Thomas v. Anchorage Equal Rights Commission , 220 F.3d 1134 ( 2000 )

Opinion by Judge McKEOWN; Concurrence by Judge O’SCANNLAIN; Dissent by Judge KLEINFELD

McKEOWN, Circuit Judge:

This is a case in search of a controversy. Several landlords mount a First Amendment free exercise of religion and free speech challenge to the Alaska housing laws prohibiting discrimination on the basis of marital status. We do not address this constitutional question, however, because this pre-enforcement challenge presents a threshold issue of justiciability. No prospective tenant has ever complained to the landlords, let alone filed a complaint against them. Neither the Alaska State Commission for Human Rights nor the Anchorage Equal Rights Commission has ever initiated an investigation into the landlords’ rental practices or commenced a civil enforcement action or criminal prosecution under the challenged laws. No violation of the laws is on the horizon and no enforcement action or prosecution is either threatened or imminent. Indeed, the principal enforcement agencies had never even heard of these landlords before they filed this action. Simply put, at this stage the dispute is purely hypothetical and the injury is speculative. Whether viewed through the lens of standing or ripeness, resolution of the First Amendment issues is premature. Thus, dismissal of this action is required.¹

BACKGROUND

Kevin Thomas and Joyce Baker² (the “landlords”) individually own residential rental properties in Anchorage, Alaska. Both are devout Christians who are committed to carrying out their religious faith in "all. aspects of their lives, including their commercial activities as landlords. Central to their faith is a belief that cohabitation between an unmarried man and an unmarried woman is a sin. The landlords also believe that -facilitating the cohabitation of an unmarried couple is tantamount to committing a sin themselves. Based on this religious belief, the landlords claim that they have refused to rent to unmarried couples in the past and that they intend to continue to do so in the future.

Both the State of Alaska and the City of Anchorage have adopted laws that outlaw certain forms of discrimination in rental housing and prohibit any refusal to rent on the basis of marital status. The Alaska statute makes it unlawful “to refuse to sell, lease or rent ... real property to a person because of ... marital status.” Alaska Stat. § 18.80.240(1), (2). The Anchorage ordinance is parallel in this respect. See Anchorage Mun.Code § 5.20.020(A), (B). The laws further prohibit landlords from inquiring about the marital status of prospective tenants or representing to prospective tenants that property is not available because of the tenants’ marital status. See Alaska Stat. § 18.80.240(3), (5); Anchorage Mun.Code § 5.20.020(C), (E). Finally, the ordinance, but not the state statute, prohibits publication' or advertisement in the leasing of property that indicates a preference based on marital status. See Anchorage MumCode § 5.20.020(G). The Alaska Supreme Court has construed the marital status provisions of the laws to prohibit landlords from refusing to rent their properties to unmarried couples. See Foreman v. Anchorage Equal Rights Comm’n, 779 P.2d 1199, 1202 (Alaska 1989).

The landlords brought this action against Paula Haley, the Executive Director of the Alaska State Commission for Human Rights,; the Anchorage .Equal Rights Commission, and the Municipality of Anchorage, seeking declaratory and in-junctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. They claimed that the threat of enforcement of the marital status provisions of the anti-discrimination laws infringed their First Amendment rights to free exercise of religion and free speech. Specifically, they argued that their religious beliefs precluded them from renting to unmarried couples and that the laws restricted their ability to communicate those beliefs through advertising or by inquiring about the marital status of prospective tenants. On cross-motions for summary judgment, the district court held that the landlords’ claims were justiciable. In a subsequent order, the court concluded that the marital status provisions substantially burdened the landlords’ free exercise rights. The court declared the provisions unconstitutional as applied and permanently enjoined the State and the City from enforcing the provisions against the landlords. A divided panel of this court affirmed, and we voted to consider this matter en banc. See Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692, withdrawn and reh’g en banc granted, 192 F.3d 1208 (9th Cir.1999).

DISCUSSION

This case presents a threshold question of ripeness. The Supreme Court instructs that ripeness is “peculiarly a question of timing,” Regional Rail Reorg. Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), designed to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution. See U.S. Const. art. III. Although ripeness, like other justicia-bility doctrines, is “not a legal concept with a fixed content or susceptible of scientific verification,” Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), the Supreme Court has observed that the doctrine “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction,” Reno v. Catholic Soc.. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). As we noted in Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir.1993), “the ripeness inquiry contains both a constitutional and a prudential component.” We consider each component in turn.

A. Constitutional Component

The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.³ Sorting out where standing ends and ripeness begins is not an easy task. Indeed, because the focus of our ripeness inquiry is primarily temporal in scope, ripeness can be characterized as standing on a timeline. Cf. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (describing mootness as “the doctrine of standing set in a time frame.”) (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). The overlap between these concepts has led some legal commentators to suggest that the doctrines are often indistinguishable. See, e.g., Erwin Chemerinsky, A Unified Approach to Justiciability, 22 Conn. L.Rev. 677, 681 (1990). And, in “measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.” Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L.Rev. 158,172 (1987).

Whether the question is viewed as one of standing or ripeness, the Constitution mandates that prior to our exercise of jurisdiction there exist a constitutional “case or controversy,” that the issues presented are “definite and concrete, not hypothetical or abstract.” Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945). In assuring that this jurisdictional prerequisite is satisfied, we consider whether the plaintiffs face “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement,” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), or whether the alleged injury is too “imaginary” or “speculative” to support jurisdiction. Id. We need not delve into the nuances of the distinction between the injury in fact prong of standing and the constitutional component of ripeness: in this case, the analysis is the same.

We have held that neither the mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the “case or controversy” requirement. See, e.g., San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir.1996). In a somewhat circular argument, the landlords contend that they are presently injured because they must violate the housing laws to remain true to their religious beliefs, even though their beliefs counsel against violating secular law. This argument is essentially another way of saying that the mere existence of a statute can create a constitutionally sufficient direct injury, a position that we have rejected before and decline to adopt now. See id. (“ ‘[t]he mere existence of a statute ... is not sufficient to create a case or controversy within the meaning of Article III.’ ” (quoting Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir.1983))). Rather, there must be a “genuine threat of imminent prosecution.” Id. at 1126.

In evaluating the genuineness of a claimed threat of prosecution, we look to whether the plaintiffs have articulated a “concrete plan” to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged statute. Id. at 1126-27. Applying these three factors here, we conclude that the landlords’ claimed injury-their fear of enforcement or prosecution-fails the constitutional component of the ripeness inquiry.⁴

Turning to the first prong, it is clear that even if “concrete plan” does not mean cast in stone, the Constitution requires something more than a hypothetical intent to violate the law. Thomas and Baker claim that they have refused to rent to unmarried couples in the past, yet they cannot say when, to whom, where, or under what circumstances. They pledge their intent to do so in the future, yet again they cannot specify when, to whom, where, or under what circumstances. A general intent to violate a statute at some unknown date in the future does not rise to the level of an articulated, concrete plan.

In San Diego County, we held that a similarly expressed “intent” to engage in conduct proscribed by the Crime Control Act failed to demonstrate that the claimed injury — the threat of prosecution — was reasonable. Id. at 1126-27. “‘[S]uch “some day” intentions — without ... specification of when the some day will be — do not support a finding of the “actual or imminent” injury that our cases require.’ ” Id. at 1127 (quoting Lujan, 504 U.S. at 564, 112 S.Ct. 2130). The landlords’ expressed “intent” to violate the law on some uncertain day in the future — if and when an unmarried couple attempts to lease one of their rental properties — can hardly qualify as a concrete plan. Because their free speech claims are similarly contingent on such “some day” intentions and are inextricably linked with the prohibited conduct, they suffer the same infirmity.⁵

As for the second factor, a specific threat of enforcement, the record is devoid of any threat — generalized or specific directed toward Thomas and Baker. Although we do not always require plaintiffs to await arrest or prosecution before entertaining a challenge to the constitutionality of a statute, see Babbitt, 442 U.S. at 298, 99 S.Ct. 2301, the threat of enforcement must at least be “credible,” not simply “imaginary or speculative.” Id. “When plaintiffs ‘do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,’ they do not allege a dispute susceptible to resolution by a federal court.” Id. at 298-99, 99 S.Ct. 2301 (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). No action has ever been brought against the landlords to enforce the marital status provision. There has been no specific threat or even hint of future enforcement or prosecution. Nor could there be, as neither Thomas nor Baker can identify any tenants turned away due to their marital status and no prospective tenant has ever complained to the state or municipal authorities, formally or informally. In fact, appellant Haley never heard of either Thomas or Baker before this action was filed. The threat of enforcement based on a future violation — which may never occur — is beyond speculation.

The third factor to be considered is the history of enforcement under the statute. In the twenty-five years that these housing laws have- been on the books, the record does ' not indicate even a single criminal prosecution, and of the two reported instances of civil enforcement, only one raised the freedom of religion issue presented here. See Swanner v. Anchorage Equal Rights Comm., 874 P.2d 274 (Alaska 1994) (holding that enforcement of the anti-discrimination provisions did not violate right to free exercise of religion); Foreman v. Anchorage Equal Rights Comm., 779 P.2d 1199 (Alaska 1989) (holding that the marital status provision was intended to protect unmarried couples).⁶ Thése enforcement actions stemmed from complaints filed by actual, prospective tenants. Unlike other cases in which we have held that the government’s “active enforcement” of a statute rendered the plaintiffs fear of prosecution reasonable, Adult Video Ass’n v. Barr, 960 F.2d 781, 784 (1992), rev’d on other grounds, 509 U.S. 917, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993), adopted in pertinent part sub nom. Adult Video Ass’n v. Reno, 41 F.3d 503 (9th Cir.1994), here the record of past enforcement is limited, was civil only, not criminal, and in any event was in each case precip^ itated by the filing of complaints by potential tenants.⁷ In Swanner and Foreman, the enforcement agency was faced with real people involved in a real controversy,, not hypothetical requests for an advisory opinion. Indeed, the agencies are now surely aware of these landlords and still have launched no enforcement proceedings. At most, the past prosecution factor is a neutral one in this case.

Considering the applicable factors, we hold that any threat of enforcement or prosecution against the landlords in this case—though theoretically possible—is not reasonable or imminent. The asserted threat is wholly contingent upon the occurrence of unforeseeable events: whether the landlords retain their rental properties; whether an unmarried couple will seek' to lease available property; whether the couple, having been denied tenancy, will file a complaint or communicate the alleged discrimination to the enforcement agencies; and whether the enforcement agencies will decide to prosecute. The landlords do not at this time confront “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement,” Babbitt, 442 U.S. at 298, 99 S.Ct. 2301, and thus this “dispute is not justiciable, because it is not ripe for court review.”. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).

B. Prudential Component

Even were we to conclude that Thomas and Baker present a ripe case or controversy in the constitutional sense, we would decline to exercise jurisdiction under the prudential component of the ripeness doctrine. In evaluating the prudential aspects of ripeness, our analysis is guided by two overarching considerations: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. 1507; see also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040-41 (9th Cir.1999) (en banc); San Diego County, 98 F.3d at 1132.

The manner in which the intersection of marital status discrimination and the First Amendment is presented here, devoid of any specific factual context, renders this case unfit for judicial resolution. The record before us is remarkably thin and sketchy, consisting only of a few concluso-ry affidavits: “A concrete factual situation is necessary to delineate the boundaries of what conduct the government may or may not regulate.” San Diego County, 98 F.3d at 1132. And yet, the landlords ask us to declare Alaska laws unconstitutional, in the absence of any identifiable tenants and with no concrete factual scenario that demonstrates how the laws, as applied, infringe their constitutional rights. This case is a classic one for invoking the maxim that we do not decide “ ‘constitutional questions in a vacuum.’ ” American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 511 (9th Cir.1992) (quoting W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967) (per curiam)).

We disagree with the landlords that this case is purely legal. Unlike the situation in Abbott Laboratories, in which the parties agreed that the constitutionality of the challenged regulation boiled down to a question of congressional intent, the issues presented in the landlords’ pre-enforcement challenge here are not purely legal. See San Diego County, 98 F.3d at 1132 (stating that case “devoid of any factual context whatsoever” is not fit for review); American-Arab, 970 F.2d at 510-11 (stating that case “with many unknown facts” and a “sketchy record” is not fit for review). Just as a challenge involving the Sixth Amendment right to counsel was rejected on ripeness grounds in Portman because the “entire argument about the effect of the ... statute rests upon hypothetical situations and hypothetical clients,” 995 F.2d at 903, so too the landlords’ claim rests upon hypothetical situations with hypothetical tenants. Similar to the pre-enforcement challenge to the constitutionality of gun control legislation in San Diego County and the challenge to the constitutionality of certain immigration provisions in American-Arab, the First Amendment challenge presented in this case requires an adequately developed factual record to render it ripe for our review. That record, at this point, does not exist.⁸

Turning to the second consideration— the hardship to the parties if-jurisdiction is withheld—the landlords have not persuaded us that any hardship will result from deferring resolution of this matter to a time when a real case arises. The hardship analysis of our ripeness jurisprudence dovetails, in part, with the constitutional consideration of injury. Although the constitutional and prudential considerations are distinct, the absence of any real or imminent threat of enforcement, particularly criminal enforcement, seriously undermines any claim of hardship. Moreover, by being forced to defend the housing laws in a vacuum and in the absence of any particular victims of diserim-ination, the State and the City would suffer hardship were we to adjudicate this case now.

Prudential considerations of ripeness are discretionary, and here we exercise our discretion to decline jurisdiction over a dispute that is too remote. At this juncture, neither landlord has been charged with violating either the statute or the ordinance. Nor is there any reasonable or imminent threat of enforcement. If and when an enforcement action is brought against Thomas or Baker, that will be the appropriate time to raise the constitutional arguments. Postponing judicial review to a time when the landlords actually face an enforcement proceeding, or at least an imminent threat of one, poses insufficient hardship to justify the exercise of jurisdiction now.

CONCLUSION

Because this action is not ripe for judicial review, we vacate the district court’s decision and remand this case to the district court with the instruction to dismiss the action without prejudice.

1 . Contrary to the view expressed in the concurrence, our decision neither shuts the door to pre-enforcement challenges to laws that allegedly infringe upon constitutional rights; nor does it establish a new approach to justi-ciability,-which under our precedent requires a balancing of several factors. ‘ Rather, our decision remains true to our precedent, all of which remains good law.

2 . Gary Baker, Joyce Baker’s husband, is a party to this action but did not participate in this appeal.

3 . The "irreducible constitutional minimum of standing contains three elements:” (1) injury in fact; (2) causation; and (3) likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

4 . The penalties for violating the Alaska statute are both criminal and civil in nature. Any individual who "willfully engages in an unlawful discriminatory conduct prohibited by this chapter” is guilty of a misdemeanor and may upon conviction be subject to a $500 fine or up to 30 days in jail. Alaska Stat. § 18.80.270. There are no criminal penalties for a violation of the ordinance. See Anchorage Mun.Code § 5.30.070 (criminal penalties limited to willful interference with commission’s investigation). The civil sanctions for violating the statute and the ordinance are identical. The Commission may seek injunc-tive relief, initiate' an investigation, hold a hearing, and/or issue an appealable compliance order. See Alaska Stat. § 18.80.100-.145; Anchorage Mun.Code § 5.30.010-090.

5 . The landlords also contend that the City’s prohibition on any advertising referencing a marital status preference violates their right to free speech. See Anchorage Mun.Code § 5.20.020(G). The landlords, however, have never advertised or published such a reference in the past in connection with their rental real estate activities. Nor have they expressed any intent to do so in the future. On this record, the alleged free speech violation does not rise to the level of a justiciable .controversy.

6 . Notably, the opinion does not reveal that the Foremans' refusal to comply with the laws was premised on their religious beliefs. Moreover, appellant Haley states in her affidavit that she was employed as a staff attorney with the Anchorage Equal Rights Commission at the .time the Foreman case was pending and, based on her familiarity with the case, attests that it did not involve the freedom of religion issues raised by the landlords here.

7 . We grant Thomas and Baker’s Motion Requesting the Court of Appeals to Take Judicial Notice of an administrative complaint filed with the Alaska State Commission for Human Rights in January 1997. See Alaska State Comm. for Human Rights ex rel. Kristiann Kutzler v. Alaska Pacific Univ., ASCHR No. C-96-010 (Alaska State Commission for Human Rights). The complaint apparently involves married student housing at a private school. Although we grant the motion, the documents are of little import to the outcome of this appeal. All we know is that a complaint was filed. We have no record of actual facts, the course of the proceeding, if any, or the ultimate disposition, if any. And, all the documents proffered are now more than three years old.

8 . To highlight one example, it is unclear whether the landlords' view on appropriate tenants extends to female roommates, married individuals not living with their spouses, a brother and a sister, a disabled female with a male caretaker, a single father with a female nanny, and so on. Without a more fully developed record, any decision would be wholly advisory. We cannot judge the outer bounds of the application of our decision without knowing the particular contours of the case or controversy.