The Downtown Soup Kitchen v. Municipality of Anchorage et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE DOWNTOWN SOUP KITCHEN
d/b/a DOWNTOWN HOPE
CENTER,
Plaintiff,
v.
MUNICIPALITY OF ANCHORAGE,
ANCHORAGE EQUAL RIGHTS
COMMISSION, and PAMELA
BASLER, Individually and in her
Official Capacity as the Executive
Director of the Anchorage Equal
Rights Commission,
Defendants.
Case No. 3:18-cv-00190-SLG
ORDER RE PENDING MOTIONS
Before the Court are four motions. First, Plaintiff The Downtown Soup
Kitchen (“Hope Center”) filed a Motion for Preliminary Injunction at Docket 29.
Defendants Municipality of Anchorage, Anchorage Equal Rights Commission, and
Pamela Basler (collectively, “Anchorage”) responded in opposition at Docket 52,
and Hope Center replied at Docket 63. Second, Anchorage filed a Motion for
Federal Abstention at Docket 43. Hope Center responded in opposition at Docket
56, and Anchorage replied at Docket 61. Third, Anchorage filed a Motion to Stay
Proceedings Pending Resolution of Defendants’ Motion for Abstention at Docket
44. Hope Center responded in opposition at Docket 55, and Anchorage replied at
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Docket 60. Fourth, Hope Center filed a Motion to Supplement or for Judicial Notice
at Docket 79. Anchorage responded in opposition at Docket 85. On January 11,
2019, the parties presented oral argument on the first three motions. Oral
argument on the fourth motion was not requested and was not necessary to the
Court’s determination.
BACKGROUND
Hope Center
Plaintiff Hope Center is a faith-based, non-profit organization that offers free
food, showers, Christian ministry, and other services to homeless men and women
in the downtown Anchorage area, as well as overnight shelter to homeless
women.1 Most of the women that Hope Center shelters have escaped from sex
trafficking or been abused or battered, primarily at the hands of men.2 Hope Center
can accommodate up to 50 women overnight,3 all of whom sleep on the floor in
one large room, where they may change clothes or be in various states of
undress.4 Because of its religious beliefs and its limited space, Hope Center
accepts only persons who were determined to be female at birth into its overnight
1 Docket 1 (Compl.) at 7 ¶ 36, 8 ¶¶ 51–52, 9 ¶ 53, 10 ¶¶ 68–69.
2 Id. at 8 ¶¶ 47–48.
3 Id. ¶ 46.
4 Id. at 12 ¶ 80.
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shelter.5 Persons who were determined to be female at birth and who self-identify
as men are permitted to access the shelter.6
Hope Center maintains that its religious beliefs include that a person’s sex
is an immutable God-given gift, and that it is wrong for a person to deny his or her
God-given sex.7 It contends that it would be against Hope Center’s religious beliefs
5 Id. at 8 ¶ 48.
The Court adopts the following definitions from the Third Circuit:
“Sex” is defined as the “anatomical and physiological processes that lead
to or denote male or female.” Typically, sex is determined at birth based
on the appearance of external genitalia.
“Gender” is a “broader societal construct” that encompasses how a
“society defines what male or female is within a certain cultural context.” A
person’s gender identity is their subjective, deep-core sense of self as
being a particular gender. . . . “[C]isgender” refers to a person who
identifies with the sex that person was determined to have at birth. The
term “transgender” refers to a person whose gender identity does not align
with the sex that person was determined to have at birth. A transgender
boy [or man] is therefore a person who has a lasting, persistent male
gender identity, though that person’s sex was determined to be female at
birth. A transgender girl [or woman] is a person who has a lasting,
persistent female gender identity though that person’s sex was determined
to be male at birth.
Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3d Cir. 2018),
cert. denied sub nom. Doe v. Boyertown Area Sch. Dist., 139 S. Ct. 2636 (2019)
(citations omitted).
6 Id. at 11 ¶¶ 73–74.
7 Id. at 9 ¶ 56.
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to allow persons who were determined to be male at birth to disrobe and sleep in
its shelter next to persons who were determined to be female at birth.8
Hope Center requires overnight guests to be persons who were determined
to be female at birth; to be at least 18 years old; to demonstrate no dangerous
behavior; to be clean and sober; to be exposed to religious activities; to be able to
meet their personal needs without assistance; and to respect shelter guidelines,
including prohibitions against smoking, fighting, foul language, and wandering
about the property.9 On Saturdays, when the shelter is staffed by volunteers, no
one is allowed into the building to participate in the day shelter unless she stayed
in the shelter the Friday night before and thus has gone through a bag check.10
Saturday check-in time for new guests is at 5:45 p.m.11
Hope Center would like to post, publish, or circulate its admittance policy or
portions of it,12 but it has refrained from doing so for fear of violating the Anchorage
Municipal Code (“AMC”).13 Similarly, Hope Center would like its attorneys to be
8 Id. ¶ 60.
9 Id. at 11 ¶¶ 72, 75.
10 Id. at 12 ¶¶ 82–83.
11 Id. ¶ 85.
12 Id. at 10-11 ¶ 71, 30 ¶ 210.
13 Id. at 31 ¶¶ 216–20.
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able to speak and write about its policies14 but fears that having them do so would
violate the AMC.15
Anchorage Equal Rights Commission
Defendant Anchorage Equal Rights Commission (“AERC”) is an
administrative agency within the Municipality of Anchorage.16 In support of the
Municipality’s policy of guaranteeing “fair and equal treatment under law to all
people of the municipality,”17 AERC investigates complaints of discrimination
“based upon race, color, sex, sexual orientation, gender identity, religion, national
origin, marital status, age, or physical or mental disability.”18 It also is empowered
to initiate a general investigation on its own motion to determine whether an
individual or organization is engaging in such discrimination.19 AERC is authorized
14 Id. ¶¶ 218–19.
15 Id. ¶¶ 217, 220.
16 AMC § 5.10.020.
17 AMC § 5.10.010.
18 AMC §§ 5.10.010, 5.10.040(A)(2).
19 AMC § 5.50.060.
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to conduct discovery,20 subpoena witnesses and documents,21 and hold
hearings.22
When a private person or entity files a complaint with AERC, the agency is
required to convene a fact-finding conference with the complainant and the
respondent and attempt to negotiate a voluntary resolution of the complaint.23 At
least 21 days before the fact-finding conference, AERC is required to provide
information and instructions about the conference to the parties.24 At the
conference, parties may be represented by legal counsel, but counsel may not
cross-examine the other party and must submit any questions through AERC
staff.25
AERC is required to investigate discrimination complaints promptly and
impartially and to issue a determination within 240 days of the filing of the
complaint.26 If it determines that the allegations are not supported by substantial
20 AMC § 5.50.070.
21 AMC §§ 5.10.040(A)(3), 5.50.080.
22 AMC §§ 5.10.040(A)(5), 5.70.010.
23 AMC § 5.50.020(A).
24 AMC § 5.50.020(B).
25 AMC § 5.50.020(A).
26 AMC §§ 5.50.010, 5.50.050.
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evidence, AERC closes or dismisses the complaint.27 If instead it finds an unlawful
discriminatory practice, AERC issues an order requiring cessation of the
discriminatory conduct.28 A party against whom such an order is issued may
appeal to the Alaska Superior Court.29
The “Jessie Doe” Incident
“Jessie Doe” self-identifies as “female and transgender.”30 On Friday,
January 26, 2018, at about 6:00 p.m., Anchorage Police Department officers
brought Doe to Hope Center.31 Doe smelled strongly of alcohol, was very agitated,
was aggressive in body language, and had an open wound above one eye.32 Hope
Center’s Executive Director, Sherrie Laurie, informed Doe that because Hope
Center did not accept individuals who were inebriated or under the influence of
alcohol or drugs, Doe could not stay at the shelter.33 She recommended that Doe
go to the hospital for medical care of the eye wound.34 Doe eventually agreed,
27 AMC § 5.50.010.
28 AMC § 5.70.140.
29 AMC § 5.80.030(A).
30 Docket 43-2 (AERC Discrimination Compl. No. 18-041).
31 Docket 1 at 12 ¶ 89.
32 Id. at 13 ¶¶ 91-92.
33 Id. ¶ 94.
34 Id. ¶ 96.
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and Laurie paid for a cab to take Doe to the emergency room.35 At approximately
2:00 p.m. the next day, a Saturday, Doe returned to Hope Center and sought
admission, which was denied because Doe had not stayed the previous night, as
was required for Saturday admission prior to 5:45 p.m.36 Later, Laurie learned that
Doe had initiated a fight at another homeless shelter, the police had been called,
and Doe had been banned from the other homeless shelter until July 4, 2018.37
Procedural History
On February 1, 2018, Doe filed a complaint (“First Complaint”) with AERC,
alleging that Hope Center’s shelter was a public accommodation and that Hope
Center had discriminated against Doe on the basis of sex and gender identity in
violation of AMC § 5.20.050.38 AERC informed Hope Center about the First
Complaint and scheduled a fact-finding conference for March 15, 2018.39 In a
detailed letter to AERC dated March 6, 2018, Hope Center explained that it did not
consider itself to be a public accommodation, that it had not discriminated against
Doe on the basis of gender identity, and that it “has First Amendment religious
35 Id. ¶ 97.
36 Id. ¶¶ 99–100.
37 Id. ¶ 95.
38 Docket 43-2.
39 Docket 29-1 (Attachments to Motion for Preliminary Injunction) at 5.
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liberty and association rights to operate as it does.”40 Hope Center asserted that
the fact-finding conference should thus be cancelled and stated that it would not
attend the conference and would file a motion to dismiss if AERC pursued the
matter.41 AERC pursued its investigation by serving interrogatories on Hope
Center.42 On April 23, 2018, Hope Center filed a motion to dismiss that focused
on its assertion that its shelter is not a public accommodation covered by AMC
§ 5.20.050.43 AERC responded with a proposed settlement agreement addressing
Hope Center’s “perceived misconduct.”44 On May 11, 2018, Hope Center declined
the settlement proposal.45
On May 15, 2018, AERC filed a separate discrimination complaint against
Hope Center and its attorney (“Second Complaint”), claiming that the attorney had
made statements published in various media that stated or implied that
transgender individuals would not be allowed to be sheltered at Hope Center, in
violation of AMC § 5.20.020 and/or § 5.20.050.46 AERC also set a fact-finding
40 Id. at 4–5 (capitalization omitted).
41 Id. at 5.
42 Docket 1 at 20 ¶ 140.
43 Id. at 21 ¶ 145; Docket 29-1 at 7. There is no indication in the record that AERC has
ruled on that motion. See Docket 1 at 4 ¶ 18.
44 Docket 1 at 21 ¶¶ 146–47.
45 Id. at 21 ¶ 149.
46 Id. at 22 ¶¶ 151-54.
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conference and sent a “Request for Essential Information.”47 Because of the
potential conflict caused by the Second Complaint against Hope Center’s attorney,
Hope Center retained new counsel.48
On June 21, 2018, Hope Center’s new counsel entered an appearance with
AERC on the Second Complaint.49 On June 29, 2018, AERC requested a
continuance of the fact-finding conference.50 It also expressed concerns that the
fact-finding conference, and the ordinance providing for it, lacked constitutional
procedures and protections.51 Finally, the letter noted that Hope Center would
supplement its interrogatory answers to include additional information on the
jurisdictional issues it intended to raise.52
AERC denied the continuance request and informed Hope Center that it still
expected the information it had sought in its “Request for Essential Information.”53
47 Id. ¶ 155.
48 Id. at 23 ¶ 156.
49 Id. ¶ 157.
50 Id. ¶ 159 and at 24 ¶ 168.
51 Id. at 23 ¶¶ 159, 162.
52 Id. ¶ 160.
53 Id. at 24–25 ¶¶ 169–70.
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On July 5, 2018, Hope Center submitted its responses to that request.54 The same
day, it also filed a motion to dismiss the Second Complaint for lack of jurisdiction.55
The fact-finding conference on the Second Complaint was held on July 9,
2018.56 At the conference, AERC told Hope Center that the agency had materials
that contradicted Hope Center’s discovery responses, but would not provide them
to Hope Center at that time.57
On July 13, 2018, Hope Center’s counsel emailed AERC to request the
materials discussed at the fact-finding conference.58 In an emailed response,
AERC stated that because the parties’ immediate concern should be a settlement,
it would not provide any supplemental information, nor would it require Hope
Center to provide any supplemental information.59
On August 3, 2018, while settlement discussions were ongoing, AERC sent
Hope Center’s counsel an email that stated in part:
[AERC’s] ability to fully consider [Hope Center’s] arguments will
continue to be limited by [Hope Center’s] failure to timely amend and
correct its earlier responses. [AERC] will allow [Hope Center] until
August 9, 2018, to make appropriate corrections to the interrogatory
responses before it takes any formal action in regards to what it views
54 Id. at 25 ¶ 171.
55 Id. ¶ 172.
56 Id. at 27 ¶ 187.
57 Id. ¶ 191.
58 Id. ¶ 192.
59 Id. ¶ 193.
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as [Hope Center’s] lack of candor about its receipt of taxpayer funds
and the contractual obligations for the receipt of those funds.60
On August 9, 2018, Hope Center provided amended answers to a number of
interrogatories that AERC had propounded to it; it indicated it did so not to correct
alleged errors but to make clear that its original answers were truthful.61
Hope Center filed its Complaint in this Court on August 16, 2018, claiming
violation of its First Amendment rights of freedom of religion, freedom of speech,
and freedom of expressive association; violation of the Establishment Clause;
violation of the Fourteenth Amendment rights of procedural due process and equal
protection; and violation of its Alaska constitutional rights of freedom of religion,
equal protection, and privacy.62 Thereafter, in October 2018, AERC
administratively closed the Second Complaint.63 The First Complaint remains
unresolved.64 In November 2018, AERC Executive Director Pamela Basler and
AERC Chairperson Wanda Greene filed sworn statements in this case, attesting
that “AERC has undertaken no enforcement action against [Hope Center]
60 Id. at 28–29 ¶¶ 198–200.
61 Id. at 29 ¶ 205.
62 Docket 1.
63 Docket 43-1 (AERC Closure).
64 Docket 1 at 29 ¶ 207.
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regarding” the First Complaint.65 They further certified that “AERC will undertake
no investigative or enforcement actions regarding [the First Complaint] while this
Court exercises jurisdiction in the matter.”66
Relevant Municipal Code Provisions
Title 5 of the AMC, entitled “Equal Rights,” is intended to “guarantee fair and
equal treatment under law to all people of the municipality, consistent with federal
and state constitutional freedoms and laws, including freedom of expression,
freedom of association and the free exercise of religion.”67 Chapter 5.20 includes
prohibitions on discriminatory practices in places of public accommodation68 and
in the sale, rental, or use of real property.69
Section 5.20.050, “Unlawful practices in places of public accommodation,”
provides in relevant part:
A. It is unlawful for a person, whether the owner, operator, agent or
employee of an owner or operator of a public accommodation, to:
1. Refuse, withhold from or deny to a person any of its
accommodations, advantages, facilities, benefits,
privileges, services or goods of that place on account of . . .
sex [or] gender identity . . . .
65 Docket 53 (Basler Aff.) at 2, ¶ 2; Docket 59-1 (Greene Aff.) at 2, ¶ 2.
66 Docket 53 at 2, ¶ 3; Docket 59-1 at 2, ¶ 3.
67 AMC § 5.10.
68 AMC § 5.20.050.
69 AMC § 5.20.020.
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2. Publish, circulate, issue, display, post or mail a written or
printed communication, notice or advertisement which
states or implies that:
a. Any of the services, goods, facilities, benefits,
accommodations, advantages or privileges of the
public accommodation will be refused, withheld from
or denied to a person of a certain . . . sex [or] gender
identity . . .; or
b. The patronage or presence of a person belonging to
a particular . . . sex [or] gender identity . . . is
unwelcome, not desired, not solicited, objectionable
or unacceptable.
“Public accommodation” is defined in the AMC as “any business or
professional activity that is open to, accepts or solicits the patronage of, or caters
or offers goods or services to the general public, subject only to the conditions
and limitations established by law and applicable alike to all persons.”70
Although the First Complaint was only brought pursuant to Section 5.20.050,
also relevant to this dispute is Section 5.20.020, “Unlawful practices in the sale,
rental or use of real property,” which provides in relevant part:
A. With the exception of those conditions described in section
5.25.030A. as "lawful practices", it is unlawful for the owner,
lessor, manager, agent, brokerage service, or other person
having the right to sell, lease, rent, [or] advertise . . . real property
to:
1. Refuse to sell, lease or rent, or to otherwise make
unavailable, the real property to a person because of . . .
sex [or] gender identity . . . .
70 AMC § 5.20.010.
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2. Discriminate against a person because of . . . sex [or]
gender identity . . . in a term, condition or privilege relating
to the use . . . of real property. . . .
7. Circulate, issue or display, make, print or publish, or cause
to be made or displayed, printed or published, any
communication, sign, notice, statement or advertisement
with respect to the use . . . of real property that indicates
any preference, limitation, specification or discrimination
based on . . . sex [or] gender identity . . . .
Section 5.25.030, “Lawful practices,” provides in relevant part:
A. Notwithstanding the provisions of this chapter, it shall not apply
with respect to the following conditions: . . .
9. The establishment of a hospital, convent, monastery,
shelter, asylum, or residential facility for the care and
lodging of persons in need of special medical,
rehabilitative, social, or psychological support, including,
but not limited to . . . shelters for the homeless.
JURISDICTION
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343 and supplemental jurisdiction with respect to the state law claims pursuant
to 28 U.S.C. § 1367.
DISCUSSION
I. MOTION FOR FEDERAL ABSTENTION
As a threshold matter, Anchorage asserts that the Court should abstain from
exercising jurisdiction under the Younger doctrine.71
71 Younger v. Harris, 401 U.S. 37 (1971).
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A. Legal Standard
“Abstention from the exercise of federal jurisdiction is the exception, not the
rule.”72 “[F]ederal courts ordinarily should entertain and resolve on the merits an
action within the scope of a jurisdictional grant, and should not refuse to decide a
case in deference to the states.”73 The Supreme Court has instructed that federal
courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given
them.”74
However, in “exceptional circumstances,” a federal court may abstain from
exercising its jurisdiction “where denying a federal forum would clearly serve an
important countervailing interest.”75 One such circumstance is Younger
abstention, in which “concerns for comity and federalism” make abstention
appropriate when a particular type of state proceeding is pending.76
72 Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800, 813 (1976).
73 Sprint Commc’ns., Inc. v. Jacobs, 571 U.S. 69, 73 (2013) (quoting New Orleans Pub.
Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (NOPSI)) (internal
quotation marks and alteration omitted).
74 Colo. River Water Conservation Dist., 424 U.S. at 817.
75 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (internal quotation marks
omitted) (surveying various types of federal abstention).
76 See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schs., 477 U.S. 619, 627
(1986) (surveying Younger line of cases).
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“A federal court may abstain under Younger in three categories of cases:
‘(1) parallel, pending state criminal proceedings, (2) state civil proceedings that are
akin to criminal prosecutions, and (3) state civil proceedings that implicate a State’s
interest in enforcing the orders and judgments of its courts.’”77 In addition to falling
into one of the three categories, to warrant Younger abstention “the state
proceeding must be (1) ‘ongoing,’ (2) ‘implicate important state interests,’ and (3)
provide ‘an adequate opportunity . . . to raise constitutional challenges.’”78 If those
threshold elements are met, a federal court may abstain under Younger if the
federal action would have the practical effect of enjoining the state proceedings
and no other exception to Younger applies.79
Here, the proceedings before AERC are clearly not category (1) or (3)
proceedings. At issue is whether the proceeding before AERC falls within category
(2); that is, whether the AERC proceeding is a state civil proceeding that is akin to
a criminal prosecution. The Ninth Circuit has described this category of cases as
“quasi-criminal enforcement actions.”80 Although the Ninth Circuit has not directly
addressed the issue, several federal courts have concluded that when the pending
77 Herrera v. City of Palmdale, 918 F.3d 1037, 1043 (9th Cir. 2019) (quoting ReadyLink
Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014)).
78 Id. at 1044 (quoting Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423, 432 (1982)).
79 ReadyLink, 754 F.3d at 759.
80 Id.
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state proceedings are at the investigative stage, the state proceeding is not a
“quasi-criminal enforcement action.” For example, in Telco Communications, Inc.
v. Carbaugh, a state agency notified a fundraising company that the agency had
received a complaint alleging prohibited conduct and asked the company to attend
an informal factfinding conference.81 After attending the conference, the company
filed a federal suit seeking protection against action by the agency on First
Amendment grounds, among other claims.82 The Fourth Circuit held “that the
period between the threat of enforcement and the onset of formal enforcement
proceedings may be an appropriate time for a litigant to bring its First Amendment
challenges in federal court.”83 As the court explained:
Where no formal enforcement action has been undertaken, any
disruption of state process will be slight. . . . Appellant's contention—
that abstention is required whenever enforcement is threatened—
would leave a party’s constitutional rights in limbo while an agency
contemplates enforcement but does not undertake it. A federal
plaintiff would be placed “between the Scylla of intentionally flouting
state law and the Charybdis of forgoing what [it] believes to be
constitutionally protected activity in order to avoid becoming
enmeshed” in enforcement proceedings.84
81 885 F.2d 1225, 1227 (4th Cir. 1989).
82 Id.
83 Id. at 1229.
84 Id. (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)) (citing Wulp v. Corcoran,
454 F.2d 826, 831 (1st Cir. 1972)).
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Noting that the agency had not initiated formal enforcement proceedings against
the company, the Fourth Circuit upheld the district court’s decision not to abstain.85
The First Circuit applied a similar approach in Guillemard-Ginorio v.
Contreras-Gomez.86 There, the Office of the Insurance Commissioner of Puerto
Rico (“OIC”) had notified the plaintiff insurance agency and its principals that they
were being investigated; it commenced an investigation but had not brought
charges prior to the initiation of the federal case. Noting that “no formal
enforcement action ha[d] been undertaken” against the company or its principals,
the First Circuit concluded “that the agency's investigation of the plaintiffs was at
too preliminary a stage to constitute a ‘proceeding’ triggering Younger
abstention.”87 Based in part on this conclusion, the circuit court held that the district
court properly denied abstention.88 Other federal courts have reached similar
conclusions.89
85 Id. at 1228, 1230.
86 585 F.3d 508 (1st Cir. 2009).
87 Id. at 519, 520.
88 Id. at 523.
89 See, e.g., Mulholland v. Marion Election Bd., 746 F.3d 811, 817 (7th Cir. 2014) (state
investigatory proceedings were at too preliminary a stage to warrant federal deference);
La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490–91 (5th Cir.
1995) (district court’s ruling that there was no ongoing proceeding did not constitute
abuse of discretion where “[s]ubsequent to . . . complaints being filed with the
Commission against the [plaintiffs] . . . the only administrative activity ha[d] been” letters
issued to plaintiffs advising them of the allegations); Myers v. Thompson, 192 F. Supp.
3d 1129, 1137 (D. Mont. 2016) (“While a proceeding before [Montana’s Office of
Disciplinary Counsel (“ODC”)] has the potential to be ‘akin to criminal proceedings,’
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B. Analysis
Because the underlying state proceeding in this case is an administrative
proceeding, Younger abstention is appropriate only if that proceeding is a “quasi-
criminal enforcement action.”90 But at the time this action was filed, the AERC
proceeding was not a quasi-criminal enforcement action; rather, that proceeding
was in the investigative phase. AERC had not yet determined whether Hope
Center’s conduct violated the AMC provisions at issue, or even whether AERC has
jurisdiction regarding the First Complaint.91 Indeed, in November 2018, AERC’s
Executive Director and its Chairperson both certified that “AERC has undertaken
no enforcement action against Plaintiff regarding” the First Complaint.92 Like the
state court proceedings at issue in Telco Communications, Inc., Guillemard-
Ginorio, and the other federal cases cited above, the AERC proceeding is not a
“quasi-criminal enforcement action” that would justify Younger abstention by this
Court.
ODC’s investigation into this case has not progressed beyond the investigation stage.
Other courts have determined that investigation proceedings, without more, do not
trigger Younger.” (citations omitted)); cf. ReadyLink Healthcare, Inc. v. State Comp. Ins.
Fund, 754 F.3d 754, 760 (9th Cir. 2014) (“[I]f the mere ‘initiation’ of a judicial or quasi-
judicial administrative proceeding were an act of civil enforcement, Younger would
extend to every case in which a state judicial officer resolves a dispute between two
private parties.”).
90 ReadyLink, 754 F.3d at 758; see Herrera v. City of Palmdale, 918 F.3d 1037, 1043
(9th Cir. 2019).
91 Docket 53 at 2; Docket 59-1 at 2.
92 Docket 53 at 2; Docket 59-1 at 2.
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Anchorage contends that this case is analogous to Ohio Civil Rights
Commission v. Dayton Christian Schools, Inc.93 and Middlesex County Ethics
Commission v. Garden State Bar Association.94 Both cases, however, are
distinguishable from the case at hand, because “the regulating agencies in those
cases had investigated the allegations, made determinations that probable cause
existed, and served formal charges on the entities.”95 As noted above, the AERC
proceeding against Hope Center did not progress past the investigatory stage. “In
short, the state action [in Dayton Christian Schools and Middlesex] had progressed
significantly beyond that here.”96
Because the state proceeding before AERC regarding the First Complaint is
not a “quasi-criminal enforcement action,” Younger abstention is not appropriate.
Accordingly, Anchorage’s motion for federal abstention will be denied.97
93 477 U.S. 619 (1986); see Docket 61 at 4–7.
94 457 U.S. 423, 431 (1982).
95 La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir.
1995) (citing Dayton Christian Schs., 477 U.S. at 623–24; Middlesex, 457 U.S. at 428).
96 Id.
97 In light of this conclusion, the Court does not reach the three-part test articulated in
Herrara or determine whether other considerations would preclude Younger abstention.
See Herrera v. City of Palmdale, 918 F.3d 1037, 1044 (9th Cir. 2019); ReadyLink, 754
F.3d at 759.
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II. MOTION TO STAY PROCEEDINGS
Anchorage moved to stay all proceedings in this case pending a ruling on
Anchorage’s motion for abstention.98 For the reasons discussed in Section I.
above, the Court is denying Anchorage’s motion for abstention. Accordingly,
Anchorage’s motion to stay will be denied as moot.
III. MOTION TO SUPPLEMENT OR FOR JUDICIAL NOTICE
Hope Center moves to supplement its Motion for Preliminary Injunction with
several sealed documents. In the alternative, Hope Center requests that the Court
take judicial notice of the documents.99 Anchorage contends that Hope Center has
offered no explanation as to why the relevance of the sealed documents was not
appreciated until after briefing was complete, and that accordingly Hope Center’s
motion does not satisfy the requirements for supplementation pursuant to Alaska
Local Civil Rule 7.1(d).100 While the Court finds the sealed documents to be of
98 Docket 44.
99 Docket 79 at 2.
100 Docket 95 at 3–4.
In relevant part, Rule 7.1(d) reads as follows:
[A]fter briefing of a motion is complete, supplementation of factual
materials may occur only by motion for good cause. The motion must have
the proposed factual materials attached as an exhibit and address the
reasons earlier filing was not possible or their relevance was not
appreciated. Such motions will not routinely be granted.
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limited relevance to the pending motions, the Court will allow Hope Center to
supplement its Motion for Preliminary Injunction with these documents.
Accordingly, the Court does not address Hope Center’s request that the Court take
judicial notice of the documents.
IV. MOTION FOR PRELIMINARY INJUNCTION
A. Legal Standard
Hope Center moves for “a preliminary injunction to stop Defendants from
applying Anchorage Municipal Code, Title 5, § 5.20.050 and § 5.20.020 in a
manner that violates Hope Center’s rights under the First and Fourteenth
Amendments of the U.S. Constitution and under Article 1, §§ 1, 4, and 22 of the
Alaska Constitution.”101
A party moving for a preliminary injunction must make a “clear showing of
each element of standing.”102 “[T]he irreducible constitutional minimum of
standing” consists of three elements: injury in fact, causation, and a likelihood that
101 Docket 29 at 2, ¶ 1.
102 Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013). Although the parties do not
address standing in their briefing on this motion, the Court addresses it on its own
initiative. See D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir.
2008) (“[B]oth the Supreme Court and this court have held that whether or not the
parties raise the issue, ‘[f]ederal courts are required sua sponte to examine jurisdictional
issues such as standing.’” (emphasis in original) (quoting Bernhardt v. County of Los
Angeles, 279 F.3d 862, 868 (9th Cir. 2001)) (citing United States v. Hays, 515 U.S. 737,
742 (1995))).
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a favorable decision will redress the plaintiff's alleged injury.103 When challenging
a law prior to its enforcement, a plaintiff satisfies the injury in fact requirement
where the plaintiff “intends to engage in ‘a course of conduct arguably affected with
a constitutional interest’ and [] there is a credible threat that the challenged
provision will be invoked against the plaintiff.”104 “First Amendment challenges
‘present unique standing considerations’ because of the ‘chilling effect of sweeping
restrictions’ on speech.”105 Accordingly, “when the threatened enforcement effort
implicates First Amendment rights, the inquiry tilts dramatically toward a finding of
standing.”106 “Even in the First Amendment context,” however, “a plaintiff must
show a credible threat of enforcement.”107 “In determining whether a plaintiff faces
[] a credible threat in the pre-enforcement context, this Court considers three
factors: (1) the likelihood that the law will be enforced against the plaintiff; (2)
whether the plaintiff has shown, ‘with some degree of concrete detail,’ that [it]
intends to violate the challenged law; and (3) whether the law even applies to the
103 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
104 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir. 2000) (quoting Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
105 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (quoting Ariz.
Right to Life Political Action Comm. v. Bayless (ARLPAC), 320 F.3d 1002, 1006 (9th Cir.
2003)).
106 LSO, 205 F.3d at 1155.
107 Italian Colors, 878 F.3d at 1171.
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plaintiff.”108 When a plaintiff challenges the enforcement of multiple legal
provisions, a court considers separately whether the plaintiff has standing to
challenge the enforcement of each provision at issue.109
In addition to standing, plaintiffs seeking preliminary injunctive relief must
establish that “(1) they are likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in their favor; and (4) a preliminary injunction is in the public
interest.”110 “Under the sliding scale approach to preliminary injunctions observed
in [the Ninth Circuit], the elements of the preliminary injunction test are balanced,
so that a stronger showing of one element may offset a weaker showing of
another.”111 But in any event, even with the sliding-scale approach, “plaintiffs must
108 Id. at 1171–72 (9th Cir. 2018) (quoting Lopez v. Candaele, 630 F.3d 775, 786 (9th
Cir. 2010)).
109 See, e.g., McCormack v. Hiedeman, 694 F.3d 1004, 1025 (9th Cir. 2012).
110 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
Anchorage contends that “[b]eause the government is a party to these proceedings, the
final two factors of a preliminary injunction analysis . . . merge.” Docket 52 at 17 (citing
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)). The cases this
Court has reviewed have merged these factors when the federal government is a party
to the proceeding. See, e.g., Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 539
(N.D. Cal.), reconsideration denied, 267 F. Supp. 3d 1201 (N.D. Cal. 2017), appeal
dismissed as moot sub nom. City & Cty. of San Francisco v. Trump, No. 17-16886, 2018
WL 1401847 (9th Cir. Jan. 4, 2018) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
111 Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (citation and internal
quotation marks omitted). See also All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,
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establish that irreparable harm is likely, not just possible, in order to obtain a
preliminary injunction.”112 Injunctive relief is an equitable remedy, and “[t]he
essence of equity jurisdiction is the power of the court to fashion a remedy
depending upon the necessities of the particular case.”113
B. Analysis
1. Standing to seek a preliminary injunction
A federal court has “an independent obligation to determine whether subject-
matter jurisdiction exists, even when no party challenges it.”114 “A suit brought by
a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article
III federal court therefore lacks subject matter jurisdiction over the suit.”115 The
Court therefore first considers on its own initiative whether Hope Center has
standing to challenge the enforcement of AMC §§ 5.20.020 and 5.20.050.116 The
1131–35 (2011) (discussing post-Winter circuit split over continuing viability of sliding-
scale approach and joining Seventh and Second Circuits in retaining it).
112 All. for the Wild Rockies, 632 F.3d at 1131 (citing Winter, 555 U.S. at 22) (emphasis
in original).
113 Sierra Forest, 577 F.3d at 1022 (quoting United States v. Odessa Union Warehouse
Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).
114 Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (citations omitted).
115 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (quoting Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).
116 See supra note 102.
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Court addresses separately Hope Center’s standing to challenge each
provision.117
The Court first turns to the public accommodation provision, AMC
§ 5.20.050. Doe’s First Complaint cited to this provision, but that AERC
proceeding has not progressed past the investigatory phase. Accordingly, the
Court must determine whether Hope Center has suffered “a credible threat in the
pre-enforcement context.”118 To that end, the Court will consider (1) the likelihood
that the law will be enforced against Hope Center; (2) whether Hope Center has
shown, “with some degree of concrete detail,” that it intends to violate the
challenged law; and (3) whether the law even applies to Hope Center.119
Considering these factors, the Court is satisfied that Hope Center has
established a credible threat of enforcement with respect to AMC § 5.20.050. First,
AMC § 5.20.050 prohibits public accommodations from discriminating on the basis
of sex or gender identity. Unlike AMC § 5.20.020, § 5.20.050 does not include
language explicitly exempting homeless shelters from that prohibition.120
Accordingly, Hope Center’s intended conduct “arguably falls within the [provision’s]
117 See McCormack v. Hiedeman, 694 F.3d 1004, 1025 (9th Cir. 2012).
118 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171–72 (9th Cir. 2018).
119 Id. at 1172.
120 In its briefing before the AERC, Hope Center contended that the “lawful practices”
exemption extends to AMC § 5.20.050. In light of the analysis below, the Court
assumes, without deciding, that the exemption applies only to AMC § 5.20.020.
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reach.”121 Turning to the likelihood of enforcement, there is currently an
“impending proceeding” against Hope Center that was initiated pursuant to AMC
§ 5.20.050.122 AERC has not suggested that the provision would not be enforced
if it were violated, nor had the provision “fallen into desuetude.”123 Indeed, after
the First Complaint was filed, AERC’s executive director initiated a second AERC
proceeding against Hope Center pursuant to AMC § 5.20.050.124 Accordingly,
Hope Center’s assertion that they are refraining from engaging in certain conduct
for fear of an enforcement action against it under this provision is reasonable.
Finally, Hope Center has shown that it has a concrete plan to engage in conduct
that arguably violates the provision. Among other assertions, Hope Center has
declared a specific intent to post, publish, or circulate its admittance policy or
portions of it.125 Based on the foregoing, the Court concludes that Hope Center
has standing to challenge AMC § 5.20.050.
121 See Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010) (quoting California Pro-
Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003)).
122 See Italian Colors, 878 F.3d at 1173.
123 Id. (quoting Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002,
1007 (9th Cir. 2003)).
124 The Second Complaint also cited AMC § 5.20.050. See Docket 28-5 (AERC
Discrimination Compl. No. 18-167).
125 Docket 1 at 10–11 ¶ 71, 30 ¶ 210.
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Turning to AMC § 5.20.020, the Court must determine whether Hope Center
has suffered “a credible threat in the pre-enforcement context” with respect to this
code provision.126 This provision presents a closer question, as two of the three
factors suggest that Hope Center does not face a credible threat of enforcement:
First, AMC § 5.20.020 explicitly exempts homeless shelters. Even in cases that
may implicate First Amendment rights, courts have found that claims of future harm
lack credibility where, as here, the provision in question “clearly fails to cover [the
plaintiff's] conduct.”127 Second, Hope Center does not appear to have alleged a
concrete plan to engage in conduct that arguably violates the provision; because
Hope Center is a homeless shelter, the provision’s prohibitions on sex and gender
discrimination would not appear to cover Hope Center’s proposed conduct.
Although two factors suggest that Hope Center does not face a credible
threat of enforcement with respect to AMC § 5.20.020, the third factor weighs
heavily in Hope Center’s favor. The First Complaint against Hope Center was filed
only pursuant to AMC § 5.20.050; but the Second Complaint was filed pursuant to
both AMC § 5.20.020 and AMC § 5.20.050. And while the First Complaint was
filed by Doe, the Second Complaint was filed by AERC’s Executive Director.128
126 Italian Colors, 878 F.3d at 1171–72.
127 Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010) (alteration in original) (quoting
Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003)).
128 Docket 28-5.
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Although AERC later dismissed the Second Complaint, the agency has not
explained the basis for that dismissal. And while AMC § 5.20.020 is not implicated
in any ongoing AERC proceeding, the record does not indicate that the agency
has “disavow[ed] application of the challenged provision” to Hope Center in the
future.129
Based on the foregoing, the Court finds that the “likelihood of enforcement”
factor weighs in Hope Center’s favor. Further, “keeping in mind that ‘when the
threatened enforcement effort implicates First Amendment rights, the [standing]
inquiry tilts dramatically toward a finding of standing,’” the Court concludes that
Hope Center has established a credible threat of enforcement as to AMC §
5.20.020.130 Furthermore, the alleged injury is traceable to AMC § 5.20.020 and
would likely be redressed by a favorable decision enjoining enforcement of the
provision. Accordingly, Hope Center has standing to challenge AMC § 5.20.020.
2. Preliminary injunctive relief
a. Likelihood of success on the merits
Hope Center contends that a preliminary injunction is appropriate because
AMC §§ 5.20.020 and 5.20.050 are unconstitutional as-applied to the
129 See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000) (“Courts have also
considered the Government's failure to disavow application of the challenged provision
as a factor in favor of a finding of standing.”).
130 Italian Colors, 878 F.3d at 1174 (quoting LSO, 205 F.3d at 1155).
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constitutionally protected activities of Hope Center and its agents.131 However, “[i]t
is a well-established principle governing the prudent exercise of [the federal
court’s] jurisdiction that normally the Court will not decide a constitutional question
if there is some other ground upon which to dispose of the case.”132 Here, Hope
Center also contends that AMC § 5.20.020 does not apply to “shelters for the
homeless” and that Hope Center is not a “public accommodation” within the
meaning of AMC § 5.20.050.133 If that is the case, then Anchorage would not be
able to enforce these provisions against Hope Center, irrespective of their
constitutionality. Accordingly, the Court will first consider whether either of these
code provisions apply to Hope Center’s overnight living space for homeless
persons.
Determining whether AMC §§ 5.20.020 and 5.20.050 apply to Hope Center’s
homeless shelter requires interpretation of the Anchorage Municipal Code. “The
interpretation of municipal ordinances and charters “is governed by rules of
131 Docket 29 at 1, 3–4.
132 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (quoting
Escambia County v. McMillan, 466 U.S. 48, 51 (1984)); cf. United States v. Vargas, 915
F.3d 417, 420 (7th Cir. 2019) (“Vargas presents almost all of his argument in
constitutional terms, asserting that the judge violated the Due Process Clause of the
Fifth Amendment. . . . It is, for him, the Constitution or nothing[.] . . . This is a hopeless
strategy, because courts are obliged to consider statutory and rule-based arguments
ahead of constitutional ones.”).
133 See Docket 1 at 3, ¶ 10; 40, ¶ 288; 47, ¶ 341; 50, ¶ 367; Docket 29-1 at 4.
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statutory construction.”134 Federal courts apply state rules of statutory construction
when interpreting municipal laws.135 Alaska courts “apply the same rules of
interpretation” when construing statutes and municipal ordinances.136 The Alaska
Supreme Court has explained Alaska’s rules of statutory interpretation as follows:
Interpretation of a statute begins with its text. In addition to the text,
we also consider a statute’s legislative history and purpose. In
construing a statute, we have adopted a sliding scale approach
whereby the plainer the statutory language is, the more convincing
the evidence of contrary legislative purpose or intent must be.
Whenever possible we interpret each part or section of a statute with
every other part or section, so as to create a harmonious whole.137
The Alaska Supreme Court has also held that “[w]here an agency interprets its
own regulations, a deferential standard of review properly recognizes that the
agency is best able to discern its intent in promulgating the regulation at issue.”138
134 Canfield v. Sullivan, 774 F.2d 1466, 1468–69 (9th Cir. 1985) (citation omitted).
135 See id.; see also McGraw v. City of Huntington Beach, 882 F.2d 384, 387–88 (9th
Cir. 1989).
136 Cent. Recycling Servs., Inc. v. Municipality of Anchorage, 389 P.3d 54, 57 (Alaska
2017).
137 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763 (Alaska 2018), reh’g
denied (Oct. 10, 2018) (citations and quotations omitted).
138 Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 284 n.13 (Alaska 1994)
(citation omitted).
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With these principles in mind, the Court first turns to AMC § 5.20.020. In
relevant part, the provision states that it is unlawful for certain persons, including
an owner of real property,139 to:
1. Refuse to sell, lease or rent, or to otherwise make
unavailable, the real property to a person because of . . .
sex [or] gender identity . . . .
2. Discriminate against a person because of . . . sex [or]
gender identity . . . in a term, condition or privilege relating
to the use . . . of real property. . . .
7. Circulate, issue or display, make, print or publish, or
cause to be made or displayed, printed or published, any
communication, sign, notice, statement or advertisement
with respect to the use . . . of real property that indicates
any preference, limitation, specification or discrimination
based on . . . sex [or] gender identity . . . .
The provision also states that these prohibitions do not apply to “those conditions
described in section 5.25.030A as “lawful practices.” In relevant part, AMC
§ 5.25.030 defines “lawful practices” to include:
9. The establishment of a hospital, convent, monastery,
shelter, asylum, or residential facility for the care and
lodging of persons in need of special medical,
rehabilitative, social, or psychological support, including,
but not limited to . . . shelters for the homeless.
It is clear from the structure and plain text of these provisions that the drafters of
the AMC intended to exempt homeless shelters from the prohibitions on conduct
139 AMC § 5.20.020 applies to “the owner, lessor, manager, agent, brokerage service, or
other person having the right to sell, lease, rent, advertise, or an owner’s association
having the powers of governance and operation of real property.”
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articulated in AMC § 5.20.020. Furthermore, the Alaska Supreme Court has
concluded that “[t]he purpose of AMC 5.20.020 . . . is to prohibit discrimination in
the rental housing market.”140 Applying the provision’s prohibitions to Hope
Center’s homeless shelter would not further this purpose. Hope Center is thus
likely to succeed as to its contention that AMC § 5.20.020 does not apply to Hope
Center’s homeless shelter.
The Court next turns to AMC § 5.20.050. In relevant part, the provision
states that it is unlawful for the “owner or operator of a public accommodation” to:
1. Refuse, withhold from or deny to a person any of its
accommodations, advantages, facilities, benefits,
privileges, services or goods of that place on account of . . .
sex [or] gender identity . . . .
2. Publish, circulate, issue, display, post or mail a written or
printed communication, notice or advertisement which
states or implies that:
a. Any of the services, goods, facilities, benefits,
accommodations, advantages or privileges of the
public accommodation will be refused, withheld from
or denied to a person of a certain . . . sex [or] gender
identity . . . ; or
b. The patronage or presence of a person belonging to
a particular . . . sex [or] gender identity . . . is
unwelcome, not desired, not solicited, objectionable
or unacceptable.
140 Swanner, 874 P.2d at 280 (footnote omitted).
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To determine whether these prohibitions apply to Hope Center, the Court
must consider whether Hope Center is an “owner or operator of a public
accommodation” within the meaning of the AMC. The AMC defines “public
accommodation” as “any business or professional activity that is open to, accepts
or solicits the patronage of, or caters or offers goods or services to the general
public, subject only to the conditions and limitations established by law and
applicable alike to all persons.”141
In contrast to AMC § 5.20.020, § 5.20.050 does not include language that
expressly exempts homeless shelters from its prohibitions.142 Nevertheless,
Alaska’s rules of statutory interpretation and the structure of the Anchorage
Municipal Code as a whole suggest that homeless shelters are not public
accommodations as defined in AMC § 5.20.050. For if the term “public
accommodation” in AMC § 5.20.050 is read to apply to homeless shelters, then
the exemption for homeless shelters contained in AMC § 5.20.020 would have no
effect.143 Pursuant to Alaska Supreme Court precedent, this Court must “interpret
141 AMC § 5.20.010.
142 In its briefing before the AERC, Hope Center contended that the “lawful practices”
exemption extends to AMC § 5.20.050. In light of the analysis below, the Court
assumes, without deciding, that the exemption applies only to AMC § 5.20.020.
143 While the language used in the two provisions is slightly different, the conduct
prohibited by the two provisions is essentially identical. Compare 5.20.020(A)(1)–(2)
(“Refuse to sell, lease or rent, or to otherwise make unavailable, the real property to a
person because of . . . sex [or] gender identity [or] . . . . Discriminate against a person
because of . . . sex [or] gender identity . . . in a term, condition or privilege relating to the
use . . . of real property. . . .”) with 5.20.050(A)(1)(“ Refuse, withhold from or deny to a
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each part or section of a statute [or municipal code] with every other part or section,
so as to create a harmonious whole.”144 To give effect to the exemption for
homeless shelters contained in AMC § 5.20.020, the Court concludes that Hope
Center is not an “owner or operator of a public accommodation” within the meaning
of AMC § 5.20.050.145 Hope Center is thus likely to succeed as to its contention
that AMC § 5.20.050 does not apply to Hope Center’s homeless shelter. Because
neither of the AMC provisions at issue appear to apply to Hope Center’s homeless
shelter, it has a “likelihood of success on the merits” as to its claims.
person any of its accommodations, advantages, facilities, benefits, privileges, services
or goods of that place on account of . . . sex [or] gender identity . . . .”); compare
5.20.20(A)(7) (“Circulate, issue or display, make, print or publish, or cause to be made
or displayed, printed or published, any communication, sign, notice, statement or
advertisement with respect to the use . . . of real property that indicates any preference,
limitation, specification or discrimination based on . . . sex [or] gender identity . . . .”) with
5.20.50(A)(2) (“Publish, circulate, issue, display, post or mail a written or printed
communication, notice or advertisement which states or implies that: [] Any of the
services, goods, facilities, benefits, accommodations, advantages or privileges of the
public accommodation will be refused, withheld from or denied to a person of a certain .
. . sex [or] gender identity . . . ; or . . . The patronage or presence of a person belonging
to a particular . . . sex [or] gender identity . . . is unwelcome, not desired, not solicited,
objectionable or unacceptable.”).
144 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763 (Alaska 2018), reh'g
denied (Oct. 10, 2018) (citations and quotations omitted).
145 This conclusion may seem at odds with the Court’s standing analysis. See supra
note 121 and accompanying text. However, Ninth Circuit precedent indicates that at the
standing stage, the applicability factor weighs in favor of standing if conduct “arguably
falls within the [provision’s] reach.” Lopez v. Candaele, 630 F.3d 775, 788 (9th Cir. 2010)
(emphasis added) (citing California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088,
1095 (9th Cir. 2003)). In contrast, the question at this stage is whether Hope Center
would likely succeed on the merits.
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b. Likelihood of irreparable harm in the absence of preliminary relief
Irreparable harm “analysis focuses on irreparability, ‘irrespective of the
magnitude of the injury.’”146 “A threat of irreparable harm is sufficiently immediate
to warrant preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable
harm before a decision on the merits can be rendered.’”147
Hope Center alleges injury in the form of interference with its constitutional
rights.148 Hope Center also alleges that the code provisions at issue have
“hindered [Hope Center’s] ability to raise funds, leaving it in a tenuous financial
state.”149 Additionally, Hope Center contends that enforcement of AMC §§
5.20.020 and 5.20.050 against Hope Center would impede its ability to provide
overnight living space for homeless persons.150 Anchorage asserts that Hope
Center has failed to “demonstrate that irreparable injury is likely in the absence of
146 California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018), cert. denied sub nom. Little
Sisters of the Poor Jeanne Jugan Residence v. California, No. 18-1192, 2019 WL
1207008 (U.S. June 17, 2019) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725
(9th Cir. 1999)).
147 Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).
148 Docket 30 at 29; see Docket 63 at 13 (“Anchorage’s acts either chill Hope Center’s
speech or threaten imminent enforcement that will stop Hope Center from operating
consistent with its beliefs.”).
149 Docket 56 at 28 (“Hope Center’s women’s shelter will likely close its doors if it does
not get equitable relief from this Court.”).
150 Docket 1 at 30 ¶¶ 212–15.
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an injunction, not merely that it is possible.”151 It also asserts that Hope Center
has not shown that its alleged financial injury would be irreparable.152
Here, Hope Center has established a sufficient likelihood of irreparable harm
resulting from restrictions on Hope Center’s ability to provide overnight living space
to homeless persons. In Hawaii v. Trump, the Ninth Circuit found that Hawaii’s
“inability to assist in refugee resettlement” weighed in favor of finding a likelihood
of irreparable harm to the State.153 Similarly, in Doe v. Trump, the District Court
for the Western District of Washington found irreparable harm when the plaintiff
organizations “ha[d] built programs specifically to serve Muslim and Arabic-
speaking refugees,” and government action would impede their ability to continue
providing services to those populations.154 The harms alleged in those cases are
similar to those at issue here. Declarations from persons who have used Hope
Center’s overnight living space provide additional support for Hope Center’s
151 Docket 52 at 14 (quoting Arc. of California v. Douglas, 757 F.3d 975, 990 (9th Cir.
2014)).
152 Docket 75 at 37–38.
153 859 F.3d 741, 782 (9th Cir.), cert. granted sub nom. Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080 (2017), vacated and remanded on other grounds,
138 S. Ct. 37 (2017).
154 288 F. Supp. 3d 1045, 1083 (W.D. Wash. 2017), reconsideration denied, 284 F.
Supp. 3d 1182 (W.D. Wash. 2018); see also Exodus Refugee Immigration, Inc. v.
Pence, 165 F. Supp. 3d 718, 739 (S.D. Ind. 2016), aff'd, 838 F.3d 902 (7th Cir. 2016)
(“Although the funding denied to [the agency] could be reimbursed, [the agency] has
presented evidence that, in the interim, its organizational objectives would be
irreparably damaged by its inability to provide adequate social services to its clients.”).
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contention that it would have difficulty serving its target population if AMC §§
5.20.020 and 5.20.050 were enforced against the shelter.155 Based on the
foregoing, the Court concludes that Hope Center has demonstrated that it is likely
to suffer irreparable harm in the absence of preliminary injunctive relief.
c. Balance of the equities
The third requirement that a moving party must show in order to obtain a
preliminary injunction is that the balance of equities tips in its favor.156 “[T]he very
purpose of a preliminary injunction . . . is to preserve the status quo and the rights
of the parties until a final judgment issues in the cause.”157 One factor considered
by courts when balancing the equities is whether a mandatory or prohibitory
injunction is sought; the latter is considered substantially less burdensome to the
defendant.158
Hope Center contends that the equities favor it because the Code provisions
at issue “irreparably harm Hope Center’s constitutional freedoms and significantly
hinder its ministry”; in contrast, it maintains that “Anchorage can achieve any valid
155 Docket 34 (S.D. Decl.); Docket 35 (G.O. Decl.); Docket 36 (F.S. Decl.).
156 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009).
157 U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010).
158 See, e.g., Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,
878–79 (9th Cir. 2009).
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interest through laws already on the books.”159 Anchorage responds that it has
“a substantial interest in (1) the comity of the courts and the orderly administration
of ongoing state proceedings . . . and (2) enforcing AMC § 5.20.050, which serves
the fundamentally important purpose of protecting the rights of all protected
classes in the Municipality of Anchorage.”160 Anchorage also contends that Hope
Center “seeks to alter the status quo by . . . posting its policies and beliefs
regarding sex and gender identity.”161
Hope Center seeks to enjoin Anchorage from enforcing AMC §§ 5.20.020
and 5.20.050 against it. In that regard, Hope Center seeks to preserve the status
quo at its homeless shelter.162 Additionally, Hope Center is not asking the Court
to order Anchorage to take any specific action. And while Anchorage undoubtedly
has an interest in enforcing the city’s anti-discrimination provisions, the issuance
of a preliminary injunction in this instance would not unduly limit Anchorage’s ability
to do so, as the actions Hope Center seeks to enjoin appear to be beyond the
scope of the relevant provisions.163
159 Docket 30 at 29–30.
160 Docket 52 at 19.
161 Docket 52 at 18.
162 See Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060 (9th Cir. 2014) (stating
that “status quo” refers to status quo refers to the “legally relevant relationship between
the parties before the controversy arose” (emphasis omitted)).
163 Cf. Hawaii v. Trump, 859 F.3d 741, 783 (9th Cir.), cert. granted sub nom. Trump v.
Int’l Refugee Assistance Project, 137 S. Ct. 2080, (2017), vacated and remanded on
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Accordingly, the equities tip in Hope Center’s favor.
d. Whether injunctive relief is in the public interest
“The public interest analysis for the issuance of a preliminary injunction
requires [the Court] to consider whether there exists some critical public interest
that would be injured by the grant of preliminary relief.”164
Preventing discrimination against protected classes is clearly an important
public interest. But AMC §§ 5.20.020 and 5.20.050 do not appear to apply to Hope
Center’s homeless shelter. Therefore, enjoining the enforcement of those
provisions against Hope Center’s homeless shelter will not significantly curtail the
public interest.165 Moreover, the provision of overnight living space for homeless
persons furthers the public interest. Affidavits submitted by persons who have
used Hope Center’s overnight living space support the conclusion that the public
other grounds, 138 S. Ct. 377 (2017) (“[T]he Government’s interest in combating
terrorism is an urgent objective of the highest order. Nonetheless, the President must
exercise his authority under § 1182(f) lawfully . . . . Because the President has not done
so, we cannot conclude that national security interests outweigh the harms to Plaintiffs.”
(quotation and citations omitted)).
164 Cal. Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1114–15 (9th Cir. 2010),
vacated on other grounds and remanded sub nom. Douglas v. Indep. Living Ctr. of S.
Cal., Inc., 565 U.S. 606 (2012) (citation omitted).
165 See Hawaii 859 F.3d at 784 (9th Cir.) (“Although we recognize that sensitive and
weighty interests of national security and foreign affairs are implicated, the President
must nonetheless exercise his executive power under § 1182(f) lawfully.” (quotation and
citation omitted)).
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interest would be adversely affected if AMC §§ 5.20.020 and 5.20.050 were
enforced against Hope Center.166
Accordingly, the public interest favors issuance of a preliminary injunction.
CONCLUSION
In light of the foregoing, IT IS ORDERED as follows:
Anchorage’s Motion for Federal Abstention at Docket 43 is DENIED.
Anchorage’s Motion to Stay Proceedings Pending Resolution of Defendants’
Motion for Abstention at Docket 44 is DENIED as moot.
Hope Center’s Motion to Supplement or for Judicial Notice at Docket 79 is
GRANTED as to Hope Center’s request to supplement the record.
Hope Center’s Motion for Preliminary Injunction at Docket 29 is GRANTED
with respect to its homeless shelter and IT IS ORDERED as follows:
PRELIMINARY INJUNCTION
(1) This Order applies to all named Defendants, their officers, agents,
servants, employees, attorneys, and those persons in active concert or
participation with Defendants who receive actual notice of this Order.
(2) The above-described Defendants and persons are temporarily enjoined
from enforcing Anchorage Municipal Code § 5.20.050 and § 5.20.020 as applied
to the provision of overnight living space to homeless persons by Hope Center and
166 See Docket 34 (S.D. Decl.); Docket 35 (G.O. Decl.); Docket 36 (F.S. Decl.).
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its agents, including its right to post its desired policies (including Exhibit 3 to the
Verified Complaint), and to open its overnight shelter only to persons who were
determined to be female at birth.
(3) The above-described Defendants and persons are enjoined from
enforcing Anchorage Municipal Code § 5.20.050(A)(2)(b) as applied to the right of
the Hope Center to post and discuss its desired policies (including Exhibit 3 to the
Verified Complaint) with respect to its overnight homeless shelter.
(4) This Preliminary Injunction is effective as of the date of this Order and
shall remain in place during this litigation unless and until the Court orders
otherwise.
(5) The Court issues this preliminary injunction without a bond or other
security.167
DATED this 9th day of August, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
167 Based on the Court’s evaluation of the public interest in this case, the Court waives
the bond requirement. See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126
(9th Cir. 2005).
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