In The United States District Court For The District of Alaska
In The United States District Court For The District of Alaska
In The United States District Court For The District of Alaska
Stuart
Assistant Municipal Attorney
Municipal Attorney’s Office
P.O. Box 196650
Anchorage, Alaska 99519-6650
Phone: 907-343-4545
Fax: 907-343-4550
Email: uslit@muni.org
the Complaint under the federal abstention doctrine, or in the alternative, to stay these
proceedings pending local and state court proceedings. The facts in support of this motion
This case involves the investigation by the Anchorage Equal Rights Commission
Soup Kitchen d/b/a Downtown Hope Center. Plaintiff challenges the validity of provisions
of Title 5 of the Anchorage Municipal Code, both facially and as-applied, under the United
The AERC investigation of the discrimination complaint against the Hope Center is
open and ongoing, and AERC has rendered no decision nor undertaken any enforcement
action against the Hope Center. AERC’s determination regarding the discrimination
complaint, if decided in the Hope Center’s favor, would render Plaintiff’s claims in this
action moot, or at least substantially change the nature of its alleged claims before the court.
In addition, the Hope Center has a right to appeal from the AERC proceeding directly to
the Alaska Superior Court for consideration of challenges to AERC’s jurisdiction as well
adjudication of these claims by the Alaska Superior Court, if decided in the Hope Center’s
favor, would substantially alter Plaintiff’s claims before the federal court and render some
The Younger 1 doctrine of federal abstention requires the court to abstain from
further proceedings in this action in order to avoid interference with pending state
1
Younger v. Harris, 401 U.S. 37 (1971).
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 2 of 9
accommodations and sex- and gender identity-based discrimination. Abstention is
appropriate pursuant to the Younger doctrine because: (1) there is an ongoing local
adjudicative proceeding, with an attendant right of appeal to state court, that (2) implicates
important state interests, and which (3) provides the Hope Center with an adequate
II. FACTS
106. Section 17.02 of the Anchorage Municipal Charter states that “[t]he assembly
by ordinance shall establish an equal rights commission and prescribe its
duties. The commission shall appoint its principal executive officer with the
approval of the mayor. The principal executive officer shall serve at the
pleasure of the commission.”
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 3 of 9
C. AERC Proceedings are Pending with No Decision or Enforcement
Action.
14. The individual who sought access in January 2018 nonetheless filed a
complaint with the Anchorage Equal Rights Commission (“Commission”),
accusing the Hope Center of discriminating on the basis of sex and gender
identity, despite clear evidence of the nondiscriminatory basis for that denial.
15. Although the Hope Center clearly did not violate the code, the Commission’s
Executive Director did not dismiss the complaint early on but continues to
harass the Center through a now nearly 6 month “investigation.” 2
Issues in the AERC proceedings are twofold: (1) whether there is substantial
evidence of discrimination by the Hope Center, which is a factual issue for AERC, and (2)
whether the Hope Center is a public accommodation under municipal code such that the
exceptions for homeless shelters found in two other code provisions do not apply. The two
code sections that contain exceptions for homeless shelters are (1) the Fair Housing Act at
AMC 5.25.030A, and (2) AMC 5.20.020 – Unlawful practices in the sale, rental or use of
real property (which directly incorporates the exceptions described in the Fair Housing
Act). However, the municipal code provision concerning public accommodations found at
AMC 5.20.050 does not contain an exception for homeless shelters. The still-pending
AERC complaint was filed under the public accommodation code. See, Exhibit B hereto
2
For clarification and background, the second complaint AERC filed against the Hope Center and its counsel has
been settled and administratively closed. See, Complaint ¶ 153 (reference to second AERC complaint); Exhibit A
(Closure document regarding AERC Complaint No. 18-167).
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 4 of 9
According to the Complaint:
181. Along with the specific exclusion from the ordinance, the Hope Center is
also not a place of public accommodation.
The Plaintiff argues that the Hope Center is not a public accommodation under Municipal
accommodation falls under AERC’s mandate to investigate allegations and apply the
municipal code, with rights of appeal to the state superior court. The definition of “public
accommodation” under current Anchorage Municipal Code is distinct from state and
federal definitions of public accommodations and represents a unique legal question that
III. ARGUMENT
Beginning with its decision in Younger v. Harris, 401 U.S. 37 (1971), the Supreme
Court has limited the ability of federal courts to enjoin or otherwise interfere with ongoing
Commission v. Garden State Bar Association, 457 U.S. 423 (1982), have further expanded
and clarified this body of law, often referred to as the Younger doctrine of abstention.
Federal courts, including the Ninth Circuit, have adopted a three-part test derived from the
Middlesex decision for determining whether abstention is appropriate under Younger. See
e.g., M&A Gabaee v. Community Redevelopment Agency of the City of Los Angeles,
419 F.3d 1036 (9th Cir. 2005). Under this test, abstention is generally appropriate where
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 5 of 9
(1) there are ongoing state adjudicative proceedings, which (2) implicate important state
interests, and which (3) provide an adequate opportunity to raise the plaintiff’s federal
claims. Id. at 1039. As discussed herein, the matter presently before the Court meets all
three prongs of the Middlesex test and abstention under Younger is appropriate.
The AERC investigation is a civil enforcement proceeding, similar to the state bar
disciplinary proceedings at issue in Middlesex, and therefore among the specific categories
Jacobs, 571 U.S. 69 (2013). The Hope Center concedes the underlying AERC proceeding
is still pending and no decision has been rendered in the matter. See, Complaint ¶¶ 14, 15.
satisfied, “then a federal court action that would enjoin the proceeding, or have the practical
effect of doing so, would interfere in a way that Younger disapproves.” Gilbertson v.
state interests in eliminating sex and gender identity-based discrimination. The state’s
interests in this matter closely resemble the state interests in Ohio Civil Rights Commission
v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986). In that case, a sectarian school was
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 6 of 9
discrimination and unsuccessfully sought a federal injunction against the pending
proceeding on First Amendment grounds. Id. In holding that Younger prevented the district
proceedings on those grounds, the Supreme Court emphasized the state’s important interest
in rooting out employment discrimination. Id. Here, the state interest in eliminating sex-
iii. The Hope Center has an adequate opportunity raise its federal claims
before the AERC and/or on appeal to the Alaska Superior Court.
The final prong of the Middlesex test requires that the federal court plaintiff have a
meaningful opportunity to present their federal claims in the underlying state proceedings.
Notably, even where it is uncertain whether a federal court plaintiff could adequately raise
their federal claims in state administrative proceedings, the Supreme Court has held that
the third Middlesex factor is satisfied if the federal claims could be raised in a state court
appeal of any state administrative orders. Ohio Civil Rights Comm’n, 477 U.S. at 619. The
Ninth Circuit has held that opportunity for judicial review is inadequate under the Younger
abstention doctrine “only when state procedural law bars presentation of the federal
claims.” Hirsh v. Justices of Supreme Court of State of Cal., 67 F.3d 708, 713 (9th Cir.
before the AERC. See e.g., Middlesex, 457 U.S. at 435-436 (Rejecting argument that
federal court plaintiff lacked opportunity to raise constitutional challenges before local
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 7 of 9
ethics committee because there was no indication the committee “would have refused to
consider a claim that the rules which they were enforcing violated federal constitutional
guarantees.”); AMC 5.10.010 (“It is the express intent of this title to guarantee fair and
equal treatment under law to all people of the municipality, consistent with federal and
association and the free exercise of religion.”) (emphasis supplied); AMC 5.60.010.B (“In
making a determination, the executive director may consider analogous guidelines and
Housing and Urban Development, and state and local enforcement agencies, as well as
Furthermore, the Hope Center enjoys an explicit right of appeal under Title 5 of the
Anchorage Municipal Code to obtain judicial review by the Alaska Superior Court of any
Thus, pursuant to Ohio Civil Rights Commission, even if Hope Center’s constitutional
challenges could not be addressed by the AERC, the Hope Center clearly still has an
“adequate opportunity” under the Younger doctrine to raise those challenges on appeal to
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 8 of 9
IV. CONCLUSION
Abstention by the court is required by the Younger doctrine in this matter because:
(1) there is an ongoing local adjudicative proceeding, with an attendant right of appeal to
state court, that (2) implicates important state interests, and which (3) provides the Hope
Center with an adequate opportunity to raise its federal claims. Dismissal of the Hope
Center’s complaint is the appropriate relief. Potrero Hills Landfill, Inc. v. County of
Solano, 657 F.3d 876, 889 (9th Cir. 2011); San Remo Hotel v. City and Cnty. of San
Francisco, 145 F.3d 1095, 1103 (9th Cir. 1998). In the alternative, the Municipality
respectfully requests the court stay all further proceedings in this matter pending a final
Jonathan A. Scruggs
Ryan J. Tucker
Sonja Redmond
Kevin G. Clarkson
David Cortman
Katherine Anderson
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Case 3:18-cv-00190-SLG Document 43 Filed 11/21/18 Page 9 of 9
Mm1icipality of' i\11cho1~age
li:t? \\'~,~1 Chl\ .\n·rn1,.·. Suik l !O Tcicph()rh~: (D07l ;V!-:).:'J'.;{i_.~,, Fn.x: \!fil7) '.2_.:+D-7!t28., TrY: dial 711
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John B. Thorsness
Clapp, Peterson, Tiemessen, Thorsness & Johnson, LLC
711 I-! Street, Suite 620
Anchorage, AK 99501-3442
Re: Pamela Basler, Executive Director, AERC et. al. v. Downtown Hope Center and/or
Brena Bell & Clarkson
AERC Complaint No.: 18-167
CLOSURE
PURSUANT to Anchorage Municipal Code, Title 5, and the powers of the Commission
delegated to the Executive Director, the above-captioned case is closed for the following reason:
G:\Equa! Rights\l"ilneMatters\Pamela Basler, Executive Director, AERC ct al. v. Do\vntO\VJ1 l·I.ope Center andrn. .or
Brena Bell & Clarkso\Closure Final.docx
MOA Exhibit A
Case 3:18-cv-00190-SLG Document 43-1 Filed 11/21/18 Page 1Page
of 1 1 of 1
Complaint Number: l 8-04 l Filing Date: 21112018
Mailing Address: 240 East 3rd Ave City, State: Anchorage, Alaska Zip: 99517
*************************************************************************************.************************
If this is an employment complaint, does this employer have more than fifteen (i 5) employees? 0Yes 0 No f8J NIA
****•*********************************************************************************************************
DISCRIMINATED AGAINST ME ON THE BASIS OF MY:
0Racc 0 Religion IZJ S;;x 0 Color 0 National Origin 0 Disability 0 Sexual Orientation 0 Age 0 rvlarital Status IZJ Gender Identity 0 Rclaliation
··················································································*···························
DATE OF MOST RECENT OR CONTINUING DISCRIMINATION: January 29, 20 l 8
**********************************************************************************************************~***
STATEMENT OF DISC!UMINATION:
l allege I have been discriminated against in violation of the following statute prohibiting unlawful discriminatory practices in places of public
accommodation, Anchorage Municipal Code§ 5.20.050.
Respondent operates a shelter in Anchorage, Alaska. On two occasions, most recently on January 29, 2018, Respondent refused me access to
its sheller because of my sex and gender identity.
r allege the following discriminatory actions: Denial of services/ Sex, Gender Identity
!. l am female and transgender thus l belong to a protected class.
::?. On January 29, 2018, and one other occasion I was denied full and equal enjoyment of Respondent's services, goods or facilities.
3. Members outside of my protected class were not treated in the same or similar manner.
J WILL advise the Commission if J change my address or telephone number(s); and l will cooperate fully in the processing of my
discrimination complaint
I SWEAR OR AFFIRM I have read the above complaint and it is true to the best of my knowledge, information and belief.
MOA
Case 3:18-cv-00190-SLG Document 43-2 Filed 11/21/18 Page 1 ofExhibit
1 B
Page 1 of 1
Ryan A. Stuart
Assistant Municipal Attorney
Municipal Attorney’s Office
P.O. Box 196650
Anchorage, Alaska 99519-6650
Phone: 907-343-4545
Fax: 907-343-4550
Email: uslit@muni.org
The Court having reviewed Defendants’ Motion for Federal Abstention, and any
GRANTED.
CERTIFICATE OF SERVICE
I certify that on 11/21/2018, a copy of the
foregoing document was served on the following:
Jonathan A. Scruggs
Ryan J. Tucker
Sonja Redmond
Kevin G. Clarkson
David Cortman
Katherine Anderson
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Case 3:18-cv-00190-SLG Document 43-3 Filed 11/21/18 Page 2 of 2