Free Motion to Dismiss - District Court of California - California

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EDMUND G. BROWN JR. Attorney General of the State of California CHRISTOPHER E. KRUEG ER Senior Assistant Attorney Gene ral STEPH EN P. ACQ UISTO Supervising Deputy Attorney General JEFFREY I. BEDELL, State Bar No. 232287 Deputy Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244 -2550 Telephone: (916) 322-6 103 Fax: (916) 324-8835 Email: [email protected]

Attorneys for Defendants Arnold Schwarzenegger, in 9 his official capacity as Governo r of the State of California; Edmund G. Brown Jr., in his official 10 capacity as Attorney General of the State of California; and, Jack O' Connell, in his official capacity as the II California State Superintendent of Public Instruction 12 13 14 15 16 17 Plaintiffs, 18 CALIFORNIA EDUCATION COMMITTEE, LLC an d PRISCILLA SCHREIBER, 07 CV 2246 BTM (WMC) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISM ISS COMPLAINT BY THE STATE DEFENDANTS [Fed. R. Civ. P. Rules 12(b)(1), (6)] Hearing Date: Time: Courtroom: Judge: February 15, 2008 II :00 a.m. 15 The Honorable Barry Ted Moskowitz IN THE UNITED STATES DISTRICT COURT FOR THE SOUTH ERN DISTRICT OF CALIFORNIA

v.
19 20 21 22 23 24 25 26 27 28
Memorandum of P & A In Support of Motion to Dismiss

ARNOLD SC HWARZENEGGER, in hi s official capacity as Governor of the State of California; EDM UND G. BROWN, JR., in his official capacity as Attorney General of the State of California; JACK O'CONNELL in his official capacity as California Superintendent of Public Ins truction; and DO ES 1 through 20 . inclusive, Defendants.

[Oral Argument Not Required]

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TABLE OF CONTENTS Page I 2
3

2
3 I. INTRODUCTION 4 II. FACTUAL AND STAT UTORY BACKGROUND 5 6 7 8 A.
B.

California Penal Code Prohibiting "Hate Crim es" California Education Code Prohibiting Discrimination In Schools I. 2. Non-Sub stantive Amendments of Education Code by SB 777 Substantive Amendments of Education Code by SB 777

4 4 5 6 6 7 7 7 8 8 9 9 12 12

9 Ill. ALL EGATIONS OF THE COMPLAINT l O A. Facts Alleged in the Complaint Causes of Action and Prayer for Relief

11

B.

12 IV. LEGAL ARGUMENT
13

A.

Legal Standards Applicable to Rule l2(b) Motion 1. 2. Rule 12(b)(1) Rule 12(b)(6)

14 15 16 17 18 19 B.

The Complaint Must Be Dism issed Because No Ripe Articl e III "Case or Controversy is Presented I. 2.
3.

This Action Fails to Satis fy the Constitutional Component of Ripeness This Action Fails to Satisfy the Prudential Component of Ripeness This Action Is Not Ripe Even Under the Relaxed Standards Appl ied to Alleged Infringement of the First Amendment

20
21 C.

22
23

The Complaint Fails to State a Claim Against the Governor, the Attorney General, and, in part, the State Superintendent Because of Eleventh Amendment Immunity I. 2. The Attorney General Is Immune From Suit Because of the Eleventh Amendment

14 15

24 The Governor is Immune From Suit Because of the Eleventh Amendment . 17 The State Superintendent of Public Education is Immune From Suit Chall enging the Penal Code Because of the Eleventh Amendment 18 19 25
3.

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27

D.

CEC ' s Second Cause of Action Is Barred Under the Eleventh Amendment and Penhurst St. Sch. & Hasp . v Halderman

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TABLE OF CONTENTS (continued) Page 2 E. The Court Should Decline to Exercise Supplemental Jurisdi ction Over CEC's Second Cause of Action Because It Presents a Novel Issue of State Law 20 22

3 4 V. CONCLUSION

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Memorandum of P & A In Support of Motion to Dismiss
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TABLE OF AUTHORITIES
2

Page

3 Cases
4 Abbott Laboratories v. Gardner 387 U.S. 136 (1967) 5 Actmedia, Inc. v. Stro h 6 830 F.2d 957 (9th Cir. 1986) 7 Agua Caliente Band ofCahuilla Indians v. Hardi n 223 F.3d 1041 (9th Cir. 2000) 8 Alaska Right to Life Political Action Comm . v. Feldman 9 504 F.3d 840 (9th Cir. 2007)

9,12 19 15 9, 13 9 , 14 9,12 11 14 8, 13 12-14 13 14 15,16,18 9 8 3
Case No. 07 CV 2246 BlM (WMC)
111

10 Allen v. Wright 468 U.S. 737 (1984) 11 Almond Hill Sch. v. u.s. Dept. ofAgric. 12 768 F.2d 1030 (9th Cir. 1985)
13

Ame rican-Arab Anti-Discrimination Comm. v. Thornburgh 970 F.2d 501 (9th Cir. 1991) Asarco, Inc. v. Kadish 490 U.S. 605 (1989)

14 15

16 Atascadero State Hosp. v. Scanlon 473 U.S. 234 (1985) 17 Balistreri v. Pacifica Police Dep 't 18 901 F.2d 696 (9th Cir. 1990)

19

California Pro-Lif Council, Inc. v. Getman e 328 F.3d 1088 (9th Cir. 2003) Clark v. Community for Creative Non- Violence 468 U.S. 288 (1984) Clinton v. Acequia, Inc. 94 F.3d 568 (9th Cir. 1996)

20 21
22

23 24
25

Ex parte Young 209 U.S. 123 (1908)
Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc. 896 F.2d 1542 (9th Cir. 1990) Hishon v. King & Spalding 467 U.S. 69 (1984)

26 27

28 In re M.S. 10 Ca1.4th 698 (1995)
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TABLE OF AUTHORITIES (continued)
Page 2 3

Kokkonen v. Guardian Lif Ins. Co. ofAm. e 511 U.S . 37 5 (1944)

8 15 15
13

4 L.A. Branch NAA CP v. L.A. Unified Sch. Dist. 714 F.2d 946 (9th Cir. 1983)
5 L.A. County Bar Ass 'n v. Eu 979 F.2d 697 (9th Cir. 1992) 6

7 Laird v. Tatum 408 U.S. 1 (1972)
8 Long v. Van de Kamp 961 F.2d 151 (9th Cir. 1992) 9

15-17 17 8 9 , 20 9 20 8 18 9 21 21 14 2, 14, 19, 20
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IV

10 Los Angeles Branch NAACP v. Los Angeles Unif. Sch. Dist. 714 F.2d 946 (9th Cir. 1983) 11 Love v. United States 915 F.2d 1242 (9th Cir. 1989) 12 13 Lujan v. Defenders of Wildlife 504 U.S. 555 (1992)
14 Medrano v. City ofLos Angeles 973 F.2d 1499 (9th Cir. 1992) 15

16 Mir v. Little Co. ofMary Hosp. 844 F.2d 646 (9th Cir. 1988) 17 Moor v. Alameda County 411 U.S. 693 (1973 ) 18 19 N. Star Int 'I v. Arizona Corp. Comm 'n 720 F.2d 578 (9th Cir. 1983)
20 21

National Audubo n Society, Inc. v. Davis 307 F.3d 835 (9th Cir. 2002)

22 Nat 'I Park Hospitality Ass 'n v. Dep 't ofthe Interior 538 U.S. 803 (2003)
23 24

O'Connor v. State ofNevada 27 F.3d 357 (9th Cir. 1994)

25 Owen Equipment & Erection Co. v. Kroger 437 U.S. 365 (197 8) 26 Papasan v. Allain 478 U.S. 265 (198 6) 27 28 Penhurst St. Sch. & Hasp . v. Halderman 465 U.S. 89 (1984)
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TABLE OF AUTHORITIES (continued)
Page 2 Quern v. Jordan 440 U.S. 332 (1979) 3 R.A. V. v. City ofSt. Paul 4 505 U.S. 377 (1992)

14 13 9 9 8 16 8 12 15, 17 9,10,1 2 9 20 12 8 15

5 Regional Rail Reorg. Act Cases 419U.S .102(l974) 6 Reno v. Catholic Socia l Services, Inc. 7 509 U.S. 43 (1993)
8 Robertson v. Dean Witter Reyn olds, Inc. 749 F.2d 530 (9th Cir. 1984) 9 S. Pac. Transp . Co. v. Brown 10 651 F.2d 6 13 (9th Cir. 1981)

11

Safe Air fo r Everyone v. Meyer 373 F.3d 1035 (9th Cir. 1994) Scott v. Pasadena Unified Sch. Dist. 306 F.3d 646 (9th Cir. 2002)

12 13

14 Snoeck v. Brussa 153 F.3d 984 (9th Cir. 1998) 15 Thomas v. Anchorage Equal Rights Comm. 16 220 F.3d 1134 (9th Cir. 2000) 17 Thornhill Publ 'g Co. v. Gen. Tel. & £lees. 594 F.2d 730 (9th Cir. 1979) 18 United Mine Workers ofAm. v. Gibbs 19 383 U.S. 715 (1966) 20 United Publi c Workers of Am. (C.I.O ) v. Mitch ell 330 U.S. 75 (1947)

21 22 23 24 25 26
27

W. Mining Council v. Watt 643 F.2d 618 (9th Cir. 1981)
Wilbur v. Locke 423 F.3d 1101 (9th Cir. 2005)

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TABLE OF AUTHORITIES (continued)
I

Pa ge

2 Constitutional Provis ions
3 California Constitution Article I § I 4 Article 11 § 9(b) Article V § I 5 Article V § 13 6 United States Constitution Amendment I article XIV 7 Amendment XI
8

1, 7, 20 2 17 15
I, 7

14

9 10
II

Statutes
California Administrative Code Title 5 § 49 IO(k) § 4910(v) § 4910 (w)

,

4,5, 10 4, 5 4, 5, I I

12 California Education Code § 210.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. passim §21 2 4, 5 14 § 2 12.6 passim 1, 4-7,20 § 220 15 § 33004 19 § 51550 passim 16 California Election Code 17 § 9030(d) 2 13 18 California Penal Code § 420.55(a)(2) 19 § 420.55(a)(6) § 420.55(b) 20 § 420.56(c) § 420.6(a) 21 § 422.55 § 422.55(a) 22 § 422.55(a)(1-7) § 422.55(a)(2) 23 § 422.55(a)(6) § 422.55(b) 24 § 422.56(c) § 422.56(h) 25 § 422.6 § 422 .6(a) 26 27 28
Memorandum of P & A In Support of Motion to Dismiss
VI

I I I 1, 20 I 5 3 3 1, 7,20 1,20 1,4, 7 passim 4, 5, II 3, 4 passim

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TABLE OF AUTHORITIES (continued)
I

Page

2 United States Code Title 28 3 § 1367 § 1367(e) 4 § 1367(e)(l) 5 Court Rules 6 Rutter Group Practice Guide: Fed . Civil Procedure Before Trial 7 § 9:84 8 Federal Rules of Civil Procedure Rule 12(b)(6) 9 10
II

20 2 20, 21

8 8

12 13 14
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16 17
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19 20 21
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23 24

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Memorandum ofP & A In Support of Motio n to Dism iss
VII

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I

Defendants Arnold Schwarzenegger, in his official capacity as Governor of the State of

2 California, Edmund G. Brown Jr., in his official capacity as Attorney General of the State of 3 4 5 6 California, and Jack O'Connell, in his official capacity as the California State Superintendent of Public Instruction (collectively "State Defendants") respectfully submit the following Memorandum of Points and Authorities in Support of the Motion to Dismiss.

I.
INTRODUCTION
Plaintiffs California Education Committee, LLC and Priscilla Schreiber (collectively "CEC") bring this action facially challenging on both federal and state constitutional grounds various provisions of the California Education and Penal Codes. The challenged Penal Code sections generally pertain to the State's "hate crimes" law, while the chall enged Education Code

7
8 9 I0 II

12 sections generally pertain to prohibited discrimination in California schools, including on the 13 basis of "gender" and "sexual orientation." CEC brings this pre-enforcement challenge to these 14 sections where no immediate threat, or past history, of prosecution under the challenged statutes 15 against CEC exists. The majority of CEC's factual assertions and legal claims are based on an 16 incorrect interpretation of both existing law and a recent statute signed into law by the Governor. 17 The law the Governor signed amended certain provisions of the Education Code, but did not 18 amend the Penal Code. 19 20 21 22 23 24 25 26 27 28 I. The Complaint's First Cause of Action incorrectly cites the challenged Penal Code provisions as "§§ 420.6(a), 420.55(a)(2) and (6), 420.55(b), and 420.56(c) . . . ." However, it is apparent from the body of the Complaint the actual Penal Code provisions that are challenged.
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Specifically, CEC argues that California Education Code §§ 210.7, 212.6, 220, 51500, and California Penal Code §§ 422.55(a)(2) and (6), 422.55(b), 422.56(c), and 422.6(a)1' "are void for vagueness because their prohibitions are not clearly defined." (Complaint for Declaratory and Injunctive Relief and Nominal Damages, 1ll29-30 ("Complaint") (citing U.S . Const. amends. I, XIV).) CEC further argues that these code sections violate the California Constitution because they "are in contravention to the rights of safety and privacy and amount to serious invasion of those interests." (Compl. '1l36 (citing Cal. Const, art . I., § I) .) CEC requests declaratory and

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injunctive relief barring enforcement of these Code sections and further requests nominal 2 damages.

3
4

The Motion to Dismiss should be granted for four reasons: I. The Complaint presents no Article III "case or controversy" that is ripe under both

5 constitutional and prudential components;

6
7 8

2.

The Complaint fails to state a claim against the Governor, the Attorney General,

and, in part, the Superintendent of Education because of Eleventh Amendment immunity; 3. The Second Cause of Action predicated on state law is barred unde r the Eleventh

9 Amendment and Penhurst St. Sch. & Hasp . v Halderman, 465 U.S. 89 (1984); and, 10 II 4. The Court under 28 U.S.C. § 1367(c) should decline to exercise supplemental

jurisdiction over the Second Cause of Action because the challenge presents a novel issue of state

12 law. 13 14 15

II.

FACTUAL AND STATUTORY BACKGROUND
CEC brings a facial challenge to numerous sections of the California Penal and

16 Education Codes. On October 12,2007, the Governor signed into law Senate Bill 777 ("SB 17 777") that amended certain sections of the Education Code. " Cal. Sen. Bill No . 777 (2007-2008

18 Reg . Sess. (Request for Judi cial Notice in Support of Motion to Dismiss ("RJN") at ex. C).) To 19 20 21 22 23 24 25 26 27 28 2. SB 777 took effect on January 1,2008. (RJN at ex. C, p. 3, §§ 3-4.) CEC mistakenly states that the law will take effect on January 11,2008. (Compl. ~ I.) A referendum on SB 777 is currently in circulation with proponents ofthe referendum gathering signatures from eligible voters. (RJN at Ex. A.) The Attorney General has prepared a title and summary of the referendum on SB 777 for the voters. (Id . at Ex. B.) Presumably, CEC states January II, 2008 is the effective date of SB 777 because proponents of the initiative have until January 10, 2008 to file the petition with required signatures with county elections officials. (Id .) If the proponents of the measure gather the requi red 433, 971 qualified signatures, electi on officials where the referendum is circulated "shall determine the number ofqualified voters who have signed the petition." Cal. Elec. Code, § 9030(d). The law the referendum seeks to repeal, in this case SB 777, is then stayed from taking effect until either the qualification attempt fails or the referendum is voted on by the electorate. Cal. Const., art. II, § 9(b). Thus, it is possible that to the extent that CEC's claims are based on the changes to the Education Code made by SB 777, this challenge will be mooted if the referendum qual ifies for the next statewide election.
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I

place in context CEC 's facia l challenge , each individual Education and Penal Code section must

2 be separately analyzed because many were in existence and not amended in any way by SB 777 . 3 The substantive changes in the law are restricted to the State' s Education Code. Crucial to

4 evaluating the challenges in this case is the f act that SB 777 did not amend any provision ofthe 5 Penal Code.
6 7

A.

California Penal Code Prohibiting" Hate Crimes"

California law punishes as a "hate crime" any criminal act committed "in whole or in

8 part , because of one or more of the following actual or perceived characteristics of the 9 victim . . . ." Cal. Penal Code, § 422.55(a). The law specifies that for purposes of the hate

10 crimes law the protected characteristics are:

II
12

(I)

Disability.

(2) Gender. (3) Nationality. (4) Race or ethnicity. (5) Religion. (6) Sexual orientation . (7) Association with a person or group with one or more of these actual or perceived characteristics. Cal. Pen al Code, § 422.55(a)(1 -7). "Gender" in the Penal Code is defined as "sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the pers on's assigned sex at birth." Id. at § 42 2.56(c). "Sexual Orientation" is defined as "heterosexuality, homosexuality, or bisexuality." Id. at (h). The Penal Code also prohibits "conduct consisting of willful interference with another person in his or her exercise of constitutional or statutory rights by me ans of force or threat of force , the conduct being undertaken because of the actor's bias." In re M.s. , 10 Cal.4th 698, 722 (Ca1.1 995) (citing Cal. Penal Code, § 422.6) (emphasis in original).) Specifically, the law provi des that:

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3

No person . . . shall by force or threat of force, willfully intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege . . . in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of [Penal Code] Section 422.55

4 Cal Penal Code, § 422.6(a). A "hate crime " includes a violation of § 422.6. Cal Penal Code, § 5 422.55(b). 6 7 B. California Education Code Prohibiting Discrimination In Schools

The California Education Code currently prohibits discrimination on the basis of a

8 protected characteristic "in any program or activity conducted by an educational institution that 9 receives, or benefits from, state financial assistance or enrolls pupils who receive state student 10 financial aid." Cal. Ed. Code, § 220. Specifically, as unamended by SB 777, the law provides
II

that: No person shall be subjected to discrim ination on the basis of sex, ethnic group identification, race, national origin, religion, color, mental or physical disability, or any actual or perceived characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code . . . .

12

I3
14

15 !d. "Sex" is defined in the Education Code as "the biological condition or quality of being a male

16 or female human being ." Id. at § 212. Furthermore, "sex" carries the identical definition in the 17 California Code of Regulations promulgated under the Education Code. Cal. Admin Code, tit. 5, 18 § 491O(v). Since 2005, "Gender" has been defined in the Code of Regulations as it is in the 19 Penal Code, which is "sex, and includes a person's gender identity and gender related appearance 20 and behavior whether or not stereotypically associated with the person's assigned sex at birth." 21 Id. at subd. (k). Finally, "Sexual orientation" is defined by the Penal Code as "heterosexuality, 22 homosexuality, or bisexuality," and the Code of Regulations as "actual or perceived 23 heterosexuality, homosexuality, or bisexuality." Cal Penal Code, § 422.56(h); Cal. Admin Code, 24 tit. 5, § 4910(w). 25 26
I.

Non -Substantive Amendments of Education Code by SB 777

SB 777 amends several sections of the Education Code; however, many of the

27 amendments did not substantively change the law. First, SB 777 revises Education Code § 220 28 to reflect the same protected characteristics codified in the State's hate crimes law. See Cal.
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Penal Code, § 422.55. Revised Education Code § 220 provides that: No person shall be subjected to discrimination on the basis of disability, gend er, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition ofhate crimes set forth in Section 422 .55 of the Penal Code in any program or activity conducted by an educati onal institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid.

2

3
4

5

6 (RJN , ex. C, at p. 4.) These revisions in the express language of Education Code § 220 to add 7 "sexual orientation" and "gender" do not substantively change the law because existing Education 8 Code § 220 already cross -references the State's hate crimes law, which includes "sexual 9 orientation" and "gender." Cal. Penal Code, § 422.55(a) (2) & (6). SB 777, in other words, 10 merely amends Education Code § 220 to add explicitly what was already incorporated by
II

reference. SB 777 also adds § 210.7 to the Education Code defining the word "gender." The

12

13 definition of "Gender" under SB 777 is identical to the definition that already exists under both 14 the State's Penal Code and the State 's Code of Regulations, Cal. Penal Code, § 422.56(c); Cal. 15 Admin Code, tit. 5, § 4910(k). Again, SB 777 merely explicitly adds the definition of the word 16 "gender" to the Education Code that was already in effect under both the Penal Code and 17 California Code of Regulations. 18 Finally, SB 777 also adds § 212 .6 to the Education Code. Section 212.6 provides that

19 "'Sexual orientation' means heterosexuality, homosexuality, or bisexuality." (RJN, ex. C, at p. 20 4.) As previously stated, "sexual orientation" is already defined by the Penal Code as 21 22 23 24 25 26 "heterosexuality, homosexuality, or bisexuality," and by the State's Code of Regulations as "actual or perceived heterosexuality, homosexuality, or bisexuality." Cal. Penal Code,

§ 422 .56(h); Cal. Admin Code, tit. 5, § 491 O(w). This addition merely clarifies that the
Education Code defines "sexual orientation" the same way as other statutory provisions.

2.

Substantive Amendments of Education Code by SB 777

SB 777 does make several substantive changes to the Education Code. First, SB 777

27 repeals Education Code § 2 12. As noted above, "sex" is currently defined by Education Code § 28 212 and the California Code of Regulations as "the biological condition or quality of being a
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male or female human being" Cal. Ed. Code, § 212; Cal. Admin Code, tit. 5, § 4910(v). SB 2 777 docs not provide a new definition of "Sex." SB 777 also makes a substantive change to Education Code § 51500. Existing law

3

4 provides that "[n]o teacher shall give instruction nor shall a school district sponsor any activity 5 which reflects adversely upon persons because of their race, sex, color, creed, handicap, national 6 origin, or ancestry." Cal. Ed. Code, § 51500. First, SB 777 revises Educ ation Code section 7 51500 to read: 8 9 No teacher shall give instruction nor shall a schoo l district sponsor any activity that promotes a discriminatory bias because of a characteristic listed in [Education Code] Section 220.

10 (RJN, ex. C, at p. 24.)¥ Second, SB 777 expands the list of groups covered by this section II beyond "race, sex, color, creed , handicap, national origin, or ancestry." By incorporating

12 Education Code section 220 , SB 777 adds "sexual orientation," "gender" and "association with a 13 person or group of persons with one or more actual or perceived [protected characteristics]" to 14 the existing list of protected characteristics. 15 16 17 18 A.

III.
ALLEGATIONS OF THE COMPLAINT Faets Alleged in the Complaint

According to the Complaint, CEC is "an association of persons directly involved in the

19 California public education environment, inclusive of school board mem bers, teachers, school 20 21 22 23 24 25 26 27 28 3. It is questionable whether the specific changes to Education Code § 51500 substantively alter the law at all because the more general prohibition on discrimination contained in Education Code § 220 was not substantively altered whatsoever by SB 777. In other words, it is difficult to conceive of a set of facts where, for example, there is a school sponsored activity that "promotes a discriminatory bias" against a student because of their sexual orientation and thereby violates § 51500, but does not at the same time violate § 220 because the stud ent is not "subjected to discrimination on the basis of . . . sexual orientation .. .. " The difficulty in analyzing this hypothetical scenario highlights the essential flaw with CEC's approach to filing this action in federal court without the benefit of a state court interpretation of the challenged laws.
Memorandum of P & A In Support of Motion to Dismiss Case No . 07 CV 2246 BTM (WMC)

counselors, parents and students." (Compl. '1l8.) The Complaint alleges that each member of CEC, with the exception of a student member, "is responsible for the implementation and

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enforcement oflaws applicable to public schools and will be responsible . . . to apply and enforce 2 Senate Bill 777 and California's definition of 'gender. '" (Compl.
~

8(a-d).) The student member

3 "Jennifer N., by and through her parents Roger and Julie N., is a California public high school 4 student in San Diego County who is involved in extracurricular athletics at her high school and 5 regularly uses the girls' restroom and girls' locker room facilities provided at her school." (ld. at 6 7 8
~

8(e).)
B.

Causes of Action and Prayer for Relief

The Complaint has two causes of action. The First Cause of Action alleges that

9 California Education Code §§ 210.7, 212.6, 220, 51500, and California Penal Code §§ 10 422.55(a)(2) and (6), 422.55(b), 422.56(c), and 422.6(a) "arc void for vagueness because their
II

prohibitions are not clearly defined." (Compl.

~~

29-30. (citing U.S. Const. amends. I, XIV) .)

12 The Second Cause of Action alleges that these code sections violate the California Constitution 13 because they "are in contravention to the rights of safety and privacy and amount to serious 14 invasion of those interests." (ld. at ~ 36. (citing Cal. Const. art. I, § I).) 15 The Complaint prays for "Preliminary and Permanent Injunctions enjoining

16 Defendants, Defendants' agents and employees, and all persons in active concert or participation 17 with them from enforcing the laws set forth in the first cause of action." (Compl. p. 10, In. 2118 23.) The Complaint also prays for a Declaratory Judgment that the above-mentioned laws violate 19 the First and Fourteenth Amendments to the U.S. Constitution and article I, Section I of the 20 California Constitution. The Complaint also prays for "reasonable costs and expenses of this 21 action, including attorney's fees, in accordance with 42 U.S.c. § 1988." (ld. at p.ll , In. 6-7.) 22 The Complaint does not include a prayer for nominal damages , though the Complaint is styled as 23 such in the caption. 24 25 26 27 A. IV. LEGAL ARGUMENT Legal Standards Applicable to Rule 12(b) Motion

The State Defendants move to dismiss the Complaint under Federal Rules of Civil

28 Procedure 12(b)(1) for lack of subject matter jurisdiction, and 12(b)(6) for failure to state a claim
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upon which relief can be granted. 2 3
1.

Rule 12(b)(1)

Rule 12(b)(I) allows a party to raise the defense that the court lacks "jurisdiction over

4 the subject matter" of a claim. "A motion to dismiss for lack of subject matter jurisdiction may 5 either attack the allegations of the complaint or may be made as a ' speaking motion ' attacking 6 the existence of subject matter jurisdiction in fact." Thornhill Pub/'g Co. v. Gen. Tel. & Elecs., 7 594 F.2d 730, 733 (9th CiT. 1979) (citations omitted). The instant Rule 12(b)(I) motion attacks 8 the allegations of the complaint. In such an instance, and similar to the standards applicable to 9 Rule 12(b)(6) motions, the district court must accept the allegations of the complaint as true. 10 Safe Airfor Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 1994); Schwarzer, Tashima & II Wagstaffe, Rutter Group Practice Guide: Fed. Civil Procedure Before Trial, § 9:84 (The Rutter

12 Group 2007). 13 Where a Rule 12(b)(1) motion is brought, the burden of proof is on the party asserting

14 federal subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 15 377 (1944); Thornhill Pub/'g Co., 594 F.2d at 733. 16 17 2. Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

18 tests the legal sufficiency of the complaint. N. Star Int 'I v. Arizona Corp. Comm 'n, 720 F.2d 19 578, 58 I (9th CiT. 1983). Dismissal of the complaint or of any claim within it "can be based on 20 the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 21 legal theory." Balistreri v. Pacifica Police Dep 't , 901 F.2d 696, 699 (9th Cir. 1990) (citing 22 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th CiT. 1984» . 23 In considering a motion to dismiss for failure to state a claim, the court accepts as true

24 all material allegations in the complaint and the reasonable inferences that can be drawn from 25 26 them. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th CiT. 1989). However, the court need not accept as true unreasonable inferences,

27 unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual 28 allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th CiT. 1981). A court generally
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cannot consider materials outside of the complaint, except for materials submitted as part of the 2 compl aint or the contents of which are alleged in the complaint. Hal Roach Studios, Inc. v.

3 Richard Feiner & Co., Inc.. 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). TIle court may also
4 consider matters subject to judicial notice. Mir v. Little Co. ofMary Hosp., 844 F.2d 646, 649 5 (9th Cir. 1988). 6 7 8 To invoke this Court's juri sdiction, CEC must present a ju sticiable Article III "case or B. The Complaint Must Be Dismissed Because No Ripe Article I II "Case or Controversy is Presented

e 9 controversy" that is ripe. See Alaska Right to Lif Political Ac tion Comm. v. Feldman, 504 F.3d
10 840,848 (9th Cir. 2007) (citing Allen v. Wright, 468 U.S. 737, 750-51 (1984». Ripeness is 11 "peculiarly a question of timing." Regional Rail Reorg. Act Cases, 419 U.S. 102, 140 (1974); 12 American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 50 1, 510 (9th Cir. 1991). 13 The Supreme Court has stated the "ripeness doctrine is drawn both from Artiele III limitations on 14 judicial power and from prudential reasons for refusing to exercise jurisdiction." Reno v.

15 Catholic Social Services, Inc., 509 U.S. 43, 56 n.17 (1993). The doctrine is intended to "prevent
16 the courts, through avoidance of premature adjudication, from entangl ing themselves in abstract 17 disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). To establish 18 ripeness, the court must be satisfied that both the pruden tial and constitutional components have

e, 19 been satisfied. Alaska Right to Lif 504 F.3d at 849 (citing Nat 'I Park Hospitality Ass 'n v. Dep 't
20 ofthe Interior, 538 U.S. 803, 808 (2003» . 21 22 23

1.

This Action Fails to Satisfy the Constitutional Co mponent of Ripeness

The constitutional component of "ripeness can be characteri zed as standing on a timeline." Thomas v. Anchorage Equal Rights Comm., 220 F.3d 1134, 1138 (9th Cir. 2000) (en

24 bane). The Ninth Circuit has instructed that "in many cases, ripeness coincides squarely with 25 standing's injury in fact prong." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 26 (1992» (identifying the "irreducible constitutional minimum of standing" as (I) injury in fact; 27 (2) causation; and, (3) redressability).) This Circuit has "held that neither the mere existence of a 28 proscriptive statute'nor a generalized threat of prosecution satisfies the "case or controversy"
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I

requirement." Thomas, 220 F.3d at 1139. To satisfy the "case or controversy" requirement,

2 "there must be a 'genuine threat of imminent prosecution.'" Id. (citing references omitted). 3 The evaluation of the "genuineness ofa claimed threat of prosecution" is a three-part

4 test. Id. The court must examine: (I) "whether the plaintiffs have articulated a 'concrete plan' to 5 violate the law in question," (2) "whether the prosecuting authorities have communicated a 6 specific warning or threat to initiate proceedings," and, (3) "the history of past prosecution or 7 enforcement under the challenged statute." Id. 8 Examining the first factor, CEC's Complaint contains assertions of the "impossible

9 position" SB 777 allegedly places educators in, but contains few facts showing any "concrete 10 plan" to violate the eight separate California statutes challenged . For example, CEC asserts that II SB 777 "requires educators to have foreknowledge of the private mental impressions, thoughts,

12 and disabilities of each person with whom the educational institution comes into contact," 13 (Compl. ~ 20), that "[e]ducators are also in the vulnerable position of being in violation of the 14 California Penal Code should they fail to guess properly at an individual's self-defined 15 sex," (Compl. ~ 23) and that "educators and administrators will be in criminal violation of the

16 Penal Code if they physically or forcefully interfere with, or threaten to interfere with, any 17 student or employee seeking access to facilities traditionally reserved to the opposite sex, 18 whether by intimidation, oppression, or threat of suspension ." (Compl. ~ 26.) None of these 19 allegations amount to the "concrete plan" required under the law. For CEC to satisfy this prong, 20 "the Constitution requires something more than a hypothetical intent to violate the law." 21 22
Thomas, 220F.3d at 1139.

CEC's assertions flow from an incorrect understanding ofSB 777. It bears repeating

23 that SB 777 does not add a new definition of either "Gender" or "Sexual Orientation" to the 24 Education Code. Since 2005 both the California Code of Regulations and the Penal Code have 25 defined the word "Gender." Cal. Penal Code, § 422.56, subd (c); Cal. Admin Code, tit. 5, § 26 4910, subd. (k), SB 777 merely explicitly defines "Gender" in the Education Code by adding
27

§ 210.7.

28 III
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I

Similarly, the addition of "Sexual Orientation" at § 212.6 to the Education Code does

2 not substantively alter the law because "Sexual orientation " was and is already defined by the 3 Penal Code as "heterosexuality, homosexuality, or bisexuality," and the State's Code of 4 Regulations as "actual or perceived heterosexuality, homosexuality, or bisexuality." Cal. Penal 5 Code , § 422 .56, subd . (h); Cal. Admin Code, tit. 5, § 4910, subd. (w). All this is to say that 6 CEC has been operating under the same legal regime with regard to the Penal and Education 7 Codes since at least 2005 regarding discrimination on the basis of "Gend er" and "Sexual 8 Orientation." Despite the lapse of two years, CEC's Complaint simpl y fails to identify a 9 "concrete plan" to violate any of the eight separate statutes challenged in the Complaint. 10 II Turning to the second factor, CEC does not allege that any authority, much less any prosecuting authority, has communicated a specific warning or threat to initiate proceedings.

12 CEC may argue that it does not know if it faces prosecution or not because the interpretation of 13 the challenged statutes has not been ruled on by the state courts. First, to the extent that CEC 14 argues that SB 777 "redefin es" the terms "gender" and "sexual orientation," that is simply not the IS case. Moreover, any claimed confusion or uncertainty regard ing state law militates in favor of 16 dism issing the instant action in its entirety so that CEC may first ask the state courts for an 17 interpretation of state law, see inf ra Part IV. E, and consider CEC's federal and state law claims. 18 See Asarco, Inc. v. Kadish, 490 U.S. 605, 6 17 (1989) (declaring that "state courts . . . possess the 19 authority, absent a provision for exclusive federal jurisdiction, to render binding judicial 20 decisio ns that rest on their own interpretations of federal law."). 21 Finally, the third factor does not favor CEC. Utterly missing from the Complaint is

22 any allegation that CEC has faced a "history of past prosecution or enforcement" under any of the 23 eight statutes challenged. As noted above, SB 777 made few substantive legal changes to the 24 Education Code and absolutely none to the Penal Code . Given these facts, CEC has failed to

25 satisfy the constitutional components of ripeness. 26 / / / 27 / / / 28 / / /
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2.

This Action Fails to Satisfy the Prudential Component of Ripeness

2

Even if the constitutional component of ripeness is satisfied, a court must still evaluate

3 the prudential component. Thomas, 220 F.3d at 1141. The "prudential considerations of 4 ripen ess are amplified where constitutional issues are concerned." Scott v. Pasadena Unified

5 Sch. Dist., 306 F.3d 646 , 662 (9th Cir. 2002) (citing United Public Workers ofAm. (C.l.O.) v. 6 Mitc hell, 330 U.S. 75, 90-91 (1947» . Thi s allows courts to avoid deciding "constitutional
7 questi ons in a vacuum." American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 8 501,511 (9th Cir. 1991) (stating "[e]ven in the case ofa pre-enforcement challenge such as this, 9 the exercise ofjurisdiction without proper factual development is inappropriate."). The two I0 II factors under the prudential component are "the fitness of the issues for j udicial decision and the hardship to the parties of withholding court consideration." Id. (citing Abbot Laboratories v.

12 Gardner, 387 U.S. 136, 148 (1967» . 13 Examining the first prong, this case is not fit for a judicial deci sion. The Complaint

14 fails to identify any instance where a CEC member has been pursued civilly, criminally, or by 15 any other legal process for allegedly violating any of the eight challenged sections of the 16 Education or Penal Codes. CEC is essentially seeking an advisory opini on from this Court. 17 Accordingly, the scant facts alleged in the Complaint leave this case unfit for the Court's review. 18 Turning to the second prong, CEC will face no hardship in withholding court

19 consideration. If this lawsuit is dismissed, CEC may simply re-filc their action in state court 20 raising both their federal and state constitutional claims to the challenged statutes seeking

21 declaratory and injunctive relief. Therefore, the Court should decline jurisdiction over this case.

22
23 24 25 26

3.

This Action Is Not Ripe Even Under the Relaxed Stand ar d s Applied to Alleged Infringement of the First Amendment

CEC alleges the challenged statutes "abut sensitive areas of basic First Amendment freedoms and in their operation inhibit the exercise of those freedoms ." (Compl. '11 31). The Ninth Circuit has acknowledged that "[p]articularly in the First Amendment-protected speech

ornia Pro-Life 27 context, the Supreme Court has dispensed with rigid standing requirements." Calif
28

Council, Inc. v. Getman, 328 F.3d 1088, 1098 (9th Cir. 2003). A court may employ "this
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somewhat relaxed approach to justiciability, however, only upon a showing that the plaintiff 'is 2 immediately in danger of sustaining[] a direct injury as a result of [an executive or legislative] 3 action." Alaska Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 851 (9th Cir.

4 2007) (quoting Laird v. Tatum, 408 U.S. 1, 12-13 (1972» (alterations in original). The Ninth 5 Circuit has reiterated that the "potential plaintiff must have ' an actual and well-founded fear that 6 the law will be enforced against [him or her]." Getman, 328 F.3d at 1095 (alterations in

7 original). Any "fear of prosecution will only inure if the plaintiff's intended speech arguably falls 8 within the statute's reach." Jd. There must exist "a credible threat that the challenged provision 9 will be invoked against the plaintiff." Jd. (citing references and quotations omitted). None exists

10 here.

II

Further, the "relaxed approach" should not be app lied here because it is not at all clear

12 how several of CEC's claims actually implicate the First Amendment. For example, CEC alleges 13 that its members "will be in criminal violation of the Penal Code if they physically or forcefully 14 interfere with , or threaten to interfere with, any student or employee seeking access to facilities 15 traditionally reserved to the opposite sex, whether by intimidation, oppression, or threat of 16 suspension." (Compl.
'1J

26.) First, it is difficult to discern how the use of physical force this

17 hypothetical scenario raises is covered under the First Amendment. See Clark v. Community for 18 Creative Non-Violence, 468 U.S. 288, 294 (1984) (stating "[a]lthough it is common to place the 19 burden upon the Government to justify impingements on First Amendment interests, it is the 20 21 22 23 24 25 26 27 28 obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. "). Second, to the extent CEC's factual allegations entail a threat to a person that also violates thc Penal Code, this activity is not protected by the First Amendment. See R.A. V. v. Ci ty ofSt. Paul, 505 U.S. 377, 388 (1992) ("threats of violence are outside the First Amendment"). CEC also focuses on Education Code § 51500 and alleges that "any curriculum or instruction that pre-assumes the existence of a mother and father in a family relationship might be construed to promote a discriminatory bias against persons choosing alternative relationships. A violation of this provision could cause educators to be disciplined by their employers or cause
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educa tors to be guilty of discrimination." (CompI. ~ 22). The string of hypothetical events CEC 2 envisions highlights the point that "a case is not ripe where the existence of the disp ute itself 3 hangs on future contingencies that mayor may not occur." Clinton v. Acequia, Inc., 94 F.3d 568, 4 572 (9th Cir. 1996). Moreover, this speech does not "arguably fall[] with in the statute's reach " 5 as required by Getman because, standing alone, the instruction envisioned by CEC does not 6 promote a discriminatory bias against any person because of a protected characteristic. Again, 7 though the State Defendants do not believe CEC advances a correct or reasonab le interpretation 8 of this section, no state court has interpreted the law.

9
10 II

C.

The Complaint Fails to State a Claim Against the Governor, the Attorney General, and, in part, the State Superintendent Because of Eleventh Amendment Immunity

The Eleventh Amendment" bars suit against a state or its instrumentalities for legal or

12 equitable relief in the absence of consent by the state or an abrogation of that immu nity by
13 Congress. Papasan v. Allain, 478 U.S. 265,276-77 (1986); Pennhurs t State Sch. & Hasp . v.

14 Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not abrogate a state 's Eleventh
15 Amendm ent immunity. Quem v. Jordan, 440 U.S. 332, 34 1 (1979). Nor has the State of 16 California waived that immunity with respect to claims brought under section 1983 in federal 17 court . Atascadero State Hasp. v. Scanlon, 473 U.S. 234, 241 (1985). 18 "The Eleventh Amendment [also] bars a suit against state officials when 'the state is

19 the real, substantial party in interest." Pennhurst, 465 U.S. at 101 (citations omitted); see

20 Almond Hill Sch. v. U. S. Dept. 0 Agric., 768 F.2d 1030, 1033 (9th Cir. 1985). The "general rule 1
21 is that relief sought nominally against an officer is in fact against the sovereign if the decre e

22 would operate against the lalter. " Pennhurst, 465 U.S. at 101 (citation omitted). "[A]s when the 23 24 25 26 27 28 4. The Eleventh Amendment provides: The Jud icial powe r of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subj ects of any Foreign State . U.S. Const. amend. XI.
Memorandum of P & A In Support of Motion to Dismiss Case No. 07 CV 2246 BlM (WMC)

State itself is named as the defendant, a suit against state officials that is in fact a suit again st a

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I

State is barred regardless of whether it seeks damages or injunctive relief." Id. at 101 -02

2 (citations omitted).

3

The Supreme Court recognized an exception to Eleventh Amendment immunity in Ex

4 parte Young, 209 U.S. 123 (1908). The Ex parte Young exception allows "suits for prospective 5 declaratory and injunctive relief against state officers, sued in their official capacities, to enjoin 6 an alleged ongoing violation offederal law." Wilbur v. Locke, 423 F.3d 11 01, IIII (9th Cir. 7 2005) (quoting Agua Caliente Band ofCahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 8 2000» . Additionally, however, for the Ex parte Young exception to apply "it is plain that such 9 officer must have some connection with the enforcement of the act, or else it is merely making 10 him a party as a representative of the State, and thereby attempting to make the State a party." II Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (quoting Ex parte Young, 209 U.S. at 157).

12 "This connection must be fairly direct; a g eneralized duty to enf orce state law or general 13 supervisory power over the persons responsible for enforcing the challenged provision will not 14 subject an official to suit." L.A. County Bar Ass 'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) IS (citing Long
V.

Van de Kamp, 961 F.2d lSI, 152 (9th Cir. 1992) (emphasis supplied); L.A.

16 Branch NAACP v. L.A. Unified Sch. Dist., 714 F.2d 946, 953 (9th Cir. 1983). 17 18 19 Here, CEC's allegations indicate that the Attorney General is a named defendant
1.

The Attorney Generalis Immune From Suit Because of the Eleventh Amendment

20 merely as a result of his general law enforcement duties as a state constitutional officer. See Cal. 21 Const., art. V, § 13 (stating the Attorney General is "to see that the laws of the State are 22 uniformly and adequately enforced.") But a close reading of the complaint reveals no specific 23 allegations whatsoever regarding the Attorney General. 24 At most, the Complaint alleges that "[d]efendant EDMUND G. BROWN, JR., as

25 Attorney General, is responsible to prosecute and enforce the laws of California, including 26 Senate Bill 777 and Califomia's prohibition of discrimination against persons on the basis of 27 'gender' as defined by California law." (Compl. 'If II.) Nothing more than this general allegation 28 is set forth in the Complaint. Accordingly, this action as against the Attorney General in his
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I 2 3

official capacity and as a represe ntative of the State of California is the equivalent ofan action against the State itself. Such actions are barred by the Eleventh Amendment. Dismissing the Attorney General on Eleventh Ame ndme nt grounds is firmly supported

4 by Ninth Circuit authority, particularly the case of Long v. Van de Kamp. Long arose from 5 warrantless surprise searches of a motorcycle repai r shop by deputy sheriffs and members of the 6 California Highway Patrol pursuan t to a provision in the California Vehicle Code 7 that authorized such searches . Long v. Van de Kamp , 772 F. Supp . 1141, 1142 (C.D. Cal. 8 1991)Y One of the operators of the repair shop was arrested in connection with a search. Long,

9 772 F. Supp . at 1142-43 . The operators filed suit chall enging the constitutionality of the Vehicle
IO Code provision. !d. at 1143. The operators named the Attomey General and sought to enjoin the

II

Attorney General from enfo rcing the statute. [d. The defendants also included the County of Los

12 Angeles and the individual offi cers who carried out the searches. [d. 13 In directing the district court to dismiss the Attorney General on Eleventh Amendment

14 grounds, the Ninth Circuit stated that "there must be a conn ection between the official sued and 15 enfo rcement of the allegedly unconstitutional statute, and there must be a threat of enforcemen t."

16 Long, 961 F.2d at 152. The Ninth Circuit found that the "general supervi sory powers of the
17 California Attorney General " did not establish the connection with enforcement required by Ex 18 parte Young. !d. (citing S. Pac. Transp. Co. v. Brown, 651 F.2d 613, 614 (9th Cir. 1981) (as 19 amended)." There also was no threat that the Vehicle Code provision would be enforced by the 20 Attorney General, who "ha[d ] not in any way indicated that he intend[ed] to enforce [the 21 22 5. Whil e the court of appeals vacated the trial court' s order in Long, the Ninth Circuit 's published decision incorporates by referen ce the facts of the case as set forth in the district court's 24 opinion. See Long, 961 F.2d at 152. 23 6. In Southern Pacific Transportation Co., several railroads sued the Oregon Attorney 26 General to enjoi n enforcement ofa statute limiting employers' abilities to negotiate settlements with employees injured on the job. 651 F.2d at 614. The Ninth Circuit held that "[t]he attorney general's 27 power to direct and advise [district attorneys] does not make the alleged injury fairly traceable to his action, nor does it estab lish sufficient connection with enforcement to satisfy Ex parte Young." 28 S. Pac. Transp. Co., 951 F.2d at 615.
Memorandum of P & A In Support of Motion to Dismiss

provision]. " [d. "In addition, the searches of plaintiffs' premi ses were not the result of any

25

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action attributable or traceable to the Attorney General." [d. Accordingly, the Ninth Circuit 2 held that "[a]bsent a real likelihood that the state official will employ his supervisory powers 3 against plaintiffs' interests, the Eleventh Amendment bars federal court jurisdiction." [d. 4 (emphasis added).
5

The circumstances here are remarkably similar to those in Long. Here, there is no "real

6 likelihood" or threat of enforcement from the Attorney General against CEC. CEC identifies no 7 instance when the Attorney General enforced, or threatened to enforce, the eight challenged 8 statutes against CEC. The "general supervisory powers of the Attorney General" are simply 9 insufficient to establish the mandatory direct connection with enforcement of the specified 10 statutes . Accordingly, the Ex parte Young exception does not apply in this case. See Long, 961 II F.2d at 152; see also Snoeck, 153 F.3d at 987 ("As Ex parte Young explains, the officers of the

12 state must be cloaked with a duty to enforce the laws of the state and must threaten or be about to
13 commence civil or criminal proceedings to enforce an unconstitutional act."). The Court should

14 dismiss the Attorney General because the Complaint fails to state a claim against him. 15 16 17 This same analysis warrants dismissal of the Governor. CEC names the Governor as a
2.

The Governor is Immune From Suit Because of the Eleventh Amendment

18 defendant because he "signed the Senate Bill 777 into law and is responsible to uphold and 19 enforce the laws of Californ ia, including Senate Bill 777 and California's prohibition of 20 discrimination against persons on the basis of ' gender' as defined in California law." (Compl. 21 ~ 10.) None of these allegations establish the requisite direct connection with enforcement of the 22 statute that is required for the Ex Parte Young exception to apply. 23 The California Constitution requires the "Governor shall see that the law is faithfully

24 executed." See Cal. Const., art. V, § 1. The Governor's general duties to enforce the law are 25 insufficient to establish the required connection here with enforcement of the challenged 26 provisions of the Penal and Education Codes. See Los Angeles Branch NAACP v. Los Angeles
27 Unif. Sch. Dist., 714 F.2d 946, 953 (9th Cir. 1983). Similar to the Attorney General, CEC has

28 III
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identified no instance where the Governor has enforced, or threatened to enforce, the eight 2 challenged statutes against CEC.
3

Furthermore, to the extent that the Governor is named because he signed SB 777 into

4 law, this is not a basis to overcome Eleventh Amendment immunity. Adopting this as a standard 5 would mean that the Governor is a proper defendant whenever challenging any statute signed 6 into law by the executive, regardless of whether the Governor has any direct connection to its 7 enforcement. There is no basis for such an unwarranted extension of the law.
8

The case of National Audubon Society, Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002) also

9 supports the dismissal of the Governor. In National Audubon Society, the Ninth Circuit 10 considered a challenge to provisions of the California Fish and Game Code, enacted when
II

California voters passed Proposition 4.1/ Id. at 843. In its analysis, the Ninth Circuit considered

12 whether defendants the Governor and the Secretary of Resources of the State of California "ha[d] 13 direct authority and practical ability to enforce the challenged statute[.]" Id. at 846. The court 14 held that suit seeking injunc tive and declaratory relief was "barred against the Governor and the 15 state Secretary of Resources, as there is no showing that they have the requisite enforcement 16 connection to Proposition 4." Id. at 847. In contrast , the court permitted the suit to go forward as 17 to the Director of the California Department of Fish and Game, "who has direct authority over 18 and principal responsibility for enforcing Proposition 4." Id. 19 The Governor does not have the "requisite enforcement connection" to the Education

20 and Penal Codes challenged by CEC. Accordingly, the Ex parte Young exception does not apply. 21 This suit as against the Governor is barred by the Eleventh Amendment. 22 23 24 as CEC names the Superintendent in its challenge to the Penal Code sections. CEC names the 25 7. The provisions banned the use of certain poisons and traps to capture wildlife and 27 authorized criminal prosecutions. Nat 'l Audubon Soc 'y, 307 F.3d at 842-43. At the time that lawsuit was initiated, one trapper had already been arrested and prosecuted for violation ofthe law. 28 Id. at 843.
Memorandum of P & A In Support of Motion to Dismiss Case No. 07 CV 2246 BTM (WMC)

3.

The State Superintendent of Public Education is Immune From Suit Challenging the Penal Code Because of the Eleventh Amendment

This analysis also mandates dismissal of the State Superintendent of Education insofar

26

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I

Superintendent because he "is responsible to enforce the education laws of California, ineiuding

2 Senate Bill 777 and California's prohibition of discrimination against persons on the basis of 3 'gender' as defined in California law." (Compl.
~

12.) The Superintendent has no connection,

4 direct or otherwise, to the enforcement of the Penal Code.
5

The Superintendent is the secretary and executive officer of the California Board of

6 Education. Cal. Ed. Code, § 33004 . CEC does not contend that the Superintendent has the 7 "requisite enforcement connection" with respect to the State's Penal Code. Accordingly , the Ex 8 parte Young exception does not apply insofar as CEC brings this challenge to the Penal Code 9 against the Superintendent. 10 II 12 CEC's prayer requests "this Court issue Preliminary and Permanent Injunctions D. CEC's Second Cause of Action Is Barred Under the Eleventh Ame ndment and Penhurst S f. Sch. & Hosp. v Halderman

13 enjoining Defendants, Defendants' agents and employees, and all persons in active concert or

14 participation with them from enforeing the laws set forth in the first cause of action." (Compl. 15 p.I O, In. 21-23.) CEC also prays "this Court render a Deeiaratory Judgment deeiaring that the 16 laws set forth in the second cause of action violate the California Constitution Artieie I , Section 17
1." (Id . at p. 10, In. 27-28). CEC's claims for injunctive and declarat ory relief are barred to the

18 extent they request this Court to grant injunctive and declaratory relief on the basis that the 19 challenged state statutes vio late state law. 20 21 In Pennhurst State Sch. & Hasp. v. Halderman , Justice Powell for the majority wrote "it is difficul t to think of a greater intrusion on state sovereignty than when a federal court

22 instructs state officials on how to conform their conduct to state law." 465 U.S. 89, 106 (1984). 23 The Court ruled "a claim that state officials violated state law in carrying out their official 24 responsibi lities is a claim against the State that is protected by the Eleventh Amendment." Id. at 25 121. The Court then held "that this principle applies as well to state-law claims brought into

26 federal court under pendent jurisdiction." Id. This principle has been applied by lower courts to 27 claims for both injunctive and declaratory relief. Actmedia, Inc. v. Stroh, 830 F.2d 957, 962 (9th 28 Cir. 1986) ("conclud[ing] that the eleventh amendment prohibits this court and prohibited the
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district court from addressing any of [plaintiffs] claims against [the state defendant], and from 2 addressing [plaintiffs'] state statutory and state constitutional claims against [the state 3 defendant]. ").
4

The Second Cause of Action requests this Court declare the challenged statutes

5 unconstitutional on the basis that they violate article I, section I of the California Constitution 6 and issue injunctive relief barring the State Defendants from future enforcement. CEC's 7 Complaint names the State Defendants in their official capacities and does not allege that the 8 State Defendants acted in anything other than an official capacity. The injunctive and declaratory 9 relief requested by CEC on the asserted basis that the challenged statutes violate the State 10 Constitution is barred by the Eleventh Amendment and Penhurst. Accordingly, the Second
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Cause of Action must be dismissed. E. The Court Should Decline to Exercise Supplemental Jurisdiction Over CEC's Second Cause of Action Because It Presents a Novel Issue of State Law

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If the Second Cause of Action is not dismissed in its entirety, the Court should decline

15 to exercise supplemental jurisdiction over CEC's Second Cause of Action. The Second Cause of 16 Action alleges that California Education Code §§ 210.7, 212.6, 220, 51500, and California Penal 17 Code §§ 422.55(a)(2) and (6), 422.55(b), 422.56(c), and 422.6(a) violate the California 18 Constitution because they"arc in contravention to the rights of safety and privacy and amount to 19 serious invasion of those interests." (Compl.
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36. (citing Cal. Const. art. 1., § I).) CEC invokes

20 this Court's supplemental jurisdiction over this claim pursuant to 28 U.S.C. § 1367. 21 Supplemental, or pendent, jurisdiction has been recognized by the Supreme Court as "a

22 doctrine of discretion, not of plaintiffs right." United Mine Workers ofAm. v. Gibbs, 383 U.S. 23 715, 725 (1966) . The federal court has "broad discretion" in evaluating whether to exercise 24 supplemental jurisdiction over state law claims. Moor v. Alameda County, 411 U.S. 693, 716 25 (1973); Medrano v. City ofLos Angeles, 973 F.2d 1499, 1506 (9th Cir. 1992). 26 Pursuant to federal law, a court may decline to exercise supplemental jurisdiction over

27 a state claim if "the claim raises a novel or complex issue of State law." 28 U.S.C. § 1367, subd. 28 (c)(I). The Ninth Circuit has observed that "the difficult question of [state] constitutional law
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presented is the very sort of 'novel' issue that usually will justify declini ng jurisdiction over the

/ 2 claim ." O'Connor v. State a Nevada, 27 F.3d 357, 363 (9th Cir. 1994) (citing 28 U.S.C .
3 § 1367(c)(l».
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In this case, CEC's claims of facial unconstitutionally of these omnibus statutes raise

5 novel issues of state law as contemplated by § 1367(e)(l). CEC requests this Court to declare 6 eight sections of the Califo rnia Education and Penal Codes facially unconstitutional on the basis 7 that they violate article 1, Section I of the California Constitution. Many of these code sections 8 have not been given a controlling interpretation by the California courts, which thereby requires 9 this Court to interpret several code sections as an initial matter, and then conclude that they 10 violate the California Constitution.
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For example, CEC "facially challenges the redefinition of the term ' gender' as it will

12 be impossible for school administrators and educators to enforce this new definition." Compl. '1l 13 I.) Aside from the fact that SB 777 did not redefine the term "gender" as CEC eontends, this 14 challenge raises novel issues of state law regarding the term "gender" and the interplay between 15 the Education and Penal Codes. 16 A plaintiff in CEC's position "cannot complain if ancillary juri sdiction does not

17 encompass all of his possible claims in a case such as this one , since it is he who has chosen the 18 federal rather than the state forum and must thus accept its limitations." Owen Equipment & I9 Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). A challenge to eight separate state statutes on 20 state constitutional grounds should be brought in a California court in the first instance. 21 Accordingly, the Court must decline to exercise supplemental jurisdiction over CEC's Second 22 Cause of Action. 23 III 24 III 25 III 26 III 27 III 28 III
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v.
CONCLUSION
For these reasons, the State Defendants respectfully request the Court grant the Motion and dismiss this action in its entirety.

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3 4 5 6 Dated : January I I, 2008

Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California CHRISTOPHER E. KRUEGER Senior Assistant Attorney General STEPHEN P. ACQUISTO Supervising Deputy Attorney General
sfJeffrey Bedell

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10419190,wpd

JEFFREY 1. BEDELL Deputy Attorney General Attorneys for Defendants Arnold Schwarzenegger, in his official capacity as Governor of the State of California, Edmund G. Brown Jr., in his official capacity as Attorney General of the State of California, and Jack O'Connell, in his official capacity as the California State Superintendent of Public Instruction Email: jeff.bedell@doj .ca.gov

SA200730465I

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