Selene v. Legislature of Idaho

514 F.Supp.3d 1243

Ahniah SELENE; Kassie Howe; Disability Action Center – Northwest, Inc.; Disability Rights Idaho, Inc.; Living Independence Network Corporation Idaho ; Life, A Center for Independent Living; and Intermountain Fair Housing Council, Plaintiffs,

v.The LEGISLATURE OF the State of IDAHO, Scott Bedke in his official capacity as Speaker of the House of Representatives, and Chuck Winder in his official capacity as President Pro Tempore of the Senate, Defendants.

Case No. 1:21-cv-00021-DCN

United States District Court, D. Idaho.

Signed January 22, 2021

Amy L. Marshak, Pro Hac Vice, Annie L. Owens, Pro Hac Vice, Jennifer Safstrom, Pro Hac Vice, Mary B. McCord, Pro Hac Vice, Seth Wayne, Pro Hac Vice, Washington, DC, Elijah Martin Watkins, Wendy Olson, Stoel Rives, LLP, Boise, ID, for Plaintiffs.

A. Dean Bennett, William Gerry Myers, III, Holland and Hart LLP, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

David C. Nye, Chief U.S. District Court Judge

I. INTRODUCTION

This case involves important legal issues related to disability rights, the COVID-19 pandemic, and the format of the ongoing 2021 Idaho State legislative session. Plaintiffs contend that Defendants, by not providing better protective measures for the legislative session, have violated three federal laws: (1) the Petition Clause of the First Amendment to the United States Constitution, (2) Title II of the Americans with Disabilities Act ("ADA"), and (3) the Rehabilitation Act of 1973. Plaintiffs seek one of two accommodations under these laws. They ask that either the in-person measures to prevent the spread of COVID-19 be increased or that they be allowed to participate remotely. Defendants counter that the in-person protective measures are reasonable and that Plaintiffs already have virtual access because they can submit written comments to be considered by the committees of each legislative session. More importantly, Defendants represent that Plaintiffs need only make specific requests to participate remotely and their requests will be approved.

The matter before the Court today is not an adjudication on the merits; rather, Plaintiffs ask the Court to preliminarily enjoin Defendants to provide the accommodations they seek in the form of a temporary restraining order ("TRO"). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). While Plaintiffs may ultimately prevail upon a full adjudication of the merits of their claims, at this time they have not shown a sufficient likelihood of success on the merits or a sufficient likelihood of irreparable harm for this Court to grant their extraordinary, emergency requested relief. Accordingly, the Court DENIES Plaintiffs’ Motion for a TRO. Dkt. 2.¹

II. BACKGROUND

Plaintiffs are organizations that advocate for disability rights, their constituents, and individuals who allege they have disabilities that make them particularly susceptible to severe complications and even death from COVID-19. Plaintiffs suffer from a range of disabling conditions, including quadriplegia, ulcerative colitis, post-traumatic stress disorder, and major depressive disorder. Defendants are the Speaker of the Idaho House of Representatives Scott Bedke (Speaker Bedke), President Pro Tempore of the Idaho Senate Chuck Winder ("Pro Tem Winder"), and the Legislature of the State of Idaho (collectively "the Legislature").

In early December 2020, the Idaho House of Representatives and the Idaho Senate established their respective rules for the 2021 legislative session. As is relevant to this case, the Idaho House of Representatives adopted House Rule 63, which places a duty to supervise various spaces throughout the Idaho Capitol on Speaker Bedke. The House also established House Rule 75, which states that the "rules of parliamentary practice set forth in Mason's Manual of Legislative Procedures shall govern the House in all cases to which they are applicable." Dkt. 18, at 10. Rule 11 of that Manual provides committee chairs with the duty of overseeing committee hearings and meetings. As for the Idaho Senate, it established Senate Rule 5 which placed control of various spaces throughout the Idaho Capitol Building in the hands of Pro Tem Winder. Senate Rule 20(D) states that "any person may attend any hearing of such committee, but may participate in the committee only with the approval of the committee itself." Senate Rule 48 is a corollary to House Rule 75. It also incorporates the rules of parliamentary practice and procedure as set forth in Mason's Manual of Legislative Procedure in Senate proceedings.

In mid-December, the parties commenced to exchange letters on the topic of this lawsuit. On December 14, 2020, Plaintiffs wrote to the Legislature to raise health and safety issues and to request an opportunity to work together on solutions. Speaker Bedke responded on December 21, 2020, enclosing a list of "safety precautions we have already implemented and those we continue to consider." Dkt. 2, at 6. The next day, Pro Tem Winder responded to Plaintiffs’ correspondence, describing the Senate's protocols to ensure that members of the public could enjoy remote and in-person access to the legislative process, stating that "[t]he Idaho Legislature has taken a significant number of steps to protect both legislative members and the public," and explaining the measures taken. Id. On January 4, 2021, Plaintiffs sent a follow-up letter. In it, they requested a modification of the Legislature's policies under Title II of the ADA and Section 504 of the Rehabilitation Act that would allow Plaintiffs to participate fully and safely in the 2021 legislative session. They sought either of the two accommodations that they seek in this lawsuit. Speaker Bedke and Pro Tem Winder both began considering the letter and working on the issues raised in the letter.

Before the Legislature sent a response, Plaintiffs filed this lawsuit and moved for a TRO on the afternoon of January 11, 2021. Dkts. 1, 2. In their motion, Plaintiffs explain that they wish to participate in the 2021 Idaho legislative session and testify regarding issues of special significance to them and their communities. Dkt. 2. They contend that Defendants have implemented a policy for attending and participating in the legislative process that denies basic safeguards necessary to minimize the risk of transmission of COVID-19, thereby violating their fundamental right to petition the government for redress of grievances under the First Amendment and their rights to access a public service under Title II of the ADA and provisions of the Rehabilitation Act. 42 U.S.C. § 12101, et seq. (ADA); 29 U.S.C. §§ 701, et seq. (Rehabilitation Act).

That same day, legislators convened at the Idaho Capitol where the Idaho state legislative session began. The next morning, the Legislature entered a notice that it intended to oppose Plaintiffs’ requested TRO. Dkt. 15. The Legislature filed its Response in which it opposes the TRO on the merits. Dkt. 18. The Legislature also contends that Plaintiffs do not have standing, that all three Defendants are entitled to legislative immunity, and that principles of federalism and separation of powers preclude the Court from providing the requested relief. See generally id. Plaintiffs quickly filed their Reply in the afternoon the next day. Dkt. 20. The matter is now ripe for adjudication.

III. LEGAL STANDARD

A plaintiff seeking a preliminary injunction or a TRO must establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his or her favor, and (4) that an injunction is in the public interest. E.g., CTIA-The Wireless Ass'n v. City of Berkeley , 854 F.3d 1105, 1114 (9th Cir. 2017) ; see also Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., Inc. , 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction and a TRO generally serve the same purpose of "preserv[ing] the status quo ante litem pending a determination of the action on the merits." L.A. Mem'l Coliseum Comm'n v. NFL , 634 F.2d 1197, 1200 (9th Cir. 1980) ; see also Fed. R. Civ. P. 65.

Nevertheless, certain circumstances warrant divergence from the status quo. Preliminary relief may take one of two forms: (1) prohibitory, which as the name indicates, prohibits "a party from taking action and preserves the status quo pending a determination of the action on the merits" and (2) mandatory which "orders a responsible party to take action." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. , 571 F.3d 873, 879 (9th Cir. 2009) (cleaned up).² "A mandatory injunction goes well beyond simply maintaining the status quo pendente lite and is particularly disfavored." Id. (cleaned up). "In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages." Id. (cleaned up).

A key difference between a TRO and a preliminary injunction is the respective duration. A TRO typically does not last for more than 28 days without good cause, while a preliminary injunction may extend until the end of the lawsuit, which could be months, if not years. NAVEX Global, Inc. v. Stockwell , No. 1:19-cv-00382-DCN, 2019 WL 5654988, at *1 (D. Idaho Oct. 31, 2019) (citing Innovation Law Lab v. Nielsen , 310 F. Supp. 3d 1150, 1156 n. 1 (D. Or. 2018) ). It is well-established that whether a preliminary injunction or a TRO should be issued is committed to the sound discretion of the...