MARY ROSE REDDY; SUE CLIFTON; JENNIFER ROBIDOUX; JOAN ESPINOLA; TERRY BARNUM; JACKIE PELLETIER; BETTY BUZZELL, Plaintiffs, Appellants,
JOSEPH FOSTER, in his official capacity as Attorney General for the State of New Hampshire; D. CHRIS MCLAUGHLIN, in his official capacity as County Attorney for Cheshire County, NH; SCOTT W. MURRAY, in his official capacity as County Attorney for Merrimack County, NH; DENNIS HOGAN, in his official capacity as County Attorney for Hillsborough County, NH; PATRICIA CONWAY, in her official capacity as County Attorney for Rockingham County, NH; CITY OF MANCHESTER, NH; CITY OF CONCORD, NH; CITY OF KEENE, NH; TOWN OF GREENLAND, NH, Defendants, Appellees, THOMAS P. VELARDI, in his official capacity as County Attorney for Strafford County, NH; TOWN OF DERRY, NH, Defendants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph N. Laplante, Chief U.S. District
Michael J. Tierney, with whom Wadleigh Starr & Peters
PLLC, Matthew S. Bowman, Kevin H. Theriot, and Alliance
Defending Freedom were on brief, for appellants.
Elizabeth A. Lahey, Assistant Attorney General, New Hampshire
Department of Justice, for appellee Joseph Foster.
T. Alexander, Garry R. Lane, Ransmeier & Spellman, P.C.,
Samantha D. Elliott, and Gallagher, Callahan & Gartrell,
P.C. on brief for municipal appellees.
Lynch, Lipez, and Barron, Circuit Judges.
district court dismissed without prejudice, for lack of
Article III standing, this pre-enforcement challenge to a New
Hampshire statute that has not been activated or enforced
since its enactment in mid-2014. We agree that the challenge
is not ripe and that there is no present Article III case or
controversy before the court. We affirm the dismissal without
statute in question is New Hampshire Senate Bill 319,
entitled "An Act relative to access to reproductive
health care facilities" ("the Act"), which
Governor Maggie Hassan signed into law on June 10, 2014.
See N.H. Rev. Stat. Ann. ("RSA")
§§ 132:37-132:40. The Act permits (but does not
require) a reproductive health care facility to demarcate a
zone extending "up to 25 feet" onto public property
adjacent to any of the facility's private entrances,
exits, or driveways. Id. § 132:38, I. If a
facility has demarcated a zone by posting the required signs,
following the procedure specified, then members of the public
(with certain listed exceptions) may not "knowingly
enter or remain on [the portion of the] public way or
sidewalk" within that zone. Id. The Act is
enforced civilly, by its terms. See id. §
v. Coakley, 134 S.Ct. 2518 (2014), which
held unconstitutional a buffer zone statute in Massachusetts,
was decided by the U.S. Supreme Court on June 26, 2014,
shortly after the signing of the Act. Soon thereafter, the
plaintiffs commenced this action in federal district court.
Their complaint seeks to enjoin enforcement of the Act and to
have the Act declared facially unconstitutional under
McCullen. They filed the lawsuit before any
facility had demarcated a buffer zone, and it
remains true that no facility has ever created one. The
parties agreed to a protracted stay, during which they agreed
to preserve the status quo, and which was in effect until
they agreed to dissolve the stay in part on August 27,
2015. See Reddy v.
Foster, No. 14-cv-299-JL, 2016 WL 1305141, at *3
(D.N.H. Apr. 1, 2016). The district court ultimately granted
the defendants' motion to dismiss for lack of standing.
Id. at *1.
agree with the district court that this pre-enforcement
facial challenge to the Act's constitutionality relies on
overly speculative allegations of injury in fact and is
"premature." Id. The plaintiffs have shown
neither standing nor ripeness. First, the plaintiffs have not
alleged that the Act has meaningfully altered their
expressive activities, nor that it has objectively chilled
their exercise of First Amendment rights. Because no facility
in New Hampshire has yet demarcated a zone, and there is no
present evidence that a zone will ever be demarcated, the
plaintiffs' "alleged injury is . . . too speculative
for Article III purposes." Clapper v.
Amnesty Int'l USA, 133 S.Ct. 1138, 1147 (2013)
(quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 565 n.2 (1992)). Second, the
plaintiffs have failed to establish standing either by
arguing that case law about prior restraint applies, see
Van Wagner Bos., LLC v. Davey, 770
F.3d 33 (1st Cir. 2014), or by arguing from the fact that the
Act authorizes private clinics to create buffer zones. The
Act is not a prior restraint, and there are no factual
allegations that a clinic has used its zone-drawing power as
a tool to change the plaintiffs' behavior. Third, because
the plaintiffs have not alleged a present chill, and because
they have failed to allege the contours or location of any
buffer zone, or why such a zone was created, we have no ripe
case to adjudicate and no facts that would allow us to
fashion judicial relief. See Texas v.
United States, 523 U.S. 296, 300 (1998).
the district court granted a motion to dismiss for lack of
standing, see Fed. R. Civ. P. 12(b)(1),
"'we accept as true all well-pleaded fact[s] . . .
and indulge all reasonable inferences' in the
plaintiff[s'] favor." Kerin v.
Titeflex Corp., 770 F.3d 978, 981 (1st Cir. 2014)
(first alteration in original) (quoting Katz
v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir.
2012)). The record properly before us consists of both the
complaint and "other materials in the district court
record, " whether or not the facts therein are
consistent with those alleged in the complaint.
Downing/Salt Pond Partners, L.P. v.
Rhode Island, 643 F.3d 16, 17 (1st Cir. 2011).
Legislative History of the Act
"Statement of Findings and Purposes" accompanying
the passage of the Act, the New Hampshire Legislature found
that "[r]ecent demonstrations outside of reproductive
health care facilities" had (1) "resulted in the
fear and intimidation of patients and employees of the
facilities, " (2) "caused patients and employees .
. . to believe that their safety and right of privacy [we]re
threatened, " and (3) "resulted in the fear and
intimidation of residents and patrons seeking to enter or
leave their homes or other private businesses adjacent to the
. . . facilities." The Legislature simultaneously found,
however, that "[t]he exercise of a person's right to
protest or counsel against certain medical procedures is a
First Amendment activity that must be protected."
Accordingly, the Legislature concluded that
establishing a limited buffer zone outside of some
reproductive health care facilities located in the state of
New Hampshire [wa]s necessary to ensure that patients and
employees of reproductive health care facilities ha[d]
unimpeded access to reproductive health care services while
accommodating the First Amendment right of people to
communicate their message to their intended audience without
undue burdens or restrictions.
to accommodate those interests, the Act provides that
"[n]o person shall knowingly enter or remain on a public
way or sidewalk" within a buffer zone demarcated by a
reproductive health care facility. RSA § 132:38, I. That
prohibition does not apply to four classes of persons: a)
Persons entering or leaving such facility.
b) Employees or agents of such facility acting within the
scope of their employment for the purpose of providing
patient escort services only.
c) Law enforcement, ambulance, firefighting, construction,
utilities, public works and other municipal agents acting
within the scope of their employment.
d) Persons using the public sidewalk or the right-of-way
adjacent to such facility solely for the purpose of reaching
a destination other than such facility.
Id. § 132:28, I(a)-(d). The Act also provides
that facilities must first consult with law
enforcement and with local authorities with authority
over signage "[p]rior to posting the signage . . . to
ensure compliance with local ordinances, " id.
§ 132:38, III, and then must "clearly
demarcate" any zone they wish to create by means of
signage bearing specified language, id. §
132:38, II. A zone created pursuant to the Act is
"effective [only] during the facility's business
hours." Id. § 132:38, IV.
enforcement officers may not impose sanctions, which are
civil sanctions, for violating the Act "unless the
signage authorized in RSA 132:38, II was in place at the time
of the alleged violation." Id. § 132:39,
III. If that precondition is satisfied, an officer is
restricted to giving a "written warning" for an
individual's first violation of the Act, and then a
citation for subsequent violations. Id. §
132:39, I. The citation carries with it "a minimum fine
of $100, " and "the attorney general or the
appropriate county attorney may bring an action for
injunctive relief to prevent further violations."
Id. § 132:39, II. The Act also has a
severability clause. Id. § 132:40.
past, some of New Hampshire's clinics have resolved or
attempted to resolve disputes with protestors by asking local
police officers to enforce generally applicable local civil
ordinances relating to public peace, safety, and crowd
McCullen v. Coakley
days after Governor Hassan signed the Act into law, the U.S.
Supreme Court decided McCullen, and that decision
affected the parties in this case. McCullen held
unconstitutional a Massachusetts statute that
"categorically excluded" most individuals from the
area within a fixed 35-foot radius of "any portion of an
entrance, exit or driveway of a reproductive health care
facility" during the facility's business hours. 134
S.Ct. at 2526. The statute was enforceable both civilly and
criminally, with fines, imprisonment, or both. Id.
Massachusetts statute, the Court said, was a content-neutral
time, place, or manner regulation of speech. See id.
at 2530-34. The Court applied the test for such regulations,
as articulated in Wardv.Rock Against
Racism, 491 U.S. 781 (1989), and concluded that the
statute was not narrowly tailored, see McCullen, 134
S.Ct. at 2534-40, because it "burden[ed] substantially
more speech than [wa]s necessary to further the
government's legitimate interests, " id. at