Free Supplement/Amendment - District Court of Colorado - Colorado

Case 1:03-cv-02320-PSF-MJW

Document 98

Filed 06/07/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2320-PSF-MJW MARK JORDAN, Plaintiff, v. ROBERT A. HOOD, Warden, ADX Florence, MARY H. SOSA, Acting ISM, ADX Florence, in their official capacities, and FEDERAL BUREAU OF PRISONS, Defendants. PLAINTIFF'S SUBMISSION OF SUPPLEMENTAL AUTHORITY Plaintiff Mark Jordan ("Jordan"), through his undersigned counsel, respectfully submits the attached supplemental authority pertinent to the issue of the appropriate remedy in this case. This case has been brought as a facial First Amendment challenge to the scope of a federal regulation, 28 C.F.R. § 540.71(a)(2). In the context of a constitutional challenge of this nature, the United States Supreme Court has recently clarified the authority ­ and indeed the propriety ­ of a United States District Court imposing a remedy tailored to the specific applications of a statute (or regulation) that offend the Constitution, while leaving other nonoffending applications in force. This approach is presented as a preferable alternative to a court's being compelled to nullify and enjoin the entire statute or regulation in all its potential applications due to a constitutional defect or overbreadth in some of them. The referenced supplemental authority is the unanimous opinion of the Supreme Court in Ayotte v. Planned Parenthood of Northern New England, 126 S.Ct. 961 (2006) (copy attached).

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Case 1:03-cv-02320-PSF-MJW

Document 98

Filed 06/07/2006

Page 2 of 3

The case involved a facial constitutional challenge to a New Hampshire statute requiring parental notification for minors seeking an abortion. The basis of the challenge was the absence of a "health exception" excusing young women from the statutory mandate in the event of medical emergencies. Id. at 964. While the Court reaffirmed the constitutional necessity of a "health exception" ­ Id. at 967 ­ it held that "an injunction prohibiting unconstitutional applications" of the statute would be a sufficient remedy unless it could be determined that the legislature would have preferred no statute at all to one so restricted in application. Id. at 969 (emphasis added), 968. In the present case, Jordan's pending Motion for Partial Summary Judgment suggests what he believes to be the principal three applications in which 28 C.F.R. § 540.71(a)(2) offends the First Amendment. applications. Respectfully submitted this 7th day of June, 2006. Consistent with Ayotte, this Court may tailor its remedy to those

s/ Edward T. Ramey Edward T. Ramey ATTORNEYS FOR PLAINTIFF Isaacson Rosenbaum P.C. 633 17th Street, Suite 2200 Denver, CO 80202 Phone: 303/256-3978 Fax: 303/256-3152 E-mail: [email protected]

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Case 1:03-cv-02320-PSF-MJW

Document 98

Filed 06/07/2006

Page 3 of 3

CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on this 7th day of June, 2006, I electronically filed a true and correct copy of the foregoing PLAINTIFF'S SUBMISSION OF SUPPLEMENTAL AUTHORITY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: ([email protected]) William G. Pharo, Esq. United States Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 s/ Jayne M. Wills Jayne M. Wills

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