Hill v. Kemp

• Decision Date: 31 July 2009
• Docket Number: Case No. 04-CV-0028-CVE-PJC.
• Citation: 645 F.Supp.2d 992
• Parties: Harold E. HILL, et al., Plaintiffs, v. Thomas E. KEMP, et al., Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

645 F.Supp.2d 992

Harold E. HILL, et al., Plaintiffs, v. Thomas E. KEMP, et al., Defendants.

Case No. 04-CV-0028-CVE-PJC.

United States District Court, N.D. Oklahoma.

July 31, 2009.

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Cameron L. Schroeder, Molly S. Boast, Suzanne M. Grosso, New York, NY, Janet Lynne Crepps, Simpsonville, SC, Martha Moody Hardwick, Hardwick Law Office, Tulsa, OK, for Plaintiffs.

Richard Weldon Freeman, Jr., Department of Human Services (OKC) General Counsel, Oklahoma City, OK, for Defendants.

OPINION AND ORDER

CLAIRE V. EAGAN, Chief Judge.

Now before the Court is Plaintiff [Oklahoma Religious Coalition for Reproductive Choice Education Fund, Inc.'s] Motion for Summary Judgment and Brief in Support (Dkt. # 153). Plaintiff Oklahoma Religious Coalition for Reproductive Choice Education Fund, Inc. (ORC) seeks summary judgment on its claims under 42 U.S.C. § 1983 alleging that OKLA. STAT. tit. 47, § 1104.6 violates its rights under the First Amendment (Count Five) and the Equal Protection Clause of the Fourteenth Amendment (Count Six), because the statute interferes with its right to use its private funds for abortion-related activities. Defendant Howard H. Hendrick responds that the challenged statute is constitutional because ORC can apply for state funding through a structurally separate affiliate while maintaining its right to engage in abortion-related activities with its private funds.

I.

The State of Oklahoma (the State) permits motorists to purchase a special license plate bearing the expression "Choose Life" for an additional $35 above the cost of a standard license plate issued to Oklahoma motorists.¹ Of this additional $35 fee, $8 is directed to the Oklahoma Tax Commission, and $7 goes to school districts and other state funds. The State is required to deposit the remaining $20 in the Choose Life Assistance Program Revolving Fund (the Fund) created by OKLA. STAT. tit. 47, § 1104.6. At the beginning of the next fiscal year, the Oklahoma Department of Human Services (DHS) is required to distribute money deposited in the Fund on a pro rata basis to all eligible applicants who apply to receive a disbursement from the Fund. Money in the fund is distributed to nonprofit organizations "that provide service to the community that include counseling and meeting the physical needs of pregnant women who are committed to placing their children for adoption." OKLA STAT. tit. 47, § 1104.6B. Hendrick is the Director of DHS and has final authority to grant or deny an application to receive a disbursement from the Fund.

Section 1104.6 requires an applicant for funding to submit an affidavit to DHS establishing that the applicant is eligible to receive money from the Fund. The statute lists nine requirements that must be satisfied before a disbursement may be made:

1. The organization is a nonprofit organization;

2. The organization does not discriminate for any reason, including, but not limited to, race, marital status, gender, religion, national origin, handicap or age;

3. The organization counsels pregnant women who are committed to placing their children for adoption;

4. The organization is not involved or associated with any abortion activities, including counseling for or referrals to abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising;

5. The organization does not charge women for any services received;

6. The organization understands that sixty percent (60%) of the funds received by an organization can only be used to provide for the material needs of pregnant women who are committed to placing their children for adoption, including clothing, housing, medical care, food, utilities, and transportation. Such funds may also be expended on infants awaiting placement with adoptive parents. Forty percent (40%) of the funds may be used for adoption, counseling, training, or advertising, but may not be used for administrative expenses, legal expenses, or capital expenditures.

7. The organization understands that no funds may be used for administrative expenses, legal expenses, or capital expenditures;

8. The organization understands that any unused funds at the end of the fiscal year that exceed ten percent (10%) of the funds received by the organization during the fiscal year must be returned to the [Fund] to be aggregated and distributed with the next fiscal year distribution; and

9. The organization understands that each organization that receives such funds must submit to an annual audit of such funds verifying that the funds received were used in the manner prescribed by statute.

Id. at § 1104.6C. The statute prohibits the distribution of funds to "any organization that is involved or associated with abortion activities, including counseling for or referral to abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising. . . ." Id. at § 1104.6D. DHS has not adopted an application form and a nonprofit organization's affidavit is treated as an application to receive funding.

ORC is a nonprofit corporation based in Tulsa, Oklahoma. It was originally established in 1978 as the Oklahoma affiliate of the Religious Coalition for Abortion Rights, but that organization has since changed its name to the Religious Coalition for Reproductive Choice. ORC states that it is a "statewide coalition of Christian, Jewish, and other religious organizations supporting choice in family planning, regardless of income, culture, race, class, gender or ethnic origin," and it interprets the phrase "choice in family planning to mean a woman's freedom to choose, according to her own faith, traditions or religious and moral beliefs, among all available reproductive options both before and after conception, including abortion." Dkt. # 150, at 4. ORC provides counseling services to pregnant women concerning parenting, adoption, and abortion, and accepts counseling referrals from similar organizations. ORC also maintains a Roe Fund to assist impoverished women with incidental costs related to obtaining an abortion. ORC does not charge any woman for services. In addition to these services, ORC engages in activities that express support for a wide range of family planning options, including peaceful demonstrations outside health facilities providing abortions to support choice in family planning, periodic worship gatherings for those who wish to express support for choice in family planning, and promoting the Clergy for Choice Network of the Religious Coalition for Reproductive Choice.

ORC states that it applied for money from the Fund to create a program to support women who "decided that adoption is the appropriate option given their circumstances" and to provide related counseling and training services. Id. at 6. It submitted applications for funding following the end of the fiscal years 2005 through 2008, and each of its applications was denied. In each of its applications, ORC stated that it understood that it could not use "any funds from the [Fund] for any activities involved with or associated with abortion, including counseling for or referrals to abortion clinics, providing medical abortion-related procedures, or pro-abortion advertising." Dkt. # 150, Ex. 1, at 2. DHS denied ORC's applications because ORC refused to attest or did not provide documentation to show that ORC was not involved or associated with abortion activities. Id., Ex. 5, at 2. ORC's applications would have been approved if it could have attested that it did not engage in abortion-related activities as described in § 1104.6.

On January 14, 2004, ORC and others filed this lawsuit alleging six claims under § 1983. Counts One through Four were filed by Oklahoma citizens who alleged that § 1104.6 violated their constitutional rights of freedom of speech, due process, and equal protection, and Courts Five and Six alleged that § 1104.6 infringed upon ORC's rights of freedom of speech and equal protection respectively. The Court dismissed the case for lack of subject matter jurisdiction because plaintiffs' claims were barred by the Tax Injunction Act, 28 U.S.C. § 1341, and the Eleventh Amendment. The Tenth Circuit Court of Appeals affirmed in part and reversed in part. Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). The Tenth Circuit affirmed dismissal of the individual citizens' claims under the Tax Injunction Act; however, the Tenth Circuit found that the relief sought against State officials was prospective only and not barred by the Eleventh Amendment, and remanded for further proceedings as to Counts Five and Six. Following remand, the Court held a status conference on May 2, 2007. The parties agreed that the undersigned should remain as the presiding judge over this case, but some of the defendants stated that they would file motions to dismiss as to Counts Five and Six. See Dkt. # 107. The Court entered an agreed order requiring Hendrick to set aside and maintain the amount that ORC would have received if its application for funding had been approved for 2005 and 2006, and also to set aside a pro rata share for amounts ORC might apply for while this case is pending. Dkt. # 109. The Court also set a briefing schedule for additional motions to dismiss concerning defendants' arguments that ORC's claims were barred by sovereign immunity or that certain defendants were not proper parties.² The Court dismissed all remaining defendants except Hendrick, and denied his request to stay the case. Dkt. # 144. The Court also entered an amended scheduling order setting deadlines for Hendrick to answer the amended complaint and for both parties to file motions for summary judgment. ORC has filed a motion for summary judgment as to both remaining claims against Hendrick, and the motion is ripe for adjudication.

II.

Summary judgment pursuant to Fed. R.Civ.P. 56 is appropriate where there is no genuine issue of material fact and the moving party is entitled to...