Thai Meditation Association of Alabama, Inc. et al v. City of Mobile, Alabama et al

MOTION for Leave to File Sur-Reply in Opposition to Defendants' Motion for Summary Judgment

S.D. Ala.December 11, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA THAI MEDITATION ASSOCIATION OF ALABAMA, INC., An Alabama Domestic Not-For-Profit Corporation, SIVAPORN NIMITYONGSKUL, VARIN NIMITYONGSKUL, SERENA NIMITYONGSKUL, and PRASIT NIMITYONGSKUL, Plaintiffs, vs. CITY OF MOBILE, ALABAMA, Defendant. Civil No. 1:16-cv-00395-CG-MU PLAINTIFFS’ MOTION FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTAND INCORPORATED BRIEF Plaintiffs Thai Meditation Association of Alabama, Inc., Sivaporn Nimityongskul, Varin Nimityongskul, Serena Nimityongskul, and Prasit Nimityongskul respectfully move this Honorable Court pursuant to Federal Rule of Civil Procedure 7 and General Local Rule 7 for leave to file a sur-reply in opposition to Defendant’s Motion for Summary Judgment and in support thereof state: 1. On December 1, 2017, the parties filed Reply Briefs in support of their cross- motions for summary judgment. 2. Defendant’s Reply Brief in Support of Motion for Summary Judgment (Dkt. #104), addressed Plaintiff’s arguments with respect the Alabama Religious Freedom Amendment (“ARFA”), Alabama Constitution art. I, § 3.01 (Count VI of the Complaint) and asserted: Case 1:16-cv-00395-CG-MU Document 109 Filed 12/11/17 Page 1 of 6 2 “Specifically, Plaintiffs’ interpretation of ARFA would lead to an application violative of the Establishment Clause,” Dkt. #104 at 32, relying on the concurring opinion of one Supreme Court Justice and contrary to the Court’s other holdings. This is the first time that Defendant has questioned the constitutionality of the Alabama Religious Freedom Amendment. 3. Defendant raised its argument regarding the ARFA for the first time in its reply brief, and Plaintiffs should have an opportunity to respond to it. “Arguments raised for the first time in a reply brief are not properly before the reviewing court.” United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (citing United States v. Benz, 740 F.2d 903, 916 (11th Cir. 1984)). “Where a party does raise new grounds in its reply, the Court may . . . permit the non-moving party additional time to respond to the new argument.” International Telecomms. Exch. Corp. v. MCI Telecomms. Corp., 892 F. Supp. 1520, 1531 (N.D. Ga. 1995). 4. Plaintiffs will argue that, if the Court decides to address Defendant’s new argument, it should reject the challenge to the constitutionality of the ARFA. The ARFA does not violate the Establishment Clause, and there is no reason to heed Defendant’s call to change the text of the State Constitution. Defendant’s argument regarding ARFA is nearly identical to constitutional challenges unsuccessfully levied against the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq., and rejected by the Eleventh Circuit in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1240 (11th Cir. 2004) (“We turn to Surfside’s contention that RLUIPA impermissibly elevates religious in a manner contravening the Establishment Clause.”), as well as the United States Supreme Court in Cutter v. Wilkson, 544 U.S. 709, 715 (2005). 5. Defendant further states that the Religious Freedom Restoration Act (“RFRA”) was struck down by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), and implies Case 1:16-cv-00395-CG-MU Document 109 Filed 12/11/17 Page 2 of 6 3 that this was done on First Amendment grounds. (Dkt. #104 at 32.) Neither RFRA nor RLUIPA has been held to violate the Establishment Clause, and the concurring opinion of Justice Stevens was his alone, see 521 U.S. at 536; Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) (“In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment.” (emphasis added)). RFRA remains the law as applied to the Federal Government. See Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2759 (2014) (“Since RFRA applies in these cases . . . “). The State of Alabama has the ability to provide greater protections for religious freedom, and is not constrained by the limitations on Congress’ authority that were at issue in City of Boerne. 6. The protections of ARFA are not unlimited, as the Defendant suggests. Rather, the legislative findings of ARFA states that courts should “strik[e] sensible balances between religious liberty and competing governmental interests . . . .” ALA. CONST. § 3.01(II)(5). The Alabama courts would not have to stretch in order to interpret “burden” in such a sensible way. When the federal RFRA was first introduced, it did not contain the qualifier “substantial” before “burden,” and yet no one thought that the statute freed religion from even minimal regulation. RFRA was always conceived as a return to the general balancing approach that prevailed before Employment Division v. Smith, and under that approach the courts scarcely extended free exercise protection to every minimal regulatory effect on religion. Like its federal predecessor, ARFA is explicit in its attempt to strike “sensible balances” between religious liberty and governmental interests. The Alabama courts should therefore interpret ARFA sensibly. This prescription for interpretation does not mean that the standard for a burden triggering ARFA's protection must be stiff or high. Laws and regulations can restrict religious activity in a variety of ways that are more than minimal, as we discuss in the next section. Thomas C. Berg & Frank Myers, The Alabama Religious Freedom Amendment: An Interpretive Guide, 31 CUMB. L. REV. 47, 69 (2000) (footnotes omitted). The fact that the burden standard in Case 1:16-cv-00395-CG-MU Document 109 Filed 12/11/17 Page 3 of 6 4 ARFA is not “stiff or high” does not mean that the Court cannot sensibly balance the competing interests.1 7. Further, Defendant must file a notice with the state Attorney General advising him of the constitutional challenge in this case, but has not done so. Federal Rule of Civil Procedure 5.1 provides that constitutional challenges necessitate the fil[ing of] a notice of constitutional question stating the question and identifying the paper that raises it, if: . . . (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and (2) serve the notice and paper on . . . the state attorney general if a state statute is questions - either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. FED. R. CIV. P. 5.1(a). This Court has stated that a party’s failure to file a notice pursuant to Rule 5.1 when calling into question the constitutionality of a statue, or, in this case a section of the State Constitution, is an “important procedural error.” Kirksey v. Schindler Elevator Corp., Civ. No. 15-0115, 2016 WL 3189242 at *20 n.37 (S.D. Ala. June 7, 2016) (Defendants’ argued that the Alabama Wrongful Death Act was unconstitutional as applied to the facts of the case). Certification by the Court “appears to be mandatory.” Id. 8. Even absent the Defendant’s filing of the required notice, Rule 5.1(b) provides: “The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned.” FED. R. CIV. P. 5.1(b). After this notification, “Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may 1 A similar standard exists under the New York State Constitution. Article I, section 3 of that State’s constitution requires a court to consider the interest advanced by the regulation that imposes a burden on religious exercise (including an incidental burden), and then balance the respective interests to determine whether such burden is justified. Catholic Charities of the Diocese of Albany v. Serio, 7 N.Y.3d 510 (2006), cert. denied, 552 U.S. 816 (2007). Case 1:16-cv-00395-CG-MU Document 109 Filed 12/11/17 Page 4 of 6 5 reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.” FED. R. CIV. P. 5.1(c). 9. Defendant’s challenge lacks merit, and if the procedural requirements were adhered to, Plaintiffs would have addressed the City’s arguments. Since the City failed to raise any such issue (contrary to the federal rules) until reply briefs were filed, Plaintiffs have now lost such opportunity. WHEREFORE, Plaintiffs Thai Meditation Association of Alabama, Inc., Sivaporn Nimityongskul, Prasit Nimityongksul, Varin Nimityongskul and Serena Nimityongskul hereby request that this Honorable Court grant Plaintiffs leave to file a sur-reply to fully address Defendant’s new argument raised for the first time in their reply brief; and for such other and further relief as the Court deems just. Dated: December 11, 2017 Respectfully submitted, /s/ Blair Lazarus Storzer STORZER & ASSOCIATES, P.C. Roman P. Storzer, admitted pro hac vice Blair Lazarus Storzer, admitted pro hac vice 1025 Connecticut Ave., N.W. Suite 1000 Washington, D.C. 20036 Tel: 202.857.9766 JOHN LAWLER, ESQ. Post Office Box 47 Mobile, Alabama 36601 Tel: 251-432-8861 Attorneys for Plaintiffs Case 1:16-cv-00395-CG-MU Document 109 Filed 12/11/17 Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document through the Court’s electronic filing system on December 11, 2017: Michael D. Strasavich Taylor B. Johnson Burr & Forman, LLP P.O. Box 2287 Mobile, AL 36652 /s/ Blair Lazarus Storzer Blair Lazarus Storzer Attorney for Plaintiffs Case 1:16-cv-00395-CG-MU Document 109 Filed 12/11/17 Page 6 of 6