Shea v. Spokane Washington

• Court: District Court, E.D. Washington
• Decided: September 30, 2025
• Docket: 2:25-cv-00031
• Status: Unknown

Opinion

1 U.S. F D IL IS E T D R I I N C T T H C E O URT EASTERN DISTRICT OF WASHINGTON UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Sep 30, 2025 3 SEAN F. MCAVOY, CLERK MATTHEW SHEA, No. 2:25-CV-0031-JAG 4

5 Plaintiff, ORDER DISMISSING 6 CLAIMS 1-5 AND CLAIMS 7-9. -vs- 7 8 SPOKANE, WASHINGTON, ZACK ZAPPONE; BETSY WILKERSON; 9 KAREN STRATTON; and LORI 10 KINNEAR, ORDER GRANTED IN PART AND DENIED IN PART 11 Defendants. (ECF No. 6) 12

13 BEFORE THE COURT is Defendants’ Motion to Dismiss. ECF No. 6. 14 The Court has reviewed the briefing and the Complaint, ECF No. 1, and is fully 15 informed. For the reasons detailed below, Claims 1-5 and Claims 7-9 are 16 dismissed with prejudice. 17 I. INTRODUCTION 18 Defendants seek dismissal of the Complaint pursuant to Fed. R. Civ. P. 19 12(b)(6) for failure to state a claim and based on immunity to all of Plaintiff’s 42 20 U.S.C. § 1983 (“Section 1983”) claims. ECF No. 6. Defendants ask the Court to 21 22 dismiss Plaintiff’s claims as no claim alleged is supported by facts that if proven, 23 could support a finding in Plaintiff’s favor. For the reasons stated below, the Court 24 grants, in part, and denies, in part, Defendants’ Motion to Dismiss. 25 II. BACKGROUND 26 Plaintiff challenges Spokane City Council Resolution 2023-0081 (“the 27 Resolution”). The Resolution formally denounced then-Mayor Nadine 28 Woodward’s actions that “affiliated the City of Spokane and its residents with former Washington State Representative and identified domestic terrorist, Matt 1 2 Shea, and known anti-LGBTQ extremist Sean Fuecht.” ECF No. 1-1. Plaintiff 3 raises ten claims—six federal claims and four state law claims. Plaintiff claims the 4 Resolution violates his First Amendment rights, is an unlawful bill of attainder, 5 and violates the Washington State Constitution. 6 III. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) 7 To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, a Complaint must 8 allege sufficient facts to raise the right to relief beyond a speculative level. Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A Complaint provides a 10 defendant notice of the claim(s) being made and the facts a plaintiff asserts support 11 those claims. “Federal Rule of Civil Procedure 8(a)(2) requires only a short and 12 plain statement of the claim showing that the pleader is entitled to relief, in order to 13 give the defendant fair notice of what the ... claim is and the grounds upon which it 14 rests.” Twombly, 550 U.S. at 555 (internal citations omitted). Courts need not 15 accept as true legal conclusions “[t]hreadbare recitals of the elements of a cause of 16 action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 17 678 (2009). Only a Complaint that states a plausible claim for relief with well- 18 pleaded facts demonstrating the pleader's entitlement to relief can survive a motion 19 to dismiss. Id. at 679. “The plausibility of a pleading thus derives from its well- 20 pleaded factual allegations.” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 21 (9th Cir. 2021). 22 23 IV. ANALYSIS 24 A. Claim 1 – Violation of the Free Exercise Clause – 42 U.S.C. § 1983: 25 The Free Exercise Clause of the First Amendment provides that “Congress 26 shall make no law respecting an establishment of religion, or prohibiting the free 27 exercise thereof ....” U.S. Const. amend I. “At a minimum, the protections of the 28 Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for 1 2 religious reasons.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah., 508 3 U.S. 520, 532 (1993). 4 Distilled, Supreme Court authority sets forth three bedrock requirements of the Free Exercise Clause that the government may 5 not transgress, absent a showing that satisfies strict scrutiny. First, a 6 purportedly neutral generally applicable policy may not have a mechanism for individualized exemptions. Second, the government 7 may not “treat ... comparable secular activity more favorably than 8 religious exercise.” Third, the government may not act in a manner 9 hostile to ... religious beliefs or inconsistent with the Free Exercise Clause's bar on even subtle departures from neutrality. The failure 10 to meet any one of these requirements subjects a governmental 11 regulation to review under strict scrutiny. 12 Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 13 F.4th 664, 686 (9th Cir. 2023). The success of a Free Exercise claim hinges on 14 Governmental action affecting a plaintiff in a regulatory or compulsory manner. 15 See Am. Fam. Ass'n, Inc. v. City & Cnty. of San Francisco, 277 F.3d 1114, 1123– 16 24 (9th Cir. 2002). 17 Plaintiff argues the Resolution must survive strict scrutiny because it is 18 neither generally applicable nor neutral. As in Am. Fam. Ass’n, Inc., Plaintiff, 19 overlook[s] a critical distinction, however: in this case, there is no 20 actual ‘law’ at issue. In fact, there does not appear to be any case in this circuit applying Smith or Lukumi to some non-regulatory or non- 21 compulsory governmental action—in other words, to something other 22 than an actual law. 23 277 F.3d at 1123–24. 24 Accordingly, based on the foregoing, Plaintiff cannot meet his burden under 25 the Free Exercise Clause “when the challenged government action is neither 26 regulatory, proscriptive or compulsory…” Id. at 1124. Here, the Resolution 27 enacted by the City Council criticized then-Mayor Nadine Woodward’s public 28 appearance with Plaintiff and others in strong terms. The Resolution, however, regulated nothing, proscribed nothing, and compelled nothing. 1 2 “[P]ublic officials may criticize practices that they would have no 3 constitutional ability to regulate, so long as there is no actual or threatened 4 imposition of government power or sanction.” American Family, 277 F.3d at 5 1125. In Alameda Newspapers, Inc. v. City of Oakland, the Ninth Circuit 6 examined a Resolution issued by the city council in Oakland that was “in essence a 7 declaration of principle or conscience.” 95 F.3d 1406, 1414 (9th Cir. 1996). The 8 Oakland City council announced support for a boycott of the Oakland Tribune 9 during a labor dispute with workers. Id at 1410. The council “urged all citizen of 10 Oakland to stop purchasing and advertising . . . until the labor dispute is 11 successfully concluded.” Id. As in this case, the Oakland Resolution lacked the 12 hallmarks of a law because the resolution was “clearly expressive in nature.” Id. at 13 1414. The Ninth Circuit compared the Oakland Resolution to one addressed in a 14 Fifth Circuit case, finding that the Oakland Resolution did not provide for 15 compulsory fact finding, issuance of a report, nor did the Resolution include “the 16 official assignment of responsibility or blame for its origin and continuation.” Id. 17 Consequently, the Oakland Resolution did not exercise direct coercive power with 18 indirect coercive effect. Id. In other words, the “resolution did not invoke the 19 exercise of a governmental function—the conducting of a formal investigation and 20 the issuance of formal findings. In the words of the Fifth Circuit, the Oakland City 21 Council's resolution was ‘limited to editorial comment.’” Id, at 1414–15. 22 23 The Resolution passed by the Spokane City Council performs the same type 24 of expressive function as the Oakland Resolution. Upon examination of the 25 Oakland Resolution, the Ninth Circuit concluded that, “[e]ven assuming that under 26 some circumstances speech by a governmental agency might attain coercive 27 power, the council resolution at issue does not constitute that type of speech. The 28 resolution here is clearly expressive in nature. It constitutes a declaration of principle, rather than an exercise of governmental powers.” Id. at 1414. The same 1 2 can be said for the Resolution at issue in this case. The Spokane City Council 3 expressed its collective opinion about Mr. Shea and then-Mayor Nadine 4 Woodward but imposed no further sanction or consequence. 5 Despite Plaintiff’s assertions to the contrary, Supreme Court decisions 6 addressing the Free Exercise Clause did not expand review of government actions 7 to instances where the government speaks for itself in a non-lawmaking capacity. 8 Recent cases honing Free Exercise jurisprudence involve laws passed by the 9 legislature that: (1) directly affected certain religious practice, see Lukumi, 508 10 U.S. 520 (law targeted Santeria practices to prevent worship within the town.); (2) 11 required a person to act in a manner that conflicted with their personal religious 12 beliefs in order to comply with the law, see Masterpiece Cakeshop v. Colorado 13 C.R. Comm'n, 584 U.S. 617 (2018) (equal protection laws required a baker to 14 decorate a cake for a same sex couple’s wedding); or (3) resulted in loss of 15 employment of a public employee, see Kennedy v. Bremerton School District, 597 16 U.S. 507 (2022) (football coach fired for engaging in open invitation prayer at 17 midfield following public school games). The Supreme Court has yet to address 18 whether a toothless legislative resolution aimed at the purported censuring of an 19 executive qualifies as a governmental policy that triggers a violation of the Free 20 Exercise Clause, but precedent addressing the Establishment Clause suggests it 21 would not. In Town of Greece and Marsh, the Supreme Court found that prayer for 22 23 the benefit of elected officials did not impinge on the Establishment Clause 24 because the “prayer is an opportunity for [members of town boards and 25 commissions] to show who and what they are without denying the right to dissent 26 by those who disagree.” Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 587–88 27 (2014). 28 The Resolution represents a policy statement, an instance of the government 1 2 speaking for itself, rather than lawmaking because it lacks the hallmarks of a law. 3 According to Defendant’s, the Resolution “resolves” four issues: (1) criticizing 4 Mayor Woodward for affiliating the City of Spokane with Plaintiff and others; (2) 5 a belief in the separation of church and state and an individual’s right to practice 6 religion freely; (3) reaffirming the City Council’s pledge to accept and serve all 7 citizens of the community and eschewing fear, hatred, violence, and bigotry; and 8 (4) an aspiration to promote belonging in the community. ECF No. 10-1. Like in 9 the Oakland case, the Resolution was limited to editorial comment, specifically, 10 comment on then-Mayor Nadine Woodward’s actions as they reflect on the city of 11 Spokane, affirmation of constitutional principles and affirmation of inclusion. The 12 Resolution did not affect Plaintiff’s religious practice, nor compel Plaintiff to act; 13 in fact, the Resolution made no demands of any kind of Plaintiff. And, of course, 14 Plaintiff—and anyone else—remains free to criticize the Resolution and the 15 wisdom of promulgating the Resolution. 16 Plaintiff argues that the Resolution imposed punishment upon Plaintiff via 17 condemnation of the mayor and the Resolution’s expression of disapproval of 18 Plaintiff’s beliefs. “Offense, however, does not equate to coercion.” Town of 19 Greece, N.Y. v. Galloway, 572 U.S. 565, 589 (2014). Mere legislative expression 20 of disapproval does not run afoul with exercise of constitutional rights without 21 some sort of imposition of governmental power. See, e.g., Penthouse Int'l Ltd. v. 22 23 Meese, 939 F.2d 1011, 1015–16 (D.C.Cir.1991) (public officials entitled to 24 criticize publishers of pornography where letter contained no threat or intimation 25 of intent to prosecute or prescribe publisher's conduct). 26 Ultimately, there is no set of facts Plaintiff can prove to successfully pursue 27 his Free Exercise claim because the Resolution lacks the compulsory power of law. 28 Therefore, the claim shall be dismissed. 1 B. Claim 2 – Violation of the Establishment Clause – 42 U.S.C. § 1983: 2 “‘[W]here the Establishment Clause is at issue,’ the Court must ‘distinguish 3 between real threat and mere shadow.’” Am. Legion v. Am. Humanist Ass'n, 588 4 U.S. 29, 68 (2019) (Breyer, J. joined by Kagen, J., concurring) (quoting School 5 Dist. of Abington Township v. Schempp, 374 U.S. 203, 308 (1963)). An 6 “Establishment Clause violation is not made out any time a person experiences a 7 sense of affront from the expression of contrary religious views in a legislative 8 forum,” rather, a Plaintiff must demonstrate that the government action involves 9 exercises legal coercion. Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 589. 10 “In other words, establishment at the founding involved, for example, mandatory 11 observance or mandatory payment of taxes supporting ministers.” Cutter v. 12 Wilkinson, 544 U.S. 709, 729 (2005) (Thomas, J., concurring in judgment). And 13 “government practices that have nothing to do with creating or maintaining ... 14 coercive state establishments” simply do not “implicate the possible liberty interest 15 of being free from coercive state establishments.” Elk Grove Unified Sch. Dist. v. 16 Newdow, 542 U.S. 1, 53 (2014) (Thomas, J., concurring in judgment). 17 Courts must “interpret the Establishment Clause by ‘reference to historical 18 practices and understandings.’ Going forward, ‘the line that courts and 19 governments must draw between the permissible and the impermissible has to 20 accord with history and faithfully reflect the understanding of the Founding 21 Fathers.’” Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 888 (9th Cir. 22 23 2022) (citing Kennedy v. Bremerton School District, 597 U.S. 507 (2022)). “The 24 Framers understood an establishment “necessarily [to] involve actual legal 25 coercion.” Newdow, 542 U.S. at 52 (Thomas, J., concurring in judgment); see 26 also, Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The 27 coercion that was a hallmark of historical establishments of religion was coercion 28 of religious orthodoxy and of financial support by force of law and threat of penalty”). In our society, “[a]dults often encounter speech they find disagreeable; 1 2 and an Establishment Clause violation is not made out any time a person 3 experiences a sense of affront from the expression of contrary religious views in a 4 legislative forum.” Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 589. 5 “Simply having religious content or promoting a message consistent with a 6 religious doctrine does not run afoul of the Establishment Clause.” Van Orden v. 7 Perry, 545 U.S. 677, 690 (2005). To establish a claim Plaintiff must prove that the 8 Resolution exercised actual legal coercion through the threat of penalty, not merely 9 a sense of affront. Id. 10 Plaintiff claims the Resolution “tends to establish an acceptable state 11 religion or religious faith,” “determines what is orthodox” in Spokane, and 12 “exercised governmental power to compel religious observance,” but fails to cite a 13 single provision of the Resolution that does any of those things. ECF No. 1-1; see 14 also ECF No. 9. The Resolution pledges that the Council will “accept and serve all 15 citizens of our community, regardless of race, religion, color and sexual identity; 16 and will never accept ideologies that promote fear, hatred, violence, and bigotry.” 17 ECF No. 10-1. The Resolution recites the Spokane City Council’s collective 18 pledge to “never accept” certain ideologies, but the Resolution does not state nor 19 imply that members of the community were required to eschew hate, violence, and 20 bigotry, the Resolution only states that the Spokane City Council does so and 21 intends to serve all members of the community. 22 23 Following recent Establishment Clause jurisprudence, the Court must 24 examine historical practices surrounding ideological Resolutions. Boquist v. 25 Courtney, 32 F.4th 764, 775–76 (9th Cir. 2022). Resolutions expressing 26 displeasure with the executive branch and on policy issues enjoy a long history. 27 See Houston Community College System v. Wilson, 595 U.S. 468, 474 - 77, (2022) 28 (Court details this history of censure of the executive by members in the context of free speech claims.) “Since 1800, Members of the House and Senate have 1 2 introduced resolutions of censure against at least 12 sitting Presidents.” 3 Resolutions to Censure the President: Procedures and History, Christopher M. 4 Davis and Jan A. Hudiburg, February 1, 2021, https://www.congress.gov/crs- 5 product/R45087#:~:text=Since%201800%2C%20Members%20of%20the,an%20a 6 mendment%20to%20a%20resolution). The legislative branch also may pass 7 resolutions expressing the chambers’ collective opinion about issues political 8 issues that they have no power to enforce. See, e.g., H.Con.Res.9 Denouncing the 9 horrors of socialism (2023). 10 Much like the Free Exercise claim, the Resolution’s lack of regulatory, 11 proscriptive, or compulsory mandate is fatal to the Establishment Clause claim. 12 The Resolution expresses the collective opinion of the Spokane City Council. The 13 Resolution purports to denounce then-Mayor Woodward and expresses the City 14 Council’s collective opinion. Legislative bodies have passed such resolutions 15 since the early days of the Republic to express their collective opinions whether by 16 denouncing a president, railing against socialism, or affirming a welcoming 17 community free of violence. Others in the community are then free to disagree and 18 express their disapproval of all such legislative expressions of opinion. 19 C. Free Speech Claims: 20 The First Amendment provides that “Congress shall make no 21 law…abridging the freedom of speech....” U.S. Const. amend. I. “The Free 22 23 Speech Clause restricts government regulation of private speech; it does not 24 regulate government speech.” Pleasant Grove City, Utah v. Summum, 555 U.S. 25 460, 467 (2009). A plaintiff must allege that the government action complained of 26 burdens protected speech, whether through restricting speech, punishing speech, or 27 chilling people from engaging in speech to state a claim under the First 28 Amendment. Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 890 (9th Cir. 2022). Plaintiff alleges three claims premised on violations of the Free Speech 1 2 clause: (a) retaliation, (b) compelled speech, and (c) impermissible content/ 3 viewpoint restrictions. Notably, 4 [i]f every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of 5 great concern to the public would be limited to those in the private 6 sector, and the process of government as we know it radically transformed. 7 Keller v. State Bar of Cal., 496 U.S. 1, 12–13, (1990). 8 1. Claim 3 – Retaliation – 42 U.S.C. § 1983: 9 “[A]s a general matter, the First Amendment prohibits government officials 10 11 from subjecting individuals to retaliatory actions after the fact for having engaged 12 in protected speech.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 13 (2022). To demonstrate retaliation, Plaintiff must plead and prove that: 14 (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a 15 person of ordinary firmness from continuing to engage in the protected 16 activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. 17 Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). 18 19 Plaintiff pled facts sufficient at this juncture to prove he engaged in 20 constitutionally protected speech, satisfying the first prong. 21 To prove the second prong, Plaintiff must show “that the government took 22 an adverse action in response to his speech that would not have been taken absent 23 the retaliatory motive.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477. 24 Plaintiff must also demonstrate the adverse action is material. Wilson 595 U.S. at 25 477. Materiality requires Plaintiff to prove a chilling consequence of the speech, 26 “de minimis deprivations of benefits and privileges on account of one’s speech do 27 not give rise to a First Amendment claim.” Boquist v. Courtney, 32 F.4th 764, 776 28 (9th Cir. 2022). The Ninth Circuit has held: Rather, for adverse, retaliatory actions to offend the First Amendment, 1 they must be of a nature that would stifle someone from speaking out. 2 The most familiar adverse actions are exercises of governmental power 3 that are regulatory, proscriptive, or compulsory in nature and have the effect of punishing someone for his or her speech. 4 Blair v. Bethel Sch. Dist., 608 F.3d at 544 (internal citations omitted) (cleaned up). 5 Consequently, like in the Free Exercise and Establishment clause claims, 6 Plaintiff must plead facts that prove the exercise of governmental power, i.e. the 7 Resolution, was regulatory, proscriptive, or compulsory in nature. As discussed in 8 the previous claims, Plaintiff cannot meet his burden. Though the Resolution 9 purports to censure or denounce Mayor Woodward, the resolution lacks any 10 11 enforcement provision. Upon examination of the historical record, the Supreme 12 Court concluded that a “purely verbal censure” of another political representative, 13 has never been “widely considered offensive to the First Amendment.” Houston 14 Cmty. Coll. Sys. v. Wilson, 595 U.S. at 475. 15 By criticizing the then-Mayor, the Resolution represents an expression of the 16 collective opinion of the Spokane City Council—an expression of the council 17 member’s Free Speech. When government officials engage in their own 18 expressive conduct “the Free Speech Clause has no application. The government 19 can say what it wishes and select the views that it wants to express.” Nat'l Rifle 20 Ass'n of Am. v. Vullo, 602 U.S. 175, 187 (2024). As the Supreme Court notes: 21 The First Amendment surely promises an elected representative . . . the 22 right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives 23 seeking to do the same. The right to examine public characters and 24 measures through free communication may be no less than the guardian 25 of every other right. And the role that elected officials play in that process makes it all the more imperative that they be allowed to freely 26 express themselves. 27 Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 478 (internal citations omitted). 28 The Court recognizes that despite the fact the Resolution directs its ire at 1 2 then-Mayor Woodward, Plaintiff felt affronted by the Resolution because it passed 3 judgment on Mayor Woodward for her association with him. Such an affront, 4 however, represents a de minimus incursion not protected by the First Amendment. 5 2. Claim 4 – Compelled Speech – 42 U.S.C. § 1983: 6 “[T]he First Amendment protects an individual's right to speak his mind 7 regardless of whether the government considers his speech sensible and well 8 intentioned or deeply misguided, and likely to cause anguish or incalculable grief.” 9 303 Creative LLC v. Elenis, 600 U.S. 570, 586 (2023). Though the government 10 may speak for itself, the “government may not compel a person to speak its own 11 preferred messages.” Id. A compelled speech violation arises from “the fact that 12 the complaining speaker's own message was affected by the speech it was forced to 13 accommodate.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 63 14 (2006). In 303 Creative, the plaintiff complained that public accommodation laws 15 would require her to create websites, a form of speech, that did not conform with 16 her beliefs or face assessment of a fine. Id. at 570. The Supreme Court also 17 recognizes compelled silence as speech. X Corp. v. Bonta, 116 F.4th 888, 900 (9th 18 Cir. 2024), Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796 19 (1988). 20 Here, Plaintiff’s Complaint states that Defendants “sought and continue to 21 seek to coercively compel certain speech,” ECF No. 1-1 at ¶ 393, and “to 22 23 coercively compel this speech to excise and eliminate” Plaintiff’s beliefs from the 24 public dialogue. ECF No. 1-1 at ¶ 397. Plaintiff alleges that he “faces a very real 25 and credible threat that if he continues to practice Christianity and speak his 26 sincerely held Christian beliefs, Defendants will continue to condemn, denounce, 27 or punish him through additional resolutions or even greater forms of sanctions.” 28 ECF No. 1-1 at ¶ 398. The Complaint fails to include facts supporting any of these assertions. In the briefing Plaintiff clarifies that the claims are twofold: (1) a 1 2 facial challenge of the Resolution as compelled speech; and (2) as applied, 3 Defendants sought to use the city motto to compel speech. 4 Censure of a third party fails to meet the legal definition of compelled 5 speech. See Rumsfeld, 547 U.S. at 63.1 Defendants gave no direction or 6 instruction to Plaintiff regarding the content of his speech in the Resolution. The 7 Resolution did not compel Plaintiff, or anyone else, to do anything. Unlike in 8 Wooley v. Maynard where plaintiffs faced criminal sanctions if they failed to 9 display or covered the “Live Free or Die” motto on their New Hampshire license 10 plate, Plaintiff was not required to agree with, or tacitly approve, the motto or 11 political views of the council members. 430 U.S. 705, 707 (1977). Neither the 12 Resolution nor the motto imposed a sanction or penalized Plaintiff due to his 13 speech. 14 3. Claim 5 – Impermissible Content/Viewpoint Restrictions – 42 U.S.C. 15 § 1983: 16 “Generating public pressure to motivate others to change their behavior is a 17 core part of public discourse, and we are aware of no constitutional right that 18 requires legislators to refrain from such speech or advocacy. In fact, any such right 19 would stand the Constitution on its head by cutting off political discourse.” 20 Kennedy v. Warren, 66 F.4th 1199, 1208 (9th Cir. 2023) (internal citations 21 removed and cleaned up). Government speech runs afoul of Free Speech 22 Content/Viewpoint restrictions when government actors exercise coercive threats 23 24 1 Plaintiff appears to concede this point in the briefing, citing to no case law to 25 26 support his supposition that censure of a third party qualifies as compelling speech 27 or that criticism of his political positions that the Defendants disagreed with at a 28 public meeting qualifies as a punishment or a sanction. with the intent of controlling the content of speech. Kennedy, 66 F.4th at 1209. As 1 2 the Supreme Court notes: 3 To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege 4 conduct that, viewed in context, could be reasonably understood to 5 convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech. 6 Nat'l Rifle Ass'n of Am. v. Vullo, 602 U.S. at 191. To establish a claim of 7 impermissible content and viewpoint-based restrictions, Plaintiff must demonstrate 8 that the Government coerced rather than persuaded a third-party. Kennedy v. 9 Warren, 66 F.4th 1199, 1209 (9th Cir. 2023). See also, Nat'l Rifle Ass'n of Am. v. 10 11 Vullo, 602 U.S. at 191. “[R]eputational injury is not itself a reason to prevent 12 government officials from engaging in the rough and tumble of political debate.” 13 Kennedy v. Warren, 66 F.4th at 1206. Criticism of speech is insufficient to state a 14 claim where there was no sanction or threat if Plaintiff continued to preach his 15 beliefs. Am. Fam. Ass'n, Inc. v. City & Cnty. of San Francisco, 277 F.3d 1114, 16 1125 (9th Cir. 2002). 17 Plaintiff challenges both the Resolution and the ordinance designating 18 Spokane’s motto based on content / viewpoint restrictions but fails to plead facts 19 supporting any type of sanction, threat, or coercion. Plaintiff alleges that 20 “Defendants’ use of their actions; the enactment of the Resolution; and of Spokane 21 City Ordinance C36403 or Spokane Municipal Cod 01.03.030 (as applied) as a 22 basis to restrict speech discriminates based upon content and viewpoint.” ECF 23 No. 1-1, ¶ 408. This confusingly worded bare allegation contains no factual 24 support. The briefing clarifies that Plaintiff views the “Resolution is a censure 25 sanction” that restricts Plaintiff’s viewpoint “by working to deprive him of his 26 association and petition rights with government officials.” ECF No. 9, at 19. 27 As discussed above, censure or denouncing a third party exercises de 28 minimis effect on Plaintiff’s speech. Plaintiff’s right to association and right to 1 2 petition the Government are constitutionally protected, but not alleged as separate 3 claims. Nor did the ordinance or Resolution curtail any of the above rights. 4 Rather, the Resolution expressed the collective opinion of the council members, 5 which represents expressive speech of the government which is constitutionally 6 protected. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009). 7 Government officials may criticize so long as they do not coerce. Kennedy v. 8 Warren, 66 F.4th 1199, 1211 (9th Cir. 2023). 9 D. Claim 6 –Bill of Attainder – 42 U.S.C. 1983: 10 Plaintiff argues that labeling him as an “identified domestic terrorist” in a 11 resolution censuring former Mayor Woodward equates to an unlawful Bill of 12 Attainder. In the Complaint, Plaintiff argues the Resolution also imposes 13 punishment as well as the threat of future punishment. ECF No. 1.1. Plaintiff 14 asserts that “[a]s a result of Defendants’ actions” and the critical description of him 15 coupled with the denouncement in the Resolution Plaintiff “was prohibited from 16 accessing publicly accessible areas of Spokane City Hall building.” ECF No. 1-1 17 at 54. Further, the Resolution “provides for direct or indirect banishment of 18 [Plaintiff] from Spokane…” Id. Plaintiff’s Complaint also alleges in several 19 paragraphs that Defendants “label-lynched” Plaintiff in a variety of ways. In the 20 briefing, Plaintiff argues the censure of then-Mayor Woodward coupled with the 21 “label-lynching” marked Plaintiff with a brand of disloyalty, infamy, or outlawdry, 22 23 or a brand of opprobrium which qualifies as a form of punishment. 24 Three key features brand a statute a bill of attainder: (1) the statute specifies 25 the affected person[s]; (2) the statute inflicts punishment; and (3) the statute does 26 so without a judicial trial. SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 27 662, 668–69 (9th Cir. 2002). Plaintiff’s Complaint clearly asserts facts supporting 28 the first and last features of a bill of attainder: the Resolution names him specifically and no judicial trial occurred. The Court must then determine whether 1 2 the facts in the Complaint support a finding that the Resolution imposed 3 punishment. To determine whether a bill imposes a punishment, the courts have 4 examined: (1) traditional / historical punishments; (2) applied a functional test to 5 determine whether a bill imposes punishment; and (3) inquired “whether the 6 legislative record evinces a congressional intent to punish.” Nixon v. Adm'r of 7 Gen. Servs., 433 U.S. 425, 478, (1977). 8 Punishments that have historically qualified as a bill of attainder include 9 death, imprisonment, banishment, and/or punitive taking of personal property. Id. 10 at 474. Plaintiff’s Complaint alleges he has been subject to banishment. 11 Banishment has traditionally been associated with deprivation of 12 citizenship, and does more than merely restrict one's freedom to go or remain where others have the right to be: it often works a destruction 13 of one's social, cultural, and political existence. It describes an ouster 14 from the individual's home city, country, or territory. 15 SeaRiver, 309 F.3d at 673. According to “Black's Law Dictionary ‘banishment’ is 16 defined as ‘a punishment inflicted upon criminals, by compelling them to quit a 17 city, place, or country, for a specific period of time, or for life.” United States v. Ju 18 Toy, 198 U.S. 253, 269–70 (1905). “[B]anishment is a punishment, and of the 19 severest sort,” United States v. Ju Toy, 198 U.S. 253, 273 (1905). 20 Though the Resolution contains no language amounting to banishment, at 21 this stage of the pleadings, the Court cannot say that there are no facts supporting 22 Plaintiff’s claims. Plaintiff’s Complaint alleges the Resolution marked a brand of 23 opprobrium or infamy on him which he argues also qualifies as a historical 24 punishment. Specifically, Plaintiff finds fault with the portion of the Resolution 25 describing him as an “identified domestic terrorist.” Plaintiff appears to use the 26 term “label lynching” as a proxy for the concept of brand of infamy or opprobrium. 27 The Supreme Court has made clear that a formal legislative 28 announcement of moral blameworthiness or punishment” is not 1 necessary to an unlawful bill of attainder. All that is necessary is that 2 the legislative process and the law it produces indicate a congressional 3 purpose to behave like a court and to censure or condemn. 4 Foretich v. United States, 351 F.3d 1198, 1226 (D.C. Cir. 2003) (internal citations 5 omitted). Foretich recognized that a law may be invalidated as an unlawful bill of 6 attainder “where its effect is to mark specified persons with a brand of infamy or 7 disloyalty.” Id. at 1219. In Foretich, Congress labeled Dr. Foretich as a sex 8 offender and stripped his parental rights in a bill, despite court proceedings 9 consistently clearing Dr. Foretich of any abuse. Id. (“[S]urely deprivation of Dr. 10 Foretich's right to be with his own daughter on the basis of a legislative 11 determination of criminal sexual abuse also qualifies” as historical punishment for 12 the purposes of a bill of attainder.) 13 The Resolution in this case declared Plaintiff to be an “identified” domestic 14 terrorist, presupposing a legal conclusion not made in a court of law. Plaintiff 15 argues that the Resolution tarnishes his reputation to the extent that it qualifies as 16 punishment for the purposes of an unconstitutional bill of attainder. Reputational 17 injury alone is sufficient for standing, and at this point of the case, a sufficient 18 factual allegation of punishment to survive a motion to dismiss. Foretich, 351 19 F.3d at 1211. In combination with the alleged banishment, Plaintiff has pled 20 sufficient facts to support his claim of an unlawful bill of attainder. 21 Applying the functional test, the Supreme Court has analyzed “whether the 22 law under challenge, viewed in terms of the type and severity of burdens imposed, 23 reasonably can be said to further nonpunitive legislative purposes.” Id. at 475 – 24 25 76. Although “the severity of a sanction is not determinative of its character as 26 punishment,” Selective Serv. Sys. v. Minnesota Pub. Int. Rsch. Grp., 468 U.S. 841, 27 851–52 (1984), if the legislative act “furthers a nonpunitive legislative purpose, it 28 is not a bill of attainder.” SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 674 (9th Cir. 2002). As discussed above the Resolution served the purpose of 1 2 sharing the collective opinion of the Spokane City Council and censured then- 3 Mayor Woodward. The Resolution imposes no direct burden on Plaintiff. The 4 Resolution tells him to do nothing, it restricts nothing, and requires nothing of him. 5 Lastly, the Court examines the record to evince legislative intent to 6 determine whether the Council intended to impose a punishment on Plaintiff. As 7 discussed above, the facts contained in Plaintiff’s Complaint outlining the 8 legislative history of the Resolution clearly illustrates the nonpunitive motive of 9 expressing the collective opinion of the city council that anti-LGBTQ rhetoric is 10 antithetical to the welcoming inclusive motto of the city. However, as outlined in 11 the Complaint, the legislative history also illustrates that certain council members 12 strongly disagreed with Plaintiff, particularly his anti-government actions. 13 Accordingly, at this stage of the proceedings, the Complaint has alleged 14 sufficient facts to survive a motion to dismiss. 15 E. Claims 7 through 10 – State Law Claims: 16 “Washington courts have consistently rejected invitations to establish a 17 cause of action for damages based upon constitutional violations without the aid of 18 augmentative legislation.” Blinka v. Washington State Bar Ass'n, 109 Wash. App. 19 575, 591 (2001). Plaintiff tacitly acknowledges this point but asks the Court to 20 certify the question to the Washington State Supreme Court. The Court declines 21 the invitation. As no cause of action exists, the state constitutional law claims are 22 23 dismissed with prejudice. 24 F. Defenses: 25 Defendants pose two potential shields from liability, qualified immunity and 26 legislative immunity. At this juncture, the Court requires further development of 27 the factual record determine whether one or both defenses apply. The Court 28 reserves decision on applicability of these defenses. 1 Vv. CONCLUSION 2 Plaintiff's Complaint fails to state any First Amendment claim or state 3|| constitutional claim. Therefore, those claims, Claims 1-5 and Claims 7-10, are 4|| dismissed with prejudice. The facts stated in the Complaint are sufficient to 5|| survive Defendant’s motion to dismiss the claim of unlawful bill of attainder at this 6|| stage of the proceedings. The claim seeking declaratory judgment is partially 7|| premised on the bill of attainder claim and shall also remain pending. The Court 8|| defers ruling on the immunity defenses until further factual inquiry occurs. 9 Accordingly, IT IS HEREBY ORDERED: 10 1. Defendants’ Motion to Dismiss for Failure to State a Claim, ECF 1] No. 6, is GRANTED, in part, DENIED, in part: 12 a. The Court GRANTS Defendants’ motion to dismiss Claims 1-5 13 and Claims 7—9 and those Claims are DISMISSED WITH PREJUDICE. b. The Court DENIES Defendant’s motion to dismiss Claim 6. : 2. Defendant’s Motion to Consolidate Cases, ECF No. 8, is DENIED

13 AS MOOT. 19 IT IS SO ORDERED. The District Court Executive is directed to file this 0 Order and provide copies to counsel. 21 DATED September 30, 2025.

23 JAMES A. GOEKE 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28