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 MITZI
BOLAÑOS ANDERSON, in her
Official Capacity as the Executive
Director of the Anchorage Equal
Rights Commission,
Defendants.
Case No. 3:21-cv-00155-SLG
ORDER RE DEFENDANTS’ MOTION TO DISMISS FOR LACK OF STANDING
Before the Court at Docket 28 is Defendants’ 12(b)(1) Motion to Dismiss for
Lack of Standing filed by the Municipality of Anchorage, the Anchorage Equal
Rights Commission, and Mitzi Bolaños Anderson (collectively, “the Municipality”).
Plaintiff the Downtown Soup Kitchen d/b/a Downtown Hope Center (“Hope
Center”) responded in opposition at Docket 34, and the Municipality replied at
Docket 40. Oral argument on a separate motion—Plaintiff’s Motion for Preliminary
Injunction at Docket 15—was held on September 14, 2021.1
1 See Docket 35.
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BACKGROUND
I. Hope Center
Hope Center is a non-profit religious organization located in Anchorage,
Alaska that provides meals, showers, laundry services, clothing, job training, and
religious ministry to homeless individuals, as well as an overnight shelter for
homeless women.2 The shelter can accommodate up to fifty women per night.3
Due to limited space, the women must all sleep three to five feet apart on the floor
of one large room, where they may change clothes or be in various states of
undress.4 Many of the women who stay at Hope Center’s shelter have
experienced rape, sex trafficking, physical abuse, and domestic violence,
“primarily at the hands of men.”5
Hope Center maintains that its religious beliefs compel it to care for
Anchorage’s homeless and to “cherish, respect, and protect women.”6 It also
believes that “God creates people male or female,” that “[a] person’s sex (male or
female) is an immutable God-given gift,” and that “[i]t is wrong for a person to deny
his or her God-given sex.”7 In keeping with these beliefs, Hope Center allows “only
2 Docket 1 at 2, ¶¶ 2, 4.
3 Docket 1 at 2, ¶ 4.
4 Docket 1 at 12, ¶¶ 52–53.
5 Docket 1 at 2, ¶ 4.
6 See Docket 1 at 3, 10, ¶¶ 5, 40.
7 Docket 1 at 10, ¶ 40.
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biological women to stay overnight at the shelter.”8 Hope Center previously posted
an admissions policy on its website and at its premises stating that “guests of the
shelter must be biological females” and that “[it] is against [shelter] policy for
biological males to spend the night.”9 It states that it has since removed these
postings due to fear of prosecution under the Municipality’s nondiscrimination
laws.10
Hope Center’s operational policies explain that “[b]ecause of limited
resources and limited space and because of its mission to serve and empower
those most in need, the Center cannot accept everyone, a large portion of the
public, or even a large portion of those in need of transient overnight housing.”11
Accordingly, shelter guests must meet detailed admissions criteria, and certain
categories of potential shelter guests receive priority when space is limited.12 To
qualify for admission, shelter guests must be homeless, at imminent risk of
homelessness, or fleeing domestic violence; be 18 years of age or older; avoid
“demonstrat[ing] behavior dangerous to staff, guests, or themselves”; be able to
“function in the shelter environment without serious disruption”; be “clean and
sober”; be “biological females, meaning they were born with, and currently have,
8 Docket 1 at 12, ¶ 54.
9 Docket 1 at 13, ¶ 57.
10 See Docket 1 at 28, ¶¶ 127–29.
11 Docket 1-3 at 4.
12 Docket 1-3 at 4–6; Docket 1 at 11, ¶¶ 46–50.
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only anatomical and genetic characteristics of a woman”; adhere to shelter
policies; be willing to “be exposed to Christian teachings and not disrupt meetings
inculcating Christian values”; follow the shelter schedule; perform chores; and
meet medical, functional limitation, and hygiene requirements.13 Potential guests
must agree in writing to follow these policies and must receive advance approval
from Hope Center staff before they can access the shelter.14 Hope Center staff
have “sole discretion” to determine whether an applicant meets the admissions
criteria and may look to factors including their personal observations, interviews
with the applicant, reports from other shelter guests, medical tests, and
government records.15
II. Prior Litigation
Title 5 of the Anchorage Municipal Code (“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.”16 Chapter 5.20 of the title includes prohibitions on discriminatory
practices “in the sale, rental, or use of real property” (section 5.20.020) and “in
13 Docket 1-3 at 4–5.
14 Docket 1-3 at 6.
15 Docket 1-3 at 6.
16 AMC § 5.10.010.
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places of public accommodation” (section 5.20.050). The Municipality has charged
the Anchorage Equal Rights Commission (“AERC”) with administering and
enforcing Title 5.17 Any person who believes they have been discriminated against
in violation of Title 5 may file a complaint with the AERC, and the Commission’s
Executive Director also has the power to file a complaint on behalf of others,
subject to the approval of a panel of three Commissioners.18
In 2018, “Jessie Doe,” a transgender woman, filed a complaint with the
AERC alleging that Hope Center had denied her admission to its homeless shelter
based on her sex and gender identity in violation of Title 5’s public
accommodations provision, section 5.20.050.19 Doe had been dropped off at Hope
Center by the Anchorage police on a Friday evening and “smelled of alcohol, had
an open eye wound, and seemed agitated and aggressive.”20 Sherrie Laurie, Hope
Center’s Executive Director, denied Doe admission to the shelter because Doe
was inebriated, which violated Hope Center’s admissions criteria.21 Doe tried to
access the shelter the following day but was again denied entry because Hope
Center was not accepting new shelter guests at the time and does not allow
Saturday admission unless the guest has stayed at the shelter the previous
17 Id. §§ 5.10.020, 5.10.040.
18 Id. §§ 5.40.010(A)–(B).
19 Docket 1 at 19, ¶ 89; Docket 34 at 9–10.
20 Docket 1 at 18, ¶¶ 79, 81.
21 Docket 1 at 18–19, ¶¶ 80, 82; see also Docket 1-3 at 5.
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evening.22 The AERC and its then–Executive Director “aggressively litigated”
Doe’s claim, refusing to dismiss the claim and even filing a second action against
Hope Center and its then–legal counsel based on that attorney’s statements in the
media regarding the shelter’s admissions policy.23
In response, Hope Center filed a complaint against the Municipality in this
Court, seeking declaratory and injunctive relief from enforcement of sections
5.20.020 and 5.20.050.24 The Court granted a preliminary injunction in August
2019, holding that Hope Center was likely to succeed on the merits of its claims
because neither of the Municipal Code provisions applied to homeless shelters.25
The Court held that section 5.20.020, the real property provision, did not apply to
Hope Center because that section, as it was then drafted, expressly incorporated
by reference a homeless-shelter exemption contained in AMC chapter 5.25.26 The
Court further reasoned that section 5.20.050 should not be interpreted to include
homeless shelters as “public accommodations” because doing so would render
meaningless the homeless-shelter exemption incorporated into section 5.20.020.27
22 Docket 1 at 19, ¶¶ 87–88; Docket 1-4 at 3; Docket 34 at 10.
23 Docket 28 at 4; see also Docket 1 at 20–21, ¶¶ 90–94.
24 See Docket 1 at 22, ¶ 99; Downtown Soup Kitchen v. Municipality of Anchorage, 406 F. Supp.
3d 776 (D. Alaska 2019).
25 Downtown Soup Kitchen, 406 F. Supp. 3d at 794–97, 799.
26 Downtown Soup Kitchen, 406 F. Supp. 3d at 795.
27 Downtown Soup Kitchen, 406 F. Supp. 3d at 794–97.
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Because the Court found that both of the AMC sections did not apply to Hope
Center, it did not reach Hope Center’s constitutional arguments.28 Shortly after,
the parties resolved the litigation with a consent decree in which the Municipality
agreed to cease its enforcement actions and pay Hope Center $1.00 in nominal
damages and $100,000 in attorney’s fees and costs.29
III. Title 5 Revisions
The Anchorage Assembly began revising Title 5 in 2019 and completed the
process on May 25, 2021 by enacting ordinance AO2021-30.30 The ordinance was
designed in part to “address legal issues raised by the Downtown Soup Kitchen
litigation, which resulted in a $100,001 settlement paid by the Municipality.”31
Assembly members frequently referenced Hope Center and the prior litigation at
the May 25 meeting, during which the Assembly discussed the proposed ordinance
and amendments to it, heard testimony from members of the public, and
questioned the AERC’s Executive Director, Mitzi Bolaños Anderson, about the
legal effects of changes made by the ordinance.32 Ms. Laurie, Hope Center’s
28 Downtown Soup Kitchen, 406 F. Supp. 3d at 794.
29 See Joint Consent Decree (Oct. 2, 2019), Downtown Soup Kitchen, 406 F. Supp. 3d 776
(Case No. 3:18-cv-00190-SLG), ECF No. 102.
30 See Docket 1-1; Docket 28 at 6; Docket 27-1 at 2, ¶ 2 (Bolaños Anderson Aff.).
31 Docket 1-2 at 3.
32 See Municipality of Anchorage Meetings, Assembly Regular – May 25, 2021 – 2021-05-25
17:00:00, YouTube (May 26, 2021), https://www.youtube.com/watch?v=cX06vb-mq2Y
[hereinafter May 25, 2021 Assembly Meeting].
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Executive Director, was among those who testified.33 Ultimately, the Assembly
enacted an amended version of the ordinance with a 7–2 vote.34
Many of the changes made by the ordinance were procedural. The
Assembly overhauled the AERC’s conciliation, litigation, and hearing procedures,
as well as increased the Commission’s oversight of the Executive Director.35 The
ordinance made substantive changes as well; the three most relevant changes are
detailed below.
First, the ordinance repealed chapter 5.25 of the old code, entitled “Fair
Housing Act,” in its entirety.36 The Municipality explains that this chapter was not
used by the AERC because it had been adopted pursuant to a planned workshare
agreement with the U.S. Department of Housing and Urban Development that
never materialized.37 The homeless-shelter exemption that informed this Court’s
decision in the 2018 litigation was contained in chapter 5.25 and thus was repealed
as a result of the chapter’s removal.38
33 Id. at 5:16:00–5:25:03.
34 Id. at 3:56:59–3:57:27.
35 See Docket 1-1; Docket 27-1 at 2, ¶¶ 3–4 (Bolaños Anderson Aff.).
36 See Docket 1-1; Docket 28 at 7.
37 Docket 28 at 7.
38 See Docket 28 at 7; Downtown Soup Kitchen, 406 F. Supp. at 786–87; AMC § 5.25.30 (2020)
(repealed 2021).
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Second, the ordinance updated the code’s definition of “public
accommodation” in AMC section 5.20.010, impacting the reach of section
5.20.050. The former section 5.20.010 defined “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 limitation established by law and applicable alike to all persons.”39
As revised, section 5.20.010 now defines “public accommodation” as “a business,
accommodation, refreshment, entertainment, recreation, or transportation facility
of any kind, whether licensed or not, (1) whose goods, services, facilities,
privileges, advantages or accommodations are made available to the general
public, or (2) that accepts public funds with non-discrimination contractual
requirements.” Section 5.20.050, which remained unchanged, 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 . . . .
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
39 AMC § 5.20.010 (2020).
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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.
Third, the ordinance removed section 5.20.020’s reference to the now-
deleted section 5.25.030 and added an exemption to the section for “institutional
places.” The relevant parts of section 5.20.020 are outlined below; deleted
portions are indicated with a strikethrough and new portions are underlined:
A. With the exception of those conditions described in section
5.25.030A. as “lawful practices”, it It is unlawful for 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 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, sale,
lease or rental of real property that indicates any preference,
limitation, specification or discrimination based on . . . sex [or]
gender identity . . . .
B. Notwithstanding the provisions of this section, this section does not
apply where the renter or lessee shares common living areas in an
individually or privately owned home or dwelling unit with the owner,
lessor, manager, agent or other person and the owner, lessor,
manager, agent actually occupies the home or dwelling unit as a
resident. This section also does not apply to places which are
institutional in nature and for which housing is merely incidental to a
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broader purpose, such as rehabilitation or medical care. Such
institutional places may still be covered under section 5.20.050.
IV. Current Litigation
Hope Center initiated the current litigation against the Municipality in July
2021, alleging that sections 5.20.020 and 5.20.050 violate its free exercise, free
speech, expressive association, private association, and due process rights under
the First and Fourteenth Amendments.40 The complaint alleges that Hope Center
seeks to continue to exclude transgender women from its shelter and that it has
taken down its admissions policies but would repost them on its website and
premises if not for sections 5.20.020 and 5.20.050.41 Hope Center seeks
preliminary and permanent injunctive relief from the enforcement of sections
5.20.020 and 5.20.050, declaratory judgment stating that the sections are
unconstitutional, and compensatory and nominal damages, including attorney’s
fees.42
The instant motion, the Municipality’s 12(b)(1) motion to dismiss, asserts
that the Court lacks subject matter jurisdiction over Hope Center’s claims. The
Municipality contends that Hope Center lacks standing to challenge sections
5.20.020 and 5.20.050 both because those sections are inapplicable to Hope
Center’s shelter operations and because the Municipality asserts that it has no
40 See Docket 1 at 28–38.
41 See Docket 1 at 26–28, 33, ¶¶ 117, 126–29, 157–58.
42 Docket 1 at 38–39.
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plans to enforce the revised nondiscrimination code against Hope Center.43
Accordingly, the Municipality asks that this Court dismiss Hope Center’s claims for
lack of standing.44
LEGAL STANDARDS
I. Dismissal Under Rule 12(b)(1)
Lack of standing necessitates dismissal under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.45 “A Rule 12(b)(1)
jurisdictional attack may be facial or factual.”46 In a facial attack, “the challenger
asserts that the allegations contained in the complaint are insufficient on their face
to invoke federal jurisdiction,”47 whereas a factual attack entails “attack[ing] the
substance of a complaint’s jurisdictional allegations despite their formal
sufficiency.”48 A factual attack may rely on “affidavits or any other evidence
properly before the court.”49 When resolving a factual attack on jurisdiction, a court
43 Docket 28 at 29.
44 Docket 28 at 2, 16.
45 See Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).
46 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
47 Id.
48 St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
49 Id.
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may “review evidence beyond the complaint” and “need not presume the
truthfulness of the plaintiff’s allegations.”50
Hope Center suggests that the instant motion constitutes a facial attack,
asserting that the Municipality “treat[s] Hope Center’s relevant factual allegations
as true” and “ha[s] failed to offer any evidence in support of [its] motion.”51 It
acknowledges that the Municipality’s motion relies on an affidavit from Ms. Bolaños
Anderson but asserts that the affidavit does not constitute evidence in support of
the instant motion because the affidavit was filed in response to Hope Center’s
motion for a preliminary injunction.52 It cites to Courthouse News Services, a case
in which the defendant moved for dismissal on the basis of abstention without
specifying the applicable rule of civil procedure.53 In that case, the Ninth Circuit
treated the motion as one under Rule 12(b)(6); however, the court noted that if it
were a Rule 12(b)(1) motion, it would be a facial rather than factual challenge.54
The court reasoned that the challenge would be facial because the motion
50 Safe Air for Everyone, 373 F.3d at 1039.
51 Docket 34 at 15. In a footnote, Hope Center alternatively asserts that “even in a factual
challenge, the Court cannot resolve ‘genuinely disputed facts’ that are ‘intertwined’ with the merits
of Hope Center’s arguments. And it would be improper to dismiss the complaint without at least
giving Hope Center the chance to conduct limited jurisdictional discovery.” Docket 34 at 15 n.3
(citation omitted). The Court will not address these two arguments as they were not adequately
developed by Hope Center. See Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009)
(“Arguments made in passing and inadequately briefed are waived.”).
52 Docket 34 at 15 (citing Courthouse News Serv. v. Planet, 750 F.3d 776, 780 (9th Cir. 2014)).
53 Courthouse News Serv., 750 F.3d at 779–80, 779 n.2.
54 Id. at 780.
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“expressly treated the complaint’s allegations as true”; the district court did not
make findings of fact; and the only contrary evidence before the district court was
submitted in response to a separate motion.55
The Municipality replies that its motion is a factual attack because it
“identified material factual disputes,” “pointed to evidence . . . that called into
question Hope Center’s asserted facts,” and “cited to and relied upon the affidavit
of AERC Executive Director Mitzi Bolaños Anderson.”56 It emphasizes that its
“central argument” is a factual one: “that Hope Center is wrong when it alleges that
the Title 5 revisions targeted it, in its assertion about the scope and reach of the
revised ordinance, and in its belief that the Municipality intends to prosecute it
under this law.”57 The Municipality also contends that Hope Center “misconstrues”
Courthouse News Service, emphasizing that the defendant in that case “expressly
treated the complaint’s allegations as true and asked the court to do the same.”58
It maintains that the Bolaños Anderson affidavit should be considered “evidence
before the court” regardless of whether it was filed in connection with the instant
55 Id.
56 Docket 40 at 3–4.
57 Docket 40 at 5 (“The city is not now, and has never argued, that what Hope Center says is true
but that the court nevertheless lacks jurisdiction.”).
58 Docket 40 at 2–3.
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motion, asserting that “no rules require parties to re-file identical documents with
each motion” and that “[a]ny such rule would needlessly bloat the court’s docket.”59
The Court agrees with the Municipality that the instant motion constitutes a
factual jurisdictional attack. Much of the motion is devoted to disputing Hope
Center’s factual allegations that it was targeted by the Title 5 revisions and that the
Municipality will soon enforce sections 5.20.020 and 5.20.050 against Hope
Center’s shelter operations. The factual nature of the Municipality’s attack is not
undercut by the fact that the Bolaños Anderson affidavit was submitted in response
to a separate motion. In Courthouse News Service, the Ninth Circuit seemingly
only highlighted those circumstances because the defendant’s motion to dismiss
expressly treated the complaint’s allegations as true and did not reference the
previously submitted evidence.60 When, as here, the movant expressly disputes
certain of the complaint’s allegations and cites to previously submitted evidence in
the motion to dismiss, it is appropriate to treat the motion as a factual jurisdictional
attack. Thus, this Court may review evidence beyond Hope Center’s complaint
and need not presume that all of the complaint’s allegations are true when
considering the instant motion.
59 Docket 40 at 4 n.1. In its Reply, the Municipality also “formally incorporates by reference into
its Motion to Dismiss all of its statements, arguments, authorities, factual and legal citations, and
evidence presented at Dockets 27, 27-1, and 29, as well as the statements and arguments of
undersigned counsel at the September 14, 2021 oral argument.” Id.
60 See Courthouse News Serv., 750 F.3d at 780.
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II. Article III Standing
Under Article III of the Constitution, “[t]he jurisdiction of the federal courts is
limited to ‘cases’ and ‘controversies.’”61 Federal courts enforce this jurisdictional
limitation through the doctrine of standing.62 Plaintiffs bear the burden of
demonstrating the “irreducible constitutional minimum of standing,” which requires
three elements.63 A plaintiff must show (1) an injury in fact, meaning an “invasion
of a legally protected interest that is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical”; (2) causation; and (3) redressability,
meaning that “the injury will likely be redressed by a favorable decision.”64
Because a plaintiff “must demonstrate standing separately for each form of relief
sought,” Hope Center must establish standing separately for its claims for
injunctive relief and its damages claims.65
Hope Center’s claims constitute a pre-enforcement challenge to sections
5.20.020 and 5.20.050 because the Municipality is not currently enforcing those
sections against Hope Center.66 To establish standing for a pre-enforcement
61 Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013) (quoting U.S. Const. art. III,
§ 2).
62 See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006).
63 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
64 Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (citing Lujan, 504 U.S. at 560–61).
65 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
66 See Docket 28 at 25–26; Docket 27-1 at 5, ¶ 11 (Bolaños Anderson Aff.).
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challenge, a plaintiff “must demonstrate ‘a realistic danger of sustaining a direct
injury as a result of the statute’s operation or enforcement.’”67 That “realistic
danger” exists if 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.”68 By contrast, there is
no realistic danger of injury if the plaintiff’s fears of enforcement are merely
“imaginary or speculative.”69 Pre-enforcement challenges alleging First
Amendment violations “‘present unique standing considerations’ because of the
‘chilling effect of sweeping restrictions’ on speech.”70 For such challenges, the
inquiry “tilts dramatically toward a finding of standing.”71 But even in the First
Amendment context a plaintiff still must demonstrate a credible threat of adverse
state action.
The Ninth Circuit examines three factors in determining whether a credible
threat exists in the context of First Amendment challenges. First, a court considers
the “likelihood that the law will be enforced against the plaintiff.”72 “[P]reliminary
67 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (quoting Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
68 LSO, 205 F.3d at 1155 (quoting Babbitt, 442 U.S. at 298).
69 Id. (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
70 Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1171 (9th Cir. 2018) (quoting Ariz. Right to Life
Pol. Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)).
71 Italian Colors Rest., 878 F.3d at 1172 (quoting LSO, 205 F.3d at 1155).
72 Id.
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efforts to enforce a speech restriction,” such as a warning or threat, and “past
enforcement of a restriction” are strong—but not dispositive—evidence that a
plaintiff faces a credible threat of enforcement.73 Past enforcement of the
challenged law against similarly situated parties constitutes evidence of a credible
threat, but “‘general threat[s] by officials to enforce those laws which they are
charged to administer’ do not create the necessary injury in fact.”74 Second, a
court examines “whether the plaintiff has shown, ‘with some degree of concrete
detail,’ that she intends to violate the challenged law.”75 A plaintiff can satisfy this
factor by showing that its policy is “presently in conflict” with the challenged law.76
And third, a court analyzes whether “the plaintiff’s intended speech arguably falls
within the statute’s reach.”77 A challenged law may be inapplicable “either by its
terms or as interpreted by the government,”78 but in the latter case, “the
government’s disavowal must be more than a mere litigation position.”79
73 Lopez v. Candaele, 630 F.3d 775, 786 (9th Cir. 2010) (citing Younger, 401 U.S. at 41–42;
Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc);
Culinary Workers Union v. Del Papa, 200 F.3d 614, 616, 618 (9th Cir. 1999) (per curiam)).
74 Lopez, 630 at 786–87 (quoting United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 88
(1947)).
75 Italian Colors Rest., 878 F.3d at 1172 (quoting Lopez, 630 F.3d at 786).
76 City & County of San Francisco v. Trump, 897 F.3d 1225, 1236–37 (9th Cir. 2018).
77 Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003).
78 Lopez, 630 F.3d at 786, 788.
79 Id. at 788; see Am.-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 508 (9th
Cir. 1991).
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The Municipality contends that Hope Center cannot demonstrate a credible
threat of enforcement because sections 5.20.020 and 5.20.050 do not apply to
Hope Center’s shelter operations and Anchorage does not intend to enforce them
against Hope Center. Hope Center responds that it “faces a substantial and
credible fear of enforcement,” giving it standing to seek relief.80 It asserts that both
section 5.20.020 and section 5.20.050 apply to its shelter operations and that the
Municipality’s disavowal of an intent to enforce the nondiscrimination code is
merely an illusory promise made as a litigation tactic.81
DISCUSSION
I. Does Hope Center’s Shelter Fall Within the Reach of the Revised
Provisions?
The Court begins by considering the third factor, the applicability of the
challenged provisions, due to its determinative value to the credible-threat inquiry.
For if sections 5.20.020 and 5.20.050 are not applicable to Hope Center’s shelter
operations, that also “weighs against . . . the plaintiffs’ claims that they intend to
violate the law, and . . . their claims that the government intends to enforce the law
against them.”82
80 Docket 34 at 16.
81 Docket 34 at 6.
82 Lopez, 630 F.3d at 786.
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A. Section 5.20.050
The Municipality contends that section 5.20.050 does not apply to Hope
Center’s shelter operations because the shelter does not constitute a “public
accommodation” under the revised language of section 5.20.10.83 Primarily, it
asserts that the U.S. Supreme Court’s recent decision in Fulton v. City of
Philadelphia84 “makes clear that Hope Center is not a public accommodation.”85
In Fulton, the Supreme Court considered whether Philadelphia violated the First
Amendment by refusing to contract with a Catholic foster care agency unless the
agency agreed to certify same-sex couples as foster parents.86 Philadelphia
asserted, inter alia, that the agency’s conduct violated the city’s Fair Practices
Ordinance, which forbids “deny[ing] or interfer[ing] with the public accommodations
opportunities of an individual or otherwise discriminat[ing]” based on several
protected categories.87 The ordinance defines a public accommodation as “[a]ny
place, provider, or public conveyance, whether licensed or not, which solicits or
accepts the patronage or trade of the public or whose goods, services, facilities,
83 Docket 28 at 2, 18–23.
84 141 S. Ct. 1868 (2021).
85 Docket 28 at 19.
86 Fulton, 141 S. Ct. at 1874.
87 Id. at 1880 (quoting Phila. Code § 9-1106(1) (2016)).
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privileges, advantages or accommodations are extended, offered, sold, or
otherwise made available to the public.”88
The Supreme Court held that the Fair Practices Ordinance did not apply to
the foster care agency, concluding that the agency’s licensing scheme did not
constitute a “public accommodation” under the ordinance because foster-parent
certification is “not ‘made available to the public’ in the usual sense of the words.”89
Pointing to examples of public accommodations from a related Pennsylvania state
antidiscrimination statute, the Supreme Court noted that “[t]he ‘common theme’ is
that a public accommodation must ‘provide a benefit to the general public allowing
individual members of the general public to avail themselves of that benefit if they
so desire.’”90 By contrast, the foster-parent certification process involves “a
customized and selective assessment that bears little resemblance to staying in a
hotel, eating at a restaurant, or riding a bus.”91 The “uniquely selective” process
lasts several months and involves background checks, a medical exam, and an
“intensive home study” requiring subjective evaluation from foster agencies.92
88 Id. (quoting Phila. Code § 9-1102(1)(w)).
89 Id.
90 Id. (quoting Blizzard v. Floyd, 613 A.2d 619, 621 (Pa. Commw. Ct. 1992)) (noting that a
Pennsylvania antidiscrimination statute “fleshes out” the definition of “public accommodation”
with “examples like hotels, restaurants, drug stores, swimming pools, barbershops, and public
conveyances” (citing 43 Pa. Stat. and Const. Stat. Ann. § 954(l) (2009))).
91 Id.
92 Id. at 1880–81.
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The Municipality concedes that Hope Center’s admissions process is “likely
less onerous than a foster care home study” but contends that it “has much more
in common with the foster care certification process . . . than it does with first-
come, first-serve, open access to a public bus or swimming pool.”93 It notes that
“shelter admission is available only to a small subset of the public who meet
specified housing status, medical, psychological, gender, religious, and other
criteria” and that “Hope Center actively investigates a person’s eligibility under its
published criteria and restricts access based on factors including the personal
observations of staff, statements of other shelter guests, medical records, and
government records and reports.”94 Thus, in the Municipality’s view, under Fulton’s
reasoning, Hope Center conducts a “customized and selective assessment” that
places it outside the category of public accommodation.95
The Municipality also maintains that the legislative history of
section 5.20.050 “supports the view that the Assembly did not intend for homeless
shelters to be considered public accommodations under the revised definition.”96
It notes that at the May 25, 2021 Assembly meeting, one Assembly member
proposed an amendment to the proposed ordinance that would change “public” to
93 Docket 28 at 21.
94 Docket 28 at 22.
95 Docket 28 at 22 (quoting Fulton, 141 S. Ct. at 1880).
96 Docket 28 at 20.
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“general public” in the definition of “public accommodation.”97 The Assembly
member explained that this change was intended to clarify that public
accommodations are those “open to everybody essentially.”98 The Assembly
voted to adopt this change.99 The Municipality maintains that this action evidences
the Assembly’s intent to narrow the category of public accommodations.100 The
Municipality also references that Assembly member’s comment to Ms. Laurie later
in the Assembly meeting stating that he believed Hope Center was not a public
accommodation under the new code.101
In response, Hope Center asserts that “[t]here is no question that Hope
Center’s intended conduct and speech arguably falls within the public
accommodation law’s reach.”102 It describes the Municipality’s view as “an
interpretive gloss under Fulton” but does not directly address why Fulton’s
reasoning should not apply to Hope Center’s shelter operations.103 Rather, it
points to this Court’s previous decision, which determined that the former section
5.20.050 arguably applied to Hope Center for purposes of standing but ultimately
97 Docket 28 at 8; see also May 25, 2021 Assembly Meeting, supra note 32, at 2:42:19–2:42:36.
98 May 25, 2021 Assembly Meeting, supra note 32, at 2:42:19–2:42:36.
99 See id. at 3:01:16–3:01:46.
100 See Docket 28 at 8 (“The word ‘general’ was also added before ‘public’; one Assembly
Member believed that this addition might narrow the category.”).
101 See Docket 28 at 9 (citing May 25, 2021 Assembly Meeting, supra note 32, at 5:19:19).
102 Docket 34 at 19 (emphasis omitted).
103 See Docket 34 at 17–19.
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concluded that Hope Center was not a public accommodation based on the
homeless-shelter exemption incorporated into the former section 5.20.020.104
Hope Center appears to suggest that this Court would have otherwise concluded
that Hope Center was a public accommodation and thus asserts that
section 5.20.050 now applies to Hope Center because chapter 5.25, which
contained the homeless-shelter exemption, has been repealed.105 Hope Center
emphasizes that it need only demonstrate that section 5.20.050 is arguably
applicable to satisfy the credible-threat inquiry.106
Hope Center also disputes the Municipality’s characterization of the
ordinance’s legislative history, maintaining that the Assembly revised Title 5 to
target Hope Center after the AERC’s 2018 enforcement efforts were enjoined by
this Court.107 It highlights the Assembly’s repeal of the Fair Housing Act chapter
of the old code, which eliminated the homeless-shelter exemption that informed
this Court’s previous decision.108 And it notes that Assembly members and Ms.
Bolaños Anderson “repeatedly referenced Hope Center and the prior litigation”
during the work sessions on the proposed ordinance and the May 25 Assembly
104 See Docket 34 at 18; Downtown Soup Kitchen, 406 F. Supp. 3d at 792–96.
105 Docket 34 at 17–18.
106 Docket 34 at 19.
107 Docket 34 at 11–12, 17–19.
108 Docket 34 at 17–19; Downtown Soup Kitchen, 406 F. Supp. 3d at 794–97.
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meeting.109 Hope Center draws particular attention to a post-enactment comment
from Assembly member Rivera as evidence of an intent to target Hope Center,
contending that Mr. Rivera “expressed hostility to Hope Center, describing its
beliefs as ‘misinformed.’”110
By contrast, the Municipality maintains that “the legislative history does not
reflect an intention to penalize or prosecute Hope Center.”111 Rather, it asserts
that the Assembly revised Title 5 in order to “resolve [the] problems” raised by the
2018 litigation: exposure to municipal liability, the “poorly and confusingly
structured and drafted” nature of the code, and “the code’s lack of sufficient checks
and controls on the AERC Executive Director.”112 Given these motivations, the
Municipality contends, it was to be expected that “the legislative history of the code
revision included discussion of both the prior litigation and how the new Code might
109 Docket 34 at 12.
110 Docket 34 at 18–19, 27–28. Mr. Rivera’s full comment was:
First, sort of putting aside a lot of the issues that we’ve talked about with regard to
Title 5. Just generally, whenever these types of issues come up, whether it’s a
resolution supporting trans day of visibility or anything else, it’s just really
disappointing when I hear such misinformed comments, either from members of
the body or members of the public, that really are misinformed and
mischaracterizations of who transgender individuals are in our community. It is
2021, and I would hope that we can move along with our collective education of
what it means to be a transgender individual in our society. So that is a hope that
I have for our community.
May 25, 2021 Assembly Meeting, supra note 32, at 5:27:01–5:28:02
111 Docket 28 at 9.
112 Docket 28 at 6; Docket 40 at 6–8.
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affect Hope Center going forward.”113 It explains that the Fair Housing Act chapter
of the old code was repealed because it had been adopted in anticipation of a
workshare agreement with the U.S. Department of Housing and Urban
Development that never came to fruition.114 The Municipality credits the impetus
for the repeal to this Court’s previous decision, which it explains identified the
“structural problem” that the chapter “was duplicative and related confusingly to
other parts of the code.”115 It suggests that the Assembly “compensate[d] for
deletion of the [homeless-shelter] exception” in the former FHA chapter by adding
the institutional-places exemption to the newly revised section 5.20.020—thus, the
repeal was not intended to remove the protection the homeless-shelter exemption
previously provided.116
The Municipality also highlights statements by Assembly members
expressing regret for the AERC’s 2018 enforcement attempts and hope that the
revision would provide more protection to Hope Center through stronger controls
on the AERC Executive Director and enhanced procedural safeguards—evidence
it contends is inconsistent with Hope Center’s narrative of an intent to punish or
prosecute Hope Center.117 Finally, the Municipality asserts that Mr. Rivera’s post-
113 Docket 28 at 9.
114 Docket 28 at 7 (citing Docket 27-1 at 3, ¶ 6 (Bolaños Anderson Aff.)).
115 Docket 28 at 7.
116 Docket 28 at 7–8, 9–10.
117 See Docket 28 at 9 (citing May 25, 2021 Assembly Meeting, supra note 32, at 5:19:19,
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enactment comment was simply “an aspirational call for civility and tolerance” and
not intended as “an opinion on the legal intent or effect of the newly enacted code
revision” on Hope Center’s shelter operations.118
Determining whether section 5.20.050 applies to Hope Center requires
interpretation of the Anchorage Municipal Code. The interpretation of municipal
ordinances is “governed by rules of statutory construction” and federal courts apply
state rules of statutory construction when interpreting municipal laws.119 The
Alaska Supreme Court has explained Alaska’s rules of statutory construction 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 “[t]he 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.”120
Thus, the Court begins its interpretation of AMC section 5.20.050 with the
provision’s text but also will consider the section’s legislative history. Section
5:22:55); Docket 40 at 7.
118 Docket 40 at 9.
119 Canfield v. Sullivan, 774 F.2d 1466, 1468–69 (9th Cir. 1985); see also McGraw v. City of
Huntington Beach, 882 F.2d 384, 387–88 (9th Cir. 1989).
120 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763 (Alaska 2018) (footnotes
omitted) (first quoting City of Kenai v. Friends of the Recreation Ctr., Inc., 129 P.3d 452, 458–59
(Alaska 2006); then quoting State v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 597 (Alaska
2011); and then quoting McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska
2013)).
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5.20.050 prohibits discrimination in public accommodations. In turn, the newly
revised section 5.20.010 defines “public accommodation” as “a business,
accommodation, refreshment, entertainment, recreation, or transportation facility
of any kind, whether licensed or not . . . whose goods, services, facilities,
privileges, advantages or accommodations are made available to the general
public.”121
Whether Hope Center is covered under section 5.20.050 depends on
whether it is considered a “public accommodation” as defined by the newly revised
section 5.20.010 of the code. As the Municipality notes, whether homeless
shelters are public accommodations is largely an unsettled question, although at
least one court has determined that they are.122 However, whether a homeless
shelter is a public accommodation depends on the definition of “public
accommodation” in the relevant jurisdiction, as well as the details of that particular
shelter’s operations. Fulton provides some clarity to this landscape by suggesting
that a benefit is only “available to the public” if “individual members of the general
public [can] avail themselves of that benefit if they so desire.”123 By contrast, a
121 See Docket 1-1 at 6.
122 See Docket 28 at 10–11 (citing Hunter ex rel. A.H. v. D.C., 64 F. Supp. 3d 158, 177 (D.D.C.
2014) (holding that homeless shelter was a public accommodation under D.C. Code); Boykin v.
Gray, 895 F. Supp. 3d 199, 217 n.16 (D.D.C. 2012) (holding that “place of public
accommodation” would include homeless shelters)).
123 Fulton, 141 S. Ct. at 1880 (quoting Blizzard, 613 A.2d at 621).
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benefit is “not readily accessible to the public” when it “involves a customized and
selective assessment.”124
Section 5.20.010’s definition of public accommodation is quite similar to that
of the ordinance at issue in Fulton. Both contain the phrase “whose goods,
services, facilities, privileges, advantages or accommodations are . . . made
available to the . . . public.”125 Given the similar wording of the ordinances, Fulton’s
analysis is highly relevant to the instant motion. Under Fulton’s reasoning, Hope
Center’s shelter services are not “available to the public” in the manner
characteristic of public accommodations. “[I]ndividual members of the general
public” cannot avail themselves of Hope Center’s services because shelter guests
must satisfy an extensive list of criteria to qualify for admission—a list that would
exclude the vast majority of the general public.126 Further, potential guests must
undergo a multifactor evaluation that requires Hope Center staff to exercise
meaningful discretion given the subjectivity of many of the evaluation factors.
While this admissions process is certainly less demanding than the foster-parent
certification process considered in Fulton, it is still a “customized and selective
assessment” that excludes most members of the general public. Thus, the text of
the Assembly ordinance indicates that Hope Center’s shelter is not a public
124 Id.
125 See Docket 15-2 at 6; Fulton, 141 S. Ct. at 1880; supra text accompanying note 88.
126 See supra note 13.
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accommodation as defined in 5.20.010 and therefore is not included in section
5.20.050.
Turning to the legislative history, this Court finds that it is unclear whether
the Assembly intended section 5.20.050 to apply to Hope Center. On one hand,
Ms. Bolaños Anderson’s testimony during the May 25 Assembly meeting clearly
evinced her belief at the time that the provision would apply to Hope Center and
other homeless shelters. When asked how the AERC would approach a “situation
similar to what happened at the Hope Center” under the revised code, she replied
that the AERC “would bring in the case . . . probably under public
accommodation.”127 Several Assembly members’ statements at the May 25
meeting reflect similar understandings of section 5.20.050’s applicability to Hope
Center. For example, Assembly member Allard, who voted against the ordinance,
appeared to believe that Hope Center would be covered under the revised
ordinance due to the removal of the homeless exemption.128 In light of these facts,
the Municipality’s assertion that “the revision was intended to prevent [prosecution
127 May 25, 2021 Assembly Meeting, supra note 32, at 3:28:20–3:29:12; see also id. at 3:24:58–
3:25:18 (statement of Ms. Bolaños Anderson) (“I think homeless shelters still have an array of
ways to exclude people who are actually threats, right, who are violent, who may be under the
influence, who may be exhibiting threatening behavior, but that can’t be an assumption based
on the individual’s gender identity.”); id. at 3:34:18–3:24:30 (statement of Ms. Bolaños
Anderson) (“If a transgender female arrives at a women’s shelter and asks for services, and
there is no other nondiscriminatory reason to exclude that person, that person, yes, must be
included.”).
128 See id. at 3:23:55–3:24:48.
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of Hope Center] from re-occurring in the future” is dubious.129 Setting aside the
question of whether the Municipality “targeted” Hope Center with the ordinance, at
least some of those involved in the Assembly’s deliberations believed that Hope
Center would fall under the revised public accommodation provision.
On the other hand, some Assembly members appeared to believe that Hope
Center would not constitute a public accommodation under the revised code. This
confusion seemingly stemmed from the mistaken belief that an amendment to the
ordinance proposed by Assembly member Weddleton was accepted in full when
in reality only part of the amendment was adopted.130 The rejected portion of the
amendment would have limited public accommodations to “business
establishments” or entities that accept public funds, likely excluding Hope
Center.131 Mr. Weddleton, for example, told Ms. Laurie post-enactment that Hope
Center “should not be covered by public accommodation” and that he would not
have voted for the ordinance if it was.132 Earlier in the meeting, Assembly member
Dunbar stated: “I was under the impression that it was already the case that . . .
Hope Center could limit access in this way, because it was found not to be a public
accommodation under the old title, and I didn’t think anything that was being
129 Docket 40 at 7 (emphasis added).
130 See May 25, 2021 Assembly Meeting, supra note 32, at 2:52:33–2:57:33.
131 See id. at 2:51:26–2:52:14.
132 See id. at 5:19:19–5:20:25.
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changed in this ordinance was changing that.”133 When Mr. Dunbar followed up
by asking whether the ordinance would alter the effect of this Court’s previous
order, Ms. Bolaños Anderson implied that homeless shelters would only be
covered under the public accommodations provision if they received public
funds.134
Given the conflicted nature of the legislative history, there is not sufficiently
“convincing . . . evidence of contrary legislative purpose or intent” to overcome the
plain text of the revised code’s definition of “public accommodation,”135 which,
under Fulton’s reasoning, does not encompass Hope Center’s homeless shelter.
Therefore, section 5.20.050 is not applicable to Hope Center’s shelter operations.
B. Section 5.20.020
The Municipality contends that the revised section 5.20.020 does not apply
to Hope Center’s shelter operations for two reasons.136
First, the Municipality highlights this Court’s conclusion in the 2018 litigation
that “Hope Center is [] likely to succeed as to its contention that AMC § 5.20.020
does not apply to Hope Center’s homeless shelter.”137 The Court’s primary basis
133 See id. at 2:46:34–2:46:59.
134 See id. at 2:48:24–2:48:36 (“So we removed 5.25 that had those housing exemptions, and
then we added here ‘that accepts public funds,’ and possibly with this amendment, that could
address, then, homeless shelters that receive public funds.”).
135 See Bolinder, 427 P.3d at 763.
136 See Docket 28 at 26–28.
137 Docket 28 at 27 (alteration in original) (quoting Downtown Soup Kitchen, 406 F. Supp. 3d at
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for that decision was the homeless-shelter exemption previously codified at section
5.25.030,138 which has since been repealed. However, the Municipality notes that
the Court also reasoned that enforcing section 5.20.020 against Hope Center
would not further the code’s purpose as articulated by the Alaska Supreme Court
in Swanner v. Anchorage Equal Rights Commission: “prohibit[ing] discrimination
in the rental housing market.”139 The Municipality asserts that “[t]his alternative
holding continues to apply with full force to the revised code.”140 Second, the
Municipality contends that the Assembly’s addition of the institutional-places
exemption to section 5.20.020 “illustrates the legislative body’s continuing intent to
restrict the reach of this law to ‘discrimination in the retail [sic] housing market.’”141
The Municipality suggests that the institutional-places exemption “may well apply”
to Hope Center’s shelter operations depending on the extent to which those
operations are “‘incidental’ to the other aspects of its religious ministry.”142
In response, Hope Center asserts that section 5.20.020 arguably applies
because “the main basis for exempting Hope Center from the law in the previous
795).
138 See Downtown Soup Kitchen, 406 F. Supp. 3d at 795–97.
139 Docket 28 at 27 (quoting Downtown Soup Kitchen, 406 F. Supp. 3d at 795); Swanner v.
Anchorage Equal Rts. Comm’n, 874 P.2d 274, 280 (Alaska 1994) (“The purpose of AMC
5.20.020 and AS 18.80.240 is to prohibit discrimination in the rental housing market.”).
140 Docket 28 at 27.
141 Docket 28 at 27–28.
142 Docket 28 at 28.
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litigation (i.e., homeless-shelter exemption) is no longer available.”143 It
acknowledges the Alaska Supreme Court’s statement in Swanner regarding the
purpose of section 5.20.020, but maintains that a “law’s application can reach
‘beyond the principal evil’ that the legislators intended to address.”144 Hope Center
also contends that the institutional-places exemption does not apply to exempt it
from section 5.20.020 because “housing is not ‘merely incidental’ to a homeless
shelter’s operations” but rather is “central to Hope Center’s mission.”145
As with interpreting the definition of public accommodation in the revised
code, the Court begins with the text of section 5.20.020. In relevant part, the
provision states:
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 . . . [r]efuse to sell, lease or rent, or to
otherwise make unavailable, the real property to a person because of
race, color, sex, sexual orientation, gender identity, religion, national
origin, marital status, age, familial status, or physical or mental
disability . . . [or] [d]iscriminate against a person because of race,
color, sex, sexual orientation, gender identity, religion, national origin,
marital status, age, familial status, or physical or mental disability.146
Similarly to section 5.20.050, the provision also forbids communications “that
indicate[] any preference, limitation, specification or discrimination based on race,
143 Docket 34 at 20.
144 Docket 34 at 20 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79
(1998)).
145 Docket 34 at 20.
146 AMC § 5.20.020(A)(1)–(2).
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color, sex, sexual orientation, gender identity, religion, national origin, marital
status, age, familial status, or physical or mental disability.”147
The title of section 5.20.020 is “[u]nlawful practices in the sale, rental or use
of real property.” Subsection A(2) also mentions the “use, sale, lease or rental of
real property,” and subsection A(1) uses the phrase “[r]efuse to sell, lease or rent,
or otherwise make unavailable.”148 All these formulations would appear to
encompass Hope Center; operating a homeless shelter involves the “use of real
property” and the “mak[ing] []available” of real property. Yet other portions of
section 5.20.020 indicate that the provision is geared primarily toward addressing
discrimination in the sale, lease, and rental of real property, which would not
include Hope Center’s shelter operations. Subsection A(5), for example, forbids
discriminatorily “[r]epresent[ing] to a person that real property is not available for
inspection, sale, rental or lease when in fact it is available.” And subsection A(6)
forbids “blockbusting for profit,” a practice that involves the purchase and sale of
real property.149
Subsection B, containing the newly enacted institutional-places exemption,
introduces further ambiguity. The exemption provides that section 5.20.020 “does
147 Id. § 5.20.020(A)(7).
148 Id. § 5.20.020(A)(1)–(2) (emphases added).
149 See Blockbusting, Black’s Law Dictionary (11th ed. 2019) (“The act or practice, usu. by a
real-estate broker, of persuading one or more property owners to sell their property quickly, and
often at a loss, to avoid an imminent influx of minority groups.”).
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not apply to places which are institutional in nature and for which housing is merely
incidental to a broader purpose, such as rehabilitation or medical care.” The
meaning of “institutional in nature” is not clear, and it is ambiguous whether Hope
Center is a “place . . . for which housing is merely incidental to a broader purpose.”
This question may depend on the unit of analysis; housing is not “merely incidental
to a broader purpose” if the women’s shelter is the “place” in question, but might
be “merely incidental” if the “place” is Hope Center as a whole—an organization
that offers many services in addition to its shelter operations. Thus, the plain text
of section 5.20.020, including the institutional-places exemption, does not clearly
indicate whether Hope Center’s shelter operations would be covered under the
provision.
The legislative history of section 5.20.020 is also ambiguous on this point.
After further consideration following the 2018 Hope Center litigation, this Court
does not find the Alaska Supreme Court’s statement in Swanner to be
determinative. The Supreme Court’s assertion as to the purpose of section
5.20.020 was made in a different context: determining whether that section and a
similar state nondiscrimination law were neutral laws of general applicability.150
The Supreme Court concluded that both laws were neutral because their language
did not “singl[e] out any religious group or practice” and because their purpose was
150 See Swanner, 874 P.2d at 279–80.
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“to prohibit discrimination in the rental housing market.”151 For the latter
proposition, the Supreme Court cited AS 18.80.200, which at the time stated that
“the purpose of this chapter [is] to eliminate and prevent discrimination in
employment, in credit and financing practices, in places of public accommodation,
in housing accommodations and in the sale, lease, or rental of real property.”152
Swanner did not cite to AMC section 5.10.010, and yet similarly to AS 18.80.200,
that section provides that the purpose of Title 5 is to prohibit “invidious
discrimination in the sale or rental of real property, financing practices, employment
practices, public accommodations, educational institutions, and practices of the
municipality.” However, Hope Center is correct in asserting that a statute can
apply beyond its primary purpose,153 and the Alaska Supreme Court has explained
that statements of legislative purpose are just one element of statutory
construction.154 As noted above, the plain text of several provisions of section
5.20.020 would appear to include Hope Center. Moreover, section 5.20.020 was
narrower in some respects at the time of Swanner—for example, subsection A(1)
forbid “[r]efus[ing] to sell, lease or rent the real property”; it did not include the
151 Id. at 280.
152 Id. at 280 n.8 (emphasis added) (quoting Alaska Stat. § 18.80.200 (1994)).
153 See Oncale, 523 U.S. at 79.
154 See State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019) (“[T]he
plainer the statutory language is, the more convincing the evidence of contrary legislative
purpose or intent must be.” (alteration in original) (quoting State v. Fyfe, 370 P.3d 1092, 1095
(Alaska 2016))).
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“otherwise make unavailable” language included in the current provision.155 Thus,
Swanner is not determinative.
The legislative history of the recent revisions to section 5.20.020 also fails
to clarify whether the provision applies to Hope Center’s shelter. As discussed
above, several Assembly members appeared to believe that the revised code—
whether through its public accommodations provision or real property provision—
would apply to Hope Center, whereas others did not. Ms. Bolaños Anderson, in
contrast to her statements about the public accommodations provision, was
equivocal when asked by Assembly members whether section 5.20.020 would
apply to Hope Center. Regarding the repeal of chapter 5.25, including its
homeless-shelter exemption, she noted that the new institutional-places
exemption “brought in a lot of those places that were under those exemptions,” but
did not specify whether homeless shelters were covered by the new exemption.156
At another point during the meeting, Ms. Bolaños Anderson stated that she was
unsure whether Hope Shelter would be covered under section 5.20.020.157 Even
now, the Municipality only asserts that the institutional-places exemption “may well
155 Compare AMC § 5.20.020 (1994), with AMC § 5.20.020.
156 May 25, 2021 Assembly Meeting, supra note 32, at 3:24:12–3:24:32 (statement of Ms.
Bolaños Anderson).
157 See id. at 3:29:05–3:29:29 (“We would bring it in probably under public accommodation,
maybe under housing. And that’s again going to depend on the specific shelter, and I don’t
know . . . enough about the Hope Shelter to actually know if they would meet all these factors,
right, that the courts look at to see if they are housing or not.”).
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apply” to Hope Center depending on “facts regarding to what extent Hope Center’s
homeless sheltering is ‘incidental’ to the other aspects of its religious ministry.”158
In sum, the plain text and legislative history of revised section 5.20.020 do
not clearly indicate that the provision is inapplicable to Hope Center’s homeless
shelter, and Hope Center has offered a colorable argument that the provision
applies. Thus, for purposes of the credible-threat inquiry, section 5.20.020
“arguably applies” to Hope Center.
II. Does Hope Center Intend to Violate the Challenged Provisions?
The Court next addresses the second factor of the credible-threat inquiry:
“whether the plaintiff has shown, ‘with some degree of concrete detail,’ that she
intends to violate the challenged law.”159 The Municipality asserts that Hope
Center cannot make this showing because neither provision applies to Hope
Center’s conduct.160 Hope Center responds that its admissions policy is “presently
in conflict” with the challenged provisions and that it has shown a concrete plan to
violate the revised code’s communications bans because it would “once again
‘make its admissions policy clear by posting it on its grounds and on its website’”
if not for those provisions.161
158 Docket 28 at 28.
159 Italian Colors Rest., 878 F.3d at 1172 (quoting Lopez, 630 F.3d at 786); see also supra text
accompanying notes 75–76.
160 Docket 28 at 24.
161 Docket 34 at 21 (first quoting City & County of San Francisco, 897 F.3d at 1237; then quoting
Docket 1 at 28, ¶¶ 127–31).
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As discussed above, this Court has found that Hope Center is not a public
accommodation as defined in section 5.20.050; therefore, Hope Center has not
demonstrated that its intended actions will be in violation of that section. However,
Hope Center’s current admissions policy and plans to post its admissions policy
online may violate section 5.20.020 if Hope Center’s shelter does not fall within the
institutional-places exemption. Unless that exemption applies, denying
transgender women admission to a homeless shelter could constitute both
“mak[ing] unavailable . . . real property to a person” and “discriminat[ing] against a
person . . . in a term, condition, or privilege relating to the use . . . of real property”
on the basis of a protected characteristic.162 And unless the exemption applies,
publishing a policy stating that “guests of the shelter must be biological females”
could constitute “issu[ing] . . . [a] communication, sign, notice, statement or
advertisement with respect to the use . . . of real property that indicates any
preference, limitation, specification or discrimination” based on a protected
characteristic, which is prohibited by section 5.20.020(A)(7).163 Thus, Hope Center
162 See AMC § 5.20.020(A)(1)-(2).
163 It is somewhat unclear whether Hope Center’s actions constitute sex discrimination or
gender identity discrimination. In its verified complaint, Hope Center asserts that its policy does
not prohibit “biological women who identify as men” from accessing its shelter and that it has
previously accepted such shelter guests. See Docket 1-1 at 13, ¶ 56. In that case, Hope
Center’s policy would constitute sex discrimination because it would be rooted in barring shelter
guests that Hope Center considers men rather than barring all transgender individuals. The
Municipality asserts that Hope Center requires shelter guests to “present as female and have
been assigned a female gender identity at birth,” which, if true, would bar both transgender
women and transgender men who present as such, pointing toward gender identity
discrimination rather than sex discrimination. See Docket 28 at 3 (citing Docket 1-3 at 4–5).
However, Hope Center’s admissions policy only requires that shelter guests “be biological
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has shown with concrete detail that it intended actions may violate section
5.20.020.
III. What Is the Likelihood That the Challenged Provisions Will Be
Enforced Against Hope Center?
Lastly, the Court considers the first factor of the credible-threat inquiry: the
“likelihood that the law will be enforced against the plaintiff.” 164 The Municipality
maintains that Hope Center cannot show a likelihood that the challenged
provisions will be enforced against it. It notes that the AERC has not
“communicated a specific warning or threat to initiate proceedings.”165 Rather, Ms.
Bolaños Anderson has “disavow[ed] [] prosecutorial intent”; there are “no pending
or threatened enforcement matters”; and the AERC has not received any
complaints or initiated any proceedings against Hope Center under the revised
versions of sections 5.20.020 and 5.20.050.166 The Municipality concedes that
there has been a past history of enforcement, as evidenced by the 2018 litigation,
but it notes that “the Ninth Circuit has cautioned that the historical enforcement
factor should be given ‘little weight’ where, as here, ‘the challenged law is relatively
new and the record contains little information as to enforcement or
females, meaning they were born with, and currently have, only anatomical and genetic
characteristics of a woman.” Docket 1-3 at 4. It is unnecessary to determine whether Hope
Center’s policy constitutes sex or gender identity discrimination at this juncture as both would
violate AMC § 5.20.020 unless the institutional-places exemption applies.
164 Italian Colors Rest., 878 F.3d at 1172; see also supra text accompanying notes 72–74.
165 Docket 28 at 24 (quoting Thomas, 220 F.3d at 1139).
166 Docket 28 at 25.
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interpretation.’”167 Highlighting the recent changes to the nondiscrimination code
and shifts in the “governing law on public accommodations” wrought by Fulton, the
Municipality contends that these factors “diminish the relevance and weight that
the Court should afford pre-2018 enforcement efforts.”168
In response, Hope Center asserts that there is a “substantial likelihood of
enforcement.”169 It highlights the AERC’s previous attempt to enforce the
nondiscrimination code against Hope Center, noting that “‘the threat of future
enforcement . . . is substantial’ when there is ‘a history of past enforcement.’”170 In
addition, Hope Center contends that “Defendants’ newfound willingness to leave
Hope Center alone should carry little weight” for several reasons.171 First, quoting
the Fourth Circuit’s decision in Bryant v. Woodall, Hope Center asserts that
“[u]nofficial and non-binding statements . . . ‘cannot override the plain text of the
[laws] when it comes to establishing a credible threat of enforcement.’”172
However, Bryant’s statement concerned representations made in an email and an
op-ed—sources more “unofficial” than Ms. Bolaños Anderson’s affidavit.173
167 Docket 28 at 25 (quoting Cal. Trucking Ass’n v. Bonta, 996 F.3d 644, 653 (9th Cir. 2021),
petition for cert. filed, No. 21-194 (Aug. 11, 2021)).
168 Docket 28 at 25–26.
169 Docket 34 at 22.
170 Docket 34 at 22 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014)).
171 Docket 34 at 6.
172 Docket 34 at 23 (quoting Bryant v. Woodall, 1 F.4th 280, 288 (4th Cir. 2021)).
173 See Bryant, 1 F.4th at 288–89.
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Moreover, this Court has determined that section 5.20.050 is inapplicable to Hope
Center’s shelter by its plain text and that the text of section 5.20.020 is ambiguous.
Second, Hope Center maintains that the Municipality’s disavowal is “not
legally binding” and that “nothing prevents this Director, or the next, from changing
his or her mind about enforcement and again turning on Hope Center.”174 The
Municipality responds that “the concession that the AERC will follow federal law is
not . . . a license for the Executive Director to change her mind at will” but rather
“a recognition that the AERC must continue to follow controlling federal law, an
uncontroversial position.”175 Disavowals need not be legally binding to carry import
in the credible-threat inquiry—they are simply one “indicat[ion] that plaintiffs’ claims
of future harm lack credibility.”176 Particularly when, as here, the enforcing
174 Docket 34 at 7, 24; see also Docket 34 at 20 (“Defendants reserved the right to change their
minds about this interpretation depending on ‘facts regarding to what extent Hope Center’s
homeless sheltering is ‘incidental’ to Hope Center’s ministry.” (quoting Docket 28 at 28)).
175 Docket 40 at 14–15 (footnote omitted); see also Docket 27-1 at 5, ¶ 12 (Bolaños Anderson
Aff.) (“Because Hope Center’s services fall outside of the scope of the public accommodations
category as described by Fulton, the AERC has no basis to and does not intend to enforce Title
5’s gender identity or sex discrimination provisions against Hope Center’s overnight shelter
operations unless . . . the federal law changes in such a way as to allow a more expansive
definition of the public accommodations category.”).
176 Lopez, 630 F.3d at 788; see also Johnson v. Stuart, 702 F.2d 193, 195 (9th Cir. 1983) (holding
plaintiffs lacked standing to challenge a statute when the enforcing authority and its legal counsel
“disavowed any interpretation of [the statute] that would make it applicable”); cf. LSO, 205 F.3d at
1155 (collecting cases in which “[c]ourts have . . . considered the Government’s failure to disavow
application of the challenged provision as a factor in favor of a finding of standing”). But see Vt.
Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (“The State also argues that
VRLC’s fear of suit could not possibly be well-founded because the State has no intention of suing
VRLC for its activities. While that may be so, there is nothing that prevents the State from
changing its mind. It is not forever bound, by estoppel or otherwise, to the view of the law that it
asserts in this litigation.”).
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authority’s disavowal is based on interpreting the challenged law as inapplicable
to the plaintiff’s conduct, it indicates a low likelihood of enforcement.
Third, Hope Center asserts that even if Ms. Bolaños Anderson’s disavowal
is genuine, it “promises little in view of the overall enforcement scheme.”177 It notes
that the AERC Commissioners have not issued a disavowal and contends that this
undermines the Municipality’s position because the Commission has “unfettered
discretion to initiate its own investigations, apart from the Executive Director” and
can “reconsider the Director’s decision to close a complaint, and may reverse the
decision if it believes there has been ‘a mistake . . . in the application of the law.’”178
Hope Center also points out that anyone can file a complaint under Title 5,
“subjecting Hope Center to a ‘universe of potential complainants,’ a mandatory
investigation process, and potential civil and criminal sanctions—no matter the
Acting Director’s current interpretation of the laws.”179 The Municipality replies that
Hope Center misunderstands Title 5’s enforcement scheme because the
“executive director—not the Commission—has the power to dismiss complaints at
any time . . . if she determines that ‘the commission lacks jurisdiction over the
subject matter’ of the complaint.”180
177 Docket 34 at 24.
178 Docket 34 at 6, 24 (citations omitted) (quoting AMC § 5.60.030(E)).
179 Docket 34 at 7 (quoting Susan B. Anthony List, 573 U.S. at 164).
180 Docket 40 at 13 (citing AMC § 5.60.020(A)(4)).
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The Court is persuaded that the Executive Director’s administrative closure
power mitigates Hope Center’s concerns about a “universe of potential
complainants.” If a member of the public were to file a complaint against Hope
Center under section 5.20.020 or section 5.20.050, the Executive Director could
dismiss that complaint before the investigation process commences. As Hope
Center correctly notes, this administrative closure power is still subject to the
Commission’s reconsideration.181 But the first factor of the credible-threat inquiry
assesses the “likelihood” of enforcement—not whether there is a certainty that the
challenged law will or will not be enforced.182 Given that the Executive Director
exercises primary responsibility for screening out non-cognizable complaints, the
Bolaños Anderson affidavit is sufficient to establish that enforcement against Hope
Center is unlikely.
IV. Standing for Injunctive Relief
The Court finds that Hope Center has failed to show a credible threat of
enforcement for section 5.20.050 because the provision does not apply to Hope
Center’s shelter operations. As the Ninth Circuit noted in Lopez v. Canele, when
the challenged law is inapplicable, that also “weighs against . . . the plaintiffs’
claims that they intend to violate the law, and . . . their claims that the government
181 See AMC § 5.60.030(A) (stating that reconsideration is permissible when “a complaint has
been closed pursuant to subsection 5.60.010C. or 5.60.020A.1.–5.”); id. § 5.60.030(E).
182 See Italian Colors Rest., 878 F.3d at 1173.
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intends to enforce the law against them.”183 The Court’s conclusion is bolstered
by, but does not rely on, the fact that the Municipality interprets section 5.20.050
as inapplicable and the Executive Director of the AERC has disavowed any intent
to prosecute Hope Center under it.
Hope Center has also failed to show a credible threat of enforcement for
section 5.20.020. Although that provision “arguably” applies to Hope Center’s
conduct,184 there is a low likelihood of enforcement because the Municipality has
maintained that the provision does not apply, and the Executive Director of the
AERC has disavowed any intent to enforce it. Together, the provision’s uncertain
applicability and the Municipality’s disavowal are sufficient to extinguish a credible
threat of enforcement. Because there is not a credible threat that either provision
will be enforced moving forward, Hope Center lacks standing to pursue its claims
for injunctive relief.
V. Standing for Damages
Hope Center asserts that even if injunctive relief is not warranted, it still has
standing to seek damages because it has already suffered a constitutional injury
due to “reasonably respond[ing] to Defendants’ repeal of the homeless-shelter
exemption by self-censoring,” which cannot be undone by an “after-the-fact
183 630 F.3d at 786.
184 See Getman, 328 F.3d at 1095.
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disavowal.”185 In reply, the Municipality contends that Hope Center lacks such
standing because “its self-censorship was not rooted in a well-founded fear of
prosecution.”186
When a plaintiff’s exercise of First Amendment rights has been chilled, “such
self-censorship is a constitutionally sufficient injury as long as it is based on an
actual and well-founded fear that the challenged statute will be enforced.”187 This
Court found above that Hope Center has failed to establish a credible threat that
section 5.20.050 will be enforced against it because the provision is not applicable.
Thus, even before the Municipality’s disavowal, Hope Center’s fear of prosecution
under section 5.20.050 was not well-founded. However, the Court’s conclusion
that Hope Center has failed to establish a credible threat with regard to section
5.20.020 relies in part on the Municipality’s disavowal, filed with this Court on
August 16, 2021,188 as the provision itself is ambiguous and arguably applies to
Hope Center’s conduct. Thus, from May 25 to August 16, 2021, Hope Center had
a well-founded fear of prosecution under section 5.20.020. As a result, it has
185 Docket 34 at 7, 16, 28.
186 Docket 40 at 16; see also Docket 40 at 17 (“Standing for past self-censorship harm only
exists where the self-censorship ‘is based on an actual and well-founded fear that the
challenged statute will be enforced’ against it.” (quoting Libertarian Party of L.A. Cnty. v. Bowen,
709 F.3d 867, 870 (9th Cir. 2013))).
187 Bowen, 709 F.3d at 870 (quoting Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000
(9th Cir. 2010)); see also Bayless, 320 F.3d at 1006.
188 See Docket 27-1 at 5 (Bolaños Anderson Aff.).
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standing to seek damages for its self-censorship based on section 5.20.020 during
that limited time period.
CONCLUSION
Hope Center lacks standing to pursue a pre-enforcement challenge to AMC
sections 5.20.050 and 5.20.020. However, because section 5.20.020 arguably
applies to Hope Center’s conduct, Hope Center may seek damages for its self-
censorship based on that provision for the limited time period between the
ordinance’s passage and the Municipality’s disavowal of prosecutorial intent. For
the foregoing reasons, Defendants’ 12(b)(1) Motion to Dismiss for Lack of Standing
at Docket 28 is GRANTED in part and DENIED in part as set forth herein. Further,
because Hope Center lacks standing to pursue its claims for injunctive relief, its
Motion for Preliminary Injunction at Docket 15 is DENIED.
DATED this 20th day of December, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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