott of Israel
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.
Efforts to Contract with Kansas
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 math and
science teachers throughout Kansas. Plaintiff wants to
participate in the program, both to enhance her career and
earn extra spending money. Plaintiff would have earned an
extra $600 per day (plus travel expenses) for each training
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 other
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.
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
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 submitted an affidavit from the Secretary
of Administration, Sarah Shipman. It asserts that Secretary
Shipman would have waived the certification requirement if
plaintiff had asked her to do so. It is undisputed that
plaintiff did not apply for the waiver authorized by Kan.
Stat. Ann. § 75-3740f(c).
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, 519 F.3d 1107, 1114
(10th Cir. 2008). This ripeness requirement is a component of
justiciability. “In order for a claim to be justiciable
under Article III [of the Constitution], it must present a
live controversy, ripe for determination, advanced in a
‘clean-cut and concrete form.'” Id.
at 1116 (quoting Renne v. Geary, 501 U.S. 312, 322
federal courts “apply a two-factor test to determine
whether an issue is ripe.” Id. These factors
evaluate the fitness of “the issue for judicial
resolution and the hardship to the parties of withholding
judicial consideration.” Sierra Club v.
Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990). But when
the claim presents a First Amendment facial challenge, the
“ripeness analysis is ‘relaxed somewhat' . .
. because an unconstitutional law may chill free
speech.” Stout, 519 F.3d at 1116 (quoting
New Mexicans for Bill Richardson v. Gonzales, 64
F.3d 1495, 1499 (10th Cir. 1995)).
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, 64 F.3d at 1500. Because these factors
are not ones that apply themselves in a self-evident fashion,
the next three subsections discuss them at some length.
“Hardship to the Parties by Withholding
first factor requires the court to “ask whether the
[Kansas Law] create[s] a ‘direct and immediate dilemma
for the parties.'” Stout, 519 F.3d at 1117
(quoting Richardson, 64 F.3d at 1500).
Stout illustrates how to apply this factor. There,
two candidates for popularly elected judicial office
challenged two provisions in the Kansas Code of Judicial
Conduct. Id. at 1111. The provisions prohibited
candidates for judicial office from making certain pledges
and personally soliciting support for their campaigns.
Id. Two candidates sued, presenting both a facial
and as applied challenge asserting that these restrictions
infringed their First Amendment rights of political
expression. Id. Our court concluded that the claims
were ripe and found that plaintiffs likely would succeed on
the merits. Id. It thus entered a preliminary
injunction forbidding enforcement of the provisions.
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, 828 F.2d 1446, 1449
(10th Cir. 1987) (explaining that when fear of sanction
“is not imaginary or wholly speculative, a plaintiff
need not first expose himself to actual arrest or prosecution
to be entitled to challenge [the] statute”) (internal
citation and quotation omitted)).
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, 64 F.3d at 1501) or professional
discipline (as in Stout, 519 F.3d at 1118). Instead,
the Kansas Law simply disqualifies plaintiff from eligibility
for reaping the benefits of a contract with the State of
Kansas that she otherwise would have received, i.e.,
a contract compensating plaintiff for serving as a trainer
for the Math and Science Partnership.
court concludes that this difference is immaterial. The
challenged Kansas Law still imposes a hardship on plaintiff
and, potentially, others subject to its disqualifying
provision. As long as the Kansas Law “remains in effect
in [its] current form, the state is free” to use it to
disqualify other contractual aspirants. Stout, 519
F.3d at 1118. As in Stout, this presents the
requisite hardship for purposes of the ripeness analysis.
Potential “Chilling Effect of the Challenged Law on
First Amendment Liberties”
second factor of the relaxed ripeness test requires the court
to assess “the chilling effect the challenged law may
have on First Amendment liberties.” Id. at
1116 (citing Richardson, 64 F.3d at 1499-1500). In
its cases applying this factor, the Circuit has expressed an
important corollary to it. When the challenged statute is
unconstitutionally vague, that vagueness “greatly
militates in favor of finding an otherwise premature
controversy to be ripe.” Id. at 1118 (citing
Richardson, 64 F.3d at 1503). Indeed, the Circuit
has observed that a plaintiff “should not have to risk
prosecution, under a statute whose scope is unclear, before
[her] challenge to the constitutionality of that statute is
ripe.” Richardson, 64 F.3d at 1503.
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.” Id. § 75-3704f(c)
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, 519 F.3d at 1118.
potential contractor “should not have to risk
[exclusion], under a statute whose scope is unclear, before
[her] challenge to the constitutionality of that statute
[becomes] ripe.” Richardson, 64 F.3d at 1503.
As in Richardson and Stout, this
“potential vagueness” may increase the hardship
to plaintiff and others, and the generalized chilling effect
on speech. Id. The court thus concludes that this
second factor also favors a finding that plaintiff's
claim is ripe for adjudication.
Fitness of the Controversy for Judicial Review
third and final factor of the relaxed ripeness test considers
whether the controversy presented by plaintiff's claim is
one fit for judicial review. Stout, 519 F.3d at
1116. Our Circuit explained that this factor focuses on
“whether determination of the merits turns upon
strictly legal issues or requires facts that may not yet be
sufficiently developed.” Richardson, 64 F.3d
at 1499. Also, the Circuit has held, a “[F]irst
[A]mendment challenge to the facial validity of a statute is
a strictly legal question; it does not involve the
application of the statute in a specific factual
setting.” ACORN v. City of Tulsa, Okla., 835
F.2d 735, 740 (10th Cir. 1987); accord Awad v.
Ziriax, 670 F.3d 1111, 1124-25 (10th Cir. 2012). And
even when a case presents an as applied challenge, it is fit
for judicial review if “the facts of the case are
relatively uncontested.” Stout, 519 F.3d at
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.
ACORN v. Tulsa
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.835 F.2d 735. It does so because the