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Koontz v. Watson

United States District Court, D. Kansas

January 30, 2018

ESTHER KOONTZ, Plaintiff,
v.
RANDALL D. WATSON, in his official capacity as Kansas Commissioner of Education, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         In this 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.

         Judging 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 Order.

         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 they are not engaged in a boycott of Israel. Kan. Stat. Ann. § 75-3740f(a). The Kansas Law defines a “boycott” as:

[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)[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 . . . .

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.

         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[2] 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.

         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 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 she gives.

         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 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.

         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[3] 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).

         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, 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 (1991)).[4]

         Typically, 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)).

         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, 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.

         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, 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. Id.

         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, 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)).

         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, 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.

         But the 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.

         B. Potential “Chilling Effect of the Challenged Law on First Amendment Liberties”

         The 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.

         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.” Id. § 75-3704f(c) (emphasis added).

         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, 519 F.3d at 1118.

         A 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.

         C. Fitness of the Controversy for Judicial Review

         The 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 1118.

         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.835 F.2d 735. It does so because the Circuit's ...


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