United States District Court, D. New Hampshire
Mary Rose Reddy et al.
Joseph Foster et al.
Michael J. Tierney, Esq. Elissa Graves, Esq. Matthew S. Bowman, Esq. Nancy J. Smith, Esq. Elizabeth A. Lahey, Esq. Garry R. Lane, Esq. Peter R. Chiesa, Esq. Thomas R. Clark, Esq. Danielle L. Pacik, Esq. James William Kennedy, Esq. Charles P. Bauer, Esq. Samantha Dowd Elliott, Esq.
CORRECTED OPINION AND ORDER
Joseph N. Laplante United States District Judge.
This civil rights action implicates a party’s standing to challenge a recently-enacted law prior to its enforcement. The plaintiffs allege that they engage in peaceful expressive activities outside of clinics that provide abortion services in New Hampshire. A recently-enacted New Hampshire law permits such clinics to create so-called “buffer zones” around the clinic entrances. N.H. Rev. Stat. Ann. §§ 132:37-40. Plaintiffs allege that this law violates their rights to freedom of speech, freedom of the press, due process, and equal protection under the United States and New Hampshire Constitutions. It does so, they argue, by unlawfully restricting their ability to engage in peaceful prayer, leafleting, and sidewalk counseling in those quintessential public fora, the city street and sidewalk.
The Attorney General of the State of New Hampshire, a defendant in his official capacity, moved to dismiss this action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that the plaintiffs lack standing to bring it. The Attorney General contends that the plaintiffs failed to allege any actual injury because the statute in question has not been enforced against them and, as written, cannot be enforced against them absent the demarcation of a buffer zone -- a condition precedent that has not been fulfilled even now, almost 21 months after the law’s effective date. This absence of any injury means the plaintiffs lack standing, the Attorney General concludes, and accordingly strips this court of subject-matter jurisdiction over the action. See U.S. Const. art. III, § 2, cl. 1.
Having already answered the complaint, various of the municipal defendants move for judgment on the pleadings, see Fed.R.Civ.P. 12(c), challenging the court’s subject-matter jurisdiction on the same grounds as the Attorney General. They also contend that the plaintiffs fail to state a claim against them, see Id. Rule 12(b)(6), and raise the spectre of unjoined but indispensable parties, see Id. Rules 12 (b)(7), 19.
After hearing oral argument and considering the parties’ submissions, the court grants defendants’ motions to dismiss because plaintiffs’ suit is premature. Plaintiffs have not demonstrated that they suffered any cognizable injury attributable to the defendants or that threatened enforcement of the statute chilled their speech. Lacking subject-matter jurisdiction over this action, the court accordingly dismisses the plaintiffs’ claims without prejudice.
I. Applicable legal standard
“[F]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . .” United States v. Coloian, 480 F.3d 47, 50 (1st Cir. 2007) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). When the court’s jurisdiction is challenged, as it is here, “the burden lies with the plaintiff[s], as the part[ies] invoking the court’s jurisdiction, to establish that it extends to [their] claims.” Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012) (citing Kokkonen, 511 U.S. at 377).
In evaluating a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), this court must “accept as true all well-pleaded factual averments in the plaintiff[s’] complaint and indulge all reasonable inferences therefrom in [their] favor.” Katz, 672 F.3d at 70. Unlike in the Rule 12(b)(6) context, where doing so would require conversion of this motion into one for summary judgment, see Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008), in the Rule 12(b)(1) context, the court may “consider whatever evidence has been submitted, such as the . . . exhibits submitted in this case.” Aversa, 99 F.3d at 1210.
A. The Act
The law challenged here, entitled “An Act Relative to Access to Reproductive Health Care Facilities” and codified at N.H. Rev. Stat. Ann. § 132:37-40, went into effect on July 10, 2014. The Act provides that, with limited exceptions:
No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius up to 25 feet of any portion of an entrance, exit, or driveway of a reproductive health care facility.
N.H. Rev. Stat. Ann. § 132:38, I. Under the Act, a “reproductive health care facility” is “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” Id. § 132:37, I. Importantly, the Act requires that such facilities “shall clearly demarcate the zone authorized in paragraph I and post such zone with signage, ” Id. § 132:38, II, and that, prior to doing so, they “shall consult with local law enforcement and those local authorities with responsibilities specific to the approval of locations and size of the signs to ensure compliance with local ordinances, ” Id. § 132:38, III.
Section 132:39 contains the Act’s enforcement mechanisms, but provides that they “shall not apply unless the signage authorized in RSA 132:38, II was in place at the time of the alleged violation.” Id. § 132:39, III. Once that signage is in place, “a police officer or any law enforcement officer shall issue one written warning to an individual” who violates § 132:38, I, “[p]rior to issuing a citation.” Id. § 132:39, I. “If the individual fails to comply after one warning, such individual will be given a citation, ” id., which carries “a minimum fine of $100, ” Id. § 132:39, II. The Act also authorizes the New Hampshire Attorney General or appropriate County Attorney to “bring an action for injunctive relief to prevent further violations.” Id.
B. The plaintiffs
The plaintiffs in this case are individuals who engage in expressive activities, such as prayer, leafleting, sidewalk counseling, and advocacy outside of four New Hampshire clinics that provide abortion services -- specifically, those in Manchester, Concord, Keene, and Greenland. Compl. ¶ 5. For example, some of the plaintiffs engage in sidewalk counseling outside of Planned Parenthood’s clinic in Manchester. There, they attempt to engage in calm conversations with those entering and leaving the clinic, hand out rosaries and cards, or simply hold up signs. Compl. ¶¶ 61-62, 65, 67. Others pray -- aloud or silently -- on the sidewalks outside that location. Compl. ¶¶ 64, 67.
Still others of the plaintiffs engage in similar activities outside of the Concord Feminist Health Center, the Joan G. Lovering Health Center in Greenland, and the Planned Parenthood clinic in Keene. Compl. ¶¶ 75, 80-81, 86. The parties do not dispute that the plaintiffs have engaged in and, since the filing of ...