Mccullen v. Coakley

759 F.Supp.2d 133

Eleanor McCULLEN, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, and Eric Cadin, Plaintiffs,

v.Martha COAKLEY, in her capacity as Attorney General for the Commonwealth of Massachusetts, Defendant.

Civil Action No. 08–10066–JLT.

United States District Court, D. Massachusetts.

Dec. 29, 2010.

Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, Michael J. Deprimo, Hamden, CT, Philip D. Moran, Salem, MA, Mark L. Rienzi, Catholic University of America, Columbus Law School, Washington, DC, Kevin H. Theriot, Alliance Defense Fund, Leawood, KS, for Plaintiffs.Kenneth W. Salinger, Gabrielle Viator, Massachusetts Attorney General's Office, Boston, MA, for Defendants.Dwight G. Duncan, Southern New England School of Law, North Dartmouth, MA, for Amicus.

MEMORANDUM

TAURO, District Judge.I. Introduction

This case concerns a recently revised Massachusetts statute, Massachusetts General Laws Chapter 266, § 120E1/2 (“Act”), which establishes a thirty-five-foot fixed buffer zone around driveways and entrances of reproductive health care facilities (“RHCFs”). Presently at issue are Plaintiffs' Motion to Permit Arguments as to Facial Invalidity [# 95], Defendant's Motion for Judgment on the Pleadings on the As–Applied Claims in Counts Two Through Eight [# 99], and Plaintiffs' Motion for Leave to File Amended Complaint [# 94].

Plaintiffs' Motion to Permit Arguments as to Facial Invalidity is DENIED; Defendant's Motion for Judgment on the Pleadings is ALLOWED; and Plaintiffs' Motion for Leave to File Amended Complaint is ALLOWED IN PART and DENIED IN PART.

II. Background ¹A. The Parties

Plaintiffs Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, and Eric Cadin are Massachusetts residents who regularly engage in pro-life counseling outside RHCFs. Defendant Attorney General Martha Coakley is the chief lawyer and law enforcement officer of the Commonwealth of Massachusetts. As such, Defendant bears responsibility for enforcing the Act. She is sued in her official capacity only.² B. Procedural History

On January 16, 2008, Plaintiffs filed the Complaint, which advanced eight counts under 42 U.S.C. § 1983: (1) Free Speech—Time, Place, and Manner; (2) Free Speech—Substantial Overbreadth; (3) Free Speech—Prior Restraint; (4) “Free Speech—Free Association—Free Exercise Hybrid”; (5) Free Speech—Viewpoint Discrimination; (6) Due Process—Vagueness; (7) Due Process—Liberty Interest; and (8) Equal Protection.³

After a Status Conference held on April 23, 2008, and without objection from the Parties, this court ordered that the matter proceed on the merits in two stages: (1) a Bench Trial on Plaintiffs' facial challenge; and (2) a Bench Trial on Plaintiffs' as-applied challenge.⁴

On May 28, 2008, this court held the first Bench Trial, on Plaintiffs' facial challenge.⁵ In an August 22, 2008 decision, this court held that the Act survived all three facial challenge standards.⁶ The Court of Appeals for the First Circuit held a de novo review and affirmed this court's decision,⁷ and the Supreme Court denied Plaintiffs' petition for certiorari at this stage of the case.⁸

On September 17, 2010, Plaintiffs filed a Motion for Leave to File Amended Complaint [# 94] and a Motion to Permit Arguments as to Facial Invalidity [# 95]. On October 7, 2010, Defendant filed a Motion for Judgment on the Pleadings on the As–Applied Claims in Counts Two Through Eight [# 99]. On December 2, 2010, this court heard oral arguments on all three Motions and took them under advisement.

III. DiscussionA. Plaintiffs' Motion to Permit Arguments as to Facial Invalidity

Despite this court's prior decision dismissing Plaintiffs' facial challenges, and the First Circuit's affirmation of this court's decision, Plaintiffs seek to “continue arguing for facial invalidation.” ⁹

1. Legal Standard

The “law of the case” doctrine generally requires that “a decision of an appellate tribunal on a particular issue ... governs the issue during all subsequent stages of the litigation ... and thereafter on any further appeal.” ¹⁰ The law of the case doctrine has two components: first, the “mandate rule,” which “forbids, among other things, a lower court from relitigating issues that were decided by a higher court, whether explicitly or by reasonable implication, at an earlier stage in the case”; and second, the general rule that “unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation.” ¹¹ The law of the case doctrine applies to an appellate court's ruling both if the case is on appeal of a final judgment or if the appeal is interlocutory. ¹²

Only three, very narrow exceptions to the law of the case doctrine exist. For a court to revisit an issue,

the proponent of reopening an already decided matter must accomplish one of three things: [1] “show that controlling legal authority has changed dramatically; [2] proffer significant new evidence, not earlier obtainable in the exercise of due diligence; or [3] convince the court that a blatant error in the prior decision will, if uncorrected, result in a serious injustice.” ¹³

2. Analysis

Here, Plaintiffs contend that the law of the case doctrine does not apply for two reasons. First, Plaintiffs contend that the first exception to the law of the case doctrine applies because controlling legal authority has changed dramatically. Second, Plaintiffs contend that the second exception, the existence of significant new evidence, also applies.

a. First Exception: Change in Controlling Legal Authority

To support their first argument, that controlling legal authority has changed dramatically, Plaintiffs cite two recent Supreme Court cases: Citizens United v. Federal Election Commission ¹⁴ and United States v. Stevens.¹⁵

i. Citizens United v. Federal Election Commission

In Citizens United, the Supreme Court struck down a federal campaign statute that banned independent expenditures by corporations.¹⁶ The Supreme Court explained that, pursuant to the First Amendment, corporations may not be barred from engaging in political speech simply because they are not natural persons.¹⁷ Plaintiffs cite Citizens United for the proposition that “legislative [speaker] distinctions are not permitted by the First Amendment.” ¹⁸ That is, according to Plaintiffs, the Supreme Court's decision in Citizens United is “directly contrary to the standards applied by the First Circuit [in McCullen II ] in permitting speaker distinctions so long as [the court] can ‘glean legitimate reasons' ” for the existence of the speaker distinction.¹⁹ Plaintiffs argue that Citizens United is relevant here because the Act “specifically exempts ‘employees or agents of [abortion clinics] acting within the scope of their employment,’ ” thereby creating a speaker distinction.²⁰

Plaintiffs' argument with regard to Citizens United is unpersuasive. Indeed, this court holds that Citizens United is simply not relevant here. Plaintiffs' construal of the holding in Citizens United is misleading. ²¹ Plaintiffs are correct that the Supreme Court reiterated the general prohibition on speaker distinctions in Citizens United. But that case concerned an absolute ban on speech rather than a time, place, or manner restriction.²² This court has previously explained, and the First Circuit has affirmed, that the Act creates a time, place, or manner restriction and is thus not an absolute ban on speech.²³ Further, as the First Circuit explained in this case, the Supreme Court “has left no doubt but that time-place-manner restrictions should not be analyzed in the same way as direct bans on speech.” ²⁴

Moreover, the principle that the legislature may not bar some speakers from speaking while allowing others to speak is not a new principle.²⁵ The principle certainly is not inconsistent with prior First Circuit law. Indeed, Plaintiffs argue that “prior First Circuit law had permitted speaker distinctions when supported by a legitimate reason” ²⁶ but that Citizens United renders such prior First Circuit case law outdated. ²⁷ Specifically, Plaintiffs challenge Defendant's reliance on McGuire v. Reilly (McGuire I),²⁸ a 2001 First Circuit case that Plaintiffs contend has been abrogated by Citizens United.²⁹

Plaintiffs' position is unconvincing. McGuire I is still good law. In McGuire I, the First Circuit relied on the test for content-neutrality that was first established in Ward v. Rock Against Racism.³⁰ In Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez,³¹ a decision dated five months after Citizens United, the Supreme Court confirmed the survival of the Ward test. The Supreme Court, quoting Ward, explained that “ ‘a regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.’ ” ³²

Citizens United thus is not controlling legal authority in this case and does not operate to exempt Plaintiffs from the law of the case doctrine. ³³

ii. United States v. Stevens

Plaintiffs next argue that the Supreme Court's decision in United States v. Stevens constitutes a change in controlling legal authority such that the law of the case doctrine does not apply. Stevens struck down a federal statute that prohibited the creation, sale, or possession of portrayals of animal cruelty, holding that the statute was substantially overbroad and thus facially unconstitutional.³⁴

Plaintiffs cite Stevens for the proposition that “a strained interpretation of a law offered by the enforcement authorities cannot save an invalid law, and that the offering of such an interpretation in fact suggests the statute is unconstitutional as written.” ³⁵ Plaintiffs argue that Defendant has offered just such a strained interpretation of the Act.³⁶ Specifically, Plaintiffs contrast, on the one hand, the fact that...