Downtown Soup Kitchen v. Municipality of Anchorage
| Decision Date | 09 August 2019 |
| Docket Number | Case No. 3:18-cv-00190-SLG |
| Parties | 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. |
| Court | U.S. District Court — District of Alaska |
David Andrew Cortman, Alliance Defending Freedom, Lawrenceville, GA, Katherine L. Anderson, Ryan Jeffrey Tucker, Jonathan Andrew Scruggs, Alliance Defending Freedom, Scottsdale, AZ, Sonja Kathleen Redmond, Law Office of Sonja Redmond, Soldotna, AK, Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, AK, for Plaintiff.
Meagan Rae Carmichael, Ryan A. Stuart, Municipality of Anchorage, Municipal Attorney's Office, Anchorage, AK, for Defendants.
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 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.
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 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 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 able to speak and write about its policies14 but fears that having them do so would violate the AMC.15
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 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 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
"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, 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
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 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 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 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...
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